Six Nations: Update from Grand River by Wilma Green Wednesday, December 03, 2008 11:29 AM
The $26 Million offer to settle the Welland claim for the flooding of approx. 2500 acres of Six Nations land, was made on December 12, 2007.
Six Nations reacted with a reasonable question. In fact, during subsequent update and consultation sessions, the people asked the same question, "How did they arrive at $26 Million?" Six Nations asked repeatedly for the calculations/formula used to arrive at the offered amount.
Finally, on April 16, 2008, four months after the initial request, Senior Federal Negotiator, Ron Doering, sent "Without Prejudice", a seven and a quarter page document entitled, " Understanding the Welland Canal Flooding Offer: Why it is Fair and Reasonable."
The purpose, "...to provide further explanation of the factors and considerations that led Canada to its offer of $26 Million to Haudenosaunee Six Nations on December 12, 2007."
The document proceeded to outline four possible approaches to compensation. After reading and understanding each approach, how frustrating it was to learn that Canada had not used any of them. Instead, the Government chose to wear its paternalistic glasses when deciding what was a fair and reasonable offer. " ...offers are not the result of simply pulling a dollar figure out of thin air: They are the product of extensive factual and legal analysis of a grievance and a claim, and much, much deliberation by federal officials. At the same time...we are not able to share with you all of the specific factors and considerations that led us to offer HSN $26,000,000 because much of that information is based on legal advice that is privileged and confidential."
"...As you know, Canadian law indicates that equitable compensation is based on an assessment that takes many factors into account, rather than on a simple mathematical calculation."
Secret may be fine for a family cookie or donut recipe and it seems to have worked well for the Colonel's secret blend of eighteen herbs and spices. However , a settlement explanation kept secret, is about as unreasonable as you can get. Yet, we are expected to believe and trust that it is "fair and reasonable."
Mr. Doering's wording is also a bit ironic. The favoured words "fair and reasonable" appear six times in the introduction and the closing and always when referring to the "offer".
Throughout the supposed explanation, the word "reasonable" appears eleven times, describing Canada's assuming, presuming, inferring and applying the how and why of their secret formula. The word "fair" is missing. Why? Because their, pay as little as possible formula, is unfair to Six Nations and they know it.
FAIR AND REASONABLE would be, to simply look back in time when approxiately 2500 acres of Six Nations land was flooded due to the construction of the Welland Canal Six Nations was never approached or consulted. The Crown made the decision which allowed the flooding of those lands. Indian Affairs stated that Six Nations would receive compensation comparable to all, whose property was damaged (flooded). That compensation was never paid. It seems both fair and reasonable to simply calculate the worth of the land and trace the interest and compund interest rates over 179 years and arrive at the amount.
Six Nations, reacting to the lack of a real fact-based response from the government, did just that by engaging, Professor Arthur Hosios, Chair of the Department of Economics at U of T. He has been accepted, by the Canadian courts, as an expert on valuing historic losses. He was retained by the Crown to give expert evidence on a compensation model in the Whitefish Lake matter. Six Nations requested his expertise on the Welland offer. He went back to 1834, when compensation was originally to have been paid. Six Nations research reflects 2,478.3 acres of good land, while the Crown recognizes 1,993.3 acres of mainly swamp which values the land at either $5.50 or $ 4.30 per acre. The professor calculated both sets of figures.
How far off the mark is the Crown offer? According to Professor Hosios, compensation for the Welland land flooding is more realistically within the $500 Million to $1 Billion range.
The $26 Million was based on assumptions and presumptions by the Crown on what would have happened to the money had Six Nations received the original compensation.
Professor Hosios advised that, "The Senior Federal Negotiator states that interest 'may be applied to the whole or to a part of a principle amount,' but without explanation. He or she seems to be relying on the notion that, '...We can never know what actual benefits would have been realized on a sum of money...Money can be saved, it can be spent; it may be invested wisely or conservatively; it may be invested poorly, or not at all....we should consider a whole range of realistic contingencies in arriving at a fair and proportionate amount...' This argument has been put forward to reduce HSN compensation and is, from an economic perspective, basically incorrect."
What Six Nations has included, as indicated by the people who expressed their views, is payment of the original compensation with interest calculated and compounded accordingly. What must also be considered is the loss of use of that land for 179 years. The loss of use for such things as hunting, fishing, trapping, gathering medicine, farming and very bluntly, for however Six Nations would have seen fit to use it. Also, payment for future loss of use needs to be addressed as well. The Crown also needs to recognize Six Nations' sacred connection with the earth, "Our Mother." They also need to be reminded that the land was not theirs to include in the Welland Canal development in the first place. When calculating their amount, the Crown chose to plot Six Nations spending habits of the Band Fund. What they do not include is the very real fact that the Crown and its agents, misappropriated the majority of our funds, as holders of the purse strings.
When talks were suspended by Six Nations in June, 2008, Allen MacNaughton gave the government negotiators some homework to do. When talks resume, they will be asked to give their understanding of, and attitude toward, the Two Row Wampum and Covenant Chain. What has been missing from the talks, is a firm committment to recognize, respect and uphold the original agreements.
Our claims are not, as Mr. Doering likes to call them, "grievances", but repeated intrusions upon our rights.
There needs to be an understanding that one side, which is ultimately responsible for the gross injustices and wrongdoings, cannot unilaterally decide what is fair and reasonable settlement by dictating the unreasonable.
The Crown refuses to admit wrongdoing, " For the lawyers out there, this is not an admission of liability - it is about the Government of Canada trying today to make things right." Historical evidence shows that wrongdoing was done over and over again. If the government is trying to make things right, then who do they propose did the wrong if it was not the Crown and its agents? They were supposed to be protecting our interests. They failed and knowingly did so, at the expense of our land, money and sovereignty.
Many people have mentioned that something does not "feel right" about the current process. It could very well be that we need to hear the admission that YES, the Crown and and its Agents have let Six Nations down. A formal apology would go a long way in easing the negotiation path. The opportunity exists to restore the trust, respect and friendship between the Haudenosaunee and the Crown, that was established over 250 years ago.The expiration date, as our ancestors and theirs agreed upon, has not arrived, for the sun continues to shine, the waters still flow and the grasses are yet growing and green at certain times of the year.
From the community meetings and discussion sessions, the common opinion was firstly,, that the offer was not enough. What people spoke very strongly for was: the return of land and financial compensation for loss of use and future loss of use for the flooded lands. The community stressed that there be NO extinguishment of rights to the lands now or in the future. The total suspending of development along the Grand River tract, until land claims are settled, was also echoed many times.
Other suggestions and concerns were also raised including: the needs of the community in such areas as fresh, potable water, economic development, education, raising the standards of health care, governance and spirituality. A lot of good things have come from the community meetings and have provided the WCTWG with very definite direction for our Negotiating Team to pursue.
An offer, lacking any real explanation, was made by the Crown and it has been refused with explanation, by Haudenosaunee Six Nations, along with a counter proposal for settlement. Now, at long last REAL negotiations can begin. The community will be informed of all future developments and many more decisions will have to be made as the process unfolds. Then, the two words that have appeared in Mr. Doering's submissions, can and should describe the result of the negotiations as being "FAIR AND REASONABLE" to all sides.
Think About It.