'The duty to consult' ... Financial Post, National Post

'The duty to consult'

Julius Melnitzer, Financial Post · Wednesday, Aug. 18, 2010

Aboriginal rights issues are cutting a wide swath in the energy sector, touching everything from resource extraction to liquefied natural gas facilities, transmission lines and pipelines. So much so that one industry pundit has maintained that all of Canada's new supply sources for oil and gas have at some point been "tied up" with aboriginal rights claims.

Among the projects affected are the $50-billion oil sands development in Alberta, the $500-million Kitimat liquefied natural gas terminal project in British Columbia, and the Maritime pipelines project.

There's also the multi-billion-dollar Mackenzie Valley natural gas project on which may hinge the future of Canada's north. Originally expected to come online in 2007, it remains uncertain as to when gas will begin to flow.

Environmental concerns, political squabbling, cultural differences and divisions among the aboriginal groups became so acute that Imperial Oil stopped work in April 2005, citing "unreasonable demands" from the Deh Cho. The impasse ended later in the year, but only after the federal government promised $500-million to address aboriginal social and economic concerns.

The Supreme Court of Canada's "consultation trilogy" in 2004 and 2005 has been the prime catalyst for the emergence of aboriginal rights issues. The trilogy -- which consists of legal cases involving the Haida, Taku River Tlingit, and Mikisew Cree -- established that both federal and provincial governments had a duty to consult with aboriginal groups before making decisions that might adversely affect their asserted but unproven aboriginal rights.

"The duty to consult is triggered when the Crown knows or should know that its actions might affect constitutionally protected rights," says Wally Braul, an aboriginal and environmental lawyer at Fraser Milner Casgrain's Calgary office. "And the courts have made it clear that consultation is not just about blowing off steam. It's a results-oriented process that includes both information and response components focused on accommodating the competing interests at stake."

That means governments cannot -- without prior consultation -- grant or renew licences, leases or other privileges to third parties or take action on their own that could infringe on potential aboriginal rights. While governments can delegate the implementation of their duties to third parties in the private sector, the ultimate burden of ensuring that meaningful consultation occurs remains with the Crown. What is meaningful depends on the circumstances, including the strength of the aboriginal claim and the seriousness of the adverse effects on that claim.

"With the trilogy, resource harvesters became aware that aboriginal rights had a direct impact on the way they did business," says Tom Isaac, an aboriginal rights lawyer at Mc-Carthy Tetrault's Vancouver office.

Indeed, allocation of Crown rights and the development process proceed fairly simultaneously nowadays. Currently it is rare for Canadian governments to allocate resources without consideration of how the resource will be developed and whether the development will affect aboriginal rights.

In the real world, this means that the Crown off-loads the consultation process to those seeking the grants to access resources.

"Applicants requiring government approval for a permit or licence may not know if aboriginal consultation is required," says Ken Clark, an aboriginal lawyer at Lang Michener's Vancouver office. "They may also not know what aboriginal groups should be consulted; when the consultation should occur; what information they should provide; how long the consultation process might take; whether the consultation will result in approval; what changes might be required, and whether an approval, if granted, might be set aside by a court." So unless they get the right advice, project developers may find themselves on a slippery slope.

"In the last few years, the adequacy of the consultation process has been challenged in court by various aboriginal groups," Mr. Clark explains. "A frequent result is a determination that the consultation process was not adequate, and a direction that the Crown go back and consult some more."

Companies wishing to avoid dilemmas of this kind must make sure not only that they get the delegated consultation process working properly, but also that the Crown has done its job by putting a proper process in place.

"After all, the Crown bears the ultimate responsibility for ensuring that consultation occurs, but if the process is one that isn't fair and transparent and doesn't withstand judicial scrutiny, it's the developer who suffers the consequences," Mr. Isaac says.

The courts have made it clear that they would prefer to see some kind of policy guiding the consultation process, but governments have not been quick to respond.

"The feds tried and created some interim guidelines but they remained interim and are not generally followed," Mr. Clark says. "Alberta has made an effort but without much success. Earlier this summer, Saskatchewan did come up with guidance that looks reasonable and providesclarityandcomes closest to the kind of regulatory regime that the Supreme Court of Canada has been referring to in its decisions."

Meanwhile, the legal rulings are evolving rapidly.

"It's very important to align a project with the very latest guidance that comes from the courts," Mr. Braul says.

At the same time, First Nations' and other aboriginal groups are increasing their expectations and becoming more sophisticated in their approach to the issues. "It's no longer just a matter of respecting aboriginal rights and traditions," Mr. Isaac says. "Rightly or wrongly, there is a growing expectation of some form of economic benefit flowing from projects to First Nations."

The practical challenge for the resource and other sectors, then, is how to measure, manage and mitigate the risk in the consultation and accommodation process.

"Every jurisdiction in the country is different in its approach, every sector is different, and the First Nations, Metis and Inuit are all different in their approaches. So you're not going to get cookie-cutter answers, and that won't change until we get the kind of political leadership that will lend greater clarity to the process," Mr. Isaac says.

Read more: http://www.nationalpost.com/todays-paper/duty+consult/3411973/story.html#ixzz0x4aMrETB

CANADA STALLING on mediation: Six Nations

Natives accuse Ottawa of foot dragging
Won't agree to land-claims mediation: Six Nations

http://www.thespec.com/News/CanadaWorld/article/650491
October 09, 2009
Daniel Nolan
CALEDONIA - The Six Nations Confederacy is accusing Canada of stopping progress in talks to settle land claims because it won’t agree to mediation.

The Confederacy, appointed by the elected-band council in 2006 to conduct negotiations with Ottawa and Ontario, also says commitments by Canada to help fund Six Nations in order to create an “equal bargaining field” has not been forthcoming and it has had to lay off staff and rely on “the goodwill of our people to attempt to maintain a presence at the negotiation table.”

The statements were made by Confederacy representatives today at the conclusion of the latest round of land claim talks, which first began in May 2006 to try to resolve a dispute over the occupation by natives of a Caledonia housing project. It blossomed into other land claims, and saw Ottawa make two offers - $125 million and $26 million - to resolve different claims, but no agreements have been reached.

In the meantime, natives have halted development projects in Brantford and Hagersville because they say they’re being built on unsurrendered Six Nations land.

Ontario supports the idea of bringing in a mediator, but Confederacy spokesman Aaron Detlor said Canada has consistently blocked it. Names of judges have been proposed with no response, he said, and lately the name of Dr. Peggy Blair has been suggested. She is a leading lawyer in aboriginal affairs and completed negotiation skills training at Harvard Law in 1993.

“We need the assistance of a mediator-facilitator,” he said. “We have a fundamental disagreement about one party showing up at negotiations and saying ‘Here is the agreement. Take it or leave it.’ That’s not negotiating. They show up and say, ‘Here’s how we’re going to negotiate a settlement. You’re going to take what we’re going to offer and not ask any questions about it.”

Federal officials left before reporters could speak to them and could not be reached for comment later. A spokesperson for federal Indian Affairs Minister Chuck Strahl could not be reached for comment.

On the issue of financing, Detlor said the Six Nations team has been without any funding for the last six months. He said it has had to let go three people, such as a researcher, and plans to cut two more. They have suggested $1.2 million is adequate to help them with the ongoing negotiations.

“It diminishes (our ability to negotiate) significantly,” Detlor said about the cash shortage. “Ontario has seven or eight people and the feds have seven or eight people. We don’t have the same back office support they have of hundreds of people. We have five people.”

“It’s simply not fair to ask people to put their lives on hold in good-faith negotiations without any ability to feed their families.”

Detlor said talks have not broken off and the three sides are set to meet again next month.

“We’re committed to continuing talks and we’re hoping the federal Crown will see the light of day,” he added.

He wouldn’t say frustration by land claims supporters will lead to more demonstrations, but noted: “Significant business interest in this part of Ontario is on hold until we get a mediator-facilitator. People are not going to come here and invest in this area if we cannot get a simple agreement on a mediator-facilitator.”

'We keep getting blocked'
http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=2096313

The Haudenosaunee Development Institute went public with its complaints against the province and the federal government on Thursday, accusing them of delaying negotiations over land claims.

In a hastily arranged news conference after the latest table talk among the institute, Canada and Ontario, three HDI spokesmen announced the governments are balking at all their suggestions for a mediator-facilitator who could help move the process along and are refusing to assist with funding for natives who are engaged in the process.

"We have been working at getting a mediator-facilitator for four months," said spokesman Aaron Detlor, who is also a lawyer. "We keep getting blocked time and time again."

Detlor said the HDI has suggested various names, including Canadian judges, and has been open to input from the governments about who could be brought in to offer impartial advice on moving forward.

The terms of reference for a mediator-facilitator have already been agreed upon, so it's just a matter of selecting a person.

"We've tried to make a process where everyone can be satisfied and we get forced back by a federal crown with a message that's basically 'Our way or the highway'"
Additionally, no one working on the negotiation process has been paid for the last six months and Detlor said the HDI has had to lay off three of its five-member administrative staff , including a researcher, assistant and co-ordinator.

"It diminishes us."

Detlor said each of the governments shows up at the talks with seven or eight highly paid negotiators.

The lawyer also said the HDI is not halting the talks, but is hopeful people will demand their politicians push for more movement.

HDI's Mike Bomberry read a prepared statement saying the natives have lost good faith in the negotiation because of the approach Canada and Ontario have chosen to take, creating an "unfair bargaining field."

With no administrative funding support from Canada, the natives have relied on volunteer assistance at the negotiation table and have had to lay off staff .

"(We) may now be forced to shut down offices at the Oneida Business Park since it cannot aff ord the rent," said Bomberry.

Aboriginal Affairs Minister Brad Duguid, reached at the legislature in Toronto, said his instructions to negotiators have been to be as flexible as possible.

"We're enthusiastic supporters of bringing in a facilitator to try and trigger more progress in the talks," Duguid said.

"We continue to support the Haudenosaunee/Six Nations people and urge the federal government to show as much flexibility as possible to reach a consensus on who that should be."

The minister said he hasn't seen the names suggested as a facilitator, but he sees no reason why a suitable candidate can't be swiftly found.

Representatives from the federal and provincial government did not remain at the Oneida Business Park after talks today to offer comment.

In related negotiations, Brantford was back in court last week regarding its injunction against native protesters and was rewarded with a clarification from Justice Harrison Arrell that says the native protesters are prohibited from stopping work at the 10 development sites named in the original injunction.

The clarification seems aimed at the protests of Floyd and Ruby Montour who recently stopped work on Erie Avenue, along with a handful of supporters.

Meanwhile, Brantford police are investigating comments made on an Internet discussion board about the protesters.

One poster suggested the native protest could be stopped through a violent act and the Montours were asked to discuss their safety with police.

Copyright © 2009 Brantford Expositor

Why is Six Nations funding Canadian taxpayers? Well summer's almost over, school has started again, and the Brantford Expositor is still publishing Gary Horsnell's dumb questions that he could find answers to if he tried. Of course, finding answers is not what Horsnell's about as he's a truth twister ... as friend satori says ... "trying to intellectualize bigotry". Here are Horsnell's questions, and some answers ...

Brantford Expositor Why are taxpayers funding Six Nations? In a recent Expositor article, Bill Montour, the chief of the Six Nations of the Grand River elected band council, said the Six Nations spent about $70 million to run the reserve, which has about 17,000 people. That works out to about $4,117.64 per person. The article also said that Brant County's budget was $110 million for 35,000 people. That works out to $3,142.85 per person. The City of Brantford, on its website, shows the 2009 net municipal budget is $110.3 million for a population of about 90,000 people. That works out to about $1,226 per person. How come the Six Nations spends so much more per person per year to run the reserve than Brant council to run the county or Brantford council to run the city?

Apples and oranges: Municipal budgets and Six Nations' budgets are not directly comparable. Six Nations budget includes funding for all services, whether federally, provincially or locally funded. Municipal budgets, for example, do not include EDUCATION and HEALTH CARE, major services funded directly by the province, while Six Nations' provides those services and others out of its budget. In Ontario, $42.6b (43%) of the provincial budget goes to Health Care and $14.2 billion (14%) to Education. On that basis alone, one would expect that Six Nations budget, per capita, would be at least more than twice that of a municipality. The correct comparison would be municipal + provincial + federal funding per capita in Brant County and Brantford compared to Six Nations budget per capita. I'll leave Mr. Horsnell to do the math on that, and at the same time figure out why Brant County's funding per capita is so much higher than Six Nations and Brantford!

Much of the money the Six Nations spends to run the reserve flows from taxpayers outside of the reserve through Indian and Northern Affairs Canada (INAC) to the reserve. But why does the Crown use money from taxpayers to fund the Six Nations? The Crown bought the land along the Grand River from the Mississauga Indians on May 22, 1784. Later, on Oct. 25, 1784, Governor Haldimand issued a proclamation, which allowed Mohawk leader Joseph Brant and his Six Nations followers to settle on and use the Crown land along the Grand River. Then, in 1793, Governor Simcoe issued his letter patent to the Six Nations for land along the Grand River. But the Haldimand Proclamation and the Simcoe Patent do not mention anything about the Crown funding the Six Nations. The people of the Six Nations of the Grand River were expected to sustain and support themselves on the land they were allowed to occupy along the Grand River. Nevertheless, INAC and other government agencies have been sending money from taxpayers to the Six Nations of the Grand River for decades. INAC funds infrastructure and programs on the reserve and Canadian government agencies have provided money for water treatment, a dialysis clinic, other structures and programs and recently $1.99 million for the Kayanase ECO Centre. So, why do INAC and other Canadian government agencies send money from taxpayers to the Six Nations of the Grand River to fund infrastructure and programs on the reserve, when the Six Nations was expected to sustain itself and there is no treaty or agreement I can find which calls for the Crown to use money from taxpayers to fund the reserve? Garry Horsnell Brantford Article ID# 1736187

Mr. Horsnell, not surprisingly for a truth twister, makes no mention of the fact that the Crown somehow subsequently 'assumed' for itself about 95% of the Haldimand Tract excluding only the current Six Nations reserve lands. Proceeds from the settlement of that land, leases or sales, were to be deposited in Six Nations trust fund maintained by the federal government, for them to draw on for the needs of their community. Somehow, the federal government cannot, or refuses to, account for the Six Nations trust fund. That is why Six Nations is currently pursuing 29 legal claims against the federal government. It is known that Six Nations trust fund was embezzled by the Crown to build Osgoode Hall, the Welland Canal, and other infrastructure. It is also known that while Six Nations Band Council received $46m in federal and provincial funding this year, Six Nations people and businesses paid well over $140m to Canada/Ontario in taxes! It is thus more accurate to ask: WHY IS SIX NATIONS FUNDING CANADIAN TAXPAYERS?

PROVINCE ORDERED TO JOIN IN COURT ACTION:Brantford, Six Nations INJUNCTION HEARING Posted By SUSAN GAMBLE, EXPOSITOR STAFF Posted 6 hours ago Justice Harrison Arrell ordered the province to join the court action that's part of Brantford's ongoing push for an injunction against native protesters. Lawyers for all others involved in the motion consented to the judge's order Friday. When lawyers for Ontario show up March 17, the judge plans to hear from everyone about how the province's involvement will play out. "Provincial participation will be determined after hearing submissions from all parties," Arrell said. He has already warned the city and Six Nations that his inclination is to order a court mandated consultation process that will force the parties to negotiate a settlement with one another. The city has been pushing for a long-term injunction against native protesters at development sites in Brantford, and have filed a $110-million court action against some of the protesters and the Haudenosaunee Development Institute. Brant MPP Dave Levac said the province will be fine with the judge's order. "We're ready to enter into negotiations at the level the judge is talking about," Levac said Friday. "We're already talking about a memorandum of understanding so I don't see why we wouldn't be a willing participant." Earlier this week, Levac opposed a private member's bill from MPP Toby Barrett, pushing for an inquiry into protests in Caledonia. Levac called the bill ill-advised and said it's premature to insinuate an injunction is an appropriate way to deal with protesters at this time. On Thursday, the judge and the lawyers involved pondered how a mandated consultation could proceed. They made suggestions about how long it might go on, how often they'll return to the court for guidance, who will pay if a negotiator is needed and what kind of provision will be included for emergency flare-ups. Arrell said he's likely going to have consultations include some future development and is unlikely to freeze development until a decision is reached on the injunction. "For you to tell me 'no permits' until I reach my decision is not feasible," Arrell told Lou Strezos, the lawyer for the Haudenosaunee Development Institute. "What I'm trying to do now is simply strike a balance. "You talk, Mr. Strezos, about a lot of good faith. I'm going to order (your clients) to consult and I'm going to order you people to try and settle this and if you don't settle it, you come back to court." The hearing continues Tuesday at 11:30 a. m. in Superior Court. More updates here ...

'We're just worried about the land' Posted By SUSAN GAMBLE, EXPOSITOR STAFF Friday night's TRUE meeting seemed to be a meeting of the minds. Four representatives of the Haudenosaunee Men's Fire offered a history lesson and an explanation of why land under construction by Empire Homes off Conklin Road and other properties in Brantford are so critical to the Six Nations people. And Caledonia resident Ken Hewitt -- once the spokesman for the Caledonia Citizen's Alliance -- explained why he's seeking a public investigation into a "two-tiered justice system" that he says favours natives. Hewitt has about 7,000 signatures on a petition calling for an Ipperwash-style inquiry into OPP actions. Hewitt said mistakes have been made on both sides and he feels the OPP have been victims of confused leadership. Haldimand-Norfolk MPP Toby Barrett, who supports the petition, told more than 100 people at Laurier's Odeon building that he doubts his private member's bill demanding an investigation will pass second reading in March. Also in the audience was Haldimand County Mayor Marie Trainer. The Men's Fire representatives -- Gene Johns, Stan Farmer, Wes Elliott and Kelly Curley -- worked to explain to the crowd that they operate under treaty law rather than Canadian law. The group, a traditional gathering that can include all men and is charged with the duty of protecting the land, the women and children, says it was reignited during the Douglas Creek Estates protest in Caledonia after being dormant for years. The protests at Empire Homes in particular are due to the land being part of the Clench tract, said Johns, which is a matter under litigation in the courts. "Everybody is worried about their home and getting eviction notices," said Johns. "Tell everybody their house is fine. We're just worried about the land." Johns -- who has been arrested for his part in trying to stop construction at the Conklin Road site -- encouraged people affected by the Empire protest or concerned about their own house to contact the Men's Fire representatives to talk. Farmer said the men were compelled to try and stop houses from being built on land they consider theirs as a way of protecting the remaining greenbelt areas. "Hamilton is having a problem with coyotes but you've interfered with their business, just like us. The animals need to have a place to hunt and fish, just like us." Audience member Gary Horsnell questioned why the Men's Fire is protesting at land it has no chance of having returned, according to the government. But Curley said that's the reason they protest at sites before houses are erected. "The federal government says it won't displace people, so if there's no house on the land, we have a right to that land." Farmer appealed to the non-natives in the crowd to consider the commitment and lack of sleep many of the protesters endure for their cause. "Don't look at me as a warrior or terrorist. I'm an individual born to an obligation. We're trying to keep the treaty of peace," said Farmer.

Protect Mother Earth GEORGE BEAVER As a young boy growing up at Six Nations, I was exposed to the Haudenosaunee concept of conservation of our natural environment for the sake of our future generations. I remember reading the community newsletter called The Pine Tree Chief. It was a forerunner of the present weekly newspaper, the Tekawennake. In it, Andrew Jamieson, a teacher, writing about an old native hunter, said, "He never took more than he needed." The operative word here is "need" not "want." When hunting we may want to kill more than we can eat but if we remember our future generations, they, too, will need a share of nature's bounty. And that bounty extends further than just to animals, fish and birds. Clean water, pure air and rich soil for growing food is also a part of our environment that needs our protection. Our ancestors believed that it was their responsibility to protect Mother Earth. When their generation passed on, this responsibility was passed down to the next generation. This idea of stewardship of the Earth is also found in most First Nations of North America, not just among the Six Nations. This may be the reason history tells us the indigenous people had such a horror of selling land. In their philosophy, land, water and air were all regarded as necessities of life. As such they are priceless and not to be bought or sold. All of the present generation of all races should be taught that when we conserve our natural resources we are helping our children and grandchildren to survive. Furthermore, the unpolluted land, air and water we pass on to them will provide a healthy and happy environment in which they can live and thrive. What a shame on our present generation if we pass on polluted water, land and air to our future generations. It would be especially shameful for this to happen here in Canada, one of the richest countries on Earth. Surely polluting factories and businesses could set aside some of their great wealth and clean up the messes they create before it gets into our water and air. It is especially crucial that the earth itself is not polluted. To many people, the planet Earth is not just our home, it is Our Mother. After we are born we live on milk which indirectly comes from food grown on the earth. As we grow and develop teeth, we learn to eat the meat of animals that ate plants that grow on the earth. We also eat plants that grow on the earth. In a real sense the earth sustains us and keeps us alive. Many native people, both here and in the U. S. take very seriously their responsibility to protect and conserve the natural environment and Mother Earth.

BRANT COUNTY: Committee overrides provincial policy, rezones farmland.

The committee was willing to override its own planning department and provincial policy, and proceed with the rezoning of about 400 acres of farmland.

http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=1415057 Cainsville a developer's paradise? Posted By MICHAEL-ALLANMARION Updated 14 hours ago Some major plots of farmland just north of Cainsville are yielding an unusual harvest of social conflict. Three outside development companies -- Alberta-based Hopewell Development Inc. and two Toronto area companies, First Urban of Concord and the Sorbara Group of Vaughan -- have raised the ire of some local residents and the political temperature of Brant council with their plans to build homes and a business park on farmland they've acquired on the east side of Garden Avenue, north of Highway 403. First Urban, Hopewell and Sorbara propose three separate development areas, including two residential neighbourhoods and a business park that would dramatically transform the cash crop fields that surround Cainsville. Overall, the plan includes about 1,700 housing units, surrounded by parks, a trail system and businesses. The largest parcel proposed for development, is a 218-acre site owned by First Urban that could accommodate up to 1,116 housing units. North of that, Hopewell developments wants to create a 135-acre business park that would include more than 2 million square feet of space for businesses. Sorbara wants to build between 590 and 704 homes on a 184-acre site, located north of Lynden Road. The land is zoned for agricultural uses and is still designated that way in the county's official plan update. When some of those plans came up for scrutiny in two meetings of the county's planning advisory committee during the past two weeks, a lot was heard about a bright future for Cainsville. A lot more was revealed, however, about the suddenly professed peril of the county's fiscal soul and the ebbing political will of councillors. According to the discussion being carried on by agents for the developers, several councillors and some of the residents, it would appear that the land whose fate they were pondering is marginal from an agricultural standpoint. Its best crop would be houses and business buildings, and its true value is to be found in the development charges and tax revenues.

And of course, that's all that matters ... money for developers and the council. Quality of life? Greenspace? Phhht ! ... Green...money!money!money! BRANTFORD CITY

Calnan quits committee http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=1416374 City Coun. James Calnan says he has no choice but to resign from a committee that deals with First Nations issues to avoid rules that continually would muzzle him. Read Tuesday's Expositor for the full story.

SIX NATIONS AND BRANTFORD: Wouldn't a partnership be a better way to move forward?

"While maverick city Coun. James Calnan faced a barrage of criticism for breaking ranks over the city's legal action; he was right when he said the city should follow up with some sort of peace overture, instead of just legal confrontation." (Expositor editorial Jan. 7, 2009)

Six Nations has, to my personal knowledge throughout the past 33 years, made direct efforts to educate, inform and work, when possible, with the City of Brantford while respecting and protecting Six Nations land rights. Previous city councils led by mayors Charles Bowen, David Neumann, Karen George, Bob Taylor and Chris Friel have all interacted with us in efforts to move forward through similar turbulent times.

No doubt the present Mayor Mike Hancock, with his 20 years experience on city council, is also aware of these efforts and must continue with such diplomacy. And Six Nations must continue to extend the olive branch in answer to C. Orville Garlow (Expositor Opinion page, Jan. 8, 2009) because fairness and diplomacy are who we are.

Many of the city's previous mayors and councils have been Six Nations' best allies; lobbied for us and with us with no less than 19 federal ministers of Indian Affairs, numerous members of parliament and the provincial legislature in attempts to pressure Canada to resolve Six Nations' outstanding land issues in a fair and just manner.

Going forward with the City of Brantford, there is a way!

With the economy crashing into a recession, there is a great opportunity for business in implementing the Six Nations/City of Brantford Feb. 4, 1997 agreement. Six Nations can partner with investors on lands within the city of Brantford, be it an abandoned business site (to preserve as much farmland as possible) or a new site for business that meet our criteria and approval.

The lands will be held jointly by Six Nations and the developer/investor; exempt from municipal or provincial taxation per the terms of this 1997 agreement, our unique situation and the province's own legislation.

The developer/investor would pay what was saved in taxes to Six Nations to be used to repay the developer/investor the amount they initially paid for the disputed lands.

Upon the investment for the land repaid, the title will be transferred to where it should be, Six Nations.

The businesses would be issued long-term leases with lease payments securing Six Nations' perpetual care and maintenance, honouring the intent of our original agreements we had with our neighbours and the Crown. Certainty for investments would be achieved.

The City would be paid for the services they provide (fire, water, sewer, policing, garbage, etc.). Businesses would thrive having the advantage of commerce in a tax-free zone. Everyone would be working. Employment, training and apprenticeships would be available to everyone.

Six Nations would finally be included in the economy. Canada's legal duty to settle the land rights of the Six Nations People remains intact, but now big business and the City will be our allies, prompting Canada to settle with Six Nations.

The expected federal infrastructure dollars and economic stimulus package being proposed in the federal budget can only help if properly leveraged.

To date, the required investors and developers are excited and the province appears willing to amend the legislative changes arbitrarily implemented in 1997 that might have been an excuse for the City not to honour their part of the Feb. 4, 1997 agreement with Six Nations.

City of Brantford, it's your move.

Or would the City of Brantford rather be known as the place where uncertainty of land title has developers and investors suing the City and going elsewhere. Or Brantford, a place where Jane Doe, John Doe and Persons Unknown are not welcomed and subject to arrest. Or the City of Brantford, a place where Indian Fighting Lawyers and the Army are being sought to handle those pesky Indians.

Brantford, could your image get any worse?

Phil Monture

Six Nations

http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=1409631&auth=

NATIVE LAND CLAIMS

I disagree with Mr. Andrew Robinson's opinion in his Jan. 24 editorial that we, including councillors, should keep our attention and action focused on a negotiated settlement.

A negotiated settlement is, of course, the key, but Mr. Robinson has failed to consider a critical element in his reasoning -- the length of time it will take to reach a negotiated settlement. Just how long will it take to settle the land claims? Less than 12 months, a few years, or, decades?

The answer is in the following: Mr. Phil Monture, an expert in Six Nations land claims, who provides support to the federal negotiations, and who was instrumental in the City of Brantford/Six Nations 1997 agreement during the Mayor Chris Friel era, has made extra and painstaking notes on his technical work and in-depth knowledge because he says he will not be alive to see the day the land claims are settled.

The citizens of Brantford and the city and its deteriorating reputation and economy cannot wait this long until the land claims are settled. Holding the long breath is unrealistic, especially when peace-evoking solutions are within arms reach.

Danica Vanpopic

Brantford

http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=1413661&auth=

Kingspan sues City of Brantford for $10m due to Six Nations land claim Aha! Brantford's day of reckoning ... at least one of them! Another is going on in court right now, tomorrow, FRIDAY, 10 am, Brantford Superior Court, as the City is still trying to get a permanent injunction on the Kingspan site, and others that developers have already pulled out of. hahaha! Company sues city for $10 milllion Brantford Expositor - Brantford,Canada ... which started to build its North American headquarters in Brantford, ... problem of Six Nations protesters contesting the property as aboriginal land. ...

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And then ... (boy, Brantford is having a baaaad day!) Residential development on Conklin Road targeted

Posted 5 hours ago

Tempers flared as 15 to 20 native protesters halted work at the Empire Homes residential project on Conklin Road Thursday morning.

Construction workers yelled at the protesters as police tried to form a line between the two groups. About 50 to 60 Empire workers left the site, said one protester. “They’re not supposed to be digging here,” said Gene Johns. “This is the third time we’ve been here and they won’t listen.” Johns said he represents the Confederacy, the Six Nations community.

Brantford Expositor:

SIX NATIONS LAND DISPUTE

Posted 11 hours ago

Regarding Jan. 2's well intentioned editorial, "An obvious resolution," there are a few very important words I hope that Expositor readers -- and that includes Brantford's mayor and council -- didn't just breeze over without giving much thought to. The editorial starts with a hope that Brantford and Six Nations "find a way to move forward together." The first thought to consider is the need to "find a way." That would strongly imply that the way we are now heading is not that way. "Forward" means different things to different world views. To some, it means paving over all available green space and growing into another Mississauga ASAP. To others, it means learning how to preserve, protect and care for what land there is left for future generations to enjoy. The next word is "together." That would imply that consultation, dialogue and mutual respect are going to be needed to find this new way. It would also imply that both parties would share equally in both the planning, the process and the proceeds. In the past, when Brantford has used words like partnering and sharing, what has been meant is rather: "get out of our way, go back to the reserve, and leave us alone." This more than 200-year-old pattern of policy is exactly what created the present situation both communities find ourselves in as 2009 unfolds. I will be watching very closely as the two dozen or so injunction related cases make their way through the Wellington Street courts this January and February. The legal bill, which we Brantford taxpayers will have to eat, is now over $250,000 and the real spending hasn't even begun. Brantford will not win this one either and every cent accumulated by lawyers representing not only Brantford but the Six Nations individuals facing contempt charges based on this bogus injunction strategy, plus all other related court costs, will come back to city hall and be passed on to you and me, and that will be in the millions. When that happens, many will blame those pesky Indians, but the real culprits are those at city hall who know they are driving this bus into a brick wall and are too damned arrogant to admit it. So, are the injunctions working, as the editor suggests? No, and not by a long shot! Drop these foolish injunctions now! Talk is much cheaper and far less damaging to all. Now that is the obvious resolution I see. Jim Windle Brantford

Fantino under fire for Caledonia dispute Petition calls for provincial probe Posted 11 hours ago A petition calling for an inquiry into OPP Commissioner Julian Fantino's handling of the Caledonia land dispute is gaining steam. The petition, drafted by residents Ken Hewitt and Dave Brown on Jan. 1, has more than 1,400 signatures and was signed Sunday by Conservative MPP Toby Barrett. Barrett said he will introduce the petition in the legislature once a goal of 10,000 signatures is reached from across the province. Brown says Human Resources Minister Diane Finley signed the petition at Barrett's levee in Caledonia Sunday. Finley could not be reached for comment. Local politicians including Haldimand County councillors Craig Grice, Leroy Bartlett, Buck Sloat and Mayor Marie Trainer have also signed the petition. The petition asks the province to look into the actions and decisions made by the province's top cop and if he's found to have acted unethically or with bias, to press him for immediate resignation. They also have created an online petition and a Facebook group, called "Petition for Julian Fantino Inquiry." Barrett, the MPP for Haldimand-Norfolk county, said his party called for an inquiry two and a half years ago. Barrett said the instances of physical violence in standoffs over land disputes, along with the emotional and economic toll on the residents of Caledonia are reasons why he supports the petition. He said the ongoing frustration residents feel is a result of what he calls "government paralysis" over the situation. Fantino could not be reached for comment.

Copyright © 2009 Brantford Expositor

© 2009 Brantford Expositor

Six Nations: Onus for peace lies with Brantford Onus for peace lies with the city BRANTFORD AND SIX NATIONS

Re: "An obvious resolution" (Brantford vs. Six Nations) http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=1369685

Of course there's an obvious resolution. The number of attempts at an accommodating and respectful dialogue on the part of Six Nations council and, of late, the Confederacy council with Brantford Council, is unknown. Suffice to say, so many attempts were made that we have lost count. If, as the editorial suggests, there is a way, someone should make great haste and inform Brantford city council because we of Six Nations have been attempting that 'better way' for quite some time now.

Quoting from the Editorial;

1. "Native protesters should resolve to consider the impact of their actions on people who have no ability to settle the land claims fuelling their unhappiness."

2. "City council should resolve to pursue a more conciliatory approach with Six Nations."

Simply put. If City Council had complied with the law as handed down by the Supreme Court of Canada, and entered into meaningful consultation with Six Nations, quote NO. 1 would be rendered moot.

How many times does The Expositor feel Six Nations should be the one to hold out the olive branch to Brantford? Thirty times? Fifty times? One hundred times? How about 150 times (probably more) over the past 150 years?

Let me tell you this, the number of times Brantford has extended an olive branch to Six Nations can be counted on one hand. (Figuratively speaking of course). In reality, very, very few times by comparison.

We have always shown our respect toward Brantford council in our many, many peaceful submissions, delegations and presentations, which clearly showed Brantford of our willingness to work together ... only to be ignored. With regard to the intent of this editorial, I would respectfully but strongly suggest the onus lies with the city of Brantford if peace is to be achieved.

C. Orville Garlow Ohsweken

Six Nations, Brantford: Court date Wed Jan 7

On wednesday the 7th Dick Hill (Six Nations) will be in court in brantford over the illegal injunction (City of Brantford) using a constitutional defense!

Most recent relevant constitutional ruling:

[48] Where a requested injunction is intended to create “a protest-free zone” for contentious private activity that affects asserted aboriginal or treaty rights, the court must be very careful to ensure that, in the context of the dispute before it, the Crown has fully and faithfully discharged its duty to consult with the affected First Nations: see Julia E. Lawn, “The John Doe Injunction in Mass Protest Cases” (1998) 56 U.T. Fac. L. Rev. 101. The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process: Haida Nation, p. 532.

Brantford should thank Six Nations:

City council's legal action to blame for trouble

I think Brantford should get on its knees and thank the people from Six Nations that something far worse hasn't occurred. ... in the face of repeated attempts on Brantford's part to suppress the inalienable rights of the sovereign people of Six Nations with racist bylaws and injunctions which are doomed to failure.

Re: Tim Philp's column "What a difference a year makes." http://www.brantfordexpositor.ca/PrintArticle.aspx?e=1365253

Philp states: "While native activists may have taken some delight in having caused developers to stop work ... etc."

This is small-minded commentary. Nothing could be further from the truth. Philp makes it sound as if we are gloating, gleeful or deriving some sort of smug satisfaction out of our few successes in stopping development in Brantford. I would prefer something like: "Enjoying the fruits of our honest efforts."

The operative word here is honest. This is a word many of Brantford's citizens have come to know as a characteristic its own council is unaware of. We didn't skulk under cover of darkness creating havoc. We did not cover our faces. We conducted our responsibilities in the open, in broad daylight for all to see. We suffered as many racial slurs from the "good citizens" of Brantford as the mind can conceive and, for the most, maintained our dignity.

The greater majority of we "activists" -- and here I prefer the word "protectors" -- have stood the line in every kind of inclement weather and there's no delight in that, I can assure you. We have stood peacefully with open hands and open faces, but came armed only with a deep sense of purpose and determination; a knowing of what constitutes right and the will to prevent great injustices being perpetrated against both the land we are responsible for and ourselves as a people.

When Philp speaks of the financial woes facing Brantford, alluding to "native activists" as being largely responsible for them and delighting in those woes, he is nowhere near the bull's-eye. Brantford's present mayor and council are where the majority of blame lies.

It has used and perverted the legal system. It has refused time and again to recognize its legal obligation, its responsibilities and duty to consult with Six Nations in a meaningful way, as ruled by many courts in Canada in various actions involving natives, including the Supreme Court of Canada!

And the whole point is: none of this would have happened if Brantford had offered up a modicum of respect toward Six Nations and its interests in the Haldimand Tract as a federally acknowledged land claim. In fact, Brantford followed the same path that Caledonia took in 2006, knowing in advance it couldn't work. I think Brantford should get on its knees and thank the people from Six Nations that something far worse hasn't occurred.

The good minds of Brantford's neighbours across the river have prevailed and kept the peace in the face of repeated attempts on Brantford's part to suppress the inalienable rights of the sovereign people of Six Nations with racist bylaws and injunctions which are doomed to failure.

If Philp is so worried about local tax dollars, ask the mayor and council to account for the tens of thousands of dollars frittered away on legal actions against Six Nations which have virtually no chance of success. Talking in a meaningful, respectful way with Six Nations would have been a lot cheaper, more productive and prevented a lot of hard feelings.

C. Orville Garlow

Ohsweken

PERSPECTIVES: AW@L Supports Six Nations in Brantford

http://www.peaceculture.org/drupal/node/61 As a settler and as an activist, this fight is equal parts anti-colonial and land protection; fighting against the ongoing war of colonization being waged by my government against the people of Six Nations is as much a part of this for me as is fighting against the destruction of land and the perpetuation of overdevelopment and sprawl.

And be willing to fight we must.

Submitted by alex on Wed, 08/27/2008 - 14:25

For the past two months, I have been spending several nights a week camped at a land protection site in Brantford. On Monday morning, August 25, I and a few other AW@Lers joined over a dozen people from Six Nations in shutting down a development site just off highway 403.

The site that was shut down is one of the same sites that Ruby and Floyd Montour had been stopping work at over the winter. It is the same site that the Confederacy Council showed up at early this summer, to warn developers that they were attempting to build on Six Nations land without consultation and that it would not be tolerated. And it is the third individual site that Steve “Boots” Powless has led a shut down of in the last two months. He has been camped in a tepee on the site beside Oak Park Road for over 45 days now.

The original closure was enacted by less than a dozen people, as a few Six Nations men who have been deeply involved in resistance there since the barricades first went up at Douglas Creek over two years ago, stood in front of cement trucks trying to enter a site slated for the construction of the Kingspan Insulation facility. This site lies adjacent to a bike trail along which are signs marking the area as “environmentally sensitive.” It is only a few hundred meters from the Grand River. The second closure happened at the massive King and Benton “commercial/industrial center” development site on the other side of the 403. There are a host of environmental concerns with the development on this site, but frankly, it isn’t the specifics that concern me; I am deeply troubled by the pattern of sprawl and over-development that this whole issue in Brantford is so emblematic of. Upriver in Waterloo, where I live, the exact same issue is of concern and affects Six Nations in the exact same ways.

The King-Benton site was shut down a few weeks ago. I and a handful of other supporters watched as a large contingency from the Haudenosaunee Men’s Fire of Grand River arrived on site to announce that the all work would be shut down pending an environmental assessment, and that, if the results of the assessment did not meet the standards of Six Nations, the site would be shut down permanently (or until it could be made convincingly acceptable). Just yesterday, work resumed at the site with the developer claiming that environmental concerns have been met. I don’t know if they’ve consulted with reps from the Men’s Fire or not, or what their position is on it—I haven’t been by the site since Monday afternoon. And while they may be working today, what happens tomorrow is always another question.

Monday’s shut down was of the Hampton Inn site (just 200 meters up road from the original Kingspan closure), where a new hotel is being put in. The developers had been given two formal warnings of closure, and on Monday morning, a small group of grassroots Six Nations activists, blockaded the driveway of the site where construction had been ongoing while the other sites were closing down. By 10am, the gates were locked and adorned with a large Six Nations flag. A Two Row flag flew high in the air on a flag pole we had erected on site, and a small Unity flag had been planted atop the would-be hotel that is only in the early stages of construction. Yesterday morning (Tuesday) the lead developer visited the site and was told that resuming work was non-negotiable; his only recourse is to seek compensation from the city or the province. After all, it was them who sold disputed land without a proper warning (of the fact that land rights to the area are under open and ongoing dispute). Apparently they showed up again today trying to work, but were again shut down. And again, we’ll see what happens tomorrow.

Six Nations have claims open on land throughout the Haldimand Tract. A stage of resistance to colonialism and ecological destruction has begun where people of Six Nations are asserting land rights that should be respected by all settlers. There is an obligation to ensure that our government properly recognizes those rights. Six Nations activists are asserting not only their rights, but also their obligations as Haudenosaunee people to protect the land. I believe that it is also all of our responsibilities to protect the land bases we live on, and to prevent activities in our communities from destroying the land bases of others.

Repeatedly, when I have stood in protection of land on Six Nations territory, I hear that we are protecting the land for future generations. Boots reminds all non-native visitors to the site that we are protecting the land for future generations of settlers as well as for Onkwehonwe. He reminds everyone that money has nothing to do with this. As a settler and as an activist, this fight is equal parts anti-colonial and land protection; fighting against the ongoing war of colonization being waged by my government against the people of Six Nations is as much a part of this for me as is fighting against the destruction of land and the perpetuation of overdevelopment and sprawl.

And be willing to fight we must. This battle cannot be won in the courts or through petitions or any flashy media-stunt tactics. The only way to stop destructive development is to get in its way—to physically prevent it from happening. This I have learned partially from working alongside people like Boots and others from Six Nations. And it is a lesson that we as settlers must internalize. It is not okay for us to acquiesce to the violence of the State that attacks Indigenous peoples. ‘We,’ as a settler/supporter/activist community, must be as willing in our challenge against the State as the people of Six Nations are, to straight-up refuse to allow governments to impose their will on First Nations communities. And we must accept that they do not know how to hear us, in the same way that the courts do not know how to understand language that speaks of dishonoured treaty rights and the traditional obligations of First Nations peoples.

All three of the work stoppages at Oak Park Road in Brantford have been completely peaceful. Reports in July that someone from Six Nations had hit a police officer were false (as has been corroborated by the police’s own reports). However, that activists from Six Nations are willing to fight back against the illegitimate use of force by police is well known, it is a large part of what makes them so effective. That their own direct actions are always peaceful is a part of what makes them so compelling; another part being that, from either historical or moral perspectives, they are right. When we confront our own government we have to be equally forceful. We also have to know that we too are right; the land must be protected, it must be decolonized.

PEACE -alex.

Negotiations in new year:Six Nations, government far apart, but will go back to the table

December 09, 2008

Daniel Nolan The Hamilton Spectator CALEDONIA (Dec 9, 2008)

Negotiations over Six Nations land claims will likely resume in the new year, but Canada's chief negotiator has signalled it will not entertain a $500-million proposal natives put forward this fall to settle a Dunnville land claim.

One year ago Canada offered $26 million to resolve payment for the flooding of land Six Nations once controlled along the Grand River in the 1820s. The 1,000 hectares was flooded in 1829 to help build the first Welland Canal and Six Nations had been promised compensation five years earlier. It didn't get it.

"Negotiations are the way to go and we're anxious to get back to the table to resolve it," Ron Doering said.

"We still believe the $26-million offer is a fair and reasonable offer and we'll be back stating that when we get to the table."

Canada, Six Nations and Ontario had aimed to return to the talks today, but Six Nations' chief negotiator and Mohawk chief Allen MacNaughton said some members of his team are away. He said Doering, who plans to present a federal response to the $500-million offer, had suggested talks resume in January, but Doering said it could happen before then.

MacNaughton said his team is not avoiding the talks, although he admits he finds it frustrating. He said the $500-million offer is "definitely" open to negotiation and he hopes Canada has the same view of its $26-million offer.

"I would hope so because, if they're not, that's really not negotiating, is it?" said MacNaughton.

"The best solution is a negotiated solution. I would like this thing to be successful, not shoot it down the drain. We're waiting to negotiate, we're not waiting to be dictated to."

The three sides have not met since June when talks adjourned, partly because of native dismay over developments in Brantford on lands Six Nations claims and moves by the city to get an injunction to halt protesters from stopping work projects. Work stoppages, however, have continued.

The talks began in May 2006, in the wake of a native occupation of a Caledonia housing project.

dnolan@thespec.com

905-526-3351

It's my understanding that the injunction hearing is in Brantford Superior Court on Tuesday, Dec 23.

Supreme Court upholds provinces' duty to consult Indigenous communities

From the Press Release below: "Frontenac [the mining company, Frontenac Ventures Corporation] argued that the Canadian mining industry could collapse if the Supreme Court did not overturn the Ontario Court of Appeal's "lenient" approach to Aboriginal blockades and injunctions.

The Supreme Court has now dismissed Frontenac's appeal, with costs."

_______________________

ARDOCH ALGONQUIN FIRST NATION (AAFNA) ARDOCH, ONTARIO CANADA K0H 1C0 613-479-5534 Honorary Chief: Harold Perry December 9, 2008 - For Immediate Release Supreme Court Upholds Decision Releasing Native Protesters Big Victory for Civil Rights In February, 2008 Justice Cunningham of the Ontario Superior Court sentenced Robert Lovelace, former Chief of the Ardoch Algonquin First Nation, to 6 months in jail because he refused to end his peaceful protest against uranium exploration on Algonquin land. The government of Ontario had refused to consult with the Algonquins before approving the aggressive exploration program in eastern Ontario. In addition to jail, Lovelace was fined $25,000; his community was fined $10,000 and Chief Paula Sherman, $15,000. A few weeks after Lovelace was jailed, six leaders of the Kitchenuhmaykoosib Inninuwg (KI) were sentenced on contempt charges for their peaceful opposition to drilling for platinum on their traditional lands in northern Ontario. Judge Cunningham ignored all of the arguments made by the Algonquins' lawyer on the need for the Court to enforce the government's obligation to consult. Cunningham said the only thing he was interested in was enforcing the rights of the mining company to blast and drill, and that he would jail any protesters who opposed the illegal exploration. On May 28, 2008 a three member panel, the Ontario Court of Appeal, overturned the sentences and freed Lovelace and the KI 6. In their decision the Court blamed Ontario's "sweeping" Mining Act, which allows mining companies to conduct aggressive exploration, including removing trees, blasting, drilling, trenching and the construction of roads on First Nations' land, without any consultations or environmental assessment. The Court also criticized the McGuinty government for ignoring repeated requests by the Algonquins for consultations and instead supporting the jailing of Mr. Lovelace and the punitive fines imposed on the community and its leaders. The Court of Appeal also expressed serious concern that Justice Cunningham ignored numerous Supreme Court decisions which require governments to consult with affected First Nation communities before approving industrial activities which could affect their rights. The Court said that Cunningham should have ensured that Ontario had consulted with the Algonquins before ordering them to end their protest and then jailing them when they continued to demand consultations in defiance of his injunction. The mining company, Frontenac Ventures Corporation, applied to the Supreme Court of Canada for leave (permission) to appeal, arguing that the Court of Appeal's decision amounts to a "license to blockade". Frontenac argued that the Canadian mining industry could collapse if the Supreme Court did not overturn the Ontario Court of Appeal's "lenient" approach to Aboriginal blockades and injunctions. The Supreme Court has now dismissed Frontenac's appeal, with costs.

"This is an important victory for civil rights and the rule of law" said Robert Lovelace.

"The government will no longer be able to ignore its legal responsibilities while we are jailed for trying to uphold the law. We will continue to resist uranium mining and exploration and we call on the government to finally begin consultations with us so that further conflict and litigation can be avoided. We do not understand why they continue to refuse to consult with us in spite of several court orders." Court of Appeal decision:

http://www.ontariocourts.on.ca/decisions/search/en/OntarioCourtsSearch_VOpenFile.cfm?serverFilePath=D%3A%5CUsers%5COntario%20Courts%5Cwww%5Cdecisions%5C2008%5Cjuly%5C2008ONCA0534%2Ehtm

For more information, call: Robert Lovelace: (613) 532-2166 or Chris Reid (lawyer): (416) 629-3117.

----------------------- *If you re-print, copy, archive or re-post this message, please retain this credit. =-=-=-=-=-=-=-=-= UBCIC's Protecting Knowledge Conference site: http://www.ubcic.bc.ca/Resources/conferences/PK.htm

From: First Peoples Human Rights Coalition <info@firstpeoplesrights.org>

*****

Once again, the Supreme Court has upheld the right of Indigenous Peoples to be consulted about any proposed uses of their traditional lands, and to have their land rights accommodated, and it is also their right to say "No" to development.

In Ontario, this legal battle played out between Frontenac Ventures (uranium prospecting company) and the Ardoch Algonquins in eastern Ontario, in the context of mining, the most powerful industry in Canada with the most invasive rights. The Mining Act gives prospectors (speculators) the right to option and stake rural land ... any land, private or 'public', Indigenous or not, yours or mine ... damaging and destroying natural habitat, backyards, contaminating entire watersheds, etc. Homeowners and Indigenous Peoples alike had no recourse to stop this.

Now Indigenous Peoples can legally stop the destruction of their traditional lands. They can block exploration, construction, etc. that is occurring without their agreement. An injunction against them cannot be granted, as in the past, (notably, Caledonia) if the Crown has not fulfilled its duty to consult with them about the land use.

A ruling of the Supreme Court is law in Canada, and applies to other similar situations where either Aboriginal title ('land claims') or Aboriginal rights (traditional Indigenous lands) may apply. RECAP: What does this court decision mean for Six Nations and Brantford? Today's news release, the Supreme Court dismissing Frontenac Venture's appeal, has direct application to Six Nations and Brantford. In my understanding, Six Nations Confederacy people have prevented several housing/industrial developments in Brantford, on land that is currently either under claim with title to be negotiated with the federal government, or is traditional Six Nations land where they hold Aboriginal rights. Federal negotiations are currently in progress on 28 Six Nations claims, with an offer for one (Welland Canal lands) currently on the table. Negotiation of the Brantford claims will not occur any time soon: The average time for the federal government to settle one simple specific claim (like the Welland Canal) is 10 years; complex, comprehensive claims, like Six Nations overriding claim to the Haldimand Tract, typically take at least 30 years. Thus, federal negotiations provide no solution for the current development issues in between Brantford and Six Nations. The provincial government issues approvals for development at the request of municipalities. The Ontario provincial government and bureaucracy studiously ignore both existing land claims for Aboriginal title, and Aboriginal rights on traditional Indigenous lands, thus evading the clear and repeated rulings of the Supreme Court that the province must consult with Indigenous Nations prior to issuing any land use approvals:

2005

http://www.lawsonlundell.com/resources/TheCrownsDuty.pdf

Recent case law from the Supreme Court of Canada (Haida and Taku) has confirmed that the Crown has a duty to consult, and if necessary, accommodate Aboriginal interests when it has knowledge, real or constructive, of the potential existence of an Aboriginal right or title and contemplates conduct that might adversely affect it.

Ontario has not consulted, but blunders ahead with development in violation of Canadian law. Many Canadians I have spoken to about this situation are in disbelief at this blatant flaunting of the law by our provincial governments. Canadians have blind faith that our governments obey the law, as we are all expected to do. It is almost unbelievable to us that the Ontario government would risk dissension, confrontation and violence this way, but in fact, this is exactly what our provincial government is doing: 'Caledonia' could have been prevented if Ontario had consulted before issuing development approval for Douglas Creek Estates. Because of this undeserved 'blind faith' of Canadians, our governments are running rampant over the rights of Indigenous Peoples, while convincing the public that it is the Indigenous Peoples blockading developments who are disobeying the law. Not so: Indigenous Peoples preventing development are in fact upholding Canadian law, demanding that the province "consult, and accommodate" their rights, as the Supreme Court has ordered. In May 2008, the City of Brantford requested an injunction from the court to stop Six Nations from blocking construction. The judge in Ontario Superior Court in Brantford adjourned the injunction hearing (to a later date), but imposed terms amounting to an injunction:

http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Ontario+-+Superior+Court+of+Justice&path=/en/on/onsc/doc/2008/2008canlii30282/2008canlii30282.html

Pending the return of the motion for an interlocutory injunction pending trial, the defendants are ordered to cease and desist from blocking, interfering or in any way obstructing development/construction related activities on the lands set out in Schedule A to the Notice of Motion including blocking access to development sites, standing in front of machinery/equipment or otherwise interfering with such machinery's/equipment's operation or in any way threatening or intimidating workers at the development sites.

While waiting for the permanent injunction hearing to be held, Six Nations people continued to block the developments, on one occasion confronted by cement trucks trying to push past them. Police made arrests, based on the 'temporary' injunction. Confederacy Chiefs and Council toured the lands in question to make their intentions clear. Police have continued to arrest Six Nations people on and near these sites, though developers have pulled out and development appears to be at a standstill. In July 2008, the Ontario Court of Appeal (OCA) ruled on the similar case regarding the legality of Frontenac Ventures injunction against of the Ardoch Algonquins:

http://www.ontariocourts.on.ca/decisions/2008/july/2008ONCA0534.pdf

[48] Where a requested injunction is intended to create "a protest-free zone" for contentious private activity that affects asserted aboriginal or treaty rights, the court must be very careful to ensure that, in the context of the dispute before it, the Crown has fully and faithfully discharged its duty to consult with the affected First Nations: see Julia E. Lawn, "The John Doe Injunction in Mass Protest Cases" (1998) 56 U.T. Fac. L. Rev. 101. The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process: Haida Nation, p. 532.

To emphasize, the Ontario Court of Appeal ruled that before granting an injunction against Aboriginal people ...

"the court must ... ensure that ... the Crown has fully and faithfully discharged its duty to consult". Frontenac Ventures appealed this OCA ruling to the Supreme Court, and the Supreme Court has now upheld the above ruling. The Crown in Ontario has not consulted with Six Nations about any of the developments that it already approved in Brantford. In fact, Dalton McGuinty specifically told developers in the Haldimand Tract not to consult with Six Nations, although many were quite willing to negotiate agreements with the Confederacy, and some already did. The implication of this most recent Supreme Court ruling for Six Nations and Brantford is this: When the injunction hearing resumes in Brantford (Dec 22-23) it is clear that the court must dismiss the City's injunction request. No doubt the court will also 'remind' Ontario that they must consult with Six Nations before issuing any development approvals in the Haldimand Tract. The police will no longer have any responsibility, any ability to detain, stop, arrest Six Nations people who are blocking development. In other words, the implications for development in the Haldimand Tract may be monumental. The implications for Six Nations are pure victory, total vindication of what they have been saying all along: Development within six miles of the Grand River cannot proceed unless the Haudenosaunee Six Nations Confederacy agrees. The court hearing for the City of Brantford's request for injunction against Six Nations is scheduled for Dec 22-23 (to be confirmed) in Brantford Superior Court. In other news about "duty to consult" ... http://www.theenergynews.com/news/cp_article.php?storyid=4051 EDMONTON _ An aboriginal band has threatened the very basis of Alberta's oilsands industry by filing a court challenge to the province's system of granting land tenure. ... "It is deeply troubling to our First Nation that Alberta has granted these tenures within our traditional lands and set the stage for exploration and potentially massive oilsands production without any consultation with our First Nation before the grants of tenure." --- Canada's economy is entirely dependent on resources taken from traditional Indigenous land, without consultation, without accommodation, without compensation, without consent, and without any 'good faith' on Canada's part. The Supreme Court of Canada no longer allows this. Canada's police cannot stop Indigenous Peoples from blocking development, mining, logging ... I've thought for a long time that Canada has to face the truth. I can't see how our governments can ignore it now. Economics dictates that agreement must be sought, rights must be respected, and peace and rule of law must be restored. Throughout our history Canada has always used force ... violence ... incarceration ... to squash Indigenous demands for justice, justice now far too long dismissed, denigrated, denied. The Supreme Court has just closed the door on Canada's use of force against Indigenous Peoples upholding their land rights, because they are breaking no laws. granny

BRANTFORD:

City Hall Aggressively Suspends Access to the City Hall, Public Counters with a Notice to Tresspass.

by Tim Sywyk

Greetings, Today City Hall and for over a week now have been very elusive, aggressive and complacent regarding our genuine concerns in our City, in particular Environmental Issues. Yesterday I was served notice to trespass and now today my wife while trying to retrieve information for our OMB appeal was also served the same. It is both amazing and sickening to see this Council, this City Hall, our City Hall being run by what appears to be a totalitarian goon squad full of lying two faced back stabbing councillors, staffers, and an incompetent Mayor who cannot even use a phone, unless of course you personally malign him then he will most certainly call you, write you but to act on civic issues unless your a developer, builder, a person of money and stature you might as well pee in a hurricane. 6 Months after engaging ourselves in protecting our Environment that most if not all council has either ignored or paid lip service too we find ourselves at an impasse. 6 Months later no one at City Hall will take ownership of the Environment, amazingly enough the Environmental Department Managed by Sandra Lawson is MIA or full of deception, deflection and is either unwilling nor able to combat the tons of silt that enter our watercourses, watershed, creeks and then our Grand River. Mr. Terry Spiers assured us three months ago a silt barrier would be placed at Zavarelas site off McGuiness, to date there us none, this is concerning as this property backs right upon the D'Aubigny Creek, cold water system, it is no wonder our creek looks tawny every rainfall. Our City, Council receives a big fat "0" for its track record on the Environment, as a matter of fact we had the well known Environmental Councillor give us a mere 15-20 minutes to tour these sites, the Creek and they had no idea where this was, yet votes on these developments consistently. Also we had to basically beg the councillor to go look, as I tried to Educate the Councillor all I heard about was Brown fields yadda, yadda as the biggest issue we have, I beg to differ. This hastily addressing of the issue was a sham and a debacle. The Expositor did no better when it puked out its "Muddy Waters" piece and minimized it all with the strategic placement of Mr. Gilchrest's Building offences at the end and centre to the article thereby DILUTING its intent, shame on them. There is some good news, two councillors(Cheschi Smith, McCreary), neither from my ward(Carpenter, Calnan) bothered to attend or be an advocate for their own Wards, members of their own Wards. This will in fact cost them their seats on Council. I know Mr. Carpenter wont read this as he admittedly yesterday told me he don't have time for stupid Emails, Internet. Takes up too much time of his. Shame on you Richard. Mr. John Brown the one who authored this right depleting, disgusting literature blocking access to the truth, information is also the one to investigate the hiding, lying of Planning Department and I give the example of hiding the GRCA reports both from Council and us in opposition on the 232 Grand River Ave, Penman's, this is all recorded on Rogers and by us. Shall we call the Brantford Police to Investigate itself also and scrap the SIU? Mr. Brown was to answer three questions; here they are: 1) Who is responsible for silt, sediment, erosion control on these development sites? 2) Investigate our allegations of hiding documents from the Council, Committees as a whole, the public, those who are engaging in an appeal at the OMB? 3) What policy, order, department is responsible for us being "Tagged, Flagged" by security, being followed, pre questioned before we attend public counters and further who is Sandra Lawson to make such orders as Security told us she had to approve our access to these same counters?` To date we got Richard telling us Council backs Lawson, no big surprise as they all work together. They share the same ideals, workplace, employees, should we expect a true advocating voice on our behalf? Of course not, we are mere sheep running to the gate for slaughter, skinning, shearing. Amazing that these people who are to protect us from harm, act on our behalf have taken great efforts' to gag us and allow this sediment, silt debacle to continue. We have documents that speak to these issues very strongly that our City has with these developers and they are not being adhered to, enforced, an example is the Empire Homes on Shellards, Conklin before EXCAVATING was to place firmly around the perimeter of that Phase 1 an ADEQUATE barrier, last week we watched trucks enter/exit same site moving soils not within its property but to the Shellards Lane leaving a 4-6 '' mess of mud, muck that we taped truck #30 from Public Works drive right on through without a stop, hesitation. To date I challenge this City to show me one foot of this barrier on Conklin, it doesn't exist, it never existed and it is resisted to say the least. This is in the Cities own Subdivision Agreement with Empire, yet it is ignored, why?? Maybe no development will take place if these companies are held to task, just maybe................. we all hear and know the only way Brantford will live, be sustainable is to decimate farmlands at a rate unheard of for Mississauga's type urban sprawl............. all at our expense folks, wait till we get the bill for this. Keep in mind the City lost 14 million dollars from these same developers in fees as per Carpenter and yet that area already has an issue for schooling, recreation, that great planning. WE conclude our work is done, we have tried to do so much with so very little, its time others stood up to City Hall. I suggest that others stand up, be heard, be counted, we await your report that you are also now banned from City Hall, at least now I can wash the stink off of me easier on this whole mess. Its now up to you, its not just my city, its yours also. To those that endlessly supported us, we thank you from the bottom of our hearts. Might I suggest we stop fighting our Brothers, Sisters at Six Nations and join hands with them, align with them on these issues, it is our belief that is our only hope, but hey that's just my opinion.................... p.s. I will conclude the Eagles issue at OMB as per our word, we wont walk on our fellow citizens like those we elected have. By the way, the lease payments on City Halls Lands as you refer to it as haven't been paid, maybe its time to evict those that don't pay rent, I mean it is the whiteman's ways, laws isn't it? Happy Holidays. Tim, Lisette Sywyk Brant Eagle Project http://branteagleproject.bravehost.com/ TnL Productions/Digital Wampum http://tnlproductions.bravehost.com/ Copyright © 2007 TnL Productions, Digital Wampum. All Rights Reserved.

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Six Nations, Brantford: "Motives for flak over protests not what they seem" http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=1317845 There's a lot of flak pouring into the editorial section of The Expositor over the disruption of the medical centre project caused by Ruby and Floyd Montour. Citizens firing up their pens, the mayor voicing his concerns. Vicano despairing of how the company is trying to provide such a badly needed service to the people of Brantford. Crap! And you all know it. Vicano is in this for one reason only -- profit. Nothing more. The mayor: Keeping his promise to Vicano as a gesture of his appreciation for campaign donations made to him by Vicano. Citizens screaming blue murder: Floyd and Ruby are criminals! They ought to be charged. On and on and on and on! You might feel differently when you see the restaurant, hotel and gas bar go up with Phase 2 shortly after the medical centre is done. "Aha! So that's why they were crying 'foul' so loud against the Indians." It's all about profit. And telling the press about how Vicano had definitely consulted with "someone" at Six Nations. Tell me, where was all of this deep concern when a walk-in facility, accessible to so many, closed this past year? Where was all this passion for medical services then? Where were the voices of your mayor and council? Where were the voices of Brantford's citizens? Not a peep. Not one! And, can anyone tell me why the old Canadian Tire and BMO property on Colborne Street East would not have made an excellent site for such a centre? Much more accessible to the handicapped, elderly and the poor who cannot afford public transit to "Mississauga West" at the 403 and Garden Avenue. Imagine in the dead of winter when the frigid winds are blowing and the poorest of the poor in Brantford must make their way to this remote facility on the outskirts of Brantford. Watch while a single mother of four must scrape together the fare, gather up all the kids and get out there in the oppressive heat of summer, just to keep an appointment for one of the kids, or herself. Where was the indignant outcry then? What is criminal is what the city's mayor and council have allowed to happen in Brantford, but I hear no one calling for their skins. All this because out-of-town doctors will find it such a hardship having to drive another six or seven minutes in their BMWs, Cadillacs, Porsches and Audis to reach the Colborne Street site? In answer to John Barnes' sarcasm, "Medical centre welcome on his property," Nov. 25, about not caring about thousands of mature trees coming down, not caring about whose land it is; when this insane destruction of Brantford's beautiful natural assets is done and the air quality is so bad "thousands" of people can then get out to the new "Mississauga" to have their respiratory problems looked at. I'll trust that Barnes will feel equally as charitable and has lots of room on "his" property when the hotel, restaurant and gas bar goes up and is open 24 hours a day. Floyd, Ruby, you have done nothing to deserve the sarcasm and scorn Barnes has offered up to you. Carry on doing what you do so well, respectfully and of the good mind. There is a justness about it when ordinary people fight the good fight! O. Garlow Six Nations

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Regarding the front page article in Saturday's Expositor inferring that those bad ol' Indians are standing in the way of a much-needed medical centre, I'd like to interject a few points. This work stoppage has nothing to do with depriving Brantford of a medical centre. All, including the people of Six Nations, agree it is a needed service. The problem is the same one that pops up whether it's a medical centre or a dog house. There has been no consultation or accommodation with Six Nations, at any point in the planning, as the Supreme Court of Canada has ruled since 2002. Several large land claims in B. C. and elsewhere have come down in favour of First Nations since then, yet here in Ontario -- and in Brantford and Caledonia especially -- some people are quick to pull out the phrase "rule of law" to prevent Six Nations' right to protect the very land that is under land claim. Yet what they forget is that same rule of law also includes these Supreme Court rulings, as well as the Canadian Constitution that actually forms the rule of law which states: " The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." No. This is not about a medical centre. I don't remember much fanfare and city hall outcry about the closure of two neighbourhood medical centres over the past year. Now, to go to a medical centre, a sick person is expected to take public transit to the very outskirts of the city. Why? Because it's more convenient for the doctors who would commute here from out of town, and will generate higher tax revenues for the city than they would get by putting it in one of dozens of empty buildings within the greater city itself. Once again, this is all about money, not about anybody's health care. It's also about product placement. Mark my words. This medical centre is the least of the plans for the Johnson Settlement lands. There will be a hotel, gas bar and restaurant in there before the pavement in the parking lot dries. City hall has already rezoned the area in anticipation of three more huge sub-developments they are planning for the Johnson Tract. It's just another a thinly veiled theft of more Six Nations land. The Johnson Settlement is 7,000 acres of land specifically protected by Six Nations for more than 150 years. It was never to be sold, only leased, with the proceeds to go to the perpetual care and maintenance of the Six Nations economy. Will Six Nations get any of the lease money from that medical centre? Yeah, right. Jim Windle Brantford http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=1301071