Feds made mistake

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The first phase of the Six Nations band council's demand for an accounting of lands and monies held in trust by the federal government concluded on May 21, and one very significant mistake was made by federal lawyers, says a senior council employee.

"There were more than 8,000 documents submitted to the court concerning our court case. This was number 4,610," said Six Nations Land Claim Research Director Phil Monture during an interview on May 27.

He offered Windspeaker a copy of the document, a 16-page memo written Nov. 5, 1984 by then-Indian Affairs minister David Crombie to then-deputy minister Maurice LaFontaine.

Monture believes the government could have exercised its cabinet secrecy privilege and not turned over the memo but government lawyers decided, since Six Nations already - apparently through a government error - had possession of it, an attempt in court to exclude it would have only drawn more attention to it. As a result, he said, there was no attempt to deal with the document during the six days of hearings in Brantford provincial court's general division.

Six Nations council members, staff and lawyers all believe the document helps their case immensely and hurts the government's legal position just as much.

The memo - subtitled "Exploratory actions needed as a result of the Guerin case" - was written by the minister shortly after the Supreme Court of Canada handed down its landmark decision in the Guerin case. In the memo, Crombie poses 64 questions to the bureaucracy that are triggered by the court ruling that Canada has a special, fiduciary relationship with Aboriginal peoples. Many of those questions seem to prove Six Nations' argument in the case currently before the Ontario court.

Question 4 reads: "Under the past understanding of the trust arrangement, instead of defending Indian rights or prosecuting incursions on Indian lands, the Department of Justice has often done nothing, or has actually acted against the First Nation interest. What is the effect of Guerin on my trust responsibilities in regards to legal defense of Indian interests? Is the federal government violating its special obligations by failing to support Indian objections to intrusions by the provinces?"

Monture said Question 12 was the one that caught the eye of Six Nations' legal staff. It read: "There are certain responsibilities I have as a trustee. A trustee must have his accounts always ready. He must provide reasonable facilities for inspection. He must give complete information whenever requested. The accounts should contain a true and perfect inventory of the whole property, and are to include what the original estate consisted of, an account of all money received, and all money in hand. Auditing of trust accounts at regular intervals is a recognized practice. What steps are needed to be taken so that I am in compliance with these responsibilities as a trustee?"

Those questions, Monture argued, mirror Six Nations' demands in the court action. He sees them as an admission that Six Nations has a right to demand answers and the government recognizes that right.

"What are we doing here?" he asked. "There's no reason to be in court."

Lawyers acting for the band will get a chance to ask that question when the parties return to court in the fall.