Time scheduled for unique court case

Page 15

It's not a land claim; it's not a fight for determination of Aboriginal title. But it is a significant court battle that will be of great interest to all Indigenous peoples in Canada and around the world.

Beginning May 17, one entire week of court time has been set aside in the City of Brantford's Ontario Court of Justice as Six Nations' elected council attempts to force the federal and Ontario governments to account for Six Nations lands and monies held in trust by the Crown.

That fight is already raging in the United States where a federal judge recently cited Treasury Secretary Robert Rubin, Interior Secretary Bruce Babbitt and his top bureaucrat for Indian Affairs, Kevin Gover, for contempt of court. Judge Royce C. Lamberth said the three senior government officials showed a "shocking pattern of deception" as they attempted to resist court orders requiring them to produce trust fund records. Several Native Americans have filed a class action suit alleging more than $2 billion has been lost through mismanagement.

Six Nations Land Claim Research director Phil Monture is looking forward to getting his staff's extensive research in front of a judge. The southern Ontario First Nations' legal strategy is unique. Rather than file a specific or comprehensive land claim, Six Nations has asked a court to order the federal and provincial governments to explain where all of Six Nations land and money is - or where it went.

While there are no allegations in Six Nations demand for an accounting, the band's research staff has labored for years to find its own answers and Monture said they're prepared to present evidence of extensive corruption and wrong-doing.

After notifying Canada and Ontario on Dec. 24, 1994 that it intended to pursue this matter in court - outside the specific claims process - all funding for Six Nations Land Claim Research was cut off by Indian Affairs as of April 1995. Monture said that was just one of the tactics the governments have employed to frustrate the band's demands for accountability.

"We've offered to negotiate. We've offered to negotiate everything outside of the court case. Even on the validated claims, just to set up a whole new way of negotiating settlements, which isn't possible under Canada's present policy. And they won't entertain that. They'd rather go to court and be forced to, I guess. It seems after Delgamuukw, it's been pretty well stated that they should negotiate in good faith," Monture said. "I've got to believe it's a tactic to avoid having to deal with it."

In 1784, the senior Crown official in that part of North America, Frederick Haldimand, signed the Haldimand deed. In that document, in reward for their service to Britain during the American revolutionary war, the Six Nations were given title to all land within six miles of the Grand River from its mouth to its source. That represented close to one million acres. Almost immediately, one-third of that land disappeared through the Simcoe Patent, which Six Nations insists was illegal. As settlers moved into the area, the Crown negotiated land surrenders with the Six Nations. The 1763 Royal Proclamation decreed that only the Crown could buy Indian land. All payment for surrendered land was supposed to collected by the Crown and held in trust .

With their land base down to about 40,000 acres and the trust fund down to less than $2 million, Six Nations is convinced huge amounts of its lands and monies are missing. If all of Six Nations claims are validated, the amount approaches $40 billion, say government sources.

"I really think they're somewhat overwhelmed by the size of it. But in reality, we've never even asked for a price on anything," Monture said.

The council decided the right legal tactic was to just ask the Crown to provide a detailed accounting of the trust funds.

"If it 's all accounted for and everything's right, well, what's the big deal? Basically, we put our money into the bank. Now we want to know how much isin there and what's been done with it," Monture said.

Six Nations suspects the Crown gave away their land or sold it and used the money for its own purposes, confident they'd never have to account to the band. If they can persuade a judge they have a right to an accounting from a legal entity that has acted as their trustee, then the onus will be on the government to prove the land deals were done legally. Any transactions that don't stand up to scrutiny will require compensation.

"If our money should be there and if isn't, we'll ask the court order that it be there," he said.

Years of research has gone into backing up the demand.

"On a lot-by-lot basis, we're going to go through and challenge Canada: What happened to the money for this; and that one and this one. Why wasn't this one paid for when everybody knew it was supposed to be paid for," he said.

Six Nations isn't expecting the government will someday be forced by a court to write a $40 billion cheque. But they do expect recognition, and some form of compensation for their loss.

"We're not looking at numbers," Monture said. "We're looking at creative solutions. Joint ventures, guaranteed education, health care . . . to our standards. First right of refusal on jobs on the Grand River tract."

If Canada is found to owe the First Nation money, the council is willing to take payment over the long term, using the money to build a community that is truly self governing.

"We know what we want. People stand up and talk about new partnerships and all these things. The words are cheap. The debts are going to be so big. What's that going to do? It's going to anger the taxpayers. Let's run a credit against Canada. They can post loans for us because financial enterprise will pay off our loans and it won't cost Canada a penny," said Monture. "You can never have self government if you have to rely on somebody else for any financial dollars to determine your future. That just makes me laugh. It's an oxymoron. Until you have continual source of income, you can't build your own community."

If Six Nations is deemed to still be the legal owner of a significant portion of the Haldimand tract, Monture suggests the First Nation could generate its own revenue by collecting a portion of the property taxes collected on that land. But Six Nations will insist on its own Aboriginal right to continue to be tax-exempt.

"We should be tax free. If our money went into building Canada, we should be tax free. We paid our taxes in advance," he said.

Six Nations claims it has proof its trust funds were a significant pool of money that was used to build a nation.

"We were financing the beginning of Canada," Monture said. "Generally it was to run the infrastructure. From municipal loans to public works, public debt. The list goes on and on."

Monture reminds you that this court action is not a Native land claim. He said it's a simple matter of justice.

"It's not about Aboriginal title, it's legal title. There are agreements!" he said. "That why we're doing the court case the way it's structured. It just so happens we're Aboriginal people doing it. If you put your money in the bank and you went back the next day and you didn't see it there, you'd have legal title - a legal claim. It's no different. It just so happens that we're Natives."

After years of preparatory work, the process of seeing it all pay off will begin when the parties meet in the Brantford court house for the first time in May.

"The court house that's on land that was never paid for," Monture said, laughing.