Provincial Crown has lawful 'Duty to Consult' with Six Nations Confederacy about development on disputed land
For immediate release:
OPEN LETTER TO ONTARIO PREMIER DALTON MCGUINTY and ATTORNEY GENERAL MICHAEL BRYANT:
*The Crown in Right of Ontario has a lawful Duty to Consult with Six Nations Confederacy about development on disputed land *
*A man is in serious condition in hospital in Hamilton and the Premier says the developer "has to work it out" ... but he doesn't say with whom. Lack of provincial consultation about land uses on disputed Aboriginal land has escalated five current **Ontario** land disputes into blockades,** all in progress right now. Still there is no provincial action to conduct consultations regarding uses of land while resolutions to land disputes are in progress. *
A Ministry spokesperson may have said the developer should work it out "with Six Nations". Premier McGuinty, confronted in Hamilton by a developer, may have said the developer should work it out "with the HDI", the Six Nations Haudenosaunee Development Institute. Today it is unclear, as the Liberals won't clarify and simply try to distance themselves from this issue during the election campaign. However, a man is in serious condition after a fight at a Caledonia development, and the Government of Ontario needs to look seriously at its responsibilities for this.
Six Nations people were again negotiating a shut down of a development on disputed land, land bordering Six Nations reserve proper and currently in negotiation with the federal government. Away from the OPP, Six Nations and developer negotiatons, individual tempers flared and a man was badly beaten. The Six Nations Confederacy Council released a statement of apology and regret delivered in person to the injured man's brother, and stated the actions by the individuals were not supported: "They are on their own." The Confederacy is cooperating with the OPP in investigating to bring them forward.
What responsibility, does the Province have for these horrible confrontations between Aboriginal people asserting their land rights, and business people developing on disputed land? According to Premier McGuinty, the province stands behind its property deeds and its land use authorization processes: Beyond that, it's a police matter and a federal land claims matter only, according to the Premier. *However, the Supreme Court has said the provinces do have a Duty to Consult in such circumstances.
**Ontario**has not done so:
**Ontario** is evading the Supreme Court's 'rule of law'.*
We see the results of Ontario's failure to consult in the five Aboriginal blockades now in progress, sparked by provincially authorized logging, mining and housing developments. The recent conflicts between developers and Six Nations Confederacy people are a direct result of failure of the Provincial Crown to consult with the Aboriginal community regarding uses of land currently in dispute:
*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.
The Crowns Duty pdf
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*The Crown certainly contemplates such conduct when it signs an authorization for development, as it continues to do even now for land in the Haldimand Tract, where Six Nations Confederacy land claims are under negotiation. The Stirling St. site where the fight took place borders part of Six Nations reserve with houses. The Grand River Valley is being paved around Six Nations, hemming them in.
Aboriginal communities in Ontario are growing more than four times as quickly as the rest of us: They need the land for growth and for economic development to support themselves, not in years from now when the land claims are settled but now, for these generations of children. Money from land claims settlements will be helpful, but the land itself is an absolute necessity.
* This requires the Crown to participate in negotiation and while this process continues, the Crown may be required to consult and, where indicated, accommodate aboriginal interests.
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Premier McGuinty was helpful in getting the Federal government to the negotiating table, and the Federal Crown continues its negotiations with the Six Nations Confederacy on land rights. In the meantime *"while this process continues"*, Premier McGuinty and his Ministers have a lawful obligation to uphold the Honour of the Crown by consulting with the Six Nations Confederacy about uses of the lands in dispute.
The Province of British Columbia has recently been held publicly accountable by the Court, and publicly admitted its own shame too, for an underhanded attempt to put land in other hands to prevent it from being returned to the Musqueam Band. The Band sued the province and won:
*The British Columbia Court of Appeal held that the provincial Crown had failed in its duty to consult and accommodate the Musqueam Indian Band
*...
March 2005 First Nations
The Crown's Duty to Consult is well established in the courts and also in legal directives prepared for resource and development industries.
English publications November 2004
A Duty to Consult: Interim Accommodation of Aboriginal Rights and Title The Supreme Court of Canada Decisions in Haida and Taku River
Resource Center Details
Duty to Consult and Accommodate Aboriginal Peoples: Impact on the Mining Industry in Canada
*In all cases,* industries are advised to be prepared to negotiate land use with Aboriginal communities, as wryly explained here:
(Project Developers) *are well served by participating in the process because it is the proponent's project that is at risk if the Crown's consultation proves inadequate.*
*In law,* the Crown is to initiate, and sign off on the "Duty to Consult": * It is now clear that it is the responsibility of the Crown, and not third parties, to initiate consultation and to discharge the duty to consult to the required degree.
In practice, however, it is common for the Crown to delegate some of the responsibility to fulfill the duty to resource developers, or to require resource developers to consult as part of the regulatory process.*
*In reality,* the 'Crown' in Ontario, in the person of campaigning Premier Dalton McGuinty, quickly ducks any questions on the subject. Nor does the "Crown...delegate" any authority to consult, nor give any direction or help at all to the developers the province has put in this position: They followed the rules, got the permits, did the red tape, yellow tape, and duct tape, just trying to make an honest living and protect their property, but SURPRISE ... it's a land claim now ... so now what? And why was a land claim not noted on the title when they bought it? It appears that permits are being given in bad faith.
Across Canada, according to the Assembly of First Nations, traditional land and treaty land is stuck in the federal 'land claims' process, preventing Aboriginal community expansion and economic development. Sometimes but all too infrequently, agreements are negotiated with businesses with or without governments present, agreements that may involve job training opportunities, jobs, and shares of revenue or other economic development opportunities. These are welcome, and have come about through the federal land claims process far too slowly, but where they happen, they can work well. The Six Nations Confederacy has taken a step toward these kinds of negotiations by establishing a Haudenosaunee Development Institute to review development proposals.
However, the Crown has to step up and "delegate", be clear with the industries, whether logging or mining or suburban development:
Are business interests expected to "consult and accommodate" the potential Aboriginal rights and interests?
Are the business interests expected to carry out the Crown's "duty to consult"?
How do they protect their property and investments and themselves from harm, and avoid surprises when the governments fail to disclose land claims and fail to get consent of the Aboriginal community for the 'approvals' the province gives out?
Lack of provincial consultation about land uses has escalated five current Ontario land disputes into blockades, all in progress right now. Still there is no provincial action to conduct consultations regarding uses of land while resolutions to land disputes are in progress.
Shawn Brant said about the *Tyendinaga* quarry license on land deemed in negotiation to be Mohawk title, that they were negotiating (with the feds) to get the land back at the same time as tonnes of the land itself was being trucked out under their noses every day (under provincial gravel license). The province was also, it turns out, using the quarry for illegal dumping of toxic Dept of Highways waste, endangering the water table. The province refused to consult: still refuses to suspend the quarry license or even discuss it, so it was blockaded, shut down by the Mohawks and so was a waterfront condo development.
The Province has recently agreed to send low level
(non-consulting) Ministry mining reps to a meeting about a uranium mine in
*Frontenac County*, currently blockaded by Ardoch and Shabot Algonquin people and landowners. The Algonquins camped within the site are under injunction for removal. The OPP are amassing and exercising their discretion about when or whether to carry out the court's injunction. Up to 200 landowners and many supporters, some whose land was also staked for uranium drilling, are camped just outside the blockade. They are refusing to pay their property taxes and say
*"If the OPP take the Algonquins out - We are going in!"
*I don't believe I've ever heard anything so radical from an ordinary bunch of rural Ontariolandowners ... and Premier McGuinty doesn't think he owes them any attention or assistance? No real consultation?
The Province has recently bowed to pressure and agreed to meet with Anishinabe people of *Grassy** **Narrows*, after a successful campaign to stop Grand&Toy from using tree products from their territory. Their community overrun with 'environmental' diseases resulting from industrial toxins, clearcut land with no wildlife, fish with tumours, Grassy Narrowspeople have been blockading a remote logging operation for FIVE YEARS. It's about time the province "consulted", but these are likely only low level 'non-consulting' Ministry reps.
At *Big Trout Lake*, the Court found the Crown made some motions at consulting with KI Band and the miners to resolve the blockade, but failed totally, so they were sent back with the specific instruction to consult "meaningfully".
At *Ipperwash, *of course,* *it is well known that 'consultation' from the province consisted of *"I want the fucking Indians out of the park!" *
Premier McGuinty says his responsibility in
*Caledonia* is to keep the peace. He cannot ignore the effect that lack of consultation about land use is having on the 'peace' in Caledonia today. There is no 'peace' for anyone at Six Nations or in Caledonia today. For a man is seriously injured from a confrontation that should not have happened, and a new blockade is developing.
*The province is legally obliged to consult,* and should be providing assistance in consultation to the business operations. Otherwise it appears the province has authorized operations for disputed land and then left the business owners hanging out to dry regarding the land claims.
The province should be clear whether it endorses direct negotiation by businesses with the Six Nations Confederacy, through the Haudenosaunee Development Institute. The province should be engaging in consultations about provincially approved land uses with the Six Nations Confederacy and with the developers, in good faith.
The land claim issue is one thing, a long slow process to right a historic wrong: While that is in progress, the province seeking to 'steal' the land in question again by handing out approvals to cover it with houses is just a direct affront to Six Nations, inflammatory, just asking for trouble and trouble has happened. The Liberal government has a lot to answer for.
Who is asking the Ontario Liberals the questions about the Crown's lawful Duty to Consult, where land is in dispute, about the uses of the land in the interim?
Why is the Province of Ontario evading its lawful responsibility to consult and accommodate Aboriginal interests on land in dispute?
*Development of disputed land is not a federal issue: It is a provincial responsibility.* The Federal government is at work on the land claims. But when will the Crown in Right of Ontario begin to uphold it's end of the 'rule of law' and "consult and accommodate" with Aboriginal communities as required by the Supreme Court of Canada?
Canadians for Indigenous Rights Hamilton, ON
905-865-4461
(Connie Kidd)
Special thanks to Awabejiwani Jordan-Turner for passing this on.
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September 2007 Reports
Last updated on September 20, 2007