According to Six Nations of the Grand River, it was one of the biggest frauds in Canadian history — the swindling of almost a million acres of land that underwrote the growth of modern Canada while leaving the Haudenosaunee people bankrupt.
Now a lawsuit launched 40 years ago about a centuries-old land claim is inching closer to trial.
Almost exactly 240 years after the Haldimand Proclamation of October 1784 granted 950,000 acres along the Grand River to be enjoyed by the Haudenosaunee in perpetuity as compensation for allying with the British during the American Revolution, Six Nations elected council wants the Crown to own up to its alleged dereliction of duty as a treaty partner.
And they want their money back — with interest.
“They said we wouldn’t suffer any losses when we lost our homelands” in upstate New York after the war, said Lonny Bomberry, director of Six Nations’ lands and resources department and elected council’s point person for the lawsuit.
But Six Nations alleges much of the land granted by the Haldimand Proclamation — approximately 10 kilometres along both sides of the full length of the Grand River from Dundalk to Lake Erie — was improperly managed by the Crown, with the Haudenosaunee not seeing the proceeds.
According to Bomberry, within a few decades, “Six Nations was broke, and they’d lost all their land.”
What is the case about?
The lawsuit, filed in Ontario Superior Court, hinges on two questions — whether the Haldimand Proclamation was meant to be a treaty between Six Nations and the Crown, and whether Ottawa and Ontario defrauded Six Nations of money and territory.
The Crown’s position is the land grant was not a treaty and did not obligate the government to keep the territory as a reserve, while Six Nations contends the Crown’s promise of land in perpetuity was a treaty whose obligations and responsibilities remain.
From the original 950,000 acres granted by the Crown, Six Nations controls less than five per cent today — approximately 46,500 acres near Haldimand County that encompasses Canada’s most populous First Nation.
Much of the rest of the Haldimand Tract has been extensively developed, with the cities of Cambridge, Kitchener, Waterloo, Brantford and Guelph within the territory.
In its statement of claim, Six Nations argues the Crown breached its fiduciary duty to prevent the “exploitation” of the tract lands by not evicting non-Indigenous squatters and by using monies intended for Six Nations to fund public works projects without any compensation paid to the Haudenosaunee.
The band council alleges the Haldimand Proclamation bound the Crown to “ensure that all monies or other assets … were managed prudently and accounted for.”
Ottawa’s statement of defence said the Crown is not to blame for Haudenosaunee control over the tract shrinking over time.
“Over decades, the Six Nations people made a series of valid surrenders and sales of lands within the tract,” the statement said, rejecting the accusation Canada and Ontario “have been at fault in their dealings with the Six Nations.”
Based on the legal system of the day, the defence argues “the Crown has acted honourably and as contemplated by colonial and post-colonial Crown policy.”
And as most of the land transfers predate Confederation, Ottawa argues modern-day Canada is not to blame for any mismanagement.
Where did the money go?
As laid out in the statement of claim, starting in the 1780s and continuing into the middle of the next century, some Haudenosaunee allowed non-Indigenous settlers to farm parcels of land within the tract.
Proceeds from these land leases and sales were to flow back to Six Nations for 999 years in a “continual revenue stream … dedicated for Six Nations ‘perpetual care and maintenance.’”
But Six Nations alleges the Crown allowed some parcels to pass to third parties without having been legally surrendered by the Haudenosaunee.
Instead, the claim says, “records show that the Crown used those revenues to finance operations in developing Canada with little or no return to Six Nations.”
Six Nations research that will be submitted in evidence alleges money that should have been held in trust was instead used to fund McGill University and the Law Society of Upper Canada, pay off Canada’s war debt, underwrite banks, and finance railways and public works projects like the Welland Canal.
“People don’t know it, but Six Nations had a large part in building this country,” Bomberry said.
What does Six Nations want?
The lawsuit does not seek the transfer of any land to Six Nations.
Rather, elected council wants an accounting of how the nearly million-acre Haldimand Tract was whittled down to the existing reserve, and what happened to the proceeds from land that was meant to be sold, leased or otherwise put in trust for the betterment of band members.
Six Nations also seeks “satisfactory compensation” for “thousands of acres of Six Nations lands legislated away, expropriated, flooded and used by the Crown.”
Based on calculations by Bomberry’s department, were a judge to determine Six Nations has been defrauded, the damages owed by the Crown could be in the trillions of dollars.
“It is a huge, huge case,” Bomberry said.
“You have to look at the money that was involved at that time and convert it. Compound interest, the value of the land. It’s enormous.”
But Bomberry hopes the Crown settles before things get to that point.
“We’re not asking to break Canada, or Ontario,” he said.
“We’re hopeful that the Crowns will come to their senses and say, ‘Look, this is too big. Let’s talk about settling this.’”
That position is reflected in a 2019 paper from the Six Nations lands and resources department called “Land Rights: A Global Solution.”
“Six Nations of the Grand River understands that Canada does not have enough money to bring historic land issues to resolution under the existing land claims policies,” the paper reads.
The department called for revenue sharing through “a new perpetual care and maintenance mechanism that would benefit the Six Nations Peoples and their posterity to enjoy forever, while continuing to share the Haldimand Tract lands and resources with our neighbours.”
The money from what would likely be the biggest land claims settlement in Canadian history would be used to improve life for Six Nations residents, many of whom do not have reliable access to clean drinking water, Bomberry told The Hamilton Spectator.
“There are a lot of things we need in the community. A lot of things,” he said.
Previous efforts to settle with the Crown have fallen short, but Bomberry predicts a settlement is inevitable.
Who else is involved?
Mississaugas of the Credit First Nation successfully applied to be an intervenor in the case, as the Haldimand Tract falls within MCFN’s traditional and treaty lands.
MCFN does not seek compensation for itself and supports Six Nations’ efforts “to hold the Crown accountable for its mismanagement and abuses.”
An application from the Haudenosaunee Development Institute to intervene on behalf of the Haudenosaunee Confederacy Chiefs Council — the traditional government of Six Nations — and all Haudenosaunee people within and outside the Six Nations reserve was denied.
The judge acknowledged the Haudenosaunee Confederacy existed prior to the elected band council, which was created in 1924 by Ottawa and installed after the hereditary chiefs and clan mothers were forcibly removed.
The Haldimand Tract, therefore, predates the creation of the elected council by about 140 years, and as such, HDI argues elected council has no right to compensation for an agreement to which it was not a party.
Justice Jasmine Akbarali further acknowledged HDI’s participation in ultimately unsuccessful negotiations while the lawsuit was paused to see if a settlement could be reached.
But Akbarali rejected HDI’s argument that elected council is not entitled to compensation, blocking the institute’s attempt to “put an end to the litigation in favour of nation-to-nation negotiations” between the Confederacy and the Crown.
The judge also noted the “long history of conflict” between the Confederacy and elected council over which governing body is legitimate.
What is taking so long?
The size and scope of the land claim has made for a protracted legal process.
“The action is extremely complex,” Akbarali wrote in the preface to her judgment.
“The breadth and the depth of the issues raised in this action are significant. The action covers about 250 years of history and involves a large tract of land.”
Six Nations sued the government in 1995 after slow progress toward resolving the band council’s 29 individual land claims along the Haldimand Tract, of which only one was settled.
The parties put the legal action on hold after Indigenous land defenders occupied a planned subdivision in Caledonia in 2006. Instead, Six Nations elected council and the Confederacy tried negotiating a settlement with Ottawa and Queen’s Park to resolve the land claim and financial issues.
But talks fell apart a few years later, and the litigation resumed in 2009.
Further muddying the waters, Canada and Ontario each argue the other should have to pay any damages that are awarded to Six Nations, and have filed cross claims to that effect.
Ontario’s Ministry of the Attorney General declined an interview request for this story.
“As this matter is before the courts, it would be inappropriate to comment,” spokesperson Keesha Seaton said in an email to The Spectator.
An interview request to the Attorney General of Canada was referred to Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada.
In an email, ministry spokesperson Jacinthe Goulet said Ottawa “is working in co-operation with the other parties to prepare for trial.”
Goulet said the government’s position is reflected in the website focused on the litigation, and declined further comment, citing the ongoing court case.
What’s next?
When this matter will see the inside of a courtroom remains anyone’s guess. Trial dates have been pushed back for years, and while Bomberry said a pretrial motion is scheduled for mid-December in Toronto, the provincial spokesperson said nothing is on the docket.
Should there be no settlement reached beforehand, the trial will be in two phases, Bomberry explained.
First, the court would decide whether the Crown is liable for the alleged losses Six Nations experienced. Next, the court would consider what happened to the land and monies and rule on damages.
In the meantime, Canada’s expert witnesses started recording video testimony in late August.
“Three of their witnesses are elderly and sick, and (the government) wanted to get their evidence recorded for the trial judge before something happened,” Bomberry said.
The former lawyer and band councillor, who has been involved in this legal action since the late 1980s, said Six Nations is “in a better position than we’ve ever been.”
“We have things in sight now, you know. Things are going to happen,” said Bomberry, who is motivated by the need to rectify what he calls “the obvious and grievous injustice that was done to the Six Nations people in taking almost all of their land and practically all of their money.”
“It’s so monumental a miscarriage of justice that it cries out for justice,” he said.
“And that’s what’s going to happen.”
J.P. Antonacci is a Local Journalism Initiative reporter with the Hamilton Spectator. The LJI is a federally-funded program.
