No evidence of treaty for perpetual care

Letter - The Regional

April 22, 2009

Protesters from the Six Nations of the Grand River talk about some sort of Canadian government obligation to give money to the Six Nations for their perpetual care and maintenance. Where do they get that idea?

The British Crown, after the American Revolution, bought a huge parcel of land, including land along the Grand River, in what is now southwestern Ontario from the Ojibwa Mississauga Indians on May 22, 1784 (Johnson, C.M. 1964. The Valley of the Six Nations, The Champlain Society, Toronto, pages 46-48). At that point, the land definitely became Crown land.

After the British bought that land, Governor Haldimand issued a proclamation on October 25, 1784 allowing Mohawk leader Joseph Brant and his Six Nations and other followers to occupy a strip of that Crown land along the Grand River (Reville, D.F. 1982. Third Printing, History of the County of Brant, pages 34-35).

Haldimand, however, made some mistakes. He did not apply the Great Seal of the Province of Quebec to his proclamation, which suggests it was never approved by an Order-in-Council, and he mistakenly allowed Brant and his followers to occupy land at the north end of the Grand River that the British had not purchased from the Mississauga Indians.

Later, Governor John Graves Simcoe had to correct Haldimand's mistakes. In 1793, Simcoe issued a letter patent, which allowed the Six Nations to occupy the land six miles wide on each side of the Grand River from its mouth at Lake Erie to the northern boundary, near Elora Ontario, of the land the British had actually purchased from the Mississauga Indians on May 22, 1784 (Simcoe letter patent, Early Canadiana Online, Indian Treaties and Surrenders from 1680 to 1890, No. 4, page 9).

The Haldimand Proclamation and the Simcoe Patent were unilateral announcements from agents of the Crown: they were not signed by any Six Nations person and they were not treaties in any conventional sense of the term treaty.

In fact, Section 99 of an Amicus Report (Court File No. CV-08-334, Ontario Superior Court of Justice, Brantford, Ontario) that was prepared by a Toronto law firm and sent to Justice Arrell, who is hearing the Brantford injunction case, says "Canadian courts have held that the Haldimand Proclamation and the Simcoe Patent essentially conferred upon the Six Nations personal and usufructuary rights and not a conveyance of land in the English sense".

In other words, Six Nations people were allowed to occupy and use Crown land along the Grand River, but did not own the land.

Furthermore, neither the Haldimand Proclamation nor the Simcoe Patent mentioned anything about paying any annuities to the Six Nations or in any way funding the Six Nations. They were expected to sustain themselves on the Crown land they occupied along the Grand River.

During the 1800s, after many disputes about the land, the Crown sent 2 letters in 1841 to the Six Nations proposing they settle on a smaller reserve south of Brantford and suggesting the Crown would put money from the lease or sale of land outside of the reserve into a trust fund. On January 18, 1841 six (6) important Six Nations chiefs signed that agreement (Early Canadiana Online, Indian Treaties and Surrenders from 1680 to 1890, No. 50, pages 119-123).

However, shortly after that agreement, Six Nations people protested that agreement and petitioned the Crown claiming that agreement was invalid.

The Crown then met with Six Nations leaders over the next three years to resolve the issue.

Finally, on Wednesday, December 18, 1844, forty five (45) chiefs from the Six Nations of the Grand River signed a document in which they unanimously agreed they would accept a reserve south of Brantford and unanimously agreed the Crown could sell land outside of the reserve. That original hand written 1844 document is stored at Library and Archives Canada in Ottawa, Ontario on Reel C-1149 as RG 10, volume 44, pages 83269-83279 and Chuck Strahl, the Federal Minister of Indian and Northern Affairs Canada (INAC) has said "the Government of Canada's position is that the surrender of 1844 is valid."

In the 1844 agreement, Six Nations people who moved to the reserve were to be paid, not for the land, but for any improvements (e.g. houses, barns, etc.) to land they vacated.

Here is the quote from that 1844 agreement.

"He (meaning Commissioner David Thorburn of Indian Affairs) desires that it should be clearly understood that no Indian be compelled to remove from his present location the doing so to be an act of his own and when he wished to settle on the Reserve his improvements to be sold for his own benefit."

Essentially, the Six Nations people and leaders rejected the 1841 agreement in favour of the 1844 agreement, which promised to pay individual Indians directly for their improvements to the land rather than putting money into a trust fund.

Who knows why? Perhaps Six Nations people wanted the money in hand rather than in a trust fund where individuals could not get at it.

Nevertheless, despite the history and agreements, at some point in time, the Crown began sending taxpayers' money through INAC to the Six Nations band council to fund the Six Nations.

Private auditor's reports show, for example, that the Six Nations of the Grand River received $25.1 million in 2004 and $32.5 million in 2005 from INAC. The total has probably reached billions of dollars since funding began.

In addition, the Ontario provincial government has provided money to the Six Nations and, recently, the government provided funding for a dialysis clinic and will provide about $21 million for a new water treatment plant on the reserve.

Furthermore, Six Nations people who live and work on the reserve don't pay income taxes or property taxes. With status cards, they don't pay the GST or other taxes on items they buy and they get free education through college and university and free health-care so they get to keep more of their money.

However, if there was nothing mentioned in the Haldimand Proclamation of the Simcoe Patent about providing annuities or funding the Six Nations of the Grand River, if the Six Nations people were expected to sustain themselves on the Crown land they occupied along the Grand River and if the Six Nations people who moved to the reserve after the 1844 agreement were to be paid, not tor the land, but for any improvements to the land they left outside of the reserve, how and why did INAC start funding the Six Nations and why would the Canadian government be responsible for the perpetual care and maintenance of the Six Nations?

Why do Six Nations protesters imply the Crown cheated the Six Nations when the Crown was gracious enough to supply the Six Nations with land for free, when the ancestors of the current Six Nations people gave away, sold or surrendered most of that land and when the Crown generously uses money from Canadian taxpayers to fund the Six Nations when there is no agreement or treaty that I can find between the Crown and the Six Nations which would call for the Crown to use tax money from Canadians to fund the Six Nations?

Garry Horsnell,