Letter - Was any grant actually finalized?

The Regional

December 9, 2009

Doug Whitlow (letters Dec 2) cited the 1763 Royal Proclamation and what he calls the 1784 Haldimand Proclamation in a recent letter to the Regional News.

Let's look at some history.

Governor Haldimand's representative, Lieutenant Colonel John Butler, met in May 1784 with Ojibwa Mississauga Indian, Delaware Indian and Six Nations Indian chiefs and warriors at Fort Niagara to purchase from the Mississauga Indians a large tract of land, which included land along the Grand River.

I would assume that meeting met Crown instructions and conditions in the Royal Proclamation. All parties knew the intention was in turn to grant some land to the Six Nations: all parties agreed and the purchase was completed on May 22, 1784.

That purchase is recorded on page 5 of Indian Treaties and Surrenders, No. 3, volume 1 and C.M. Johnston describes the events on pages 46 to 48 of his book The Valley of the Six Nations.

Furthermore, Haldimand himself mentioned that purchase in his 1784 document, when he wrote "I have at the earnest desire of many of these His Majesty's faithful Allies purchased a tract of land from the Indians situated between the Lakes Ontario, Erie and Huron".

And I would argue that, once the Mississauga Indians sold (ceded) the land along the Grand River to the Crown, the land transfer conditions in the 1763 Royal Proclamation would then have been extinguished on that land because the land transfer conditions in the Royal Proclamation apply to land that has not yet been sold (ceded) to the Crown.

After Governor Haldimand purchased the land on behalf of the Crown, he wrote his famous document on October 25, 1784, which allowed the Mohawks and others of the Six Nations to enter, occupy and use strips of Crown owned land along each side of the Grand River.

Recently, I had a long conversation with an archivist at Library and Archives Canada and was given the following information about the 1784 Haldimand document.

Archivists do not consider the Haldimand document a proclamation. They call it an instrument.

The archivist said the Crown had an official 4 step process of granting land, which includes the following steps.

1. Issuing a "License of Occupation" sometimes referred to as a "Ticket of Location"

2. Making a survey of land to be granted (which can be done in conjunction with issuing the ticket of location)

3. Ensuring the occupants of the grant met the conditions of occupation

4. Issuing title once the conditions of occupation were met

In the archivist's opinion, the Haldimand Instrument was basically the equivalent of the first step in the process of granting Crown land or basically the equivalent of a "Ticket of Location:.

The archivist also said that in order for a document to be considered a proclamation it had to meet certain official requirements. The Crown required a proclamation to be read or presented officially in public on at least 3 separate occasions.

The archivist said the Haldimand Instrument was not presented officially in public on at least 3 separate occasions and could not, therefore, be considered a proclamation.

F. Douglas Reville shows a photograph of the original hand-written Haldimand document opposite page 34 in his book History of Brant County. The photograph shows Haldimand's signature and his personal seal but also shows the document is not signed by any Six Nations person, let alone chief.

Without signatures from both parties, the 1784 Haldimand Instrument cannot be considered a treaty in any conventional sense of the term.

So, basically it seems, the 1784 Haldimand Instrument wasn't a proclamation, a treaty or a deed. It was essentially the equivalent of a "Ticket of Location", the first step in the process of granting Crown land along the Grand River to the Six Nations.

Nevertheless, Mohawk leader Joseph Brant led his followers onto the land along the Grand River in early 1785 and not long after that disputes about the land began.

Joseph Brant then hired a friend and surveyor, Augustus Jones, to survey the Haldimand tract only to find it ended around the Nichol block near what is now Elora, Ontario.

In fact, Haldimand had made a mistake and had basically said the Six Nations could occupy land at the north end of the Grand River the Crown had not purchased from the Mississauga Indians.

To correct Haldimand's mistake, Governor John Graves Simcoe in 1793 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 (Nichol block, near Elora) of the land the Crown had actually purchased from the Mississauga Indians on May 22, 1784. That is recorded in Indian Treaties and Surrenders, volume 1, page 9.

However, Joseph Brant and the chiefs of the Six Nations of the Grand River refused to recognize or accept the Simcoe Patent.

In fact, in an address to Indian Affairs agent William Claus on November 24, 2796, Joseph Brant said "it does not appear from this grant we are entitled to call these lands our own". Brant also said "Of course of this Deed we could not accept" (Johnson, C.M. 1964. The Valley of the Six Nations, The Champlain Society, Toronto, page 82).

There is also a report that Joseph Brant appeared with painted face at the seat of government where he threatened to "dig up the tomahawk" and said he "would come down upon the government with 10,000 warriors" if the Simcoe Patent were ever mentioned again (Appendix to the Journal of the House of Assembly of Upper Canada, Session 1836, Vol. 1, page 48).

The Six Nations of the Grand River, in another interesting twist, erected on the reserve a monument to Governor Haldimand and his document in the spring of 2009 without any mention whatsoever of the Simcoe Patent. It seems the Six Nations still rejects the Simcoe Patent and only accepts the Haldimand document.

In addition, Section 99 of a 2009 Amicus report to Justice Arrell in Brantford 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".

However, if the Haldimand document (instrument) was not a proclamation, a treaty or a deed and if the Six Nations refused and still refuses to accept the Simcoe Patent, where does that leave the Six Nations?

Was any grant of land along the Grand River to the Six Nations actually ever finalized?

Gary Horsnell,