Brantford Expositor: Letter to Editor
[Note: My comments are added in square brackets.]
Do local governments have a responsibility to consult indigenous peoples?
The issue of whether municipalities, like Brantford have an obligation to consult and accommodate indigenous peoples before permitting development on Native "land claim" area seems to be a crucial consideration in the current conflict over development in Brantford.
The Canadian Supreme Court has said in Taku River and the Haida Nation that the Crown has a duty to consult/accommodate Natives where rights and/or title may be adversely impacted by proposed developments.
Canadian provincial and federal governments are the Crown, according to the court and have such obligations whereas third party proponents like developers, forestry and mining companies do not.
The court was not specific on whether local governments like municipalities are also deemed to have such an obligation. There appears to be growing consensus though among Canadian legal minds that local governments indeed have an obligation to consult and/or accommodate aboriginal people.
In Ontario the provincial government is now directing third party proponents to carry out consultation with aboriginal people to the province's satisfaction.
Private energy developers for example, are now required to carry out consultations with affected aboriginal peoples as a condition of their service contracts with the province.
Brantford's situation is no different. Like the provinces or federal government, Brantford is also an elected body that has the authority to grant permits regarding development in its jurisdiction.
The similarities end there however as Brantford city council believes it has no such parallel obligation to consult/ accommodate aboriginal people. Brantford, therefore does not stipulate aboriginal consultation as a condition to the developer permit process.
Fairly recent changes to the Ontario Municipal Act allow municipalities to make and enforce bylaws providing more autonomy to local governments. Local governments are not the "creatures of the province" they once were.
While Brantford enjoys increased autonomy they deny the added responsibility (like duty to consult) such autonomy brings.
Maybe Brantford is just too busy counting its millions in development fees and taxes from Six Nations lands to pay attention to what the vast majority of Canadian legal minds, governments and associations have to say on the issue of whether municipalities have a duty to consult/ accommodate aboriginal peoples.
[Brantford's backlog of leasing monies owed to Six Nations was calculated by the former Mayor to be $252b about 2005. That does not include other Six Nations lands simply encroached upon and 'sold', and under claim.]
Federation of Canadian Municipalities: "The City of Vaughan, Ontario was charged with failing to conduct a proper environmental assessment. The suit with First Nations regarding a proposed road widening and extension within a municipal road allowance" ... "the federation supports the right to Aboriginal self-government ... (and) believes that the realization of self-government should evolve through negotiations with other governments, including municipal, against a backdrop of positive and active community relations."
Saskatchewan Ministry of Municipal Affairs: "Whenever a municipality exercises its legal authority in a way which might negatively impact on the exercise of an Aboriginal or Treaty right, a duty to consult with affected First Nations communities will arise ... failing to consult could have very serious consequences."
Association of Ontario Municipalities Conference 2008. Ministry of Municipal Affairs and Housing to Ontario Municipalities power point presentation: "Based on the direction in recent case law, it is the province's view that local governments will likely be found to have a duty to consult in some circumstances. Aboriginal assertions increasingly draw in lands and processes in which municipalities have an interest, for example: archaeological/burial site issues raised in land use planning and the development process impact of growth and on hunting and fishing rights."
Report "The Impact of Aboriginal Land Claims and Self-Government on Canadian Municipalities: The Local Government Perspective: Theresa M. Dust, Q. C. City Solicitor, Saskatoon, Saskatchewan:
"Urban Councils are not third parties. Federal, and to a lesser extent provincial, officials have adopted the practice of lumping together all groups which are affected by aboriginal land claims, from tourist camp operators to mining companies to Urban Councils, and treating them as one "third party" constituency.
This narrow constitutional law approach ignores the reality that Urban Councils are the elected governments of their communities, and are not just the Fish and Game League.
This approach causes significant resentment at the local level, and that resentment is turned against the entire land claims process."
Brantford City Council is not being totally up front with its constituents on the advice they received from the Ontario Government on at least two occasions. They have not been totally honest with developers that native land claims blanket Brantford.
[[url=http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=1400705]City sued for $10m [/url] ... Kingspan claims the city received a letter from the Haudenosaunee putting Brantford on notice of potential claims to the property. The letter advised the city the Haudenosaunee would take all legal and peaceful steps necessary to protect their rights until the issue was resolved. The letter was dated Sept. 28, 2007, prior to the Oct. 19, 2007, closing date of the sale of the property from the city to Kingspan, the statement says.
Brantford breached its obligations and duties to disclose the letter prior to the closing date, choosing instead to withhold the letter.]
In light of the numerous recommendations and legal perspectives that municipalities have a duty to consult why would Brantford city council then engage in lawsuits, court injunctions and arrests against Six Nations?
If Brantford is successful in selling of all "its" land there will be no threat of losing any back to Six Nations through land claims processes.
Likely Brantford City Council also feels it will be off the hook for any financial compensation to Six Nations in lieu of returning land it already sold to third parties.
Local governments with their increase autonomy and power to further alienate traditional lands from Indigenous people however have in effect become the Crown too along with the provinces and federal government.
So along with a moratorium on selling further Crown land the City of Brantford should also start a Six Nations land claims compensation fund. That fund would be preparation to reimburse Six Nations for the billions in past taxes and development fees (and interest accrued) it acquired from Six Nations land.
It's too bad Brantford has to be forced (likely by the courts) to consult with Six Nations. It was the morally right thing to do anyway.
[Ref: [url=http://www.scribd.com/doc/13041574/Factum]Report of the Amicus to Brantford Superior Court [/url]]
There will be no bailout packages coming for the squattocratic Corporation of the City of Brantford in regards to the money it owes Six Nations.
Brantford will either have to work with Six Nations in a mutually respectful way, while repaying its ill begotten gains in installments, or go bankrupt. This time, financially.
Alexander Jamieson Jr., Six Nations Territory
Article ID# 1467251
[Injunction hearing, City of Brantford v Haudenosaunee Six Nations, resumes Monday morning March 9 in Brantford Superior Court ]