May 10, 2004 - from Brantford Expositor

        I am writing this letter to you in your capacity as head of the OPP and I am sending a copy to all the local media because of my absolute disgust at the way your organizations has handled the illegal occupation of the Douglas Creek Subdivision in Caledonia.  I have been practising law in Hagersville for 36 years, during which time I have never seen such a gross dereliction of duty on the part of the police as is as has been occurring since Feb. 28 at Douglas Creek and such ineptitude in executing a raid on the site without the foresight to have enough manpower in place to prevent additional demonstrators from re-entering the site and escorting the OPP off the site.  Such a humiliation of our provincial police!

As a lawyer, you will be aware of one of the basic concepts underlying the Canadian Constitution which is known as the rule of law; the idea, among other things, that a person cannot be prejudiced in a person or in property by the government or anyone else, except in accordance with existing law.  Do you people at the OPP realize the damage you have done, and are doing, to the concept of the rule of law in Haldimand County and the damage to the general public's respect for legal institutions in this area by allowing this illegal criminal activity to continue at Douglas Creek Estates by activists who either don't know their history, or don't want to accept it, and who openly state they have no regard for our legal system and are not subject to it?  Furthermore, do you realize the economic hardship that is being caused to the developers, the home builders, the persons who have bought property in the subdivision, not to mention the damage that is being done to property values in the Caledonia area and to general economic activity in that area, as well as Hagersville and as far south as Port Dover, because many people from Hamilton area are simply not coming this way any longer?

So far as the historical question is concerned, I assume you are aware by the Surrender of the 18th of March, 1841, signed by the six Chiefs of the Six Nations, that:
   "The Chiefs and Warriors of the Six Nations upon the Grand River in full council assembled at the Onondaga Council House ... have and do hereby assent to Her Majesty's Government disposing of the land belonging and formerly reserved upon the Grand River for the Six Nations Indians ..." except for "... the farms at present in their present occupation and cultivation, and of 20,000 acres as a further reservation, and that the selection of this reservation be deferred until after a general survey of the tract, when the position most advantageous to the general interests and peculiar wants of the Indians can be more judiciously selected"

Then, following a survey of the townships of Tuscarora, Oneida and Seneca the following year, the said chiefs again met in Council on the 18th of December, 1844, wherein they confirmed "the lands to be set apart as a territory for the future residence of themselves and their people ..." and agreed that those lands be "... on the south side of the River from that which is deeded at Burtch's Landing (near Brantford) down to the west side of the Plank Road except the tier of lots adjoining the said road ..."    This document further declares:

"The nations present declare that due notice to their people was had of the times, place and object of their meeting in Council on the 13th inst. as well as of today and believe this their answer to the Commissioner is the wish of the Six Nations without a dissent."

It is then signed by 37 Chiefs.

There is therefore no question but that the Six Nations surrendered these lands.  What the Surrender of 1841 really amounts to is a power of attorney given to the government authorizing the government to sell the lands in question and that is exactly what happened with respect to the Douglas Creek lands by the original Crown Patent thereof on the 15th of May, 1848.

Of course, there are issues with respect to whether or not the proceeds of the sale of various lands have been properly accounted for or properly invested.  That, however, has nothing to do with the title to the lands in question.  If you give me a power of attorney to sell your house and I sell it to a Third Party, but do not account to you for the proceeds of the sale, your remedy is against me, not against the third party who bought the house and not against the land the house is on.  The 'Me' in this scenario is the government and a lawsuit is in progress against the government for such an accounting.  I am told that it has been agreed by all parties that this law suit be held in abeyance as the parties have embarked upon a "fast-track" negotiation procedure with respect to certain specific claims which I understand was making great headway until this fiasco occurred.  Again, that has nothing to do with the title to the lands at Douglas Creek.  Those lands were sold 158 years ago.  The Indian interest is gone.  The lands are now owned by Henco Industries limited, except for the streets therein which are owned by Haldimand County.

As I have said many times before, these lawbreakers are in breach of the Trespass to Property Act not to mention the Mischief and Intimidation sections of the Criminal Code and lately the Break and Enter section as I understand the new buildings on the property have been broken into and thefts have occurred.  In addition, threats have been made to members of the public as well as police officers.  Highway 6 is blocked.  Old Highway 6, no Argyle Street, is blocked.  The CN rail line is blocked.  This is simply anarchy.  You simply cannot let one group in society break the law in order to redress their grievances.  You are jeopardizing not only the rule of law in Haldimand County and the respect for the same, but also property values and economic activity in the area.

Do you realize that the 1841 Surrender covers all the lands in the former townships of Oneida and Seneca and the town plot of Caledonia, which is a stretch of land from the Indian Line, (Regional Road 20, King Street in Hagersville), northeast to Haldibrook Road (the line between Haldimand and Hamilton.)  Please discharge your duty under Section 42 of The Police Services Act and the provisions of your Agreement with Haldimand County which requires you to provide adequate and effective police services in accordance with the needs of the municipality which you are not, and have not, been doing.  Specifically, you are not enforcing or discharging your duties to prevent crimes and other offences.  You are not enforcing the provisions of The Trespass to Property Act and the Criminal Code and, in particular, you are not enforcing a valid court order of the Superior Court of Justice.

Please, therefore, at once, get in there and remove the people who are breaking the laws.  Maybe someone will get hurt.  If so, that would be regrettable.  However, that is the price that may need to be paid to preserve the integrity of the Rule of Law and the respect for our legal institutions in this county.

By a copy of this letter to the Premier of Ontario, I am asking the Premier to direct the relevant Minister to, in turn, direct the OPP to discharge its duty under the Police Services Act and enforce the law in Caledonia.  If additional help is required from the RCMP or the army, so be it.  Let's get the necessary help and get it forthwith.

By a copy of this letter to the Council of Haldimand County, I am asking Haldimand County to take the necessary steps to enforce their Agreement with the OPP which, under Section 3 thereof, requires the OPP to provide adequate and effective police services in accordance with the needs of the Municipality.  This Municipality needs the OPP to bring an end to this activity forthwith.

By a copy of this letter to the Federal Minister of Indian Affairs, Jim Prentice, I am asking the federal government to take the necessary steps to assist the Province of Ontario in enforcing the law by declaring a "Public Order Emergency" under the Emergencies Act (the old War Measures Act), if necessary, in order to get the army to assist the police.

I am also asking the federal and provincial governments to put in place a massive effort to deal not only with the two claims which they have been negotiating recently with Six Nations arising out of the litigation commenced in 1995, but also to deal with all the claims which arise out of that litigation.  This will require the two governments and the Six Nations to retain a great number of researchers, historians and negotiators in order to bring this matter to a speedy conclusion.  However, such negotiations should not commence until the current illegal occupation of the Douglas Creek site has ended, and the roads and rail lines restored to normal operation.

However, Commissioner, the negotiation process should in no way interfere with the absolute necessity of the OPP discharging its duties as outlined above.

C. Edward McCarthy
McCarthy & Fowler, Barristers & Solicitors
Hagersville