KAREN BEST
Dunnville Chronicle
Wednesday, November 07, 2007 - 05:00
Local News - Following a court decision supporting compound interest on outstanding financial responsibilities, the $125 million offer to Six Nations for four land rights including investment in the Grand River Navigation Company will be subject to change.
For these and all other rights and leases, the federal government owes billions to members of Six Nations, said Aaron Detlor, a consultant working for the Haudenosaunee Confederacy council.
After construction began on the Welland Canal in 1824, the Grand River Navigation Company was founded and lock construction eventually made the river navigable up to Brantford. About 160,000 British pounds held in trust for Six Nations was invested in the company which went bankrupt by 1860.
Six Nations lost their funds and lands flooded by the Dunnville dam that fed the Welland feeder canal.
When applying best use of funds and prudent investment principals, as allowed by highest end calculations, the federal government owes Six Nations $400 million for their investment in the Grand River Navigation Company, said Detlor. Equitable compensation also means the Crown has to put the asset back into its original condition, he said.
Compound interest and return to original condition are what Six Nations chiefs and their representatives have all along asked from federal negotiators working on Haldimand Tract issues with Ontario and the Confederacy, said Detlor.
Detlor hoped a Nov. 1 Court of Appeal decision will speed up resolutions in the Haldimand Tract. There is no doubt if this is to be applied that land is to be returned and financial compensation must be based on best investment results, he said.
Detlor also expected the Plank Road claim to be viewed differently now. Located half a mile on either side of Argyle Street in Caledonia and on Highway 6 within 11 kilometres of the Grand River, this strip of land was to be leased according to chiefs but was sold by the Crown. Detlor said the lands should be converted back to the original intention of leases or, if they were stolen, the land should be returned outright to Six Nations.
Third parties can turn to the federal government, which Detlor said had a $4 billion surplus, for compensation.
Compound interest and associated principals have moved to the forefront in potential land rights resolution after an Ontario Court of Appeal decision on Nov. 1. In what is expected to be a precedent setting case, the Whitefish Lake First Nation's contention that compound interest was due on a 1886 timber surrender was upheld by the court. Detlor, who is a lawyer, represented the First Nation.
That decision now requires the federal government, when in breach of fiduciary duty as a trustee for First Nations, to prove that the highest end calculation is not applicable, said Deltor. Previously the onus to prove the highest and best use value of the asset was on First Nations, he added.
According to a statement he issued about the court decision, the Crown breached its fiduciary duty with the Whitefish Lake First Nation when it paid $316 for the surrender instead of $316,000. In his ruling, the Honourable Justice Laskin spoke after a unanimous panel decision. He said one way to recognized the Crown's fiduciary duty is to pay equitable compensation for any breaches.
The Court of Appeal ordered another trial to review the community's spending and investment patterns over the past century.
Based on compounded interest, Detlor said the Crown may owe the Whitefish Lake First Nation, located south of Sudbury, as much as $23 million.
If the Crown cannot pay for its breaches across Canada, First Nations are willing to look at creative solutions once obligation is recognized, he said. Based on this court decision, the Crown will have to provide an accounting for what it did with any aboriginal funds and lands, he continued.