The people living in the Grand River territory need to be informed of a perspective other than those vitriol-driven voices now outshouting others. Part of that perspective includes legal information, much of which is challenging to the public. I hope to present some information in a manner that is accessible to the general population.
As a longtime resident and former political advisor to the elected Chief Dave General, many have asked me about Six Nations' outstanding land claims. In particular, people want to know how long before a solution will be reached. Since the start of the situation in Douglas Creek, I have repeated my same observation. There will not be a quick solution. Having observed the federal land claims process, I know it will take considerable time before a resolution is achieved. It will be months, if not years, before anything is accomplished. A viable resolution will not be attained in a few weeks.
To illustrate the slow pace of land claims, I was a high school student when I decided to become a barrister and solicitor, not so I could become a Bay Street lawyer, but so that I could lend my abilities to finding a resolution to the myriad of Six Nations' claims. During the many years since, I graduated from high school, university, law school and then received my call to the bar. In the interim, little, if any, progress has been seen. Moreover, I wanted to find a resolution through peaceful means before a violent confrontation erupted. I knew, as did many others, that the clock was ticking. Delay and indifference only heightened the potential for a crisis to erupt. It was always my concern that those who make peaceful solutions impossible make violent conflicts inevitable.
For a while, I was fortunate to be the right person at the right time. Working with the elected Chief General, Six Nations had the opportunity to have the claims fast-tracked through a third option. Aboriginal claims are typically pursued by either litigation or through the federal claims process. Neither provides a timely option. Rather than litigation or the land claims process, an "exploration process" would be established to examine Six Nations' 28 claims.
The benefits of the exploration process would have been numerous. Most importantly, it would avoid the costly and time-consuming litigation process and bypass the bottle-neck of the federal land claims process. Proposed areas of resolution, such as those discussed would have been two years further along towards ratification. And the difficulties that have ensued since the start of the standoff would have been avoided.
In order to resolve all 28 of the outstanding claims, a new alternative like the exploration process will be required. Court decisions alone will not determine these disputes. A recent B.C. Supreme Court decision illustrates this point precisely.
In a decision, issued Nov. 21, Mr. Justice David Vickers issued an unusual verdict. In a 473-page decision, Vickers provided a non-binding opinion and directed all parties to return to the negotiating table. The court determined that Chief Roger William and the Xeni Gwet'in people succeeded in establishing their aboriginal title to a significant portion of their traditional territory. The Xeni Gwet'in, part of the larger Tsilhqot'in people, claimed control of the Nemiah Valley.
After a 17-year legal struggle, which included a trial lasting 339 days (with legal costs estimated at $11 million to defend and a further $18 million to prosecute), no final resolution was achieved. In addition, Vickers discouraged all sides from returning to the courts for a resolution.
If Six Nations were to continue to pursue the claims in court, an Ontario court would likely issue a similar decision. Clearly, that route is worth neither the time nor the money, particularly if the judge throws the whole question back to the negotiators.
My support for the proposed exploration process ultimately cost me my salary from the elected council. I could not, in all good conscience, provide my unconditional support for the protest when a better alternative was available. While the loss of a paycheque was a sacrifice, it was a small personal cost. Personally, I would have rather lost my job since the only other option was sacrificing my integrity. In the interests of fairness and accuracy, I must emphasize that it was not elected Chief General who forced me to make that choice.
My advocacy at the Ontario Superior Court in Cayuga and, subsequently, at the Ontario Court of Appeal has enabled the negotiation tables to continue. Lawyers will still be required. But our advocacy skills will primarily be utilized at the negotiation tables, not necessarily in the courtrooms. Ultimately, the various parties around the negotiating table have followed the same framework as proposed by the exploration process. Unfortunately, the final price will now be at a considerably higher cost, whenever that settlement may occur.
Darrell Doxtdator
Resident of Caledonia, Six Nations community