Rule of law missing in Six Nations dispute: developers

Native group's demands likened to extortion

Allison Hanes,  National Post  Published: Thursday, January 17, 2008

Chris Wattie/Reuters

Developers in a wide band of Ontario's economic heartland claimed by aboriginals say they have been left to fend for themselves by the provincial government, forced to choose between seeing their projects blockaded or paying a little-known, self-proclaimed First Nations bureaucracy to leave them alone.

The Ontario government has offered little guidance, other than advising developers not to pay the four-month-old Haudenosaunee Development Institute (HDI).

The HDI was set up by Six Nations to approve plans, issue permits, conduct environmental assessments, collect royalties and arrange leasing agreements on any development within 10 kilometres of either bank of the Grand River.

But those who have had dealings with the HDI say they have been put in an impossible position, with some likening the organization's demands to extortion.

"We've just been hung out to dry," said Don Courtney, president of a new landfill site in Cayuga that was shut down by Six Nations warriors on opening day in November.

After a $14-million investment and seven years of working to obtain the necessary government consent, environmental compliance and numerous community consultations, including with Six Nations, Mr. Courtney said trucks were turned away from the entrance and the owners contacted by the HDI.

The institute requested a $7,000 fee to "apply" for Six Nations approval of the project. Although the fee was later waived, Mr. Courtney said the landfill for industrial, commercial and institutional waste cannot open for business until he gets a guarantee that operations will not be interrupted again.

But he said he and his partners have not had their calls returned by the HDI's administrator, lawyer Aaron Detlor, or anyone else they can negotiate with.

"We're dead in the water until this thing is resolved," Mr. Courtney said yesterday. "Where the hell is the law and order here?"

Mr. Detlor, the HDI's chief administrator, said this week the Six Nations are the rightful owners of the land granted to their forefather Joseph Brant in 1784 and have never surrendered title. The HDI is founded on the basis of Haudenosaunee law rather than Canadian law, Mr. Detlor said, and is only acting as any municipal planning department would in levying fees on any development in its territory.

"We don't really have any concern about whether the province thinks we're legal. We know we're legal," he said.

Premier Dalton McGuinty reiterated the government's position this week that the HDI has no legal standing and developers should not pay them.

"My advice to anybody is not to pay," he said on Tuesday at Queen's Park. "There is only one group that we recognize in terms of their lawful authority to levy development fees, and those are municipalities."

But developers say if they don't pay, the Ontario Provincial Police and the Ontario government won't step in to help them when their projects are taken over by an occupation.

The Six Nations Confederacy Council, a traditional hereditary government, set up the precedent-setting HDI to assert their jurisdiction over the Haldimand Tract, a huge swath of southern Ontario including parts of Kitchener-Waterloo, Cambridge, Brantford and the outskirts of Hamilton, plus many smaller towns.

Mr. Detlor said that while the institute is still in its infancy, there are plans in the works to expand its scope, starting with a publicity campaign to "educate" the public about its objectives and an effort to "ensure procedural fairness for all parties."

If developers refuse?

"Then they're acting in an unlawful fashion and they're going to be subject to court proceedings, both within Canadian law and they will be subject to court proceedings in Haudenosaunee law," Mr. Detlor said in an interview this week. "If they don't start to take seriously our jurisdiction, there are going to be problems in the future....

"We don't have any evidence that any of the roads in the Haldimand Tract have been surrendered or paid for."

Ray Robitaille, a home builder in Caledonia, said there is a climate of fear among developers in his area which could spread up the Haldimand Tract with dire economic consequences if the Ontario government doesn't step up and deal with the issues of the Six Nations.

Mr. Robitaille was one of the builders in the Douglas Creek Estates project that was shut down by protesters in 2005. By failing to deal forcefully with the problem at the time, he said the government only encouraged the kind of "extortion" the developers now face.

"Law and order is nonexistent in this community," he said. "Dalton McGuinty is so fearful of what happened at Ipperwash [when First Nations protester Dudley George was shot by police in 1995]."