Delivering a bombshell

Posted: June 27, 2008
by: Kate Harries

Canadian government says it will only accept cash in land claim negotiations

TORONTO - The day after Canadian Prime Minister Stephen Harper apologized for his country's treatment of aboriginal people in residential schools, his government's representative in land claim negotiations with the Mohawks of the Bay of Quinte delivered a bombshell.

Chief negotiator Vivian Bercovici told the negotiating committee that the government will not consider land as a form of compensation for a 923-acre parcel of land that was unlawfully patented to a John Culbertson in 1837.

Bercovici said a cash settlement would be the only option, said Chief Donald Maracle. In exchange for the money, the MBQ would have to surrender its treaty rights in what is now known as the Culbertson Tract, a picturesque area east of Toronto that includes about half the town of Deseronto (population 1,900).

Maracle said the announcement came as a shock because the Tyendinaga Mohawk Council has been in negotiations for four years on the understanding that it was seeking the gradual return of the land.

Maracle noted a cash settlement allows the Crown to transfer all of its liability onto the MBQ, eliminating its responsibility under the Simcoe Deed, known also as Treaty 3 1/2, signed in 1793.

In addition, such a settlement perpetuates the greed and colonialism that allowed the land to be stolen for almost 180 years. ''We know there will be exploitation; people are going to want a very large dollar to sell to an Indian to get the land back.''

The Mohawks immediately broke off talks and asked for an emergency meeting with Indian Affairs Minister Chuck Strahl. That took place June 23 in Ottawa in the midst of what appeared to be a carefully orchestrated campaign to alarm locals with the idea that the Mohawks want the government to seize their property.

The Belleville Intelligencer reported that the local Conservative member of Parliament, Darryl Kramp, said it is unlikely that the government will change its long-held position that it will not expropriate land.

In fact, the MBQ has never asked for expropriation, even though the language of the Simcoe Deed is explicit and unique in Canada, evidence of the foresight of the chiefs and warriors who had been forced from their homelands in New York state by the American Revolution and granted 92,700 acres (of which 18,000 remain) in recognition of their military support of the British.

In Canada, the Crown, through the Royal Proclamation of 1763, took on a fiduciary responsibility to ensure that reserve lands were not stolen by settlers. The Simcoe Deed spells out the consequences of such theft, providing that the Mohawk heirs may ''enter on the lands so occupied ... and therefrom wholly to dispossess and evict and to resume the same to ourselves, our heirs and successors.''

The MBQ has proposed that the government purchase property as it comes on the market. This was the process used for more than 16 years, starting in 1990, for the return of 200 acres of Mohawk land (known as the Turton Penn lands) on which the government issued a 999-year lease in 1830 in exchange for 30 barrels of flour per year.

In an interview with Indian Country Today, Kramp readily acknowledged that the MBQ have not sought expropriation. He couldn't say whether the local paper had misrepresented his position.

But, despite the successful outcome of the Turton Penn situation, Kramp said it's quite unrealistic to expect the government to gradually buy back the Culbertson Tract. ''It means that the government would be a nonstop realty service - this can't be done.''

The day after the meeting, Strahl was described as standing firm against expropriation and firm in his refusal to consider buying land, which is against government policy. ''We don't devise a stand-alone process,'' he told the Intelligencer.

Nevertheless, a process modeled on the Turton Penn precedent is exactly what the MBQ fought for after their claim was recognized as legitimate by the Canadian government in 2003.

They say that in an April 27, 2004, letter signed by Michel Roy, an assistant deputy minister in the Indian Affairs department, Canada committed to explore the option of acquiring some or all of the Culbertson Tract lands as part of the settlement negotiations.

It was on that basis that the MBQ entered into negotiations in 2004. Now the tribe has incurred half a million dollars in debt, as the process requires a claimant to borrow the funds from the government.

The meeting with Strahl did nothing to resolve matters, as the minister continues to insist that it's against government policy to buy land. This, despite the fact that Canada's policy on specific claims spells out, under Section 3(i), that ''the band shall be compensated either by the return of these lands or by payment of the current, unimproved value of the lands.''

(The policy should not be confused with the new Specific Claims Tribunal Act, which requires the federal government to deal with specific claims within three years or a band has the option of going before an independent tribunal. The new law, aimed at eliminating a backlog of claims, has been criticized because the tribunal can only award money, not land.)

Maracle, who was injured in a car accident at the end of May, was back in the hospital upon his return from Ottawa and not available for an interview.

Shortly before the meeting, he reflected upon the irony of Bercovici's announcement coming at a time of high emotion for Canada's indigenous people - just after the apology.

'This is part of the new relationship, this is the new page in history, this is what happens after,'' Maracle said, ''and so First Nations people are going to be watching what happens now and so will other Canadians.''

For her part, Bercovici, a Toronto lawyer with expertise in insurance and corporate governance, said her instructions and her mandate are unchanged since she was retained April 1, the third chief negotiator on the file in four years.