Larry's Corner

The Caledonia Dispute Reaches Hamilton

By Larry Di Ianni
(posted April 21, 2008)

On Friday, a Spectator reporter left a message on my answering machine asking me to comment on the Haudenoshonee Development Institute’s (HDI) assertion that it has jurisdiction over Hamilton development. This reporter cited the negotiations we had with the Confederacy Council during the Red Hill Parkway construction and wondered what I thought of the current claim. It’s too bad I wasn’t home for this message and didn’t pick it up until Saturday morning, after I read the story in the local paper. Here is what I would have told the reporter.

(Note: I also received a call on Sunday and did give some quotes to the reporter. I don’t know what will be covered in the paper, but anticipating space limits, what follows are some additional thoughts on this issue.)

First of all, let’s make sure we understand what the HDI is; and let’s separate it from the discussions Hamilton had with the Confederacy Council.

Haudenoshonee is the traditional and honourable name for the aboriginal community in our area. The HDI, according to the newspapers, is a one-person group that was started by a Toronto lawyer seeking to insert him/itself as a legitimate authority over land matters in the Haldimand area representing the tract of land covered by age-old Federal treaties with the Haudenoshonee people. According to reports in the newspapers and statements by political and administrative staff at the Province, the HDI is NOT a body that has any legitimate jurisdiction in these matters. The Province and other political bodies have asked developers NOT to deal with HDI in any way. I have watched the situation develop in Haldimand with interest and sorrow for that community and the people who innocently have been caught up in ancient disputes and frustrations. I have even spoken with David Crombie who was especially appointed by the Federal government to provide some advice and clear thinking on how to resolve some of the issues troubling the various sides. Mr. Crombie did not have flattering things to say about HDI and its claims.

Now, I read in horror that HDI is inserting itself in matters well beyond the ‘tract’ and one of the Toronto lawyer’s spokespeople told us in the paper that, in fact, the ‘tract’ isn’t the only area of HDI jurisdiction. The entire area, not only covers Hamilton, but the entire breadth of ‘ Turtle Island’, which of course is all of North America. Talk about vaulting ambition! Talk about provocation! I understand that the Hereditary Chiefs have given HDI some legitimacy, but this isn’t any legitimacy that has, to my knowledge, been recognized by other levels of government. My suspicion is that the Chiefs are frustrated at the lack of progress on their legitimate issues and may be using HDI to up the ante. I believe most will see this strategy as counter-productive.

Hamilton ’s negotiations on the Red Hill Parkway lands were not with HDI. We would have sent this group packing, had it existed. Our consultation, rather than negotiation, was with the elected Band Council, headed then by Roberta Jamieson with whom I met; and later David General, again with whom I spoke repeatedly. The Band Council gave us the green light to also discuss with the Confederacy Chiefs, not that the Chiefs felt they needed anyone’s approval. A core group of respected Chiefs participated in most meetings. This was my introduction into the politics of the Haudenoshonee. Sad to say, it took this long in my life to begin understanding the dynamics within the aboriginal communities. That is a point of shame for our educational system. Suffice to say, my education was intense over a short period of time. I had a lot of catching up to do.

The difference between the HDI and the Confederacy consultation is that HDI wants money from developers, purely and simply. The Confederacy wanted nothing other than to protect any rights they might have had; and they wanted to understand the city’s plans to ensure that what we were doing would not be insulting to any burial grounds found in the Valley. We engaged a long list of archaeologists to help us with the latter and we debated and discussed protocols related to the first. We even looked at the Nanfan treaty which gives hunting and fishing rights where appropriate. These discussions were always respectful, almost always difficult and always with a view of resolving legitimate issues. They were also quite successful, leading to the signing of agreements with the city and the Confederacy. What should also be pointed out is that at no point was the project materially delayed because of these consultations. There was never a threat from the Confederacy Chiefs we were speaking with of anything of that kind. I believe that was the secret of these consultations: a lack of ultimatums from either party.

For HDI to claim fees from developers in the Hamilton area, or for that matter any area in North America is ‘ultra vires’ in my opinion. It is not only beyond the limits of the law, but one Ontario legislator, used the term ‘shakedown’ in describing what HDI is doing. A strong term, but if the government itself is saying they can’t collect money; and if HDI is telling companies they must pay fees, then it is beginning to sound like a duck and look like a duck.

What should Hamilton do? Have nothing to do with HDI. Engaging them in discussions as a fee-collecting body is a slippery slope that gives them legitimacy they don’t have. I would also find a way of telling developers that they should also stay away from this group. In fact, I would not have anything to do with any development interest that is co-operating with HDI. I would tell these developers that they should get their permits from the legitimate body lawfully entrusted to do the work. If these developers choose HDI, then let them get permits from them and shut down the Hamilton side of the equation. Of course businesses can’t get permits from HDI which has no authority to grant them, so for projects to move ahead, the city would have to be engaged. I think the development community as well as HDI would see the seriousness of Hamilton’s position. This tactic may be interpreted as a hard position, but I believe that this is not a time to be weak-kneed. All concerned must be respectful but resolute! If not, we will descend into the kind of stalemate and bitterness that has enveloped Haldimand.

I would also immediately seek a meeting with the Provincial Minister of Aboriginal Affairs, the Federal Minister of Aboriginal Affairs, the local Provincial Minister and M.P.P.’s, the Federal Minister of Aboriginal Affairs, the local M.P.’s and the local Minister Ms. Diane Finley. I would also assume that the local Police Service is readying itself for appropriate responses to any eventuality. They did a superb job during the Red Hill situation. These high level meetings are intended to put the ball squarely where it belongs: at the feet of the Federal and Provincial authorities that might be tempted to leave this community twisting in the same wind as Haldimand’s.

The question, of course, is why are legitimate businesses even entertaining the prospect of working with an entity that has been dismissed by the Provincial authorities, namely HDI? That is a hard question to answer, but part of it has to do with the fear of protests blocking private lands in perpetuity; the other has to do with the snail’s pace of progress that the Federal government has made in dealing with legitimate compensation and land issues that the Haudenoshonee and other aboriginal groups may have. When the Assembly of First Nations is considering Olympic protests, you know that something has to be done at the Federal level.

The protests are a concern. HDI has been careful to nuance their comments in such a way that it doesn’t seem to encourage protests. But the sub-text of their commentary is much more revealing. As Caledonia has demonstrated, protests have been successful in blocking development. This in turn has led to community frustration and sometimes violence.

The OPP, has been maligned for not ‘acting tougher’. They are in an impossible situation. Their mandate is to keep the peace, which they have been doing. Meanwhile a ‘protest’ siege mentality has taken hold. The OPP mandate should have been quickly reassessed. As the Hamilton Police’s mandate should be carefully spelled out if protests occur here.

The real answer to all these ills, of course, is that the Province must do more to preserve the statutes and rules around land-use planning. They just can’t say they support the current rules, they must do something about enforcement of these rules if they are being abused. The fact that Michael Bryant is on the job is a very positive step.

The Federal government is AWOL. The Harper team is very weak on this issue and must step up. All they have been able to do since they took over is make token gestures of accommodation when the real answers may have been found in the scrapped Kelowna Accord negotiated by the previous government. Mr. Harper’s local Minister Diane Finley has been all but invisible on this issue. Her claim to fame is a pending immigration bill that is insensitive to the many communities across the country. Why should she treat our aboriginal, First People’s with any more dignity?

As Mr. Crombie correctly hinted, the rule of law must be first re-established if respectful solutions are to be found. The elected band Councils, the Confederacy and even the Toronto lawyer who has started HDI, if he is deemed to be a legitimate representative, can then get into the business of resolving issues rather than creating confusion and resentment. But it must be done without unreasonable demands being made of innocent third parties.

These are very delicate times, loaded with potential volatility. Sure footed, appropriate and respectful responses are needed. But so is determination and strength required. We learned, through the Red Hill consultation, that good intentions obtain good solutions. The moment any side feels threatened however, these good intentions evaporate into non-productive feelings of suspicion, competition and retribution. Let’s hope that saner heads will prevail to see us through these challenges.

BACK TO LARRY'S CORNER