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September
2003
Newsletter
The
Rights of the Haudenosaunee Confederacy
in Red Hill
While
protestors were successfully holding off construction crews
at the Greenhill Avenue site, representatives of the Haudenosaunee
(Six Nations) Confederacy established a roundhouse and sacred
fire on August 10 in the middle of the planned construction
area. The Haudenosaunee have continued occupying the valley
(they did not leave when the temporary injunction was issued
on August 15) and they have no intentions of leaving until
the issue is resolved.
In Ontario there are some 150 Aboriginal Reserve Communities,
which can be grouped into just two language families: the
Anishinabeg (also known as Algonkian or Ojibway) and the
Ogwehoweh (also known as Iroquoian, spoken by the Six Nations
of the Seneca, Oneida, Cayuga, Mohawk, Onondaga, and Tuscarora).
The traditional Confederacy of the Six Nations people is
known as the Haudenosaunee confederacy. Haudenosaunee literally
means "people of the longhouse".
The Haudenosaunee did not represent themselves regarding
the injunction when it came to court on September 5, because
they do not consider that the provincial court has jurisdiction
over Aboriginal issues. If the City has a legal victory
in court for the injunction and tries to evict the Haudenosaunee
from the roundhouse and the sacred fire in the Red Hill
valley, the Haudenosaunee plan is to stand firm in a non-violent
way, and they will not be moved.
The land of present-day Hamilton was purchased by the British
Crown in 1784 from the Mississauga nation (an Ojibway or
Anishinabeg group). Being a strategic location at the head
of Lake Ontario, the Hamilton area is part of the traditional
territory of both the Mississauga people and the
Haudenosaunee (or Six Nations) people. The Mississaugas
of the New Credit and the Six Nations of the Grand River
have Reserve territories side-by-side, just a half-hour
drive from Hamilton, and the histories of the relationships
between these two nations are long and complex.
Representatives of the Haudenosaunee Confederacy have expressed
concerns about building an expressway in the Red Hill valley
for years, so they are not newcomers to this issue. Norm
Jacobs, who passed away at the end of August,was involved
for years in trying to protect the Red Hill valley, as a
member of the Haudenosaunee Environmental Task Force.
Defining
Aboriginal rights is something that the Canadian legal system
has struggled with for years. The 1997 Delgamuukw decision
of the Supreme Court of Canada has been an important moment
in determining the nature and extent of Aboriginal rights
and title in Canada. In this decision, Justice Lamer provided
the first clear, definitive legal definition of Aboriginal
title. Aboriginal title has its legal source in prior occupation
of the land. Aboriginal title is held communally, not by
any one member of an Aboriginal Nation.
Although Aboriginal title is a right in land, and not tied
to any particular 'Aboriginal use', there is an inherent
limit on the possible uses that can be made of the land:
"... if a group claims a special bond with the land
because of its ceremonial or cultural significance, it may
not use the land in such a way as to destroy that relationship".
(In the case of the Red Hill valley, the ceremonial or cultural
significance is due in large part to the fact that Aboriginal
people are buried in the valley).
Finally, Aboriginal title may be infringed on by either
provincial or federal governments if the infringement satisfies
a compelling legislative objective, including for example
the "development of agriculture, forestry, mining,
hydroelectric power, ... general economic development, ...the
protection of the environment or endangered species, the
building of infrastructure, and so on. If there is to be
an infringement on Aboriginal title the government must
recognize its fiduciary relationship with Aboriginal people,
and ensure that there is as little infringement as possible,
that fair compensation is made available and that the Aboriginal
group has been consulted.
In early July the City initiated discussions with Six Nations
band council, currently headed by Roberta Jamieson. (The
band council system was forcibly imposed on the Six Nations
people in 1920 by the Canadian federal government).
Roberta Jamieson issued a statement on August 13th indicating
her support for the Haudenosaunee Confederacy in halting
construction in the Red Hill valley.
On August 30th, the Haudenosaunee Confederacy struck a negotiating
committee to initiate discussions with Hamilton City Council,
but any meetings are on hold until the ten day mourning
period for Norm Jacobs has passed.
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