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December
7, 2003
TREE CUTTING AND COURT ACTION CONTINUE
The
City is continuing to cut trees in Red Hill Valley. At the
south end of the valley, the escarpment clearcut carried
out by W.D. Laflamme Limited has now been extended north
past the edge of the pine forest (opposite the Mt. Albion
Road pulloff).
Photo
was taken on the east side of the clearing zone, a
little west of Mt. Albion Road. It looks across a
portion of the cleared area toward a pine forest.
The cleared area is bounded by orange plastic fencing.
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Immediately
in front of the fencing (and in front of the pine
forest) in the first, top photo, a large deciduous
tree is visible. This bottom photo was taken from
just behind this tree looking south toward the escarpment.
It shows the extent of clearing in the area bounded
by the orange plastic fencing.
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LaFlamme
has received a contract for $302,000 for “advance clearing
from north of Mud Street to south of Greenhill Avenue”.
A second thrust is underway north of Albright Road toward
King Street. This is being carried out by Dufferin Construction,
the company that also won the contract to build the Greenhill
interchange.
Dufferin
actually was the second lowest bidder for the “advance
clearing from 350m north of Greenhill to 700 metres north
of Queenston Road” but somehow got the contract anyway.
AECON bid $670,000 while Dufferin came in at $792,000. Interestingly,
this isn’t the first time that Dufferin has won an
expressway contract despite not being the low bidder. It
happened back in 1994 when the Regional Council awarded
the company an $8.5 million contract for construction of
part of the Linc. The low bidder in that case successfully
sued the Region for $1 million.
The
clearing and other construction activity in the valley are
continuing despite the Notice of Action filed in court on
November 25 in defence of the treaty rights in Red Hill
of the Haudenosaunee people.
Hamilton isn’t be the first government to ignore treaty
rights and use injunctions and police against aboriginal
peoples. This was also done at Ipperwash, Oka and Burnt
Church, but in each case the inherent rights of the aboriginal
peoples have emerged victorious. The City Council election
results did not negate those rights and Mayor DiIanni’s
arrogant refusal to stop work will likely come back to bite
him.
Below we are reprinting a recent article that appeared in
a Six Nations weekly newspaper.
Mohawk
takes Hamilton to court for $100 million
By
Jim Windle, published December 3, 2003 in Tekawennake (called
the Teka for short)
The
epic of the Red Hill Valley has just added yet another chapter.
A Six Nations man has filed for an injunction that would
see construction within the Valley stop under threat of
a $100 million lawsuit.
Murray
Klippenstein, a well known Toronto lawyer who has handled
the Dudley George case on behalf of the George family, along
with co-counsel Andrew Orkin of Hamilton who has represented
a number of high profile aboriginal cases, sat flanking
Six Nations Mohawk Larry Green in an upper room of the Workers
Arts and Heritage Centre on Stewart Street in Hamilton on
Thursday afternoon [November 27].
The
room was crowded with media, First Nations people and Red
Hill Valley activists of all stripes as the announcement
of a Notice of Action levied against Hamilton was made.
Green
was one of the original Firekeepers who began the sacred
fire in the Red Hill Valley in August. Since then Hamilton
Police have cleared the Valley of Firekeepers, supporters
who occupied the site and built a roundhouse and longhouse
in support of the fire, and the fire itself.
The
foundation of his case is the 1701 Nanfan Treaty.
"In
1701, it was solemnly agreed between the Crown and the Iroquois
Nations that our people and our descendants would have hunting
and land use rights and freedoms to the part of the country
that includes the Red Hill Valley, ‘forever’ and
‘free of all disturbances’, said a statement released
by Green. ‘The planned expressway would destroy those
rights. I intend my heirs and descendants to be able to
exercise these treaty rights and freedoms on this corner
of undisturbed land forever."
Mr.
Klippenstein stated, "Mr. Green has instructed us that
only an injunction to stop the expressway can protect his
and his descendants’ perpetual treaty rights and freedoms
in the Red Hill Valley, and that there is no amount of money
which would be a reasonable or comparable replacement for
these rights. We are determined to obtain the injunction
and prevent that destruction."
He
went on to add the ‘or-else’:
"But
if for some unknown reason the courts decline to stop the
expressway in the Valley, the City should not assume or
hope that this case will disappear. The 1701 treaty rights
have extraordinary value in perpetuity, and they can not
be legally paved over with impunity. Accordingly, Mr. Green
is also claiming $100 million in compensation, to be set
aside in a trust fund for traditional and cultural activities
for his descendants."
A
few other defenders of the Valley were upset by the wording
of the document which drew some open cat calls from those
who wondered about Mr. Green’s motives. Some Six Nations
people at the media conference were annoyed that Green only
included himself and his descendants in the wording of the
action and not encompassing the Mohawk Nation of which he
is a member.
Orkin
explained to Teka why the document was worded as it was.
"Larry’s
lawsuit is not about money," said Orkin. "It’s
about the Red Hill Valley but more importantly, it’s
about treaty rights for all Iroquois people. Larry asked
me where we can take his concerns, where they will be listened
to and taken seriously."
Orkin
advised Green that he should take it into the court system,
but that to do so, the way the system works would require
not only a Plan A but also a Plan B and even a C.
"That’s
just the way the Canadian court system works," said
Orkin. "All arguments must be put up front. In the
event of the court not granting the injunction a back up
plan was included to seek damages."
The
$100 million was intended to put the exclamation mark on
the called for injunction action but was seen by some as
an attempted cash grab.
About
the closed wording of the action, Orkin explains, "We
knew that certain people would be upset that Larry was pursuing
this as an individual. But we felt that more people would
be offended if Mr. Green implied that he was speaking for
the entire Six Nations on the matter."
At
one point in the media conference one voice rang out, "You
don’t represent me," which proved that the expected
reaction was correct, underlining why Orkin and Klippenstein
felt it necessary to keep it between Mr. Green and his descendants
and the City of Hamilton.
"When
we looked after the Dudley George case," explained
Orkin, "we knew that if we were to just go after a
financial settlement that it wouldn’t have been worth
much more than $50,000. The courts determine value in terms
of how much money an individual would have been able to
accumulate if he had lived. In George’s cases he was
unemployed and owned what he had on his back.
"We
plucked the $7 million number out of the air to represent
$1 million for seven generations. We also stipulated that
this money would be held in trust to go towards the defense
of indigenous rights."
Orkin
said that in Green’s case, a similar strategy was used.
"In
this case, if there is any money it will go into a trust
fund for Iroquois traditional and cultural activities."
He
explains that although the exact wording indicated that
only his descendants personally would gain by such a move,
it was worded as such only to streamline the issue and prevent
infighting over who is representing whom.
Orkin
says that Mr. Green is representing himself and his descendants
because that is who the treaty was written for.
The
way Orkin sees it, the treaty speaks of hunting and fishing
rights for individuals, not Nations as such. "Nations
can’t hunt or fish," says Orkin. "Only individual
members of that Nation can. Therefore, that is what Green
is standing for. His personal treaty rights".
"Ironically,
if he should win this case, the entire Iroquois Nations
will win and the Valley will be saved. This is not about
money. Initially we advised a $ billion figure but thought
that the courts would not take that seriously," said
Orkin.
"If
you are going to challenge this in the whiteman’s court,
you must know the language of the court which is why he
has hired non-natives to represent his case for him. The
wording and the $100 million being built into it are tailored
to be understood in a court of law where money speaks. It
basically says, ‘listen up or this could cost you big’."
Newly
elected Hamilton Mayor Larry DiIanni responded to the threatened
injunction by telling television cameras that six of the
nine articles of agreement being negotiated with the Iroquois
Confederacy were "already signed off. Including hunting
and fishing rights".
DiIanni’s
matter of fact statement took many Six Nations residents
and politicians off guard.
"As
far as I know, there has been nothing signed-off,"
said Elected Band Councillor David General. "The way
I understand it, any agreement must be ratified by the Confederacy".
Klippenstein
feels DiIanni is putting a definite spin on statements he
has been making to the media to marginalize the importance
and the gravity of aboriginal rights as they apply to the
Valley.
"I
think Mayor DiIanni is talking out of both sides of his
mouth," said Klippenstein. "On one hand he is
telling people he has an agreement with Six Nations but
on the other hand he’s saying that he doesn’t
because ratification is needed before anything these people,
whoever they are, have signed is seen as binding. Yet, at
the same time, the construction goes ahead anyway. There
is a serious contradiction here. What kind of game is he
playing?"
Paul
Williams, one of the Confederacy’s two man negotiating
team, explained to Teka what the status of the negotiations
are at this time on one of the matters before him.
Private
companies have been hired by the City of Hamilton to cut
the trees along the Red Hill Expressway route and that’s
what they’re doing, even while negotiations over the
final dispensation of the wood continues he said. Williams
indicated he has been instructed by the Confederacy to emphasize
long-term environmental concerns about the future of the
valley over questions of who will receive firewood, for
example.
"We’re
working with Hamilton about what’s happening with the
wood [already cut]," said Williams: "There’s
specific kinds of wood and certain kinds of plants people
are looking at – ironwood for snowsnakes, for example,
has been something people have mentioned. The location of
medicinal plants is another. There are a whole range of
things… more long term than who gets the trees."
Williams
was cautious on the whole topic of what mechanism might
be employed to decide who should get what, however, if an
actual financial benefit might arise from his negotiations.
"Nothing should look like we’re being bought off,
because we’re not," he said. "It might look
like that if piles of wood started showing up around Six
Nations – or anywhere else, for that matter."
And
as far as the whole mandate and level of community support
for these negotiations is concerned, Williams was equally
circumspect.
He
said a majority of Six Nation Confederacy chiefs were present
at an initial longhouse meeting some months ago authorizing
the negotiations and gave their go ahead, although he declined
to cite an exact number. "No one spoke out against
it," Williams said simply to queries about whether
there was a formal consensus, as traditional law requires.
"There
has since been two more Confederacy meetings where the direction
of the talks were re-affirmed," he added, recalling
that only Oneida representation was absent.
According
to one fire keeper who was at that initial meeting however,
the negotiating committee itself was set up as a sham in
the beginning.
"This
negotiating team was set up as a diversion in the first
place," said Carol Bomberry, a Six Nations member who
has been involved with the Red Hill fight from the beginning.
"We suggested it to buy some time until the election
was over. We had hoped that Mr. DiIanni would not get in
but he did."
Bomberry
recalls the meeting.
"It
was at the first meeting with the Confederacy that we approached
the Confederacy council with the idea. The Firekeepers suggested
that Paul (Williams), Brian (Doolittle) and a couple of
others start negotiations with the City to buy some time."
The
other two negotiating team members ended up being Donna
Silversmith and Randy Henry who subsequently resigned a
short time later.
Some
observers feel that the negotiators and, in turn, the Confederacy,
are all being danced around by Hamilton while the bulldozers
roll through the Valley.
"They
can dance all they want," said activist David Heatley.
"Without any negotiating leverage, the City can play
around with them as long they want until the entire Valley
is destroyed. It appears that they (the negotiators) are
acting more like mediators than negotiators. They went into
these negotiations from a point of weakness".
"Andy
Orkin told us in the beginning that he felt they were going
into this situation backwards," said Heatley. "You
don’t back into negotiations with a white flag."
He said "why go into this begging for crumbs when you
already own the cake."
Williams
went into the negotiations with the City of Hamilton with
the well known opinion that the Confederacy would be ‘ill-advised’
to pursue the Red Hill Valley situation on the 1701 Nanfan
treaty.
Dave
General also feels that the Nanfan Treaty could be in danger
if this case does not go well for Green.
But
Klippenstein and Orkin do not agree with Williams and General
assessment.
"The
treaty is strong and has been well received in court to
date," said Klippenstein.
Orkin
agrees.
"Some
people feel that the Nanfan treaty has been beaten up in
the courts and are afraid to expose it again," he said.
"One case saw a hunter in the James Bay region trying
to use the treaty when he wasn’t even in the territory
covered by the Nanfan treaty."
In
that case the court’s ruling went against the man not
because the treaty wasn’t recognized. In fact the opposite
was true. The courts ruled that the treaty did not apply
to him which, in a backhanded way, endorsed the potency
of the treaty itself.
"Besides,"
he points out, "we are not taking the Nanfan into court
to judge its merit or ownership or anything like that. What
is going to court is the question does Mr. Green and his
descendants have the right to hunt and fish in the Red Hill
Valley forever and free of all disturbance and if not, why
not."
"Meanwhile
the City is paving over the treaty. Isn’t that beating
it up worse than taking the issue to court?" he asks.
"Never
asserting your rights for fear of being told you have none
is a good way to lose them."
Orkin
and Klippenstein were initially contacted by Heatley to
get involved and according to Orkin, it was his persistent
pleading and coherent arguments that convinced them that
this is a fight worth taking on.
"In
the end though, it was the coherent arguments that did it,"
said Orkin.
"I
want to publicly thank Dave for bringing Murray and Andy
into the picture," said Carol Bomberry, who has been
working with Green in the preparation of this case.
"The
latest thing to come out of those negotiations is that First
Nations members will not have to pay tolls if they are imposed
on the Red Hill Expressway," laughs Heatley. "The
new Ontario Premier has already said he wants to shut down
the existing toll highways, so what’s the big whoop."
Even
at top speed, the court system is slow however because of
the high stakes involved in an injunction, Mr. Green’s
case is expected to move ahead in a matter of weeks rather
than months.
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