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March 10, 2004
AN INTERVIEW WITH LAWYERS MURRAY KLIPPENSTEIN AND ANDREW ORKIN
Teka newspaper at Six Nations
Murray Klippenstein of Toronto and Andrew Orkin of Hamilton are two well-known lawyers who work in the area of aboriginal, treaty, environmental and international human rights. They are representing an Iroquois citizen in a case to prevent construction of the Red Hill Valley expressway and uphold the Nanfan Treaty of 1701 between the Five Iroquois Nations and the English Crown. The two lawyers are co-counsel to the family of the late Dudley George who was killed at Ipperwash Park in 1995, and have represented many First Nations peoples concerning significant issues in Canada and internationally.
Teka: First of all, what's up with the Larry Green lawsuit?
Klippenstein: Like any major treaty rights case, it's a very big project. Essentially it's ready to proceed further when we receive client instructions to actually do so. As with everything in politics, life and love, timing is everything. There's a lot happening "on the ground" as you well know, and it's always necessary to pick the very best time to take the facts and the case before a judge. The way things are going now, things are getting much clearer about these odd "agreements" between the City and a few representatives of the Haudenosaunee.
Teka: What is your opinion of the ten agreements negotiated by Paul Williams and the City?
Orkin: First of all, I find it hard to understand how on earth citizens of the Iroquois Nations are supposed to have an opinion of what is being done in their name if everything is being kept "under wraps" by the very few people involved. I was leaked some papers some time ago. So like everyone else, I am actually not even sure what the actual content of the alleged "agreements" is!
Teka: On the basis of the papers you have seen, do you think that it is true that the agreements negotiated by Paul Williams do not affect Six Nations treaty rights?
Orkin: This situation is actually not about an expressway, but rather it is about those Treaty rights, all of them. The City of Hamilton's expressway project is paving over those rights, and the City has "discovered" at the last minute that it needs Iroquois permission to do this. Of course the City hopes the agreements affect the 1701 treaty rights! It is clear to me from the papers I have seen that the negotiators on both sides are deliberately trying, after expressway construction has already begun, to negate the 1701 treaty rights while saying at the same time this is not what they doing. That is a very tough act!
Teka: What are the criticisms you have of the ten agreements negotiated by Paul Williams?
Klippenstein: How much time and space do you have? We could go on for a long time! (Laughs.)
Teka: Give us your top three or four concerns.
Orkin: OK. But first, let me state that if the citizens of the Iroquois Nations now want to surrender and extinguish their valuable Nanfan Treaty rights according to their own processes and according to Euro-Canadian laws, that's just fine with me. I'll just go back to my home in Nanfan Treaty territory and be more secure and better-off as a Hamilton ratepayer. But let me ask you this: if you came home one day to find some robbers emptying your last few pieces of furniture and valuables house into a truck, why on earth would you sign a piece of paper for the thieves, just before they drive away, saying that they had your permission to take your stuff? Wouldn't there be better things you could do?
Teka: And your other concerns?
Klippenstein: My major concern is the rights contained in the Nanfan Treaty of 1701. A treaty is not just a piece of paper. A Treaty is another Nation's acknowledgment of your Nations' economic rights, your Nations' rights to lands and resources, and your people's nationhood. The Nanfan Treaty of 1701 is one of Canada's oldest and most important nation-to-nation treaties between "Indians" and the Crown. It contains extremely important and valuable Six Nations economic, territorial and jurisdictional rights, rights that should be being respected and upheld by the Crown, "forever". The Nanfan Treaty rights have never been given up or surrendered. Why start now? Why not leverage the Treaty to protect the environment, or start exercising ownership of your traditional territory?
Teka: Six Nations negotiator Paul Williams has stated that these agreements are about relationships and not economics.
Orkin: Then why do the ten "agreements" give the City Hamilton so many major concessions about the City's economic rights and the Crown's jurisdiction in the Nanfan Treaty territory? Last I heard, Six Nations was not complaining of having too much economic development, too much "own revenue" to provide for its peoples' needs, too much territory, too much employment, or too much of a stake in the regional economy that is in its Nanfan Treaty backyard. The ten "agreements" do a huge amount to acknowledge and strengthen Hamilton's jurisdiction, its need for economic development, its regional infrastructure. But at the same time the "agreements" do little or nothing for the Iroquois Nations and the Iroquois heirs and descendants of the Nanfan Treaty of 1701. If I were an Iroquois citizen, I would read these ten "agreements" and feel I and future generations are being ripped off. But I am not Iroquois. So that is for the Six Nations people to judge for themselves.
Teka: The ten agreements with the City of Hamilton talk about economic development, access to contracts and other benefits for Six Nations, do they not?
Klippenstein: The ten so-called "agreements" state up front that they are not enforceable in court. You don't need to know much about the history of North American non-native governments' promises to the "Indians" over the last 500 years to know that even when big promises are made by a non-native government that are supposedly enforceable in the courts, most of the time it's not worth the paper it's written on. So when a tiny promise is being made by a non-native government and it's agreed in advance that you can't take it to court, you can be pretty sure it's an empty promise. Also, the ten "agreements" state that they are not treaties, so they also do not even get the minimal protection of s. 35 of the Constitution Act! It all looks pretty empty to me.
Teka: Is any part of Paul Williams' ten agreements enforceable in court?
Klippenstein: You bet. The one important thing that the City Hamilton hopes it will get from the ten "agreements" is stated to be enforceable in court. Hamilton needs a surrender of the 1701 Nanfan Treaty, and needs a paper justification of its infringement of the Iroquois Nations' 1701 Treaty rights, by getting a piece of paper saying that it "consulted". We all know that it did not do so genuinely, but the facilitation agreement says it did. This part of the ten "agreements" is enforceable in court.
Teka: What does this mean for the Larry Green lawsuit?
Klippenstein. Not very much, I suspect.
Teka. Why?
Klippenstein: You'll find out in good time, as will the City of Hamilton, when we discuss it in court. (Smiles.)
Teka: Any other concerns?
Orkin: We are very concerned about the precedent for the Nanfan Treaty rights, and in fact for all treaty rights. Hamilton is undertaking a big economic development project for the benefit of the non-native economy, after all the expressway is costing hundreds of millions of dollars. But only after construction is begun (and it all looks like a "done deal") it came to get the Indians' rubber stamp in return for some seriously unenforceable promises. These include promises of such trinkets as a few once-only construction contracts, some wood for lacrosse sticks, and membership of a Valley Board with no guaranteed funding. If the City of Hamilton is allowed to get away with this kind of behaviour, it will set a very bad precedent for the respect of Nanfan and all other treaty rights. Particularly for the Nanfan Treaty, which can used as a powerful lever in respect of many projects in the Nanfan Treaty area, in which Six Nations could and should have an ownership stake.
Teka: Like what projects?
Orkin: For example Highway 407, the mid-peninsular highway, Hamilton airport, etc. etc. The Nanfan Treaty area is huge, and all of the benefit for the last 300 years has being going to others.
Teka: Why did you say "once-only" highway construction contracts?
Orkin: Because, for the City of Hamilton, the expressway has the potential of being a massive cash cow for decades to come. Think about the 407 and the hundreds of millions of dollars being earned every year. The only meaningful benefit Six Nations will get, if any of the City's promises actually materialize, is during the construction phase, and that's not much of a percentage. The expressway's being built on Six Nations Treaty Territory. If it gets built, why shouldn't it be owned, at least in part, by Six Nations?
Teka: I thought you were opponents of the expressway?
Orkin: Our personal views on the expressway are not the issue. We are both long-time advocates of aboriginal and treaty rights, and sustainable development and economic justice for aboriginal peoples. That's what concerns us. If Six Nations are determined to stop the expressway, that's their right under the Nanfan Treaty and we will do whatever we can to help. But if Six Nations is willing to accept the expressway in return for substantial and ongoing economic benefit, then the ten "agreements" are sure going about it the wrong way!
Teka: What about the elected Band Council?
Klippenstein: It's not our business to get involved in Six Nations politics. But we do know that history shows that if a non-native government cannot get what it wants from a particular council, or Chief, or lawyer, it will start looking for another person or group to give it what it wants. This is the way non-native governments have always done things. If they don't like what this leader or that council is saying or not saying, they'll find another one, or even invent another one. If they can't steal your furniture and TV out of the front door, they'll take it out through the back, or even out of the basement window. So of course the City will try every angle.
Teka: Anything else?
Orkin: Two last things. First, these ten "agreements" could have a major potential impact on Six Nations rights, and it is very strange for the negotiators to be saying that they will have no impact. Look around you. Your house is empty. You've been robbed. What use is a piece of paper saying "You haven't been robbed"? Second, these ten "agreements" have some very nice pictures, of Two Row Wampum, of wolves, and of the Great Law. But even these sacred images cannot make a very bad precedent and a give-away of Nanfan Treaty rights look good.
Teka: Thanks.
Both lawyers: Anytime. You're welcome.
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