Canadian Journal of Law and Society / La Revue Canadienne Droit et Société
Drawing on unpublished material on the history of the Culbertson Tract, records obtained through access to information requests, and firsthand knowledge from the community, we trace Mohawk legal and extralegal strategies aimed at reclaiming the Tract to show how Canada legitimizes and manages the continued dispossession of land from the Mohawks of Tyendinaga. Through the criminalization of community members opposing settlement terms under the land claims policy, we conclude that the policy of extinguishment contained in the land claims policy is furthered by policing resistance with the use of security forces on the ground.
S’appuyant sur des documents inédits sur l’histoire du secteur Culbertson, des documents obtenus suite à des demandes d’accès à l’information, et la connaissance de première main de la collectivité, les auteures examinent les stratégies judiciaires et extra-judiciaires Mohawk relativement à la parcelle de Culbertson afin de démontrer comment le Canada gère et rend légitime la dépossession de ce secteur des Mohawks de Tyendinaga. Nous concluons que la politique de l’extinction contenue au sein de la politique sur les revendications territoriales est supportée par la criminalisation des membres de la communauté s’opposant aux protocoles d’ententes et par l’utilisation de forces policières sur le terrain.
1 In this article we use the term “Indigenous” to refer to the original peoples and governments of these lands and the term “Aboriginal” when attached to government policy, e.g. Aboriginal treaty rights or in titles of statutes. Occasionally, we have used the term “First Nations” to describe those peoples formerly described as “Indians,” as the key constituents of the land claims policy.
2 Valverde, Mariana, “Jurisdiction and Scale: Legal ‘Technicalities’ as Resources for Theory,” Social and Legal Studies 18 (2009): 144.
3 Tyendinaga is also known as the Mohawks of the Bay of Quinte (MBQ). These names are used interchangeably throughout the paper.
4 See Zalik, Anna, “Protest-as-Violence in Oilfields: The Contested Representation of Profiteering in Two Extractive Sites,” in Accumulating Insecurity, eds. Feldman, S., Geisler, C., and Menon, G. (Athens: University of Georgia Press, 2001), 264; and Coulthard, Glen, “Subjects of Empire: Indigenous Peoples and the ‘Politics of Recognition’ in Canada,” Contemporary Political Theory 6 (2007): 4.
5 For discussion on the relative location of violence and the law in liberal society, see Blomley, Nicholas, “Law, Property, and the Spaces of Violence: The Frontier, the Survey, and the Grid,” Annals of the Association of American Geographers 93, no. 1 (March 2003): 121–41.
6 On pacification, see Neocleous, Mark, “War as Peace, Peace as Pacification,” Radical Philosophy 159 (2010).
7 Calder et al. v Attorney General of British Columbia  SCR 313.
8 Butt, Emma and Hurley, Mary C., Specific Claims in Canada [Publication No. 2006-18-E] (Ottawa: Library of Parliament, April 1, 2006), 2.
9 Coyle, Michael, Addressing Aboriginal Land and Treaty Rights in Ontario: An Analysis of Past Policies and Options for the Future (Toronto: Ipperwash Inquiry, 2005), 38. http://www.attorneygeneral.jus.gov.on.ca/ inquiries/ipperwash/policy_part/research/pdf/Coyle.pdf.
10 See “Statement made by the Honourable Jean Chrétien, Minister of Indian Affairs and Northern Development on Claims of Indian and Inuit People,” Communiqué (Ottawa: Department of Indian Affairs and Northern Development, August 8, 1973).
11 As of June 13, 2011, the Government of Canada changed the title of the department from INAC to Aboriginal Affairs and Northern Development Canada (AANDC). We use INAC throughout this paper to reflect that the majority of our sources reference INAC.
12 In response, the government issued the 1982 report, Outstanding Business: A Native Claims Policy – Specific Claims (Ottawa: Minister of Supply and Service, 1987).
13 Butt and Hurley, Specific Claims in Canada, 3.
14 House of Commons, The Report of the House of Commons Special Committee on Indian Self-Government, (Ottawa: House of Commons, 1983). [Penner Report]
15 See Butt and Hurley, Specific Claims in Canada, 4.
16 Valaskakis, Gail Guthrie, Indian Country: Essays on Contemporary Native Culture (Waterloo: Wilfrid Laurier University Press, 2005).
17 The ICC Annual Report 2000–2001 was tabled in the House of Commons March 22, 2002, (Ottawa, Indian Claims Commission, 2002).
18 Ontario Ipperwash Inquiry, Report of the Ipperwash Inquiry (Toronto: Ministry of the Attorney General, Queen’s Printer for Ontario, 2007), 79.
19 CTV News Staff, “Ottawa to Give More Power to Land-Claims Panel,” CTV News (May 17, 2007) http://www.ctv.ca/servelet/ArticleNews/ print/CTVNews/20070517 land_claims.
20 Indian and Northern Affairs Canada (INAC), Specific Claims: Justice at Last (Ottawa: Ministry of Public Works and Government Services Canada, 2007), 9–10.
21 2d Sess, 39th Parl, 2007.
22 An Act to Establish the Specific Claims Tribunal and to make Consequential Amendments to Other Acts, SC 2008, c 22.
23 John Ivison, “Tories’ ‘Cultural Shift’ on Native Land Disputes,” National Post (August 6, 2011) http://www.nationalpost.com/opinion/columnists/Tories+Cultural+shift+native+land+disputes/5214844/story.html.
24 INAC, Specific Claims Action Plan–Frequently Asked Questions [Fact Sheet] (2010) http://www.ainc-inac.gc.ca/al/ldc/spc/jal/faq-feng.asp.
25 UBCIC, Nlaka’pamux Nation Tribal Council and Alliance of Tribal Nations, Canada’s Undermining of the Specific Claims Process (Vancouver: UBCIC, 2011), 2.
26 Ibid., 4.
27 Josh Grummett, “Feds Ending Negotiation on Specific Claims,” APTN National News (July 25, 2011) http://www.aptn.ca/pages/news/2011/07/25/sources-feds-ending-negotiation-on-specific-claims/.
28 See Delgamuukw v British Columbia  3 SCR 1010 at para 162–169. The Supreme Court of Canada found that Aboriginal Title may be infringed by the federal or provincial governments provided that (1) the infringement furthered a compelling legislative objective, and (2) that the infringement be consistent with the special fiduciary relationship between the Crown and Aboriginal peoples.
29 Stephen Petrick, “No Special Treatment for Claim,” Timmins Daily Press (June 24, 2008), accessed July 12, 2012, http://www.thedailypress.ca/ArticleDisplay.aspx?archive=true&e=1086429.
30 Denielle Boissoneau-Thunderchild, “The Expectation of Justice,” Indigenous Law Journal 5 (2006), 11.
31 Coulthard, Glen S., “Subjects of Empire: Indigenous Peoples and the ‘Politics of Recognition’ in Canada,” Contemporary Political Theory 6 (2007), 439.
32 Goldstein, Alyosha, “Where the Nation Takes Place: Proprietary Regimes, Antistatism, and U.S. Settler Colonialism,” South Atlantic Quarterly 107 (2008), 833.
33 Boissoneau-Thunderchild, “The Expectation of Justice,” 1.
34 Orkin, Andrew, “When the Law Breaks Down: Aboriginal Peoples in Canada and Governmental Defiance of the Rule of Law,” Osgoode Law Journal 41 (2003): 451.
35 See declaration by Frederick Haldimand, April 7, 1779, (NA “Claus Papers” MG 19 F1 Vol. 2, C-1478, 89–90,).
36 Bourgeois, Donald, “The Six Nations: A Neglected Aspect of Canadian Legal History,” The Canadian Journal of Native Studies 6, no. 2 (1986).
37 See Copy of Deed from the Mississaugas, May 2nd, 1784, OA, (RG1, A-I-l, Vol. 2, 145); see also the Simcoe Deed, No. 3 1/2 (“We . . . Do give and grant . . . that District or Territory of Land being parcel of a certain District lately purchased by Us of the Mississauga Nation”) Canada, Department of Indian Affairs, Indian Treaties and Surrenders, From 1680 to 1890, 2 volumes (Ottawa: Brown Chamberlin, 1891; Toronto: Coles, 1971. Vol. 1,.7–8); see also the Haldimand Papers (15th March 1784), (NAC RG 10, Vol. 10027, C-1060, 166–67).
38 Canada, Department of Indian Affairs, Indian Treaties and Surrenders, From 1680 to 1890, 2 volumes (Ottawa: Brown Chamberlin, 1891; Toronto: Coles, 1971. Vol. 1, 7). For a longer-term account of Iroquoian tenure to that land that preceded Mississauga tenancy, see Joan Holmes and Associates, “Mohawks of Bay of Quinte Resource Harvesting Activities: Final Report,” May 1999, 3–6.
39 Harring, Sidney L., White Man’s Law: Native people in nineteenth century Canadian jurisprudence (Toronto: University of Toronto Press, 1998), 39.
40 Referred to hereafter as Tyendinaga.
41 Deseronto Archives Department, “History,” Town of Deseronto. http://deseronto.ca/community/archives-history/.
42 The Quit Claim Deed was certified by an Indian Officer in Toronto, July 20, 1836.
43 The Mohawk Council Resolution (January 10, 1832) states, in part, “We do hereby Acknowledge remised released and forever Quit Claim And do by these presents remit release and Forever Quit Claim unto the aforesaid John Culbertson his heirs and Assigns forever all That parcel of tract of land owned by Captain John Deserontyon, deceased, as aforesaid and in His Last Will and Testament willed the Under mentioned land to his Grandson John Culbertson as Aforesaid” (NA RG10 Vol. 7540, File 29034-3, C-14, 810).
44 See Tyendinaga Agency, “Correspondence Regarding an Assigned Letter Assumed to be Written to the Indian Affairs Department by Mrs. Jacob Powles Regarding a Land Purchase by her Son-in-Law John Culbertson” (RG10, Indian Affairs, Vol. 2746, Reel C-11273, File 146,801); Tyendinaga Agency, “Enfranchisement–Culbertson, John A.” (RG10, Indian Affairs, Series B-3, Vol. 7255, File 8034-125); and Certificate of recommendation signed by the Sheriff and seventeen Justices of the Peace and others (NA RG10 Vol. 7540, File 29034-3, Reel C-14, 810).
45 See Tyendinaga Agency, “Surrender of a portion of land on the reserve to John Culbertson” (RG 10, Indian Affairs, Vol. 7540, Reel C-14810, File 29, 034–33).
46 See Correspondence between the Department of Indian Affairs, from J. C. Caldwell, Director, DIA, Land and Timber Branch (Ottawa) to G. M. Campbell, Esq. Indian Agent (Deseronto) on June 24, 1933 where Caldwell describes the “nominal sum” which Culbertson obtained for his lands (NA RG10 Vol. 7540, File 29034-3, C-14, 810).
47 Ibid. See also Correspondence between H. J. Eade, Indian Agent (Deseronto) to Departments of Mines and Resources, Indian Affairs Branch (Ottawa) on June 7, 1935 and November 19, 1937 (NA RG10 Vol. 7540, File 29034-3, C-14, 810).
48 See Band Council Minutes, Vol. 6 (June 1935) Tyendinaga Records, Mohawks of the Bay of Quinte.
49 Indian Act, RSC 1952, c 149; Act to amend the Indian Act (designated lands), SC 1988, c 23, s 10.
50 Honourable John Munro, Minister of Indian and Northern Affairs, “Outstanding Business–A Native Claims Policy,” May 13, 1982, Catalogue No. R15-2/1982.
51 Samantha Craggs, “Three Land Claims Means Years of Research,” Belleville Intelligencer (June 23, 2007).
52 Government of Canada quoted in Amnesty International Canada, Police and Government Handling of Tyendinaga Land Protests a Threat to Human Rights (Amnesty International Canada, August 6, 2010), ms in possession of the author.
53 INAC, Specific Claims Action Plan–Frequently Asked Questions (emphasis added).
54 Samantha Craggs, “Land Claim Winding Down,” Belleville Intelligencer (June 2, 2007).
55 INAC, Factsheet–The Culbertson Tract Specific Claim (July 2008) http://www.aadnc-aandc.gc.ca/eng/1100100030437.
57 See Guerin v The Queen,  2 SCR 335, where the Supreme Court of Canada confirmed that the federal government has a special duty to act in the best interests of Indigenous peoples.
58 Naomi Klein, “Not a Mine, A Metaphor,” The Globe and Mail (May 4, 2007). A21.
59 OCAP Radio, Interview with Shawn Brant (March 23, 2007) http://www.radio4all.net.
60 Samantha Craggs, “Heated Confrontation with Mohawks at Development,” Belleville Intelligencer (November 15, 2006).
61 OCAP Radio, Interview with Shawn Brant.
64 CBC News, “Mohawk Protesters Take over Deseronto Quarry,” CBC News (March 23, 2007). http://www.cbc.ca/news/canada/ottawa/story/2007/03/23/deseronto-quarry-070323.html.
66 Naomi Klein, “Not a Mine, A Metaphor.”
68 According to community members, Ministry of Environment staff denied these allegations following a visit on June 28, 2008 to the quarry. Copies of their report could not be obtained by the authors.
69 CBC News, “Ontario Won’t Shut Quarry at Centre of Aboriginal Protests,” CBC News (April 23, 2007) http://www.cbc.ca/news/canada/ottawa/story/2007/04/23/deseronto-070423.html.
70 CBC News, “Native Blockade Organizer Warns of ‘Escalating’ Actions,” CBC News (April 22, 2007) http://www.cbc.ca/news/canada/ottawa/story/2007/04/21/native-blockade.html.
71 CBC News, “Mohawk Protesters Set up Blockade in Eastern Ont. Town,” CBC News, (April 21, 2008) http://www.cbc.ca/canada/ottawa/story/2008/04/21/ot-deseronto-080421.html.
72 See the Chief’s comments in Brock Harrison, “CN Rail Sues Mohawks; Company Launches Suit Over Rail Blockades,” The Kingston Whig-Standard (May 10, 2007).
73 OCAP Radio, Interview with Shawn Brant.
74 Blomley, Nicholas, “Shut the Province Down: First Nations Blockades in British Columbia,” BC Studies 111 (1996), 24.
75 Public Meeting on the Culbertson Tract, Tyendinaga Mohawk Territory, March 19, 2007.
76 Marlene Gillis, “Subject: Request Number CSCS – A-2008-02344 Appeal PA08-314” (Personal correspondence to Stan Jolly, July 31, 2009).
77 Amnesty International Canada, “I was Never so Frightened in my Entire Life”: Excessive and Dangerous Police Response During Mohawk Land Rights Demonstrations on the Culbertson Track, (Amnesty International Canada, May 31, 2011), 26.
78 Alex Neve, “Ontario’s Duty to Ensure Rights are Upheld in Police Response to Indigenous Protest,” (Public letter to the Honourable Rick Bartolucci, Minister of Community Safety and Correctional Services, November 12, 2008).
79 Amnesty International Canada, “I was Never so Frightened in my Entire Life,” 14–21. Amnesty International Canada notes that over a seven-day period in April 2008, seventeen Mohawks were criminally charged with sixty-one counts of mischief (21).
80 For example, Shawn Brant Probation Order, July 22, 2010 OCJ [In possession of the author, Sue Collis]. The probation order includes an attached Plan of Survey, identifying fully one third of Culbertson lands as prohibited to Brant.
81 Joe Warmington, “‘It’s Rural Terrorism,’ Said One Police Officer at the Scene,” Toronto Sun (April 22, 2006) http://www.torontosun.com/news/canada/2006/04/22/1545384-sun.html.
82 Right-wing and white power groups have also been using the language of “terrorism” to describe spokesperson Shawn Brant and the Tyendinaga Mohawks more generally. On the discussion boards of Stormfront.org, the white supremacy group whose slogan is “White Power World Wide,” many referred to the blocking of the railroad as a “terrorist act,” and one contributor stated that the “savage Indians must be controlled.” A citizens group called “Caledonia Wake-Up Call,” established in response to the Six Nations reclamation of the Douglas Creek Estates, has one posting on their website titled “Shawn Brant and the Direct Terrorist Threat to Canada.”
83 RCMP Criminal Intelligence, “Aboriginal and Community Public Safety Situation Report: National Implications,” (May 9, 2007), obtained through ATI request no. GA-3953-3-04344/09 to RCMP.
84 ITAC, “ITAC Threat Assessment: Aboriginal Protests Summer 2007” [7/30] (May 11, 2007), “Update 1” [07/33] (May 25, 2007), “Update 2” [07/37] (June 7, 2007), “Update 3” [07/41] (June 14, 2007), “Update 4” [07/46] (June 21, 2007), obtained through ATI request no. 117-2008-123 to CSIS. ITAC, “ITAC Threat Assessment: Rail blockade in Deseronto, Ontario” [7/44] (April 20, 2007), obtained through informal ATI request no. AI-2009-00443 (copy of request 2007-00583) to DND. See also Jeffrey Monaghan and Kevin Walby, “Making up ‘Terror Identities’: Security Intelligence, Canada’s Integrated Threat Assessment Centre and Social Movement Suppression,” Policing & Society (2011) DOI:10.1080/10439463.2011.605131.
85 CFNCIU, Counter-intelligence information report (December 6, 2006), obtained through ATI request no. AI-2009-00442 (copy of request 2007000583) to the DND.
86 Russell Diablo, “Canada’s War on First Nations” (October 29, 2009), Indigenous Sovereignty Week, Ottawa. See also Kim Peterson, “Land & Jail: Ipperwash, Official Racism and the Future of Ontario,” The Dominion (September 23, 2008) http://www.dominionpaper/ca/articles/2040. Peterson describes the statements Fantino made to Brant as revealed by transcripts of the OPP wiretaps: “I don’t wanna get on your bad side but you’re gonna force me to do . . . everything I can within your community and everywhere else to destroy your . . . reputation”; and, “Your whole world’s gonna come crashing down on this issue.”
87 Fleras, Augie and Elliott, Jean, Unequal Relations: An Introduction to Race and Ethnic Dynamics in Canada, 4th ed. (Toronto: Prentice Hall, 2003), 199.
88 Penalver, Eduardo Moises and Katyal, Sonia K., “Property Outlaws,” University of Pennsylvania Law Review 155 (2007): 1095.
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