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Representative Capacity, Surrender, and Notice to Mohawk Posterity

By

Benjamin

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Letter of 20 August 2026 to the Six Nations of the Grand River Band of Indians and its counsel of record, written after the community engagement session of 19 August 2026 on the proposed Birkett Lane development. Published as sent.

Date: 20 August 2026
To: Six Nations of the Grand River Band of Indians
Plaintiff in Court File No. CV-18-594281-0000 (Toronto), formerly 406/95 (Brantford)
Attention: Lonny Bomberry, Director of Lands and Resources
Six Nations of the Grand River Elected Council, 2498 Chiefswood Road, Ohsweken
And to: Blake, Cassels & Graydon LLP, counsel of record for the Plaintiff
Attention: Max Shapiro and Iris Antonios
And to: Any person or body asserting authority to represent, compromise, or settle the interest of Mohawk Loyalist posterity under the Haldimand Proclamation of 1784
Re: Representative capacity, surrender, and notice to Mohawk posterity under the Haldimand Proclamation of 1784

Lonny,

I attended the virtual community engagement session of 19 August 2026 on the proposed Birkett Lane development, and I put questions to the panel during it. This letter follows from your answers there and from the litigation update of the preceding week. I have worked from the recording. Where I quote you I quote the transcript, and if any quotation is inaccurate I will correct it on being told.

I address this letter to the Band as plaintiff, to you as the officer who answered, and to counsel of record, and I should say why. You told the session that the Lands and Resources Department and the CAP team are employees of the elected Council and do not make political decisions. I accept that. What I ask for below — a delegation, a surrender, a record of notice, and an undertaking — are not matters within a director’s gift, and it would be unfair to press you personally for them. They are decisions for the Council. And because the subject matter touches an action now set for trial, counsel of record should have this at the same time as the client rather than after it.

You said that the elected Council represents all of the Six Nations, and that this rests on the Haldimand Proclamation naming “the Mohawks and others of the Six Nations,” on Isaac v. Davey, and on subsequent decisions. You also said several other things that evening which bear directly on the questions I have been putting to your office since 2022, and which I take up below.

What you described is a membership fact. What I have asked about is a representative mandate. A person may be counted within Six Nations and still hold an interest the Council has no authority to speak for, compromise, or settle. The question is not who belongs. It is who is competent to represent a particular interest, and by what instrument that competence was conferred.

I — YOUR OWN WORDS

On 9 September 2022, answering my inquiry about 110 Gilkison Street, you wrote:

“The Elected Council had no interest in the Gilkenson property… The property should have been exempt from taxes because the repeal did not effect lands held in trust before 1999. I have no knowledge as to how the property was lost.”

That was Six Nations’ own retained counsel confirming in writing that the Elected Council had no interest in a Mohawk-held trust property, and that its taxation was improper. I accept it as given in good faith. I cannot reconcile it with what you have now told me. If all Mohawks are part of Six Nations, the Council had an interest. If it had none, there is a Mohawk-held interest the Council does not carry. Both cannot be true. The property was sold while that question went unanswered.

II — THE COUNCIL’S OWN INSTRUMENT

In October 1995 the Council put the opposite of your position in writing, in a document it drafted, defined, and signed.

Band Council Resolution No. 17 of 10 October 1995 resolved that the Council would “assist and support the traditional people morally and financially up to the sum of FIVE THOUSAND DOLLARS and 00 CENTS ($5,000.00) to conduct historical and legal research for the preparation of litigation against the Federal Government on the charge of genocide against Native People of Canada, to be filed with the World Court.”

Two days later the Council executed the Memorandum of Agreement that resolution funded. Section 2.1 ties the two together expressly: the Council undertook to disseminate the Resolution of 10 October 1995 and to invite Band Councils across the country to participate “in support of the Traditional People.”

The Agreement then defines both terms.

Section 4.1(d): ““Traditional People” means those persons who practise Heritage-based decision making processes which were in use prior to the arrival of the White People, and which are in use today.”

Section 4.1(c): ““Band Councils” means any agency enacted under section 74 (1) Indian Act R.S.C. 1985.”

And in the recital naming the parties, the Council describes itself as “an agency enacted through Indian Act section 74 (1) R.S.C. 1985.”

So the Agreement places the Council in one defined class and the counterparty in another. It does not describe the Traditional People as a constituency within the Council, a committee of it, or a group of its members. It describes them as a separate party, contracting at arm’s length, whom Band Councils were to be invited to support. You cannot support a group you are.

The party so defined is named in the Agreement’s first line: the Mohawk People of the Americas, having their offices at the Grand River Territory, signing by clan representatives of the Turtle, Wolf and Bear. The traditional people the Council resolved to fund were the Mohawk People.

This is not my characterisation, nor an inference from conduct. It is the Council’s own instrument, on its own terms, describing itself as a statutory agency and the Mohawk People as a distinct people it was undertaking to support.

III — THE SEQUENCE

The dates matter.

On 7 March 1995 the Council filed its Statement of Claim against Canada and Ontario over the Haldimand Tract. That is the action now set for trial in October 2026.

Seven months later came Resolution No. 17 and the Memorandum of Agreement. The Council was already the plaintiff when it sat down to contract with the Mohawk People as a separate party. It cannot be said the Agreement predated any thinking about the claim.

By the same Resolution the Council further resolved:

“That continued discussion take place between the Six Nations Council and Six Nations people through delegations or other means for internal dispute resolution and that the parties agree to bargain in good faith and make every effort to resolve internal disputes rather than create division by initiating legal action through the Canadian Court system.”

In October 1995 the Council therefore held four positions at once: plaintiff in a Canadian court over the Tract; funder of a Mohawk-led genocide filing to the World Court against the same Crown; contracting counterparty to the Mohawk People as a distinct party; and author of a resolution committing itself to resolve internal disputes without initiating legal action through the Canadian courts.

The character of the remedy matters, and I do not think it has been noticed. What Resolution No. 17 funded was research for the preparation of litigation against the Federal Government on the charge of genocide, to be filed with the World Court. That is an international proceeding, criminal in character, against the Crown in right of Canada. It is not an accounting. It is not a claim for compensation. It is not brought in a Canadian court, and it does not ask a Canadian judge to value what was lost.

That is what the Mohawk People were engaged for, and it is what the Council resolved to support. In the same instrument the Council undertook to resolve internal disputes by delegation and good faith rather than by initiating legal action through the Canadian court system. Whatever trust passed between the two parties in October 1995 was given on that footing: an international remedy, pursued jointly, outside the courts of the state complained of.

The action now before the Ontario Superior Court is the opposite of that in every particular. It is domestic, civil, brought in a Canadian court, framed as an accounting, and directed at a sum of money. Whatever the merits of that choice, it is not the proceeding for which Mohawk cooperation was obtained, and no one has ever asked the Mohawk whether the substitution was acceptable.

That is the point I would ask you to consider most carefully. It is not simply that the Council contracted with a separate party in 1995. It is that the remedy the Council now pursues, and which it says covers the whole of the Haldimand Tract including these parcels, is a different remedy in a different forum against a different measure of relief from the one the Mohawk People were brought into.

Thirty years later that same action is the vehicle through which the Council now purports to represent Mohawk posterity. I am asking how the interest the Council treated in 1995 as belonging to a separate party it had to contract with became, by 2026, an interest the Council may compromise on that party’s behalf.

IV — ISAAC v. DAVEY, AND THE TWO INSTRUMENTS

I do not think Isaac v. Davey bears the weight you place on it.

At trial, Osler J. of the Ontario High Court found that the Six Nations had been granted ownership in fee simple by the Simcoe Patent of 1793. Because the lands were held in fee simple, they did not answer the Indian Act’s own definition of a reserve, and section 93 could not apply. The Elected Council’s action was dismissed in its entirety.

Arnup J.A. reversed on one ground only: that the Simcoe Patent vested “merely a personal and usufructuary right” rather than fee simple. The case comment in the McGill Law Journal is blunt about the method:

“For the Court to find a personal and usufructuary interest in such a deed, where none exists at common law, transcends the point of merely interpreting the language of the Patent to the extent that it approaches a complete rewriting of the document by the Court.”

That is the whole of it. The dispute was about the character of the interest the Simcoe Patent conveyed. Neither court found that the Elected Council was, or could only be, the legitimate government of Grand River. Neither addressed representative capacity. Neither considered who holds the Haldimand posterity interest, which was not before them. A holding on land tenure is not a grant of authority to represent.

And both courts treated the Simcoe Patent as valid and operative, arguing only about what its words meant. Neither asked whether the Grand River Mohawk had ever accepted it. They had not. Simcoe’s own letter to Lord Dorchester of 22 December 1795 records the refusal.

The Council cannot hold both instruments

Isaac v. Davey rests entirely on the Simcoe Patent. That is the instrument Osler J. construed and the instrument Arnup J.A. reconstrued. Remove it and nothing of the case remains. So when the Council points to Isaac v. Davey for its recognized status, it is pointing to the Simcoe Patent.

But the Council’s Statement of Claim pleads the Haldimand Proclamation of 1784. Canada’s ministerial briefing records the claim as concerning approximately 950,000 acres, with roughly 900,000 said to have been improperly surrendered. Those are Haldimand figures. They describe six miles on either side of the Grand River from its mouth to its source.

The Simcoe Patent does not describe that tract. Ontario’s own published account puts it plainly: the Haldimand Tract runs from the river’s mouth to its source, and “the Simcoe Patent outlined a smaller area of land that did not extend to the source of the Grand River.”

So the Council relies on one instrument for its standing and a different, larger instrument for its acreage. Only one of them can be operative.

If the Simcoe Patent is valid, it is the operative grant. It was issued nine years after the Proclamation, over the same subject matter, on different terms, by the Crown in right of the new Province of Upper Canada. An instrument of that kind, if accepted, supersedes what came before it.

If the Haldimand Proclamation is operative, then the Patent did not supersede it, and it did not because it was refused. A grant offered and refused novates nothing.

I note the conflation is not confined to your Council. Canada’s own ministerial briefing of November 2025 refers to lands “granted by the British to the Mohawks “and their allies” by the 1793 Haldimand Proclamation.” There is no 1793 Haldimand Proclamation. The Proclamation is of 1784; 1793 is the Patent. The federal Crown’s briefing to its own Minister merges the two into an instrument that never existed, and that briefing is being carried toward a trial.

And if the Council chooses Haldimand

Suppose the Council abandons the Patent and rests entirely on the Proclamation. That is the more defensible position, and it is ours. But it does not assist the Council, because of what the Proclamation says.

The operative recital reads that His Majesty was pleased to direct “that in consideration of the early attachment to his cause manifested by the Mohawk Indians, and of the loss of their settlement which they thereby sustained,” a convenient tract of land under his protection should be chosen “as a safe and comfortable retreat for them and others of the Six Nations.”

Read the consideration. It is the attachment of the Mohawk Indians and the loss sustained by the Mohawk Indians. That is the causa of the grant, stated twice, Mohawk in both instances. No other nation’s attachment is recited. No other nation’s loss is recited.

Then read who takes. The tract is a retreat “for them” — the Mohawk, whose attachment and loss furnished the consideration — “and others of the Six Nations.” The others are appended. They are admitted to the retreat; they are not the reason for it. Elsewhere in the instrument chain the same class appears as such other of the Five Nations, which is the language of a party admitted alongside a principal, not of a co-grantee standing in the principal’s shoes.

That is not a modern reading imposed for this argument. It was understood at the time and acted upon.

In 1803 the Senecas and other non-resident Iroquois nations sought to use the Confederacy to claim a voice in the disposition of Grand River affairs. The attempt was refused, on the ground that the confederate league “had never before been construed as clothing them with any such rights or powers.” And William L. Stone, writing in 1838 within living memory of the events and the men who took part in them, records of the same year:

“The grant of the Grand River territory had been notoriously made for the exclusive benefit of the Mohawk nation.”

Notoriously. Not arguably, not on one view, not according to the Mohawk. Universally known and not in dispute, within twenty years of the grant.

That is also why the Simcoe Patent was refused, and the reason is the whole point. It was not refused because it was smaller, though it was smaller. It was refused because it was not for the exclusive benefit of the Mohawk. It named Six Nations as the grantee. It took a class the Proclamation had appended and installed it as principal. It converted such other into the party itself.

That is precisely what the Council now asks a court to accept, and precisely what the Mohawk refused in 1793.

The Council is not “them” in the Proclamation’s sentence. On its own words the Council stands among the others. And a body that stands among the others cannot represent, compromise, or settle the interest of the principal without a delegation from the principal.

Which instrument the Council chooses determines its own capacity

I have left the most consequential part until last, because it is not an argument about land. It is an argument about what the Council is.

Go back to what Osler J. actually found at trial. He found that the Simcoe Patent granted fee simple. Because the lands were held in fee simple, they did not answer the Indian Act’s definition of a reserve. Because they were not a reserve, section 93 could not apply to them. And because the Act could not reach the lands, the Elected Council’s action failed. It was dismissed in its entirety, in favour of the defendants.

That was the law until Arnup J.A. reversed it. And he reversed it by one move only: reconstruing the Simcoe Patent from fee simple into a personal and usufructuary right. That reconstruction is what brought the lands back within the definition of a reserve. That is what made the Indian Act apply to them. And that is what left standing the elected system imposed in 1924, together with the section 74(1) authority under which your Council sits today.

So the Simcoe Patent is not one authority among several available to the Council. It is the single hinge on which the Indian Act reaches these lands at all. Everything the Council is, as a statutory body with capacity to sue, rests on Arnup J.A.’s reading of that one document.

Now put that beside the choice.

Keep the Simcoe Patent, and the Council keeps its capacity, but the grant is the Patent’s grant: a smaller tract that does not reach the source of the river, on the Patent’s terms, and the Haldimand Proclamation it pleads is spent. The acreage claimed is not the acreage granted.

Drop the Simcoe Patent and rest on the Haldimand Proclamation, and Arnup J.A.’s reconstruction has nothing left to operate on. Osler J.’s finding is what remains: these are not reserve lands, the Indian Act does not reach them, and the statutory foundation of the elected Council goes with it. The Council would be asserting a treaty interest while dismantling the only ruling that gives it standing to assert anything.

And it does not stop at capacity. Section 88 of the Indian Act, which carries provincial laws of general application onto these lands, is expressly subject to the terms of any treaty. If the Haldimand Proclamation is a treaty, as the Council pleads it is, then its terms govern, and the bridge by which provincial legislation arrives is subject to them. The Council cannot plead Haldimand as a treaty for the purposes of compensation and leave section 88 undisturbed for every other purpose.

There is a further difficulty on that branch, and it returns us to where this letter began. A body claiming under the Proclamation claims as, or on behalf of, Mohawk posterity. That is a class defined by descent from the Mohawk of the named villages. It is not the band list. It is not coextensive with the band list, and it never has been. The Council would have to establish, before it could claim, that the persons it represents are the posterity the Proclamation names — which is the very question it has declined to engage since 2022.

Both instruments cannot be operative. Whichever the Council selects determines its own legal capacity, and neither selection leaves it where it presently claims to stand. That is not a trap I have set. It is the position as it has stood since 1793, when the Mohawk refused a patent that named Six Nations in their place.

I would be glad to be shown where I have this wrong.

V — WHAT WAS SAID ON 19 AUGUST 2026

I set out below what was said at the engagement session, because it answers several of my questions directly and because it does not sit easily with the case now before the Court.

On the Proclamation not being a treaty

Asked about the Haldimand Proclamation, you said:

“There isn’t actually any treaty that was made with the chiefs at the time. It was simply a proclamation on an understanding.”

And:

“There is no actual treaty to speak of as, as you know when you think of you sign between two more or less equal partners. This was not done. It was simply a proclamation.”

You then distinguished the Nanfan Treaty of 1701, of which you said copies of the original exist, as “a treaty between two independent parties, uh, making promises to each other” — the thing the Haldimand Proclamation, on your account, is not.

I record this because Canada’s ministerial briefing states the Council’s pleading as follows: “The Six Nations claim the Haldimand Proclamation is a s.35 Treaty that created a reserve and imposed related Crown duties.” The Council’s Director of Lands and Resources told the community on 19 August that it is not a treaty in the ordinary sense and that no treaty was made. Those two positions are being maintained at the same time, in the same month, by the same office.

I do not raise it to embarrass anyone. I raise it because my objection in Part VIII below is that the section 35 characterisation is wrong and that it converts an individually heritable interest into a communal one. Your own account of the instrument supports the first half of that objection.

The Council has already resolved the question by proclamation

I would not press this if it were only a difference between us. It is not. Your own Council has decided it, and decided it the other way, within the last twelve months.

On 9 September 2025 the 59th Elected Council of Six Nations of the Grand River resolved, and announced to the community on 8 October 2025, that from that day forward into perpetuity each 25 October, described as “the date of the Haldimand Treaty,” shall be celebrated and commemorated as a Sovereign Holiday. October 25th was declared a sovereign holiday for Six Nations employees “to honour and recognize the importance of the Haldimand Treaty,” and community organisations, local businesses, local governments, government agencies, institutions and civil services were invited to join in recognising Haldimand Treaty Day.

The Council did not stop at naming it. In the operative words of its own proclamation it:

“reaffirms this Haldimand Treaty, is between the Six Nations of Grand River and the British Crown and the Crown’s agents and successors”

That is not loose usage in a press release. It is a resolution of the Council, adopted in council, proclaimed to the community and to the surrounding municipalities, which names the instrument a treaty, reaffirms it as a treaty, and identifies its parties.

Eleven months later the Council’s Director of Lands and Resources told a community engagement session that there is no actual treaty to speak of and that it was simply a proclamation.

I do not think both of those can be the Council’s position. And the difficulty is not merely presentational, because each version carries consequences the other does not. If it is a treaty, section 88 of the Indian Act is subject to its terms, and the questions I raise in Part VIII arise immediately. If it is not a treaty, the Council’s pleading that it is a section 35 treaty creating a reserve cannot stand, and neither can the Sovereign Holiday resolution as drafted.

On this, for what it is worth, I am closer to the Council’s proclamation than to the answer given on 19 August. A treaty was made. It was the Pledge of 1779, given to the Mohawk of the three named villages before they lost their country, and the Proclamation of 25 October 1784 is the instrument by which the Crown performed it. That is why the Proclamation recites consideration already furnished rather than promises being exchanged, and it is why the Council is right to mark the date.

The same question, asked in the United Kingdom Parliament in 1922

On 6 March 1922 Lord H. Cavendish-Bentinck put this question to the House of Commons:

“Seeing that in 1784 a formal Treaty was entered into between the British Government and the Six-Nations Tribe, that the validity of the Treaty has been repeatedly recognised, and that even so recently as 1909 the Canadian Government still held that this Treaty was operative, he would say when and by what parties this formal Treaty was denounced.”

Winston Churchill, replying for the Government, spoke of “the so-called Haldimand Treaty of 1784” and of “the lands set apart by that document,” and said the question that had arisen was whether the Six Nations occupying those lands were amenable to certain Canadian legislation, which was a matter for the Government and Parliament of Canada.

He named no date of denunciation, no party, and no instrument. The question when the Treaty was denounced was asked directly in the Parliament of the United Kingdom and was left unanswered on the record. It has not been answered since, and it is the same question I have put to your office and to six offices of the Crown.

So the position is this. The Parliament of the United Kingdom was told in 1922 that a formal treaty was made and was never told when it ended. The Canadian Government held it operative as recently as 1909. Your Council reaffirmed it as a treaty by proclamation in 2025 and made the date a sovereign holiday. And your Council’s pleading before the Ontario Superior Court is that it is a section 35 treaty.

Against all of that stands one answer given at a community engagement session on 19 August. I would ask which of the two is the Council’s position, because the Court will ask, and because I cannot frame my own objection properly until I know.

On “others of the Six Nations”

Asked what makes the Council certain that Six Nations holds any interest under the Proclamation, you answered:

“We just looked at the Haldimand Proclamation. It says the Mohawks and others of the Six Nations. So, uh, it was going towards that point where, uh, we’re all grouped as, uh, one body together, including the Mohawks and others of Six Nations.”

And:

“So that’s how we determined that it’s not exclusively the Mohawks, although the Mohawks are very important. But it’s also others of Six Nations.”

I am grateful for the candour of that answer, because it identifies exactly where we differ. You read the two named classes as grouped into one body. I say the instrument distinguishes them and that the distinction is load-bearing. Grouping is an interpretive step. It is not what the instrument says, and on your own answer it is a conclusion reached by reading, not a fact found in the text.

I also asked, in terms, what “such other” means and whether it means third party. The reply offered was that the phrase was drafting shorthand, used because it would have been tedious to name every other nation. I understand why that reading is attractive, and I do not doubt it was offered in good faith. But it does not survive the instrument.

If the phrase were mere shorthand, the Proclamation would recite the attachment and loss of all the nations it intended to benefit. It does not. It recites the attachment of the Mohawk Indians and the loss sustained by the Mohawk Indians, and nothing else, and then provides a retreat for them and for others. A drafter economising on names does not also economise on the consideration, because the consideration is what makes the grant good.

Nor does the shorthand reading explain 1803, when the Confederacy was refused a voice in Grand River affairs on the ground that the league “had never before been construed as clothing them with any such rights or powers,” or Stone’s record that the grant “had been notoriously made for the exclusive benefit of the Mohawk nation.” Those are not readings of a phrase. They are records of the distinction being applied.

And it does not explain why the Simcoe Patent was refused in 1793. The Patent removed the distinction and named Six Nations as grantee. If the distinction were nothing but shorthand, its removal would have been an improvement in drafting, and Joseph Brant would have signed. He did not.

On Isaac v. Davey

You said the elected Council “was later confirmed that they are the lawful government in the case of Isaac and Davies by the Supreme Court of Canada in nineteen seventy-seven.”

That is not the court. Isaac v. Davey was decided at the Ontario High Court by Osler J. and reversed at the Ontario Court of Appeal by Arnup J.A. It was not a decision of the Supreme Court of Canada. I raise it not as a debating point but because the difference matters to the weight the case can carry, and because Part IV of this letter sets out what those two courts actually decided and what they did not.

On notice to the descendants

I asked whether you had spoken to the actual Mohawk posterity and by what process they were contacted. The panel first took the question to be about the Mohawk Workers. On clarification that I meant the Mohawk descendants, and after I supplied the further clarification that the Proclamation names the Mohawk and their posterity and that the Pledge of 1779 named the three Mohawk villages, the answer given was:

“Mohawks, of course, fall under the community engagement process. Um, you know, it is, of course, not Mohawk targeted. It’s geared to, uh, you know, all, uh, all Six Nations.”

With an offer to hear any recommendation as to an approach or organisation to speak with. I accept that offer in the spirit it was made, and I answer it in Part XI below.

But I record the substance: asked how Mohawk posterity had been notified, the answer was that the process is not directed to them as such, but to all Six Nations. That is the answer to my third question, given publicly, and it is the difficulty in a sentence. A process geared to band membership does not reach a class defined by descent, and the two are not the same class.

So that there is no dispute about what was asked, these were my words in the session:

“Have you talked to the actual Mohawk posterity and what process did you use to contact them?”

“So just registered members that are designated, or all descendants that may not be eligible to register to the band? So all descendants. How will you contact them all?”

That second question is the one I would ask you to sit with, because it contains the whole difficulty and it has not been answered. There are persons descended from the Mohawk of the three named villages who are not eligible to register to the band, and who therefore cannot appear on any list the Council works from. The Proclamation does not exclude them. The Indian Act registration scheme does, and its rules for transmitting entitlement by descent were declared inoperative in Descheneaux for that very reason.

The question is not rhetorical and it is not hostile. How will you contact them all? If the answer is that the Council has no means of doing so, that is an answer, and it is the one my fourth request is directed at.

On the Charest agreement, and who the developers bought from

This matters more than any other exchange that evening, and I set it out in sequence.

Asked about the previous deal or memorandum of understanding with Steve Charest, and whether the Council had a copy or had been involved, you said:

“No, we weren’t involved with that deal. That was strictly, uh, a deal that was made between Steve Charest and the Mohawk Workers. Uh, uh, it didn’t involve the elected council.”

You added that the Council does not know all the benefits received under it, but that land was bought on Sixth Line just across the border on the other side of the reserve, and that this land “was given to, uh, the, the Mohawk Workers or, yeah, it was put in a number of people as names in trust.” And then: “we don’t know the details of that arrangement. That was, uh, strictly between, uh, Steve Charest and the Mohawk Workers at the time.”

I wrote in the session, in response: “I have a copy of that MOU if the council would like to review it.”

Then, in the closing minutes, as one of the last two questions taken before the session ended, a member of the panel was asked who the developer paid to obtain the land. The answer was:

“I don’t know off top, but I think we previously, uh, discussed, um, a- an agreement with the, uh, Mohawk workers and, uh, Steve Charest. Um, I, I assume, uh, that would’ve been one of the parties they would’ve purchased the land from.”

I ask you to read those two answers together, because taken together they describe the chain of title to the lands your Council is being asked to approve an agreement over.

On the Council’s own account: the developers most likely acquired these lands through an arrangement the Council was not party to, whose terms the Council does not know, made with a body that is not the Council, under which land was placed in trust for persons the Council cannot identify. And that account was given not as a considered position but as an assumption, from memory, in the last two minutes of a community engagement session, by a panel member who began the answer by saying he did not know.

I am not criticising the answer. It was candid, and candour is worth more here than confidence would have been. But it is an extraordinary thing to be uncertain about on the eve of a decision, and it is precisely the difficulty I have been putting to your office since 2022.

The two counterparties, and the question of transfer

The letter of 14 September 2015 from Bill Squire to Kingwood Homes refers to a Partnership Agreement of 4 June 2013 made between Guswhenta Holdings Limited and Kahyonhakta’t ye ne Ka’nyenkeha:ka, the Mohawks of the Grand River, together with a Memorandum of Agreement of 3 June 2014.

On 19 August you described a memorandum of understanding made between Steve Charest and the Mohawk Workers.

Those are not the same name. The 2013 agreement names a body styled the Mohawks of the Grand River. Your account names the Mohawk Workers. They may be the same body under two descriptions, or they may be two bodies. I do not know, and nothing said on 19 August resolves it. I would ask you to tell me which, because the answer determines who is said to have consented.

If they are two bodies, then at least two separate Mohawk-styled counterparties have purported to deal with these lands, neither of them your Council and neither of them this office. If they are one body under two names, then a body describing itself as the Mohawks of the Grand River contracted over the Haldimand tract, and the question of what authorised it to do so has never been asked in public.

But the more important question is the one that follows, and I would ask your office to consider it carefully before the report goes to Council. By what mechanism did any of that transfer an interest in the land?

Guswhenta Holdings Limited is a limited company. An agreement between a limited company and an unincorporated association, whatever its terms, is a contract. A contract binds the parties to it. It does not convey a Crown-derived interest in land, and it does not discharge one.

Land was said to have been bought on Sixth Line and placed in the names of a number of people in trust. That is a private trust arrangement between identified individuals. It may be perfectly proper as between them. It does not convey anything belonging to the Mohawk posterity, because those individuals never held the posterity interest to convey.

This is the same point I make in Part IX of this letter, arriving from a different direction. The Haldimand interest, on our case, is a subsisting encumbrance arising from a Crown instrument, and the only thing that discharges it is a surrender taken from the people in whom it is vested. Not a sale. Not a lease. Not a patent. And not a partnership agreement with a development company, however many parties signed it and whatever benefits passed under it.

This office’s position on the Mohawk Workers

I should state my own position plainly rather than leave it to be inferred, and I state it in the same terms in which I have stated it about your Council, about the Haudenosaunee Development Institute, and about the Haudenosaunee Confederacy Chiefs Council.

The Mohawk Workers are not the Mohawk Nation of Grand River. They do not hold the Haldimand posterity interest, and they have no authority to represent, compromise, consent on behalf of, or convey anything belonging to the Mohawk Nation of Grand River or to the posterity of the Mohawk of Canajoharie, Tikondarago and Aughquaga.

I say that without hostility toward any person associated with them. I have no quarrel with individuals doing what they believe to be right for their families and their community, and I do not question anyone’s Mohawk descent by saying it. Descent is not the issue. Mandate is.

The test I apply to them is the same one I have asked you to meet in this letter, and it is the only test I know how to apply consistently. By what instrument was the authority conferred, and by whom? If the Mohawk Workers hold a delegation from the Mohawk of Grand River or from their posterity, authorising them to deal with lands held under the Haldimand Proclamation, let it be produced and I will accept it and say so. If they hold no such instrument, then agreements made with them do not bind the posterity interest, however honourably they may have been entered into on either side.

This is not a new position taken for the purposes of this development. On 24 September 2022 I wrote, and it was entered before Justice Henry as Exhibit No. 2 in March 2023, that the Haudenosaunee Development Institute and the Haudenosaunee Confederacy Chiefs Council, inclusive of Chiefs and Clanmothers, hold no legal interest or right to represent the Haldimand Proclamation interests or the Heirs. I have said the same to your Council since 2022. I say it now of the Mohawk Workers. The objection is not directed at any particular body. It is directed at any body that speaks for this interest without having been given it.

That is why the transfer question matters more than the authority question. Even if the Mohawk Workers held every authority they have ever been said to hold, a partnership agreement with a development company would still not convey a Crown-derived interest, and a private trust in the names of individuals would still not discharge an encumbrance. But the authority question comes first, and it has never been answered by anyone.

If an instrument exists that I have not seen, from any of these bodies, produce it and I will correct the record without argument.

Four questions on the chain of title

I ask the following, and I ask them as much for the Council’s protection as for ours:

  1. What are the terms of the 2013 Partnership Agreement and the 2014 Memorandum of Agreement, and are they in the Council’s possession?
  2. Is Kahyonhakta’t ye ne Ka’nyenkeha:ka, as named in the 2013 agreement, the same body as the Mohawk Workers you described on 19 August?
  3. By what instrument did either body claim authority to deal with lands within the Haldimand tract?
  4. By what mechanism is any interest in those lands said to have passed, given that a contract between private parties cannot convey what neither of them held?

If there are answers to those questions, the Council should have them before it approves anything, and so should the developers, and so should every purchaser who buys a unit on those hundred acres. If there are not, then what is being approved is an agreement layered on top of a transaction whose foundation nobody has examined.

Before the report goes to Council, I would ask that the chain of title be obtained. Not an assumption offered from memory at the end of a long evening, but the actual conveyances, and the actual instrument by which whoever conveyed claimed the authority to do so. If that authority holds, my objection to these parcels falls away. If it does not, the Council is about to approve an agreement resting on a consent nobody can locate.

My offer stands and I renew it in writing. I hold a copy of that memorandum, and I will provide it, together with whatever else this office holds bearing on the 2013 and 2014 instruments, without condition and without asking anything in return. I would rather the Council had the documents than that I kept them as an argument.

On disclosure to purchasers

Asked whether buyers are informed that the lands are unsettled, the answer given was that to the best of the panel’s understanding, buyers on the tract are not so informed, by reason of third-party liability.

I note that against Kingspan, in which this City was the defendant, in which the Court rejected “satisfy yourself” as sufficient disclosure, and in which it was left open whether such a claim is a latent defect on title. Purchasers within the tract are, on the Council’s own account, not being told. That bears on Part X below.

On what the litigation covers

It was said that all of the land in the Haldimand Tract is included in the litigation, that these parcels are inside the Tract and therefore included, and that the claim is for breach of fiduciary duty and “accounting for everything that happened between the lands and the money.”

That is the clearest statement I have of why this matters. The action is an accounting, it covers the whole Tract, and it covers these lands. Which returns me to Part IX: an accounting presupposes a surrender, and no surrender was ever taken from the Mohawk.

On the Global Solutions booklet

It was said that an updated version of the booklet known as Global Solutions will be issued. I record that this office holds research, published in 2022, tracing the omission of the Mohawk from land acknowledgments across 121 catalogued examples to that booklet as their common source. That research was transmitted to the full Council on 9 June 2022 and mail tracking confirms it was opened. If the booklet is being revised, this office asks that the omission be corrected in the revision, and I am willing to assist with that at no cost.

VI — OBJECTIONS ALREADY BEFORE YOU

This is not new. Between 15 May and 6 July 2022 I put the Council’s natural capacity to the full elected membership, copied to the federal Minister; one of your colleagues answered that she could not resolve whether she was Oneida or Mohawk under the Act’s own rules, and concluded “Confusing for sure.” On 9 June and 6 July 2022 I transmitted the Legal Posterity and Land Acknowledgments studies to the full Council; mail tracking confirms they were opened.

On 24 September 2022 I wrote, under the heading “Forced Representation of So Called Haudenosaunee”:

“It is our position that the Haudenosaunee Development Institute and the Haudenosaunee Confederacy Chiefs Council inclusive of Chiefs and Clanmothers, do not have a legal interest or right to represent the Haldimand Proclamation interests or the Heirs, the Haldimand rights are non-indigenous hereditary provision to the Mohawk Posterity.”

That letter was entered as Exhibit No. 2 on 8 March 2023, in the examination conducted in these proceedings. It was introduced not by me and not on my application, but by Max Shapiro of Blake, Cassels & Graydon LLP, counsel of record for the Six Nations Band of Indians. It was drawn from the Haudenosaunee Development Institute’s third supplementary motion record at page 48, and it was put to the HDI representative under examination.

I am named on that record. The letter is identified in the transcript as coming from “Secretary-General Benjamin Doolittle… for the Mohawk Nation of Grand River Country, DBA Mohawk University,” under the heading “Forced Representation of So Called Haudenosaunee,” and the position set out above was read into the record by examining counsel.

The witness confirmed he had seen the letter. He acknowledged that its author opposes HDI representing that interest in the proceeding. And when asked whether the letter refers to the Band Council specifically, he confirmed that it does not, because its language is broader and reaches HDI and the Confederacy Chiefs Council as well.

The transcript brief containing that examination is published on the Council’s own litigation website. So the objection is not obscure, it is not recent, and it is not something your office has had to seek out. It sits on the public record of this action, entered by the Council’s own counsel, put to a witness, and answered by nobody.

On 2 October 2023 I issued a comprehensive objection, copied to the Minister of Crown-Indigenous Relations. I restate its two governing points. First, the dissolution of the hereditary Council in 1924 and the imposition of an elected system was a unilateral act violating the pledge of faith given to the Mohawk people of Grand River in 1791. Second, “Some of the Mohawks of the Villages of Canojaharie, Tikondarago, and Aughugo,” whose descendants as Mohawk Posterity are the legal beneficiaries of the Pledge of 1779, are not incorporated into the Band Council or the Dominion of Canada, and we categorically reject any assertion of subject or so-called Indian status.

On 13 November 2024 I issued a formal notice and demand rejecting the Council’s claims in the Canadian courts insofar as they purport to cover the Haldimand posterity interest. In January 2025 I requested the records bearing on that authority. Neither has been answered. Those objections are restated here in full force.

VII — THE LAW, BRIEFLY

In R. v. Desautel, 2021 SCC 17, the test was held to be whether a group is the modern-day successor of a society that occupied the territory, not whether Canada presently recognizes it. Desautel was not a citizen, not a resident, not on any band list here, and his people had been declared extinct in 1956. He held the right by descent. I cite it for that principle, not to place the Haldimand interest under section 35.

In Herrera v. Wyoming, 139 S. Ct. 1686 (2019), a treaty right survived the creation of a state absent clearly expressed intent to abrogate. In Descheneaux c. Canada, 2015 QCCS 3555, the Indian Act’s own rules for transmitting entitlement by descent were declared inoperative under section 15, and Parliament legislated rather than appeal. In Andrews v. Law Society of British Columbia, [1989] 1 SCR 143, treating differently situated persons identically was held capable of producing inequality.

VIII — THE CATEGORY THE COUNCIL HAS CHOSEN

This concerns what the litigation will do to the interest rather than who conducts it.

Canada’s briefing records the Council’s pleading in these terms: “The Six Nations claim the Haldimand Proclamation is a s.35 Treaty that created a reserve and imposed related Crown duties.”

That is an election, and it is the Council’s to make for whatever interest the Council holds. My objection is that it is being made for an interest the Council does not hold, and that it changes the character of that interest whether or not the claim succeeds.

Aboriginal and treaty rights under section 35 are, on the settled authorities, communal. They vest in the collective, are managed by whatever body is recognized as speaking for the group, and may be surrendered or settled by that body. That is the category the Council has chosen.

The Haldimand interest is not of that character. The Proclamation names no corporation. It creates no body politic. It appoints no person or council in a natural capacity to receive the interest, hold it for others, or pass it down on their behalf. It runs to persons and to their descendants. An interest of that kind descends individually and is held individually, and there is no intermediary between the grantor and the heir.

I am aware that Doe d. Jackson v. Wilkes (1835) is said to have addressed whether the phrase naming the Mohawk Nation and such others of the Five Nations created an incorporation or body politic, and to have concluded it did not. I do not put weight on that case, because the same decision is cited in St. Catharines Milling for holdings adverse to the Indian interest, including that the Haldimand instrument, wanting the Great Seal, amounted to a licence of occupation. I raise it only to say that if the Council intends to rely on nineteenth-century authority here, it will have to take the whole of it, and the whole of it does not support the Council’s own pleading.

The consequence of the election is this. If the Court accepts that the Proclamation is a section 35 treaty, an interest that descended to individuals becomes a communal right held by the collective and administered by whichever body is found to represent it. The descendants do not lose the benefit by name. They lose the capacity to hold it themselves. Their interest is absorbed into a collective and thereafter spoken for, valued, compromised and settled by a body they did not appoint, in an action they were not notified of, in a category they did not choose.

The 1924 imposition took the Mohawk out of their own governance. The section 35 election, if it succeeds, would take the Haldimand posterity interest out of their own hands, through a judgment rather than a surrender, with no consent asked and none given.

IX — THE SURRENDER THAT NEVER HAPPENED

This is the heart of it.

The Council’s claim is an accounting claim. Canada’s briefing describes it as a claim for approximately 900,000 acres “improperly surrendered,” with the Crown having “improperly sold the lands and mismanaged the proceeds.” The relief sought is compensation, and the two phases are liability and damages.

An accounting is a remedy for money. It presupposes that the thing accounted for has gone. You do not seek an accounting of proceeds unless there were proceeds, and there were no proceeds without sales, and no sales without surrenders. The pleading admits the surrenders and disputes only their propriety.

Canada pleads the same event and calls it lawful. Its defence is that “the Six Nations people made a series of valid surrenders and sales of lands within the tract.”

So both parties agree that surrenders occurred. They are opposed only on whether those surrenders were properly taken and properly accounted for. The question whether any surrender was ever effected at all is on neither pleading.

The Mohawk position is that none was. Not an improper surrender, not a defective surrender, not a surrender voidable for want of consent. No surrender. The event the entire action assumes on both sides is an event we say never occurred.

Why that matters is a matter of law, not of history.

In St. Catharines Milling and Lumber Co. v. The Queen (1888), the provincial interest under section 109 of the Constitution Act, 1867 was held to be subject to the Indian interest as a burden upon the provincial title. In Ontario Mining Co. v. Seybold (1903), the Judicial Committee applied that principle and confirmed what discharges the burden: surrender. Upon a surrender the province’s beneficial interest is freed. Absent a surrender it is not.

Surrender is therefore not merely a historical question about how lands left Mohawk hands. It is the operative legal event that lifts the encumbrance. No surrender, no discharge. The encumbrance subsists, and it subsists against the province’s own title, in whosever hands the parcels now sit.

That is what the Haldimand posterity interest is. Not a claim for money owed on lands gone. A subsisting encumbrance on lands never validly released, arising from a Crown instrument, held by the descendants of the persons to whom it was dedicated.

The accounting action would end that. Not by deciding against us, because we are not before the Court. It would end it by proceeding on a premise both parties share and nobody contests. A judgment rendered on that premise converts a subsisting interest in land into a quantified sum. The lands are treated as gone, the only remaining question is the price, and the encumbrance is discharged by assumption rather than by any act of the people who hold it.

And it is circular. The Council is constituted under section 74(1) of the Indian Act. It pleads within the Indian Act framework, on the Act’s surrender provisions, in a Canadian court, for a compensation remedy the Act contemplates. If the claim succeeds on that footing, the framework is validated, and the framework is what makes the Council the party. The authority to bring the claim and the outcome of the claim confirm one another, and neither at any point required the consent of the Mohawk whose interest is being converted.

I want to be plain about what I am not saying. I am not saying the Council should lose. I am not saying the Crown behaved lawfully. I am not disputing that lands left Mohawk hands, that money changed hands, or that the Crown’s conduct requires answer. I say that the Mohawk never surrendered, and that the case being tried assumes the opposite as common ground between the only two parties in the room.

X — WHAT IS ALREADY ON NOTICE

This is not a theoretical dispute between two councils. It has been felt on the ground for more than a decade.

The representation problem was not raised first by me. On 14 September 2015 Bill Squire wrote to Kingwood Homes concerning the Erie Avenue and Birkett Lane lands. That letter referred to a Partnership Agreement of 4 June 2013 between Guswhenta Holdings Limited and Kahyonhakta’t ye ne Ka’nyenkeha:ka, the Mohawks of the Grand River, and to a Memorandum of Agreement of 3 June 2014. It alleged that later agreements affecting the same lands undermined trust, and raised concerns about representation and, in terms, about the legal sufficiency of that representation.

That was a participant in those transactions, writing to a developer, ten years ago, saying what I am saying to you now.

The bodies transacting on those lands included Guswhenta Holdings, Robin Holdings, the Mohawk Workers, and individuals including Steve Charest and Brian Porter. Mr. Charest holds an interest in Guswhenta Holdings, and it is this office’s understanding that he is a signatory to a memorandum of agreement made with the Mohawk Workers. Not with the Mohawk Nation of Grand River. Not with the posterity holders. Your Council was not a named party to the 2013 or 2014 agreements at all.

The City legislated its own uncertainty

In Kingspan Insulated Panels Ltd. v. Brantford (City), 2010 ONSC 4610, the City was the defendant. A purchaser alleged it had failed to disclose the aboriginal land claim affecting the property it had sold. Lococo J. refused summary judgment on two grounds. First, disclosure: the Court rejected the City’s “satisfy yourself” response as sufficient. Second:

“A latent defect is a defect that cannot be discovered by inspection and ordinary vigilance… the parties were unable to find any jurisprudence on whether an aboriginal land claim constituted a defect, whether patent or latent, which may suggest that the issue is a novel one.”

In 2010 the question was open, and the Court said so.

What the City did afterwards is the First Nations clause. In its dealings in land the Corporation gives purchasers notice that it may or may not hold an interest in the lands they are buying. This office has understood that clause to have been adopted by by-law; if that is wrong as to form, I will correct it, but the substance is not in doubt, because the clause is in use and its words are its own. A municipality dealing in land within the Haldimand tract tells buyers it does not know whether it owns what it is selling. That is the City’s own instrument, adopted after it had been sued on precisely that question in Kingspan, and it is an admission on its face that title within the tract is unresolved. Whatever the City intended by it, the effect is notice.

Then came the answer. In Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490, Young J. found the Cowichan hold Aboriginal title to part of the claim area, and that the majority of Canada’s and the City of Richmond’s fee simple interests within it are defective and legally invalid. British Columbia’s Land Title Act, which ordinarily guarantees title, was held inadequate to cure the defects in the Crown’s grants.

I state the limits precisely. It concerned Canada’s and Richmond’s own holdings, not private third-party lands, and no recovery of private lands was sought. The declaration was suspended eighteen months. It is under appeal by Canada, British Columbia and the City of Richmond, and it is not final. Nor do I advance the Haldimand interest as Aboriginal title under Tsilhqot’in; our position is that the tract is acquired territory held under an executed Crown instrument, a different and, we say, stronger foundation.

But the proposition Kingspan could find no authority for now has authority behind it. Where an underlying Indigenous interest is established, Crown fee simple grants over the same land can be defective and legally invalid, and a provincial registry statute will not necessarily cure them.

Where notice has been given

This office has given direct notice. In December 2019, by Notice of Interest and Claim of Right to Peaceable Possession, to the residents of the Haldimand tract and to the Corporation of the City of Brantford, respecting the Arrowdale lands then being sold to developers, recording that the councillors had by their own conduct become de facto trustees for the U.E. Mohawk descendants. On 26 April 2021 to Desi Auciello, President and Chief Executive Officer of Cachet Developments, respecting the former Canadian Tire property, copied to Steve Clark at the Ministry of Municipal Affairs and Housing. On 19 June 2021 to Conrad Sauvé of the Canadian Red Cross respecting 25 William Street, copied at filing to Jeffrey Lem, Director of Titles for Ontario. On 10 May 2022 to Panattoni Development Company respecting the 423-acre tract at Oak Park and Powerline Roads, likewise copied to the Director of Titles. Between October 2023 and November 2024 to Costco Canada Holdings Inc., escalated to the Member of Parliament and to the Attorney General of Ontario. And to LIV Communities and the parties associated with the Multani East and West parcels.

Those notices have one purpose: to remove the shelter of the innocent third party purchaser. A purchaser given actual notice stands differently from one who was not.

The Grand River Notification Agreement

There is an existing notification instrument for these lands, and the Mohawk are not in it.

The Grand River Notification Agreement was first executed on 3 October 1996 and has been renewed five times, most recently effective 28 February 2023. Its parties are Six Nations of the Grand River, the Mississaugas of the Credit First Nation, the City of Brantford, the County of Brant, Haldimand County, the Grand River Conservation Authority, and Ontario. Canada was a signatory to earlier versions.

So the Crown in right of Ontario is a party. The three municipalities in which the tract lies are parties. And the Grand River Conservation Authority is a party, whose watershed jurisdiction covers substantially the whole of the land the Haldimand Proclamation describes, being six miles on either side of the Grand from its mouth to its source.

This is the instrument the Province and the municipalities rely upon for First Nations notification in the Haldimand watershed. It defines its own scope as follows:

““Territory” in relation to Six Nations or MCFN, refers to the reserves set apart for the use of Six Nations’ members (commonly known as Indian Reserves 40 and 40B) and the reserve set apart for the use of the Mississaugas of the Credit (commonly known as New Credit Indian Reserve #40A).”

Territory means Reserves 40, 40B and 40A. It does not mean the Haldimand Tract. The instrument used to notify First Nations of dealings across the tract defines the lands it concerns as the reserve lands of two bands, and its saving clause at section 9(b)(i) preserves the aboriginal, treaty and constitutional rights of Six Nations and the Mississaugas of the Credit and of no one else.

The Mohawk Nation of Grand River is not a party. It is not named, not defined, and not addressed. In thirty years and five renewals, through an agreement to which Ontario, three municipalities and the conservation authority for the whole watershed are signatories, no Mohawk-specific interest in the Haldimand Tract has ever been written into it.

What that produced at Gilkison Street

This is not an abstract gap, and you know the case, because you answered on it.

At 110 Gilkison Street the notification machinery operated. It notified Six Nations. On 9 September 2022 you told me, in writing, that the Elected Council had no interest in that property, that it had been obtained by a few people who were or are Mohawks, that it should have been exempt from taxation, and that you had no knowledge as to how it was lost.

So the mechanism built to protect Indigenous interests on the Haldimand Tract gave notice to a party which then confirmed it held no interest, and the property was sold regardless. The people who did hold the interest were not parties to the Agreement, were not within its definition of Territory, and had no place in it to be notified.

That is the whole of my third request, illustrated on one parcel, by a document your own office produced.

And the sequence

I note the order of events, and I raise it because it is not obviously deliberate and may simply be how institutions drift.

In March 1995 the Council commenced the domestic action. In October 1995 it resolved to fund an international proceeding at the World Court and undertook, in the same resolution, to resolve internal disputes by delegation and good faith rather than by initiating legal action through the Canadian court system. And on 3 October 1996, within twelve months of that undertaking, it entered a domestic administrative agreement with Ontario, three municipalities and a conservation authority, defining the lands it concerned as reserve lands and omitting the Mohawk who hold under the Proclamation.

The international remedy was funded once, for five thousand dollars. The domestic arrangements have been renewed five times over thirty years and are still running.

Which brings it back to you. If an unresolved Mohawk interest is capable of rendering grants defective, then what is at stake is a question of title, not of accounting. An accounting converts the interest to money and treats the land as gone. A title defect does not. It persists in the land, against the registry, in whosever hands the parcel sits, until validly discharged — which returns us to the surrender that was never taken.

The Council has elected the money remedy. In doing so it forgoes, for everyone it purports to represent, the remedy Cowichan suggests may be available, and it does so for descendants who were never asked. And if judgment is obtained on a premise that is wrong, it protects nobody: not the developers who were given notice, not the City which legislated its own doubt, not purchasers who took with notice, and not the descendants, who will simply be told afterwards that the matter is settled.

XI — WHAT I ASK

First, produce the delegation from the Mohawk people.

I am not asking you to prove that the Elected Council exists, that it is validly constituted, or that Canada recognizes it. I accept all three. I am asking for something different in kind: not a statute, not an Order in Council, not a judgment construing a patent the Mohawk refused, but a grant of authority from the Mohawk of Grand River, or from their posterity, conferring on the Council the power to represent, compromise, or settle the interest arising under the Haldimand Proclamation of 1784. If it exists there will be a resolution, a delegation, a record of a council at which it was given. Produce it and I will withdraw my objection.

If the Council’s authority over this interest comes from Canada, then Canada is both the source of the mandate and the defendant in the action, and the beneficiaries have had no say in either.

Second, produce a surrender.

One instrument, executed by the Mohawk of Grand River or by their posterity, surrendering any part of the Haldimand tract. Not a sale by the Crown. Not a lease. Not a patent issued to a settler. Not a Council resolution consenting after the fact. A surrender, taken from the people in whom the interest was vested, in the form the law required when it was taken. If one exists, the encumbrance was discharged and the accounting is the right remedy. If none exists, the interest was never converted, and an action framed on the assumption that it was cannot bind the people who hold it.

Third, tell me how the descendants have been notified.

Not the band list. The descendants. Where a body asserts it represents the whole of a community, notice must reach those whose interests are represented, including persons who are not registered members. The Court has already required notice of this kind in a related proceeding, and the result is instructive. What notice has the Council given to Mohawk Loyalist posterity who are not band members, by what means, and on what dates?

By Order of the Honourable Justice A. A. Sanfilippo made 16 September 2022 and dated 21 September 2022, in Court File No. CV-18-594281-0000 (Toronto), formerly Court File No. 406/95 (Brantford), the Haudenosaunee Development Institute was ordered to give notice of its motion to a list of named recipients. The motion sought an order appointing HDI as representative of all citizens of the Haudenosaunee Confederacy in this very action, and a declaration that the Haudenosaunee Confederacy is the collective rightsholder in respect of the rights asserted, and that the Six Nations of the Grand River Band of Indians is not.

The Notice attached as Schedule “A” to that Order stated the consequence plainly:

“If that order is granted, all decisions and findings in the Litigation will be binding on the Haudenosaunee Confederacy, its Chiefs and Councils, and all its citizens, as will any agreements amongst counsel for the parties in respect of the conduct of the litigation.”

The Court required service on twenty named recipients. Among them were the secretary for the Haudenosaunee Confederacy Chiefs Council, the secretary for the Grand Council, four Longhouses with named representatives, and fourteen nations and councils. Seven of the twenty are Mohawk:

  • Mohawk Nation Longhouse, by email to Bula Hill and by mail to Rooseveltown, New York
  • Mohawk Council of Akwesasne, Quebec and New York
  • Mohawk Council of Kahnawà:ke, Quebec
  • Mohawks of Kanesatake, Quebec
  • Mohawks of the Bay of Quinte, Tyendinaga Mohawk Territory, Ontario
  • Mohawks of Wahta, Bala, Ontario
  • Saint Regis Mohawk Tribe, Akwesasne, New York

Seven Mohawk bodies, across two countries and three provinces, were served by order of the Court in an action concerning rights stemming from the Haldimand Proclamation of 1784.

The Mohawk of Grand River were not among them.

They are the only Mohawk community on the Haldimand tract, and the only Mohawk community named in the instrument the action is about, and they are the one Mohawk body the list omits. The Mohawks of the Bay of Quinte were served, and they hold under a different instrument on a different tract. The Mohawk whose attachment and whose loss are the consideration recited in the Proclamation were not.

Nor was the Mohawk Nation of Grand River, nor the Mohawk Peoples of Grand River, nor the Haldimand posterity as such, named anywhere in the Order or in the Notice.

This office replied publicly and rejected the offer for cause, and rejected any implied or tacit representation of the Mohawk posterity by the Haudenosaunee Development Institute, the Haudenosaunee Confederacy Chiefs Council, or the Six Nations Elected Band Council, from the beginning. That reply remains published.

I raise it because it is precedent and failure in the same instrument. The principle that notice must reach those whose rights are to be bound is not novel and it is not mine: a judge of the Ontario Superior Court applied it in this action, in 2022, and required service on twenty recipients at the moving party’s expense, together with publication in seven newspapers. So the standard exists and this Court has already set it.

What the Order also shows is that the standard can be met scrupulously and still miss the people it most concerns. Every Mohawk community the drafters could think of was served except the one living on the land. If the Council intends that a judgment in this action bind Mohawk Loyalist posterity, that omission is the precise thing my third request is directed at, and it has already happened once.

I note also that the Order required the Notice to be published in the Two Row Times, among other publications. This office is the publisher of that paper. That is how the matter came to my attention, and it is why a reply was possible at all.

The answer to the question the panel asked me

On 19 August, after the notice question, the panel said that if there were a certain approach or organisation this office would recommend speaking with, you would be very interested to hear it. I take that offer seriously and I answer it here.

The mechanism exists, and your Council has held notice of it for nearly two years.

On 22 October 2024, under Letter Code SG0100-241022-000001, I wrote to the Minister of Crown-Indigenous Relations and to the Prime Minister of Canada enclosing Directive SG0300-180102-010001, which establishes the Birth and Heritage Registrar under a Provisional Registry. The letter said:

“Enclosed you will find Directive SG0300-180102-010001, which establishes the Birth and Heritage Registrar under a Provisional Registry. This directive is of great significance to the Mohawk Nation of Grand River as it ensures the accurate documentation of our citizens, safeguarding our population, heritage, and national security. Furthermore, it formalizes the process for the registration of births and claims of hereditary rights, in alignment with the Haldimand Proclamation and the historic ties of the Loyalist Mohawks.”

That letter was copied to Six Nations’ own retained counsel, to Six Nations Council administration, to the Lieutenant Governor of Ontario, to the Attorney General of Ontario, to the Governor General, and to the federal and provincial ministries of Indigenous relations.

So your Council and its counsel have had notice of this instrument since October 2024, twenty-two months before the engagement session at which the panel said the process is not Mohawk targeted.

What the Registry does is precisely what the notice question requires. It registers births, identifies residents, documents heritage ties for descendants of Loyalist Mohawks and their clan affiliations, and validates Claims of Right. A Claim of Right is established by proof of birth, by heritage documentation connecting the claimant to Loyalist Mohawk families or recognised clans, and where available by United Empire Loyalist certification. It operates alongside the Membership and Lineage Registry and the Citizenship Determination Rules, which together answer the question the Proclamation makes unavoidable: who are the posterity of the Mohawk loyalists to whom the Crown’s Haldimand obligations are owed.

That class must be identifiable, or the instrument means nothing. These records make it identifiable, and they do so on the criterion the Proclamation itself uses, which is descent, rather than on the criterion the Indian Act uses, which is registration.

I make no claim that these are Crown instruments. They are the Secretariat’s own, and I present them as such. But they are records, they are maintained, they are cross-referenced, and they exist for exactly this purpose. They reach persons no band list reaches, because they were built to.

So the answer to the panel’s question is this. If the Council wishes to give notice to Mohawk Loyalist posterity, this office will assist. I will provide the Registry instruments, the Citizenship Determination Rules, and such assistance as is needed to design a notice process that reaches descendants who are not registered members. I will do it without condition, without cost to the Council, and without asking anything in return.

And I say this so that the record is clear on both sides. If the Council answers my third request by saying it has no means of reaching those descendants, that answer is not available. A means was built, the Council and its counsel were notified of it in October 2024, and the offer to assist is now made a second time in writing. What remains is a decision, not a difficulty.

Fourth, until those are answered, I ask that the Council refrain.

I ask that the Council refrain from representing, compromising, settling, or consenting on behalf of Mohawk Loyalist posterity under the Haldimand Proclamation of 1784; or in the alternative, that the individually heritable character of that interest be preserved and pleaded as such, and that the descendants be identified, notified, and given the opportunity to be heard before judgment.

I am not asking the Council to abandon anything it properly holds. I am asking it not to speak for an interest it has already told me in writing it does not have, and which its own 1995 instrument placed in another party’s hands.

The fault is the Crown’s. It dissolved the hereditary Council in 1924 and has declined ever since to say what became of the Haldimand interest in the process. Your Council inherited that arrangement. I am not asking you to defend it. I am asking you to tell me what it means.

In 1995 the Council did not claim to hold this interest. I am asking when, and by what instrument, that changed. With a liability trial opening in October 2026, that question needs an answer before judgment, not after it.

Sincerely,
Benjamin Doolittle UE
Secretary-General
Office of the Secretary-General for the
Mohawk Nation of Grand River Country

Copied to

  • Six Nations of the Grand River Elected Council
  • Max Shapiro, Blake, Cassels & Graydon LLP, counsel of record
  • Member of Parliament, Brantford—Brant South—Six Nations
  • The Honourable the Attorney General of Canada
  • The Honourable the Attorney General of Ontario
  • The Honourable the Solicitor General of Ontario
  • The Honourable the Minister of Public Safety, Canada
  • The Honourable the Minister of Crown-Indigenous Relations, Canada

This letter is copied to the Attorneys General because they are parties to the action to which it relates. It is not offered in aid of their defence. This office’s position is that the Crown created the difficulty in 1924 and has declined ever since to resolve it, and that no judgment obtained in an action in which the Haldimand posterity interest was neither pleaded nor represented can settle that interest, whichever party prevails.