The Ontario Superior Court of Justice has denied a request by the Haudenosaunee Development Institute ("HDI") to intervene in an action between Six Nations of the Grand River Band of Indians ("SNGR") and Crown defendants. In this complex litigation, SNGR seeks an accounting and compensation for alleged breaches of duty and treaty obligations relating to the Haldimand Proclamation, which dates back to 1784. This is the latest decision in a longstanding issue regarding the proper representative of the Six Nations people within the Grand River community.

In Six Nations of the Grand River Band of Indians v. The Attorney General of Canada and His Majesty the King in Right of Ontario, 2023 ONSC 3604, the court considered three motions for intervention. However, this case is principally noteworthy for the court's rejection of the motion of HDI.

HDI is the delegate of the Haudenosaunee Confederacy Chiefs Council ("HCCC"), which governed the Six Nations of the Grand River community until 1924. The court in Six Nations referred to the "long history of conflict" between HCCC and SNGR, and the numerous times that issues relating to whether SNGR or HCCC is the proper governing body of the Six Nations people have been before the court.1 The court concluded that HDI's objective was to "put an end to" SNGR's attempts to litigate its claim in court, in favour of nation-to-nation negotiations between Canada and HCCC.2

Consequently, the court dismissed HDI's motion for leave to intervene, finding that it was not a "good faith actor," but rather sought to cause "delay and disruption for its ulterior purpose of challenging and undermining SNGR's right to lead the Six Nations community."3

The Six Nations litigation — which has been ongoing for 28 years, involving substantial, failed negotiations between SNGR and the Crown defendants — now appears finally ready to move forward to trial.

Background to the Litigation

In its action, SNGR argues that the Haldimand Proclamation set aside lands for the Haudenosaunee people as compensation for homes and property lost during the American Revolution. As summarized by the court, the dispute "concerns the extent of the lands set aside by the Crown defendants, whether certain lands were properly alienated, and whether the Crown (initially the British Crown, and now the Ontario and Federal Crowns as its successors) properly managed and accounted for SNGR's monies."4 The action was held in abeyance to permit lengthy negotiations between the parties, which were ultimately unsuccessful.

The Intervention Motions

In Six Nations, the court considered motions by HDI and the Mississaugas of the Credit First Nation ("MCFN") to intervene as parties, as well as a motion by Men's Fire of the Six Nations Grand River Territory ("Men's Fire"), which sought to intervene in HDI's intervention motion (arguing that HDI should not be permitted to intervene), and, if HDI was granted leave, also sought permission to intervene itself in the action as a friend of the court.

  • Considering the lack of opposition by the Crown, the court had no difficulty in granting MCFN leave to intervene in the action, finding that potential findings of fact at trial may impact MCFN's rights, including with respect to its claims for Aboriginal title and obligations owed to it by the Crown.
  • The court granted Men's Fire leave to intervene in HDI's intervention motion, concluding that Men's Fire satisfied all criteria for leave. In doing so, the court rejected HDI's argument that intervention is not permissible on a motion.
  • The court denied HDI's motion for leave to intervene, concluding that HDI's interest in the litigation was neither "sufficient" nor "genuine", and that the motion was in any event an abuse of the court's process, and would cause undue delay in the litigation.5

Key Takeaways

The Six Nations decision is important for parties considering or resisting motions for intervention in litigation raising Indigenous interests. First, it confirms that motions for intervention may raise complex legal and evidentiary issues of significant interest to Indigenous parties, potentially justifying intervention by Indigenous community members in the motion for intervention itself. Second, it highlights that the court will not countenance a motion for intervention that, in actuality, seeks to advance ulterior motivations that will not serve the litigation at issue, or which are otherwise an abuse of the court's process. This case also provides some guidance on who is the proper modern representative of the Haudenosaunee people (specifically the Six Nations people within the Grand River community), at least based on the evidence provided to the court in this case.

Footnotes

1. At para. 54.

2. At para. 53.

3. At para. 61.

4. At para. 6.

5. At para. 76.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.