In the wake of the recent events at the Douglas Creek Estates subdivision near
Caledonia, will any Ontario citizen be able to rely on a government
certification of title to their homes?
Can Ontario citizens continue to have confidence in our justice system
when a court threatens occupiers of land with criminal and civil contempt
charges, but the authorities are unable, or unwilling, to restore possession to
the title holder?
Will the federal and provincial governments ever be able to reconcile the
conflict between aboriginal title claims to land in Ontario, and
government-guaranteed deeds of absolute title?
The origins of the Caledonia dispute date to Oct. 25, 1784, when Capt.
Frederick Haldimand, governor-in-chief of British North America, issued the
Haldimand Proclamation. For their loyalty to Britain during the American
Revolution, the Mohawks and other Six Nation Indians were given the right to
settle on the banks of the Grand River.
The area covered by the proclamation extended about 10 km on either side
of the river, starting at Lake Erie and running right up to the headwaters. In
all, the parcel comprised about 385,000 hectares.
Haldimand's term of office ended before the proclamation could be
concluded with a grant of legal title to the land.
The fuzzy wording of the Haldimand Proclamation resulted in a set of
controversies that are still raging today.
The British Crown interpreted the document to mean that it was merely a
non-transferable licence to occupy the land in other words, the land could not
But on behalf of the Six Nations, their representative Joseph Brant took
the position that it gave the Indians absolute title to the land. To prove his
point, he started leasing and selling huge portions of the tract to British
In 1793, governor John Graves Simcoe signed the Simcoe Patent, which gave
the Six Nations title to 223,163 hectares of the original tract along the Grand
At the same time, it declared that all future land transactions in the
Haldimand Tract had to be approved by the Crown, but Brant simply ignored it and
continued to invite paying settlers onto the land.
By 1828 nearly two-thirds of the Grand River territory had been sold,
leased or settled by squatters. By 1847, the original parcel was reduced to
about 20,000 hectares.
On May 15, 1848, the land where the Douglas Creek Estates now sits was
sold by the Crown to George Marlot Ryckman for 57 pounds and 10 shillings, and a
deed called a Crown grant was issued to him.
In 1992, Henco Industries Ltd. purchased 40 hectares of this land for
development as new housing.
Three years later, the Six Nations sued the federal and provincial
governments for an accounting of the land and money involved in the Haldimand
and Simcoe documents. That case is still ongoing.
Last year, the provincial government approved registration of a 240-home
subdivision plan for this property in the local land registry office, and it
guaranteed Henco title to the property under the Land Titles Act.
As I understand it, the native position is that the land which includes
the Douglas Creek Estates subdivision was deeded to them by Haldimand in 1784,
was never sold off by them or their representatives, and still belongs to them.
Henco Industries, on the other hand, claims good title dating back to a Crown
grant in 1848 and verified today by the Land Titles Act.
The question that naturally follows, of course, is: how many homes and
businesses in and around Brantford and Caledonia are still the subject of
aboriginal land claims?
It is clear to me as a real estate lawyer that Ontario's 12.5 million
citizens need a land registration system that can be relied on as absolute and
final. When the government registry office issues a deed to a citizen, whether
the recipient is a corporation or an individual, the public must be able to rely
on the assurances in that document.
At the same time, citizens in our society whether they are native or
non-native cannot be permitted to take the law into their own hands, whether
to remove an encroaching fence, or cut down a neighbour's tree, or to block
access to a public roadway.
As I followed the news reports of the Caledonia standoff, I wondered what
would have happened if the Haldimand grant had been for an area of 10 km on each
side of Toronto's Don River instead of the Grand River, and if a group of
protestors blockaded the Don Valley Parkway in violation of a court order? I
doubt that blockade would have lasted longer than a few hours.
The fact is that since 1973, Canadian courts have recognized that
aboriginal right to land, even without a specific written deed, can survive the
arrival of Europeans and subsequent legislation by Canadian parliaments.
This means that we have, in Canada, two distinct systems of land
ownership. Occasionally, as with the Douglas Creek subdivision, these systems
conflict with each other. When they do, it's up to our governments to balance
and reconcile those conflicts for the benefit of the aboriginal claimants, the
deed holders and society at large.
Exactly how they do it is a very delicate task. The Caledonia blockade
was not our government's finest hour.
Bob Aaron is a Toronto real estate lawyer. He can be reached by email at firstname.lastname@example.org, phone 416-364-9366 or fax 416-364-3818.
Visit the Toronto Star column archives at http://www.aaron.ca/columns for articles on this and other topics or his main webpage at www.aaron.ca.