Posted by Doug Draper
October 13th, 2016 on Niagara At Large
Niagara, Ontario – A letter from a lawyer representing Indigenous communities in and around the Niagara, Ontario recently sent a letter to Niagara Falls municipal officials expressing concern over a proposal to carry out an urban development project on hundreds of acres of forest, savannah and wetlands known as the Thundering Waters Forest in southwest end of that city.
Among many concerns outlined in the letter to the city, lawyer Aaron Detler points out that the $1 billion-plus development project, proposed by a China-government based corporation called GR Investments Co., Ltd. “will interfere, impair, and infringe upon Haudenosaunee title, rights and interests as guaranteed and recognized by the Nanfan Treaty of 1701.”
In the letter, Detler also raises concerns about a trip to China last November, 2015 by Niagara Falls Mayor Jim Diodati and two senior city administrators , paid for by the China-based developers, and about a failure of the city and other parties to properly consult with Indigenous community representatives about the controversial project.
“We are particularly concerned with respect to bias given the reporting by the Niagara Falls Review of April 24, 2016 which appears to indicate that the Premier of Ontario and the Mayor of Niagara have announced their support for the Project prior to any engagement whatsoever,” states the letter sent to the city earlier this fall.
“You will note that the trip for the Mayor was paid for by the Chinese government which is a shareholder in the Project http://www.niagarafallsreview.ca/2015/11/20/diodati-stands-by-way-china-trip-paid-for. As you may understand this creates the significant perception of a conflict of interest.”
The so-called “Paradise” community project proposed for hundreds of acres of natural lands has become a topic ofcontroversy for growing numbers of residents across the region, including Indigenous people, going back at least as far as January of this year when more than 200 people gathered at a Niagara Peninsula Conservation Authority meeting, expressing their objections to the NPCA’s interest in gutting provincially significant wetlands on the site to make way for the development.
The board of the NPCA, dominated by Niagara regional councillors and mayors from municipalities in the region and chaired by St. Catharines regional councillor Bruce Timms, claims it would find another place in Niagara to grow a comparable wetland to the one it would “offset” in the Thundering Waters Forest.
Last spring, Timms appeared on a Hamilton-based CHCH TV news program, claiming that it would take as few as five years to grow a similar wetland somewhere. Critics with backgrounds in science and ecology insist that Timms’ claim is ridiculous.
Representatives for the developers have since said that they have taken any idea of “offsetting” wetlands on the site off the table, but that is not good enough for many members of the public who want the entire Thundering Waters Forest saved as a natural heritage site.
Niagara At Large is now posting, in the space below, the entire letter from the solicitor for the Indigenous community to representatives for the City of Niagara Falls –
Dear Mr Barnsley and Mr. Herlovitch ;):
Re: Thundering Waters Secondary Plan (‘Project’)
Official Plan Amendment Application, City File: OPA: No. 117
Proponent: GR (CAN) Investment Co., Ltd.
Our File No.: 030200-017-005
It was a pleasure meeting with you on September 15, 2016 regarding the Project.
As you are aware we were only notified of the Project on or about July 29, 2016.
We wish to confirm the general discussions and material provided with gave us a general overview of the Project.
At this time, and on a preliminary basis, we confirm that the Project will interfere, impair, and infringe upon Haudenosaunee title, rights and interests as guaranteed and recognized by the Nanfan Treaty of 1701, the position of Crown via the Lords of Trade and Plantations as to Haudenosaunee title as recognized and affirmed by the Mitchell map of 1755, the August Treaty of 1764 and the Treaty of Fort Stanwix of 1768.
We confirm providing you with a copy of Seneca Nation of Indians v. New York decision dated September 9, 2004 which confirms that the lands upon which the Project are proposed were to have been held in trust for the HCCC. A link to the decision is attached for your ease of reference. http://caselaw.findlaw.com/us-2nd-circuit/1033185.html
We indicated at the same time that there may be other interests and rights which will need to be addressed however we have not been provided the resources to date to undertake a meaningful review of the Project and/or its impacts.
You indicated that there had been a delegation of engagement obligations from Ontario with respect to the Project and we confirm that you will be providing a copy of this delegation as soon as possible.
We wish to confirm that we believe the delegation to be unlawful. As we have indicated, the Project will impair treaty rights and at a minimum will have the affect of extinguishing harvesting rights on the subject lands.
The Supreme Court of Canada has recently clarified that treaty rights may only be impaired and/or infringed where consent has been provided and/or the infringement has been justified.
We confirm that the justification process involves the discharge of fiduciary duties and as discussed fiduciary duties may not be delegated without the consent of the fiduciary. We confirm that consent as to the delegation of fiduciary duties has not occurred.
We also confirm our discussion in relation to the consultation and accommodation framework that was first discussed by the Supreme Court of Canada in the Haida and Taku decisions.
We have expressly stated that this is an inappropriate approach as those cases dealt with asserted but unproven rights whereas the rights in question on this matter are established and recognized in Canadian law by section 35 of the Constitution Act, 1982.
If we did assume the applicability of the consultation and accommodation framework (which is expressly denied) then the delegation from Ontario to Niagara Falls would only be lawful where Ontario undertook a prima facie assessment of the rights and interests which would then structure the nature and scope of consultation.
As you indicated it does not appear that any such assessment has been undertaken by Ontario and/or Niagara Falls and as such the delegation is unlawful on this basis.
Going forward we would ask that entirety of the process for advancing the amendments to the Official Plan be placed on hold until such time as Ontario has discharged its obligations. As discussed, if Niagara Falls proceeds it may suggest bad faith and a bias as to outcomes.
We are particularly concerned with respect to bias given the reporting by the Niagara Falls Review of April 24, 2016 which appears to indicate that the Premiere of Ontario and the Mayor of Niagara have announced their support for the Project prior to any engagement whatsoever.
A link to the article is attached for your ease of reference. http://www.niagarafallsreview.ca/2016/04/24/1b-development-proposal-going-before-council. You will note that the trip for the Mayor was paid for by the Chinese government which is a shareholder in the Project http://www.niagarafallsreview.ca/2015/11/20/diodati-stands-by-way-china-trip-paid-for. As you may understand this creates the significant perception of a conflict of interest.
You may also want to have reference this earlier article which indicates that it has been Niagara’s intent to proceed without first addressing the issues related to Haudenosaunee rights and interests http://www.niagarafallsreview.ca/2015/10/28/chinese-to-announce-niagara-falls-investment.
Please also see the following article which indicates that a Memorandum of Understanding has been signed as between Ontario and the Chinese government with respect to this Project prior to any engagement being undertaken. Please provide a copy of this MOU. http://www.niagarafallsreview.ca/2016/03/31/wetlands-stall-1-billion-falls-development
Also please have reference to a St. Catharines Standard opinion piece which also pointedly discusses the conflict of interest. http://www.stcatharinesstandard.ca/2015/11/27/herod-niagara-falls-thinks-big-acts-small
Having read the attached articles (and others that are not attached) it appears that Ontario and Niagara may be treating the rights of the Haudenosaunee as a mere afterthought.
Please also accept this correspondence as official opposition to the Project for the purposes of section 17 of the Planning Act.
We would like to suggest a meeting for October 7, 2016 at 10:00 a.m. to discuss the status of this matter. As the original meeting was at our office we would be happy to come to you in Niagara Falls for the next meeting. At this meeting we would also like to receive information on the Grand Niagara Secondary Plan. We have not received any notification of the proposed amendments in relation to the Grand Niagara Secondary Plan.
Regards, Aaron Detlor , Barrister & Solicitor
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