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Entering the court, I spy david Sanford (aka Grey Eagle) in a black suit subtly accessorized with an unadorned silver star badge. “A new sheriff in town?” I ask.
“There’s got to be,” he replies with a grin.
One wonders if the provincial court lawyers get the joke it’s for their benefit. It’s the last day of a private prosecution against the Ontario Realty Corporation, the manager of all provincial lands, for allegedly selling land without consulting the First Nations who hold it to be sacred.
A Mohawk wearing the silver star is a subtle inversion of old stereotypes: this time the Indians are defending the frontier, and – if Sanford and the Huron-Ouendat Nation he represents have their way – the ranchers will be run out of town.
The land in question is 170-some acres around the Little Rouge River in what is now the southeast corner of Markham, just north of Toronto.
Circa 1400, when the river was clean and likely teeming with rainbow trout, there was a Huron village there. Long since abandoned, it’s now an archaeological site protected by Ontario Heritage. But the remainder of the land is in legal limbo after the ORC tossed it to the Catholic Cemeteries Association in a land swap.
Under the Environmental Assessment Act, the ORC has to adhere to the procedures of a class environmental assessment when it sells or swaps land. These stipulate that in addition to ecological concerns, cultural and historical attributes of the land must be considered.
Five days of proceedings in a Scarborough courtroom tried to determine whether the ORC consulted the relevant aboriginal groups or not.
The Huron-Ouendat Nation, now based in Quebec, say they weren’t consulted. They view the swap as a grievous offence because it will result in the building of a Catholic cemetery on an area they believe is an ancient native burial site.
“Historically it’s wrong (to build a Catholic cemetery there). And culturally it’s wrong after the last generation of aboriginal people’s abuse by the Catholic Church,” says Sanford, who has been working to protect the area. The chiefs of the Huron-Ouendat have designated him as their official rep for land claims issues in Ontario.
“That place nourished me,” Sanford says. “It was like a parent. I was taught by everything there – the wind, the sky. That land is where I went to be an Indian.”
Over 600 years after the Huron-Ouendat abandoned the village site, Sanford and the ORC are butting heads. Chief Regeant Sioui of the Huron-Ouendat Nation in Wendake, Quebec, some environmental studies students and a bored-looking court recorder bear witness on this freezing day in February as a provincial court judge prepares to decide the next chapter in the old story.
Other journalists are also in attendance. The province’s lawyers, who seem genuinely nervous that the case has generated media interest, suggest that our presence is evidence of wrongdoing on Sanford’s part.
But it was Environmental Defence Canada (EDC), the plaintiff in this case, that contacted the press.
The group’s been monitoring ORC land swaps for some time, and in addition to objections to what it feels was a no-show consultation process, it also fears that toxic formaldehyde used in embalming could leach downhill into the river should plans for a cemetery be approved.
The ORC was aware of the heritage designation of the Huron village before the sale and hired Martin Cooper of Archaeological Services Inc. to survey the property.
When I interview Cooper to ask about native burial sites, he tells me, “The majority of that type of burial would show up on the plowed field as a circular scatter of bones.” They saw none of these.
What about deeper burials?
Cooper acknowledges that that’s a possibility, but the ORC signed off on the class environmental assessment in October 2001 anyway, leaving the matter of potential burials undisturbed.
In court, the defence’s argument darts and weaves. Lawyers jump from suggesting that studying the site for burials would be bad for the surrounding environment to simply downplaying the significance of the sale.
Considerable time is spent attempting to undermine Sanford’s credibility. Why would a First Nation from Quebec be concerned with Ontario, and why is a Mohawk living in North York purporting to speak for them?
The answer is that descendants of the original villagers trace their ancestry to the area, which was abandoned in the 1500s. The inhabitants migrated further north, eventually encountering European settlers in the 17th century. Later they moved east, likely due to warfare, to settle in modern-day Quebec.
If there was any hope for the ORC’s case, it’s gone when Environmental Commissioner Gord Miller testifies.
“It is a statutory obligation to follow the class EA,” he states succinctly. He’s clear: “There is no indication that there was any consultation with aboriginal groups.”
The province’s lawyers insist that the Hurons don’t qualify because they are not Ontario-based. As a second layer of defence, they insist in their final summation that the onus is on the prosecution to prove that consultation didn’t happen.
To this, the prosecution simply responds, “How can we be expected to prove a negative?” ***
A couple of weeks later, I call Sanford. He sounds subdued, and informs me his brother died the night before. He had ALS (Lou Gehrig’s disease). “My brother has left me the legacy to take care of this place,” he says. “He’ll be soaring over that land now, watching and protecting me.”
Then I phone EDC’s legal director, David Donnelly, to ask what kind of decision he expects.
“There’s a simple lesson,” he says. “The previous (ORC) regime had no interest in taking the rights and sensitivities of aboriginal peoples seriously.”
That was painfully apparent. The question is, will the current regime be different? Donnelly remains hopeful.
Sanford, for his part, takes a longer view. “My ancestors were stewards of the land,” he says. “They understood that it was very simple: you kept the water clean and protected it. We’ve complicated it. We’ve complicated it so much.”
