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We are publishing our press release dated July 11, 2022 that provides detailed information about our plans and our media platform, including our Journal. our main focus has always been to restore the Haldimand Tract to its rightful owners. We have already begun this process and we are now ready to announce it. Read Press Release

There are no innocent third party purchasers on indian treaty lands

The history of Indian treaties in North America is a long and complicated one. There have been many different interpretations of these treaties over the years, and they continue to be a source of contention today. One of the most controversial issues surrounding Indian treaties is the question of who is considered an "innocent third party purchaser." 

The Haldimand Tract is a belt of land along the Grand River in southern Ontario. It was originally granted to the Mohawk by the British Crown in 1784, as a reward for their loyalty during the American Revolution. The Haldimand Pledge of 1779 was a ratified agreement that was followed up by the Haldimand Proclamation of 1784. The Haldimand Tract was originally meant to be a permanent home for the Mohawk posterity and such others of the Five Nations Indians in perpetuity. The Haldimand Tract is now home to a large number of Indigenous people, many of whom are from the Mohawk Nation.

The Grand River is also an important part of Mohawk's history and culture. The river runs through the Six Nations Reserve. The river is an important source of fish and other wildlife for the Mohawk people, and it is also used for transportation and trade. When Brant led his followers to what is now Brantford waves of settlers began to encroach into the territory. Many trespass orders were issued to remove the squatters (ie 1833, 1878), however, they demanded payment for the buildings and fences that they had erected and affixed to the land. Records show that $30,000 was taken from the Six Nations Indian trust fund to pay off the Squatters to leave the territory, but they would not leave the area, and that is when the 807-acre plot became the real-land boundary of the corporation of the township of Brantford. The surrender of which is contested today.

The issue of "innocent third party purchasers"

There has been much debate over who qualifies as an "innocent third party purchaser" of Indian treaty lands. The term generally refers to someone who purchases land from an Indigenous person without knowing that the land is subject to an existing treaty between the Crown and another Indigenous nation. In some cases, courts have ruled that innocent third-party purchasers are not protected by the terms of the treaty and can be evicted from the land. This has led to a great deal of controversy, as many people believe that all purchasers of Indian lands should be aware of the potential for eviction.

The issue of who is considered an "innocent third party purchaser" of Indian treaty lands is a complicated one, and there is no easy answer. The question has been the source of much debate, and it is unlikely that a definitive answer will be reached anytime soon. However, let's examine the history and use of the concept of "innocent third party purchaser" as a way for governments to claim laches on Indian treaty lands.

The first recorded use of the term "innocent third party purchaser" in relation to Indian treaty lands was in the 1868 Treaty of Fort Laramie. In this treaty, the United States government agreed to protect the Sioux Nation from eviction by settlers. The treaty stated that any Sioux who sold their land to a settler would be compensated for their loss and that no settler could be evicted from their land so long as they paid the proper price.

The use of the term "innocent third party purchaser" in this context is interesting, as it suggests that the United States government was aware that there would be people who would purchase Indian lands without knowing of the potential for eviction. The government likely included this clause in an attempt to absolve itself of responsibility for any such evictions.

In recent years, the question of who is considered an "innocent third party purchaser" has come up in a number of court cases. In each case, the courts have had to decide whether or not the person in question knew of the potential for eviction before purchasing the land.

The most famous of these cases is probably Puyallup Tribe v. Washington Game Commission, in which the Supreme Court ruled that a group of non-Indian hunters who had leased land from the Puyallup Tribe were not innocent third-party purchasers. The Court ruled that, because the hunters had been told by the tribe that they might be evicted at any time, they could not claim to be innocent purchasers.

This case is significant because it established that knowledge of the potential for eviction is a key factor in determining whether or not someone is an innocent third-party purchaser. However, the case also left open the possibility that someone could be considered an innocent third-party purchaser even if they were aware of the potential for eviction.

It is clear that the concept of "innocent third party purchaser" is a complex one, and that there is no easy answer as to who qualifies as such. However, it is important to remember that, when dealing with Indian treaty lands, it is always best to err on the side of caution and assume that any potential purchase comes with the risk of eviction. 

In Canada, the term "innocent third party purchaser" is used in relation to Indian treaty land. This term refers to someone who buys land from anyone, without knowing that the land is subject to a treaty. 

Although laches must not be used as a defense to encroach onto treaty lands in this case you can observe that infact laches was used as well as the concept of the innocent third party purchaser., Arrell J. in Brantford (City) v. Montour, 2010 ONSC 6253 (Ont. S.C.J.) granting an injunction against leaders of blockades seeking to enforce aboriginal claims over the entire Haldimand Tract purportedly made by a group of Six Nations members calling themselves Haudenosaunee Development Institute in 2010. At para. 55 of the decision, Arrell J, held: ..."For more than 150 years the Six Nations did nothing to indicate to innocent third-party purchasers that there was any problem with title to their lands. Property has been bought and sold over that time period. The Six Nations did commence a claim in 1995 against the federal and provincial governments seeking compensation, but never for return of the land. Still there was no notice to private landowners, when that action was commenced or after, of any problem with their title. Limitation periods were missed many times over."

Why these treaties matter today 

These treaties are important today because they are the basis of the relationship between the federal government and First Nations people in Canada. The treaties were signed between the Crown and First Nations in order to allow peaceful settlement of the land. What are the risks of buying Indian treaty land? The main risk of buying Indian treaty land is that the land may be subject to an eviction order from a court. This means that the new owner could be forced to leave the land, even if they have done nothing wrong. What should you do if you're considering buying Indian treaty land? If you're considering buying Indian treaty land, it's important to get expert legal advice before going ahead with the purchase. This will help you understand the risks involved, and whether or not the purchase is right for you. 

Should I ask my municipal representative and my real estate agent if the house I'm interested in is on treaty lands? You can ask your municipal representative and your real estate agent if the house you're interested in is on treaty land, but it's ultimately up to you to do your own research. There may be risks involved in buying treaty land, so it's important to make sure you understand the situation before going ahead with the purchase. 

What if I am just finding out that there is a valid Indian treaty on my property or land what should I do, am I an innocent third-party purchaser? You should research the treaty and its implications for your property or land. You may be an innocent third-party purchaser, but it's important to understand the treaty and its implications before making any decisions. 

The current situation: Who are the so-called innocent third-party purchasers? 

There is no easy answer when it comes to who the so-called innocent third-party purchasers are in regards to treaty land. It depends on a variety of factors, including the specific treaty in question and the history of the land. In some cases, third-party purchasers may be considered innocent if they were unaware of the existence of the treaty when they made the purchase. However, it's important to do your research and consult with experts before making any decisions, as there may be risks involved in buying treaty land. Even if your local municipality assures you that the home is not on treaty lands, it is best to get a second opinion to confirm this. 

Turning a blind eye as constituting Mens Rea (Guilty Mind)

Willful blindness, also known as conscious avoidance, is a judicially-made doctrine that expands the definition of knowledge to include closing one's eyes to the high probability a fact exists.

In the case of Roper v. Taylor's Garage distinguished three meanings of the word "knowledge" in criminal law: (i) actual knowledge; (ii) knowledge of the second degree (where D shuts his eyes to an obvious means of knowledge); (iii) constructive knowledge. The learned judge then spelled out the difference between (ii) and (iii), saying that:

"There is a vast difference between a state of mind which consists of deliberately refraining from making inquiries the result of which a person does not care to have, and a state of mind which merely neglected to make such inquiries as a reasonable and prudent person would make."

On this view, it is clear that a wilful refusal to make inquiries because one does not wish to know is in law equivalent to knowledge. Neglecting to make such inquiries because the need to make them did not occur to D means that D is taken not to know. Constructive knowledge is not a doctrine embraced by the criminal law. Regrettably, other judges have not made such a clear distinction as this, and the term "willful blindness" has been used in the cases to cover (ii) or (iii), or sometimes (ii) and (iii) together. 

The leading textbook writers discuss the meaning of willful blindness and seek to delimit its scope in criminal law. Thus, according to Sheriff Gordon:

"Wilful blindness exists where A deliberately shuts his eyes to the means of knowledge because he prefers to remain in ignorance. Wilful blindness should be restricted to the situation where the accused believes that a certain state of affairs exists, knows that he can confirm this belief by taking a simple step like asking a question, or walking around a corner to read a notice-board, but does not do so, because he wants to be able to remain in ignorance."

In a by-law signed three weeks late by then-Mayor Chris Friel, Mayor Friel failed to sign this by-law for three weeks, and when that was discovered, the City Council voted to not investigate the delay, once the by-law was officially signed the city of Brantford council adopted a new clause that it makes no representation of any future First Nations claims, in effect waiving its liability of retribution from land buyers relating to current or future First Nations claims and legally waiving Brantfords duty to rescue those it may have put in harm's way, by if failing to inform the buyer should it lead to potential harms that may arise, this not only proves willful blindness but also constitutes ratification of fraud. In effect, the City is selling an actual blindfold with these properties.

The clauses created by the mentioned by-law can be read in this example from 282 Stanley St, "ARROWDALE" property sale documents, "(d) The City makes no representations or warranties with respect to any First Nations claims" ... "First Nations Claims, The seller makes no representation or warranties concerning actual or threatened First Nations activities, interests, or claims relating to the Property in any way whatsoever. The Buyer hereby waives any and all claims against the Seller, and its directors, officers, employees, agents, and shareholders (and the shareholders' counselors, directors, officers, employees, and agents) and release them from any and all liability for any loss, damages, liability, or expense suffered by the Buyer which arises either directly or indirectly from any First Nations activities, interest or claims relating to the Property. This clause survives closing." (see clauses)

The law confirms that if you don’t have a title it is possible to create value in things like timber, land, and water before securing the title and that is absolutely immoral and unethical. These acts are also a testament to crimes against humanity as taking legal claims off Mohawk lands leads to the destruction of these lands which in turn leads to environmental decay and poverty for others who reside on Mohawk acquired territories.

Why third-party purchasers are not innocent 

On December 24, 1791, the Canadian government confirmed the Haldimand Proclamation to uphold the honor of the crown, pledging the faith of the government to the mohawks of the grand river and bay of quinte. This made the proclamation part of the Canadian democratic social structure and a duty imposed by law, failing to observe a duty imposed by law is criminal negligence.

To look further at who is liable to observe the proclamation, you only have to look at who is liable to adhere to the democratic social structure, mostly observed by those that take the oath of allegiance however as part of the democratic social structure all Canadian are obligated to observe the Haldimand proclamation as it was a duty imposed by law. 

So this very sentiment would discredit the argument of those that say the Haldimand proclamation does not apply to them as the Canadian democratic social structure applies to all Canadian regardless of race, creed, or religion. And therefore no one can claim to be an innocent bystander, we are all bound by the same democratic social structure that makes the Haldimand proclamation a duty for all of us. 

The concept of an innocent third party is based on mens rea and time, and, should be compared to the concept of laches, and we know that laches cannot be used by the governments as a defense to encroach on Indian treaty lands.

From the Records of the Federal - Provincial Arbitration (Unsettled Accounts Arbitration), Indian Claim, Robinson Treaties, Vol 5, Entered in the Department of the Indian Affairs, January 12, 1897:

The Hon. J.J. CURRAN, Q.C., SOLICITOR GENERAL FOR CANADA: "We contend that these Treaties are governed by international, rather than municipal law, they were made with the tribes under the authority of the Sovereign, and the faith of the nation was pledged in dealing with those annuities. The crown is a trustee in those matters, and occupies a special relationship towards those Indians, and is bound to watch over their interests and enforce their rights, and will not be allowed to set up its own laches as a defence against these claims. All these claims are safeguarded in a manner that is quite a different manner from any claim that would arise between two subjects of Her Majesty who might come before any court to have their matters adjudicated upon." (Arbitration Transcript, P63)

Note: Laches - In Law, failure to do a thing at the right time, is inexcusable negligence. - Slackness, Negligence or Remissness.

What happens to my rights and taxes paid in good faith on treaty lands?

The government has a fiduciary responsibility to all treaty people and must ensure that their rights are respected and that they are not disadvantaged. The government also has a responsibility to consult with treaty people on any decisions that could impact their treaty rights. However, when innocent third-party purchasers pay taxes on treaty lands, the government has a responsibility to them as well. But that must not be used to prevent the treaty people from asserting their rights or from being properly consulted.

What should happen to the taxes collected on treaty lands if the land belongs to someone else? The taxes collected on treaty lands should go to the owner of the land, regardless of whether they are a treaty person or not. However, the government still has a responsibility to consult with treaty people on any decisions that could impact their treaty rights. Canadians whose rights have been violated by the failure of their own government to inform them of the risk involved in occupying someone else's lands, by not providing proper environmental protections, or by forcibly removing them from their homes, have the right to seek redress through the courts. But they do not have a right to demand that Indians give up their lands and treaty rights in order to receive compensation.

Courts have stated that once the land has been put in a third party's hands that Indians have no recourse, but that is not always the case. If the treaty people can show that their way of life has been impacted by the development, they may be able to receive some form of remediation for the infringement on their treaty rights. This would require a court to find that the treaty people were not adequately consulted or that their rights were not properly considered.

Innocent third-party purchaser status should be abolished on treaty lands, it would put the onus on the development company or the government to get proper consent from the treaty people. It would also give the treaty people more bargaining power to negotiate for better terms, rather than just taking what is offered to them. This would help to ensure that treaty rights are respected and that Indigenous people are adequately compensated when their rights are infringed, it would put more pressure on the federal government and corporations to ensure that they are upholding their end of the treaty. This would also give treaty people a better chance at protecting their way of life and culture. 

Paying taxes to a government that is supposed to protect Indian treaty land from encroachments, and because the government consists of ordinary Canadian citizens they are one and the same, people and the government have common knowledge of these obligations and the pledges to the Mohawk on the Haldimand Tract, so even the concept of paying taxes as good faith is bogus.

In a nutshell

The government's responsibility to consult with Indigenous peoples does not end simply because a third party now owns the land in question.  The duty to consult extends to any activity that could potentially adversely impact treaty rights. This means that, even if the government is not the direct cause of the infringement, it still has a responsibility to ensure that treaty rights are respected and that Indigenous peoples are adequately compensated. The right of the Mohawk to restore their lands is guaranteed by law,  and the government has a duty to ensure that this right is upheld. It must not allow a defense of laches to claim treaty lands. Likewise, Canadians do not have a valid claim to "innocent third party purchaser" because the building blocks of Canadian society are based on these truths, and here in this case there no right for Canadians to claim ignorance.

Additional Resources:

By Benjamin Doolittle UE · July 6, 2022, 11:02 pm · Comments: 1 · RSS · Permalink


Comments: Comments are the heart of our community. They're what make us human. We believe in a place where we all can share ideas, opinions, thoughts, and feelings.

I use this analogy to explain the concept, Of a Bike thief bringing a bike to a pawnshop, The thief is guilty of course, but the pawnbroker, there is a slight paradox, if he asks if it is stolen and the thief says yes, then the pawnbroker breaks the paradox and if he takes the bike he is also guilty, But if he does not ask if the boke is stolen, the paradox is intact. And he is both guilty and not guilty, but there is a presumption of innocence. It would be hard to prove that the pawnbroker asked or had knowledge of the bike being stolen, And this is what people use to claim ignorance or innocence of acquiring treaty lands.

But I think about the actual real-world situation and if you had seen your stolen bike in the window, you would go talk to the pawnbroker and show him your receipt, in the best case you would call the police, show them and you would get your bike back.

OK, this is the M.O. for innocence, but our task is how to break this claim, how do you prove the pawnbroker knew the bike was stolen? Thereby changing his status from innocent to guilty. One way to collapse a paradox is to simply observe it. Another is by presenting your receipt!
by Benjamin Doolittle UE @ July 15, 2022, 7:26 pm (Edited: July 15, 2022, 7:26 pm)

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