In any legal situation, communication is the key to reducing confusion and resolving problems quickly. This principle applies to Ontario municipal councilors who must balance their duty to the municipality with their duty to the people they represent under the Municipal Act while negotiating in good faith with Ontario on behalf of the Grand River Mohawk legal posterity. This piece explains what trustee de son tort means, why Ontario municipal councilors should understand it, and how it affects current land developments and the Grand River Mohawk legal posterity negotiations.

What is a Trustee de Son Tort?

A trustee de son tort is someone who has illegally encroached on another person's property. In Ontario, municipal councilors may be at risk of becoming a trustee de son tort while acting on the Haldimand tract. This is because they may not have a mandate from the Mohawks to do so. Nor does their official mandate provide them with any more rights than those of the general public when it comes to encroachments in this area. The key for councilors will be how can they keep their council memberships without violating the 1779 Haldimand pledge or proclamation of 1784?  These documents attempt to set boundaries of what is now known as Haldimand tracts. Councilors must find ways to fulfill their obligations to their municipalities without encroaching on these boundaries. That is why the grand river is so important because of the number of Municipal bodies that could potentially be at risk by these encroachment issues that relate to the Haldimand pledges and proclamations. Therefore, each municipality should take care before making any plans related to land use or sale agreements on this tract of land because these actions could create problems for themselves later down the road.

As such, municipal councilors should inform themselves about these issues before acting on any land or business deals in or near areas considered part of Haldimand tracts. This includes encroachments and development near settlements belonging to the Mohawks in Canada, which were also made an agreement by Lord Dorchester. Or encroachments and development near settlements belonging to the Six Nations people, which were also made an agreement by Governor Simcoe.

Encroachments on the Haldimand tract and Grand River Mohawk treaty lands can create problems for many municipal bodies. This could be a problem for any provincial or federal body that resides in Ontario. As well as any business operating in Ontario. However, it is more likely to be an issue for people living within Ontario itself because they are most likely to encroach on these lands either intentionally or inadvertently.

When the elected representatives fail to observe the Haldimand proclamation it leads to further encroachments, but here because the councilors take the Oath of Allegiance they have a higher duty to observe the Haldimand Proclamation, to protect the honor of the crown,  and obey the law. It becomes even more complicated when you consider how some businesses act as agents of the Crown. For example, Hydro One often has projects taking place on lands subject to the Haldimand proclamation where they install infrastructures like power lines or roads. However, these developments often end up encroachments because there was no formal authorization given beforehand to undertake these projects.

Failing to inform their constituents of these underlying interests, councilors could become trustees de son tort by failing to ensure their citizens' safety while they are conducting economic development initiatives. At the same time, if councilors say anything negative about these declarations, they might be accused of treason against Queen Elizabeth II- Queen of Canada, and thus face imprisonment.

When anyone employed by the Queen is aware of treason and does not report it,  they commit the crime of misprision of treason. This is true whether they witnessed the incident or only became aware of it through circumstantial evidence. So, local councils need to be very careful before approving new encroachments on Haldimand tracts because this would be seen as unlawful.

To avoid any legal action for negligence due to encroachments on Haldimand tracts municipal councils should conduct more research into how these regions came to be under negotiation. Councilors need to also consider if they are acting according to their own interests or those of their constituents before voting in favor of any new encroachments or developments on these lands or are they acting for the exclusive benefit of the Mohawk legal posterity.

Municipal councilors are supposed to be trustees for their citizens. However, when they allow encroachments on the Haldimand tract, municipal councilors become trustees de son tort because they have not considered all of their constituents' interests. Instead, they just consider how they can expand these businesses into new territories.

 If councilors believe that they have researched the Haldimand tract sufficiently to be able to make an informed decision about any encroachments on these lands,  then they should present all the facts of their research, along with a real mandate from the Mohawks, to show that this is truly what both parties want. Otherwise, the councilor's vote for any new encroachment will be futile because they cannot provide justification without a mandate from the Mohawks. Furthermore, councilors will probably never receive such a mandate because of the anger and hurt caused by past events related to encroachments on Haldimand tracts, grand river mohawk treaty lands. Unless it appears that both parties are coming together in peace around one another (which is unlikely) we may never see a resolution regarding Haldimand tract encroachment issues. 

The most important thing to take away from today's episode is that municipal councilors should understand their responsibility as trustees. If they fail to fulfill their duties as trustees because they are not properly informed or do not consider Mohawks' interests when voting on encroachments or developments on the Haldimand tract then they become liable for negligence toward them (Trustees de son tort).

On December 24, 1971...

On December 24, 1971, the Government of Canada confirmed the Haldimand Proclamation of 1784 in an Order in Council. The Proclamation set aside six miles on each side of the Grand River for the use and benefit of the Six Nations Iroquois. The lands are known as the Haldimand Tract. The Haldimand Proclamation is a solemn pledge of faith by the British Crown to honor Mohawk of Grand River and Bay of Quinte land rights. The land was acquired under operation of a formal treaty and set apart before the confederation, which made the Proclamation part of the Canadian democratic social structure. 

Because the Candian government agreed to the terms of the proclamation, the land being set apart, means that the Grand River Territory is extraterritorial to the Canadian domain and the province of Ontario. 

The Royal Proclamation can also be deemed to apply in relation to disputes over the land title for aboriginal peoples generally. The Supreme Court of Canada confirmed that Indians have aboriginal rights which are recognized and affirmed by s. 35(1) .

Although the Application of Canadian law within the extraterritorial land might seem legitimate, it is not without its risks. The risk becomes apparent when considering whether the Municipal councilors become trustee de son tort while acting within the Haldimand tract if they do not understand their personal and fiduciary duties arising from Canada’s confirmation of the Haldimand Proclamation of 1784.

The charge is they may become trustee de son tort while acting on those lands because: 1) they do not have a proper mandate from the Mohawk peoples, 2) they do not understand their fiduciary duties arising from Canada’s confirmation of the Haldimand Proclamation of 1784, 3) the land is not within the provincial boundaries of Ontario and the council is subject to the Mohawk legal order.

Council's Duties to Stakeholders

When acting on the Haldimand tract, it is important for municipal councilors to understand the risk of becoming a trustee de son tort. This is because there is a duty to act in good faith and in the best interests of all stakeholders, including the Crown. This duty is known as the honor of the crown and was first established in the Haldimand Pledge of 1779. The Pledge is a right of Status Quo Ante Bellum, a promise to return to the same state as before the wars broke out, a reservation of sovereignty.  It also states that Indians shall not be forced to leave their homes or be deprived of their liberty or property. 

After much deliberation, the honor of the crown can be interpreted as an obligation by a representative body like a city council or provincial legislature to not just exercise power but also preserve power for future generations. 

Mohawk has never granted the Provincial government the right to govern within the tract,  so any decision made by the council would be doing so without consent from those who hold title to the land. Furthermore, any attempt at such governance would constitute a breach of trust under the Indian Act and could result in liability for damages (R v Pamajewon).

However, since this land is not within Canada it is uncertain how the Indian Act or all Canadian and provincial acts apply to Mohawk lands, or what type of agreement between the parties could be reached. There are no precedents in international law or Canadian law to help us determine how decisions relating to governance should proceed. For these reasons, Ontario municipal councilors should avoid making decisions relating to governance while acting on the Haldimand tract.

If a councilperson fails to observe a duty imposed by law and leads to wanton or reckless harms that are considered criminal negligence, they may be charged with the crime of neglecting public duty. There are four essential elements needed to prove neglecting public duty: 1) A person entrusted with a public office or function; 2) must fail to discharge his duties; 3) with gross carelessness; 4) leading to serious consequences. Neglecting public duty carries with it severe penalties including fines up to $10,000 and imprisonment up to two years less than one day.

This changes the risk from civil to criminal if the individual has a duty imposed by law and does not follow through. Council's duties include understanding their constitutional obligations and obligations to other jurisdictions when deciding whether or not to move forward with an issue pertaining to the Haldimand tract.  They need to research the historic treaties, agreements, and rights pertaining to the territory. They need to ensure the residents are consulted throughout the process and take responsibility for violations of human rights legislation if they are found negligent. Councils need to consider the potential risks associated with being a trustee de son tort in order to properly represent themselves as custodians of this region.

It is their responsibility to understand how their actions could potentially affect all parties in what would be an otherwise international controversy. Given that they are not representing Canada or Ontario but rather themselves as trustees on behalf of those residents within their jurisdiction, it is also important for them to make an informed decision about how best to proceed. They need to educate themselves about laws pertaining to governance within indigenous communities both in Canada and abroad.

In addition to researching international laws and human rights laws, councilors must also research their own responsibilities as trustees.  The fiduciary duty of a council member imposes a number of duties which include fairness, honesty, integrity, good faith, and accountability. These are the same principles that guide fiduciaries in general. Council members cannot mislead the general public or any stakeholder groups when it comes to their responsibilities. Stakeholders include not only people living in the area now but also future generations of stakeholders who will inherit the responsibility of caring for this land after the council is gone.

That is why understanding who is legally named in the Haldimand Proclamation of 1784 and the Treaty of 1794 is vital to any discussion. Council members would be breaching their fiduciary duty if they did not fully understand the boundaries of their duties and the potential liabilities which could arise. 

There are also strict legal requirements for public consultation which must be followed when dealing with indigenous peoples. Council members would be breaking their fiduciary duty if they did not understand how to properly consult indigenous peoples. They need to understand why public consultations must take place prior to making any decision pertaining to the territory. Public consultation is vital in order for councilors and all stakeholders including indigenous groups to be aware of issues within their communities. Council members should have proper documentation so that they can prove they consulted with all relevant stakeholders.

Municipal Liability as Trustees without a written mandate from Mohawks

In Ontario, municipal councilors may be held liable as trustees without a written mandate if they knew or ought to have known that their actions would result in the establishment of a trust. The Haldimand tract is a perfect example of this. The land was originally set aside for the exclusive use of the Mohawk posterity, but over time it has been sold and developed by non-natives. This has led to conflict and litigation over who has the right to use the land.

The duty of care owed by municipalities is influenced by policy-makers’ awareness or knowledge. The standard adopted in Canada is that municipal councils have an obligation to act reasonably in carrying out their duties. This means that liability for damages will only arise where councilors failed to act on matters of which they were aware. Liability results from negligence due to failure to perform duties carefully, but not from mere recklessness or bad faith.

Here because the Haldimand proclamation was confirmed, it is common knowledge and ignorance should not be used as an excuse, especially since the purpose of the proclamation was to provide for the exclusive benefit of Mohawks. Municipal councilors are obligated to act responsibly and make informed decisions before authorizing any dealings with these lands since the risk of becoming a trustee de son tort exists. As always, careful consideration must precede any decision made with respect to these lands so as not to violate either treaty rights or public law obligations.

How to balance the obligation to constituents, while at the same time honoring fiduciary responsibilities? 

Councilors need to remember that when dealing with issues related to the Haldimand tract, they are doing so as trustees. Accordingly, all councilors must conduct themselves in accordance with a high standard of reasonable care. They also need to understand how their actions can affect indigenous rights and interests.

Municipal councilors must remember that they have a duty to act reasonably and in good faith when dealing with matters relating to indigenous issues. Any actions on their part will be subject to future interpretation by courts and thus it is important that councilors are careful about how they carry out their duties. Being aware of these responsibilities can help municipal councils avoid liability for breaches of fiduciary duty.

In Brantford, there are over 10,000 indigenous peoples of many nationalities, and without a clear mandate from these peoples, it is likely that councilors could be viewed as indeed being trustees de son tort. Because of this, municipal councilors need to proceed with caution and consult local Mohawk communities before making any decisions involving the Haldimand tract. Consultation should include discussions on lease arrangements, permits, taxation, maintenance and transfer of ownership etc.

Recommendations for Municipal Councilors 

1. First and foremost, municipal councilors should educate themselves on the Haldimand tract, and the potential risks associated with becoming a trustee de son tort. 
2. Secondly, they should consult with legal counsel to get a better understanding of the risks involved and what could happen if they were to become a trustee de son tort.
3.  Once this is done, municipal councilors can then make an informed decision about whether or not to proceed with their proposed development plans for the Haldimand tract. 
4. In the event that a municipality decides to continue forward as a trustee de son tort in spite of these risks, they may want to consider how they are going to deal with any damages incurred as well as whether or not their municipality will be able to afford such damages. 
5.  One solution would be to have all costs accrued from a trustee de son tort situation covered by insurance. 
6. Another option would be for the government to provide funds (whether from federal or provincial governments) that would cover damage from being a trustee de son tort. 
7. Municipal councils might also want to consult with developers, who might provide them financial assistance if it comes down to it 
8. It's important to note that even if you take all of these precautions there's still a chance you'll end up being a trustee de son tort. 
9. If your municipality does end up getting sued because they were acting as trustees de son tort, there's always the possibility that your city won't be able to pay off those debts so it's good to think ahead and plan accordingly. 
10. Finally, while some municipalities might see monetary benefits from having a business located on the Haldimand tract and accepting liability for damages caused as trustee de son tort, others may find that undertaking this responsibility is too risky and choose not to go through with it. 

Summary

As an Ontario municipal councilor, it's important to understand the risk of becoming a trustee de son tort while acting on the Haldimand tract. This is because the law governing these lands is complex and often misunderstood. If you're not careful, you could end up inadvertently breaking the law and being held liable for damages. If there is no written mandate to represent Mohawk and Mohawk treaty interest councilors may become personally liable for any damages,  including financial loss and harm to reputation. Misapplication of law can be dangerous especially in this case as land encompasses more than one legal system: Canadian federal and provincial laws as well as Mohawk law and custom.

The risks don't stop there. If Ontario's municipal councils become trustees of lands they are not adequately educated on they may be called upon to relinquish their powers and make decisions based on legal counsel. This can have huge ramifications for those councils that aren't well versed in Indian law as councilors have taken an oath to respect Ontario's municipal act which clearly delineates council duties. However, a reversal would amount to expropriation which is not permitted under Canadian law.

Taking the oath of allegiance not only includes observing the Candian law system and swearing loyalty to the Queen of Canada, it also includes respecting the right of Mohawks to govern themselves and operate according to their own laws. Nowhere does the oath of allegiance state that councilors should adhere strictly to federal or provincial law if it contradicts with upholding the rights set out by treaties with indigenous people (i.e., international law). Nor does it require councils to hand over decision-making power when they lack education in specific areas like Indigenous Law.

Awareness is key!

Additional Resources:

• https://www.gregsonandassociates.com.au/executors-de-son-tort/