Kanesatake's 301-year-old land dispute highlights flaws in Canada's Specific Claims Policy

Solving the land dispute has been of the highest importance to the Mohawk community, but it hasn’t been an easy process between federal bureaucracy, confidentiality clauses and ongoing development in the area.

Development on disputed land continues as band council negotiates behind closed doors

Not everyone in Kanesatake has been satisfied with the Specific Claims Policy negotiations between the federal government and band council. (Mike O'Shaughnessy/CBC)

301 years.

That's how long a First Nation in Quebec has been trying to reclaim its land.

The Mohawks of Kanesatake once occupied 689 square kilometres of land northwest of Montreal. Today they have 12 square kilometres.

Solving the land dispute has been of the highest importance to the Mohawk community, but it hasn't been an easy process between federal bureaucracy, confidentiality clauses and ongoing development in the area.

"The federal government has a fiduciary responsibility to all First Nations people, and here what you see is the lack of fiduciary responsibility," said Serge Simon, grand chief at the Mohawk Council of Kanesatake.

Canada's "fiduciary responsibility" to Indigenous people was recognized in a 1984 Supreme Court of Canada decision which placed a legal obligation on the government to safeguard the interests of Indigenous Peoples in managing their lands and rights.

Serge Simon was elected as grand chief at the Mohawk Council of Kanesatake in 2011. (Jessica Deer/CBC)

Simon said the neglect of this duty was the root of the 1990 Oka Crisis — the 78- day armed standoff between the people of Kanesatake, the Sû​ré​te du Québec and later the Canadian military — as well as more recent issues between his community and their neighbours at Oka after a private land developer offered to return some of the disputed land. 

"These lands were unjustly taken from us, resources cut off, and now you look at the poverty in our community that existed for a long time and what came out of that," said Simon.

"When a man has nothing left to lose, he becomes a very dangerous man. And I think that's what happened in 1990 — we had nothing left to lose."

Negotiating under the Specific Claims process

The Mohawk community's claim to the land known as the Seigneury of Lake of Two Mountains was first filed to the federal government in 1975. After being rejected and refiled a number of times, a part of the claim referred to as the "small commons" was officially accepted under Canada's Specific Claims Policy for formal negotiations in 2008. 

Specific claims deal with past wrongs against First Nations, often regarding the administration of land. As of last year, Canada has been negotiating 250 specific claims, and another 160 are under review or assessment.

The claims are often settled with monetary compensation for loss of land. Some settlements, like the one offered to the Mohawk community of Akwesasne for its Dundee grievance, also come with the ability to purchase land from willing sellers. 

The smallest area of the Seigneury of Lake of Two Mountains land claim is being negotiated under Canada's Specific Claims Policy. (Jessica Deer/CBC)

Some people in Kanesatake feel they've been left in the dark throughout the process thus far.

According to minutes from a community meeting that took place Aug. 6, the lack of information available about ongoing specific claim negotiations was one of many issues on which the people of Kanesatake felt a lack of confidence in their band council. 

Gordie Oke, a former council chief, said that's because of a confidentiality clause the band council had to sign when entering the negotiation process for the claim.

"It bothered me because we always have to consult our people about any type of issues coming forward by the feds," said Oke.

Signs were erected along Highway 640 in Kanesatake last month to raise awareness of the unsettled land claim. (Mike O'Shaughnessy/CBC)

He said land has always been the number one issue in Kanesatake, but the council only met with the federal negotiator "a couple of times" during his two years on council. 

"People are looking for a resolution to all of this, and it takes time. That's how government works; you never know what's going to happen with the next election."

'Irritants' to the process

Peter Di Gangi, a board member at the First Nations-led research centre Yellowhead Institute, said the confidentiality agreements, slow-moving bureaucratic nature of the process and changes in government are some of the "irritants" First Nations across the country have with specific claims.

However, he said the biggest problem is the federal government's conflict of interest.

"The claims are against the federal government. At the same time, it controls the negotiation process, controls the funding. It controls just about every aspect of the process," said Di Gangi. 

"That has an impact on the ability of First Nations to feel that they have an opportunity to have their claims addressed in a fair and open manner."

In places like Quebec, underlying Aboriginal title to the land also complicates situations when the federal government seeks a "release" to the claim when a settlement is reached. 

"For some communities, it's viewed as a form of extinguishment," said Di Gangi.

"If you have underlying Aboriginal title and are sitting at the table with the government to resolve a specific claim, why would you want to release your underlying title just to settle a reserve claim?"

That's the concern Kanesatake activist Ellen Gabriel has.

She was at the frontline of negotiations during the Oka Crisis and does not believe the Specific Claims Policy is the answer to resolving her community's land dispute.

Ellen Gabriel wants the federal government to sit down with the People of the Longhouse to resolve their 301-year-old land grievance. (Jessica Deer/CBC)

"It's a monetary compensation for their derogation to something they should have been doing all along. It doesn't give us back our land; it doesn't respect or recognize our rights and unceded lands," said Gabriel. 

"You can't put a price tag on the land and how much it is worth."

Call for inclusion of traditional government

She wants the government to work toward resolving the land dispute by sitting down with the People of the Longhouse, the traditional governance structure for the Iroquois Confederacy of Mohawk, Onondaga, Oneida, Tuscarora, Seneca and Cayuga nations.

However, the policy allows only band councils to file a claim. Canada will also not take away land from third parties to settle claims. That's why both Simon and Gabriel have been calling on the federal government to issue a moratorium on development within the entire disputed land until the claim is resolved. 

"While we're doing this and development is going on, it's like trying to do a tune up a car that's going 100 miles per hour down a highway," he said. 

"Stop the car and do the tune up and then be on your way."

Marc Miller, parliamentary secretary to Minister of Crown-Indigenous Relations Carolyn Bennett, said there are efforts being made to reform the Specific Claims Policy. He said there is currently a technical working group with the Assembly of First Nations about the reform process.

"The claims themselves are horrendously outdated, and paternalistic," said Miller.

"The language of termination is no longer the policy of the government, so we're in a bit of a grey area in terms of negotiations with a number of First Nations."

He said it's a slow process, and there's valid criticism of the policy.

"[Negotiations] are confidential. One major reason is it offers the sides a forum to have face-to-face discussions and not have a process where you're negotiating in the public domain through media," said Miller.

"But understandably it does create suspicion, particularly if there's tension or issues of governance in a community. There's never any intention of a confidentiality clause to prevent discussion between the people at the negotiation table and people in community."

The office of the federal minister of Crown-Indigenous Relations and Northern Affairs Canada also previously said it has been working collaboratively with the Mohawk Council.

"Reconciliation is not only an Indigenous issue — it is a Canadian imperative and one that will involve all of us," a statement to CBC News read last week.

"Our work also includes our deep commitment to the settlement of the historical land claim of the Kanesatakehró:non, the people of Kanesatake, and to resolving past wrongs."

For Gabriel, the statement rang hollow. 

"Reconciliation includes reparations and restitution," she said.

Oka land dispute: A timeline


Ka’nhehsí:io Deer is a Kanien’kehá:ka journalist from Kahnawà:ke, Que. She is currently a reporter with CBC Indigenous covering communities across Quebec.