The appeal claims that – “the only response that was explored in depth through community education was the “Yes” response, with the material focused around supporting/demonstrating only the benefits of the “Yes” response.”
By: Regan Jacobs
Last December the Akwesasne Court, on the Canadian portion of the Mohawk territory, announced that it had received several appeals in regards to the Tsikaristisere/Dundee Land Claim Settlement Agreement Special Referendum, which was held on December 8, 2018.
Out of 2,197 voters, 79.61 percent approved the terms and conditions of the Dundee Claim Settlement Agreement.
However, though a majority of those voters accepted the proposed agreement, which was a $240 million offer from Canada to settle the 130-year-old land grievance, only 28 percent of eligible voters participated in the referendum.
Several days after the referendum results were shared, some Akwesasne community members rallied against the validity of the referendum and urged community members to submit an appeal – which they eventually did.
Almost a year later, the Mohawk Council of Akwesasne(MCA) released the results of those appeals through a press statement — “the court confirms the referendum was conducted in good faith and thereby declares the referendum results valid as per s. 20.9(a) of the Tsikaristisere/Dundee Claim Settlement Agreement Special Referendum Regulations.”
Although five appeals were filed, only one proceeded to a full hearing.
Akwesasne community member Scott Peters filed his appeal in December of last year and it was ruled upon on Oct. 18, 2019.
According to court documents, the Appellant’s(Peters) principal issue is that community education provided for the Tskikaristisere/Dundee Claim Settlement Referendum was not held to standards of rules and ethics to ensure impartiality, integrity, and honesty of information conveyed to the community.
Peters took issue with the information that was provided by Community Educators (CE’s) and also with the educational information communicated by the Aboriginal Rights and Research Office (ARRO). In his appeal, Peters says that community education, including educational and outreach materials distributed to the community, demonstrated a bias toward garnering the “Yes” voting response of the community, and could have materially affected the results of the referendum.” – court decision.
In response to this, the Court went on to examine the role of the Chief Referendum Officer, Leona Benedict, and the Deputy Referendum Officers during the education campaign, and all of the educational materials they used, which were created for them by ARRO.
Court documents indicated that both Peters and the MCA agreed the Chief Referendum Officer and the Deputies had performed their duties impartially and in accordance with the Dundee Claim Settlement Agreement Special Referendum Regulation.
With respect to the role of ARRO, evidence supports that the educational materials developed and distributed by ARRO were not specifically subject to the terms of the Special Referendum Regulation. However, section 8.4 of the regulations states Council may hold additional meetings at which Council or its designated officials may explain to members in attendance the Settlement Agreement, the Ballot Question, and the Referendum procedure, and members shall have the opportunity to discuss and ask questions regarding the settlement agreement and the referendum.
Therefore, ARRO was able to speak to the agreement and Council can further designate them to do so. However, what is not identified in the regulations are specifics pertaining to the content, message, or how the materials should be developed to ensure impartiality, integrity, and honesty of information being conveyed to the community.
As a result, the Court examined all materials developed and distributed by ARRO as evidence. A total of 207 exhibits were reviewed such as social media/online posts and videos, newspaper inserts, flyers, postcards, billboards, and power-point presentations presented at various community and information meetings.
The evidence shows through the community education process an abundance of information was developed, distributed, issued, presented, and made available to the community with a wide variety of communication methods designed to reach and educate the broader community.
“Through the Court’s analysis, more than ninety percent of the education information developed and distributed was determined to be impartial and unbiased.” – court decision.
Regarding the accusation of whether the information sessions had focused almost exclusively on the ‘yes’ side of the referendum, the Court determined that the MCA had the responsibility to deliver unbiased information during the community education sessions. They did acknowledged that it is possible to see how people could have thought the meetings were biased, however, after an examination of the evidence, the process did not show a lack of fairness or impartiality.
As a further response, the MCA called on community member Hilda King to provide witness testimony as to the education and information provided at the information meetings. King indicated she had been a District Chief on Council for three terms from 1986 to 1994 and that she had knowledge of Mohawk Council working on the Dundee Land claims file in the 1970’s when she had worked in the MCA finance department during that time.
King said she had attended several of the referendum information meetings, asked questions and received answers, leaving her satisfied with the information she sought. Ms. King also indicated she and her family had discussions, shared information, and considered the pros and cons of voting yes or no.
In addition, King reviewed all of the materials received at the meetings and by mail as well as contacting ARRO directly to obtain answers to questions she had and confirmed she received the information she was seeking.
The Court concluded that it was satisfied that the information meetings were conducted by those who possessed the historical, legal, and financial knowledge of the claim and details of the Settlement Agreement.
Documents further revealed that the Appellant could not substantiate his claim of being misinformed. Evidence and testimony presented indicated Peters has proven his ability to understand and comprehend the complexities of the Tsikaristisere/Dundee Land Claims issue. The evidence indicates he has known about the Dundee Land Claim issue since 1988, has followed updates over the years, had numerous conversations with ARRO representatives, and is knowledgeable about the Additions to Reserve Policy (ATR).
In conclusion, the Court ruled that it believes the MCA, ARRO, and CE(s) did not mislead the community in their efforts to educate the community regarding the Settlement Agreement.
“They upheld their duty and responsibility to educate with an abundance of factual education materials and provided opportunities for community members to access information”. – court decision.
THREE MORE APPEALS
Akwesasne community members Virginia Johnson, Ronald Sunday and Steven Thompson-Oakes also filed appeals within the same time frame of Scott Peters. Each appeal had different arguments for why the referendum result should be invalidated, ranging from concerns that information put out by the MCA chiefs and the get-out-the-vote campaign was inaccurate or one-sided, to more technical complaints contesting how the ballots were cast and the language of the settlement agreement itself, however, none of these appeals went on to a full hearing.
The last remaining appeal was launched by community member Karla Ransom, however no decision has been made yet as to whether or not it will proceed to a full hearing.
At this time, the Mohawk Council of Akwesasne says they cannot comment on the outcome until there is a decision on the final appeal.
*The full court document can be obtained through the Court of Akwesasne.
Sources ((File #: 001-DSRR-12/18 Scott Peters, Appellant V. Mohawk Council of Akwesasne & MCA CRO-Benedict, Leona Mohawk Council of Akwesasne, Respondants).
