Opinion: Whose court best serves Indigenous people?

He swaggers into court, late, with a gorgeous Mohawk headdress atop his crown.

A cornucopia of eagle feathers and maybe another bird, affixed to a beaded headband.

Two allies are similarly adorned.

Nowhere have I found any evidence that Kenneth Hill – multimillionaire Six Nations businessman, cigarette manufacturing czar – holds the status of chief or any other leadership designation. But such headdresses are sometimes bestowed out of tribal respect so maybe that’s it. There’s no doubt that Hill, co-founder of Grand River Enterprises, has enriched his Indigenous community on the Six Nations reserve, cranking out some six million cigs a year destined for the U.S. alone.

From modest entrepreneurial beginnings to – upon acquiring a federal tobacco license in 1996 – a billion-dollar empire, albeit difficult to pinpoint in value because income earned by Status Indians on reserves is not taxable.

The courtroom is wall-to-wall jammed with lawyers and spectators, most of them Hill supporters, lots of big men with tattoos and frowning faces. They utter verbal versions of the fist-pump – “Yeah! Yeah!” – when, at one point, one of the three Ontario Court of Appeal judges sharply rebukes a lawyer representing the woman with whom Hill has had a child, just turned nine years old.

“We don’t need any more characterization of all the things the appellant has done that are bad,” admonished Justice Peter Lauwers.

It took two years of litigation before Hill provided some financial disclosure, claiming a self-reported income of $5.49 million in 2015, but with, allegedly, total expenses surpassing that figure by $7.4 million, according to documents filed by ex-girlfriend Brittany Beaver.

During a break in the proceedings, a female Hill supporter hissed toward the ex, as she walked by, “Brittany Kardashian!”

A gold-digger is the implication, exploiting their son, B., as a meal ticket in perpetuity.

The legal snarl has been going on for years.

At issue now, what’s being argued at appeal, is whether Haudenosaunee laws should trump Ontario family law in disputes involving Indigenous families when consensus can’t be reached.

“Family law is a core area of tribal administration,” Chris Paliare, a Hill lawyers, told the court, with “well-developed laws and practices and customs to settle custody cases.”

Even though, as the court heard, the Haudenosaunee Confederacy Council declined to settle this dispute when Hill asked in 2016.

In his most recent pleadings – and this is the sixth version – Hill asserts the council won’t undertake a resolution because Beaver brought her case before the Ontario Superior Court and the council’s “stated position is that no Haudenosaunee person should compromise their sovereignty by appearing before courts of another jurisdiction.”

The legal argument turns primarily on Section 35 of the Constitution – affirmation of existing Aboriginal and treaty rights.

If the appeal judges find in Hill’s favour, overturning a Superior Court ruling, it could have momentous repercussions, setting a precedent harmful to vulnerable Indigenous women and children by diverting them away from Ontario courts that apply to everyone else.

It was only two years ago that Hill suddenly argued, for the first time in a case that had been dragging on and on, that Ontario courts should have no jurisdiction over the matter.

“What’s the side of the angels?” Martha McCarthy, whose firm represents Beaver, asked rhetorically in a side conversation with reporters.

“If Ken Hill succeeds in sending Brittany Beaver out of the court system, the decision will throw into question family law orders and agreements for every Aboriginal person in the province, probably in the country.”

Or, as her colleague Joanna Radbord argued before the tribunal, “His position is, ‘I have a constitutional right’ to have this matter decided by Haudenosaunee laws. (But) the court system is a fundamental right that has to be available to all.”

Adding, “Even if there was a tribal court … under law principles, Ontario still has jurisdiction. The Confederacy has declined to take jurisdiction. The Confederacy has done nothing for two and a half years. And the Confederacy will not (intervene) because Ms. Beaver wants to use Ontario law. So clearly she has nowhere else to go.

“(B.) has a right to support. Ms. Beaver has a right to support. Ms. Beaver has a right to an enforceable order.

“Section 35 does not deprive Indigenous people of all the rights and benefits of the law. (B.) should not have more cost, more delay and more difficulty because he is an Indigenous child.”

Radbord said Hill already had his day in court – 18 days actually – as she urged the appeal judges to uphold Justice Deborah Chappel’s decision last December that kicked out the Indigenous law bid.

“Ms. Beaver is not interested in joining Mr. Hill in search of an alternate legal system.”

Radbord likened Beaver’s situation to the Flying Dutchman, a legendary ghost ship that never makes port, doomed to sail the seas forever, and it’s time to bring the case to trial in Ontario family court.

How did we get here?

Hill, 59, and Beaver, 32, met in 2008, while she was working in corporate promotions at Grand River Enterprises. She claims they lived together for about a year and had a baby in August 2009. Their sexual relationship continued, Beaver states in court documents, until late 2013, although they had been living apart since the child’s birth. Yet they continued to take expensive vacations together and Hill showered Beaver with gifts, luxury cars, shopping sprees around the world, and a $400,000 “cottage” in Turkey Point (he retained deed title) and a $869,000 house where Beaver still lives with her current common-law husband and their child.

Beaver has been receiving approximately $10,000 a month in child support – in case – and, on average, a further $4,000-plus a month for additional expenses, such as private school fees for the boy.

Also a member of the Six Nations confederacy, although she doesn’t live on the Grand River reserve, Beaver describes herself as a stay-at-home mom and student. She’s seeking $85,700 in interim monthly spousal support and $33,183 a month (based on child support guidelines) for their son, retroactive to their 2013 separation. That’s when she brought their relationship to an end during a tumultuous vacation in the Bahamas.

Hill counters that their relationship had been nonexclusive, not “of permanence,” they’d never lived together and he shouldn’t be obligated to pay Beaver spousal support.

The latest pleading, however, goes into much broader cultural and traditional context underpinning the responsibilities of a Haudenosaunee father towards a Haudenosaunee child. A child towards whom Hill has shown minimal interest since his birth, insists Beaver, until a “last-minute custody claim” earlier this year, according to her factum. A separate judge struck down that amendment but Hill is appealing the decision and now wants B. to be live with him on the reserve, either full-time or in a shared-custody arrangement.

“It is necessary to remember this is a family-law case, with involvement of a child,” Radbord told the judges. “(B.) is not in the courtroom today but his mother is here, so is his great-grandmother.

“Brittany Beaver has been in no man’s land for two years. The applicant wants to keep her there.”

At the end of a long day, the judges reserved their ruling.

Rosie DiManno is a columnist based in Toronto covering sports and current affairs.

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