Full constitutional argument supporting the Application for Writ of Mandamus.
The instrument
Gazette No. 64 — Memorandum of Fact and Law
April 2026 · Status: Provisional — Supports G63 on filing
Gazette No.: GZT001-260311-000064 [now GZT001-260310-000064]
Register Entry No.: REG001-020000-000064
Tracking Code: AG0311-020000-000064 Status: 13 — Provisional · Prepared and entered in the Register · Supports G63 on filing
Category / Class: Category 03 — Justice Services · Class 11 — Memorandum of Law
Memorandum of Fact and Law
In support of Application for Writ of Mandamus (G63) · April 2026
I. Introduction
This Memorandum supports the Application for a Writ of Mandamus (G63, GZT001-260310-000063) to compel the Crown in right of Ontario, the Crown in right of Canada, and other Respondents to enforce the Haldimand Proclamation and fulfil their constitutional and fiduciary obligations. The Applicant is Benjamin Doolittle UE, Secretary-General of the Mohawk Nation of Grand River Secretariat, constituted nunc pro tunc 25 October 1784 and formally registered 28 March 2026.
II. The Constitutional Encumbrance — Section 109
Section 109 of the Constitution Act, 1867 preserved the Mohawk Crown covenant interest at Confederation as an interest other than that of the Province in the Haldimand Tract lands. Ontario’s title to the Haldimand Tract has been, from 1 July 1867, subject to that interest. Crown grants purporting to convey Haldimand Tract lands free of that interest were issued in excess of Ontario’s constitutional capacity and are void ab initio by operation of s. 52 of the Constitution Act, 1982 (Reference re Manitoba Language Rights [1985] 1 SCR 721; Ontario Mining Co. v. Seybold [1903] AC 73). Good faith cures a notice problem. It does not cure a constitutional nullity in the grantor’s chain of title.
III. Administrative Notice Gap
Ontario’s Director of Land Registry Services Branch has acknowledged that the Land Titles Act provides no mechanism to register the Mohawk Crown covenant interest. Ontario has declined to deny the validity of that interest. Following Kingspan Insulated Panels Ltd. v. Brantford (City), 2010 ONSC 4610, the City of Brantford now inserts a standard First Nations Claims waiver in every Haldimand Tract land transaction — a formal institutional acknowledgment that the constitutional problem is real. A private contractual disclaimer does not constitute public notice and does not extinguish the underlying constitutional interest.
IV. Oaths of Office and Mandamus Criteria
Every peace officer, minister, and official who has taken an Oath of Office or Oath of Allegiance is constitutionally bound to observe and enforce the Haldimand Proclamation (McAteer v. Canada (Attorney General), 2014 ONCA 578). Mandamus criteria are met per Vaziri v. Canada, 2006 FC 1159: (a) clear legal right; (b) public duty; (c) unreasonable failure; (d) no adequate alternative remedy; (e) balance of convenience in favour of issuance.
V. Trustee de Son Tort and Unjust Enrichment
Officials exercising authority over Haldimand Tract lands without lawful mandate are trustees de son tort (Air Canada v. M & L Travel Ltd., [1993] 3 SCR 787). The Crown’s fiduciary duty cannot be defeated by laches (Restoule v. Canada (Attorney General), 2021 ONCA 779; Guerin v. The Queen [1984] 2 SCR 335). Unjust enrichment is established on three elements (Moore v. Sweet, [2018] 3 SCR 303): enrichment, deprivation, absence of juridical reason. The Schedule of Unjust Enrichment (G61) establishes a conservative aggregate of approximately $2.96 trillion CAD.
VI. Individual Hereditary Rights
The rights conferred by the Haldimand instruments are individual hereditary interests, not collective Aboriginal rights. The Haldimand Proclamation created no corporation or body politic (Jackson v. Wilkes (Doe Dem) [1835] 4 U.C.R. (O.S.)). R. v. Desautel, 2021 SCC 17, confirms that rights vest in modern-day successors regardless of current residence or the absence of collective governance, foreclosing any argument that Loyalist Mohawk posterity lost ancestral rights through the Revolutionary War displacement.
Cross-References
GZT001-260310-000063 G63 · Application for Writ of Mandamus (Provisional)
GZT001-260204-000065 G65 · Notice of Constitutional Encumbrance, s. 109
GZT001-260312-000066 G66 · Attorney General’s Demand to the Crown
GZT001-050400-000061 [now GZT001-260609-000061] G61 · Schedule of Unjust Enrichment
GZT001-260313-000051 [now GZT001-261905-000051] G51 · Grand River Location Determination Rules
Respectfully submitted under the authority of the Secretariat of the Mohawk Nation of Grand River.
Benjamin Doolittle UE · Secretary-General
Secretary-General
Date
Certification of the Registrar General
I certify that this instrument has been duly received, examined, and entered in the Register of the Nation of the Mohawk Nation of Grand River Secretariat.
Gazette No.: GZT001-260311-000064 [now GZT001-260310-000064]
Register Entry No.: REG001-020000-000064
Jesse Butler UE · Registrar General
Registrar General
Date of Registration
This instrument forms part of the permanent record of the Secretariat.
Mohawk Nation of Grand River · Grand River Territory
