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Mohawk Nation of Grand River

Exclusive Use and Enjoyment

Not occupation, not a collective: an interest held person by person, locked to the land until the class surrenders it.

The band’s lane: s. 35, a duty to consultoccupationa collectiveconsultjustifysettlemoneyThe Mohawk lane: ss. 109 and 52, a duty to obey1784s. 109St Catherine’sSeybold0 surrendersa surrenderthe posterity for ever, the unborn among them

Tap any stop on either lane, or the padlock, and it opens here: each stop on the band’s lane set beside its answer on the Mohawk lane.

Two lanes through the same courtroom. Tap any stop on either lane to read what it means; tap the padlock and the key of surrender slides in, and the lock holds.

How the s. 35 road destroys the interest

the classa collectivea releases. 88no way outRELEASEsigned for allprovinciallaw walks inOn the Mohawk lane none of this can happen: no surrender, no s. 88, the class kept.

Press the button, or tap a stage. Gold is the class: finite, exacting, on oath; grey is everyone else on the band’s list.

How sections 109 and 52 keep the interest

the classs. 109no surrenders. 52never dedicatedthe Provinceneveracquiredsubject toan interestnot its ownA TITLELATENT DEFECT0surrenderss. 52a lawwithoutsurrenderno forceprivate,unsurrenderedOn the s. 109 and s. 52 road the class keeps the land: no surrender, no dedication, no s. 88.So the Province comes in another way: through a band, under s. 88, on surrenders the class never made.

Press the button, or tap a stage.

Why the Province needs the band

The Mohawk of Grand River are not recognised under the Indian Act, and the Province never noted the class’s interest on the titles it registered. With no surrender from the class, it has no lawful way in. So it enters another way: through Six Nations, a band under the Indian Act, where section 88 lets provincial law reach, and through surrenders made by others, never by the class. On the Nation’s reading, none of that reaches the interest: what only a surrender by the class can give up, no band, no dedication and no provincial law can take.

This panel states the Nation’s position.

The promise of 1779, and to whom

Who promisedFrederick Haldimand, under his hand and seal, at Quebec, 7 April 1779
Whatto restore them, at the Crown’s expense, to the state they were in before the war
To whom“some of the Mohawks” of Canajoharie, Tikondarago and Aughgugo, who stood with the Crown and lost their villages for it
On to whomtheir posterity, by either sex or by adoption, for ever: the unborn too
Nota collective; not a body politic (Doe d. Jackson v. Wilkes); not a trust, so no cestui que trust holding through another
The original intentionwhere they stood before the war: kept by the Proclamation of 1784

The Declaration: the articles that matter

Tap an article. 26 is the key: it names land a people has acquired, not only land it occupied. Canada has bound itself to the Declaration by statute: S.C. 2021, c. 14.

How a defect in title works

The same house twice. Choose a place: British Columbia, where Cowichan (2025) found Aboriginal title by exclusive use and occupation; or the Grand, where the Nation holds the interest by exclusive use and enjoyment. Then step through the four layers.

the Crown’s grantREGISTERED TITLELot 12 · fee simpleOwner: First name LAST NAMEAboriginal title: exclusive use and occupationThe class’s interest, 1784: exclusive use and enjoymenta prior and senior right, proven by the pastbeneath every title since: s. 109DEFECTIVELATENT DEFECT

The Grand side states the Nation’s position; the BC side reports the court’s findings in Cowichan Tribes v. Canada, 2025 BCSC 1490.

Territory, in depth

Tap a layer: acquiring territory is acquiring sovereignty over all of them.

How territory is acquired, in international law

Island of Palmas, 1928sovereignty is the right to exercise, over a defined area, the functions of a state to the exclusion of any other: the test of acquired territory
Clipperton Island, 1931title to territory held by a lawful act of acquisition, kept without needing to be occupied at every point
Montevideo Convention, 1933art. 1: a state has a permanent population, a defined territory, a government, and the capacity to enter into relations with other states; art. 3: its political existence does not depend on recognition; art. 11: no territory acquired by force is to be recognised
Eastern Greenland, 1933sovereignty shown by the intention to act as sovereign and some display of that authority; little is needed over a sparsely settled land
UN Charter, 1945, art. 2(4)no state may use force against the territorial integrity of another
Friendly Relations Declaration, 1970no acquisition of territory by the threat or use of force is to be recognised as legal
The Sovereign Order of Maltarecognised in international law as sovereign, with relations with over a hundred states, though it holds no territory of its own: sovereignty and territory are not the same thing. The Nation has both a people and a defined, acquired territory

A guarantee in the Constitution, not fences and signs

To the exclusion of any other. Island of Palmas (1928) defined sovereignty over territory as the right to exercise its functions there to the exclusion of any other. The Nation reads section 52 as doing that work at home: once section 109 took the Province’s lands subject to the interest in 1867, section 52 made the Constitution supreme over any law inconsistent with it.

So no fences and signs are needed. Tests of effective occupation, like the display of authority weighed in Eastern Greenland (1933), ask whether a claimant showed itself on the ground. A guarantee written into the Constitution does not wait on fences, signs or patrols: it holds by the Constitution’s own force.

What rests on a defect. In the Manitoba Language Reference (1985) the Supreme Court held that laws enacted without meeting a constitutional requirement were invalid. To avoid a legal vacuum it deemed them temporarily valid while they were put right; it did not let the defect stand for ever. The Nation draws the lesson for the Tract: what was built over the interest without a surrender rests on a constitutional defect, and stands, if at all, only until it is cured.

This panel states the Nation’s position.

The words, in law

Exclusiveto the exclusion of every other: the class alone
Enjoymenta term of property, not a feeling: to use the land, take its fruits, hold it free of interference; quiet enjoyment; jus utendi et fruendi
Underlyingbeneath every registered title: Cowichan (2025) called such an interest a prior and senior right that burdens fee simple
Acquired territorysovereignty over a defined area (Island of Palmas, 1928), held by the Nation within its own order, not in contest with the Crown

In eight lines

The printed poster

Download the poster as printed, A3, full quality: exclusive-use-and-enjoyment.pdf