Ontario's Approach to Aboriginal Land Claims
Ontario recognizes that the successful resolution of land claims can meet its legal obligations and create a positive environment for economic development for Aboriginal and non-Aboriginal people alike.
A land claim as defined by Ontario is a formal statement submitted to the federal and/or provincial government in which an Aboriginal community most often asserts that the Crown has not lived up to its commitments or obligations with respect to Aboriginal or treaty rights pertaining to land.
Most Aboriginal land claim negotiations involve the federal government, which has primary responsibility for the resolution of Aboriginal land claims. Provinces may become involved in Aboriginal land claims because of provincial involvement in the historical events giving rise to the claim and because many claims involve the assertion of rights with respect to Crown lands, natural resources and private property.
The issues in Ontario land claims usually concern the meaning of original treaty agreements, the extent to which treaty commitments have been honoured and how to provide redress in cases where treaty commitments were breached.
Ontario believes that negotiations provide an effective process for addressing the legal, constitutional and practical issues raised by Aboriginal land claims. Ontario is committed to ensuring that land claim negotiations address the interests and concerns of people who live or who use the lands within the claim area. Meaningful public involvement helps lead to more enduring settlements that are broadly acceptable to those who live and work in the claim area.
- Criteria
- Public Involvement
- The Negotiation Framework Agreement
- Private Property & Crown Land Uses
- "Fast-track" Process
- More Efficient & Effective Settlements
Criteria
The province determines whether negotiation offers the best route for resolving the issues raised by a land claim based on the following considerations:
- a historical review of the claim
- a legal review to determine whether or not the province may have any legal obligations with respect to the claim
- a review of what other parties might be affected by a claim, and what their interests might be
- an assessment of the possibility of negotiations reaching a settlement acceptable to those affected in a timely and efficient manner, and one that fosters good relations among communities
- an assessment of risks, if any, involved in not negotiating the claim.
The province may begin formal negotiations with the First Nation and Canada after the reviews have taken place, and once a mandate to enter negotiations is provided by the Minister of Aboriginal Affairs.
Public Involvement
Members of the public may become involved if and when their land-based interests become affected by an Aboriginal land claim. Affected interests might include municipalities and agencies responsible for highways and hydro corridors and private property owners. Users of Crown land may be affected because they are holders of leases, licences or permits to use Crown land for commercial or non-commercial purposes, or because they use Crown land under claim for recreation. The process of negotiating a land claim allows Ontario to consult and address the many public and private interests affected by a claim.
Negotiated settlement agreements containing appropriate legal assurances (releases and indemnities) that achieve greater certainty for people potentially affected by a land claim. Settlements bring closure to the issues under negotiation, including matters regarding access to and title to Crown land, natural resources and private property.
The various means of involving the public in the negotiating process are tailored to meet the circumstances of each particular land claim negotiation. Ontario currently uses a range of approaches for public consultation and involvement such as:
- newsletters and fact sheets which are sent to local municipal officials and affected parties and the media
- public meetings, open houses and workshops
- advisory committees to the negotiations, consisting of representatives of the affected public
- with the agreement of the negotiating parties, a formal side table to the main negotiation table may be created for affected parties to discuss specific matters with the First Nation, Ontario and Canada
- on complex claims with many affected interests, Ontario may invite a local representative (e.g. from municipal government) to participate as a member of the Ontario negotiating team.
Negotiation Framework Agreement
At the start of negotiations, Ontario prefers that the negotiating parties conclude a negotiation framework agreement. This agreement addresses process matters such as cost-sharing arrangements, negotiation timeframes, funding to the claimant during negotiations, the process to involve the public and the parties' approval procedures needed for the final agreement.
During discussions leading to a negotiation framework agreement, the negotiating parties may prepare a work plan and budget to support the Aboriginal claimant's participation in the negotiation process and to address how the funding will be recovered as part of the final settlement. The parties may agree to undertake and share costs of studies to determine the scope and magnitude of the claim. The kinds of studies that may be done by the parties include land appraisals, hydrological studies and loss of use studies. Land appraisals may be done to determine the financial value of the lands under claim. Hydrological studies may be done in flooding claims to help assess the extent of the flooding and its effects. Loss of use studies may be done to help the negotiating parties assess the impact on the First Nation of the loss of use of the claimed land and its resources. The parties may also address the disposition of lands and resources in the claim area pending the settlement of the claim.
Private Property & Crown Land Uses
Ontario will not expropriate private property to reach a land claim settlement. However, the province may agree to buy land from an owner on a willing seller/willing buyer basis where it will help achieve a satisfactory settlement of the land claim. Access to private property is assured.
Existing Crown land uses are taken into consideration during the negotiations. Potential impacts on existing uses are minimized as much as possible. For example, Crown land leases, easements, mining claims, timber allocations, and other licenses and permits will not be revoked during their term. Public involvement in land claim negotiations helps Ontario to determine the best way to address local interests.
"Fast-track" Process
The Ontario Ministry of Aboriginal Affairs has a "fast-track" process that applies only to claims where: Ontario's share of any compensation is less than $2 million, no land is claimed as compensation, and the documentation provided by the claimant to support the claim is adequate to demonstrate that the issues raised are clear and relatively uncomplicated.
The process promotes efficiency in reaching settlements on small claims. The federal government has a similar type of expedited process.
More Efficient & Effective Settlements
Ontario strives for settlements that are cost and time effective to negotiate and implement. It strives for negotiated settlements that result in more constructive and enduring solutions than other alternatives, such as litigation.
Land claim settlements will provide Aboriginal communities with opportunities for economic development, while removing barriers to investment and fostering a stable climate for local businesses and other interests.
Settlements aim to promote self-reliance of Aboriginal communities through economic and community development. Settlements should fall within the government's overall approach to public sector financial management, which stresses efficiency, effectiveness, and greater accountability.
Ontario has developed guidelines for the provision of negotiating funding to Aboriginal communities. These guidelines set out accountability and performance measures toward achieving settlements. Such funding will be repayable from any final settlement.
Contact:
Director
Negotiations Branch
Ontario Ministry of Aboriginal Affairs
Phone: 416-326-4740
Fax: 416-326-0542
