Ontario's Negotiation Process

What are the steps to negotiating a land claim?

There are four steps to negotiating a land claim:

1. Submission of claim

   A written statement setting out the claim with supporting historical and other documentation is submitted by the Aboriginal community, most often a First Nation to the Minister of Aboriginal Affairs or to the Assistant Deputy Minister, Ontario Ministry of Aboriginal Affairs. Ontario consults with the federal Department of Indian Affairs and Northern Development to determine the status of the federal review of the claim.

2. Pre-Negotiation

   The Ministry conducts a preliminary analysis of the land claim documents submitted by the Aboriginal claimant to determine the nature and extent of any additional historical research that should be carried out. Upon completion of the historical research, a legal review is conducted. The Ministry of Aboriginal Affairs consults with other Ontario ministries to determine what interests may be affected by the claim.

   Once the historical and legal reviews are completed, the province decides whether to accept the claim for negotiation. The decision to accept the claim is made by the Minister of Aboriginal Affairs. A letter is sent to the Aboriginal claimant setting out the general basis upon which Ontario is prepared to enter into negotiations. Then Ontario, the federal government and the Aboriginal claimant appoint their negotiators.

3. Negotiation

   Throughout the negotiations, Ontario, Canada and the Aboriginal claimant consult with interests that might be affected by a claim. Public consultations are conducted to seek input from potentially affected interests and identify issues and concerns that may need to be considered prior to concluding a settlement.

   At the start of negotiations, Ontario prefers that the three parties conclude a negotiation framework agreement. This agreement addresses process matters such as cost-sharing arrangements, negotiation timeframes, funding to the Aboriginal claimant during negotiations, the public involvement process and the approval procedures needed for the final agreement.

   During discussions leading to a negotiation framework agreement, the parties may prepare a workplan and budget to support the First Nation'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.

   During substantive negotiations the negotiators agree on the general issues and the elements of the settlement. An agreement-in-principle is signed which sets out the general elements of a settlement. Negotiators for Ontario, the First Nation and Canada work to develop the final agreement as well as an implementation plan describing how the terms of the final agreement will be carried out.

4. Settlement and Implementation

   When the final agreement is approved or ratified by each of the parties, an official signing ceremony involving the parties to the negotiation is normally held. The settlement laid out in the agreement usually involves compensation to the Aboriginal claimant, which may be in the form of land and/or money or other considerations such as economic development measures. Then implementation of the agreement begins and the parties monitor its progress.

   The final agreement may provide for the transfer of land to the federal government so that it can be set apart as reserve land for the First Nation. In such cases, an environmental site assessment is carried out by the federal government and, if necessary, a clean-up of the land takes place. Any negotiated arrangements are carried out to accommodate the needs of other parties that may be affected by the settlement, such as users of existing access routes, holders of land use permits or leases on Crown land and public utilities such as hydro-electricity. Finally, the land is surveyed and transferred to the federal government, which may set the land apart as reserve land for the First Nation.

How long does it take to settle a land claim?

The length of the negotiation process depends on the claim. Ontario is working with Canada and claimants to achieve settlements effectively and efficiently. However, some particularly difficult claims may take years to negotiate, settle and implement. Issues involved in claim resolution are often complex and the events which gave rise to the claim require careful historical research. Often there are many interests to be identified and consulted, both Aboriginal and non-Aboriginal. The law dealing with Aboriginal treaties and rights is continually evolving. The parties may have very different views of their respective obligations and entitlements which require consideration, debate and resolution.

In cases where Ontario's share of any compensation is less than $1 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 claim may be entered into a fast track process which will promote efficiency in reaching settlements on small claims.

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Contact:

Director
Negotiations Branch
Ontario Ministry of Aboriginal Affairs
Phone: 416-326-4740
Fax: 416-326-0542