Backgrounder

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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.

Generally, there are three kinds of land claims in Ontario:
Treaties

• Usually the result of disagreements between the Crown and First Nations about the location and size of reserves that were set aside under a treaty.
• They can also arise as a result of events that took place some time after treaties were negotiated and reserves were surveyed, for example, claims arising as a result of flooding of reserve land for hydroelectric power or the taking of reserve land for public purposes, i.e., the construction of highways and railways, without lawful authority or compensation.

Aboriginal title

• Based on allegations that lands traditionally used and occupied by Aboriginal people were never surrendered to the Crown by Aboriginal people. A First Nation may claim that a land surrender or treaty was flawed and that the original Aboriginal interest in the land remains.

Surrender for sale of reserve land

• Arise when a First Nation seeks compensation for, or the return of land that it had surrendered to the Crown for sale so that the payment from the sale could be used for the benefit of the First Nation. Although such land surrenders generally occurred many years ago, the land often remains unsold and unpaid for.

Federal government's responsibility for land claims

In The Constitution Act, 1867 the federal government was assigned exclusive jurisdiction over “Indians and Lands reserved for the Indians,” which includes the power to make treaties with Aboriginal peoples. The provinces were assigned jurisdiction over private property, and the management of Crown lands and natural resources located within a province. In many land claims both federal and provincial jurisdictions are involved.

The courts have determined that the historic relationship between the federal government and Aboriginal peoples, as well as federal jurisdiction for law making in relation to Indians and Indian reserve lands, creates a special trust-like or “fiduciary” relationship with First Nations on the part of the federal government. To a large extent the federal government exercises its fiduciary responsibility for First Nations through the Indian Act.

Ontario's responsibility with respect to land claims

While the resolution of land claims is primarily a federal government responsibility, provincial governments often have a role because of their own involvement in the historical events giving rise to the claim. In addition, many Aboriginal land claims are based on the assertion of rights with respect to Crown lands, natural resources and private property, which lie within provincial jurisdiction or assert breaches of treaty or Aboriginal rights by the Crown.

In Ontario the land base is covered by treaty agreements with First Nations. Therefore the issues in land claims in Ontario usually concern the meaning of the 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 becomes involved in land claims to meet its legal obligations and because claims may affect lands owned by Ontario or lands over which Ontario has some authority. Most lands in Ontario that are affected by treaties are now public lands administered by the province.

Definition of terms

A list of common terms and their definitions can be found at: http://www.aboriginalaffairs.osaa.gov.on.ca/english/faq/glossary.htm.

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Contacts:

Merike Nurming
Ontario Secretariat for Aboriginal Affairs
(416) 326-4079

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