Information from the Ontario Native Affairs Secretariat
The first in a three-part series in The Outfitter
The government's overall approach to Aboriginal affairs is set out in the Aboriginal Policy Framework. The Framework goal is "to help build the capacity within Aboriginal communities to develop stronger economies, become more self-reliant and exercise greater responsibility for their well-being while maintaining balance and stability in relations between Aboriginal and other residents in the province."
The Aboriginal Policy Framework commits the government to developing a policy direction on land claim negotiations. The Framework recognizes that the successful resolution of land claims can meet Ontario's 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 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 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 on 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.
Clear criteria on how Ontario decides whether to negotiate an Aboriginal land claim
The province determines whether negotiation offers are 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 the potential for a settlement to meet the government's policy directions which support Aboriginal self-reliance through economic development; and
an assessment of risks 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 responsible for Native Affairs.
Land claims and 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 ma 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) 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 ses 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 negotiator, consisting of representatives of the affected public;
a formal side table to the negotiation where affected parties discuss specific matters with the Aboriginal claimant, Ontario and Canada where appropriate; and
on complex claims with many affected interest, Ontario may invite a local representative (e.g. from municipal governments) to participate as a member of the Ontario negotiating team.
The Negotiation Framework Agreement
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 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 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 ma agree to share costs on studies to determine the scope and magnitude of the claim. For example, 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. The parties may also address the disposition of lands and resources in the claim area pending the settlement of the claim.
Private Property and 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 when 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.
The Ontario Native Affairs Secretariat has introduced a "fast-track" process that applies only to claims 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.
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.
Developed guidelines for the provision of negotiating funding to Aboriginal claimants set out accountability and performance measures toward achieving settlements. Such funding will be repayable from any final settlement.
This article was taken from pages 12-15 of NOTO's "The Outfitter" publication, March/April 2000 Issue