Information from the Ontario Native Affairs Secretariat
The final segment of our three part series
What is a land claim?
A land claim 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.
What are Aboriginal and treaty rights?
The courts have decided that Aboriginal rights are rights held by the indigenous peoples of Canada. They arise from the fact that the ancestors of Aboriginal peoples lived on the land in distinctive societies, with their own practices, customs and traditions, prior to the arrival of the Europeans. Depending on specific circumstances, Aboriginal rights are protected by treaties.
Treaty rights are specific rights of Aboriginal peoples embodied in the treaties they entered into with a Crown government, initially Britain and after Confederation, Canada. They often address matters such as the creation of reserves and the rights of Aboriginal communities to hunt, fish and trap on Crown lands.
Both Aboriginal and treaty rights are referred to in section 35(1) of the Constitution Act, 1982, as follows: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."
What is the purpose of treaties between the Crown & Aboriginal peoples?
Treaties are historical agreements between Aboriginal peoples and Crown governments. During the 18th Century, when Britain and France fought to expand their colonies in North America, they entered into military alliances and treaties of friendship with Aboriginal peoples. After the Seven Year's War (1756-1763), in which the British were victorious, the British Crown issued the Royal Proclamation of 1763 to provide for the re-organization of British possessions taken from the French in North America. The Proclamation recognized Aboriginal people's interest in the lands, and spelled out how the crown could acquire such lands. Aboriginal people's interest in land could only be sold or ceded to the Crown, and not to private individuals. This was usually done through the making of treaties.
Subsequently, many Aboriginal peoples entered into treaties with the Crown. The treaty process enabled Crown governments to gain access to both land and natural resources for purposes of immigrant settlement, construction or transportation routes and economic development. At the same time, Aboriginal peoples retained certain areas, commonly known as reserves, for their exclusive use. Depending on the treaty, they also retained other rights such as the right to hunt, fish and trap on their traditional lands. Many treaties also provided for compensation to the Aboriginal people in the form of money or goods.
Most land claims in Ontario arise from assertions by Aboriginal peoples that promises made by the Crown in the treaties, especially promises with respect to land, were not honoured, or that there were misunderstandings or irregularities in the process of making or implementing the treaty.
Why are Aboriginal land claims being brought forward now when their roots lie back in history?
Aboriginal land claims are sometimes being formally initiated now, even though the historical events that gave rise to such claims happened many years ago. Many Aboriginal people feel that there have been a number of factors preventing them from bringing land claims forward until relatively recently. They believe that their rights and grievances have often been ignored by governments, and that their communities have not had the resources to research and pursue land claims. They also point to a provision that used to be in the Indian Act which prevented lawyers from accepting payment to represent Aboriginal claimants in the prosecution of claims unless the federal government consented.
In the 1970s, in a landmark case called Calder, some members of the Supreme Court of Canada first recognized that Aboriginal peoples' title to land was a legal right which they were entitled to assert. This was one factor that prompted the federal government to establish a process and funding for resolving Aboriginal land claims.
The courts continue to develop and clarify the law relating to Aboriginal rights, including title to land and governments' constitutional obligations to Aboriginal people. They often urge governments to resolve disputes with Aboriginal people through negotiations. Today, the federal and most provincial governments have established processes and policies for addressing Aboriginal Land claims.
What is the federal government's responsibility for land claims?
At Confederation, law-making powers were divided between the federal government and the provinces. In The Constitution Act of 1867 the federal government was assigned exclusive jurisdiction of "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 and private property. This often requires that both the province and the federal government be involved in their resolution.
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 Aboriginal peoples on the part of the federal government. To a large extent the federal government exercises its fiduciary responsibility for Aboriginal peoples through the Indian Act.
What is the role of the provinces in 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. 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 the prairie provinces and some parts of Northern Ontario, treaties with Aboriginal peoples called for land to be set aside for reserves according to certain formula, for example one square mile for a family of five. Some claims assert that the formulas were not followed and that insufficient land was allocated to comply with the treaties.
In British Columbia few treaties have been negotiated with Aboriginal peoples and much of the land in that province has not been ceded. As a result, treaties are now being negotiated for the first time.
What is Ontario's responsibility with respect to land claims?
In Ontario almost all the land base is covered by treaty agreements with Aboriginal peoples. 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.
Most land claims in Ontario are claims of improperly located reserve boundaries or insufficient land having been set aside for reserves, differing interpretations of treaty rights, and the expropriation, flooding or trespass on reserve lands without lawful authority or payment of adequate compensation.
Other claims may involve requests for compensation for the return to Aboriginal people or reserve lands surrendered to the Crown for sale, where the lands have never been sold or the proceeds have not been used to benefit the Aboriginal community. Finally, in Ontario there are also claims which assert that Aboriginal peoples never ceded title to land by treaty, or by any other means and that therefore their legal interest in the land remains.
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, or at one time were, public lands administered by the province. Land claims can affect crown land, natural resources, private property, the environment, energy development, municipalities, public transportation, economic development and recreation. The province tries to address these interests through the process of negotiating the settlement of the land claim.
Is there a role for a facilitator in the process or negotiating a land claim?
The Indian Commission of Ontario may take on the role of facilitator when invited by Canada, Ontario and the First Nations. Established in 1978, the Commission facilitates the examination and resolution of issues that are referred to it by the Tripartite Council. This Council consists of representatives of Canada, Ontario and the First Nations and includes the federal Minister of Indian Affairs, the Ontario Minister Responsible for Native Affairs and Ontario's Aboriginal leaders. In some cases private facilitators are used to assist in resolving a claim.
What are the different kinds of land claims in Ontario?
- Claims related to the fulfillment of terms of treaties;
- Claims arising from Aboriginal title;
- Claims arising from the surrender for sale of reserve land.
How does Ontario decide whether to negotiate an Aboriginal land claim?
The province determines whether negotiation offers the best route for resolving the issues raised by a land claim based on the following considerations:
- a legal review to determine whether 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;
- an assessment of risks, if any, involved in not negotiating the claim.
The province may begin formal negotiations with a First Nation and federal government (if the federal government is involved), after these reviews have been completed, a mandate to enter negotiations is provided by the Minister Responsible for Native Affairs.
This article was taken from pages 14 & 15 of NOTO's "The Outfitter" publication, July/August 2000 Issue