Information from the Ontario Native Affairs Secretariat
The second in a three-part series in The Outfitter
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 claimant to the Minister responsible for Native Affairs or the Secretary, Ontario Native Affairs Secretariat. Ontario, consults with the federal Department of Indian Affairs and Northern Development to determine the status of the federal review of the claim.
The Ontario Native Affairs Secretariat (ONAS) conducts a preliminary analysis of the land claim documents submitted by the claimant to determine the nature and extent of any additional historical research, a legal review is conducted. The Secretariat 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 Responsible for Native Affairs. A letter is sent to the 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.
Throughout the negotiations, Ontario, Canada and the Aboriginal claimant consult with interests that might be affected by a claim to inform them that the claim has been accepted for negotiations and to seek their input. Public consultations are conducted through the negotiations phase 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 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 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 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 scope the extent of the flooding and its effects. The parties may also address the disposition of lands and resources in the claim area depending upon 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 Aboriginal community and Canada obtain the necessary approvals and 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 & 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 Aboriginal community. In such cases, an environmental inspection is carried out by the federal government and, if necessary, a clean-up of the land takes place. 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 Aboriginal community.
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 give 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.
This article was taken from pages 14 & 15 of NOTO's "The Outfitter" publication, May/June 2000 Issue