About Land Claims
Aboriginal Land Claims and the Federal and Provincial Governments
- What is a land claim?
- What are Aboriginal and treaty rights?
- What is the purpose of treaties between the Crown and Aboriginal peoples?
- Why are Aboriginal land claims being brought forward now when their roots lie back in history?
- What is the federal government's responsibility for land claims?
- What is the role of the provinces in land claims?
- What is Ontario's responsibility with respect to land claims?
- What are the different kinds of land claims in Ontario?
- How does Ontario decide whether to negotiate an Aboriginal land claim?
- The Resolution of Land Claims in Ontario
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 most often 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 may continue to exist following the surrender of lands to the Crown. Some Aboriginal rights are protected by treaties.
Treaty rights are the 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 and 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 Years' War (1756-1763), in which the British were victorious, the British Crown issued the Royal Proclamation of 1763 to provide for the reorganization of British possessions taken from the French in North America.
The Proclamation recognized Aboriginal people's interest in lands, and spelled out how the Crown could acquire such lands. Aboriginal peoples' 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, treaties were negotiated with groups of Aboriginal peoples by the Crown or its representatives. The treaty process enabled Crown governments to access both land and natural resources for purposes of immigrant settlement, construction of transportation routes and economic development. At the same time, Aboriginal peoples retained or were provided with certain areas, commonly known as reserves, for their exclusive use. Depending on the treaty, they retained certain 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 First Nations 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 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 court 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 provide 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, 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.
Treaty rights and obligations are linked with issues pertaining to Crown lands, 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 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.
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. 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.
What is Ontario's responsibility with respect to land claims?
In Ontario almost all the land base within provincial boundaries 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.
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 or the return to First Nations of 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 First Nation. 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 now 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.
What are the different kinds of land claims in Ontario?
Generally, there are three kinds of land claims in Ontario:
Claims related to the fulfillment of terms of treaties
These claims are 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. For example, claims may result from differences of opinion about the parties' intentions at the time of the signing of a treaty or misunderstandings over the way the reserve was surveyed.
Claims can also arise as a result of events that took place some time after treaties were negotiated and reserves were surveyed, and can include claims arising as a result of flooding of reserve land for hydroelectric power or the taking of reserve land for public purposes, such as the construction of highways and railways, without lawful authority or the payment of compensation.
Claims arising from Aboriginal title
These land claims are based on allegations that lands traditionally used and occupied by Aboriginal people were never surrendered to the Crown by Aboriginal people. Or a First Nation may claim that a land surrender or treaty was flawed and that the original Aboriginal interest in the land remains.
Claims arising from the surrender for sale of reserve land
These claims 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.
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 historical review of the claim
- 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 risks, if any, involved in not negotiating the claim.
The province may begin formal negotiations with the Aboriginal claimant and the federal government (if the federal government is involved), after these reviews have been completed, and a mandate to enter negotiations has been provided by the Minister of Aboriginal Affairs.
The Resolution of Land Claims in Ontario
The Resolution of Land Claims in Ontario, A Background Paper was prepared by ONAS and presented to the Ipperwash Inquiry to assist in the Inquiry's examination of land claim policy and practice in the province. Refer to the Site Ipperwashinquiry
Contact:
Director
Negotiations Branch
Ministry of Aboriginal Affairs
Phone: 416-326-4740
Fax: 416-326-0542
