Constitutional Reconciliation and Land Negotiations: Improving the Relationship between the Aboriginal Peoples and the Government of Ontario

Abstract

Aboriginal reconciliation in Canada in contemporary times embodies the objective of addressing historical wrongs suffered by Aboriginal peoples due to colonial imposition of sovereignty. Historically, relations between Aboriginal peoples and the colonizing powers were rooted in cooperative efforts, with land treaties, peace-and-friendship agreements, trade arrangements, and military alignments between the original inhabitants and settlers of what is now Canada. Based on a nation-to-nation relationship rooted in the two-row wampum tradition of autonomy, mutual respect, and friendship, original interactions between Aboriginal peoples and newcomers were ubiquitous and largely beneficial for all parties concerned.

It was not until the Supreme Court of Canada’s Calder ruling in 1973 that the significance of Aboriginal title, historical treaties, and contemporary land negotiations came to the fore once more, ultimately resulting in an about-face on the part of the Canadian government. A new era of Aboriginal land negotiations began, starting with a government policy on the settlement of claims in areas where Aboriginal title was unextinguished. Prior to that time, claims were dealt with on an ad hoc basis, with few ever being resolved. The Ontario government did not establish an official policy approach for settling claims until 1976, following the federal government’s lead. Since that time, the rate of successful settlement of Ontario land claims has been relatively low, with the number of Aboriginal claims rapidly increasing, particularly in recent years.

Despite seemingly noble intentions on the part of Canadian governments, Aboriginal discontent with the federal and provincial approaches to addressing land claims continues to intensify, with blockades and protests becoming increasingly popular among Aboriginal peoples as tools to convey their frustration with the negotiations process. This hard-line stance has been especially pervasive in the last several years in Ontario, notably with political protests related to Tyendinaga and Six Nations claims. These actions reflect a larger problem affecting the land negotiations process in Ontario. They speak to growing tensions between Aboriginal peoples and the province as well as a deteriorating Aboriginal-Crown relationship, ultimately underlining the need to find workable solutions to improve the efficiency and effectiveness of the process as a whole. These conflicts are particularly troubling given that Aboriginal lands are at the heart of Aboriginal identity and many Aboriginal peoples are indeed committed to resolving land disputes through negotiations.

This article asks the following interrelated questions: What does Aboriginal reconciliation entail? What role does Ontario play in negotiating Aboriginal land claims in the province? How do the negotiation objectives of Aboriginal peoples and the Ontario government - and by extension, the Canadian government - overlap and diverge? Is it possible to improve the relationship between Aboriginal peoples and Ontario in the context of land negotiations, and if so, how? In response, the article provides an in-depth evaluation of that process in Ontario, with an eye to determining what Aboriginal reconciliation entails and how the negotiations process might be improved in the context of land claims in the province. It is argued that significant adjustments to the land negotiations process in Ontario are necessary in order to reconcile the Aboriginal-Crown relationship in the province.

Subsequent to an analysis of the historical origins and essence of Aboriginal reconciliation, a brief assessment of the constitutional scope of Ontario provincial powers in negotiating land agreements is undertaken, alongside an evaluation of the mandate and objectives of the Ontario Ministry of Aboriginal Affairs. Especially notable at this stage are the relevant Ontario policies that affect the Aboriginal land negotiations process as a whole. Additionally, data are provided on the status of claims in the province. The final portion of the paper takes a critical approach to the land negotiations process in Ontario, assessing areas for improvement alongside cross-national comparisons on relevant policies and data on the status of claims in other provinces and territories. This cross-national comparative approach allows for a more in-depth understanding of the land negotiations process in other Canadian jurisdictions, while simultaneously assisting in the formulation of concrete recommendations for the improvement of that process in Ontario. This, in turn, addresses the objectives of Aboriginal reconciliation and the improvement of the Aboriginal-Crown relationship in the province.

Keywords: Aboriginal, Constitutional Reconciliation, Canada, Ontario, Land Claims Negotiations