Guide for Submitting Land Claims to Ontario

Transcription

1 Ministry of Aboriginal Affairs Guide for Submitting Land Claims to Ontario Ministry of Aboriginal Affairs 160 Bloor Street East Toronto, Ontario, Canada M7A 2E6 Ontario.ca/Aboriginal TTY ISBN (PDF) ISBN (Print) Queen s Printer for Ontario, Ce document est disponible en français.

2 Table of Contents 1. Introduction Land Claims in Ontario What is a Land Claim? 1.2 What are the responsibilities of the Federal and Provincial governments in relation to land claims? 1.3 Who can submit a land claim? 1.4 Where should claims against Ontario be submitted? 2. What is the Land Claim Process in Ontario? Submission: What is required for a claim submission? Statement of Claim Historical Report Document Collection Document Index Map Collection Map Index Sources Consulted Oral History 2.2 Assessment: How does Ontario decide to accept a claim for negotiations? Preliminary Review of a Claim Historical Review Legal Review Claim Assessment Minister s Mandate and Acceptance Letter 3. What types of land claim involve Ontario? Aboriginal Rights and Title Claims 3.2 Reserve Land Claims Reserve Boundary, Size or Location Treaty Land Entitlement (TLE) Right-of-Way (Highway, Railroad, Power Line or Pipeline) Flooding 3.3 Unsold Surrendered Reserve Land Claims Appendicies: General Guidelines on Information Required 15 Appendix 1: Treaty Agreements Boundary, Size or Location Appendix 2: Treaty Agreements Treaty Land Entitlement (TLE) Appendix 3: Unauthorized Use of Reserve Land for Right-of-Way Appendix 4: Unauthorized Use of Reserve Land - Flooding Appendix 5: Unsold Surrendered Reserve Land Claims Table of Contents 2

3 1. Introduction Land Claims in Ontario This guide is intended to help Aboriginal communities prepare land claim submissions to Ontario. It provides a brief description of the most common types of claim in which Ontario is likely to be involved, and guidance on the type of information and supporting documents that should be included in a submission. If an Aboriginal community has a claim to make, it should submit a statement of claim, with supporting documentation, to Ontario and to Canada. Claims submitted to Canada are assessed by Aboriginal Affairs and Northern Development Canada (AANDC) in a process that is independent of Ontario s. For information about how to submit a claim to Canada, please refer to the federal government s Comprehensive and Specific Claims Policies or go to What is a Land Claim? The term land claim describes a formal submission by an Aboriginal community asserting that it has a legal entitlement in respect of land. Most land claims in Ontario arise from assertions by First Nations that the Crown (that is, the federal and/or provincial government) has not lived up to its commitments or obligations with respect to treaty rights related to reserve lands. Such claims make the case that the First Nation is legally entitled to reserve land and/or financial compensation. An Aboriginal community may also submit a claim asserting that its original rights in land and natural resources were never surrendered to the Crown, although this type of claim is rare in Ontario. If it appears that Ontario may have some responsibility for resolving the land claim, a claim should be submitted to the provincial government as well as to Canada. 1. Introduction Land Claims in Ontario 3

4 1.2 What are the responsibilities of the Federal and Provincial governments in relation to land claims? The Constitution Act, 1867, assigned to the federal government exclusive law-making authority for Indians, and Lands reserved for the Indians. This includes the power to make treaties with Aboriginal communities. The courts have determined that the historic relationship between the federal government and First Nations, as well as federal jurisdiction for law-making in relation to Indians and 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 responsibilities to First Nations through the Indian Act and other federal legislation. The Constitution assigns to Ontario the authority to make laws in relation to property and civil rights, and for the management of Crown lands and natural resources located within the province. This means that in many land claims both federal and provincial jurisdictions are involved. The Government of Canada and the Government of Ontario may each have a role to play in resolving certain land claims because they may be responsible for actions that give rise to a claim, may have benefited from those actions, and/or may hold Crown land that could be involved in the resolution of the claim. The Government of Ontario may become involved in the resolution of land claims when the issues concern: assertions that lands traditionally used and occupied by an Aboriginal community were never given up by them to the Crown by a treaty or other lawful means, the failure to set lands apart as reserve under a treaty, the unauthorized taking or use of reserve lands, failure to pay appropriate compensation for the taking or use of reserve lands, and unsold surrendered lands that is, reserve lands surrendered for sale to the federal government before 1924 and remaining unsold. Although Ontario s Ministry of Aboriginal Affairs (MAA) and Aboriginal Affairs and Northern Development Canada have different internal processes for the review of land claims, they try to work cooperatively to coordinate their reviews. 1. Introduction Land Claims in Ontario 4

5 1.3 Who can submit a land claim? The council or governing body of an Aboriginal community located in Ontario may submit a land claim to the Province of Ontario, the federal government, or both. Ontario considers land claim submissions from any rights-bearing Aboriginal community that chooses to make a formal allegation against the Province. A claim may be submitted to Ontario by an Aboriginal community or by more than one community whose claims are related. 1.4 Where should claims against Ontario be submitted? Claims should be sent to: Director, Negotiations Ministry of Aboriginal Affairs 160 Bloor Street East, 4th floor Toronto, Ontario, Canada M7A 2E6 1. Introduction Land Claims in Ontario 5

6 2. What is the Land Claim Process in Ontario? There are four stages in Ontario s land claim process. Submission of a claim: The claimant Aboriginal community submits a written statement setting out the claim, accompanied by supporting historical documents. (See 2.1 below.) Assessment: In this stage MAA analyzes the documentation submitted by the claimant Aboriginal community, including historical research into the details of the claim. The Aboriginal community may be asked to provide additional documentation. In most cases the Ministry then undertakes historical research aimed at filling in any gaps in the record. When the historical review has been completed, a legal review is conducted. The Ministry will also consult with other Ontario ministries to determine what provincial and public interests may be affected by the claim. MAA staff make a recommendation to the Minister of Aboriginal Affairs about whether to accept the claim for negotiation. Depending on the Minister s decision, a letter is sent letting the claimant Aboriginal community know that Ontario has, or has not, accepted the claim for negotiation. Negotiation: If a claim is accepted by Ontario for negotiation, representatives of the claimant Aboriginal community, Ontario and Canada establish a negotiating table and begin work to resolve the claim. The parties discuss their views and interests, consider the ways in which these might be addressed in the settlement of the claim, and develop agreement about the elements of a claim settlement. They undertake technical reviews to support the development of a settlement package, such as compensation studies and land appraisals, and may put measures in place to prevent the disposition of potential settlement lands. Ontario consults, as necessary, with other Aboriginal communities whose constitutionally protected rights may be adversely affected by the settlement of a claim, and accommodates those rights where required. Ontario s negotiators also engage in public consultation with affected parties (such as municipalities, businesses, and recreational users of the land) to identify and address rights and interests that may be affected by the settlement of the claim. 2. What is the Land Claim Process in Ontario? 6

7 The parties identify any lands that would be transferred by Ontario to Canada to be set aside as a reserve and calculate any financial compensation that is owed to the claimant Aboriginal community. Finally, the parties draft a final settlement agreement. When that agreement has been ratified by each of the parties it becomes a legally binding document. Implementation: Ontario, the claimant Aboriginal community and Canada then implement the settlement agreement by carrying out the obligations described in it, such as payment of financial compensation and setting apart of settlement lands as reserve lands 2.1. Submission: What is required for a claim submission? The claimant Aboriginal community is to provide MAA with an electronic version of the submission in Microsoft Word format and a printed version of all documents and reports. The following documents need to be included in the land claim submission so that MAA can review the claim: statement of claim, historical report, document collection (see Appendices: Guidelines on Information Required), document index, map collection, map index, and sources consulted. A thorough submission with carefully assembled documentation will help the Ministry of Aboriginal Affairs conduct its review in a timely manner. While the requirements for a claim submission may look daunting, the Ministry needs all the information in this form to assess the claim. A complete submission prevents the process from becoming drawn out. The preparation of a submission can be facilitated by the expertise of professional historians and lawyers familiar with making land claim submissions to governments. 2. What is the Land Claim Process in Ontario? 7

8 2.1.1 Statement of Claim The claimant Aboriginal community should explain clearly the basis of its claim against Ontario. This includes setting out all facts and events that are relevant to the claim, even if they do not support the assertions. For example, the statement should: describe Ontario s role in the historical events leading up to the claim, describe the role, if any, played by the federal government or other parties in the events giving rise to the claim, outline how Ontario has failed to meet its legal obligations, identify or describe the lands that the claimant Aboriginal community believes are the subject of the claim, identify whether Ontario owns or administers the lands at issue, describe how Ontario has obtained the lands and benefited from their use, describe the relationships of the claimants to one another, if there is more than one claimant Aboriginal community, identify the losses or damages experienced by the claimant Aboriginal community, and specify the remedies that are sought. If there is any information in the statement of claim that is unclear, the Ministry of Aboriginal Affairs will ask the claimant Aboriginal community for clarification Historical Report The historical report is an important part of the land claim submission. Together with the statement of claim, the historical report sets out the historical events that gave rise to the claim. It should also make clear the involvement of the provincial and federal governments in those events. 2. What is the Land Claim Process in Ontario? 8

9 The historical report should include: an executive summary of the research report, all historical evidence that is relevant to the claim, even if it does not support the assertions, and, footnotes, or endnotes, citing the sources used to support each statement in the historical report Document Collection The document collection includes all documents used to support the claim, both primary documents (records generated at the time of the historical events giving rise to the claim) and secondary sources (reports and historical accounts written subsequently that synthesize the historical documents into a narrative and analysis of events). When putting the document collection together: Number each document sequentially (e.g. 1, 2, 3, etc.) in the top-right corner. Ensure that citations are consistent between the document collection, the document index, historical report and statement of claim, Create a document index, Scan documents and index, Submit paper copies on legal-sized paper (8½ x 14 ), Submit copies of oversized documents (e.g. maps and survey plans) to scale, and Transcribe historical documents, often hand-written, that are difficult to read. 2. What is the Land Claim Process in Ontario? 9

10 2.1.4 Document Index The document index lists all documents that make up the collection. When creating a document index, use Microsoft Word or Excel. Display the following information in a table: document number, document date, document author, document name, brief description of the content of the document, archival or other source of the document Map Collection The map collection includes all the maps used to support the claim. If maps are used, number each one in the top-right corner. Then use the map s number whenever referring to it in the submission Map Index A map index lists all the maps in the map collection. Use Microsoft Word or Excel and list all maps in a table Sources Consulted List all sources consulted but not relied upon during preparation of the submission Oral History If applicable, evidence of the claimant community s oral history of the claim should be included. 2. What is the Land Claim Process in Ontario? 10

11 2.2 Assessment: How does Ontario decide to accept a claim for negotiations? Once a claim has been received it is reviewed for documentary completeness and a decision is made about whether to accept the claim for negotiation Preliminary Review of a Claim The preliminary review process consists of a review of the claimant Aboriginal community s land claim submission. MAA s Negotiations Branch will complete a review of the submission to ensure that everything Ontario requires to assess a claim is present and in the correct form. If the claim is ready to go forward, it enters the historical assessment phase Historical Review MAA undertakes an expert historical assessment of the facts and interpretation of the records of the claim. The historical grounds for a land claim submitted to Ontario is usually verified by independent research undertaken by a qualified consultant according to terms of reference drawn up by the MAA Research Advisor who supervises the project and ensures that all the necessary information is gathered Legal Review The lawyer assigned to the file prepares a legal opinion that summarizes the claim, identifies the relevant legal issues, analyzes the facts of the claim and the applicable law, and makes a recommendation about whether there are outstanding obligations of the Crown that should be addressed. To do this the lawyer draws on all available research related to the claim, including the historical reports prepared for the claimant Aboriginal community and for the Ministry of Aboriginal Affairs, the supporting historical documents, and relevant legislation and case law. 2. What is the Land Claim Process in Ontario? 11

12 2.2.4 Claim Assessment The general claim assessment summarizes the findings from the historical and legal reviews. It identifies parties whose interests may be affected by the negotiation and settlement of the claim, including private land owners, municipalities, businesses, recreational and other users of Crown lands and other Aboriginal communities. It also identifies issues that may arise in the negotiations, describes the possible nature of a claim settlement, and presents recommendations for the Deputy Minister and Minister Minister s Mandate and Acceptance Letter If the claim is accepted, the Minister of Aboriginal Affairs provides initial instructions to the team that will negotiate on behalf of Ontario in the form of a mandate. A letter to the claimant Aboriginal community sets out the basic elements of Ontario s decision. Additional negotiating instructions are provided as negotiations proceed. 2. What is the Land Claim Process in Ontario? 12

13 3. What types of land claim involve Ontario? Land claims involving the province of Ontario fall into three broad categories: Aboriginal rights and title claims, reserve land claims and unsold surrendered reserve land claims. 3.1 Aboriginal Rights and Title Claims These are claims by an Aboriginal community that lands traditionally used and occupied by them were never surrendered by them to the Crown by a treaty or other lawful means. They may claim rights to hold legal title to certain lands that were traditionally occupied (Aboriginal title) and to use other lands and natural resources that were traditionally used (Aboriginal rights to use land). Canada and Ontario must be parties to any Aboriginal Rights and Title Land Claims negotiation and final settlement. Further information on Canada s Comprehensive Land Claims Policy and submitting a Comprehensive land claim can be found at Aboriginal Rights and Title Land Claims are common in certain parts of Canada, notably British Columbia, Northern Quebec, Labrador and the Territories, because historical treaties were generally not concluded in these areas. These claims are rare in Ontario because the province is covered by historical treaties. Nonetheless, certain communities may have grounds to believe that they have continuing Aboriginal rights and title where, for example, they were not party to a treaty. 3.2 Reserve Land Claims This is a broad category of claims relating to the lands that were or should have been set aside as reserve lands. Claims can result from alleged errors in the location, boundaries, or size of a reserve or the interpretation of treaties regarding these matters. They may also be the result of unauthorized use or taking of reserve lands, or the use of reserve land for public purposes (such as the creation of a right-of-way for a highway or the flooding of lands by the construction of a dam) without lawful authority or the payment of appropriate compensation Reserve Boundary, Size or Location A First Nation may assert that the reserve that was surveyed and set apart for it under 3. What types of land claim involve Ontario? 13

14 a treaty does not reflect the community s understanding of the reserve it was entitled to receive. The reserve may be too small, its boundaries may be inaccurately established, or the reserve may be situated in a location that was not intended or promised Treaty Land Entitlement (TLE) A First Nation may assert that it received less land than promised in the treaty. In Treaties 3, 5 and 9, the northern treaties that cover about two-thirds of Ontario s land base, mathematical formulas based on the population of the First Nation were used to determine the amount of reserve land to which a First Nation was entitled. Reserve land shortfalls may result from the fact that not all of the members of a community were counted at the relevant time, or because individuals and families joined the community at a later date. In some TLE claims there may be an issue concerning the quality of reserve land. Treaty 3 specified that land of farming quality was to be provided, and a First Nation may assert that it did not receive all or some of that Right-of-Way (Highway, Railroad, Power Line or Pipeline) A First Nation may assert that reserve land was taken, without appropriate authority, to establish a right-of-way (for a highway, railroad, power line or fuel pipeline) or that the First Nation was inadequately compensated for the taking of the land Flooding These claims arise when reserve land was flooded as a result of the building of water control structures such as dams. The land may have been flooded without appropriate authority, or the First Nation may not have been adequately compensated, or both. 3.3 Unsold Surrendered Reserve Land Claims These claims arise when a First Nation seeks compensation for, or the return of, reserve lands that it surrendered to the federal Crown for sale prior to 1924 but that had not been sold by that time. These lands, which often consist of small parcels of land, beds of bodies of water, and road allowances, have remained unsold since 1924 for a variety of reasons, and therefore the First Nation has not received the proceeds from the sale of the lands. In 1986, a process was developed by which Canada, Ontario and a First Nation could enter into tripartite agreements to deal with unsold surrendered lands. 3. What types of land claim involve Ontario? 14

15 Appendicies: General Guidelines on Information Required Appendix 1: Treaty Agreements Boundary, Size or Location General Guidelines on Information Required The following are general guidelines on the kind of information to provide to the Government of Ontario. Each claim has a combination of facts, issues and law that is unique to it, so the specific requirements for each submission will differ. As a general rule, the First Nation making a claim should submit all evidence that appears to be relevant to its claim. A copy of the treaty or land purchase documents, with signatures and/or marks of participants The orders in council approving the treaty and/or setting apart the reserve The instructions to the Crown treaty commissioners, including any instructions provided to Ontario s representative if there was one on the treaty commission Copies of reports and/or descriptions (including oral histories) of meetings between the First Nation or Nations and treaty commissioners in which the terms of the treaty or agreement were discussed or negotiated, including any promises or terms that were not recorded in the written agreement (for example, reports from officials and third party observers, newspaper accounts, the recollections of Elders, and oral histories) Information about the First Nation s understanding of the terms of the treaty, as documented, for instance, in correspondence prepared on behalf of the community by missionaries or trading post officials regarding the treaty or requesting fulfilment of particular obligations; traditional accounts of the meaning and intent of the treaty; testimony from elders. Documents in which Crown officials discuss their interpretation or understanding of the treaty and its fulfillment Evidence of instructions from the Chief and community representatives to government officials, such as Crown surveyors, regarding the size, location, and boundaries Documents that describe the reserve to be set aside (e.g. the treaty itself, the written reports or diaries of treaty commissioners, correspondence that contains a promise to establish a reserve) Documents recording the survey of the reserve, including details of the location, area and boundaries: instructions to the surveyor Appendicies: General Guidelines on Information Required 15

16 the surveyor s report or plan to survey the reserve, and any other documents that include information about the survey (e.g. field notes, diaries, reports, and plans, including dates of commencement, interruption, resumption, completion, activities and contacts of the surveyors during the work; and anything that affected the survey) correspondence within the government department(s) or between officials and other persons regarding the survey or location of the reserve note the area of land that was supposed to be set apart as reserve and the actual area as originally surveyed. Any evidence that the band was associated with another band, or that there was an amalgamation or division of the First Nation or First Nations for whom the reserve was intended Records of any complaint by the First Nation about the size, location or boundaries of the reserve Records of any concerns expressed by the First Nation about the quality of the land at the time of land selection or later Records of any response to these grievances by Canada or Ontario If the land allotted was ever altered, provide dates and details: Documents recording the reasons for modifying boundaries, exchanging, adding or subtracting land Documents recording the new survey (follow the guidelines for surveys above) The orders in council (federal and provincial) approving the altered boundaries Any modifications specified by Ontario and confirmed in the 1915 Act to Confirm the Title of the Government of Canada to Certain Lands and Indian Lands and documents recording Canada s acceptance of these changes Provide copies of documents recording the area involved and any compensation paid to Ontario by Canada to reimburse the province for reserve land that exceeded what Ontario considered appropriate Appendicies: General Guidelines on Information Required 16

17 Appendix 2: Treaty Agreements Treaty Land Entitlement (TLE) General Guidelines on Information Required The following are general guidelines on the kind of information to provide to the Government of Ontario. Each claim has a combination of facts, issues and law that is unique to it, so the specific requirements for each submission will differ. As a general rule, the First Nation making a claim should submit all evidence that appears to be relevant to its claim. A copy of the treaty, and records showing the general practice under the treaty to determine land entitlements for reserves Documents recording the actual survey of the reserve, including details of the location, area and boundaries: instructions to the surveyor to set aside a reserve the surveyor s report, or plan to survey of the reserve, and any other documents that include information on the survey (e.g. field notes, diaries, reports, and plans, including dates of commencement, interruption, resumption, completion, activities and contacts of the surveyors during the work; and anything that affected the survey) correspondence within the government department(s) or between department officials and other persons regarding the survey or location of the reserve note the area of land that was supposed to be set apart as reserve and the actual area of the reserve as originally surveyed together with the date or dates used for establishing the eligible population of the First Nation. Paylists recording band membership and annuities paid, particularly at the time of treaty adhesion and around the time that the reserve was surveyed, and those relating to any individuals or families who later joined the community, and whom the First Nation asserts should be included in its population for determining reserve entitlement Documents recording residence of particular individuals whose inclusion in the band is at issue If the reserve land allotted was ever altered (exchanged, increased, decreased or modified), provide dates and details Evidence of amalgamation or division of the First Nation or First Nations and the reserve(s) that were affected by the amalgamation or division, including any reserves that were created as a result of a division of the band Appendicies: General Guidelines on Information Required 17

18 For Reserves in the Treaty 3 region, add the following information to the above: Copies of reports and/or descriptions (including oral histories) of meetings between the First Nation of First Nations and treaty commissioners in which the terms of the treaty or agreement were discussed or negotiated, including any promises or terms that were not recorded in the written agreement. These may be reports from officials or from third party observers, newspaper accounts, the recollections of Elders, and oral histories. Documents in which Crown officials discuss their interpretation or understanding of the treaty and its fulfillment, including correspondence and notes recording any promise to establish a reserve, and any promise regarding the quality of land to be provided Information about the First Nation s selection of reserve lands and their understanding regarding the size and location of their reserve Information about the government s understanding regarding the size and location of reserve to be provided Information about any discussions between representatives of the First Nation (Chief, Councilors, Elders) and government officials, including Crown surveyors, regarding the selection or survey of their reserve Documents regarding the intentions of the parties with respect to the provision of farming and wild reserve lands, including any documents related to the amount of farming and wild lands to be provided Documents regarding the quality of the land. Specifically: Records indicating the quality of the land set aside according to surveyors and government officials Records indicating the First Nation s views regarding the quality of the land set aside Records illustrating the use made of the lands set aside by the First Nation, including any record of farming the lands or portions of the lands; and Current assessments of the quality of the land (e.g. the description in the Canada Land Inventory Documents recording the band s willingness to admit non-treaty Indians, specifically American Indians, as members of the band. Identify individuals born in the United States who joined the band or lived on the reserve Appendicies: General Guidelines on Information Required 18

19 Appendix 3: Unauthorized Use of Reserve Land for Right-of-Way General Guidelines on Information Required The following are general guidelines on the kind of information to provide to the Government of Ontario. Each claim has a combination of facts, issues and law that is unique to it, so the specific requirements for each submission will differ. As a general rule, the First Nation making a claim should submit all evidence that appears to be relevant to its claim. Documents setting out the request for the taking of reserve land and the proposed use of the land for constructing or widening the railroad/ highway, powerline or pipeline Copies of the statutes and regulations under which the surrender or expropriation was taken or made Correspondence, reports or other documents recording consultations with the First Nation on the location of the right-of-way and the First Nation s understanding of the intended use, and any conditions attached to the First Nation s consent Information about the surveys of the reserve and the right-of-way: the order in council or other legal instrument setting apart the reserve, and/or the official map of the reserve establishing the boundaries and identity of the First Nation for which the reserve was set apart the survey, map or plan showing the original reserve and the survey plan for the right-of-way any record of consultations with the First Nation regarding the survey Any indication that the plan was altered before being implemented, and evidence that the First Nation saw the revised plan Evidence that Canada and the First Nation discussed surrender, expropriation or grant in lieu of expropriation of the lands to be used for the railroad, highway, powerline or pipeline, in accordance with the Indian Act, and evidence that Canada took the surrender of the land or made a grant of it Records of any discussion between Ontario and Canada regarding the terms for taking the land (e.g. in fee simple, or with a right of reversion to the First Nation) Records of the valuation of the land and any improvements made by the First Nation, how compensation was determined and by whom, including any evidence that the First Nation was involved in the land valuation and/or consented to the amount assessed Records of any arbitration of disagreements about the surrender, expropriation or Appendicies: General Guidelines on Information Required 19

20 grant in lieu of expropriation and/or compensation to be paid The order in council approving the amount of compensation to be paid to interested parties Documents that show the amount of compensation received, by whom and when (e.g. trust fund ledgers) Records of any materials (gravel, fill, timber or other natural resources) removed from the reserve to build or widen the railroad, highway, powerline or pipeline Records of any compensation paid by Ontario for these materials, when and to whom Records of any assessments undertaken by Ontario for any off-reserve fee simple lands, and/or off-reserve harvesting and hunting lands identified as required for the construction, together with any compensation paid Any record of Canada monitoring the construction Any record of problems being brought to the Province s attention either by Canada or the First Nation, and Ontario s response Any documents recording how the land was used and any evidence that the land was used for purposes other than those for which it was surrendered, expropriated or granted Any complaints by the First Nation and responses to those complaints by Canada or Ontario If the status of sub-surface rights is at issue, provide documents that include any discussion of the transfer or reservation of sub-surface rights, as well as documents showing that sub-surface resources were exploited or transferred. Appendicies: General Guidelines on Information Required 20

21 Appendix 4: Unauthorized Use of Reserve Land - Flooding General Guidelines on Information Required The following are general guidelines on the kind of information to provide to the Government of Ontario. Each claim has a combination of facts, issues and law that is unique to it, so the specific requirements for each submission will differ. As a general rule, the First Nation making a claim should submit all evidence that appears to be relevant to its claim. Documents showing the purpose of the flooding and the parties that proposed to flood the land; all legal authorities (e.g. applications for authority to flood, permits, ministerial orders); the policies and practices of Canada s Department of Indian Affairs with regard to flooding Indian land Maps, plans, correspondence, reports and studies indicating the areas to be flooded, and the land, resources, houses and roads affected by the proposed flooding Correspondence, reports or other documents showing how the First Nation was informed of the flooding, and what was said regarding the purpose, extent, duration and impact of the flooding Correspondence or reports recording who represented the First Nation in any decisions about the flooding, and the First Nation s understanding of the purpose, extent, duration and potential impact of the flooding Records showing that the First Nation gave its consent A flowage easement, if one was obtained Documents showing how the flooding was monitored (by Ontario and Canada, as well as others if they were involved) Maps or plans showing the original reserve and lands flooded or otherwise affected by the change in water level The order in council or other legal instrument setting aside the reserve Evidence of how the First Nation used the flooded area (land and waterways) Records of water levels before and after completion of the dam or water-control structure, including proposed and actual acreage flooded Documents detailing other impacts of the flooding (e.g. turbidity of the water, erosion of banks, altered distribution of fish and animals, and changes in the traditional use of the waterways by the First Nation) Any evidence that water levels were artificially raised prior to proper authority being issued Appendicies: General Guidelines on Information Required 21

22 Records of any compensation provided for the flooding and/or loss of traditional use of the lands, how the compensation was determined and by whom (including who acted for the First Nation), and the First Nation s understanding of the compensation The order in council approving the amount of compensation to be paid to interested parties; records of compensation received and when it was paid (e.g., trust fund ledgers), who paid it, how it was paid (e.g., in cash, goods or services), and who received it (individuals or the First Nation) Evidence that the First Nation objected to the taking of the reserve lands for the water control project or the flooding of reserve lands, and any response from Ontario and/or Canada If the flooding was done for the generation of water power: Documents showing who sought to develop the power potential of the waterway and all legal authorities and instruments used to permit development, including the initial applications and agreements Records of discussions regarding water power development in relation to flooding, including documents recording what the First Nation was told about the water power development, its purpose, extent and duration Documents regarding the power generating potential of site(s), and any alterations to the site(s) for the purpose of increasing the power potential Records of who benefited from the water power developments (e.g. private or publicly owned/operated companies) Appendicies: General Guidelines on Information Required 22

23 Appendix 5: Unsold Surrendered Reserve Land Claims General Guidelines on Information Required The following are general guidelines on the kind of information to provide to the Government of Ontario. Each claim has a combination of facts, issues and law that is unique to it, so the specific requirements for each submission will differ. As a general rule, Canada can assist in the provision of relevant information, but the First Nation seeking the return of or compensation for unsold surrendered lands should ensure that all necessary documentation is provided to Ontario. The Order-in-Council or other legal instrument setting aside the reserve, and/ or the official map of the reserve establishing the pre-surrender boundaries and identity of the First Nation interested in the reserve A survey, plan or description of the lands surrendered for sale but not sold before 1924, recording the location, boundaries and acreage The surrender document or other documentation that establishes the identity of the First Nation that surrendered the lands for sale or lease The order in council accepting and approving the surrender Any record of discrepancies between in acreage and/or location of the land mentioned in the surrender and that actually taken for sale All of Ontario s registered transactions (e.g. Crown sale grants, patents, leases, license of occupation, etc.), if any, relating to the tenure and/or disposition of land surrendered for sale All of Canada s registered transactions, if any, relating to the tenure and/or disposition of land surrendered for sale Appendicies: General Guidelines on Information Required 23