Frequently Asked Questions - Caldwell First Nation Specific Claim

Context

What is this claim all about?
The Caldwell First Nation's claim dates back to events that took place over 200 years ago. The claim relates to reserve land and other benefits promised in a 1790 Treaty as well as to land that was promised during the War of 1812. The basis of the claim is that the First Nation did not receive the land and other benefits that it should have received over 200 years ago.

What is being done to deal with this claim?
The Government of Canada and the Caldwell First Nation are working together to find a common solution. The goal of this process is to reach a settlement that will resolve this longstanding claim in a way that is fair to everyone.

What area is covered by the 1790 treaty?
The treaty covered an area generally from London to Windsor and south of the Thames River in southwestern Ontario. The current ownership of these lands is not at issue in this process. What is at issue is providing the First Nation with fair compensation to right a past wrong.

What are treaties?
Treaties are solemn agreements that set out promises, obligations and benefits for both parties. Beginning almost 300 years ago, treaties were signed between the British government and many First Nations living in what was to become Canada. Through many of these agreements, First Nations surrendered their interest in the land in exchange for one-time or ongoing benefits, ongoing rights and reserve lands. This allowed for the peaceful settlement and development of much of Canada.

These treaties between Canada and First Nations are basic building blocks in the creation of our country. The continuing treaty relationship ensures that First Nation and non-First Nation people can together enjoy Canada's benefits.

Why is Canada dealing now with something that happened over 200 years ago?
The Government of Canada is accountable for legally-binding treaties signed with First Nations. Canada has a duty to honour past commitments made with First Nations. While centuries may have passed since a treaty was signed, this does not diminish Canada's obligation to keep its promises.

Canada has a longstanding policy and process in place to resolve these claims by negotiating settlements with First Nations. By settling this claim, Canada will deliver on a past commitment made to the Caldwell First Nation and repay a debt that has been outstanding for far too long. Negotiations are the best way to bring closure to this longstanding claim once and for all.

The Negotiations

When did the negotiations begin?
Negotiations to resolve this claim began in 1996. Canada and the First Nation reached an Agreement-in-Principle (AIP) in 1998. However, the parties were unable to move forward on this AIP, due to a failed ratification vote that took place in 2003. The results of this vote were later set aside due to technical irregularities found in the voting process. Renewed negotiations to conclude a settlement of the claim began in the fall of 2006.

What has been achieved through these renewed talks?
The parties have made good progress in their negotiations. Negotiators for Canada and the Caldwell First Nation have concluded their talks on the key elements of a revised Settlement Agreement. Canada has tabled a settlement offer and the First Nation has agreed to take this offer to its members for a vote. This is a major step forward in the process, but more work needs to be done before the settlement can be concluded.

What are the next steps?
The next step in the resolution process is for the negotiators to draft the legal text of a Settlement Agreement. The First Nation must also complete its work on a proposed Trust Agreement. This Agreement will set out how the First Nation will use, manage and administer its settlement funds.

When this work is complete, the First Nation will launch an information campaign to explain the proposed settlement to its members. This will include community meetings and mail outs of information materials.

No settlement is possible without the vote and approval of the First Nation membership of both the proposed Settlement Agreement and the Trust Agreement. If a favourable vote is reached, the next step is for the Chief and Council and the Minister of Indian Affairs and Northern Development to sign the Settlement Agreement. The agreement would not be final until it is signed by both parties.

Why did the proposed settlement need to be changed?
The proposed settlement was changed to reflect compensation practices and as a result of additional negotiations. The negotiators needed to determine how the compensation should be revised. Research was done to help them assess how much compensation would be fair to resolve the claim. This included work to update the appraisals to value the claim lands and new research that looked at the income the First Nation lost by not having the use of the claim lands over time. This “loss of use” compensation was not part of the original 1998 AIP, but now needs to be included because the courts have directed that this type of compensation should be paid for this kind of claim. Ultimately, the proposed settlement is the result of negotiations between the parties.

Key Elements of the Proposed Settlement

What are the key elements of the proposed settlement?
The proposed settlement has two parts. It includes both financial compensation and a land component. This is in keeping with the approach that is used to settle other land-related specific claims across the country.

Under the proposed settlement, Canada will provide the Caldwell First Nation with approximately $105 million in compensation for past damages.

The First Nation can use some of its settlement funds to buy land on the open market. Under the proposed settlement, the First Nation can buy up to 6,540 acres of land and ask Canada to give those lands reserve status. If it pursues this option, the First Nation will have up to 30 years to buy land and start the reserve creation process.

How does the settlement bring closure to the claim?
In return for compensation, the First Nation will provide Canada with a release of the claim to ensure the claim can never be re-opened. Settlements must bring closure and certainty for all concerned.

Who does Canada pay the money to when the claim is settled? How will this money be managed?
When the claim is settled, Canada will pay the compensation to the First Nation. The First Nation is developing a proposed Trust Agreement that sets out how these settlement funds will be used and managed for the future benefit of its members. The Trust Agreement will also be submitted for approval by First Nation members when they vote on the proposed Settlement Agreement.

The Land Component

I own land within the 1790 Treaty area. Am I going to lose my land or be forced to sell my land as a result of this settlement?
No. Regardless of where your land is located, you will not lose your land or be asked to sell your land as a result of this settlement. This cannot and will not happen.

Private property will not be taken away from anyone to settle this claim. Nor will anyone be asked to sell their land unwillingly. If land changes hands after a settlement, this can only happen on a willing-buyer/willing-seller basis. Just like any other party, a First Nation has the right to buy land from a willing-seller.

Will First Nation members have to move to a new location when the claim is settled?
No. First Nation members will not be asked to relocate as a result of this process; where someone lives, as always, remains a personal and individual decision.

Why does the settlement include a land component?
The compensation in claims settlements is based on legal principles. In this case, the purpose is to put the First Nation in the same position it would have been in if it had received a reserve over 200 years ago. This is known as the principle of restitution, which has been approved by the courts as the right approach to compensation for this kind of claim. In keeping with this principle, Canada's obligation is to provide the First Nation with the opportunity to obtain the reserve land it should have received over 200 years ago.

The proposed settlement will provide the First Nation with the means to buy lands on the open market. This is in keeping with the approach that Canada has used to settle similar claims across the country over the past 30 years.

Is Point Pelee National Park included in the settlement?
No. Canada and the First Nation have agreed that Point Pelee National Park will remain a park for the use and enjoyment of everyone.

Reserve Creation

What is a reserve?
A reserve is land that has been set apart and designated as a reserve for the use and occupancy of an Indian group or band. Some bands now prefer the term “First Nation community” and no longer use the term “reserve.” The federal Crown holds the title to reserve lands.

Will a reserve be automatically created for the First Nation when the claim is settled?
No. A reserve will not suddenly be created for the Caldwell First Nation when the claim is settled. The First Nation will have the option to use its settlement funds to buy land on the open market and start the process of building a land base for its people. The First Nation will have up to 30 years to buy land and start the reserve creation process.

Will a reserve be created automatically when land is purchased by the First Nation?
No. When land is purchased by a First Nation, it does not automatically become reserve land. The land must first meet the criteria from Canada's Additions-to-Reserves Policy and the terms of the settlement. This means that a number of steps must first be completed before any lands can be given reserve status.

What steps need to be completed before land gets designated as reserve?
These steps include, for example:

• an environmental site assessment must be done to identify any existing contamination and ensure future residents won't be exposed to any related health risks
• interests held by third parties such as leases, permits and rights of way would also need to be addressed
• any necessary public access to the land and public utilities must be provided for.
• the First Nation must consult with municipal and provincial governments to resolve issues of common concern.

How are the concerns of municipalities addressed in these consultations?
The First Nation will consult and negotiate arrangements with any affected municipalities on issues stemming from reserve creation. This consultation must take place before any land can be designated as reserve land. This could include, for example, where it is requested by a municipality:

• agreements with respect to the provision of municipal services to the lands (which can involve a fee for services such as water, garbage collection, police and fire protection)
• arrangements for reasonable compensation for property tax loss
• education tax loss and service agreements with affected school divisions
• the development of mutually compatible land use planning
• the harmonization of by-laws
• a process for settling any future disputes.

The process of working together helps to build new relationships that all parties can benefit from in the future.

Information Sharing & Benefits

What's been done to inform the public about this process?
The parties made efforts to update interested parties as key milestones were reached during this joint process. This has included press releases, publications, information meetings and open houses. These efforts to share information with the public will continue.

Who benefits?
Claims settlements are not only about coming to terms with the past, but also about building a better future. This benefits everyone - First Nation and non-First Nation people alike.

The settlement will enable the First Nation to invest directly in the local economy through the purchase of land and new opportunities for economic development that will bring long-term benefits to First Nation members. These investments, in turn, can generate spin-off economic benefits for neighbouring communities and the potential for new business partnerships.

Quick Facts:

• The Government of Canada has been negotiating claims similar to the Caldwell First Nation's claim under its Specific Claims Policy since the mid-1970s.
• Specific claims deal with the past grievances of First Nations. These grievances relate to Canada's obligations under historic treaties or the way it managed First Nation funds or assets.
• As of December 31, 2009, over 760 specific claims have been concluded across the country, including 327 claims resolved through negotiated settlements. Canada's contribution to these settlements has ranged in value from $15,000 to $125 million, with an average settlement value of $6.6 million.
• Canada is committed to honouring its outstanding lawful obligations to First Nations and to resolving outstanding claims for the benefit of all Canadians.