Negotiations on the Caldwell First Nation’s Specific Claim - January 2007

Overview

The Government of Canada and the Caldwell First Nation announced on October 6, 2006 that they were moving forward with the negotiation process on the First Nation's specific claim. This specific 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 purpose of this newsletter is to inform First Nation members and other interested parties about the ongoing negotiation process on this specific claim. This issue also includes some background information on the claim and related milestones.

Looking back: the 1790 Treaty and the War of 1812

Historically, the Caldwell First Nation (also known as the Chippewas of Point Pelee) lived as a distinct First Nation in the Point Pelee area.

In May 1790, the Ottawa, Chippewa, Pottawatomi and Huron surrendered a large tract of land in southwestern Ontario, including Point Pelee. This surrender was done in exchange for goods and certain lands were set aside as reserve lands out of the treaty area for their use. However, the Caldwell First Nation did not sign or benefit from the treaty.

The Caldwell First Nation served as allies of the British during the War of 1812. In consideration of this service, the First Nation was promised reserve land at Point Pelee. Some members of the Caldwell First Nation continued to occupy Point Pelee, with the support of the Government, until the late 1850s. Records also indicate that since at least 1839, the Caldwell First Nation complained about encroachments on its lands. Members of the First Nation were gradually forced to leave Point Pelee due to the encroachment by settlers, with the last members leaving in the 1860s.

The Caldwell First Nation has pressed its claim for land since the 1830s without success. At various times in the 19th century and the early part of the 20th century, the Government of Canada took some preliminary steps to provide a reserve for the Caldwell First Nation. None of these attempts was ever completed and the First Nation remains without a land base and other benefits under the 1790 Treaty.

Milestones

The Caldwell First Nation's specific claim was first accepted for negotiation by the Government of Canada in 1996 following thorough historical research and review. The Government of Canada and the Caldwell First Nation reached an Agreement-in-Principle on October 30, 1998. A ratification vote on a proposed settlement was held on August 9, 2003, but the results of this vote were recently nullified by the Minister of Indian Affairs and Northern Development. This decision was based on an independent investigation which found that there were technical irregularities with the voting process that could have affected the outcome of the vote.

The Government of Canada and the First Nation announced to the public on October 6, 2006 that they would be returning to the negotiating table. At that time, Canada also announced that the federal negotiation team would be supported by Community Liaison Official Doug Forbes who would help facilitate information sharing with the public. Mr. Forbes has already begun contacting and offering to meet with a number of interested third parties and groups to inform them about the First Nation's specific claim process and to hear their concerns. The Caldwell First Nation will continue to keep its members informed about the negotiations through its community newsletters and existing venues.

Looking ahead: updating the settlement

The negotiations between the Government of Canada and the Caldwell First Nation resumed in October 2006 and the parties continue to meet on a regular basis. The negotiation teams are working together to conclude an updated settlement of this claim and have developed a work plan to guide their discussions.

The proposed settlement needs to be updated to reflect the amount of time that has passed since the 1998 Agreement-in-Principle was reached as well as current practices. Work must also be done to improve the voting process to eliminate the technical problems experienced with the previous vote. It is important to note that no settlement can be finalized without the approval of the First Nation's membership through a ratification vote.

Basis of compensation for a future settlement

The overall structure of the proposed settlement will not change as a result of these renewed discussions. It will still have two basic parts: financial compensation and an Additions-to-Reserve component. The overall basis for compensation is explained below.

Under the Specific Claims Policy, compensation is based on legal principles. In this case, compensation should put the Caldwell First Nation in the same position that it would have been in if it had received the benefits under the 1790 Treaty, and a reserve at Point Pelee. This is known as the principle of restitution, which has been approved by the courts as the appropriate approach to compensation for this kind of claim. In keeping with this principle, the Caldwell First Nation is entitled to receive the benefits of the 1790 Treaty. However, since those benefits are no longer available, the First Nation will be compensated for the treaty benefits it should have received. This may include cash compensation in lieu of the goods that were distributed at the time of the treaty, as well as compensation for the value of the reserve lands set apart under the treaty. The Government of Canada will also compensate the First Nation for the failure to set aside Point Pelee as a reserve. As both Point Pelee and the lands that were originally reserved under the 1790 Treaty are no longer available, Canada will provide the Caldwell First Nation with the means to acquire alternate lands. These elements were all part of the original Agreement-in-Principle. The parties are working together to determine how the compensation agreed on in 1998 should be updated.

The parties will also be discussing what compensation is appropriate to address the Caldwell First Nation's "loss of use" of the lands it should have received in 1790 and in 1812. When the Agreement-in-Principle was reached in 1998, the Government of Canada did not pay compensation for loss of use on this kind of claim. However, in the past eight years, the Government of Canada's approach to compensation has changed. Today, in certain circumstances, Canada will provide compensation for a First Nation's loss of opportunity to use the land, where a First Nation did not receive land that it was entitled to under a treaty, and can show that it has suffered a loss as a result. The parties will be discussing how to assess the extent of the First Nation's loss. It is likely that this new component will have a significant impact on the financial compensation to be negotiated by the parties.

Under the Specific Claims Policy, the First Nation is also entitled to an Additions-to-Reserve component. This will allow the Caldwell First Nation to apply to obtain reserve status for lands purchased on a willing-seller/willing-buyer basis. Any application will be subject to requirements set out in Canada's Additions-to-Reserves/New Reserves Policy. The land component outlined here is in keeping with the approach that is used across the country to settle this type of specific claim. No one will be forced to sell their land unwillingly. All property owners' rights, including rights of access, will be protected.

NEXT STEPS

There is still more work to be done before a final settlement can be reached. This includes the following required steps:

  1. Conclusion of discussions on how to update the proposed settlement
  2. Federal mandating process and offer to settle
  3. Drafting of an updated settlement agreement
  4. Initialling of the settlement agreement by negotiators
  5. Information meeting for First Nation members on the proposed settlement
  6. Ratification vote by First Nation membership
  7. The Chief and Council sign the settlement agreement
  8. Ratification by Canada
  9. Implementation of the settlement agreement

Frequently asked questions

If I own property within the area covered by this specific claim, will my property be taken away from me to settle the claim?
No. Regardless of where your property is located, this will not happen. Private property is not on the negotiating table. The current ownership of any claim lands is not at issue when a claim is being negotiated under the Specific Claims Policy. The Government of Canada does not take away or expropriate privately owned lands to settle any claims, nor are private property owners asked to sell their land unwillingly. If land changes hands after the settlement of a specific claim, this can only happen on a willing-seller/willing-buyer basis. All property owners' rights, including rights of access, will be protected.

Will land be included as part of a settlement of this claim?
As noted above, a settlement will have an Additions-to-Reserve component, but this does not mean that a reserve will suddenly be created when the claim is settled. What it means is that the First Nation would use a portion of the financial compensation that it receives on settlement to purchase land on the open market. After the settlement is concluded, the First Nation would then be entitled to apply to the Government of Canada under its Additions-to-Reserves/New Reserves Policy to request that these purchased lands be given reserve status. Lands acquired by a First Nation do not automatically become reserve lands, but must first meet the criteria of a future settlement agreement and Canada's Additions-to-Reserves/New Reserves Policy. This policy ensures that reserve creation will not hinder access to private property and also requires that the First Nation consult any neighbouring municipality and the province before the land can be given reserve status. These consultations will occur after the claim is settled, when the First Nation applies to have particular lands set apart as reserve. The Caldwell First Nation is committed to paying fair value for any municipal services it uses and to working with its future neighbours on any land issues through a respectful and co-operative dialogue.

How long will it take before the parties reach an updated settlement?
It is not possible to speculate as to how long it might take. However, the parties are committed to making best efforts to resolve this specific claim in as timely a manner as possible.

What is the goal of these negotiations?
A settlement would provide the Caldwell First Nation with the opportunity to acquire the reserve it should have received over two hundred years ago. It will also give the First Nation the opportunity to create a long-term economic future for its members, as well as economic benefits for its neighbours.

The Government of Canada is committed to honouring its outstanding lawful obligations to First Nations and to resolving outstanding specific claims to the benefit of all Canadians. Negotiated settlements are about justice, respect and reconciliation. They are not only about coming to terms with the past and respect for treaties but also about building a better future.

Just the facts

The Government of Canada and the Caldwell First Nation are working together at the negotiating table to determine what constitutes a fair and just settlement of this specific claim. At present, they are discussing how to update the proposed settlement. There is still more work to be done before an updated settlement can be reached.

It is important to note that no settlement can be finalized without the approval of the First Nation's membership through a ratification vote. Following ratification by the membership, the Chief and Council and the Minister of Indian Affairs and Northern Development would sign the settlement agreement. The agreement would not be final until it is signed by both parties.

The Government of Canada and the Caldwell First Nation have established and will maintain an open process for information sharing with First Nation members and interested third parties.

No private property will be taken away from anyone to settle this specific claim. All property owners' rights, including rights of access, will be protected. If land changes hands after a settlement, this can only happen on a willing-seller/willing-buyer basis.

A settlement would resolve historical grievances dating back to 1790 and 1812 and give the Caldwell First Nation the opportunity to secure a land base for its people after having been without one for so long. It will also provide the First Nation with the means to launch economic development initiatives that will strengthen the local community and economy.

Quick Facts About Specific Claims:

The Government of Canada has been negotiating specific claims similar to the Caldwell First Nation's claim under its Specific Claims Policy since the mid-1970s. As of June 30, 2006, over 470 specific claims have been concluded across the country, including 275 negotiated settlements. These settlements involve about 181 First Nation communities with over 230,000 members. About 120 specific claims are under negotiations.