Duty to consult and accommodate

Ontario negotiates agreements to transfer provincial land or interests in provincial land to either:

  • Canada, for the benefit of the claimant Indigenous community
  • an entity (such as a land holding corporation) created by an Indigenous community to hold land for the benefit of the claimant Indigenous community

When we negotiate agreements, we generally engage in two types of consultation:

  1. Indigenous consultation
  2. Public consultation

Indigenous consultation

Under Section 35 of the Constitution Act, 1982, Ontario, as the Crown, has a legal obligation to consult, and where appropriate, accommodate an Indigenous community when the Crown contemplates decisions or actions that may adversely impact asserted or established Aboriginal or treaty rights.

Public consultation

When settling land claims, Ontario consults with:

  • members of the public
  • stakeholders
  • municipalities
  • corporations
  • agencies
  • Indigenous communities who are not being consulted on a Section 35 rights basis, but may otherwise be affected by the proposed settlement

Other situations where consultation occurs

Depending on the nature of the claim and settlement, there may be times where we consult even if there is no transfer of land. There may be other situations, for example, during the implementation of a land claim settlement agreement that contemplates the purchase of land on a willing buyer/willing seller basis, where we may follow a consultation process other than the process described on this page.

Consultation process

Through the Indigenous land claims consultation process (ILCCP):

  • Ontario provides information about land claims to Indigenous communities and the public
  • Indigenous communities and the public provide information and feedback about the land claims to Ontario

The purpose of the ILCCP is to:

  • present and discuss information about Indigenous communities in the province, including:
    • the status of Aboriginal and treaty rights
    • the basis of the claim under negotiation
    • the process through which Ontario (and Canada) negotiate the resolution of claims, including the involvement of interested and affected stakeholders
  • outline the process Ontario uses to gather and consider information shared by Indigenous communities, stakeholders and the public about the potential impacts of the transfer of provincial land, or interests in provincial land, to Canada or to an entity created by an Indigenous community for settlement purposes
  • support the negotiation of fair settlement agreements that have considered the impacts of the transfer of provincial land or interests in provincial land on Indigenous communities, stakeholders and the public
  • provide a way for the rights and interests of the claimant Indigenous community, other Indigenous communities, stakeholders and the public to be identified, discussed and considered before any final decisions are made on the proposed settlement lands that will be transferred by Ontario
  • help to satisfy any statutory or regulatory requirements associated with the transfer of provincial land or interests in provincial land

When consultation occurs

Consultation occurs at key stages during negotiations, including:

  • identification of initial land interests, resulting in Areas of Interest
  • refinement of Areas of Interest after consultations, resulting in Candidate Lands
  • refinement of Candidate Lands after additional consultations, resulting in Proposed Settlement Lands

How we consult

The scope of public and Indigenous consultation required for the negotiation depends on the nature, magnitude and complexity of a land claim and the approach to settlement.

Ontario’s negotiating teams use a range of consultation activities to communicate with and seek input from the public and Indigenous communities, including:

  • newsletters, mail-outs, fact sheets, media interviews and postings on Ontario.ca
  • electronic communications
  • public meetings, open houses, workshops and community gatherings
  • correspondence and telephone calls between members of Ontario’s negotiation team and Indigenous communities and interested members of the public
  • direct or individual conversations with members of the public and stakeholders

What happens during consultation

During the consultation process, Ontario shares information about the land claim and the negotiation process with:

  • the public
  • stakeholders
  • affected Indigenous communities

We share information while respecting the confidentiality of the negotiation table.

Ontario collects information about the current uses of land which the negotiation parties use to develop options and solutions that considers users’ interests and concerns. The negotiation parties may also identify and explore:

  • viable options and solutions for accommodating the exercise of an Aboriginal or treaty right
  • mitigating potential impacts to the rights and interests of Indigenous communities, stakeholders and the public

The consultation process is used to:

  • identify and address potential impacts of the proposed settlement
  • explore proposals for addressing those impacts, where appropriate, with the involvement of the public and Indigenous communities
  • achieve broad public support and understanding so the proposed settlement agreement can be implemented effectively and efficiently

Concluding consultations

A Notice of Settlement Lands, including a map and a summary of the public and Indigenous consultations, will be posted to Ontario.ca for 30 calendar days.

This notice is also shared directly with Indigenous communities, the public and stakeholders who participated in the ILCCP.

If no new issues or significant concerns are raised during the 30-day period, Ontario's negotiating team will seek internal approvals to conclude consultations and proceed with the settlement.

If new issues or significant concerns are raised during the 30-day period, Ontario's negotiation team will respond to those issues before seeking internal approvals to conclude consultations.

When consultations and final negotiations among the Ministry of Indigenous Affairs, the claimant Indigenous community and the Government of Canada (where appropriate) are finished, a settlement agreement is prepared for ratification.

Consultation Record-keeping

To ensure transparency, Ontario’s negotiating teams:

  • keep a record of all consultation activities
  • maintain proper electronic filing of documents
  • ensure personal information is kept private, where applicable

Consultation records include all concerns raised during Indigenous and public consultations. These records will show how those concerns were mitigated or accommodated where appropriate, or if the concerns could not be mitigated.

Environmental Assessment Act

In the past, Ontario has consulted with the public and Indigenous communities through:

On July 1, 2021, undertakings (projects or activities) related to land claim settlements and other agreements with Indigenous communities about land were exempted from the Environmental Assessment Act. The exemption is set out in section 14.1 of Regulation 334 under the Environmental Assessment Act.

Projects or activities that are exempt

This exemption applies to all projects or activities that relate to a land claim settlement agreement, including an interim agreement involving the provincial government (Crown) and an Indigenous community.

The exemption also applies to certain projects or activities that implement other agreements about land between Indigenous communities and the Minister of Indigenous Affairs on behalf of the Crown, if the conditions in the regulation are met. Conditions include:

  • The project or activity must be carried out by or on behalf of the Crown. The exemption does not apply to undertakings carried out by or on behalf of others.
  • The project or activity must be included in the list set out in subsection 14.1 (2) of Regulation 334, which includes:
    • dispositions or transfers of land
    • acquisitions or acceptance of land
    • changes to the boundaries of provincial parks and conservation reserves
    • activities carried out in advance of or in preparation for a disposition or transfer of land

Find examples of the types of non-claim based agreements that subsection 14.1(2) is intended to include.

Projects or activities that are not exempt

Projects or activities that are not included in the list are not exempt. This means the exemption does not apply to:

  • natural resource development or infrastructure development that happens after the lands are transferred to an Indigenous community
  • projects or activities related to the settlement of the Algonquin Land Claim
  • projects or activities where a process of public consultation under Class Environmental Assessment or order was started before July 1, 2021