Vol. 146, No. 22 — October 24, 2012

Registration

SOR/2012-217 October 5, 2012

FIRST NATIONS LAND MANAGEMENT ACT

Order Amending the Schedule to the First Nations Land Management Act

P.C. 2012-1329 October 4, 2012

Whereas, pursuant to section 45 (see footnote a) of the First Nations Land Management Act (see footnote b), the Governor in Council is satisfied that the signing of the Framework Agreement, as defined in subsection 2(1) (see footnote c) of that Act, on behalf of the First Nations listed in the annexed Order has been duly authorized and that the Framework Agreement has been signed;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to section 45 (see footnote d) of the First Nations Land Management Act (see footnote e), makes the annexed Order Amending the Schedule to the First Nations Land Management Act.

ORDER AMENDING THE SCHEDULE TO THE FIRST NATIONS LAND MANAGEMENT ACT

AMENDMENT

1. The schedule to the First Nations Land Management Act (see footnote 1) is amended by adding the following after item 58:

Item

Column 1

First Nation that has signed the Framework Agreement

Column 2

Land code coming-into-force date

59.

Cowichan Tribes

 

60.

Haisla

 

61.

St. Mary’s

  

62.

Shuswap

  

63.

Stz’uminus

 

64.

Williams Lake

  

65.

Skowkale

 

66.

Yakweakwioose

  

67.

Aitchelitz

 

68.

Alexis Nakota Sioux

 

69.

Tsuu T’ina

  

70.

One Arrow

  

71.

Long Plain

  

72.

Buffalo Point

  

73.

Bingwi Neyaashi Anishinaabek

  

74.

Beausoleil

 

75.

Montagnais du Lac St-Jean

  

76.

Miawpukek

  

77.

Membertou

  

COMING INTO FORCE

2. This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Background

Together, the Framework Agreement on First Nations Land Management and the First Nations Land Management Act make up the First Nations Land Management Regime, a First Nations-driven initiative developed in full partnership between the Government of Canada and the signatory First Nations.

In February 1996, the Government of Canada and a group of First Nations chiefs signed the Framework Agreement on First Nations Land Management (Framework Agreement). The Framework Agreement provided the original 14 signatory First Nations with the opportunity to opt out of the land management provisions of the Indian Act and establish their own regimes to manage their lands and resources providing for more decision-making powers at the local level. These First Nations established a Lands Advisory Board and Resource Centre to assist them in implementing their own land management regimes (www.fafnlm.com).

The First Nations Land Management Act is the formal legislation which ratifies and brings into effect the Framework Agreement. The First Nations Land Management Act was introduced as Bill C-49 in June 1998 and received Royal Assent on June 17, 1999.

To assume control over its lands, the First Nation submits a Band Council Resolution, expressing interest in the First Nations Land Management Regime. The First Nation must also complete a questionnaire which is part of an application submitted to Aboriginal Affairs and Northern Development Canada. The Department uses the submissions to assess a First Nation’s readiness to assume the land management responsibilities of the First Nations Land Management Regime and to benefit from the economic development opportunities the Regime offers to participating First Nations. The Minister of Indian Affairs and Northern Development selects all new entrants into the Regime. Upon selection, the First Nation and the Minister sign the Adhesion Document to be added to the Framework Agreement. Once added to the Framework Agreement, the First Nation will commence the First Nations Land Management Regime developmental activities under a 24-month Community Approval Process Plan, including the drafting of a land code and the negotiation of an Individual Agreement with Canada.

A Land Code, drafted by the Community, is the basic law of the First Nation and replaces the land management provisions of the Indian Act.

Along with drafting of the Land Code, a First Nation will negotiate an Individual Agreement with Canada. The Individual Agreement deals with matters such as

  • the reserve lands to be managed by the First Nation;
  • the specifics of the transfer of the administration of the land from Canada to the First Nation; and
  • the operational funding to be provided by Canada to the First Nation as a contribution towards land management activities.

Both the Land Code and the Individual Agreement must be ratified by the eligible voters of the community in accordance with the Framework Agreement. If the community ratifies the Land Code and Individual Agreement, control over the First Nation land and resources is transferred from under the Indian Act to the First Nation’s laws and administration, thus making the First Nation operational under the First Nations Land Management Regime.

The following First Nations, via Band Council Resolutions and the submission of an application for entry into the First Nations Land Management Regime, also requested to be added to the schedule to the First Nations Land Management Act and were recommended by the Minister of Indian Affairs and Northern Development: Aitchelitz (BC), Alexis Nakota Sioux (AB), Beausoleil (ON), Bingwi Neyaashi Anishinaabek (ON), Buffalo Point (MB), Cowichan Tribes (BC), Haisla (BC), Long Plain (MB), Membertou (NS), Miawpukek (NF), Montagnais du Lac St-Jean (QC), One Arrow (SK), Shuswap (BC), Skowkale (BC), St. Mary’s (BC), Stz’uminus (BC), Tsuu T’ina (AB), Williams Lake (BC), Yakweakwioose (BC).

Issues and objectives

Currently, for the 19 identified First Nations in the Order, the management of their reserve land operates under the Indian Act. The Minister of Indian Affairs and Northern Development has wide-ranging discretion regarding the use of reserve lands and resources. As a result of these provisions, First Nations have little direct control over the management of their lands and argue that procedural requirements imposed by the Indian Act delay the completion of land transactions and inhibit a First Nation’s ability to seize new economic development opportunities.

The First Nations Land Management Regime replaces 34 land management sections of the Indian Act that deal with land, resources and environment. This provides First Nations operating under their Land Code with the ability to manage their lands more effectively and efficiently than under the Indian Act.

The addition of these 19 First Nations to the schedule to the First Nations Land Management Act will benefit these communities by

  • allowing them to develop their own laws to manage their reserve lands, including laws governing land designations, environmental protection and matrimonial real property;
  • enabling them to develop projects on reserve land without approval from the Minister of Indian Affairs and Northern Development; and
  • enabling them to respond to new business opportunities faster and more efficiently than those whose reserves remain under the Indian Act, thus increasing their economic development potential and the potential for private investments on reserve.

Description

The Framework Agreement delegates the land management responsibilities to signatory First Nations, providing the First Nations with the legal status and power needed to manage and govern their lands and resources. They are able to lease or develop their lands and resources subject to any limits imposed by their own community laws and Land Codes. Canada will remain liable for and will indemnify a First Nation for losses suffered of any act or omission by Canada, or its agents that occurred before the Land Code comes into effect. After that date, the First Nation is responsible for its own acts or omissions in managing its lands. Canada continues to hold title to First Nation land, although Canada has no management authority over the land.

The objective of the First Nations Land Management Regime is to provide First Nations with modern land management tools and capacities. The program facilitates the transition from the Indian Act to the First Nations Land Management Act and provides First Nations currently operating under the First Nations Land Management Act with the capacities to effectively manage their land. This includes creating land codes, individual agreements, laws, land management systems, and environmental protection regimes.

Pursuant to section 45 of the First Nation Land Management Act, the Governor General in Council may, after a First Nation has signed the Framework Agreement, modify the schedule by adding the First Nation to the schedule to the Act. The Order will allow 19 additional First Nations to opt into the First Nations Land Management Regime and out of the Indian Act.

Consultation

The chief and council of each of the identified First Nations signalled their interest to opt out of the land management provisions of the Indian Act, and to join the First Nations Land Management Act through the submission of a Band Council Resolution and an application for entry. While in the developmental phase of the First Nations Land Management Regime, these 19 First Nations must each develop a Land Code. A Land Code, drafted by the community, is the basic law of the First Nation and replaces the land management provisions of the Indian Act. Along with the drafting of the Land Code, the First Nations will each be required to negotiate an Individual Agreement with Canada. The Individual Agreement deals with matters such as the reserve lands to be managed by the First Nation, the specifics of the transfer of the administration of land from Canada to the First Nation and the operational funding to be provided by Canada as a contribution to the First Nation towards ongoing land management responsibilities under the First Nations Land Management Regime.

Prior to a First Nation becoming operational under the First Nations Land Management Regime, the Land Code and the Individual Agreement must be ratified by the eligible voters of the community. The procedure for the community ratification process is developed by the community in accordance with the Framework Agreement. Only if the community ratifies the Land Code and Individual Agreement will the land management responsibilities be transferred from under the Indian Act to the First Nation’s laws and administration as outlined in their Land Code, thus making the First Nation an operational First Nation under the First Nations Land Management Regime.

“One-for-One” Rule

This amendment to the schedule to the First Nations Land Management Act does not result in any new administrative burden for businesses, nor does it remove any administrative burden on businesses. The “One-for-One” Rule, therefore, does not apply.

Small business lens

This amendment to the schedule to the First Nations Land Management Act does not impose any level of compliance costs and/or administrative costs on small businesses as it does not impose any requirements from businesses. In contrast, this amendment could actually decrease the compliance costs the businesses on reserve already have because they will now be able to deal directly with the First Nation instead of the federal government.

Rationale

The First Nations Land Management Regime provides participating First Nations with the ability to manage their lands more effectively and efficiently than under the Indian Act. By removing the need to obtain ministerial approval for First Nation laws, signatory First Nations are able to operate at the speed of business, thus making the land more competitive for investment. Economic development activities on reserve will improve as First Nations can move quickly on development opportunities that arise and negotiate directly with potential business proponents. This increase in economic development opportunities will in turn generate greater self-reliance and reduce dependency on federal funding over time.

An independent 2009 cost/benefit analysis for First Nations participating in the First Nations Land Management Regime (see footnote 2) revealed that as a result of the accelerated economic development opportunities, these communities are benefiting in other areas as well. This study confirmed that participating First Nations are

  • experiencing a shift in the quality of jobs now available on reserve, and these opportunities require higher levels of education;
  • attracting significant internal investment (approximately $53 million to date overall) through member-owned enterprises;
  • attracting significant external investment (approximately $100 million to date overall) in joint partnerships with third parties:
  • Chippewas of Georgina Island (ON) is completing negotiations on a $55-million wind turbine energy project, including a $16-million investment by the First Nation and community partners and a $500,000 investment by Canada.
  • providing more than 2 000 employment opportunities for band members, thereby significantly reducing dependence on social programming; and
  • providing more than 10 000 employment opportunities for non-members, thereby injecting money into the local economies.

During this same study, First Nations operating under the First Nations Land Management Act indicated that not one community would want to return to the Indian Act and lose responsibility for their reserve lands and resources.

Regardless if the First Nations’ lands are managed under the Indian Act or under the First Nations Land Management Act, there will be ongoing costs associated with land management activities on reserve lands. The ongoing cost to Canada to provide operational funding to First Nations under the Regime is minimal in comparison to the economic development benefits that First Nations experience under the First Nations Land Management Regime. Further, since the land management decisions previously made under the Indian Act are transferred to the First Nation upon the signing of the individual agreement, there will be ongoing savings within Aboriginal Affairs and Northern Development Canada. Departmental costs associated with the processing/ approval of land transactions and designations under the Indian Act will be reduced once the responsibility is transferred to the First Nation. In addition, there will be a reduction in Canada’s environmental responsibilities/liabilities once the responsibility is transferred to the First Nation, who will then develop, enact and enforce their environment protection regimes.

The Order allows 19 additional First Nations to opt out of the Indian Act and into the First Nations Land Management Regime. The addition of these 19 First Nations brings the total number of First Nations on the schedule to the First Nations Land Management Act to 77.

These First Nations have been assessed as part of the recent expansion and were deemed ready to assume the land management responsibilities of the First Nations Land Management Regime. The financial impact on Aboriginal Affairs and Northern Development Canada to sustain the operational funding for these 19 entrants once they become operational under the First Nations Land Management Regime is approximately $3.98 million annually in contribution dollars; this is an ongoing commitment until a new operational funding formula is negotiated or the First Nation moves to self-government. There would be an initial increase in program costs associated with required surveys and environmental site assessment of the lands being transferred from the Indian Act to the First Nations Land Management Act for these First Nations.

Implementation, enforcement and service standards

The following First Nations, via Band Council Resolutions and the submission of an application for entry into the First Nations Land Management Regime, have requested to be added to the schedule to the First Nations Land Management Act: Aitchelitz (BC), Alexis Nakota Sioux (AB), Beausoleil (ON), Bingwi Neyaashi Anishinaabek (ON), Buffalo Point (MB), Cowichan Tribes (BC), Haisla (BC), Long Plain (MB), Membertou (NS), Miawpukek (NF), Montagnais du Lac St-Jean (QC), One Arrow (SK), Shuswap (BC), Skowkale (BC), St. Mary’s (BC), Stz’uminus (BC), Tsuu T’ina (AB), Williams Lake (BC), Yakweakwioose (BC).

The Minister of Indian Affairs and Northern Development and the First Nations signed their Adhesion to the Framework Agreement on First Nations Land Management. The Minister of Indian Affairs and Northern Development has recommended the addition of the identified First Nations to the schedule to the First Nations Land Management Act.

There are no compliance and enforcement requirements associated with the Order for adding the identified 19 First Nations to the First Nations Land Management Act. Ongoing compliance and enforcement strategies in relation to First Nations laws once operational under their Land Code will be the responsibility of the First Nation. The Government of Canada provides an annual contribution to each operational First Nation under the First Nations Land Management Regime to assist with land management activities under the regime, which includes compliance and enforcement activities.

Contact

Isabelle Dupuis
Acting Director
First Nations Land Management Directorate
Lands and Economic Development Sector
Aboriginal Affairs and Northern Development Canada
10 Wellington Street, Room 17E
Gatineau, Quebec
K1A 0H4
Telephone: 819-994-2210
Fax: 819-997-8522
Email: isabelle.dupuis@aadnc-aandc.gc.ca

Footnote a
S.C. 2012, c. 19, s. 636

Footnote b
S.C. 1999, c. 24

Footnote c
S.C. 2012, c. 19, s. 652(E)

Footnote d
S.C. 2012, c. 19, s. 636

Footnote e
S.C. 1999, c. 24

Footnote 1
S.C. 1999, c. 24

Footnote 2
KPMG Global Services, FNLM Benefit/Cost Analysis, Analysis of First Nations Responses, November 30, 2009.