Vol. 150, No. 8 — April 20, 2016

Registration

SOR/2016-67 March 29, 2016

FIRST NATIONS LAND MANAGEMENT ACT

Order Amending the Schedule to the First Nations Land Management Act

P.C. 2016-166 March 24, 2016

Whereas, pursuant to subsection 45(1) (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 subsection 45(1) (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 113:

Item

Column 1

First Nation that has signed the Framework Agreement

Column 2

Land code coming-into-force date

114

Penticton

  

115

Wahpeton Dakota Nation

  

116

Misipawistik Cree Nation

  

117

Serpent River

  

118

Fort William

  

119

Odanak

  

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.)

Issues

The six identified First Nations in the Order Amending the Schedule to the First Nations Land Management Act, currently operate under the Indian Act for the management of their reserve land. 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.

Background

Together, the Framework Agreement on First Nation Land Management (the Framework Agreement) and the First Nations Land Management Act make up the First Nations Land Management Regime (the Regime), a First Nations-driven initiative developed in full partnership between the Government of Canada and the signatory First Nations. The First Nations Land Management Act is the formal legislation which ratifies and brings into effect the Framework Agreement.

In February 1996, the Government of Canada and a group of First Nations’ chiefs signed the 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 regime 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 regime (http://www.labrc.com).

To assume control over its lands, the First Nation submits a band council resolution, expressing interest in the Regime. The First Nation must also complete a questionnaire which is part of an application submitted to the Department of Indigenous and Northern Affairs Canada. The Department uses the submissions to assess a First Nation’s readiness (see footnote 2) to assume the land management responsibilities of the 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 of Indian Affairs and Northern Development sign the adhesion document to be added to the Framework Agreement. Pursuant to section 45 of the First Nations 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. Once added to the Framework Agreement, the First Nation will commence the Regime developmental activities within a 24-month process, including the drafting of a land code and the negotiation of an Individual Agreement with the Government of 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. The council may, in accordance with the land code, make laws respecting the development, conservation, protection, management, use and possession of First Nation lands, and interests and licences in relation to those lands, including laws regarding

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

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 Regime.

The following First Nations, via band council resolutions and the submission of an application for entry into the 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: Penticton in British Columbia; Wahpeton Dakota Nation in Saskatchewan; Misipawistik Cree Nation in Manitoba; Serpent River and Fort William in Ontario; and Odanak in Quebec.

Objectives

The Regime replaces 32 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 six First Nations to the schedule to the First Nations Land Management Act will benefit these communities by

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. The Government of Canada will remain liable for and will indemnify a First Nation for losses suffered as a result of any act or omission by the Government of 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. The Government of Canada continues to hold title to First Nation land, although it has no management authority over the land.

The objective of the Regime is to provide First Nations with modern land management tools and capacities. The Regime 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 Nations 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 six additional First Nations to opt into the Regime and out of the land management provisions of the Indian Act.

“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 requirements on business. 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. The small business lens, therefore, does not apply.

Consultation

The chief and council of each of the identified First Nations signaled 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 into the Regime. While in the developmental phase of the Regime, these six 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 the Government of 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 the Government of Canada to the First Nation; and the operational funding to be provided by the Government of Canada as a contribution to the First Nation towards ongoing land management responsibilities under the Regime.

Prior to a First Nation becoming operational under the 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, as outlined in its land code, thus making the First Nation an operational First Nation under the Regime.

Rationale

The 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. An independent study by KPMG in 2009 (see footnote 3) found that under the Regime, economic development activities on reserve improve as First Nations can move quickly on opportunities that arise and negotiate directly with potential business proponents. As a result, these communities may benefit from higher quality jobs, increased internal investments through member-owned enterprises, increased external investments through joint partnerships with third parties, increased employment amongst band members, as well as increased employment opportunities for non-members and neighboring communities, thereby injecting money into local communities. During the 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 over their reserve lands and resources.

Whether or not 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 the Government of Canada of providing operational funding to First Nations under the Regime is minimal in comparison to the economic development benefits that First Nations experience under the Regime. The operational funding provided is to assist with land and environmental governance and management, which include the establishment and maintenance of the legislative, regulatory and policy framework, including an environmental protection regime, and the enforcement of First Nation laws. 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 the Department of Indigenous and Northern Affairs Canada. Departmental costs associated with the processing and 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 and liabilities once the responsibility is transferred to the First Nation, who will then develop, enact and enforce their environmental protection regimes.

The Order allows six additional First Nations to opt out of the Indian Act and into the First Nations Land Management Regime. The addition of these six First Nations brings the total number of First Nations on the schedule to the First Nations Land Management Act to 119. These First Nations have been assessed as part of the recent expansion and were deemed ready to assume the land management responsibilities of the Regime. The financial impact on the Department of Indigenous and Northern Affairs Canada to sustain the operational funding for these six entrants once they become operational under the Regime is approximately $1.3 million per year 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 could 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 Minister of Indian Affairs and Northern Development and the identified six First Nations signed their adhesion to the Framework Agreement. The Minister of Indian Affairs and Northern Development has recommended the addition of the First Nations to the schedule to the First Nations Land Management Act: Penticton in British Columbia; Wahpeton Dakota Nation in Saskatchewan; Misipawistik Cree Nation in Manitoba; Serpent River and Fort William in Ontario; and Odanak in Quebec.

There are no compliance and enforcement requirements associated with the Order for adding the 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 Nations. The Government of Canada provides an annual contribution to each operational First Nation under the Regime to assist with land management activities, which includes compliance and enforcement activities.

Contact

Cheri Reddin
Director
Community Lands Development Directorate
Lands and Economic Development Sector
Indigenous and Northern Affairs Canada
10 Wellington Street, Room 17E
Gatineau, Quebec
K1A 0H4
Telephone: 819-994-2210
Fax: 819-953-0517
Email: Cheri.Reddin@aandc-aadnc.gc.ca