Registration

SOR/2008-267 September 5, 2008

FIRST NATIONS LAND MANAGEMENT ACT

Order Amending the Schedule to the First Nations Land Management Act

P.C. 2008-1615 September 5, 2008

Whereas, pursuant to section 45 of the First Nations Land Management Act (see footnote a), the Governor in Council is satisfied that the signing of the Framework Agreement, as defined in subsection 2(1) 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 so signed;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to section 45 of the First Nations Land Management Act(see footnote b), hereby 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 55:

56.    Campbell River

57.    Sumas

58.    Skawahlook

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.)

Issue and objectives

This Order adds Campbell River, Sumas and Skawahlook First Nations to the schedule of the First Nations Land Management Act (FNLMA), pursuant to section 45 of the FNLMA. It is only through an Order that a first nation can be added to the schedule to the FNLMA.

• This Order will allow the three first nations to opt into the FNLMA’s alternative land management regime and out of the Indian Act.
• The FNLMA provides participating first nations with the ability to create modern tools of governance over their lands and resources.

Description and rationale

The Framework Agreement on First Nation Land Management (Framework Agreement) was signed by Canada and 14 first nations (the Parties) in 1996. The FNLMA is the legislation that ratifies and brings into effect the Framework Agreement. The FNLMA was introduced as Bill C-49 in June 1998 and received Royal Assent on June 17, 1999. In 2002, the Parties agreed to amend the Framework Agreement and the FNLMA to provide an opportunity for other interested first nations to opt into the First Nation Land Management (FNLM) regime.

The Framework Agreement and the FNLMA provide signatory first nations with decision-making powers at the local level. 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, first nations have little or no control over the management of their lands.

Land management under the FNLM regime is more effective and proactive (identifying and resolving issues at an early stage, before they become large problems) because it takes place at the local level. The economic benefits that first nations derive from operating under their own land code include a decrease in unemployment and increased economic development on reserve, which reduce first nation dependency on social programs.

There are potential savings to Canada flowing from first nation participation in the FNLM regime as a result of the reduction in fiduciary obligations towards first nations. The savings result from reducing the liability the Government of Canada faces from managing reserve land under the Indian Act in areas such as delayed or missed rent reviews, improper and inadequate monitoring and compliance of land transactions, and resource and environmental occurrences. The Government of Canada’s liabilities in these situations are significantly reduced or eliminated when the responsibility for land management is transferred to the first nation. However, the resulting savings are partly offset by the initial cost of building first nation capacity for land management and the need to provide adequate funding to a first nation to operate under its land code.

The benefits to first nations under the FNLM regime include the following: the ability to seize economic development opportunities is enhanced when decision making is at the local level; decisions can be made without the Government of Canada’s involvement, reducing the required layers of approval; the nature of the Government of Canada’s fiduciary duty in leasing transactions often causes it to adopt a cautious approach driven by its need to reduce or eliminate the business risk associated with the proposal, which in turn can drive investors to seek alternate opportunities; and finally, the Indian Act does not readily accommodate the complicated commercial transactions that are being carried out by first nations operating under their own land codes.

Consultation

This Order has the support of all parties, namely the first nations being added to the schedule to the FNLMA, Indian and Northern Affairs Canada and the Lands Advisory Board.

Implementation, enforcement and service standards

First nations wishing to opt into the FNLM regime submit a Band Council Resolution expressing their interest to the Lands Advisory Board (LAB). After the LAB holds a presentation on the FNLM regime to the requesting first nation community and Band Council, and upon a positive assessment of their capacity to undertake the requirements of the FNLMA by both the LAB and the regional federal government authority where the first nation is located, the LAB then makes a recommendation to the Minister of Indian Affairs and Northern Development to sign an adhesion document adding the first nation to the Framework Agreement. The land code and Individual Transfer Agreement will not be considered approved if less than 25% plus one of all eligible voters voted to approve them.

First nations generally take two years to develop their land code and their Community Approval Process, and to negotiate their Individual Transfer Agreement with Canada. An independent verifier is appointed by the first nation and Canada to ascertain whether the proposed land code and Community Approval Process conform to the Framework Agreement and the FNLMA. The verifier then reports to the first nation and Canada as to whether the land code is valid and has been properly ratified through a successful community vote.

Under the FNLMA, first nations are expected to develop general rules and procedures in cases of a breakdown of marriage with respect to the use, occupation and possession of first nation land and the division of interests in that land, within 12 months following their land code taking effect. The land code replaces the land management provisions of the Indian Act and is based on the principles set out in the Framework Agreement and the FNLMA. This allows FNLMA first nations to fill the gap that exists in dealing with matrimonial real property on reserve land, as there are no provisions in the Indian Act dealing with this issue. Matrimonial real property laws adopted under the FNLMA provide protection to both genders but have the greatest impact on the well-being of women and children.

Contact

Garry Best
Director
First Nations Land Management
Lands Branch
Lands and Trust Services
Indian and Northern Affairs Canada
10 Wellington Street, Room 17E
Gatineau, Quebec
K1A 0H4
Telephone: 819-994-2210
Fax: 819-997-8522
Email: BestG@ainc-inac.gc.ca

Footnote a
S.C. 1999, c. 24

Footnote b
S.C. 1999, c. 24

Footnote 1
S.C. 1999, c. 24

NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with extensible hypertext markup language (XHTML 1.0 Strict).