SPOTLIGHT
 on Aboriginal Governance

Taking Control of Reserve Lands
Choices for First Nations
Regarding Land Management Issues
Indian Act
vs.
First Nations Land Management Act

Click Here For more information on the First Nations Land Management Initiative

A step toward self-government
No more Indian Act control
over management of lands
July 9, 2003
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NINETEEN FIRST NATIONS SIGN FRAMEWORK AGREEMENT
TO FIRST NATIONS LAND MANAGEMENT INITIATIVE OTTAWA

(March 31, 2003) - Nineteen First Nations are signing the Framework Agreement on First Nations Land Management today, announces Robert Nault, Minister of Indian Affairs and Northern Development and Chief Robert Louie of the Westbank First Nation and Chair of the Lands Advisory Board.

One year ago Minister Nault and Chief Robert Louie announced the opening up of this initiative to interested First Nations, in addition to the original 14 signatory First Nations. Today we are celebrating as more First Nations take advantage of this initiative. Signing the Framework Agreement marks the first step in a commitment between these First Nations and the Government of Canada in their move towards increased self-governance.

“Signing the Framework Agreement today with these new communities demonstrates just how successful this initiative can be in improving the quality of life in First Nations communities by building capacity and increasing economic development opportunities,” said Minister Nault. “I am very pleased to provide this support to this First Nations led initiative.”

“The Lands Advisory Board and Resource Centre welcomes these new First Nations to our group. We look forward to working with these communities towards fulfilling their vision of community based lands and resources management.” said Chief Louie.

The 19 First Nations include: from British Columbia, Beecher Bay, Tsawout, Tsawwassen, Songhees, Pavilion, Burrard, Sliammon, Osoyoos, Kitselas, and Skeetchesn; from Saskatchewan, Kinistin, and Whitecap Dakota Sioux; from Ontario, Garden River, Mississauga, Whitefish Lake, Dokis, Kettle and Stony Point, and Moose Deer Point; and from New Brunswick, Kingsclear.

The Framework Agreement and the First Nations Land Management Act, was originally open to only the 14 signatory First Nations. This government to government Initiative provides participating First Nations with the opportunity to come out from under the land administration sections of the Indian Act and establish their own regimes to manage their lands and resources, providing for more decision making at the local level.

The First Nations Land Management Initiative allows participating First Nations the opportunity to develop their own modern and/or traditional tools to manage and protect their reserve lands and resources. The Initiative enables First Nations to make timely business and administrative decisions and to accelerate progress in areas such as economic development, resource management, and land use planning. This Initiative also enables First Nations to enact and enforce sound environmental management and protection laws.

For further information, contact:

Alastair Mullin
Communications Advisor
Office of the Minister
Indian and Northern Affairs Canada
(819) 997-0002

Meko Nicholas
Lands Advisory Board
(613) 591-6649

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McLeod Lake Indian Band voted overwhelmingly in favour, ratifying its land code consistent with the Framework Agreement on First Nations Land Management and the First Nations Land Management Act, announces Chief Harley Chingee, McLeod Lake Indian Band, Robert Nault, Minister of Indian Affairs and Northern Development and Chief Robert Louie, Chair of the Lands Advisory Board, as they celebrate the ratification of the McLeod Lake Land Code.

"I feel that this has been a tremendous step forward for my community's health, future and economic well being. There are many proposals for development that we are now able to confidently approach because we now have the authority to make our own decisions without delay," said Chief Chingee.

"The Chief, council and community of McLeod Lake are to be commended on their efforts in developing and ratifying their land code," said Minister Nault. "This achievement demonstrates that through initiatives like the First Nations Land Management Initiative, we can work with First Nations to provide the self-governance tools they need to build stronger, self-sufficient communities."

"On this very historic occasion, I would like to commend the people of McLeod Lake, for voting so resoundingly positive towards increased self sufficiency. This is obviously the end result of a lot of hard work, dedication and vision. All McLeod Lake members should be proud of this achievement." said Chief Louie.

The Framework Agreement and the First Nations Land Management Act, which were originally open to only 14 signatory First Nations, are an important building block to self-governance. This government to government Initiative provides participating First Nations with the opportunity to come out from under the land administration sections of the Indian Act and establish their own regimes to manage their lands and resources, providing for more decision making at the local level. McLeod Lake is the first community to take advantage of the expansion of this initiative by ratifying their own land code.

The First Nations Land Management Initiative provides participating First Nations, like McLeod Lake Indian Band, the opportunity to develop a land code that reflects the unique needs and traditions of the community, and provides sound environmental protection for their own reserve lands and resources. The Initiative enables First Nation communities to create a land code that will sustain local community decision making, provide transparent accountability to its members and accelerate progress in areas such as economic development.

The McLeod Lake Indian Band, also known as Tse'Khene Nation (People of the Rock) are a signatory of Treaty No. 8 and is located approximately 150 kilometres north of Prince George, British Columbia. With approximately 400 members, this small community has a main economic focus on logging, and oil and gas ventures.

More information about this community can be accessed at http://www.mcleodlake.com/about.htm

Adele Chingee, McLeod Lake Indian Band, (250) 750-4415

Backgrounder
First Nations Land Management Initiative

Together, the Framework Agreement on First Nations Land Management and the First Nations Land Management Act make up the First Nations Land Management Initiative. The First Nations Land Management Initiative is 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. The Framework Agreement provides the 14 signatory First Nations with the opportunity to opt out of the land administration sections of the Indian Act and establish their own regimes to manage their lands and resources, providing for more decision making at the local level. The Framework Agreement promotes community management initiatives that will result in greater land protection, improved economic development and self-sufficiency on reserves.

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

Five of the 14 signatory First Nations are now operating under their own land codes, they are: Mississaugas of Scugog Island First Nation (Ontario), Chippewas of Georgina Island First Nation (Ontario), Muskoday First Nation (Saskatchewan), Lheidli T'enneh First Nation (British Columbia), and Opaskwayak Cree Nation (Manitoba). The remaining nine signatory First Nations are in various stages of their community process.

The First Nations Land Management Initiative offers First Nations the ability to create modern tools of governance over their lands and resources, specifically with respect to:

developing land codes;

passing laws (in areas such as the environment and matrimonial real property);

enforcing laws;

establishing intergovernmental relationships with provincial and municipal governments; and

clarifying the legal status of Bands and Band Councils.

Since the signing of the Framework Agreement and the passage of the FNLMA there has been significant interest by other First Nations across Canada.

In March 2002, the First Nations Land Management Initiative was opened up to other First Nations in addition to the 14 signatories. This Initiative has proven to be successful in building First Nations' capacity in the area of land management and increasing economic development opportunities on reserve. The Initiative is a tool First Nations have said they need to provide the freedom and responsibility to manage their own reserve lands, natural resources, and revenues in a way that works best for them. It allows First Nations to make timely business and administrative decisions without having to get approval by the Minister of Indian Affairs and Northern Development.

In the transition process of coming under the Initiative, a participating First Nation will develop a land code setting out the basic rules for the new land regime. The land code is developed with the full involvement of the community and must be ratified by voting members living both on and off-reserve. The First Nation also enters into an individual agreement with the Government of Canada to determine the level of operational funding for land management and to set out the specifics of their transition to the new regime. Once the land code and the agreement are adopted by the First Nation membership and are in effect, the land administration provisions of the Indian Act no longer apply to that community.

Through this Initiative, First Nations also have the ability to enact and enforce sound environmental management and protection laws. First Nations will negotiate an environmental management agreement and assessment agreement with the Government of Canada. The provinces are also invited to participate in these agreements, in an effort to harmonize environmental standards.

This Initiative also makes it possible for a participating First Nation to address the issue of matrimonial real property in their community in a way that does not discriminate on the basis of gender. Participating First Nations must establish a community process to develop rules and procedures to deal with matrimonial property within 12 months from the date the land code takes effect. Under the Initiative, First Nations develop laws that are applicable on the breakdown of a marriage with respect to the use, occupancy and possession of First Nation land, the division of interests in that land.

This Initiative is an important building block to First Nations self-governance. The First Nations Land Management Initiative is a key component of the Government of Canada's commitment to strengthening governance practices, as was outlined in the Speech from the Throne. Through this Initiative, First Nations are improving the quality of life in their communities by building capacity and increasing economic development opportunities.

For more information on the First Nations Land Management Initiative visit www.fafnlm.com

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MORE BACKGROUND

Robert Louie:
Thank you very much Minister Nault. Good morning Minister. Elder Matnas thank you very much for your opening words this morning. We very much appreciate the prayer that you provided to us. Chiefs, members of the press, ladies and gentlemen thank you very much. I'm very pleased and very honoured to be here on this very, very special occasion. It's an historic occasion. A very significant occasion for First Nation peoples across this country. First Nations in this country have an opportunity to take over control of their reserve lands, their resources and the management of those lands. And that ladies and gentlemen is very significant. It's a very significant step forward for First Nation peoples in this land.

There is an opportunity to manage lands, to promote economic development, to promote activities within reserve lands, to involve the community, to involve First Nation members. To look towards the future and to work towards that goal. This process is First Nations driven. It has involved Chiefs and it has involved communities. It has involved the partnership with government. And this what this is all about. It is about the management and the protection of lands. And that is ladies and gentlemen is very significant. It's very dear. And it's very necessary for First Nation peoples in this country.

This process is a community led initiative. The development of land codes will contain laws for First Nation peoples. Laws that First Nation peoples will develop themselves. To provide things such as control over their land. Controls over leasing matters. Land use planning issues can be dealt with. Environmental issues can be dealt with. Matrimonial matters can be dealt with. Dispute resolution can be dealt with. Accountability ladies and gentlemen is very significant in this process.

Conflicts of interest in governing councils are dealt with. These all are very important issues for First Nation peoples and they must be developed by First Nation peoples. This process is an incremental step towards self governance. It provides the basis for the management of reserve lands. It's a process that's going to be designed by communities and has been designed by communities. It deals with traditional interests and it involves community participation.

The opportunity for thirty First Nations at the outset this fiscal year I think is a tremendous opportunity to these communities. The Chiefs and communities who are in this process who are leading this process have been working very hard. It is a very much a team effort. An involvement of First Nation peoples in a very significant team movement.

I would like to thank Minister Nault for his dedication, his involvement and his support. And the government of Canada for their support. This process will leave no doubt that there is self sufficiency for aboriginal peoples in this country. There is hope for First Nation peoples. And this ladies and gentlemen is what this is about. Hope and an opportunity. And I thank you very much and I'm very, very much honoured to be here before you today to be part of this very important initiative. I would like now to turn this mike over to my good friend, my colleague Chief Austin Bear from the Muskoday First Nation.

Chief Austin Bear:
Good morning to the Elder. Minister Nault. Chiefs. Members of the press. Ladies and gentlemen. My community the Muskoday First Nation had the pleasure of beginning the millennium on January 1st, 2000 operating under our own land code. The first time in our history, in the more recent history, treaty history our community, our First Nation was recognized as a government. Muskoday has always known that the Indian act has not ensured that our lands are adequately protected from an environmental point of view, from expropriations of other levels of government or from other outside interference. The Indian act has also caused our community to miss major economic development opportunities.

At this time I would like to share with you a story and I'll keep it brief. On how the Indian act has shackled our people for generations. A few years ago there was a manufacturing firm that manufactured a farming implement that wished to relocate from Kansas in the United States and set up their operations in partnership with the First Nation. Our First Nation the Muskoday First Nation was selected by this company. And to provide that opportunity.

Through the discussions with principle and when they learned what the process would be, the involvement and restrictions and limitations of the Indian act, the involvement of government two things occurred. First they didn=t want to do business with the government of Canada, the department of Indian Affairs. They wanted to enter into an arrangement with the Muskoday First Nation. Because of the procedures, restrictions of the Indian act simply did not allow time for this development to be completed. Our community had lost it's opportunity. Along with it we lost thirty full time employment opportunities for our people. At that time it would have virtually wiped out unemployment in our community.

First Nation communities are in desperate need of jobs. (Inaudible) local decision making and sound management for our lands. Without it we will continue to be subjected to Third World living conditions and a lack of progress.

Now I'd like to take a few minutes to clear up some of the misinformation that was circulating in the public about this initiative. First this initiative does not allow reserve land to become fee simple land or to be seized or sold by creditors or any other party. Secondly this initiative does not prevent communities from pursuing land claims, treaties or any form of self government. Thirdly this agreement does not grant taxation powers. And fourthly this is a First Nation designed and driven practice as mentioned by Chairman Robert Louie. It is not a government funding program.

I think it is also important especially for the new communities, the new First Nations that are interested in this process to know that there are no hidden agendas between ourselves, no hidden or otherwise with the government of Canada, that we present is truthful and accurate. It is my hope that the new communities that are interested in regaining control over their reserve lands have a good experience. And ultimately are able to establish land claims and appropriately so take control and have control reside where it must be and that is with First Nations and our First Nation communities.

Joe Miskokomon:
My name is Joe Miskokomon. I'm Chippewa the Thames First Nation. First of all I'd like to thank the Algonquin people for allowing us into their territory. I'd also like to thank the Elder for his kind words of opening to the Chiefs and to Minister, members of the press and ladies and gentlemen. Good morning. I appreciate this change to speak to you today with regard to the interests in securing the opportunities for, to consider lands and resources of our community.

I have always like many First Nation people and leaders have been concerned with the control of our lands and resources that has not rested within the jurisdictional framework within our communities. As an example the Indian act allows for expropriation without the consent of our community. It allows for the Minister to reject bylaws that we believe are important to our development of our community. It does not put the First Nations and the First Nation communities accountable to their own people. But more so accountable to the government of Canada and in particular the department of Indian Affairs.

Without going through a long list of issues I believe we all are here today understanding that the Indian act is paternalistic at worst and outdated at best. It's outdated for enabling us to develop our own governance and our governments within our First Nations. First Nations must be able to determine their own direction. Those First Nation communities must do that on their own initiative. And I thank the Minister Robert Nault for recognizing that and advancing that through the Chiefs of the First Nation land advisory board.

In our particular situation the Chippewa of the Thames First Nation community is situated along the 401 corridor halfway between Toronto and Detroit. We are situated in the most industrial part of Canada. And yet because we have not been able to advance our issues of our lands and resources we have not been able to develop economically. This allows us, this initiative allows and enables us to break the long standing dependency that we=ve had through government subsidy programs. It enables us to begin to address the long standing issues of training and employment and governance and the building of self government. Those things are all very dear to our people. And we look forward to the challenges and the opportunities that lie ahead of us.

Moderator:
Thank you to all the speakers. And now we open the floor to questions. We would ask reporters to identify themselves and their media outlet as well as the person to whom their question is directed. Because of time consideration we would ask you to limit yourself to one question and a follow up.

Robert Louie:
Thank you very much. Your question is why isn't the, why isn't there provisions for the sale of lands in the First Nation land management framework agreement and in the legislation. The answer is very simple, very, very clear. And that is that First Nations are looking to protect their lands. That is lands that are presently reserve lands or that perhaps might be lands that might be added to the reserve land base this process is meant to protect that reserve base. To protect it for the future generations. And unlike what the Indian act provides Indian act has a process that allows for First Nations to perhaps surrender their interest. Put their lands up for sale. That's a possible mechanism under the existing Indian act.

And this is exactly what the Chiefs and what the communities now are looking to prevent. That is loss of reserve lands. Every community that has been involved in this process and every community that we've talked to their input is the same. To protect their land base. To protect their future economic opportunities to be able to do things on their lands and to take advantage of the resources both renewable and non renewable on their lands. And so this is what this whole process is about. And it's very significant and I think it's very, very important to protect the land base. That is the key and that's the key to the future. That's the key to the aboriginal future in this country.

Moderator:
Due to the sort of sound problem without a microphone we've just installed a microphone on this side so if anyone wants to use it I would welcome them so we could hear the question. The microphone.

Question:
Paul (Inaudible) the Winnipeg Free Press. A question perhaps for the Minister and one of the Chiefs. You talked about how this is a reserve, community driven initiative. We obviously have Chiefs here who are speaking very glowingly of it. Where exactly is the AFN involved in this? I mean in all likelihood myself and colleagues will be calling them for comment. We know the disagreements about the upcoming governance legislation the Minister will be bringing in. Is this something that you have worked with Minister? Is this something you=ve worked with the AFN on and or is there perhaps a problem in terms of how they see it?

Robert Nault:
Paul I think the answer to your question is two fold. One is that this is a commitment made when we passed the legislation originally. And through the consultation and the framework agreement from 96 to>99. The discussion revolved around allowing First Nations to opt in and make their own decisions. I wasn't involved at that particular time but my understanding is is that the Assembly of First Nations opposed this particular initiative. And it was for that reason that it was reduced to some fourteen communities to allow this to be developed in such a way that it would show the merits of the initiative with the understanding of showing that it also did not affect treaty or aboriginal rights which is one of the major concerns of the executive of the AFN.

So what we're doing is that as at that time we had made a commitment that we would look at opening up the First Nation land management act after we did a review of the success of the fourteen communities. And it's been our assessment in the last year that this has been extremely successful. Is bringing to the communities the modern tools of governance which is land management. And with that we'll also have an opportunity to create an economy. So are we working with the AFN? No we're not.

That decision, these decisions were made a number of years ago. It was just a matter of doing the review and coming forward with the final decision as to whether it was appropriate based on the results so far of whether we would open it up. I can say to you that it's been very much driven by the board itself. The board is the one who came to the Minister about a year ago I think or so and requested that because of the interest of other communities that we seek to open up the legislation and allow other communities to be involved and that=s the main reason why we=re here today.

Question:
(Inaudible) the sort of pilot project (Inaudible) that has had the AFN still does not believe this is the...

Robert Nault:
Well I can't speak for them today. I think you will have to ask that question directly to the AFN. I'm just speaking to what occurred at the process during the 96 to 99 discussions that took place.

Austin Bear:
If I may sir just give some clarity and another answer, perspective on your question. With respect to the Assembly of First Nations and support from our national organization going back a number of years prior to the legislative process and early in development former National Chief Ovide Mercerdi did, was one of our critics. Did oppose the land management initiative. However with discussions with the national Chief then we did at least come to an arrangement that the AFN or at least the national Chief would fall silent on the issue. It was the First Nations specific and it remained that way. However leading up to the legislative, the parliamentary process then National Chief Phil Fontaine did on behalf of the Assembly of First Nations give his support to the process and to this initiative. Thank you.


Getting Out from under the Indian Act
Indian Affairs Minister Encourages more to Participate
First Nations Land Management Act

FIRST NATIONS LAND MANAGEMENT INITIATIVE
AN IMPORTANT STEP TOWARDS SELF-GOVERNANCE FOR FIRST NATIONS

GATINEAU, QUEBEC (March 20, 2002) - More First Nations will be offered the benefits of the Framework Agreement on First Nations Land Management, which was ratified by the First Nations Land Management Act (FNLMA), announces Robert Nault, Minister of Indian Affairs and Northern Development and Robert Louie, Chair of the Lands Advisory Board, today.

The Framework Agreement and the First Nations Land Management Act, which were originally open to only 14 signatory First Nations, are an important building block to self-governance. This government to government Initiative provides participating First Nations with the opportunity to come out from under the land administration sections of the Indian Act and establish their own regimes to manage their lands and resources, providing for more decision making at the local level.

"Opening up the First Nations Land Management Initiative builds on the Government of Canada’s priorities outlined in the Speech from the Throne by furthering self-governance in First Nations communities," said Robert Nault, Minister of Indian Affairs and Northern Development. "Through this Initiative, we are working with First Nations to improve access to economic development opportunities leading to improved quality of life in these communities."

"The main benefit of this Initiative is that First Nations have direct authority over their reserve lands and resources," said Robert Louie, Chair of the Lands Advisory Board. "The Initiative also removes the land administration barriers to economic development that First Nations have faced under the Indian Act."

The First Nations Land Management Initiative allows participating First Nations the opportunity to develop their own modern and/or traditional tools to manage and protect their reserve lands and resources. First Nations determine the pace of community land code development and ratification. The Initiative enables First Nations to make timely business and administrative decisions and to accelerate progress in areas like economic development. This Initiative also enables First Nations to enact and enforce sound environmental management and protection laws.

As part of the Framework Agreement and the legislation there was a provision to offer other First Nations the opportunity to opt into the Initiative by way of Order in Council. In response to the great amount of interest that has been expressed among First Nations, we are inviting interested First Nations to begin the process of coming under the Framework Agreement and the FNLMA.

For further information, contact:

Alastair Mullin
Office of the Minister
Indian and Northern Affairs Canada
(819) 997-0002

Meko Nicholas
Lands Advisory Board
(613) 591-6649

Speaking Notes for
The Honourable Robert D. Nault, P.C., M.P.
Minister of Indian and Northern Affairs
At a Press Conference - Announcing the Opening of
the First Nations Land Management Act
Speech Delivered at the
Canadian Museum of Civilization
Hull, Quebec
March 20, 2002
Check against delivery

Thank you, everyone, for being here. Let me get things started by introducing my companions at the table:
Robert Louis, Chair of the Lands Advisory Board;
Chief Austin Bear, Muskoday First Nation;
Chief Barry Seymour, Lheidli T’enneh First Nation;
Chief Bill McCue, Chippewas of Georgina Island First Nation
Chief Tracy Gauthier, Mississaugas of Scugog Island
Chief Joe Miskokomon, Chippewas of the Thames;
Chief Donna Renneberg, Kinisten First Nation;
Chief Darcy Bear, Whitecap Dakota Sioux First Nation;
Chief Alex Chingee, Macleod Lake First Nation;
Chief Allan L. Claxton, Tsawout First Nation;
and Chief Lyle Sayers, Garden River First Nation.

I’m here today to announce that the government is opening up the First Nations Land Management Act. The Act is one of the most successful steps that we have taken in the last few years, and the rush to join shows just how successful this step has been. Over 50 First Nations have passed Band Council resolutions indicating they also want to work within this framework.

The Land Management Act is one of those quiet success stories. It started in 1996 with consultation and then the Government of Canada signed a framework agreement on land management with 14 First Nations across the country.

The principles in that agreement became the basis for the First Nations Land Management Act, which received Royal Assent in 1999.

This legislation gave these 14 First Nations the option of operating—in matters of land management—under their own land code instead of the Indian Act. It re-establishes one of the most important powers any government can hold: land management.

You can’t run a government if there is no mechanism to plan how the community will use its land.

This Act re-establishes the tools First Nations need to manage their own lands, their own resources and their own revenues, in their own way.

Every level of government takes this for granted. The Indian Act doesn’t meet the test. The First Nations Land Management Act puts it where belongs—in the hands of Chief and Council. It is clearly one the key tools of governance.

This step also shortens the distance to self-government. First Nations under the Indian Act making the transition to self-government have to negotiate land-use planning. A community under the FNLMA comes to the table with most of these issues sorted out.

As you know, you won’t find too many people in this country who are bigger fans—of getting First Nations, who want to get out from under the Indian Act, out from under that Act—than me. Let me be clear. This is the Government of Canada meeting our Throne Speech commitments. This is the Government of Canada honouring our commitment to self-government. The FNLMA ensures that land decisions are made by the community.

It means that the community has the right tools to attract investment from the outside. And where there is investment, there is opportunity.

Where there is opportunity, the community can break the cycle of poverty, create hope, and focus on building the quality of life that many of us take for granted.

Now we have over 50 First Nations who want to come on board, four of whom have completed the transition phase, and are here with us today.

Today I am announcing that we will open the Act to 30 First Nations every two years. At this pace, we will be sure that those who come under the Act have the resources they need, and can benefit fully from the experience of other First Nations who are already there.

It is now my great pleasure to turn the microphone over to Mr. Robert Louie, Chair of the Lands Advisory Board.


Frequently Asked Questions
First Nations Land Management Initiative

The Initiative

Why is the First Nations Land Management Initiative being opened now?

First Nations and the Government of Canada have recognized the short- and long-term benefits of First Nations having the tools to govern their reserve lands and resources. Since the signing of the Framework Agreement on First Nations Land Management and the passage of the First Nations Land Management Act (FNLMA) there has been significant interest by other First Nations. The reason we have not opened the Initiative up to other First Nations until now is that Cabinet mandated the Minister to complete three steps: (1) a review of the Initiative; (2) provincial consultation and; (3) a bijuralism review. Now that the review of the Initiative and the provincial consultation have been completed and the bijuralism review is nearing completion, the Minister of Indian Affairs and Northern Development is free to open it up to other First Nations in Canada.

Will the Initiative now be open to all First Nations in Canada?

Unfortunately, the First Nations in Québec will have to wait until a bijuralism review is done on the legislation. The review of the legislation will be completed in the fall of 2002 and will allow First Nations from Québec to opt into the Initiative. We are currently exploring ways in which the Québec First Nations can start preparatory work so that they will be able to come into the process quickly after the review is completed.

What is the impact on the Indian Act of opening up this Initiative?

The FNLMA is federal legislation that enables participating bands to come out from under the land administration provisions of the Indian Act and assume control over their reserve lands and resources. The impact could be that a significant number of First Nations at one point are operating under the FNLMA and which will make portions of the Indian Act redundant.

What sections of the Indian Act are affected by the Initiative, and will the remainder of the Indian Act continue to apply?

This Initiative enables participating First Nations to move out from under the following land related provisions of the Indian Act:

Reserves (ss. 18-19)

Possession of Lands in Reserves (ss. 20, 22 -28)

Trespass on Reserve (ss. 30-31)

Sale or Barter of Produce (ss. 32-33)

Roads and Bridges (s. 34)

Lands Taken for Public Purposes (s. 35)

Surrenders and Designations (ss. 37-41)

Distribution of Real Property but not personal property on intestacy (ss. 49 and 50(4))

Management of Reserves and Surrendered and Designated Lands (ss. 53-60)

Management of Indian Moneys (ss. 66, 69)

Farms (s. 71)

Removal of Materials from Reserves (s. 93)

Regulations made under section 57 of the Indian Act; and

Regulations under sections 42 and 73 of the Indian Act to the extent that they are inconsistent with the Framework Agreement or the Land Code or the laws of the First Nation

The remainder of the Indian Act will continue to apply for all other purposes.

How does this new land management regime differ from the existing land administration regime under the Indian Act?

This Initiative differs from the Indian Act by:

providing First Nations with a wide range of land related law-making powers and ensuring proper enforcement mechanisms are available;

allowing land related decisions to be made at the community level without the involvement of the Minister;

allowing First Nations to receive, retain and manage revenue money flowing from reserve land transactions;

withdrawing the opportunity for provincial or municipal governments to expropriate reserve land through the expropriation provisions in s. 35 of the Indian Act;

limiting federal expropriation powers;

ensuring that there will be no loss of reserve land through sale or expropriation;

requiring accountability to the membership and conflict of interest rules;

providing for alternate dispute resolution mechanism;

enabling First Nations to develop environmental assessment and protection regimes; and

providing for rules and procedures relating to matrimonial real property.

What are the benefits of the First Nations Land Management Initiative for First Nations?

The main benefit is that the First Nation has the authority over reserve lands, natural resources and revenues on its reserve land base. The Initiative removes the barriers to economic development that the First Nation faced under the Indian Act.

Based on the experiences of the first four signatory First Nations to come under the Initiative, the short-term benefits we have seen are:

filling legislative gaps in the Indian Act in areas such as environmental laws, matrimonial real property laws and enforcement of laws on reserve;

cleaning up and correcting historical deficiencies in the reserve land regime, thereby reducing the potential federal liabilities;

developing sound land use and land management plans; and

improving the designation and leasing processes.

The long-term benefits for First Nations operating under this Initiative will be improvements for the community in the areas of economic and social development. These improvements will become more apparent over time. For example, the Chippewas of Georgina Island have completed the renegotiation of long-term cottage leases with improved environmental standards.

Who are the signatory First Nations and where are they located?

Westbank, British Columbia
Lhiedli T’enneh, British Columbia
N’quatqua, British Columbia
Squamish, British Columbia
Musqueam, British Columbia
Siksika, Alberta
Muskoday, Saskatchewan
Cowessess, Saskatchewan
Opaskwayak Cree, Manitoba
Chippewas of Georgina Island, Ontario
Mississaugas of Scugog, Ontario
Chippewas of Mnjikaning, Ontario
Nipissing, Ontario
Saint Mary’s, New Brunswick

For the four First Nations who are currently operating under the Initiative, what challenges did they face getting to that point?

This was new ground for all of the First Nations that were involved in the process. One of the main challenges was completing the ratification process. This is the most work intensive portion of the whole procedure and for many it was really a "learn as you go" experience.

Will all First Nations come under this Initiative?

This process is optional to any First Nation and they are not bound to enter unless the community decides to opt in. This is a community driven process, which involves the eligible voters both on and off reserve. All participating First Nation communities, due to the requirements of the ratification process, make a community based informed decision about their participation in the Initiative at every step of the way.

What is the scope of the jurisdiction for a First Nation operating under the Initiative?

The First Nation has the authority over reserve lands, natural resources and revenues on its reserve land base. The Initiative empowers the First Nation to enact its own laws, in areas such as environment and matrimonial real property, and to enforce those laws. In addition, the Initiative removes the land management barriers to economic development that the First Nation faced under the Indian Act.

Does the legislation affect non-reserve lands owned by the First Nations?

No. This agreement is limited to reserve lands currently held under the Indian Act, or lands that the parties agree will become reserve lands in the future.

How does a community opt into the Initiative?

In order to come under this Initiative, the eligible community members must approve the proposed land code and the individual agreement through a community vote by one of three processes agreed upon by the First Nation and the Government of Canada, which are:

A majority of the eligible voters participate in the vote and at least a majority of the participating voters vote to approve the land code and agreement;

The First Nation registers all eligible voters who signified their intention to vote, in a manner determined by the First Nation, and a majority of the registered voters vote to approve the land codes and agreement; or

The community approves them in such a manner as the First Nation and the Government of Canada may agree upon.

A minimum approval level of 25 percent of all eligible voters is required irrespective of the method chosen and the First Nation must ensure every member is apprised of the opting in procedure. Every person who is a First Nation member, whether on or off-reserve, who is at least 18 years of age, is eligible to vote on whether to approve their First Nation’s proposed land code and individual agreement with the Government of Canada. The First Nation must take reasonable steps to ensure its membership is notified of their rights to vote and has access to all necessary documentation and information on the new regime.

An independent verifier is appointed by the Government of Canada and the First Nation to ensure the vote is conducted in accordance with the Framework Agreement.

How will the participating First Nations land base be protected for future generations?

The First Nations land base is better protected under this regime than under the Indian Act. First Nations will NOT have the authority to sell reserve land. However, land exchanges are possible, but only for:

compensation which must include land that Her Majesty has agreed will be set apart as a reserve and that will become First Nation land managed under this regime; and

the exchange must be approved by First Nation members in accordance with the process established in their land code.

Further, no federal expropriation will be permitted on behalf of a province or municipality as is currently allowed under s. 35 of the Indian Act. Where federal expropriation is necessary, it may only be for a federal public purpose that serves the national interest. It is expected that such situations will rarely occur. Compensation will include land and the expropriation cannot result in the First Nation having less land than on the date they entered into this regime. Lands expropriated are to be returned to the affected First Nation when they are no longer needed for the purpose they were expropriated.

Can a First Nation opt out of the FNLMA once they are under?

A First Nation cannot opt out of the FNLMA and return to the land management system under the Indian Act because administrative problems could arise if the First Nation has leases or other land transactions that cannot be managed under the regime of the Indian Act.

However, a First Nation under the new regime could choose to move into a broader form of self-government under the inherent right policy or other federally negotiated arrangements. Such agreements would likely encompass land management and other governance issues such as taxation and education.

The Initiative in relation to other federal law

Will federal laws continue to apply to First Nation lands under this legislation?

Yes, federal laws continue to apply, however, in the event of an inconsistency or conflict, the FNLMA prevails. For greater certainty, the FNLMA specifically mentions that the following federal laws continue to apply:

The Emergencies Act continues to apply, but appropriations must be authorized by an order of the Governor in Council;

Federal laws that relate to environmental protection prevail to the extent of inconsistency over a First Nation law or a First Nation land code;

For health and safety reasons, the Atomic Energy Control Act and its successor legislation continue to apply, but expropriations are subject to the restrictions of the FNLMA;

The Indian Oil and Gas Act continues to apply; and

The Expropriation Act continues to apply, but in the event of conflict the FNLMA prevails.

What powers of expropriation does a First Nation have under the Initiative?

Currently, First Nations have the authority, through the Minister of Indian Affairs and Northern Development, to expropriate Indian lands under section 18(2) of the Indian Act.

The expropriation powers established under the Initiative further clarify and expand on that provision and are similar to those of any province or municipality. The power of expropriation is a key land management power of any government; to date no First Nation has exercised this power. Under the Initiative, a First Nation with a land code in effect has the right to expropriate interests in First Nation lands, without consent, if deemed by the First Nation community to be necessary for community works or other First Nation purposes. This power of expropriation will be exercised according to the rules and procedures specified in the First Nations land code, laws, and the Framework Agreement, including providing fair compensation based on the heads of compensation set out in the Expropriation Act (Canada).

Any interest in First Nation land is subject to expropriation, with the exception of interest obtained pursuant to section 35 of the Indian Act or any interest that has been acquired by Canada, or that is acquired after this Agreement comes into force by Canada in accordance with the Framework Agreement.

Although, the Initiative has provisions respecting the powers of expropriation, the decision to implement these provisions in their land code rests with the community, as in the case of Chippewas of Georgina Island and the Mississaugas of Scugog Island who have both chosen not to include the expropriation provisions in their land codes.

How does this Initiative affect the Government of Canada’s fiduciary obligations with respect to participating First Nations Indian lands?

The new regime will not alter the fiduciary relationship that exists between the Crown and these First Nations. However, once the new regime is in place, the Government of Canada is no longer responsible for land decision made by a First Nation.

Once the First Nations have enacted a land code and come under the new regime, the obligations and liabilities of the Crown to these First Nations will be reduced since the Government of Canada will no longer be involved in the decision making process regarding reserve land transactions.

Will the Canadian Charter of Rights and Freedoms (the Charter) apply to participating First Nations?

The Framework Agreement was negotiated within the context of the framework of the constitution of Canada, therefore the Charter applies to the Framework Agreement, the land code and First Nation laws.

The Initiative in relation to Matrimonial Real Property

How does this Act address the matter of matrimonial real property?

While the Indian Act currently provides no protection for women with respect to the division of the matrimonial home upon marriage breakdown, the Initiative enables participating First Nations to enact laws with respect to matrimonial real property.

Participating First Nations establish a community process to develop rules and procedures to deal with matrimonial property within 12 months from the date the land code takes effect. Under the Initiative, First Nations develop laws that are applicable on the breakdown of a marriage with respect to the use, occupancy and possession of First Nation land, the division of interests in that land.

The Initiative as it relates to other parties

What are the impacts of opening up the Initiative on provinces, municipalities or other third parties?

The impacts are currently limited to the First Nations, but this has not meant that there hasn’t been some reaction. The First Nations in BC under the Initiative and the Union of BC Municipalities have entered into bilateral accords in light of the positive environment created by the FNLMA.

The FNLMA provides to the municipalities, provinces and third parties the assurance that they are dealing with a band that has legal authority. They will not have to worry that agreements or ventures may be changed or altered by Canada because the First Nation has to go back to INAC for approval. The third-party can now be sure they are dealing with an authoritative decision maker with respect to those reserve lands.

What is the role of the provinces in this new land management regime?

The provinces are not signatory to the Framework Agreement because the issues addressed in the Framework Agreement are within the federal jurisdiction. The new regime provides for the participation of the provinces in matters that normally fall within or could affect their jurisdiction, such as the administration of justice and environmental protection and assessment. One of the intentions of the new regime is to foster partnerships between interested parties, such as provincial governments, municipalities and private industries, who deal with First Nations on a daily basis, hoping relationships of mutual respect and co-operation will develop.

Will existing third-party interests in reserve lands be protected?

Yes, the First Nations and the Government of Canada have ensured that the Framework Agreement and the legislation provide for the protection of third-party interests. Both stipulate that any existing third-party interests will continue in force according to their terms and conditions. As is the case today, upon expiration of the existing terms and conditions, the disposition of those interests will be subject to new negotiations between the First Nation and the third-party. The First Nation would replace the Government of Canada as grantor in lease agreements and third-parties would be subject to new First Nation land laws covering such areas as environment.

The First Nation land code will identify an existing forum or establish a forum for the resolution of any disputes relating to interests in First Nation lands that will be accessible to third-parties. In addition, all decisions of band councils are subject to judicial review under the Federal Court Act.

Under this regime, third-parties will not have any land or proprietary rights to the land beyond the existing lease, license or permit. This is similar to existing provisions of the Indian Act. The only substantive change resulting from the new agreements will be a change in grantor through the assignment of the existing leases, licenses and permits from the Government of Canada to the First Nation.

Backgrounder
First Nations Land Management Initiative

In February 1996, the Government of Canada and a group of First Nations’ chiefs signed the Framework Agreement on First Nations Land Management. These First Nations were Westbank, Musqueam, Lheidli T’enneh (formally known as "Lheit-Lit’en"), N’Quatqua, Squamish (British Columbia); Siksika (Alberta); Muskoday, Cowessess (Saskatchewan); Opaskwayak Cree (Manitoba); Nipissing, Mississaugas of Scugog Island, Chippewas of Georgina Island, Chippewas of Mjikaning (Ontario), and Saint Mary’s First Nation (New Brunswick). Four of these First Nations are now operating under their own land codes ( Mississaugas of Scugog Island, Chippewas of Georgina Island, Muskoday, and Lheidli T'enneh) and the remaining 10 signatory First Nations are in various stages of their community process.

This Framework Agreement provides these 14 First Nations with the opportunity to opt out of the land administration sections of the Indian Act and establish their own regimes to manage their lands and resources, providing for more decision making at the local level. The Framework Agreement is a First Nations initiative developed in full partnership between the Government of Canada and the signatory First Nations. The Framework Agreement promotes self-management initiatives that will result in improved economic development and self-sufficiency on reserves.

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

The First Nations Land Management Initiative offers First Nations the ability to create modern tools of governance over their lands and resources, specifically with respect to:

developing land codes;

passing laws (in areas such as the environment and matrimonial real property);

enforcing laws;

establishing intergovernmental relationships with provincial and municipal governments; and

clarifying the legal status of Bands and Band Councils.

Since the signing of the Framework Agreement and the passage of the FNLMA there has been significant interest by other First Nations. The reason the Initiative has not been opened up until now is because Cabinet mandated the Minister of Indian Affairs and Northern Development to complete three steps: (1) a review of the Initiative; (2) provincial consultation and; (3) a bijuralism review. Now that those steps have been satisfied, the Minister of Indian Affairs and Northern Development is free to open it up to other First Nations in Canada.

In April 2002, the First Nations Land Management Initiative will be opened up to other First Nations in Canada. Through the 14 signatory First Nations, the Initiative has proven to be successful in building First Nations’ capacity in the area of land management and increasing economic development opportunities on reserve. The Initiative is a tool First Nations have said they need to provide the freedom and responsibility to manage their own reserve lands, natural resources, and revenues in a way that works best for them.

In the transition process of coming under the Initiative, a participating First Nation will develop a land code setting out the basic rules for the new land regime. A participating First Nation must also enter into an individual agreement with the Government of Canada to determine the level of operational funding for land management and to set out the specifics of their transition to the new regime. Once the land code and the agreement are adopted by the First Nation membership and are in effect, the land administration provisions of the Indian Act no longer apply to the community.

The Initiative does not change the Government of Canada’s fiduciary relationship to First Nations operating under their own land codes, although there is a reduction in potential Crown liability for fiduciary obligations when First Nations take up responsibility for lands, resources and revenue management. The Indian Act and all other federal laws of general application continue to apply for all purposes other than land management. The lands under a community land code continue to be First Nations reserve lands.

This Initiative, like other governance initiatives such as First Nations Fiscal Institutions, or the Independent Claims Body, or the First Nations Governance Initiative, is an important building block to First Nations self-governance. The First Nations Land Management Initiative, like these other initiatives, is also a key component of the Government of Canada’s commitment to strengthening governance practices, as was outlined in the Speech from the Throne. Through this Initiative, First Nations are improving the quality of life in their communities by building capacity and increasing economic development opportunities.

The First Nations Land Management Initiative in relation to...

The Lands Advisory Board

The Lands Advisory Board was established as part of the Framework Agreement to:

develop model land codes, laws and land management systems;

develop model agreements for use between First Nations and other authorities and institutions, including public utilities and private organizations; o

n the request of a First Nation, assist the First Nation in developing and implementing its land code, laws and land management systems and environmental assessment and protection regimes;

establish a resource centre, curricula and training programs for managers and others who perform functions pursuant to a land code;

propose regulations for First Nation land registration; and

propose to the Minister of Indian Affairs and Northern Development such amendments to this Agreement and the legislation as it considers necessary or advisable.

Matrimonial Real Property

While the Indian Act currently provides no protection for women with respect to the division of the matrimonial home upon marriage breakdown, the First Nations Land Management Initiative enables participating First Nations to enact laws with respect to matrimonial real property.

Participating First Nations establish a community process to develop rules and procedures to deal with matrimonial property within 12 months from the date the land code takes effect. Under the Initiative, First Nations develop laws that are applicable on the breakdown of a marriage with respect to the use, occupancy and possession of First Nation land, the division of interests in that land.

Expropriation Powers

In 1991, the Government of Canada undertook an extensive review of its Aboriginal policies launching the Royal Commission on Aboriginal Peoples (RCAP). A major theme in the RCAP final report was that active participation by Aboriginal people in developing the policies that govern their lives was needed. The First Nations Land Management Initiative incorporates this philosophy to ensure that First Nation members have an active role in developing all aspects of their land management regime, including expropriation.

The power of expropriation is an essential power of governance and a necessary facet of land management which is granted to various authorities in Canada (i.e., federal and provincial governments and public and private organizations such as municipalities, school boards, universities and hospitals) and as such, has been provided for in this Initiative.

Under this regime, First Nations councils can only exercise their expropriation powers with the authority of their community. They are accountable to their community and are governed by the rules and procedures specified in land codes developed by their community. In addition, in determining compensation for any expropriated interests, First Nations are required to apply the rules on compensation contained in the Expropriation Act (Canada).

Consultation

Before being introduced in 1998, the First Nations Land Management Initiative underwent an extensive consultation process with the signatory First Nations and the Assembly of First Nations and more than two years of consultation with non-Aboriginal parties which included meetings with the affected provincial governments (New Brunswick, Ontario, Saskatchewan, Alberta and British Columbia), the Union of British Columbia Municipalities, BC Rail, National Pipeline Agency, national Bankers’ Association, CN Rail, SaskTel, Manitoba Hydro, Ontario Lottery Corporation and the Ontario Association of Cottage Owners.

Since this time, discussions have continued with provinces and in November 2001 the Minister of Indian Affairs and Northern Development sent a letter to his provincial counterparts informing them of his intent to open the Initiative up to other First Nations. As First Nations come forward with formal expressions of interest in coming under this regime, provincial partners will be notified and invited to participate in the process.

Third-Party Agreements

Under the Initiative, existing third-party interests, such as leases, will continue according to their pre-determined terms and conditions. Also, First Nations land codes will provide for an alternative dispute resolution process to address any disputes relating to interests in First Nations lands. In addition, all decisions of band councils are subject to judicial review under the Federal Court Act. Upon expiration, third-party agreements are subject to negotiations with the signatory First Nations.

Environmental Issues

Within a year of the ratification of a First Nation land code (or such other time as the Crown and a First Nation may agree), an environmental management agreement must be negotiated between each First Nation and the Government of Canada. The provinces are invited to participate in these agreements, in an effort to harmonize environmental standards. An environmental management agreement would consist of a plan on how the First Nation would enact environmental protection laws deemed essential by the First Nation and Canada. First Nation environmental standards and penalties must be at least of the same standard as that of the province in which the First Nation is located.



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