First Nations Land Management Act

What is it? The First Nations Land Management Act (FNLMA) is a form of self-governance available to Canadian First Nations.[1] Through this process, the First Nation takes over the day-to-day administration of their reserve land or lands set aside for them. The First Nation can pass their own rules and laws to replace the land management rules in the Indian Act. While the land remains a reserve, the community can establish rules that are tailored to their specific needs.[2]

Who can do this? Any First Nation with a land reserve, or any First Nation with lands set aside in Yukon.[3]

How? Preliminary Steps: To begin this process, the First Nation must pass a Band Council Resolution. They must submit a copy of this, along with a completed Land Governance Community Profile Form, to the First Nations Land Management Resource Centre or a regional office of Indigenous Services Canada. These departments will review the application and make a recommendation to the Minister.[4]

How? Next Steps: If their application is approved, the First Nation will sign the Framework Agreement with Canada. This formally brings them into the FNLMA process. They will also sign an individual agreement with Canada, which covers the details of the transfer of administration from Canada to the First Nation. It also addresses things like rights and licences that have been previously granted in relation to the land. Lastly, it must outline environmental protections for the land.[5]

         Next, the First Nation will begin developing a land code, which contains the details of how their land will be governed. The FNLMA sets out legal requirements which must be in included in a land code:[6]

• A description of the piece of land that the code will apply to.

• A list of general rules that the First Nation will be applying for people who are using and occupying the land.

• Procedures for transfer of interests in land, including when these interests are sold or transferred at death.

• Rules about how the money obtained from the land’s natural resources will be used.

• Rules for accountability to the First Nation community for management of the land, as well as the money received from its natural resources.

• Rules for developing and publishing First Nation laws for the land.

• Rules for any conflicts of interest that may come up in managing the land.

• A dispute resolution process for disagreements about land interests or rights.

• Rules for giving land interests to community members and other parties, including licences.

• Rules for the expropriation of land, as the First Nation will be permitted to take up parts of the land if required for community purposes.[7]

• Rules for council to pass on their land management authority to someone else.

• Procedures for the exchange of First Nation land.

• The date on which the code will take effect.

• Procedure in case the code needs amendments or changes.

How is this process monitored? The Minister and the First Nation will work together to choose a “verifier” from a list in the Framework Agreement. The verifier will:[8]

• Review the First Nation’s land code and individual agreement, making sure all the legal requirements are met.

• Ensure the community approval process meets the requirements in the FNLMA.

• Certify that a land code passed by community vote has been approved.

How is the land code enacted? If the code and the community development process are both approved by the verifier, the First Nation’s council may submit the land code and the individual agreement to the members of the First Nation for a vote.[9]

            Any members of the First Nation who are 18 or older can participate in the vote, even if they are living off reserve. If any third parties have an interest or right in the land, the First Nation should inform them about the vote. The code is considered ‘approved’ if it receives the majority vote. If approved, it will come into effect on the date set out in the land code.[10] After this date, the Indian Act provisions for land management will no longer apply.

What powers will the First Nation have? Once the land code takes effect, the First Nation can do anything an owner could do in relation to the land. It may grant interests or rights in and licences in relation to the land.[11] The First Nation can manage the natural resources on the land, and receive and use the money acquired under its land code. These broad powers are achieved through law-making power, which is explained below.

The First Nation will have authority to pass and enforce laws that cover a list of general topics:[12]

• Interests or rights in and licences for the First Nation’s land.

• Development, conservation, protection, management, use, and possession of the land.

• Rules that apply during and at the end of a marriage or common-law relationship, whether by separation or the death of one partner. These can address division of property interests between partners, as well as the use, occupation, and possession of the family home.

• Rules for protection against legal liability for individuals and groups exercising power and performing duties under a First Nation law or land code.

• Anything that is necessary to achieve these purposes.

More specifically, First Nation laws may refer to:[13]

• The regulation of land use and development, as well as any uses or development that the First Nation will not allow. This can include land zoning and any subdivision of the land.

• Creating and managing a system to grant licences, as well as interests and rights in the land. The First Nation can also prohibit any uses of the land they wish to prevent.

• Environmental assessment processes and protection that will be in place for the land.

• Local services relating to the land and the creation of charges for people who use them.

• Services to resolve disputes relating to the land.

Are there any resources the First Nation cannot manage? Yes, the land code cannot make rules for the management of oil and gas, migratory birds, endangered species, or fisheries.[14] The current legal framework will continue to apply in these areas.

What about the environment? It is mandatory for a First Nation to include environmental protection laws, which will apply for all projects on the land. The Framework Agreement contains minimum environmental standards that must be met.[15]

Can the land be transferred outside of the First Nation? The land must be kept for future use by the First Nation and cannot be sold to third parties. There is one exception: if the land is traded for other land and there is approval from the Minister of Indigenous Services Canada.[16]

How is funding allocated? The individual agreement will set out the amount of operational funding that will be given to the First Nation from Canada.[17]

What about Crown liability? The First Nation is not legally responsible for anything Canada did or failed to do before the land code came into effect. However, once the code takes effect, the First Nation is legally responsible for anything they do or fail to do that that causes damage to the land and financial loss for the Crown. This is because the land is still reserve land.[18]

Does the government still have a fiduciary relationship to the First Nation? Yes, the Framework Agreement states that the Crown’s special relationship will continue with First Nations who sign the agreement.[19] This means the Crown will be required to continue acting in the best interest of the First Nation.

Will enacting a land code prevent claims for Aboriginal rights and title? No, the Framework Agreement states that this process will not cause prejudice or harm to inherent rights, or to any other First Nation rights to land or resources.[20]

Will this change the tax system? Taxation rules under the Indian Act will remain unchanged. The land code is not allowed to include rules for taxation.[21]

Why would a First Nation choose to enact a land code? There could be many reasons a First Nation would want to enact a land code, several of which are specific to the community. However, there are some general reasons:

• Land codes allow communities to establish a land code that is designed to meet the needs of their community, which includes respecting the cultural significance of traditional and reserve land.

• Under land codes, development projects will no longer need government approval, and will instead be managed within the First Nation’s council.[22]

• Land codes eliminate some of the problems associated with land management under the Indian Act, including insecure property rights and longer time periods for transactions to be completed, which can lead to decreased land value.[23]

Membertou First Nation

          In considering the First Nations land management process, it can be helpful to consider the experiences of communities who have done it. In Nova Scotia, the Membertou First Nation is currently in the process of developing a land code under the FNLMA. They established a Governance Committee to review their land management options and to seek out suggestions and feedback from the community.[24] This committee released a report in 2013, which stated the main reason for moving forward with the FNLMA process was for Membertou to gain more control over the economic development of their community.[25] They found the Indian Act provisions were not sufficient for the types of businesses they wanted to develop.

            Through conducting interviews with Membertou councillors, staff, community members, and Elders, land use priorities were established.[26] Interviewees liked that they would be able to set goals as a community for the development of housing, community spaces, zoning, and areas for future residential and commercial uses. Membertou was particularly concerned with the environmental sustainability of new housing developments and the size of lots being allocated. Land preservation was emphasized as a way of maintaining cultural integrity, given the connection between Membertou land and their culture and traditions.[27]

            The Governance Committee met with representatives from other communities who had already established land codes under the FNLMA to learn about the logistical requirements. First, the committee was told that they would need a land management office, which would be responsible for administering the land code.[28] Additionally, they would have to consider how this office would fit within their existing governance structures and what their appropriate role should be. Next, they would need to decide what kind of land ownership would be used and to consider the implications for their community if they moved to individual land ownership. The committee also recognized that they would need a process to solve disputes relating to land arising both within the community and with outside parties. They had to consider how formal of a process they wanted, as some communities use a court-based process, whereas others have a more traditional process that resolves the dispute within the community.[29]

            A final consideration was ensuring Membertou community involvement in developing the land code.[30] The committee was told this would be important at all stages, but especially when developing the land code, holding the referendum to enact the code, and then with its enforcement. The committee took this information and came up with solutions tailored to their community. They planned land management consultations at the end of community events, where members of the community would already be gathered. More generally, they considered using social media and video communication to allow community participation from home. Additionally, they wanted to ensure the accessibility of the land code to all community members, so it was important for the code to be written in Mi’kmaq as well as in English.

            Membertou is just one of many First Nations that are in the process of developing land codes. The development of each community’s land code will be unique, which is one of the advantages of this flexible process. However, if a First Nation is considering the FNLMA process, they can still benefit from speaking with members of other communities who have already gone through it. A great starting point for connecting with these communities is to look at the lists at the end of the FNLMA. Schedule 1 lists First Nations that have signed the Framework Agreement and Schedule 2 lists First Nations that have passed land codes. As shown by Membertou’s experience meeting with other First Nations, these communities can provide valuable insight into the process for others who are considering it.

[1] First Nations Land Management Resource Centre, Frequently Asked Questions, online: <https://labrc.com/wp- content/uploads/2019/01/FAQs-October-25-2018.pdf> at 5 [Frequently Asked Questions].

[2] Framework Agreement on First Nation Land Management, 1996, online: < https://labrc.com/wp- content/uploads/2016/08/FA-current-to-2013.pdf>, s 4.1 [Framework Agreement].

[3] Indigenous and Norther Affairs Canada, First Nations Land Management, online: <https://www.aadnc- aandc.gc.ca/eng/1327090675492/1327090738973> [First Nations Land Management].

[4] First Nations Land Management, supra note 3.

[5] First Nations Land Management Act, SC 1999, c 24, ss 6(3)(a) – (d) [First Nations Land Management Act].

[6] First Nations Land Management Act, supra note 5, ss 6(1)(a) – (n).

[7] See also First Nations Land Management Act, supra note 5 at s 28(1).

[8] First Nations Land Management Act, supra note 5 at ss 8(1)(a) – (c).

[9] First Nations Land Management Act, supra note 5 at s 10(1).

[10] First Nations Land Management Act, supra note 5 at ss 10(2), 10(4), 12(1), 15(1).

[11] First Nations Land Management Act, supra note 5 at s 18(1).

[12] First Nations Land Management Act, supra note 5 at s 20(1).

[13] First Nations Land Management Act, supra note 5 at s 20(2).

[14] First Nations Land Management Act, supra note 5 at ss 39(1), 40(2).

[15] First Nations Land Management Act, supra note 5 at ss 21(1) – (3).

[16] First Nations Land Management Act, supra note 5 at ss 26(1), 27(1).

[17] First Nations Land Management Act, supra note 5 at s 6(1); Framework Agreement, supra note 2, s 6.1.

[18] First Nations Land Management Act, supra note 5 at ss 34(1) – (4).

[19] Framework Agreement, supra note 2, s 1.4.

[20] Framework Agreement, supra note 2, s 1.6.

[21] Framework Agreement, supra note 2, s 18.3.

[22] Ying Chen, An Economic Analysis of Factors Influencing the Adoption of the First Nations Land Management Act and the Consequences of Adoption (MS Thesis, University of Guelph, 2015) [unpublished] available online: <https://atrium.lib.uoguelph.ca/xmlui/bitstream/handle/10214/8825/Ying_Chen_201505_Msc.pdf?sequence=1&isAl lowed=y> at 3 [Chen].

[23] Chen, supra note 21 at 15.

[24] Atlantic Policy Congress of First Nations Chiefs Secretariat, Managing Land: Governing for the Future: Finding the Path Forward for Membertou (September 2013) at 17 [Membertou].

[25] Membertou, supra note 24 at 15.

[26] Membertou, supra note 24 at 55.

[27] Membertou, supra note 24 at 59-60.

[28] Membertou, supra note 24 at 64-65.

[29] Membertou, supra note 24 at 65-66.

[30] Membertou, supra note 24 at 66-67.