Two Stories About the First Nations Land Management Act

I am very grateful to Bonnie Hill and Bill Henderson for graciously sharing their knowledge with me. I couldn’t have written this blog without their wisdom. Any mistakes that remain are mine.

The idea for this blog began during a conversation with Bonnie Hill. Bonnie is a member of T’Sou-ke First Nation and works as a Land Code Governance Advisor with the First Nations Land Management Resource Centre, which means she helps First Nations through the process of developing and implementing their own land codes. Under these land codes, First Nations can pass their own land laws regarding environmental protection, natural resources, conservation, leasing property, and more. These laws stand in place of what the Indian Act dictates regarding land management. The overall effect of these land codes is to shift control over reserve lands from the Federal government to First Nations, which allows First Nations to decide how they will manage their own reserve lands.   

I am fortunate enough to call Bonnie my mother-in-law, so when I decided I wanted to dive deeper in First Nations land management, one of my first steps was to call her and discuss the work she does. Before the call, it was my understanding that the First Nations Land Management Act (the “FNLMA”) allowed First Nations to create these land codes. In law school, we discussed the FNLMA as a form of delegated jurisdiction: where the government gives some of its authority away to another party — in this case, First Nations — to exercise.   

But it had been a few weeks since I read about the FNLMA, so I asked Bonnie what I thought was a pretty simple question to make sure we were on the same page: “So, the FNLMA is the statute that gives First Nations the authority to develop their own land codes, right?”  

I was very surprised when Bonnie’s answer was an emphatic “no!” 

As Bonnie explained to me how I’d got it wrong, I began to realize that there was much more to First Nations land management than the FNLMA. I began to understand that the story I knew about the FNLMA was not only incomplete, but also wrong in a number of very important ways. I found out that there are two stories about First Nations land management, and that I needed to learn the other one.

Over the past few months, I have started to learn the other story about the FNLMA. More accurately, what I learned was the full story: one in which the FNLMA is, as it turns out, more of a footnote than a centrepiece.   

The full story  

     The full story doesn’t begin with Canada passing the FNLMA in 1999. It begins before Canada even existed. It begins with the fact that Indigenous Peoples have lived on the land we now call Canada from time immemorial — living in their own organized societies, with their own systems of governance, and their own laws.  Despite this, when colonizers arrived they claimed the power to govern Indigenous Peoples’ lands. Since then, Indigenous Peoples have been fighting for colonial governments to recognize and respect their inherent right to govern themselves and their lands.  

Indigenous Peoples have repeatedly lobbied for reforms to Canada’s Indian Act as part of this fight. This is because the Indian Act was imposed on Indigenous Peoples without their consent or consultation as part of the government’s goal to assimilate Indigenous Peoples, and continues to tightly constrain the ways in which First Nations can govern themselves and their reserve land.   

In 1991, after years of studying the Indian Act, a group of Indigenous Chiefs brought their concerns about the legislation to Canada. They advocated for a nation-to-nation agreement with Canada that would allow First Nations to exercise their inherent rights to self-government, as they had for thousands of years before colonization, instead of being bound by the Indian Act land provisions. As a result of their advocacy, a historic government-to-government agreement — the Framework Agreement on First Nation Land Management (the “Framework Agreement”) — was signed by 13 First Nations Chiefs and Canada in 1996.  

The Framework Agreement provides a legal framework for First Nations to create their own land codes rather than being bound by the Indian Act’s provisions on land management. In other words, it is the Framework Agreement that recognizes First Nations authority to self-govern and sets out the way in which that authority can be exercised, not the FNLMA. As Bonnie told me, to say that First Nations are empowered by the FNLMA “is the same as saying that the government in their  authority have given us permission, as opposed to acknowledging a collaborative approach resulting in a government-to-government agreement.”

So where does the FNLMA come in? For a First Nation to implement the Framework Agreement, the agreement must first be mutually ratified (in other words, formally agreed to) by both Canada and the First Nation. Canada ratified the Framework Agreement by passing the FNLMA in 1999.  First Nations ratify the Framework Agreement by developing and passing their own Land Code. As of March 13, 2023, 102 First Nations have passed their own Land Codes.                                   

“[To say that First Nations are empowered by the FNLMA] is the same as saying that the government in their authority have given us permission, as  opposed to acknowledging a collaborative approach resulting in a government-to-government agreement.”  

- Bonnie Hill  

That’s the other story, the full story. But that still leaves the question—why are there two different stories? And what difference does knowing the full story make?

Why are there two different stories?  

The first thing to note is that I am far from the only person who knows the wrong story about the FNLMA. Bonnie, who works with the Framework Agreement daily, told me that the idea the FNLMA “empowers First Nations to resume jurisdiction over reserve lands and resources is a common misunderstanding.” When I had the opportunity to ask Bill Henderson, a lawyer and one of the original architects of the Framework Agreement, how often he heard this misunderstanding, he said he has heard “nothing but for twenty-five years.”   

But why?   

One reason is the text of the FNLMA itself. In its 48 provisions, it does much more than merely state that Canada ratifies the Framework Agreement. In the words of Bill Henderson, the statute “overreaches its intention.” It repeats large portions of the Framework Agreement that set out what First Nations need to do to establish their own land code. If someone were to look at the FNLMA without any awarenessof its history, they could easily come away with the impression that everything they need to know about First Nations land management is contained in the statute.   

A second, related reason, is that the idea that the FNLMA grants First Nations authority is a simpler and more easily understandable story, especially for those familiar with Canadian legal and governmental structures. Statutes that delegate authority to enable people to do things are a dime a dozen. On the other hand, an agreement between First Nations and Canada that must be ratified by both parties passing their own legislation is a more complex and unusual structure. The ratification process is something that occurs with international treaties, but the Framework Agreement is not a treaty. But it is more than just a private contract, too, because it is a government-to-government agreement. It brings to mind the two words that haunt much Aboriginal law: sui generis, meaning “of its own kind” or “unique.” The unique nature of the Framework Agreement might explain why people often resort to the more common and simpler framework of the FNLMA alone, especially as a shorthand.   

     A third reason is that the government has repeatedly championed the FNLMA without even mentioning the Framework Agreement. For instance, the Government of Canada website lists two ”success stories” about First Nations land management: one about the Brokenhead Ojibway First Nation and one about the Dokis First Nation. Neither of these stories mention the Framework Agreement. One states that the First Nation created their land code “under” the FNLMA, and the other states that the First Nation is a “signatory” to the FNLMA. These statements are incorrect. First Nations do not sign the FNLMA, they sign the Framework Agreement. And land codes do not fall “under” the FNLMA; rather, both the FNLMA and Land Codes are pieces of ratification legislation that fall under Framework Agreement.   

It does not take a lot of speculation to find a reason why the government might centre the FNLMA rather than the Framework Agreement. By making it seem like the FNLMA gives First Nations the authority to pass land codes, it casts the government in a much more favourable light. It makes it seem like the government generously gave First Nations some of their own authority through the FNLMA, and, in doing so, it allows the government to take credit for these success stories. The truth is that the FNLMA was only drafted because of the Framework Agreement, and the Framework Agreement was only signed because of years of advocacy by Indigenous Peoples.   

What difference does knowing the full story make?  

 The short answer is that it makes such a difference that the FNLMA was recently repealed in December 2022, and replaced with new legislation in an explicit effort to correct the narrative. This replacement legislation is called the Framework Agreement on First Nation Land Management Act (the “FAFNLMA”). It was passed at the request of the signatory First Nations of the Framework Agreement, to emphasize and reflect the central importance of the Framework Agreement. In the words of Chief Robert Louie, the Lands Advisory Board’s chairman, it ”will put the focus back on the First Nation driven Framework Agreement…as it always should have been.” The new FAFNLMA is much shorter than the FNLMA, and it must be read in conjunction with the Framework Agreement. Hopefully this means more people will get the full story, for two important reasons.   

First, understanding the Framework Agreement is essential to properly understand how the First Nations land management regime works.   

If the Framework Agreement says something different than the ratification legislation (the FNLMA and the FAFNLMA), the Framework Agreement prevails. In fact, if any Federal law conflicts with the Framework Agreement, what the Framework Agreement says goes. The Framework Agreement is, in this way, a higher authority than federal legislation — a kind of “trump” card. If someone is attempting to rely on any federal law that contradicts the Framework Agreement, they should be aware that the Framework Agreement will prevail.

In addition, the Framework Agreement can only be changed with the consent of both parties: Canada and the signatory First Nations. Generally, changes to the Agreement requires the consent of two-thirds of First Nations who have passed their own land codes. However, if the change would impact the power, authority, obligations, operations, or operational funding of a First Nation with their own land code, that First Nation must consent. The impact of requiring consent means that the government cannot decide on their own to make a change to the Agreement. This sets the Agreement apart from ordinary federal legislation — such as the FNLMA and the FAFNLMA — which the government can change however and whenever they wish.  

Finally, neither the FNLMA nor the FAFNLMA explain what the Lands Advisory Board and Resource Centre (the “LABRC”) are, nor the work that their members and staff (like Bonnie!) do to help First Nations along the process of developing and implementing land codes. The LABRC are an essential resource and key part of the First Nations land management regime. Any First Nation looking to develop a land code — or anyone assisting a First Nation in this process — should know about the LABRC and what they do.   

Second, centring the Framework Agreement has important implications for where First Nation’s authority to make their own land codes comes from.  

Canadian courts have long acknowledged that Indigenous Peoples can govern themselves and their lands when the federal government allows them to do so, often through legislation that delegates certain rights to Indigenous Peoples certain rights (such as the Indian Act). Courts have been much more hesitant to recognize Indigenous peoples inherent right to self-government—one that stems from the fact that they have lived on these lands and governed themselves for long before “Canada” existed.  

So, where does First Nation’s authority to make their own land codes come from? If we consider only the FNLMA, it seems to be a clear example of delegated rights. The federal government gives First Nations the authority, through legislation, to govern their own lands within certain constraints.   

But if we centre the Framework Agreement, things look a bit different. As Bill Henderson pointed out to me, when two parties mutually agree on certain rights in a government-to-government agreement, that doesn’t seem to be delegation.

“First Nations have always talked about their inherent right and power to manage their own lands. They don’t see the Framework Agreement as a concession by Canada, they regard it as an agreement by Canada to get out of the way. And you can read the Framework Agreement just as easily that way as any other.”

- Bill Henderson  

Does the Framework Agreement recognize inherent rights, then? Section 1.6 of the Framework Agreement states that it “is not intended to define or prejudice inherent rights, or any other rights, of First Nations to control their lands or resources or to preclude other negotiations in respect of those rights.” This provision is rather vague and general. It certainly doesn’t state that the source of authority for First Nations right to govern themselves under the Framework Agreement is an inherent right, but it doesn’t close the door to that interpretation either.   

You could interpret section 1.6 as holding that the Framework Agreement does not recognize First Nations inherent rights. But you could also read it as a protective provision — one that negates the potential argument that First Nations inherent rights to self-government are precisely defined in the Framework Agreement and therefore exist only within its bounds. After all, rights can be recognized without being defined. This is what section 35 of our Constitution Act, 1982 does: it recognizes and affirms existing Aboriginal rights — including the inherent right to self-government — without defining what those rights are (a task left to our courts).

This reading leaves open the interpretation that the Framework Agreement recognizes First Nations inherent right to self-government, a position taken by the Lands Advisory Board and the Minister of Crown-Indigenous Relations. After all, one unstated implication of section 1.6 is recognizing First Nations have inherent rights to govern their lands and resources — if they didn’t, there would be no need for the section at all.

As Bill Henderson told me, “First Nations have always talked about their inherent right and power to manage their own lands. They don’t see the Framework Agreement as a concession by Canada, they regard it as anagreement by Canada to get out of the way. And you can read the Framework Agreement just as easily that way as any other.”

The story continues…   

As I write this blog, a case has recently been heard at the Supreme Court of Canada  (the “SCC”) that is all about First Nation’s section 35 inherent right to self-government. The SCC has the opportunity to affirm Indigenous Peoples’ inherent right to make laws with respect to child and family services. It will likely be a landmark case, with far-reaching consequences. And the Lands Advisory Board intervened in this case to argue that land codes made under the Framework Agreement are an exercise of First Nations section 35 inherent right to self-government too. As these are “enactments not subject to approval by Canada and not subject to federal veto,” the Board argues that these land codes and laws are made under inherent, not delegated authority. It remains to be seen what story the SCC will choose to tell.