Order Amending the Schedules to the First Nations Land Management Act: SOR/2020-229
Canada Gazette, Part II, Volume 154, Number 22
Registration
SOR/2020-229 October 19, 2020
FIRST NATIONS LAND MANAGEMENT ACT
Whereas, pursuant to subsection 45(1) footnote a of the First Nations Land Management Act footnote b, the Minister of Crown-Indigenous Relations is satisfied that the signing of the “Framework Agreement”, as defined in subsection 2(1) footnote c of that Act, on behalf of the First Nations whose names are set out in section 1 of the annexed Order has been duly authorized and that that Framework Agreement has been signed;
And whereas, pursuant to subsection 45(2)footnote a of that Act, the First Nations whose names are set out in section 2 of the annexed Order have land codes in force;
Therefore, the Minister of Crown-Indigenous Relations, pursuant to subsections 45(1)footnote a and (2)footnote a of the First Nations Land Management Act footnote b, makes the annexed Order Amending the Schedules to the First Nations Land Management Act.
Gatineau, October 16, 2020
Carolyn Bennett
Minister of Crown-Indigenous Relations
Order Amending the Schedules to the First Nations Land Management Act
Amendments
1 (1) Schedule 1 to the to the First Nations Land Management Act footnote 1 is amended by adding, opposite the reference to the province “Ontario”, the following First Nations in alphabetical order:
| Province |
First Nation |
|---|---|
Ontario |
Lac Des Mille Lacs First Nation |
Lac Seul First Nation |
|
Naotkamegwanning First Nation |
(2) Schedule 1 to the Act is amended by adding, opposite the reference to the province “Manitoba”, the following First Nations in alphabetical order:
| Province |
First Nation |
|---|---|
Manitoba |
Canupawakpa Dakota Nation |
Gambler First Nation |
|
Poplar River First Nation |
|
Waywayseecappo First Nation |
(3) Schedule 1 to the Act is amended by adding, opposite the reference to the province “British Columbia”, the following First Nations in alphabetical order:
| Province |
First Nation |
|---|---|
British Columbia |
Kwikwetlem First Nation |
Shackan Indian Band |
|
Skwah First Nation |
|
Tseycum First Nation |
(4) Schedule 1 to the Act is amended by adding, opposite the reference to the province “Alberta”, the following First Nation in alphabetical order:
| Province |
First Nation |
|---|---|
Alberta |
Woodland Cree First Nation |
2 (1) Schedule 2 to the Act is amended by adding, opposite the reference to the province “Ontario”, each of the following First Nations in alphabetical order and the corresponding land code coming-into-force date:
| Province |
First Nation |
Land Code |
|---|---|---|
Ontario |
Algonquins of Pikwakanagan |
August 1, 2019 |
Beausoleil |
November 1, 2019 |
|
Brunswick House |
October 1, 2019 |
|
Moose Deer Point |
June 1, 2020 |
|
Sheshegwaning First Nation |
October 1, 2019 |
(2) Schedule 2 to the Act is amended by adding, opposite the reference to the province “Nova Scotia”, the following First Nation and the corresponding land code coming-into-force date:
| Province |
First Nation |
Land Code |
|---|---|---|
Nova Scotia |
Membertou |
September 1, 2019 |
(3) Schedule 2 to the Act is amended by adding, opposite the reference to the province “British Columbia”, each of the following First Nations in alphabetical order and the corresponding land code coming-into-force date:
| Province |
First Nation |
Land Code |
|---|---|---|
British Columbia |
Cowichan Tribes |
November 1, 2019 |
Ditidaht First Nation |
December 1, 2019 |
|
Homalco |
December 1, 2019 |
|
Kitsumkalum |
February 1, 2020 |
|
Kwikwetlem First Nation |
July 1, 2020 |
|
Namgis First Nation |
April 1, 2019 |
|
Penelakut Tribe |
February 1, 2020 |
|
T’it’q’et First Nation |
September 1, 2019 |
(4) Schedule 2 to the Act is amended by adding, opposite the reference to the province “Saskatchewan”, the following First Nation in alphabetical order and the corresponding land code coming-into-force date:
| Province |
First Nation |
Land Code |
|---|---|---|
Saskatchewan |
Lac La Ronge Indian Band |
February 19, 2020 |
Coming into Force
3 This Order comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
Issues
The First Nation Land Management regime enables the participating First Nations to enact laws for application on their reserve lands with respect to land, the environment and resources. These community laws replace key land management provisions of the Indian Act. A First Nation that has signed the Framework Agreement on First Nations Land Management (the “Framework Agreement”) and is named in Schedule 1 to the First Nations Land Management Act (the Act) has signalled an interest in assuming control of its reserve lands. A First Nation that has signed an individual agreement with the Minister of Crown-Indigenous Relations (the Minister), that has brought a land code into force, and is named in Schedule 2 to the First Nations Land Management Act has assumed control of its reserve lands.
Twelve additional First Nations have signed the Framework Agreement and may, as a result, be added to Schedule 1 of the First Nations Land Management Act. These First Nations are Woodland Cree First Nation in Alberta; Kwikwetlem First Nation, Shackan Indian Band, Skwah First Nation, and Tseycum First Nation in British Columbia; Canupawakpa Dakota Nation, Gambler First Nation, Poplar River First Nation, and Waywayseecappo First Nation in Manitoba; and Lac Des Mille Lacs First Nation, Lac Seul First Nation, and Naotkamegwanning First Nation in Ontario.
Fifteen additional First Nations have a land code in force and may, as a result, be added to Schedule 2 of the First Nations Land Management Act. These First Nations are Cowichan Tribes, Ditidaht First Nation, Homalco, Kitsumkalum, Kwikwetlem First Nation, Namgis First Nation, Penelakut Tribe, and T’it’q’et First Nation in British Columbia; Membertou in Nova Scotia; Algonquins of Pikwakanagan, Beausoleil, Brunswick House, Moose Deer Point, and Sheshegwaning First Nation in Ontario; and Lac La Ronge Indian Band in Saskatchewan.
First Nations may be added to the schedules to the First Nations Land Management Act by way of ministerial order.
Background
First Nations have expressed concerns that land management under the Indian Act does not allow their communities to fully participate in sustainable economic development activities on their reserve land. In 1991, a group of First Nation chiefs approached the Government of Canada with a proposal to opt out of provisions in the Indian Act relating to management of land and resources. As a result of this proposal, the Framework Agreement was negotiated by these First Nations and Canada in 1996 and later ratified by the First Nations Land Management Act (1999).
The Framework Agreement and the First Nations Land Management Act, together, provide signatory First Nations with the authority to establish their own land, resource and environmental management laws, and to opt out of provisions of the Indian Act that relate to land and resource management. They also enable operational First Nations to generate and manage revenues, royalties and fees from land transactions and operate at the speed of business.
In response to increasing demand from other First Nations, the Framework Agreement and the First Nations Land Management Act were amended in 2002 to open this opportunity to other interested First Nations. To date, 165 First Nations have signed the Framework Agreement, including the 12 new signatories included in this initiative.
Objective
The objective of this initiative is to add the names of the aforementioned First Nations to the schedules to the First Nations Land Management Act through orders made under section 45 of the Act by the Minister of Crown-Indigenous Relations.
These First Nations will have the ability to access some or all of the services available under the First Nations Land Management Act.
Description
Pursuant to section 45 of the First Nations Land Management Act, this ministerial order adds 12 First Nations to Schedule 1 of the Act and 15 First Nations to Schedule 2 of the Act. Schedule 1 lists all First Nations who have signed the Framework Agreement with Canada. Schedule 2 lists all First Nations with a land code in force.
First Nations added to Schedule 1 of the First Nations Land Management Act will have the ability to develop their land management system and processes, including a land code, while their reserve land continues to be administered by Canada pursuant to the Indian Act. First Nations added to Schedule 2 of the First Nations Land Management Act will have the ability to administer and manage their First Nation land themselves pursuant to their now-in-force land code.
Regulatory development
Consultation
The Chief and Council of each of the identified First Nations signalled their interest to opt out of the land management provisions of the Indian Act and to join the First Nations Land Management Act through the submission of a Band Council Resolution and an application for entry. In addition, all 26 First Nations associated with this ministerial order (one First Nation is being added to both schedules) have signed the Framework Agreement, and 15 of these have brought a land code into force. Given that opting into the First Nations Land Management Act represents a decision made by the First Nations themselves, each has undertaken their own internal consultation and voting processes. Therefore, it is not necessary to undertake consultations over and above those already conducted by the First Nation with its members.
Amendments to the schedules of the Act do not require a prepublication in the Canada Gazette because First Nations have consulted their members prior to becoming a signatory to the Framework Agreement and before bringing their land code into force, and have submitted a Band Council Resolution indicating this to Canada.
Modern treaty obligations and Indigenous engagement and consultation
There are no potential modern treaty implications because the initiative responds to the needs and interests of the aforementioned First Nations. This initiative does not require the Government of Canada to fulfil any consultation or engagement requirements described in a modern treaty.
Section 1.3 of the Framework Agreement states that “This Agreement is not a treaty and shall not be considered to be a treaty within the meaning of section 35 of the Constitution Act, 1982.” Subsection 2(3) of the Act contains a similar provision. Moreover, according to section 13.1 of the Framework Agreement, the First Nations land title does not change after the land code of a First Nation comes into force.
According to paragraph 5(a) of the First Nations Land Management Act, “title to First Nation land is not affected by the Framework Agreement or this Act.”
Instrument choice
Non-regulatory options were not considered, as section 45 of the First Nations Land Management Act provides the necessary authority for the Minister of Crown-Indigenous Relations to amend the schedules to the Act in order to add, change or delete the name of a First Nation in certain circumstances.
Regulatory analysis
Benefits and costs
This is a low-cost, routine regulatory amendment. The only costs associated with this amendment are the publication fees.
Small business lens
The small business lens does not apply, as there are no associated impacts on small businesses when amending the schedules.
One-for-one rule
The one-for-one rule does not apply, as there is no administrative burden on businesses associated with amending the schedules.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified for this amendment.
Rationale
Participation by these 26 First Nations in First Nations Land Management is likely to benefit these communities by enabling them to
- develop their own laws to manage their reserve lands, including laws governing land, environmental and resource management;
- develop projects on reserve land without approval from the Ministers of Indigenous Services and Crown-Indigenous Relations; and
- respond to new business opportunities faster and more efficiently than those whose reserves remain under the Indian Act, which could help increase economic development and the potential for private investments on reserve.
As a result, these communities may benefit from higher quality jobs, increased internal investments through member-owned enterprises, increased external investments through joint partnerships with third parties, increased employment of their members as well as increased employment opportunities for non-members and neighbouring communities, thereby injecting greater resources into local communities.
First Nations Land Management provides a strong foundation for a renewed nation-to-nation relationship and supports the government’s mandate to continue to support Indigenous-led processes for rebuilding and reconstituting their historic nations, advancing self-determination and, for First Nations, transitioning away from the Indian Act. It also provides better circumstances for First Nations to improve their land management systems and processes (i.e. governance and decision making, community support, relationship building, development of laws such as matrimonial real property and environmental laws).
This is a routine process to add First Nations to the schedules to the First Nations Land Management Act.
Implementation, compliance and enforcement, and service standards
The Framework Agreement and the First Nations Land Management Act authorize land management powers and responsibilities for signatory First Nations. They help to ensure that participating First Nations have the legal status and power to manage and govern their lands and resources. First Nations are thus able to lease or develop their lands and resources subject to any limits imposed by their own laws.
There are no compliance and enforcement requirements associated with scheduling First Nations to the First Nations Land Management Act. While the Government of Canada may provide some support, the ongoing compliance and enforcement strategies in relation to First Nations’ laws once operational will be primarily the responsibility of the First Nations. The Government of Canada provides an annual contribution to each operational First Nation within First Nations Land Management to assist with all activities related to land management.
Contact
Christine Hall
Acting Director
Engagement and Policy Directorate
Indigenous Institutions and Governance Modernization Branch
Resolution and Partnerships Sector
Crown-Indigenous Relations and Northern Affairs Canada
10 Wellington Street
Mail Stop 234L-18
Gatineau, Quebec
K1A 0H4
Telephone: 604‑362‑2863
Fax: 403‑292‑5393
Email: Christine.Hall@canada.ca