FEDERAL REG

SOR/2016-27: Schedule to the First Nations Land Management Act — Order Amending First Nations Land Management Act

REGISTRATION OF FEDERAL REGULATION - VIA PART II OF THE GAZETTE

Registered
February 25, 2016


REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Order.) Issues The following 21 First Nations now operating under their land code manage their reserve land according to the First Nations Land Management Regime (the Regime) pursuant to the First Nations Land Management Act and the Framework Agreement on First Nation Land Management (the Framework Agreement): Nanoose, Campbe... (Click for more)


House

1st Reading 2nd Reading 3rd Reading

Senate

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Published on February 25, 2016

Bill Summary

SOR/2016-27: Schedule to the First Nations Land Management Act — Order Amending First Nations Land Management Act

REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Order.) Issues The following 21 First Nations now operating under their land code manage their reserve land according to the First Nations Land Management Regime (the Regime) pursuant to the First Nations Land Management Act and the Framework Agreement on First Nation Land Management (the Framework Agreement): Nanoose, Campbell River, Haisla, St. Mary’s, Shuswap, Stz’uminus, Williams Lake, Skowkale, Yakweakwioose, Aitchelitz, Kwantlen, Shxw’ow’hamel and Malahat in British Columbia; Flying Dust, Kahkewistahaw and One Arrow in Saskatchewan; Brokenhead Ojibway in Manitoba; Dokis, Bingwi Neyaashi Anishinaabek, Shawanaga and Magnetwan in Ontario. Subsection 45(2) of the First Nations Land Management Act states that the Minister of Indian Affairs and Northern Development may, by order, add to the Schedule the date on which a land code comes into force with respect to First Nations lands. Background Together, the Framework Agreement and the First Nations Land Management Act make up the Regime. This allows First Nations to opt out of the land management provisions of the Indian Act and establish their own regimes to manage their lands and resources providing for more decision-making powers at the local level. A land code, drafted by the Community, is the basic law of the First Nation and replaces the land management provisions of the Indian Act. The council may, in accordance with the land code, make laws respecting the development, conservation, protection, management, use and possession of First Nations lands, and interests and licences in relation to those lands, including laws regarding the regulation, control and prohibition of zoning, land use, subdivision control and land development; the regulation and prohibition of interests and licences in relation to First Nations land; environmental assessment and protection; and the provisions of services for the resolution, outside the courts, of disputes in relation to First Nations land. Along with the drafting of the land code, a First Nation will negotiate an Individual Agreement with the Government of Canada. The Individual Agreement deals with matters such as the reserve lands to be managed by the First Nation; the specifics of the transfer of the administration of the land from the Government of Canada to the First Nation; and the operational funding to be provided by the Government of Canada to the First Nation as a contribution towards land management activities. Both the land code and the Individual Agreement must be ratified by the eligible voters of the community in accordance with the Framework Agreement. If the community ratifies the land code and Individual Agreement, control over the First Nation land and resources is transferred from under the Indian Act to the First Nation’s laws and administration, thus making the First Nation operational under the Regime. Objectives The Regime replaces 32 land management sections of the Indian Act that deal with land, resources and environment. This provides First Nations operating under their land code with the ability to manage their lands more effectively and efficiently than under the Indian Act. This benefits these communities by allowing them to develop their own laws to manage their reserve lands, including laws governing land designations, environmental protection and matrimonial real property; enabling them to develop projects on reserve land without approval from the Minister of Indian Affairs and Northern Development; and enabling them to respond to new business opportunities faster and more efficiently than those whose reserves remain under the Indian Act, which could help increase their economic development potential and the potential for private investments on reserve. Description The Framework Agreement delegates the land management responsibilities to signatory First Nations providing the First Nations with the legal status and power needed to manage and govern their lands and resources. They are able to lease or develop their lands and resources subject to any limits imposed by their own community laws and land codes. The Government of Canada will remain liable for and will indemnify a First Nation for losses suffered as a result of any act or omission by the Government of Canada or its agents that occurred before the land code comes into effect. After that date, the First Nation is responsible for its own acts or omissions in managing its lands. The Government of Canada continues to hold title to First Nation land, although it has no management authority over the land. The objective of the Regime is to provide First Nations with modern land management tools and capacities. The Regime facilitates the transition from the Indian Act to the First Nations Land Management Act and provides First Nations currently operating under the First Nations Land Management Act with the capacities to effectively manage their land. This includes creating land codes, individual agreements, laws, land management systems, and environmental protection regimes. “One-for-One” Rule This amendment to the Schedule to the First Nations Land Management Act does not result in any new administrative burden for businesses, nor does it remove any administrative burden on businesses. The “One-for-One” Rule, therefore, does not apply. Small business lens This amendment to the Schedule to the First Nations Land Management Act does not impose any requirements on business. The small business lens, therefore, does not apply. 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. While in the developmental phase of the Regime, these First Nations must each develop a land code. The land code, drafted by the community, is the basic law of the First Nation and replaces the land management provisions of the Indian Act. Along with the drafting of the land code, the First Nations will each be required to negotiate an Individual Agreement with the Government of Canada. The Individual Agreement deals with matters such as the reserve lands to be managed by the First Nation, the specifics of the transfer of the administration of land from the Government of Canada to the First Nation and the operational funding to be provided by the Government of Canada as a contribution to the First Nation towards ongoing land management responsibilities under the Regime. Prior to a First Nation becoming operational under the Regime, the land code and the Individual Agreement must be ratified by the eligible voters of the community. The procedure for the community ratification process is developed by the community in accordance with the Framework Agreement. Only if the community ratifies the land code and Individual Agreement will the land management responsibilities be transferred from under the Indian Act to the First Nation as outlined in its land code, thus making the First Nation an operational First Nation under the Regime. Rationale The Regime provides the operational First Nations with the ability to manage their lands more effectively and efficiently than under the Indian Act. By removing the need to obtain ministerial approval for First Nation laws, signatory First Nations are able to operate at the speed of business, thus making the land more competitive for investment. An independent study by KPMG in 2009 (see footnote 2) found that under the Regime, economic development activities on reserve improve as First Nations can move quickly on opportunities that arise and negotiate directly with potential business proponents. 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 amongst band members as well as increased employment opportunities for non-members and neighboring communities, thereby injecting money into local communities. During the same study, First Nations operating under the First Nations Land Management Act indicated that not one community would want to return to the Indian Act and lose responsibility over their reserve lands and resources. Whether or not First Nations’ lands are managed under the Indian Act or under the First Nations Land Management Act, there will be ongoing costs associated with land management activities on reserve lands. The ongoing cost to the Government of Canada of providing operational funding to First Nations under the Regime is minimal in comparison to the economic development benefits that First Nations experience under the Regime. The operational funding provided is to assist with land and environmental governance and management, which include the establishment and maintenance of the legislative, regulatory and policy framework, including an environmental protection regime, and the enforcement of First Nation laws. Further, since the land management decisions previously made under the Indian Act are transferred to the First Nation upon the signing of the Individual Agreement, there will be ongoing savings within Indigenous and Northern Affairs Canada. Departmental costs associated with the processing/approval of land transactions and designations under the Indian Act will be reduced once the responsibility is transferred to the First Nation. In addition, there will be a reduction in Canada’s environmental responsibilities and liabilities once the responsibility is transferred to the First Nation, who will then develop, enact and enforce its environment protection regimes. Implementation, enforcement and service standards There are no compliance and enforcement requirements associated with the Order to add, to the Schedule to the First Nations Land Management Act, the date on which a land code comes into force according to First Nations lands. Ongoing compliance and enforcement strategies in relation to First Nations laws once operational under their land code will be the responsibility of the First Nations. The Government of Canada provides an annual contribution to each operational First Nation under the Regime to assist with land management activities, which includes compliance and enforcement activities. Contact Cheri Reddin Director Community Lands Development Directorate Lands and Economic Development Sector Indigenous and Northern Affairs Canada 10 Wellington Street, Room 17E Gatineau, Quebec K1A 0H4 Telephone: 819-994-2210 Fax: 819-953-0517 Email: [email protected] Footnote a S.C. 2012, c. 19, s. 636 Footnote b S.C. 1999, c. 24 Footnote 1 S.C. 1999, c. 24 Footnote 2 First Nation Land Management Resource Centre – FNLM Benefits Review 2010 http://labrc.com/wp-content/uploads/2014/03/FNLM-Benefits-Review-Final-Report_Feb-27-2014.pdf.

This Bill does not amend any statutes.

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