FNFN & Framework Agreement on First Nations Land Management

On Sept. 1, 2106 the Fort Nelson First Nation (FNFN) entered into the Developmental Phase of the First Nations Land Management initiative.  Why was this decision made to enter into this initiative?  It’s an opportunity for the FNFN to gain control over its own reserve lands and to manage its reserve lands based on community beliefs and community aspirations.  Currently all FNs in Canada are under the Indian Act unless their community successfully votes on the FN’s own Land Code and the Individual Agreement between the FN and Canada.  First Nations have a 2-year period to develop its own Land Code and finalize the Individual Agreement with Canada.  

History

The Framework Agreement on First Nation Land Management (Framework Agreement) recognises the First Nations (FN) have an inherent right to manage their reserve lands and resources.  The Framework Agreement provides FN with the option to govern their reserve lands and resources (with the exception of oil and gas) under their own Land Codes (LC), free from constraints imposed by the Minister of Indigenous Affairs and federal officials under the Indian Act.

The Lands Advisory Board (LAB) and a national group of 14 dedicated Chiefs developed and negotiated this historic government to government arrangement with Canada in 1996.  The Framework Agreement identifies the jurisdiction assumed by the FNs, which includes decision-making authority over their lands and resources, as well as the power to design and enforce their laws over these reserve lands and resources.  A Framework Agreement FN is unconditionally recognised as exercising all of the rights, powers and privileges of a land owner.

Parliament ratified the Framework Agreement in 1999 by passing the First Nations Land Management Act.  Three FNs implemented their LCs on January 1, 2000 – day one of the new millennium. During the sixteen years since these historic beginnings, over 60 FNs have implemented their LCs.  The Lands Advisory Board and the Resource Centre have worked diligently during this period to provide support services to the Framework Agreement signatories.

As a result, the Framework Agreement is proving to be, without a doubt, a major success story because FNs are in the driver’s seat. 

Taking Control of Land Management

A FN signatory to the Framework Agreement exercises its land management option by creating its own Land Code, drafting a Community Ratification Process (CRP) and entering into a further Individual Agreement with Canada.  The specific steps are set out in the Framework Agreement and include the following:

Land Code (LC): A LC, drafted by the community, will be the basic land law of the FN and will replace the land management provisions of the Indian Act.  The Minister of Indigenous and Northern Affairs Canada (INAC) will no longer be involved in the management of the FN’s reserve lands. 

Individual Agreement:  An Individual Agreement between each FN and the Minister will be negotiated to deal with such matters as:

·         The reserve lands will be managed by the FN.

·         The specifics of the transfer of the administration of land from Canada to the FN.

·         The development and operational funding to be provided by Canada to the FN land management.

Community Ratification Process (CRP):  In order for the FN to assume control over its lands, the LC and the Individual Agreement must be ratified by the electors of the FN.  All members of the FN who are at least 18 years of age, whether living on-reserve or off-reserve, have the right to vote on the LC and the Individual Agreement.  The procedure for the CRP is developed by the FN in accordance with the Framework Agreement.

Verification:  An Independent person selected jointly by the FN and Canada, called a Verifier, will confirm that the CRP and the LC are consistent with the Framework Agreement.  The Verifier will monitor the CRP to ensure that the rules are followed. 

 

Title to First Nations

Reserve lands under the Indian Act are held by Her Majesty and are set apart for the use and benefit of the FN.  This will not change under the Framework Agreement.  These lands remain a federal responsibility under section 91 (24) of the Constitution Act, 1867.  In addition, the FN’s land will be protected against surrender for sale.

Legal Status and Powers of First Nations

The Framework Agreement provides these FNs with all the legal status and powers needed to manage and govern their lands and resources.  While FNs will not be able to sell their land, they will be able to lease or develop their lands resources, subject to any limits imposed by their own community in laws and LCs.

Law-Making Powers: A FN managing its lands under a LC will have the power to make laws in respect of the development, conservation, protection, management, use and possession of FN land.  The LC does not authorise laws relating to the taxation of real or personal property.   Such laws must be made separately pursuant to Section 83 of the Indian Act.  The FN’s Council can continue to make by-laws under Section 81 of the Indian Act. 

Protection of First Nation Land

The preserving of the quantity and quality of existing FN lands is a fundamental principle of the Framework Agreement.  Some aspects of this principle are summarized below:

Taxation and Seizure under the Legal Process:  The current exemption of reserve lands, and personal property situated on-reserve, will continue under the relevant provision of the Indian Act. 

Environmental Protection:  A FN will have the power to make environmental protection and assessment laws. 

Voluntary Exchange of Lands:  A FN may decide that it is advantageous to exchange some of its FN lands for other lands.  Provision can be made in its LC for a procedure to negotiate and approve such exchanges.  An exchange of land cannot occur without the consent of the FN community. 

No Provincial Expropriation: Under the Framework Agreement, there can be no expropriation of FN land by a provincial or municipal government or agency.

Restricted Federal Expropriation: Canada’s power to expropriate FN land is restricted.  That power can only be exercised with Federal Cabinet approval and only when the expropriation is justified and necessary for a federal public purpose that serves the national interest.  Compensation must include provision for equivalent lands so that the land base of the FN is not diminished.

Enforcement:  The FN will have full power to enforce its land and environmental laws and may enter into further agreement with other jurisdictions to assist in such enforcement.  A FN can appoint its own Justice of the Peace to try offences created under a LC or a FN law, and can appoint its own prosecutor.  

Continuing Federal Responsibility

Canada will remain liable for and will indemnify a FN for losses suffered as a result of any act or omission by Canada, or its agents, that occurred before the LC comes into effect.  After that date, the FN is responsible for its own acts or omissions in managing its lands.

Dispute Resolution

The FN will establish its own processes for dealing with disputes in relations to its lands and resources.  These can include mediation, neutral evaluation and arbitration.  In the case of a disagreement between the FNs and Canada on the meaning or implementation of the Framework Agreement, there are provisions in the Framework Agreement to resolve the dispute outside of the courts. 

For more information:

First Nations Land Regime website

https://www.aadnc-aandc.gc.ca/eng/1327090675492/1327090738973

Land Advisory Board Resource Centre

http://labrc.com/