I would like to thank the committee for providing us this opportunity to discuss in particular the first nations land management regime.
As the chair indicated, my name is Andrew Beynon. I'm the director general responsible for lands modernization and community economic development, all under the umbrella of community opportunities at the Department of Aboriginal Affairs and Northern Development.
I have with me today Kris Johnson, the senior director responsible for lands modernization, and also Isabelle Dupuis, the acting director of the first nations land management regime.
We are indeed very pleased to be here today to brief you on the first nations land management regime. We would like to begin by describing the benefits of the FNLM regime, and then turn to describe the way in which the FNLM regime works. Then we'd like to close with some thoughts on the lessons learned and potential opportunities for your consideration as parliamentarians going forward.
The FNLM regime is one of several examples of recent legislation and other initiatives, all intended to achieve an objective of lands modernization. First nations have a substantial and growing reserve land base that can be a very important asset for activating economic development on reserve, but only if the right tools are available to achieve the potential.
Through lands modernization, we seek to work with first nations to break down the barriers imposed by the Indian Act and its outdated regulations, provide greater first nations community control of their lands, as well as to strengthen capacity to manage and plan the use of these lands.
The first nations land management regime provides an avenue for first nations to achieve many of these goals, most importantly by managing their own reserve lands rather than having those lands administered by the minister under the Indian Act.
In fact, the first nations land management regime has proven to be a powerful tool for first nations to unlock the economic potential of their reserve lands. An independent study by KPMG associates recently concluded that first nations operating under the FNLM regime are able to complete land transactions significantly faster and at a lower cost than is the experience under the Indian Act system.
The FNLM regime also makes possible developments that would not have been possible under the Indian Act. For example, subsequent to approving its land code and entering the FNLM regime, the Whitecap Dakota First Nation in Saskatchewan has issued 16 commercial leases, including an award-winning golf course that was named Golf Digest's best new course in Canada in 2005. This has benefited not just the first nation but many other Canadians and Canadian businesses in the area. This would not have happened under the Indian Act.
The FNLM regime is a very dynamic regime in the sense that more and more first nations seek to opt into the legislation over time. There are currently 32 first nations operating under the FNLM regime, and soon, 38 first nations will have completed all of the necessary prerequisites to take over the management of their reserve lands.
I will now turn to describe the way in which some key features of the FNLM regime work. The first nations land management regime provides self-government authority to first nations over their reserve lands through the operation of a framework agreement provided for by the federal legislation.
This framework agreement was originally entered into with the 14 first nations who led the proposal and negotiated the terms of the framework agreement. It has now been expanded so that the framework agreement can also apply to all new first nations who enter into the FNLM regime.
Unlike the Nisga'a or Westbank self-government arrangements, which cover a broader range of subjects than lands, the FNLM regime is not a comprehensive self-government regime. It does, however, encompass not just management of reserve lands but also management of resources and environmental issues on those lands.
First nations that enter into the FNLM regime take on the authority and responsibility for managing reserve lands and the Indian Act lands management system shuts off. This is critically important, because the FNLM and the Indian Act take very different approaches to management of lands.
Under the Indian Act, the minister rather than the first nation has decision-making authority over many land issues. For instance, subsection 28(2) of the Indian Act describes the authority of the minister to issue permits for occupation of portions of reserve land in the following terms:
The Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve.
By way of...I'll say “dramatic contrast”, under the FNLM the first nation, not the minister, has the authority to decide how to manage their reserve lands. For instance, subsection 18(1) of the FNLM legislation specifies that:
A first nation has, after the coming into force of its land code and subject to the Framework Agreement and this Act, the power to manage first nation land and, in particular, may
To make it clear that the Indian Act system of land management ceases to apply to FNLM first nations, section 38 of the FNLM legislation lists a series of provisions of the Indian Act governing land management that no longer apply when a first nation becomes operational under the FNLM regime.
As stated earlier, the FNLM provides an avenue for first nations to manage reserve lands, but first nations are not obliged to take this avenue. The FNLM is optional, and it is sometimes called opt-in legislation that only applies to those first nations that have voted to enter into the FNLM regime. A formal process must be followed before a first nation can become operational under this legislation and the framework agreement rather than being governed by the Indian Act. Sections 10, 11, and 12 of the FNLM legislation outline the role of the first nation membership in deciding whether to leave the Indian Act and whether to enter into the FNLM regime.
Once a first nation becomes operational under the FNLM regime, much of the day-to-day land management authority is typically in the hands of a first nation government, sometimes called a band council, but the authority of the first nation government is derived from a decision of the community as a whole through a formal vote on whether to enter into the FNLM regime.
Not only do the members of the first nation, rather than the first nation government, decide on whether to enter into the FNLM regime, but members have a key role in setting the rules under which the first nation government will manage land. To enter into the FNLM regime, the members of the first nation are called upon to vote on whether to approve a land code that sets the basic rules for land management that must be followed by the first nation government. Section 6 of the FNLM legislation specifies that the land code to be voted on by community members must include various elements. Examples of what must be provided for in a land code include the following:
6(1)(b) the general rules and procedures applicable to the use and occupancy of first nation land, including use and occupancy under (i) licences and leases
6(1)(e) is also another example:
the requirements for accountability to first nation members for the management of first nation land and moneys derived from first nation land.
Those are just some examples of what must be dealt with, but in a land code that's approved by the members.
Not only does the FNLM regime provide for first nations to make their own decisions on managing lands, environmental issues, and disposition of interests in lands, but the FNLM regime also sets out first nations government law-making authority over reserve lands. Under the Indian Act, first nations have limited authority to make bylaws on reserve with limited penalties for non-compliance. In dramatic contrast, sections 20 to 24 of the FNLM legislation describe more extensive and modern law-making powers. Most importantly, while much of the first nation bylaw-making power under the Indian Act is subject to the authority of the minister to disallow bylaws, the FNLM regime takes a more modern approach, more respectful of self-government authority, by eliminating the role of the minister in making laws in relation to land and environment within a participating first nation community.
The FNLM regime also establishes a broader authority for first nations to manage environmental issues than would be possible under the Indian Act. The FNLM regime requires first nations to establish an environmental assessment process for all projects on reserve lands that are approved, regulated, funded, or undertaken by the first nation. The FNLM regime also contemplates environmental protection being governed by first nation laws, provided those laws meet or exceed the environmental standards of the province in which the first nation land is located.
Currently the power to make environmental protection laws is required to be exercised in accordance with an environmental management agreement to be concluded with the federal Minister of Environment. No such agreements have yet been concluded, and first nations operating under the FNLM regime have recommended that this procedural step be eliminated. This would require an amendment to the FNLM legislation, and that is of course a matter for you as parliamentarians to consider. We would note, however, for your consideration that there is no similar requirement in other self-government regimes to enter into an environmental management agreement with the minister before exercising environmental law-making powers.
The FNLM regime sets out not just law-making authority over reserve lands, resources, and environmental issues but also the first nation's authority to manage and dispose of interests on reserve lands. With this authority comes the responsibility for these decisions. Canada remains liable for the land management decisions it makes prior to a first nation's entry into the FNLM regime, but first nations operating under the FNLM regime take on authority and potential liability going forward.
Having described how the FNLM regime works, I would like to close by describing some of the next steps for building upon the success of the FNLM regime.
As suggested, the Lands Advisory Board has discussed with us some potential minor amendments to the FNLM legislation that could help to make the legislation operate better, and in particular could smooth the transition for new first nations to enter into the regime. An example is the potential elimination of the current requirement for an environmental management agreement while maintaining the strong environmental protections that the FNLM legislation establishes. Again, that is a matter for you, as parliamentarians, to consider when it comes to legislation.
Another consideration in moving forward is the federal funding for operational first nations. Although the FNLM regime has expanded over the years since its inception, the number of first nations seeking to enter into the FNLM regime is now even greater than the number that currently operate under this legislation. At this time, as many as 80 first nations have formally expressed an interest in entering into the FNLM regime through band council resolutions. The first nations land management regime has not accepted new first nations since 2008 because of funding limitations.
The federal budget, Budget 2011, included a commitment to reallocate $20 million over two years towards the FNLM regime. We are working with first nations on options for changing the federal funding formula in order to open up the FNLM regime to new entrants. These negotiations are proceeding very well, and we, as officials, hope that a new operational funding formula can be finalized in time for operational first nations to consider and potentially ratify at their upcoming Lands Advisory Board annual general meeting set for October 19 to October 21 here in Ottawa.
We are also working with the Lands Advisory Board to finalize prioritization criteria to assist in determining which first nations will be best positioned to take advantage of the opportunities this regime can offer in future.
In summary, and in closing, the FNLM regime is one avenue that first nations can use to move beyond the restrictions imposed by the Indian Act. Many first nations have been economically successful using this option, and we are working closely with first nations on options for making the FNLM regime even more successful.
We would be very pleased to answer any questions you may have.