Land management is the day-to-day management and administration of reserve lands, environment, and resources. It generally includes activities related to the benefit of use and development of land for individual, collective, and economic purposes.
As identified in the Indian Act, reserve land is “a tract of land, the legal title to which is vested in Her Majesty, which has been set apart by Her Majesty for the use and benefit of a band”. Reserve lands are different from other land in that:
- Legal title to reserve lands is held by the Crown rather than by individuals or organizations;
- First Nations have a recognized interest in reserve land that includes the right to exclusive use and occupation, inalienability and the communal nature of the interest;
- The land cannot be seized by legal process or be mortgaged or pledged to non-members of a First Nation; and
- The Minister must approve or grant most land transactions under the Indian Act.
The Constitution Act of 1867 gives Parliament authority over “Indians and lands reserved for the Indians.” The Indian Act in place since 1876, was passed by Parliament under this authority and sets out the land management responsibilities of the Minister of Aboriginal Affairs and Northern Development for much of the reserve lands in Canada.
Indigenous and Northern Affairs Canada (INAC) provides land management services to First Nations across Canada. Land management generally includes activities related to the ownership, use and development of land for personal, community and economic purposes.
Land Management Programs
As part of an overall approach to facilitate the assumption of control over First Nation Lands, Land Management Programs were developed to transfer control over land management from INAC to First Nations.
INAC and First Nations are developing, maintaining and modernizing professional expertise and tools to keep pace with the reality of a development context characterized by diverse and complex forms of land use in compliance with emerging environmental regimes:
- Reserve Land and Environment Management Program
- First Nation Land Management Act
- Comprehensive Self Government
Reserve Land and Environment Management Program (RLEMP)
The RLEMP is a comprehensive land management program that funds First Nations to manage all aspects of land, natural resources and the environment on reserve. The Indian Act gives this authority to the Minister. So in RLEMP, the Minister delegates his/her authority to individual First Nations who have gone through eligibility and preparatory processes.
Five Key Functions of RLEMP:
- (community-based) land use planning
- lands management
- natural resources management
- environmental management
- compliance management (promotion, monitoring & enforcement)
Each of these five key functions is integral to land and environment management.
RLEMP is structured so that First Nations can function at any one of three levels of increasing responsibility, complexity and independence. These levels are the:
- training and development level
- operational level and
- delegated authority level
The training and skill level of the LMO staff will also affect the level of responsibility that a First Nation may take, at a given time. Each succeeding level has increased responsibility, capacity and less direct input from INAC. Regardless of the responsibility taken on by the First Nation, liability for land transactions remains with the Minister of INAC.
All First Nations must enter RLEMP at the Training and Development Level. At this level, (and partnering with INAC Regional staff) First Nations will administer Reserve lands in accordance with the Indian Act and other legislation, as well as INAC policies and guidelines.
Land Managers/Officers do not have to be certified while working for First Nations, which are at the Training and Development level. However, they can earn certification under the Professional Lands Management Certification Program (PLMCP) during this phase. Land Managers/Officers will have increased responsibility in basic land transactions and in environmental and natural resource management while First Nations are at the Training and Development level.
Land Managers/Officers can meet the requirement for certification by successfully completing PLMCP under the National Aboriginal Land Managers’ Association (NALMA) or it can be met if the Land Manager/Officer passes the equivalency standards on the five key parts of RLEMP (LUP, land management, resource management, environmental management, and compliance measures). NALMA assesses and certifies equivalency for Land Managers.
A First Nation working at the Operational Level may move into the Delegated Authority Level. At this level, the First Nation acquires sections 53/60 Delegated Land Management Authority.
Section 53 authorizes the Minister to delegate his/her authority to administer reserve lands to individual First Nations. Section 60 allows the Cabinet (i.e. Governor in Council) to authorize First Nations to:
- manage First Nation lands
- manage allotments under section 20(1)
- approve transfers under section 24,
- approve permits under section 28(2) and 58(4)
- approve transactions affecting designated lands under section 53(1)(b)
- approve leases under sections 58(1)(b), 58(1)(c) and 58(3), and
- administer permits, leases and licenses under the Indian Act regulations relating to mining, waste disposal and timber
First Nation Land Management Act (FNLMA)
FNLM is a sectoral self-government initiative. To enter the FNLM, a First Nation must sign a Framework Agreement with Canada. Once the Framework Agreement has been signed by the First Nation, and Canada, the First Nation must develop its own Land Code, and must enter an Individual Transfer Agreement with Canada. This Agreement deals with the details of transferring administration as well as dealing with developmental and operational funding issues. The Land Code, Individual Transfer Agreement and Framework Agreement are put before the First Nation membership for a ratification vote. Canada must also ratify the Framework Agreement with this particular First Nation. When the two ratifications are complete, the First Nation has complete control and exclusive law-making authority over its First Nation lands and resources.
Every Land Code must contain certain clauses, which must address the following areas:
- Identify exactly what lands are subject to the Land Code. These are defined as “First Nation land.”
- Set out the rules and procedures for First Nation members and others to use and occupy the First Nation land;
- Set out what will be done with the revenue from the lands (but this will not apply to oil and gas revenues, which are subject to the Indian Oil and Gas Act);
- Set procedure for making and publishing First Nation land laws;
- Set conflict of interest standards and procedures;
- Set a community process to develop laws that apply when a marriage ends (To develop rules and procedures for Reserve land held by one or both spouses at the end of a marriage.);
- Set a process for resolving disputes that occur under the Land Code;
- Set procedures by which the First Nation can grant interests in land or acquire lands for community purposes;
- Write a job description and title for the person who will have responsibilities for land management; and
- Set the procedure for amending the Land Code.
A First Nation has complete control over First Nation lands under FNLM, once the First Nation creates and ratifies a Land Code and meets the federal criteria. The First Nation must have infrastructure in place to fulfill these responsibilities. In this context, infrastructure consists of the Land Code, land governance and management systems. These systems must be supported by policy and procedure manuals and computer systems.
FNLM fundamentally changes accountability of the First Nation government and of the LMO. The members will be responsible to hold the First Nation accountable for implementing and ensuring the First Nation follows its own laws. This is sometimes called political accountability. To enable the community to make informed decisions about the effectiveness of the Council, the Land Code will require the Council to report annually to its membership on land and management activities.
Within FNLM, accountability to the Minister arises only under contract and not under the Indian Act. The role of the Minister is limited to monitoring the terms of the Individual Transfer Agreement and the Framework Agreement, to ensure the First Nation does what it agreed to do. This is dramatically different than the previous system, where every decision of council and every land transaction had to be submitted to the Minister for approval.
In a Framework Agreement, a First Nation agrees to establish appropriate mechanisms for accountability, consisting of:
- disclosure, and
In addition to this accountability, First Nations are putting in place several other measures to ensure the FNLM initiative is successful in each community, as required by the Framework Agreement. These measures are as follows:
- development of a comprehensive policy framework to support the First Nation government and staff, and which is conducive to community and economic development;
- development of a fair and effective dispute resolution mechanism;
- ensuring a separation of politics from management of operations; and
- incorporation of local traditional practices and values into land management policies and procedures, including decision-making processes.
Comprehensive Self-Government Land Regime
Self-government agreements set out arrangements for Aboriginal groups to govern their internal affairs and assume greater responsibility and control over the decision making that affects their communities. Self-government agreements address: the structure and accountability of Aboriginal governments, their law-making powers, financial arrangements and their responsibilities for providing programs and services to their members.
Because Aboriginal groups have different needs, negotiations will not result in a single model of self-government. Self-government arrangements may take many forms based on the diverse historical, cultural, political and economic circumstances of the Aboriginal groups, regions and communities involved.
Comprehensive claims settlements also include self-government arrangements.
Canada has signed 20 comprehensive self-government agreements recognizing a wide range of Aboriginal jurisdictions that involve 34 Aboriginal communities across Canada. Of those, 17 are part of a comprehensive land claim agreement (modern treaty).
- Lands Advisory Board Resource Centre Inc. https://www.labrc.com/
- INAC – Land Management https://www.aadnc-aandc.gc.ca/eng/1100100034737/1100100034738
- INAC – Framework Agreement https://www.aadnc-aandc.gc.ca/eng/1393512745390/1393512934976
- INAC – Self Government http://www.aadnc-aandc.gc.ca/eng/1100100032275/1100100032276