The objective of this chapter is to assess and provide recommendations about how to improve the ways Indigenous peoples in Canada secure and use land. The chapter starts by offering an historical contextualisation of Indigenous lands and explores how they can promote community development. The second section sets out the Indigenous land rights framework in Canada, which differs between First Nations, Métis and Inuit. The chapter then explores how treaty rights have evolved in recent years and outlines mechanisms to expand the land base. Following this, the chapter examines how Indigenous groups can better manage land, participate in or undertake land use planning, establish objectives for community development and obtain revenues from land. The chapter ends with a discussion of Indigenous land rights in relation to natural resource development projects, including frameworks for participation and consultation.
Linking Indigenous Communities with Regional Development in Canada
Chapter 3. The importance of land for Indigenous economic development
Abstract
Key findings and recommendations
Key findings
Land is a fundamental asset for sustainable economic development for Indigenous peoples, and land rights are critical for self-determination.
Indigenous peoples in Canada disproportionately continue to have a small, fragmented land base, with limited commercial and residential use, limited natural resources, far from urban centres and with limited ability to expand.
Indigenous peoples have different levels of property rights over different lands (reserves, fee simple land, and modern treaty lands), and have mechanisms available to obtain these lands. In recent decades, these mechanisms have been utilised to increase the Indigenous land base.
Security of tenure is associated with improved economic outcomes. Opportunities for development vary according to the land base and the defined land rights regime, as well as by location, proximity to service centres, population size, resource endowment and institutional capacity.
There are a range of tools that can be implemented in the Indigenous land tenure system to empower Indigenous peoples and improve economic development outcomes (including land use planning, leasing, and certificates of possession). There are opportunities to improve the efficiency of these tools, and build the capacity of Indigenous groups to utilise them.
Once land tenure is secured, it provides the basis to negotiate benefit sharing agreements with project proponents. These agreements can be a catalyst for development if they are linked to a community plan, have dispute resolution mechanisms, and provide for project closure and remediation.
Key recommendations
Improve the framework for Indigenous peoples to secure land through the comprehensive land claims policy by:
Ending the practice of requiring that Indigenous rights holders extinguish their inherent and/or treaty rights as a prerequisite for an agreement.
Supporting Indigenous groups with the capacity to effectively undertake negotiations.
Developing independent and ongoing monitoring mechanisms in order to ensure that the commitments made by the Government of Canada in comprehensive land claim agreements are met in a timely and effective manner.
Develop better procedures for First Nations to increase existing reserve land through the Treaty Land Entitlements and State-assisted land acquisition processes by:
Tracking the overall time it takes to convert lands to reserve status and demonstrate progress periodically—report publicly and include in departmental performance indicators.
Working closely with First Nations to assist them in their efforts to resolve third-party interests.
Undertaking a national audit of surplus government land to identify opportunities for set asides.
Establishing a portfolio of land to be made available for future land claim settlements.
Establishing a shared national/provincial programme of land purchase.
Develop better tools for Indigenous groups to use land by:
Providing legal templates for opting First Nations to start building their land codes and associated regulations in order to facilitate the law enactment, reduce the need to resort to external consulting, and avoid the proliferation of unique property rights regimes (within the framework of the FNLM Act).
Ensuring community plans detail which land can be available for leasing and land codes regulate intended use and accepted levels of nuisance.
Ensuring there are mechanisms in place for Indigenous communities to have meaningful consultation with regards to the land use planning of municipal and other authorities that have jurisdiction on or near their traditional territories.
Strengthen the negotiating power of Indigenous groups in the context of impact-benefit agreements (IBA) by:
Providing all the necessary information on environmental conditions, sub-surface resources, land uses, competing economic interests and other elements that Indigenous groups may not be aware of.
Referring companies to a legitimate regional or national Indigenous organisation that can serve as the contact point with local groups.
Elaborating a common set of tools and templates from which Indigenous groups can draw to start negotiations.
Facilitating workshops among Indigenous negotiators and leaders to share experiences and good practices in agreement-making.
Land. If you understand nothing else about the history of Indians in North America, you need to understand that the question that really matters is the question of land. Thomas King, The Inconvenient Indian (2012), pg. 218.
Land is a fundamental asset for sustainable economic development. This is no different for Indigenous communities in Canada and it is a reason why land rights are critical for self-determination. However, land is much beyond just an economic asset for Indigenous peoples. Land provides sustenance for current and future generations; it is connected to spiritual beliefs, traditional knowledge and teachings; it is fundamental to cultural reproduction; moreover, commonly held land rights reinforce nationhood.
The history of Indigenous lands in Canada is one of disposition and isolation. Indigenous land rights in Canada have been strengthened by successive court cases and administrative processes that have evolved to better address such issues as expanding the land base. Despite this, Indigenous rights frameworks are by no means settled and they remain one of the most politically contentious issues to this day. Major infrastructure projects such as the expansion of the Trans Mountain oil pipeline have been halted by unanimous decision of the federal court of appeal because of the government of Canada’s failure to address the concerns of some First Nations.1 And yet, the extent to which First Nations are able to assert their rights over their land remains unclear – particularly when those rights come up against major developments of national interest.
This chapter explores how Indigenous groups access, protect and use land in Canada according to their own objectives, respecting the principle of self-determination. The chapter primarily focusses on First Nations and Inuit land rights and land management. Since the 1970s, modern treaties and self-governance agreements have been signed between the Crown, the province or territory and Indigenous peoples. Taking this historical evolution into consideration, the report traces a path of advancement and points out areas for further improvement. The recent recognition of Métis land rights is briefly discussed, too.2
The chapter proceeds in five parts. The first section offers historical contextualisation of Indigenous lands and explores how they can promote community development. The second section sets out the Indigenous land rights framework in Canada, which differs between First Nations, Métis and Inuit. The third section explores how treaty rights have evolved in recent years and outlines mechanisms to expand the land base. Following this, the chapter examines how Indigenous lands can support sustainable economic development. More precisely, it investigates how Indigenous groups can better manage land, participate in or undertake land use planning, establish objectives for community development and obtain revenues from land. The chapter ends with a discussion of Indigenous land rights in relation to natural resource development projects, including frameworks for participation and consultation. Throughout, the chapter offers recommendations on how to strengthen the Indigenous land rights regime and governance in Canada.
Land: From dispossession to ongoing reconciliation
Land rights are a contentious issue, but necessary to achieve reconciliation
The delimitation, access and right to land and waters by Indigenous peoples3 is one of the most contentious political issues in Canada. Not every Indigenous group has the right to land assured, up to today. For instance, non-Status Indians are not considered members of reserves and cannot claim lands, while for the Métis, who are one of the three Indigenous peoples of Canada, the very existence of land rights remains disputed (Drake and Gaudry, 2016[1]). Treaty renegotiation takes place in Canada today. Other groups are currently negotiating treaties for the first time – more than 70 are under negotiation as of September 2019. Furthermore, when land rights are defined, it remains to be decided on a case-by-case basis whether development projects can take place or not. The extent to which Indigenous peoples have the right to be consulted about or to veto projects in their traditional territories is disputed (Land, 2016[2]). Controversial cases such as the expansion of Kinder Morgan’s Trans Mountain Pipeline corroborate this point. The company has negotiated benefit agreements with 43 Indigenous communities out of a total of 133 affected by the project, but consent is far from being reached: 53 First Nations in British Columbia have formed a treaty alliance against the project, and other First Nations have signed a petition against the project.4
The Truth and Reconciliation Commission makes some Calls to Action about land rights, albeit not dealing extensively with the issue (TRC, 2015[3]). The Call to Action 45 urges the Government of Canada to jointly develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown. It called on the Government of Canada to:
Adopt the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which the Government did in 2016, and implement the Declaration as the framework for reconciliation.
Repudiate concepts used to justify European sovereignty over Indigenous lands and peoples such as the Doctrine of Discovery and terra nullius (see definition on Box 3.1 below).
Renew or establish Treaty relationships based on the principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future.
Reconcile Aboriginal and Crown constitutional and legal orders to ensure that Aboriginal peoples are full partners in Confederation, including the recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes involving Treaties, land claims, and other constructive agreements (TRC, 2015[3]).
Indigenous title to land pre-exists colonisation and European Laws. By virtue of historical occupation and customary law, Indigenous peoples in Canada are dutiful holders of their traditional lands. In this sense, Treaties should be honoured, renegotiated when needed and negotiated where non-existent and this process should be guided by the principles of mutual recognition and respect, rather than dominance, as was often the case in the early days of treaty making in Canada. By force of the Call to Action 45 and its interpretation, Indigenous land rights compose the Reconciliation and Truth project.5
Box 3.1. Dispossession and subjugation: The role of the Doctrine of Discovery and terra nullius
15th century English legal scholarship forwarded the Doctrine of Discovery, with long lasting ramifications for Indigenous rights. The Doctrine provided that newly arrived Europeans immediately and automatically acquired legally recognised property rights over Indigenous lands and also gained governmental, political and commercial rights over the inhabitants without the knowledge or consent of Indigenous peoples.
The notion of terra nullius, meaning empty or void land, is one of the key elements of the Discovery Doctrine. The Doctrine argues that the lands that were not possessed or occupied by any person or nation, or were occupied by non-Europeans but not being used in a fashion that European legal systems understood or approved were considered empty and available to be claimed. Indigenous lands fell into the category of not being governed according to European laws and cultures, and were thus available for Discovery claims. Moreover, given the nomadic nature of many Indigenous Nations, lands may have appeared empty and available but were actually part of the traditional lands used by Indigenous groups.
The Doctrine has been severely criticised as a fictional justification of the European colonisation and of the subjugation of Indigenous peoples and lands around the world. Despite this, it is only in recent decades that the governments and courts of Australia, Canada, New Zealand and the United States have sought to overcome this Doctrine of land dispossession.
Source: Adapted from Miller, R. et al. (2010[4]), Discovering Indigenous Lands, http://dx.doi.org/10.1093/acprof:oso/9780199579815.001.0001.
Historic dispossession of Indigenous lands has resulted in limited reserve land
Colonialism left a legacy of economic dependency and a situation of relative deprivation of Indigenous Peoples in Canada (Alfred, 2009[5]). Land allocation policies have been part of this process by establishing reserves and assigning Indigenous peoples to confined and isolated tracts of land. The Final Report of the Royal Commission on Aboriginal Peoples, the most comprehensive study to date on this matter, identifies land dispossession as one of the root causes of this condition (RCAP, 1996[6]). The Parliament of Canada has recognised that “the alienation of land and resources has been a major contributor to the economic marginalisation of Aboriginal peoples in Canada” (Parliament of Canada, 2012, as cited in (PRA, 2016[7])). The Government of Canada has signalled that a sufficient land base, local governance and community capacity are fundamental conditions for community economic development (Table 3.1).
Table 3.1. Conditions for community economic development
Source: AANDC (2013[8]), Creating the Conditions for Economic Success on Reserve Lands: A Report on the Experiences of 25 First Nation Communities, https://www.aadnc‑aandc.gc.ca/eng/1372346462220/1372346568198#tab16 (accessed on 30 November 2018).
Throughout Canadian history, Indigenous peoples have been dispossessed of their traditional territories and forcefully moved to lands in worse locations or of inferior quality in order to make way for the growth of the settler society. When reserves were created, they were generally located away from the best lands in terms of agriculture and trade as the settler population expanded (RCAP, 1996[6]). Consequently, many reserve lands have little natural resources and are located at great distance from major population centres. As of 1996, almost 80 per cent of First Nations were located more than 50 kilometres from the nearest access centre (RCAP, 1996[6]).
Indeed, while representing 4.9% of the total population, Indigenous peoples hold around 626 000 km² or 6.3% of the total landmass of Canada. Most of it lies north of the 60th parallel, whilst in the southern provinces, which are home to approximately 95% of all Indigenous Peoples within Canada, only 37 000 km² are held by Indigenous groups, that is 0.5% of Canada’s land mass (Göcke, 2013[9]).
In short, Indigenous lands disproportionally have disadvantageous attributes, which include:6
Small Land Base: Approximately 0.5 % of the Canadian land mass south of the 60th parallel.
Limited Commercial and Residential Use: The federal land allocation policy has largely allocated reserve lands away from high quality and urban lands as the population expanded.
Patchwork Nature: 80 per cent of First Nations reserves are below 500 hectares in size, which makes it harder to establish infrastructure, development projects and viable businesses.
Limited Natural Resources: Reserve lands generally have low agricultural or mineral potential.
Limited Territorial Expansion Ability: The ability of band councils to expand their land base is reduced, albeit policies such as Additions to Reserve and Specific Claims negotiation process seek to expand these possibilities.
Effects of nearby activities: Surrounding activities and development in close proximity to reserves can place pressure on reserve boundaries and/or cause environmental degradation on or around the reserve.
In the face of this evidence, the Royal Commission on Aboriginal Peoples (RCAP, 1996[6]) concluded that a reliable land base is a pre-condition for autonomous self-governance. A significant expansion of lands owned and controlled by Indigenous peoples would provide a reasonable basis for achieving economic self-reliance (Alfred, 2009[5]). It would contribute to a more effective use of taxation powers, which have been greatly affected by the abovementioned land allocation policy (Belley, 2000[10]).7 Economic independence is an important pre-condition for sustainable self-governance regimes.
More than 20 years after the publication of this major study, these conclusions hold true. Indigenous peoples in Canada disproportionately continue to have a small, fragmented land base, with limited commercial and residential use, limited natural resources, far from access centres and with limited ability to expand. The fair and prompt resolution of outstanding land claims would significantly address this problem. In addition, instruments to expand the land base must be consistently adopted, which are treaty-making, comprehensive claims policy, specific claims policy, land acquisition in the market, Additions to Reserve, right to pre-emption and facilitated land purchases.
Métis title is pending broader recognition
Métis were first recognised as a distinct right-holding group with the passage of the 1982 Constitution Act. Section 35 of the Constitution Act affirmed existing Aboriginal and treaty rights and recognised Métis as one of the three distinct Indigenous groups in Canada, alongside the Indians and the Inuit. In 2003, the Supreme Court of Canada set a legal test for rights-bearing Métis communities and recognised that Métis have broader hunting rights on traditional territory (Powley decision). Refer to Chapter 1 for this discussion.8
The Métis did not enjoy a distinct land base from which to strengthen their identity and culture or govern themselves as First Nations in reserves did. Historically, the only exception is the province Alberta, where there is a unique history of Métis. A provincial legislative basis for the establishment of the Métis Settlements was successfully negotiated under the Métis Population Betterment Act of 1938. The eight Métis Settlements of Alberta (Buffalo Lake, East Prairie, Elizabeth, Fishing Lake, Gift Lake, Kikino, Paddle Prairie and Peavine) comprise 1.3. million acres of land and have a population of around 5,000 people.
Apart from that, federal government policies related to Indigenous lands have not included Métis. Until today, the Comprehensive Land Claims Policy does not include the Métis. Likewise, the Specific Claims Policy is restricted to First Nations dealing with historical grievances related to historic treaties and land management. The Addition to Reserve process anticipates consultation to Métis, but has reportedly been defective. Special Claims from the Métis may be accepted in a case-by-case basis, but the lack of a standard procedure renders decision-making more lengthy, complex and ambiguous. In all, the Métis did not benefit significantly from these policies, except when they had other Indigenous groups by their side. For instance, in 1993, the Sahtu Dene and Métis signed a Comprehensive Land Claim Agreement which, among other provisions, granted title to 41,437 square kilometres of land in the Northwest Territories.
Given the lack of recognition of Métis title in government policies, Métis have resorted to the Courts. In the Manitoba Metis Federation decision, the Supreme Court of Canada ruled that the federal government had failed to appropriately carry out its promise in the 1870 Manitoba Act to set aside 5 565 square kilometres of land for the 7 000 children of the Red River Métis. Besides recognising the breach of treaty, which in itself has major significance, the Manitoba Metis Federation decision set ground for reconciliation. In November 2016, the Manitoba Métis Federation-Canada Framework Agreement on Advancing Reconciliation was signed.
In all, Canada has recognised Métis rights by different levels. In 2019, for instance, the Government of Canada signed Métis Government Recognition and Self-Government Agreements with the Métis Nation of Alberta, Métis Nation of Ontario and the Métis Nation of Saskatchewan. The agreements address core governance issues such as leadership selection, internal operations and citizenship. Commenting on these agreements, Thomas (2016) notices that future developments on these agreements may allow a more comprehensive analysis about where the recognition of Métis land rights is heading.
To conclude, Thomas (2016), in the Report “A matter of national and constitutional import: report of the minister’s special representative on reconciliation with Métis: section 35 Métis rights and the Manitoba Métis Federation decision”, recommends that Canada develops a policy to expressly address Métis Section 35 rights claims and related issues, founded on the legal principle of reconciliation. Moreover, because the Crown as a whole, federal and provincial, is accountable for its obligations to Métis as Section 35 rights-bearing Aboriginal peoples, the Report recommends them to work together to develop a joint process by which to address unresolved Métis Section 35 rights claims and related issues (Thomas, 2016).
For Indigenous peoples, land has spiritual and cultural value, beyond a utilitarian view
Access to land is a condition for Indigenous development, however conceptualised. Considering that Indigenous peoples have the right to self-determination and the right to development, only they can determine if and how to use their traditional territories. They are the ones to establish how eventual uses collide or not with their worldviews, spiritual beliefs and cultural practices. Right to land can increase autonomy, generate revenues and create economic opportunities, but it can also be used without any direct monetary benefit, for environmental conservation and cultural preservations. Indigenous peoples ought to reconcile these goals, depending on how they relate to and connect with land.
The manner in which land is thought about and used by Indigenous peoples goes beyond that of conventional (Western) conceptions of land as an economic asset. The spiritual beliefs and worldviews of Indigenous peoples are deeply rooted on their connection with land and often with related subsistence activities of hunting, fishing and gathering. Access to or ownership of land can also orient social relations including rules for leadership, marriage, inheritance and group belonging. Indigenous stewardship of land contributes to environmental preservation and biodiversity. Access to land puts Indigenous people in stronger negotiation position to leverage and protect their interests. These different aspects do not exclude, but complement one another. Land rights are therefore crucial to the maintenance of the collective identity of Indigenous groups.
Understood in these terms, the right to land ought to be held collectively.9 Collective land rights are crucial for the preservation of Indigenous peoples’ identities and for their subsistence as such. In some circumstances, e.g. in cities, it may be more convenient and even necessary to own land individually. Furthermore, individual interests to land may be allocated, without disrupting the collective nature of the land title. Internal sub-divisions of land may facilitate housing construction and maintenance, propel business development and create bankable interests on land, e.g. via leasing.
… [R]esorting to a private property regime only promises to shift Aboriginal economic dependency from the Crown to lenders. This is a subtle way of completing the centuries-old goal of the colonizers – assimilation – now re-packaged as “economic opportunity.” This is not to say that someday an on-reserve private property regime could not be a useful tool in the hands of our First Nations. Reserves near urban centres, equipped with adequate training, education and infrastructure, sufficient land to meet the needs of their members, and reasonable employment rates, may find some advantage to being able to borrow against and even market portions of their lands. It is more difficult to foresee how privatization will assist remote communities. Lands in these territories will lack any significant market value. These are Canada’s most impoverished and troubled reserves, and aside from opportunistic resource companies, little outside interest in these lands exists. (Rowinski, 2010[11])
To conclude this section, access to land and natural resources is fundamental for the material and social reproduction of Indigenous peoples. In the words of the former United Nations Special Rapporteur for Rights of Indigenous Peoples, James Anaya: “securing the rights of Indigenous Peoples to their lands is of central importance to Indigenous Peoples’ socioeconomic development, self-determination, and cultural integrity” (Anaya, 2012[12]). The Article 29 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states that:
1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.
2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.
Indigenous land rights frameworks
Indigenous peoples have different levels of property rights over different lands
Colonialism ushered in a governance of land rights regime that was alien to Indigenous peoples and that was imposed upon them. While these legal frameworks have evolved, they, to this day, do not necessarily ‘sit’ easily with Indigenous land governance regimes (including its cultural, spiritual and community-based elements). Thus, the following discussion of land rights frameworks is premised by the acknowledgement that Canadian jurisprudence has defined property in a specific way and evolved from European property rights regimes. As specific land rights regimes have been established to govern “Indian lands” and these too are premised on a western view, they continue to be challenged in court and they continue to evolve.
“Land” can be interpreted as encompassing the buildings that sit on it, the air above it and the underground, including water and, sometimes, sub-surface natural resources. “Land” translates into the legal framework as property rights, which express a relation between an individual or a group that holds right to land and the others who do not. As a “bundle of rights”, they are composed of five attributes: access, extraction, management, exclusion and alienation. The owner can access the land and exclude others from accessing, can use the land and enjoy its fruits and can transfer it to third parties, onerously or gratuitously. Indigenous individuals or groups that hold land freely acquired in the market are the rightful owners, but this land does not enjoy the special protection that reserves do under the Indian Act. The proprietor of land does not have the right to transfer land, as it occurs in Canadian reserves, where the First Nations have the right to exclusive use and occupation but the final title to land rests with the Crown.
Historic treaties comprised the creation of federal reserves, which are the most common expression of collective rights to land. The Indian Act defines reserve land as "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". As a bare legal title, title is in the Crown but the use, occupation and beneficial interests in the land are set apart for the Indigenous band.10 Once reserves are constitutionally protected (section 35 of the Constitution Act, 1982), the federal government cannot unilaterally diminish or take them away. The band council is the proprietor of reserve land, by which they hold the right to exclusive use and occupation, inalienability and the communal nature of the interest. Reserves have exemption from property and estate taxes. According to Statistics Canada, in 2011 there were more than 600 First Nations/Indian bands in Canada and 3 100 Indian reserves.
Indigenous individuals or band councils can also acquire fee simple land in the market, becoming its rightful owners. In this case, land will not have the special protection status granted under the Indian Act. It is subjected to taxation as any other piece of land and can be sold again in the market.
Besides reserves and market-price land, Indigenous peoples may address unresolved title to their traditional territories by negotiating a modern treaty through the Comprehensive Land Claims Policy. Comprehensive land claim agreements can be negotiated in areas where land and resources have not been dealt with previously. They typically take the form of a tripartite agreement between the Indigenous group, the Government of Canada and the province and territorial government. They result on the allocation of ownership rights to land and contain provisions for economic development.
Figure 3.1. Indigenous land rights in Canada
Note: The figure takes into account land rights of First Nations and Inuit recognised and declared by the State. Unresolved Aboriginal title to traditional territories is not included, neither are land rights of Métis.
Harvesting, hunting and fishing rights are collective rights granted in reserve and fee simple lands, and are considered treaty rights. In the territories traditionally occupied by Indigenous peoples which are not part of reserves or owned as fee simple land, fishing and hunting rights, exclusive or not, may still be granted. These traditional activities have cultural, ecological and social value, and are thus important for the collective subsistence of Indigenous groups.11 In the James Bay and Northern Quebec Agreement, for instance, exclusive fishing and hunting rights are attributed in certain lands, where non-exclusive rights are attributed in another one. It may also be the case that Indigenous peoples are given permission by private owners to hunt and fish in their lands.
Ownership of sub-surface resources varies from agreement to agreement. Under the Comprehensive Land Claims Policy, the right to sub-surface resources is not automatically included; rather, the agreement must grant it explicitly. In reserves, sub-surface resources are owned and administered by the respective Province or Territory, which is the regional level of government in Canada (Göcke, 2013[9]). According to the division of governmental responsibilities under the Canadian Constitution, Provincial governments hold authority over natural resources exploitation and might grant the rights to explore sub-surface resources to potential developers. Provincial governments are obliged to consult the impacted Indigenous and neighbouring communities in order to determine the socio-environmental impacts of exploration, and its employment and business opportunities for local residents. Equally applied to the national government and private developers, the duty to consult is discussed at further length in the section on Natural resource development projects and Indigenous communities later in this chapter.
Box 3.2. The largest Aboriginal land claim settlement in Canadian history: The Nunavut Land Claim Agreement
In the 1970s, the Inuit Tapiriit Kanatami (Inuktitut syllabics: ᐃᓄᐃᑦ ᑕᐱᕇᑦ ᑲᓇᑕᒥ) – a non-profit organisation representing over 60 000 Inuit in Canada, put forward the idea of creating a Nunavut territory. This idea grew over time, culminating in the 1993 Nunavut Land Claim Agreement between the Tunngavik Federation of Nunavut (now Nunavut Tunngavik Incorporated), the Government of Canada and the Government of the Northwest Territories. It led in 1999 to the creation of Nunavut, via the amendment of the Nunavut Act, 1993.
This is the largest Aboriginal land claim settlement in Canadian history, covering a vast territory of 1 877 787 km2 across Northern Canada and the Arctic Archipelago. The Nunavut Land Claim Agreement addresses a comprehensive range of political and environmental rights concerning issues such as land, water and environmental management regimes, conservation areas, wildlife management and others.
Aboriginal title: between proof and extinguishment
Indigenous title needs to be proven and declared by courts or recognised by the government in order to acquire its full expression in law. Treaty negotiations, which include the historic process of creating reserves and the modern process under the Comprehensive Land Claims Policy, are a means to recognise Indigenous title to land. Treaties grant land to Indigenous groups based on pre-existing title to land, originated from their customary law and given the pre-colonial history of use and occupation. However, many treaties covered a parcel of land which was smaller than the one originally claimed by the group as their traditional territory. By accepting this treaty land, the Indigenous group would have to relinquish the right to claim traditional land in the future: this is the extinguishment of Indigenous title.
Many treaty negotiations in Canada have not been yet concluded because the First Nations involved are not willing to accept extinguishment. Canada’s first modern treaty, signed with the Cree and Inuit of Northern Québec in 1975, contained this provision. One of the leading negotiators of this process, Dr. Ted Moses, has affirmed that the extinguishment of Indigenous titled contained in the Treaty was highly contentious and problematic, but was ultimately accepted in order to obtain a settlement, develop their lands and consolidate an autonomous governance regime. To other Indigenous leaders – for instance the negotiators of the Petapan Treaty in the Lac Saint Jean region of Québec – relinquishing the right to claim back the whole extension of their traditional territory would undermine the foundations of Indigenous identity and sovereignty and would thus be unacceptable. Indeed, the agreement-in-principle of the Petapan negotiation states that the treaty shall not exhaustively enumerate or replace Indigenous rights, including Indigenous title, of the First Nations eventually provided with treaty rights.
Some agreements mitigate extinguishment by creating categories of land with different levels of rights and interests: a fraction of the traditional territory is granted full ownership rights, whereas other portions are held as fee simple. For example, the Umbrella Final Agreement signed with the Self-Governing Yukon First Nations (1993) encompasses three categories of settlement land. In lands of Category A, each Yukon First Nation has surface and sub-surface rights to land and keeps Aboriginal rights, titles and interests in these lands. In Category B designation, the Yukon First Nations own the surface rights but not the sub-surface rights, and still maintain Aboriginal rights, title and interests in these lands. The third category is fee simple ownership, whereby they have complete ownership of the land’s surface but do not have Aboriginal rights, titles and interests.12 The government has a duty to consult and accommodate Indigenous interests wherever Indigenous title remains unproven but is reasonably presumed to exist. Canadian courts have repeatedly weighed in on whether these duties have been adequately met (Wilson-Raybould, 2014, p. 500[13]). The federal, the provincial and territorial governments and third parties must meet this standard of consultation, which applies to the reserves and the traditional territories.
Recognition of Aboriginal title in different treaties and government policies is not a settled issue. In the specific claims process, there is opportunity to correct previous land allocations that may be perceived as unjust or whose implementation may have been incomplete. Many Indigenous groups are undertaking treaty negotiations for the first time. For others, while reserves do not fully represent their territory, a treaty that grants rights to land but imposes the extinguishment of the remaining Indigenous title would not be acceptable. In September 2019, a new policy for treaty negotiation was endorsed in British Columbia, recognising the legal and constitutional nature of indigenous title and rejecting extinguishment (Box 3.4). In all, the Government of Canada and Indigenous groups face a difficult, politically charged task when allocating land rights and defining their boundaries.
Deriving wealth from land: opportunities for community economic development
Indigenous peoples must be at a position to derive wealth from their land and natural resources should they so choose, as public and private actors everywhere do. Across OECD countries, land and buildings constitute by far the most important share of wealth, making up 86% of total capital stock (roughly evenly split between land and property), with a corresponding value of USD 249 trillion (OECD, 2017[14]). For Indigenous peoples, the value of land may be more difficult to assess, because of the challenges of measuring the social and cultural aspects of land. Even then, this demonstrates the importance of land as a basis for community development and cultural reproduction. When Indigenous peoples can manage land, it means they can use, protect and develop it according to their own objectives: such is the definition of governance. In short, governance of land use holds the promise of Indigenous-led socioeconomic development.
Opportunities for community development vary according to the land base and the defined land rights regime, as well as by location, proximity to service centres, population size, resource endowment and institutional capacity. A small land base implies lower levels of wealth and restricted ability to host firms, infrastructure projects and housing. Larger places are able to host more firms, which leads to a greater variety of business types and potential for competition among forms in the same type of business, both for sales and workers. However, as discussed above, Indigenous lands in Canada tend to be small and fragmented. Reserve lands located in or close to cities have higher value and in such cases, even small reserves may be able to leverage these assets for community economic development.
The land rights regime determines different levels of competencies for land management and project development. These in turn translate into different degrees of autonomy and institutional capacity. For instance, in reserves under the Indian Act, the government is responsible for land management, but if the band council opts for First Nations Land Management (under the Framework Agreement on First Nation Land Management and the First Nations Land Management Act), there is a significant increase in the level of responsibilities and competences. Indigenous groups who signed modern treaties granting them full ownership rights over land also hold full responsibility for land use governance, as is the case with Nunavut, for instance.
Opportunities for community economic development and Indigenous entrepreneurship more broadly are linked to a community’s size and accessibility. Remote communities have smaller labour markets. While reserves tend to have small populations, many members of Indigenous nations live off-reserves for jobs, educational opportunities or better housing offer. The relationships between these groups can be a real asset. Strong relations between community members living on and off reserve can help to broaden business opportunities, link to larger markets and may also boost on reserve incomes through remittances. These relationships differ across First Nations and may be reinforced in cases where off reserve members maintain voting rights for band leadership.
Location is an important factor. Small communities in close proximity to larger places or with a specific and highly valuable resource endowment have considerably greater opportunities than do small isolated communities. Those closer to cities have access to a larger market and tend to have more services-oriented businesses. In contrast, small isolated communities have more limited economic development options; for such places, natural resources endowments are key, for example, fish stocks, minerals or a high value tourist amenity. Resource extraction and its subsequent export provides employment and income both for local people and for other workers who migrate to the community. Larger communities are less reliant on their natural resource endowments, since their economies are driven by manufacturing, trade and the provision of services, both to the local population and through exports. The OECD has developed a typology for Indigenous economic development in rural areas (Box 3.3).
Box 3.3. Typology for Indigenous economic development in rural areas
The OECD’s work on regional development policy has long emphasised a geographical lens on economic development. The more people inhabit a place, the more its character will be defined by second-nature geography – by human beings and their activities. Where settlement is sparse, first-nature geography inevitably dominates – less human settlement and activity necessarily implies a larger role for natural factors, such as the climate or landforms, in shaping economic opportunities. The following typology of economic development in rural areas outlines for ideal types:
1. Remote Indigenous communities with abundant natural resources and amenities – these places are longer than a 60 minute drive from a population centre of 50 000 people or more, and have opportunities for commercial development related to minerals, hydrocarbons, renewable energy, fishing and aquaculture, food production, and nature based tourism. A key issue for these communities will be how to invest own-source revenues in ways that support economic value adding and diversification, and building/attracting the necessary skills to support business growth, while promoting the sustainable management of resources for future generations.
2. Remote Indigenous communities where natural resources and amenities are limited or absent – these places lack natural resources available for commercial use, and economic development is limited to the internal market and some tourist opportunities (e.g. handicrafts). In these places government transfers, subsistence hunting and fishing, and local bartering and sharing through partnerships or service agreements with neighbouring communities and/or other Indigenous groups will play a greater role in supporting community well-being. A key issue for these communities will be ensuring access to public services that offer a sufficient quality of life to retain younger people.
3. Indigenous communities close to cities abundant natural resources and amenities – these places are within a 60-minute drive of a population centre of 50 000 people or more with sufficient land and resources available to develop commercial opportunities related to renewable energy, food production, and tourism. A key issue for these communities will be integrating with the wider urban/regional economy and governance arrangements to maximise the benefit of their resource base.
4. Indigenous communities close to cities where natural resources and amenities are limited or absent – these places are close to cities but do not have sufficient land size or the natural resources that enable commercial scale development opportunities. However, even land parcels are small, this may still present opportunities for retail and industrial land development, and collaboration with local municipalities on planning and infrastructure is important to activating these opportunities.
Source: OECD (2019[15]), Linking Indigenous Communities with Regional Development, https://dx.doi.org/10.1787/3203c082-en.
Indigenous communities have different starting points to derive wealth from land depending on their location and resource endowment. These factors are not controlled by them; that is, it something they either have or not. Yet, sound land and water management and land use planning can strengthen the initial position of Indigenous communities. Furthermore, adequate consultation and negotiation instruments in the context of sub-surface resources exploitation can put Indigenous peoples in a position to derive benefits and to influence the direction of development.
Evolving treaty rights and expanding reserve land
A sufficient base of usable land is a necessary condition for economic opportunities in Indigenous communities (AANDC, 2013[8]). A poor land base, either because of small size, lack of utility, remoteness, due to underservicing in terms of infrastructure or environmental degradation caused by flooding or nearby development means fewer assets to leverage in development efforts. Historically, Indigenous peoples’ land has been diminished in Canada due to dispossession and alienation. However, in the past 50 years there have been growing efforts to (if partially) recover and strengthen this land base.
The most secure and effective way to augment the Indigenous land base is through tenure recognition. Formal title is associated with greater preservation of the cultural and linguistic diversity of Indigenous peoples (Oxfam/International Land Coalition/Rights and Resources Initiative, 2016[16]). Tenure security is positively associated with improved economic outcomes (Aragón, 2015[17]). Canadian research demonstrates that formal property rights in the form of modern treaties reduce transaction costs, increase resource extraction on Indigenous lands and are associated with higher local income (Aragón, 2015[17]). The results are driven by an increase in wages and employment income, as opposed to other changes associated with treaties such as financial compensation or expansion of the public sector.13
Better property rights regimes may facilitate contracts but are not a sufficient condition for development. They still require the existence of economic opportunities. The starting conditions in reserves may not be conducive to development, for instance, when reserves are located in remote rural areas, with few business opportunities and low levels of human capital. Besides markets, supportive institutions are needed to amplify the gains from formalisation, including Indigenous practices and community governance structures (Baxter and Trebilcock, 2009[18]).
Indigenous groups can obtain land through different mechanisms:
1. Modern Treaty;
2. Purchase in the free market or with preference from the State; or,
3. Via state-sponsored policies of facilitated acquisition (2016 Additions to Reserve / Reserve Creation Policy Directive).
This section investigates how these mechanisms work in Canada, bringing the experience of other countries and offering suggestions for reform. A mechanism will be more or less pertinent depending on the land rights regime adopted by the Indigenous group and on provincial regulations applicable in the area.
Modern treaty-making
Treaties are a particular type of agreement that must contain:
Recognition of the Indigenous group as a 'distinct political community', rather than a minority group within the existing state.
Negotiation of the terms of the agreement that are fair and undertaken in good faith.
Inclusion of responsibilities and obligations for the parties, to bind them in an ongoing relationship (Petrie, 2018[19]).
Treaties often recognise land rights, although it is not mandatory that they do so. It is an important element because a group’s territory is closely linked with their collective identity and holds potential for development opportunities. As discussed earlier in the Chapter, historic treaties have made First Nations bands the collective proprietor of reserve lands, whereas some modern treaties create categories of lands with different types of rights and interests. A few modern treaties confer right to land without extinguishment of Aboriginal title. Treaties are thus a fundamental mechanism of recognition of formal title to land.
Treaty negotiations are both a historical and an ongoing process. Between 1701 and 1923, the Government of Canada signed agreements with Indigenous communities. These are called historic treaties. Nevertheless, when the State has not fulfilled obligations or satisfactorily implemented treaties, Indigenous groups may pursue judicial claims or negotiate specific land claims. Furthermore, many Indigenous groups are still undertaking treaty negotiations for the first time, which demonstrates how much this issue lies unresolved. These are called modern treaties and have been signed since 1973. They may include comprehensive land claims and self-government agreements. Lastly, it is worth noting that some Indigenous groups prefer not to engage in negotiation processes because doing so would demand an extinguishment of Aboriginal title.
Comprehensive Land Claims Policy—the modern treaty process
The Government of Canada adopted the Comprehensive Land Claims Policy in 1973 and updated it in 1986. It allows Indigenous groups, the Government of Canada and the appropriate Territory or Province to negotiate agreements, also called modern treaties. An agreement can refer to: transfers of land ownership; land, water, heritage, environment and wildlife management; financial compensation; a self-government agreement (since 1995); an economic development strategy; and sharing of resource revenue. Since 1973, 26 comprehensive land claims have been signed and are in effect, whereas at least other 56 are being negotiated as of November of 2018. Examples of treaties under negotiation are: Innu Nation Claim (Newfoundland and Labrador); Atikamekw Nation Council Comprehensive Land and Self-Government Claims (Quebec); Algonquins of Ontario (Ontario); and Inuit Transboundary Negotiations in Northern Manitoba (Manitoba).
The Inherent Right Policy of 1995 solidified the recognition of Indigenous peoples’ right to self-government. According to this policy, Indigenous peoples of Canada “have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.” (FMB, 2018[20]). Self-government provisions can compose modern treaties or constitute a stand-alone agreement, accompanied by sectoral dispositions on health, education or other policy sector.
All land claims and comprehensive land claim agreements are constitutionally protected under Section 35. They cannot be amended or abrogated without the consent of all signatories. Sectoral agreements and stand-alone self-government agreements are not constitutionally protected, except the Délįnę Final Self-Government Agreement, which builds upon the Sahtu Dene and Métis Comprehensive Land Claim Agreement of 1994. Currently there are about 50 self-government negotiation tables across the country, at various stages of the process. Many of those are being addressed in conjunction with modern treaties.14
Canada has concluded 32 modern agreements with aggregations of Inuit, Métis and First Nations, between comprehensive, stand-alone and sectoral self-government agreements (FMB, 2018[20]) (Table 3.2). Since 2015 federal officials have been engaging in conversations with Indigenous groups, both within treaty negotiation processes and those outside treaty negotiations to address their rights, interests, and needs. These conversations, termed “Recognition of Indigenous Rights and Self-Determination discussions”, seek to better respond to the needs and priorities identified by communities and focus on closing socio-economic gaps between Indigenous and non-Indigenous Canadians and advancing greater self-determination. Since 2015, Canada has signed 64 preliminary type agreements with Indigenous groups and are currently negotiating at 87 RIRSD tables.
Table 3.2. Modern agreements concluded (2018)
Sources: AANDC (2010[21]), The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self‑Government, https://www.aadnc‑aandc.gc.ca/eng/1100100031843/1100100031844 (accessed on 12 December 2018). ; FMB (2018[20]), First Nations Governance Project - Phase 1, https://fnfmb.com/sites/default/files/2018-09/2018_FN-Governance_Project_phase1-low-res_update.pdf (accessed on 29 November 2018).
The Government of Canada and some provinces have attempted reforms to streamline treaty negotiations. While the treaty-making process is cumbersome and slow, it remains fundamental to advancing the reconciliation agenda. In British Columbia there has been a history of advancements that recently culminated in the principle of “no extinguishment” in treaty negotiations (Box 3.4). This built on previous efforts in British Columbia such as the Common Table Report (2008[22]) and the Lornie Report (2011[23]).
A 2018 report of the Standing Committee on Indigenous and Northern Affairs of Canada’s House of Commons argued that, in its current form, the government’s policies and processes serve to prevent Indigenous communities from achieving a fair resolution of their claims (Mihychuk, 2018[24]). Thus, despite the aforementioned efforts in British Columbia and elsewhere, revisions to strengthen the treaty negotiation process have been slow going and much remains to be done.15
As of the end of 2018, the government of Canada is undertaking discussions with Indigenous communities and organisations on the creation of a new “rights recognition” legislative framework that would give effect to UNDRIP articles related to self-determination, self-government and models of governance (FMB, 2018[20]). This may provide further impetus for long-needed reforms. In support of these efforts, the Government of Canada should consider:
Ending the practice of requiring that Indigenous rights holders extinguish their inherent and/or treaty rights as a prerequisite for an agreement.16
Supporting Indigenous groups with the capacity to effectively undertake negotiations.
Develop an independent and ongoing monitoring mechanisms in order to ensure that the commitments made by the Government of Canada in comprehensive land claim agreements are met in a timely and effective manner.
Ensure that those negotiating land claims agreements from the government’s side have high-level decision-making authority (e.g., Ministerial authority).
Continue adopting mediation and other alternative dispute resolution mechanisms, where appropriate.17
Fulfilment and implementation of historic treaties
First Nations may seek the fulfilment and implementation of historic treaties. For instance, a historic treaty may have promised a certain amount of land to a First Nation, but the Nation received less of it. In such instances, First Nations can make a claim to the government to receive the land that was promised or to obtain appropriate compensation, if it is not possible to get the land back. Another example relates to when the government handles money on behalf of the First Nation, but the Nation deems irregularities in the process. In such instances, the First Nation can again make a claim to assess the extent of the irregularity and potentially receive compensation for it. This section discusses the fulfilment and implementation of historic treaties through two policies adopted by the government: Specific Claims and Treaty Land Entitlement (TLE).
Box 3.4. Engagement for improved treaty negotiations in British Columbia
With the exception of the Douglas treaties and the extension of Treaty 8 in the northeast of the province, no pre-1975 treaties were signed in British Columbia. In 1990, the British Columbia Claims Task Force was created to recommend how Canada, British Columbia, and First Nations in British Columbia could negotiate treaties. The Task Force completed its report in 1991, and Canada, British Columbia, and the First Nations Summit accepted all of its 19 recommendations. These included the establishment of the British Columbia Treaty Commission and the creation of the made-in-British Columbia treaty negotiations process.
Since then, Canada, the First Nations Summit and the Province of British Columbia – the Principals – have been working collaboratively to strengthen and improve treaty negotiations, advance reconciliation and make progress on concluding agreements in the province.
In 2015, the Principals– agreed to establish a multilateral engagement process to improve and expedite treaty negotiations in British Columbia. The Principals acknowledged the need to employ greater flexibility to reach treaties by supporting constitutionally protected core agreements with side agreements, sectorial treaties and condensed Agreements-in-Principle. It also recognised that the funding process should be more transparent, with greater accountability. Dedicated funding and best practices guidance are needed to address territorial overlaps among First Nations.
In 2019, the Principals of the BC treaty negotiations process endorsed an important new policy, the Recognition and Reconciliation of Rights Policy for Treaty Negotiations in British Columbia. Co-developed by Canada, British Columbia, and the First Nations Summit, the policy makes it clear that negotiations will be based on the recognition of the inherent rights of Indigenous peoples. The new policy is unequivocal in rejecting extinguishment of existing Aboriginal rights and title, and directs that treaties not require full and final settlement and are capable of evolution. This brings the federal and provincial policies in-line with the original spirit and intent of the treaty negotiations process. The policy also acknowledges that negotiations must be based in good faith, the honour of the Crown, and will respect the United Nations Declaration on the Rights of Indigenous Peoples.
Sources: AANDC (2016[25]), Multilateral Engagement Process to Improve and Expedite Treaty Negotiations in British Columbia Proposals for the Principals’ Consideration, http://www.cio.gov.bc.ca/cio/intellectualproperty/index.page (accessed on 30 November 2018); Global Newswire (2019[26]), “Canada, British Columbia, and First Nations Summit endorse new negotiating policy: Indigenous rights recognition and no extinguishment”, https://www.globenewswire.com/news-release/2019/09/06/1912375/0/en/Canada-British-Columbia-and-First-Nations-Summit-endorse-new-negotiating-policy-Indigenous-rights-recognition-and-no-extinguishment.html; Government of Canada (2019[27]), The Recognition and Reconciliation of Rights Policy for Treaty Negotiations in British Columbia, https://www.canada.ca/en/crown-indigenous-relations-northern-affairs/news/2019/09/the-recognition-and-reconciliation-of-rights-policy-for-treaty-negotiations-in-british-columbia.html.
Specific Claims Policy—a mechanism to settle disputes related to land and other claims
Specific claims deal with past wrongs against First Nations, in relation to historic treaties. They are a voluntary process to settle disputes through negotiation, outside the judicial system.18 The principles and process are established in the Specific Claims Policy, which was created in 1982 and significantly amended in 1990 and 2007. The goal of this process is to discharge the Federal Governments lawful obligations related to the administration of land and other First Nation assets and to the fulfilment of Indian treaties, though the treaties themselves are not open to renegotiation.
Not all specific claims are land-related, but many are. They can enable the administration of land and other assets or the fulfilment of First Nations treaties. For example, a specific claim could concern the insufficient provision of reserve land as promised in a treaty or the improper handling of First Nation money by the federal government in the past.
The Government of Canada has negotiated 464 specific claims as of March 2018. Hundreds are outstanding, including: 249 claims accepted for negotiation, 68 claims that lie before the Specific Claims Tribunal and 160 claims that are under assessment. Specific claims settlements successfully generated opportunities for development in some Indigenous communities (Box 3.5).
Box 3.5. Claim settlements and their outcomes: examples from across Canada
Claims negotiations are large undertakings and can take years to be realised. The following examples illustrate how some claims have been settled and their outcomes for community economic development.
The Onion Lake Cree Nation: In 1994, the Onion Lake Cree Nation and the Government of Canada successfully negotiated a Treaty Land Entitlement Specific Claim. Monetary compensation of approximately USD 30 million translated into joint ventures with private energy partners and allowed exploration and development on about 140 000 acres of existing and new treaty land.
Keeseekoowenin First Nation: The reserve land at Clear Lake was taken away by the government in 1935 for the creation of the Riding Mountain National Park, without the consent of the community. The door to a negotiated settlement opened in 1991, when the federal government recognised that the park boundaries should not have included the reserve. By 2005, Canada and the First Nation had reached a settlement on two claims: all 435 hectares of the former reserve land at Clear Lake were returned to the First Nation, and they also received approximately $ 12 million in compensation. The claim settlement paved the way for the First Nation and Parks Canada to begin to rebuild their relationship and to work together.
Abenaki Nation: The Abenaki Nation was established on two reserves, Odanak and Wôlinak, located on the South shore of the St. Lawrence River, and a third reserve, Crespieul, 400km away. In the end of the 19th century, timber was being illegally pillaged from this reserve. The government’s response was to surrender the land for auction. In 1996, under Canada's Specific Claim Policy, the Abenaki Nation filed a request aiming to obtain compensation for the government having authorised the surrender of lands, in what characterised a breach of its fiduciary obligations. In 2007, after 4 years of negotiations, the two parties agreed that the Abenakis would permanently give up their rights to the Crespieul territory, in exchange for a net compensation of 4.5 million dollars. The agreement was ratified after a referendum submitted to community members.
Source: Crown-Indigenous Relations and Northern Affairs Canada (2015[28]), Success Stories: Acts, Agreements and Land Claims, https://www.rcaanc-cirnac.gc.ca/eng/1306932724555/1539953769195 (accessed on 11 December 2018).
There have been growing calls for the reform for the Specific Claims Policy over the years. The 1990 Oka/Kahnesatake crisis galvanised a need for action and a newly independent Indian Specific Claims Commission (ISCC) was created in 1991 with a renewed focus on mediation and improving processes for First Nations claims (Indian Claims Commission, 2009[29]). The ISCC was replaced in 2009 by a permanent, independent adjudicative body staffed by Superior Court Judges—the Specific Claims Tribunal. The new Tribunal was established by the Specific Claims Action Plan which included the creation of a dedicated fund of $250 million per year for ten years for the resolution of specific claims.
There have been ongoing discussions on how to strengthen and improve the Specific Claims Policy in recent years (AANDC, 2013[30]) (Mihychuk, 2018[24]). While recognising the many improvements that have been made, further actions to strengthen the Specific Claims Policy are needed. These include:
Expanding the eligibility criteria to include claims based on the non-fulfilment of treaty rights.
Enhancing the system of monitoring and reporting on claims at all stages of the claims process.
Facilitating research and knowledge sharing among First Nations in order to help them assess the basis and the value of their specific claims.
Developing an independent office and reporting framework to monitor how commitments made by the Government of Canada in specific claim agreements are being implemented.
Box 3.6. Violent clashes and Indigenous land rights: The 1990 ‘Oka crisis,’ Quebec
Having been successively disposed of their traditional lands over a number of decades by the settler community, a group of Mohawk First Nations took a stand in 1990 against a court ruling that permitted the expansion of a golf course over their lands in Oka, Quebec. This protest and blockade of the area ended in a violent confrontation between a group of Mohawk and local activists and Canadian military and Quebec police forces. One Mohawk elder and one Quebec policy officer were killed and many were injured. It was a definitive low point in Indigenous-settler relations and it highlighted the failure of Canada’s legal system to adequately address Indigenous rights and concerns. The Oka Crisis played an important role in the establishment of the Royal Commission on Aboriginal Peoples.
The protest ended through negotiations between the Mohawk protestors and the Quebec provincial government and Canadian federal government. The Canadian Federal government ended up purchasing the land and cancelling the planned expansion. Additional plots of land were purchased by the Canadian government in 2001 (Government of Canada, 2019[31]). This land is set aside for the use and benefit of the Mohawks of Kanesatake as lands reserved for the Indians within the meaning of paragraph 24 of section 91 of the Constitution Act, 1867 but not as a reserve within the meaning of the Indian Act (Government of Canada, 2019[31]).
Sources: Government of Canada (2019[31]), Kanesatake Interim Land Base Governance Act, https://laws-lois.justice.gc.ca/eng/acts/K-0.5/index.html (accessed on 25 March 2019); Canada History (2019[32]), Oka, http://www.canadahistory.com/sections/eras/pcs%20in%20power/Oka.html (accessed on 25 March 2019); York, G. and L. Pindera (1991[33]), People of the Pines: The Warriors and the Legacy of Oka, https://books.google.fr/books/about/People_of_the_Pines.html?id=7M51AAAAMAAJ&redir_esc=y (accessed on 4 September 2018).
Treaty Land Entitlement (TLE)—rectifying historical dispossession
A First Nation may file a Treaty Land Entitlement Claim with the Government of Canada when they did not receive all the land specified in their historic treaty. The Government of Canada negotiates with the First Nation, typically with the involvement of the provincial government, to provide the promised amount of reserve land. Once an agreement is reached, the First Nation has two options to pursue land acquisition: buy it in the market from willing sellers, or select from a sample of unoccupied Crown land. Once the land is acquired, the First Nation may submit a proposal of conversion to reserve status, under the Additions to Reserve process. Figure 3.2 summarises this process.
Figure 3.2. The Treaty Land Entitlement Process
As of 2016, 90% of the agreements had been reached in the provinces of Manitoba and Saskatchewan.19 In 1997, 21 Manitoba First Nations signed a TLE Framework Agreement with the federal and the provincial governments. Since then, other 8 Manitoba First Nations have entered into individual settlements. The Government of Canada committed to pay $190 million for land purchases and processing costs, whereas Manitoba would provide 1.2 million acres of unoccupied Crown land. The balance will be acquired from willing private landowners.
In Saskatchewan, a similar negotiation process took place. In 1992, 25 First Nations in signed a TLE Framework Agreement, under which the provincial and federal governments would provide $440 million over 12 years to buy land, mineral rights and improvements, including buildings and structures affixed to the land. These First Nations may purchase federal, provincial or private land anywhere in Saskatchewan, from willing sellers. As of 2016, 23 out of the original 25 First Nations had acquired the minimum amount of land required to be set apart as reserve.20 No mechanism of selection of unoccupied Crown land has been set up.
The responsibilities of the provincial government differ in each framework agreement. In Manitoba, the province supplies unoccupied Crown land previously selected by the First Nation. In Saskatchewan, the province provides funds for the acquisition of land, and may willingly sell land to the First Nations, if they are willing to buy. In both cases, the province gets to review the selected lands and ensure that provincial interests are addressed prior to achieving reserve status. In the TLE Agreements there is variety of matters that affect provincial interests, such as land and mineral acquisitions, water and roadway matters and the resolution of third- party and utility interests.21
First Nations can and should be strategic about land acquisition. Considering that TLE agreements typically confer a 10- or 20-year period to carry out land purchases, they can benefit from this time lag to make strategic purchases that reflect a unified vision for the future of the Nation. In this sense, some communities have elaborated land acquisition plans, in alignment with their community development plans. Environment Site Assessments are also conducted to determine the environmental condition of the proposed reserve land to ensure there is no contamination. The land would need to be remediated to the applicable environmental standard before reserve creation can be approved.
To illustrate the point of strategic land acquisition, in 2012 the Peguis First Nation in Manitoba created an advisory committee of land selection and acquisition. The committee seeks to acquire lands that can provide sound economic and cultural opportunities and contribute to the long term of well-being of community members. They have elaborated a strategic framework, observing the provisions set out in the community comprehensive plan, according to which land selection must never be separated from the process and outcomes of community development.22
Beyond addressing historical injustices, the process of Treaty Land Entitlement provides an opportunity for First Nations to pursue community development. As already discussed, land acquisition can function as the basis for housing, energy, infrastructure and other economic development projects which may have long-lasting positive outcomes for the community.
The example of the Muskeg Lake Cree Nation in Saskatchewan is illustrative. They filed one of the earliest TLE claims, being awarded 48 640 acres of land in 1983. Among others, the Nation selected 35 acres of unoccupied Crown land in a suburb of Saskatoon, which then became the first urban reserve in Canada specifically created to house a First Nations economic development project. The Band formed an economic development corporation, called Aspen Developments, to pursue collective development on the selected land and to provide funding to community members for business endeavours. A commercial centre was created and today it hosts 40 businesses, among retail outlets, medical, insurance and legal offices, employing over 300 people. The Nation charges property and sales tax akin to what would have been paid on non-reserve property. This demonstrates how the recognition of land rights has catapulted Band-led, community-oriented development in an urban area.
Successive reports by the Office of the Auditor General of Canada have recommended improvements to the Treaty Land Entitlements process (Office of the Auditor General of Canada, 2009[34]) (Office of the Auditor General of Canada, 2005[35]). While the Government of Canada has attempted reforms to mechanisms such as Additions to Reserve Process, the TLE remains to be tackled. To this end, the Government of Canada should:
Develop and implement a plan clarifying the explicit steps to process outstanding selections and to meet commitments to reduce the processing time for treaty land entitlement selections from initial Band Council Resolution to conversion to reserve status.
Track the overall time it takes to convert lands to reserve status and demonstrate progress periodically—report publicly and include in departmental performance indicators.
Organise the land selection files with the documentation necessary to facilitate conversion to reserve status.
Work closely with First Nations to assist them in their efforts to resolve third-party interests.
Continue working with First Nations through regular work planning sessions to develop an action plan for selections, which include setting up timelines and a strategy for conversions to reserve status, as well as providing ongoing support for them to meet their obligations.
Land Acquisition
The Royal Commission on Aboriginal Peoples (RCAP) recommends a large scale reallocation of lands by rational criteria, that would result in a significant expansion of lands “wholly owned and controlled” by First Nations, as well as a “share in the jurisdiction and benefit from a further portion of their traditional lands” (Taiaiake Alfred, 2009[36]). Land acquisition is an instrument to expand the land base, which, as discussed above, is important to overcome the limited land base of Indigenous peoples in Canada since European arrival. Outside of modern treaty-making, expansion of the land base can be undertaken through purchases in the free market, additions to reserve, facilitated acquisition via state-sponsored purchases, or priority in the purchase of state-owned lands.
Through land acquisition, Indigenous groups can purse their own path of development. It may include developing infrastructure or energy projects, creating economic zones, investing in residential property or establishing nature conservation areas. This provides greater certainty for individuals to invest in productive activities on land themselves. It is thus a stimulus for band-led investment as well as private investment. Depending on the location, the new land can forge linkages with band members living in urban areas, or create another cluster of members outside original reserve land. These linkages may be of economic nature but also social or cultural. It may also be that land acquisition raises awareness about the Indigenous group, for instance if the land is located in an urban centre or due to its location has visibility. Showing their presence across the territory, beyond the reserve, can also change the stigma still associated with Indigenous reserves as no-go zones. This land may become part of a functional fabric, having ecological functions and possibly economic ties.
Market value land acquisition
Band councils can purchase freehold (fee simple) land in the market and hold it collectively in their name. Financial resources are a pre-condition: purchases done at the market follow market prices and, depending on the location and size of land, prices may be high. Indigenous groups that have been somewhat economically successful and count with significant own-source revenues tend to resort to this option more often than those who have not. The Millbrook First Nation of Nova Scotia, for instance, has acquired 1 500 acres of fee simple land – as large as their reserve land. This land, which includes property in Halifax, the capital city of Nova Scotia, has been developed for productive purposes such as commercial and residential. This asset base generates revenues to the First Nation, which can then be reverted into the general budget, paying for social services, infrastructure and community development projects. Moreover, bands can lease out the land for third parties, generating revenue flows to the community while building up a solid asset base.
As shown in the example above, a regime in which inalienable reserve land coexists with ordinary freehold land can be positive. While ensuring that core land remains in the community, other land can be used as collateral for credit and to develop economic activities. Bands have some options towards more fruitful land acquisitions at market value:
Develop a land acquisition strategy and align it with the community comprehensive plan, in order that land acquisitions achieve community goals and enhance the collective well-being.
Convert the acquired land to reserve status via the Additions to Reserve process.
Lease out land: without special status, through simple lease in the market, or, with reserve status, through the land designation process.
State-assisted land acquisition
The options for state-assisted land acquisition in Canada are limited. Through the Treaty Land Entitlement (TLE) process, First Nations can select unoccupied Crown land or receive funds to acquire land, in the context of previously unfulfilled treaty obligations. This instrument is thus restricted to cases where historic treaties had not been duly implemented. When a modern land claim is settled through a Comprehensive Land Claim, the Government of Canada typically grants monetary funds and lands the signatory Indigenous group. Here, as in the TLE process, land acquisition takes place because the government has to meet treaty obligations, the difference being that in the case of comprehensive claims they are new.
The Government of Canada could assist the acquisition of land by Indigenous peoples outside the context of treaty making. In New Zealand, for instance, the Crown gives priority in the purchase of Crown land to Indigenous tribes, whenever the Crown is willing to sell. This policy is called Right to First Refusal. Tribes list Crown-owned land of their interest and, if a Crown agency wishes to dispose of land contained in this list, they are obliged to give preference to the tribe.23 The property is acquired at market price, as freehold title.
One caveat of the Right to First Refusal policy is the short time span of 20 days between the formal offer of land and the decision to acquire it. To circumvent this caveat, the Government of New Zealand designed an online portal, the Crown Property Disposals Portal. This portal allows tribes to access detailed information about properties as soon as they enter the disposals process, including maps and locations, land area, covenants and photos. This way, tribes obtain complete information up to 18 months sooner than the formal offer is made. With this extra time, they are better positioned to decide about buying a property or not. Furthermore, the Portal allows tribes to respond to Right of First Refusal offers online, rather than by post, making the process easier.24
In Australia, the government has a policy of land acquisition, executed by the Indigenous Land and Sea Corporation. The ILSC, as an independent government statutory authority, acquires land that would not otherwise be available to Indigenous peoples and subsequently diverts it to Indigenous organisations. Since 1995, the ILSC has acquired 246 properties, of which 170 have been divested, adding 5.8 million hectares to the estate of Indigenous peoples in Australia. Increasing Indigenous people’s access to land is rightfully regarded as a key mechanism to engender economic social, cultural and environmental benefits in their favour.25
In light of this analysis, the Government of Canada could strengthen the State-assisted land acquisition process by:
Undertaking a national audit of surplus government land to identify opportunities for set asides.
Together with provinces, establishing a portfolio of land to be made available for future land claim settlements.
Establishing a shared national/provincial programme of land purchase.
Setting up an authority to manage this portfolio of available land and this programme of land purchase, with a mandate to transfer land directly to First Nations and to support them in their own land acquisitions, as the Australian Indigenous Land Corporation does.
Working together with First Nations to address third-party interests which may delay the transfer of land, possibly via the National Additions to Reserve Advisory Committee, which already has this competence, albeit limited to the Additions to Reserve process.
Operationalising the preferential acquisition of government land to First Nations, as in the New Zealand Right to First Refusal policy.
Developing an online portal with information about government land to be disposed of and with information about the possibility of preferential acquisition by First Nations, as in the New Zealand Crown Property Disposals Portal.
Additions to reserve
The federal policy of Additions to Reserve (ATR), created in 1972, is an instrument to confer reserve status to land owned by an Indigenous group. It allows conversion of status from freehold land to reserve land for Indigenous groups under the authority of the Indian Act. It does not serve for acquisition or negotiation of land per se. It takes place when:
The government is legally obliged or committed to contemplate reserve creation;
A tribunal decision conferred compensation that can be used for land acquisition; or
A First Nation needs additional reserve land for community purposes, such as to accommodate community growth, protect culturally significant sites or promote economic development.
The process starts when a band submits a proposal to the government, identifying the land parcels to be converted and, where they have not yet been acquired, manifesting the intention to do so. The government assesses the proposal according to its cost-effectiveness, level of environment protection, third-party interests and public access concerns. Once the government approves it, the conversion of purchased land takes place (PRA, 2016[7]). Addition may be either urban or rural and can be contiguous or non-contiguous. The First Nation may decide whether they want to create a new reserve or add the land to an existing reserve. The additional land is managed under the Indian Act, or can be brought under Land Code for those First Nations participating in the First Nation Land Management regime.
Since 2006, Canada has approved 981 additions, adding more than 1 million acres of land to reserve.26 Approximately 1 300 files are currently active, which, once approved, would add an additional 1.3 million acres of reserve land for Canada’s First Nations.27 Additional files are anticipated as new agreements are being negotiated and existing agreements are fulfilled.
Additions to Reserve can bring significant economic and fiscal benefits. It allows bands to pursue community development goals, to support business creation and to collect property and sales tax. An urban location can generate more benefits, as it is more conducive to business purposes and in general urban land tends to be more valuable. Therefore, it can be strategic for tribes to acquire land in urban areas and do so even if it is a non-contiguous addition. There is a growing interest in the creation of satellite urban reserves through the ATR policy (NAEDB, 2014[37]).
Nonetheless, to some First Nations it is difficult to afford land in the proximity of urban areas, which tends to be more expensive (NAEDB, 2014[37]). Indeed, between 2006 and 2018, of the 981 approved processes, 866 were for rural reserves and 115 for urban ones. Figure 3.3 shows this variance across fiscal years.
Figure 3.3. Urban and rural approved ATRs (2006-2018)
Source: Data obtained from Crown-Indigenous Relations and Northern Affairs Canada via personal e-mail communication.
Besides the variation between urban and rural ATRs, there is also significant variation across regions (Figure 3.4). Out of 979 approved ATR submissions between 2006 and 2018, the vast majority has taken place in Saskatchewan and Manitoba (554 and 226, respectively). In Yukon and the Northwest Territories, very few were concluded, only 1 and 2, respectively – for reasons which are explained further below.
Figure 3.4. Approved ATRs by regions (2006-2018)
Source: Data obtained from Crown-Indigenous Relations and Northern Affairs Canada via personal e-mail communication.
This variation can be explained by two factors. For one, according to information obtained with the government, the majority of ATRs was approved under Treaty Land Entitlement processes (736), against 224 that are detached from any TLE process. As only the provinces of Saskatchewan and Manitoba have established TLE Framework Agreements with the government, they are responsible for 90% of all TLE processes in Canada. It is thus logical that most ATRs are approved in these two provinces, most probably attached to a TLE claim. Secondly, the negotiation of modern treaties in Yukon and Northwest Territories has granted extensive ownership rights to settlement land, which ultimately renders the ATR process unnecessary. In Yukon, 11 of the 14 First Nations have Final Agreements, with ownership of and decision-making powers on settlement land.
Lastly, it is worth noting that not all First Nations welcome this policy. During the OECD’s study missions and workshops, some First Nations indicated that they would prefer to engage in treaty negotiations to extend their rights to traditional territories, rather than pursuing an ATR process, which is limited to the creation of reserve land. That is to say, an ATR claim could be mistaken by an implicit recognition that the reserve land corresponds to the territory of a First Nation, whereas in fact the traditional territory is claimed over much larger tracts of land. This is a complex point because it refers to how Indigenous groups interpret government policies and draw strategies of action from them. It does not mean that all groups share this view, or that the ATR policy denies the notion of traditional territory, both of which are not true. It means that, for rhetorical and political purposes, some Indigenous groups may prefer to refuse taking part in ATR process and to focus on obtaining recognition of their traditional territory.
First Nations have often regarded the ATR process as lengthy and opaque. Government’s approval can take years, especially because third-party interests and public access concerns have to be extensively evaluated and accommodated. For example, a study on urban ATRs conducted by the National Aboriginal Economic Development Board finds that the average length of time to complete an urban ATR is 4.2 years compared to the six months to a year required for a municipal council to approve a boundary extension (NAEDB, 2015[38]). Considering that the process is similar for land obtained after a Treaty Land Entitlement and given the level of scrutiny in the TLE process, the conversion of land into reserve status should be streamlined. Yet it has been reported that it takes an average of eight years in Manitoba alone (Mihychuk, 2018[24]).
In 2016, after a round of consultations, the Government of Canada issued a policy directive to improve the ATR process in general (AANDC, 2016[39]). The directive instructs that interests be assessed collaboratively, bringing together municipal governments, the band council and other Indigenous groups and third parties. It has also made the land selection area more flexible. Importantly, the directive allows “community addition” of land for economic development purposes, which may enable investment in economic interests (AANDC, 2016[39]). Through this collaborative approach, the government intends to address conflicts and negotiate positions is less time and with better results. These are important reforms to the ATR process.
More reforms came through the Bill C-86, which received Royal Assent on December 2018. This Bill enacted the Addition of Lands to Reserves and Reserve Creation Act and signalled the intent to introduce amendments to the First Nations Land Management Act, in order to streamline the Additions to Reserve process (Government of Canada, 2019[40]). In continuing to strengthen the effectiveness of the ATR process in future, the Government of Canada should consider:
Working with municipalities to shorten the length of time it takes to implement an ATR. The number of ATR requests and the length of time that they take to be resolved should be publicly reported on.
Offering more direct support for land acquisition, especially in urban areas or in their vicinity, where land is more valuable.
Strengthening the dispute resolution mechanisms to negotiate with third party interests such as municipalities.
Increasing funding and resources to support environmental assessments and surveys.
Managing land for sustainable economic development
Indigenous land management
A typology of Indigenous land management
Indigenous land management can be divided in three ideal types,28 according to the land rights regime and the degree of autonomy under which an Indigenous group operates. They are: self-governance, co-management and co-existence. Self-governance refers to the conditional autonomy granted to an Indigenous group by the State to manage lands and natural resources located within it. It should not be mistaken with self-government, where there is independency to rule their own affairs.
Applying this typology to Canada, reserve lands under the First Nations Land Management Regime and fee title settlement lands granted in modern treaties fall into the self-governance type. Reserve lands granted in historic treaties fall under the administrative responsibility of the Band Council, but it is the government that ultimately decides about the management of land and water. Hence, reserves do not constitute a case of self-governance or joint governance. Traditional territories outside reserves or treaty land are best characterised by co-existence. Some natural parks, watersheds and conservation areas are jointly managed by Indigenous representatives and government institutions. See Table 3.3 for more details:
Table 3.3. A typology of Indigenous land management, applied to Canada
An Indigenous group may be part of more than one category: the typology presented here is land-based, not group-based. For instance, an Indigenous group who has signed a comprehensive land claim agreement has fee title to settlement land, falling under the self-governance type, whereas over their extended traditional territory they do not have the right to exclusive access or use, thus falling under the category of co-existence. For example, there are three categories of land to the Inuit under the James Bay and Northern Quebec Agreement (1975). Category I lands are owned collectively by Indigenous land-holding corporations (self-governance of aspects related to land management). Category II and III lands are owned by the government of Québec, in which the Inuit have fishing and hunting rights (exclusive or not) and may have consultation and compensation rights – thus falling under the co-existence type.
Within the category of self-governance, case-by-case differences exist. Where treaties and agreements regulate nation-to-nation relations, conditions and powers are not uniformly attributed. To illustrate, many comprehensive land claim agreements granted decision-making powers to Indigenous groups in what regards land use and environmental issues in their territories (Simons and Pai, 2008[41]). In some agreements, Indigenous groups own mines and mineral resources, such as in the 11 Self-Governing Agreements of Yukon First Nations , while in others they only receive resource royalties, such as in the Nunavut Land Claim Agreement (Simons and Pai, 2008[41]).
Towards greater autonomy and capacity to manage Indigenous land
Well-built land management laws can have positive impacts on community economic development. Band members benefit from clear rules regarding the development, conservation, protection, management, use and possession of reserve lands. This also holds true for external investors and partners, be they private or public. These rules, if coherent and oriented to the long-term, can guide the promotion of community well-being. They can also ensure that the use of land is strategic, well planned and coordinated. Lastly, clear and transparent regulations provide an incentive to invest in upkeep and to develop productive activities on land.29
The management of Indigenous lands and waters has been the object of debate and reforms in the past 30 years in Canada. It is generally agreed that Indigenous groups who hold reserve lands and/or treaty lands should have more autonomy to manage their lands, and correspondingly more administrative, technical and financial capacity to do so. However, without increasing their financial and technical capacity, First Nations communities may not have the ability to comply with regulations, or may become unreasonably burdened by them.
The government has created programmes to progressively transfer land management responsibility to opting First Nations and to support them in this endeavour. Programmes have focused on those First Nations who are signatories of comprehensive land claims agreements (modern treaties). However, Indigenous groups which co-manage environmental areas with the government or who have the right to access and use their traditional territories but no autonomy to manage them have not encountered a similar level of government support.
This section discusses how the management of Indigenous lands can be made adequate for Indigenous peoples. Adequacy here refers to respecting Indigenous values and governance forms, sustaining local capacity and allowing sustainable development opportunities to flourish within the community. Through this lens, different instruments and programmes are examined and options for reforms are presented, starting with programmes to transfer land management authority to Indigenous peoples and to give them capacity to lease land, then discussing issues around water management and the promotion of cohesive territorial development.
Transferring land management authority to First Nations
Land use planning serves the critical roles of balancing public and private interests, reducing any potential for conflict between uses, and ensuring environmental quality and sustainability. This is so because land use planning offers a comprehensive characterisation of the environment and instructs a spatial logic such that services and infrastructure can be more effectively delivered. How land is used in a community both now and in the future is linked to broader strategic goals of community development. For this reason, participatory practices wherein community members are involved in a plan’s elaboration are increasingly adopted.
Land use planning is important for rural and urban communities alike, but in different ways. Places with a larger population are going to have more pressures on land use, which requires detailed land use regulations and zoning to manage present and future uses. In rural communities, the pace of land use change can be much slower and such mechanism may not be as important. Instead, there may be an emphasis on monitoring environmental quality with indicators (as opposed to zoning for planned future use).
First Nations with reserve lands abide to the Indian Act. According to this legislation, the government is in charge of land and natural resources administration in reserves. This means that the government ultimately decides about the management of land and water in reserve lands, including administering revenue moneys, negotiating land exchanges and expropriating land. The Indian Act does not provide an adequate framework around which to develop environmental protection laws or regulations. Moreover, all land transactions require consent, including uses such as: agriculture, public utilities, timber, sand and gravel, road rights of way, lawful possession, set aside and leasing (requires designation). Consent can be obtained from the Chief and Council through Band Council Resolution (BCR) or from the Band membership through referendum.
Considering the restrictions imposed by the Indian Act, the government has created policies to progressively transfer land management responsibility to opting First Nations. The main policies made available for First Nations with reserve lands are the Reserve Land and Environmental Management Program and the First Nation Land Management regime.
The Reserve Land and Environmental Management Program, created in 2005, funds First Nations to develop capacity related to land and environmental management activities. The programme is a preparatory process before First Nations are able to assume the responsibility for land management in reserves. Incremental by nature, the programme allows First Nations to function at any one of three levels of increasing responsibility: training and development, operational level or delegated authority. The key functions covered are community-based land use planning; lands and natural resources management; environmental management and compliance management (monitoring and enforcement). As of May 2019, there were 126 active participants: 16 training and development First Nations, 100 operational First Nations and 10 delegated authority First Nations.
The First Nations Land Management Act (FNLMA), enacted in 1999, allows First Nations to opt out of the land and resources provisions of the Indian Act through ratification of the Framework Agreement on First Nation Land Management.30 The administration of land and natural resources becomes their responsibility, although ownership remains with the government of Canada. This is so because title to reserve is unchanged by the Framework Agreement on FNLM. First Nations also administer their revenue moneys and have law enforcement powers. Though not a primary objective, it can be a step toward comprehensive self-government agreements. As of May 2019, 162 First Nations had adhered to the Framework Agreement, being 134 active. Among those, 79 are operational, while 55 are developing a land code.
First Nation adherents to the Framework Agreement receive financial and technical assistance to enact a land code. The land code sets out basic provisions regarding the exercise of rights and powers over land – being thus the umbrella law for more specific land regulations. The land code can also contain matrimonial real property laws. FNLM First Nations have the powers to develop their own environmental management and enforcement laws, including environmental assessment procedures, as long as they meet provincial or territorial standards. While these provisions are not in place, the environmental assessment process defined by the Government applies. They can also negotiate voluntary exchanges of land. Table 3.4 summarises the differences between land management powers under the Indian Act and under the FNLM regime:
Table 3.4. Land management powers under First Nations Land Management and the Indian Act (2017)
Source: INAC (2017[42]), Overview of Land Management in Saskatchewan, http://sfnedn.com/wp-content/uploads/2017/12/Indigenous-Agriculture-Summit-Overview-of-Land-Management-on-reserve-INAC-112217.pdf (accessed on 13 December 2018).
First Nations have reported significant benefits from entering the FNLM regime. First, the inherent right to govern reserve lands and resources is recognised. In addition, they gain the legal capacity to acquire and hold property, to borrow, contract, invest money, be party on legal proceedings, directly collect and control land revenues and mortgage individual interests. These powers can reflect in taxation and revenue creation from land use activities. Autonomy also reflects in the ability to make laws and regulations in a timely and transparent fashion, and in respect of each First Nation’s practices and traditions. This translates into more certainty for landholders, and stronger law enforcement capacity.
While First Nations are supported to develop their own culturally appropriate land codes, land use plans, and mechanisms for dispute resolution, the FNLM regime does not break with a Western view of planning and land management that has predominated since the Indian Act. In doing so, it continues to favour technical rigour and administrative clarity, which is, for example, a requirement for existing land registry systems. Yet at the same time, it discourages the perpetuation of already existing Indigenous decision-making methods. To illustrate, land use conflicts may be solved through traditional mechanisms of consensus building, which may be formal or not, e.g. via dialogue tables or meetings of senior members. It does not have to be through a technical agent who sits in an office with a pile of administrative records. This bias may also be manifest in the way that zoning regulations are defined. Most municipalities in Canada do so by confining given uses – residential, commercial, and industrial, etc. – to specific zones. Adopting a similar strategy, FNs would be encouraged to create zones in which uses and purposes are allowed. However, considering that Indigenous groups may already have ways of defining preferred uses for land and their conflict resolution mechanisms, the regime should be open to less rigid forms of zoning. One example is nuisance-based zoning, in which all uses are allowed, as long as they respect the threshold of tolerated impacts, as defined by the community.
Lastly, the regime has considerable setup and operational costs. Opting First Nations have to invest significant resources to set up the system, for which they receive financial and technical assistance from the government. They also have high operational costs, especially if they create administrative offices in the fashion of municipal land use planning authorities. In the future, autonomous revenue sources will be necessary, such as taxation from land use activities (titling, transfer, leasing, licensing). Taxation to process individual land use activities is already a possibility in the FNLM regime, as per Sections 12.4 to 12.7 of the Framework Agreement. Taxation of property itself is possible under the First Nations Fiscal Management Act.
In all, the transfer of land management authority is a process that requires time, resources and capacity. Land administration, as a highly technical issue, needs competent staff, with a dedicated office and technical capacity to compile information, produce maps, enact laws and enforce regulations. A non-judicial authority has to be set up to solve eventual disputes regarding land uses, property rights and environmental violations. These processes should be simple and clear, avoiding excessive administrative burdens. Moreover, these costs could be mitigated by supporting the mechanisms for decision-making and conflict resolution that already exist within each Indigenous group. Bands do not have to become an Indigenous version of municipalities. They ought to have the autonomy to manage their land and natural resources in a way that is compatible with their vision for development, in respect of their capacity levels and in a cost-effective manner.
Making the most of the FNLM regime
The FNLM regime has enabled greater autonomy over land management issues. Notwithstanding, its effectiveness could be strengthened by:
Increasing the presence of Indigenous individuals in the activities of the Resource Centre established by the Lands Advisory Board to assist First Nations with their local land use planning activities and investing in building bridges between government requirements and the aspirations of First Nations.
Providing legal templates for opting First Nations to start building their land codes and associated regulations in order to facilitate the law enactment, reduce the need to resort to external consulting, and avoid the proliferation of unique property rights regimes.
Encouraging FNs to adopt nuisance rules as an alternative to zoning.
Continuing to support opportunities for opting FNs to meet and share knowledge.
Encouraging FNs to adapt already existing conflict resolution mechanisms to solve land use conflicts.
Supporting FNs in addressing conflicts involving customary holdings, which currently is a gap in the government’s capacity.
Fostering dialogue between First Nations and corresponding provincial government in what regards territorial development regulations and standards.
Land use planning on reserve and treaty settlement lands
First Nations may undertake land use planning on reserve lands (historic treaties) or on treaty settlement lands (modern treaties). In fact, First Nations under a comprehensive land claims agreement as part of a modern treaty already have this responsibility defined in the agreement. Likewise, those who are under the First Nations Land Management regime in their reserves already have their competencies and obligations defined in specific provisions. This section focusses on the challenges and possibilities of land use planning in reserve or treaty land. Regulation of leases and certificates of possessions is a topic that relates to land use planning, which is discussed in the following section. The potentials and risks of land tenure formalisation have already been presented in the Chapter.
Land use planning within First Nation reserves has generally been unsuccessful. Historical factors explain why: a historical-colonial legacy of imposing western planning models onto Indigenous cultures has generated land use plans that are inappropriate to Indigenous land views, underappreciate their planning traditions and engender cultural conflicts ( (Millette, 2011[43]); (Prusak, Walker and Innes, 2016[44]); (Jojola, 2013[45])). Beyond being inappropriate, these land use plans require a level of technical capacity that is in most cases absent at the local level – this is true of many small and rural communities across Canada. In addition, year-to-year funding structures can discourage the formulation of long-term plans and this in turn hinders the prospects of generating a constructive debate around community goals and visions for the future (Wilson-Raybould, 2014[13]). Importantly, unlike regular community plans, plans in Indigenous communities have no legal status, which yields low levels of implementation (Wilson-Raybould, 2014[13]). Without operational provisions, planning shows little results.
In an effort to address this lack of adequacy and effectiveness, the Government of Canada has been reviewing support programmes. Well-developed land use planning may unlock economic opportunities and improve infrastructure on reserves. Better and emergency environmental management are also anticipated positive consequences. The government supports stand-alone land use plans as well as encourages linkages with community comprehensive plans (Wilson-Raybould, 2014[13]).
First Nations’ powers to enact land use plans derive from two sources. Under subsection 81(1) of the Indian Act, Nations have powers to make by-laws regarding reserve sub‑division, building construction and maintenance, and regulation of commercial activities. Some Nations have used this power to enact “municipal-type” zoning and land use bylaws on reserve (Wilson-Raybould, 2014[13]). In treaty lands, this jurisdiction derives from Comprehensive Land Claims Agreement.
Some modern treaties include the establishment of co-management boards that support land use planning. These boards, comprised of members nominated by the Indigenous organisation and the provincial/territorial and federal governments, engage communities to define their vision, goals and land use challenges. They work with communities, industry and other stakeholders to develop a land use plan, which is later made publicly available. They also give recommendations on water and renewable resources. Co-management boards are an example of shared decision-making making between government and local resource users (Box 3.7).
Box 3.7. The Land and Water Boards of the Mackenzie Valley
The regulatory regimes in the Northwest Territories are a direct result of the negotiation of comprehensive land claim agreements. One regulatory regime is established pursuant to the Inuvialuit Final Agreement and the other is established pursuant to the Gwich’in, Sahtu and Tlicho final agreements and entrenched in the Mackenzie Valley Resource Management Act (1998).
The Mackenzie Valley Resources Management Act (1998) has created co-management boards to carry out land use planning, regulate the use of land and water and, if required conduct environmental assessments and reviews of large or complex projects. The Act also provides for the creation of a Cumulative Impact Monitoring Program (the NT CIMP) and an environmental audit to be conducted once every five years.
The 4 Land and Water Boards of the Mackenzie Valley regulate the use of land and water and the deposit of waste. They issue and manage land use permits and water licenses. The Boards have additional duties with respect to reviewing and issuing permits and licenses for transboundary projects and regulating land and water use in the unsettled claim regions.
Source: MVLWB (n.d.[46]), Co-management, https://mvlwb.com/content/co-management
One of the goals of land use planning is to bring regulatory certainty and clarity. Well-defined boundaries, simplification of standards and conflict-resolution mechanisms have to be enacted. Regulation should also include private forms of property rights, through the instruments of leasing of designated lands and certificates of possession. In addition, Nations have to develop a zoning system that works for them. It can be based on types of uses or in nuisance levels, which would make it more flexible. Alternatively, it could be decided case-by-case in community meetings, respecting local traditions of consensus-driven decision-making. That is, it is not necessary to reproduce the zoning model of most municipalities, which is based in restrictions of uses.
Another important goal of land use planning is to engender a participatory and culturally adequate process. Consultation with the community should be as broad as possible and incorporate traditional forms of decision-making. The plan should contain provisions with the aim of preserving and protecting their culture, heritage and language. It should promote a shared vision for community development, for instance by linking land use planning with comprehensive community planning efforts.31
First Nations have the difficult task of pursuing a “third space” of planning. This space ought to accommodate and adapt the dominant Western planning practices, which bring certainty and legality, and the traditional practices of land management, based on Indigenous traditional knowledge (Porter et al., 2017[47]). As summarised by Brown et al. (2016, pp. 25-26[48]), Indigenous community land management systems might include the following components:
1. A community led strategic vision for social, economic and cultural development that is linked to medium- and longer-term goals and for how land should be used including the desired role of business.
2. A comprehensive land inventory that provides clear accessible and usable information about the land base, including land tenure arrangements.
3. A land use plan (linked to the strategic vision and land inventory) that outlines the preferred uses of a FNs existing land base.
4. A land code that specifies community and individual rights and responsibilities in the land.
5. The means of implementing and enforcing a code fairly and effectively.
6. An institutionalised means of resolving disputes that is insulated by political interference and respected by the FN community and Canadian and applicable provincial governments.
To these, it could be added:
7. Increased access for communities, Tribal Councils and Political Territorial Organizations to federal and provincial technical resources and expertise.
8. Individualised training for communities and Tribal Councils.
In practical terms, it requires consultation, engagement and capacity-building at the local level and progressively advancing towards autonomous Indigenous planning (Box 3.8).
Box 3.8. Indigenous planning: an emergent paradigm
Indigenous planning is an emergent paradigm in planning discourse that aims to reclaim the historic, contemporary, and future-oriented planning approaches of Indigenous communities across western settler states like Canada, the United States, New Zealand, and Australia.
Processes of Indigenous planning connect people (e.g., tribe, nation), place (i.e., land, environment, resources), knowledge (i.e., traditional, contemporary), values and worldview (e.g., attitudes, beliefs, ethics, principles), with decisions (i.e., process, institutions) and practices (e.g., application, approaches), to enhance the well-being of the community. It is a powerful tool for answering fundamental community questions such as “What kind of society are we trying to build?” or “How do we get there from here?” or “How do all these projects fit together?”. It can serve as a useful tool for practicing sovereignty and strengthening political community and autonomy among Indigenous nations.
Community authority and control is central to Indigenous planning, setting the terms for processes of public engagement through to the exercise of leadership by chief and council. Plan implementation and the sustainability of community planning may be difficult without having planning personnel to embed it within the processes of administrative and political decision making. Whether planning personnel would be hired by individual First Nation bands or by their regional tribal councils that encompass several bands is something to be determined in each instance by the authorities themselves.
Three principles should guide Indigenous planning.
1. The process must follow from the Indigenous worldview.
2. Indigenous voices do not require translation, and western planners must stop trying to translate Indigenous culture and values through the operational logic of settler institution.
3. Native self is the essence of Indigenous knowledge, and that what may appear from the outside as a natural progression in community affairs (e.g., a new style of housing) must be assessed through the lens of individual and collective community desires.
Sources: Jojola, T. ( (2013[45])), “Indigenous planning: Towards a seven generations model”, in Walker, R., T. Jojola and D. Natcher (eds.), Reclaiming Indigenous Planning, McGill-Queen’s University Press, Montreal;; Prusak, Y., R. Walker and R. Innes (2016[44]), “Toward Indigenous planning? First Nation community panning in Saskatchewan, Canada”, http://dx.doi.org/10.1177/0739456X15621147.
There are many positive examples of land and marine use plans across Canada and a growing body of practices to learn from. For example, in British Columbia, Shíshálh Nation elaborated a Strategic Land Use Plan (June 2007) which summarises their values and describes a vision for how their terrestrial and inter-tidal (beach) resources should be protected, managed and used now and into the future. Also in British Columbia, the Squamish Nation signed a Land-Use Agreement with the provincial government, creating a framework for collaborative land management. A complementary Collaborative Agreement for the Management of Protected Areas set up a process for managing protected areas, including new conservancy areas and existing provincial parks.
Developing a robust land management system is a substantial undertaking requiring both community dialogue and engagement and technical expertise. The Government of Canada could strengthen land use planning on reserve and treaty lands by:
Supporting Indigenous communities and organisations build capacity to develop land use plans, land codes, and zoning maps that clearly identify areas of protection on ecological and cultural grounds, and for potential economic development.
Provide technical support for Indigenous communities to collect data about land and water resources and map it to inform regulatory decision-making, and to identify opportunities for economic development.
While the Government of Canada has an instrumental role to play in supporting such capacity building efforts, provincial and municipal governments alongside groups such as the Canadian Association of Planning are key partners in this process.
Private property rights, collective benefits
Holding land collectively can go hand in hand with private forms of property rights
Indigenous groups under the Indian Act hold land collectively in Canada. They cannot transfer land to others, not even to band members – the Crown retains the ownership. Individuals cannot be proprietors of Indigenous land enjoying the special protection under the Indian Act. The ultimate indivisibility and inalienability of Indigenous land are important to avoid the fragmentation and loss of reserve lands, to perpetuate the traditional livelihoods of Indigenous groups and to foster the collective well-being of Indigenous communities.
Some have argued in favour of making Indigenous land ordinary freehold (Flanagan, Le Dressay and Alcantara, 2010[49]). In this line of reasoning, the imposition of inalienability under the Indian Act would constitute a paternalistic approach that prevents Indigenous peoples from unlocking economic opportunities. Without disregard for these arguments, historic dispossession and exclusion justify the need to protect communal and intergenerational interests on land. In short, inalienability helps preserve Indigenous Estate.32
The features indivisibility and inalienability can coexist with individual interests in land. While preserving these features, individuals can have some property rights to specific tracts of land. As indicated in the section about land rights, the proprietor of land, in this case the band, can use, access and manage land, enjoy the fruits of it and exclude others from using it. An Indigenous band can lease lands to third parties, who will enjoy the same attributes. In addition, they can issue certificates of possession to band members, who can use, access and enjoy the fruits of land. These two instruments are discussed at more length below, not before highlighting their advantages for community economic development in reserves.
Granting access to credit
It is true that the inalienability clause has hampered access to credit for Indigenous peoples. Because Indigenous lands cannot be sold, they cannot be mortgaged or set aside as collateral for loans. Houses in reserve land may be owned, but, since the land is not under full ownership, the value of what can be put for equity is significantly lower. Only the value of the materials used to build the house counts, not the value of the house plus the land it sits on. To circumvent this restriction, Canadian tribes put machinery and equipment as collateral for loans. Even then, the level of credit that Indigenous people can access ranks far below those of non-Indigenous people, in what is a clear position of disadvantage.
To address this disadvantage, bankable interests in land can be generated. Bankability is a measure of a bank’s willingness to take that asset as security for a loan. Leasing land is a form to increase its bankability. It maintains the underlying communal title while creating a sufficiently transferable interest to be used as collateral for loans. Through land designation and subsequent leasing, bands can obtain financing from private institutions. Indeed, section 89(I.I) of the Indian Act expressly allows leasehold interests in designated lands to be subject to mortgage, charge, pledge, attachment, levy, seizure, distress and execution. Importantly, while doing so, bands retain absolute control on the way that land is developed, as the lessee has to abide to bands’ land use regulations and provisions.
Some bands have also used certificates of possession to obtain mortgages. The Six Nations reserve in Ontario is a good example.33 Band members with a certificate of possession approach the Bank of Montreal or the Royal Bank for a housing loan. If the bank approves the land, a guarantee is asked. The band council provides this guarantee, but in exchange asks the individual to formally transfer the CP to them for the length of the loan. When the loan is paid off, the certificate of possession returns to the member.
Besides that, financing schemes that do not depend on land have been made available to Indigenous peoples. Indigenous financial institutions pay a particularly important role in providing loans and financial services to small Indigenous businesses. They can also provide training to increase the financial literacy of Indigenous managers and entrepreneurs. The First Nations Financial Authority, for instance, provides First Nations access to long-term loans without requiring collateral, and with preferable interest rates. However, because this financial assistance is not linked with land, it is not discussed in detail in this chapter.34
Promoting economic investment
It is widely accepted that private property rights generate positive economic outcomes. Research conducted on Canadian reserves finds that private forms of land tenure, such as certificates of possession and leasing, incentivise investment in physical and human capital (Aragón and Kessler, 2018[50]). Improved housing quality, better water quality and higher public spending are among the most noticeable results of investments.35 These lead to higher living standards for Band members and thus improve the collective well-being of tribes. Moreover, through leasing bands can raise public funds, which again contributes to public spending and generates investment in collective goods and services.
Improvements in income and employment opportunities, however, are not as significant. An alleged ‘de Soto’ effect of private property rights in Canadian reserves has not been found (Aragón and Kessler, 2018[50]). Aragón and Kessler (2018, p. 29[50]) attest that there is no evidence that “existing forms of private land tenure have led to significant increases in Aboriginal incomes on reserve.”
Certificates of Possession may provide entrepreneurs and residents with a high degree of tenure security. This is so because certificates of possessions are defined under the Indian Act, which is standard across the country, eliminating the variability of Indigenous tenures and thus reducing uncertainty. Moreover, certificates of possession have been widely enforced by non-Indigenous courts. Courts have acknowledged that CP holders retain the attributes of private title afforded to owners of land in fee simple, except for alienability (Baxter and Trebilcock, 2009[18]).
Land designation
Reserve lands can be available for leasing. First, the band council has to obtain ministerial approval to “designate” them. It is a requirement to be able to access the leasing provisions available under paragraph 53(1)(b) of the Indian Act. Designation is a conditional surrender of land for a determined length of time. The land maintains its reserve status but is administered differently, as certain sections of the Indian Act no longer apply to it. Once designated, land can then be leased. The lease is transferable to third parties, enforceable in the courts and temporary by nature. In short, land designation is an instrument that makes leasing conditional to ministerial approval.
First Nations under the First Nations Land Management regime may lease out land without ministerial approval. Under this Framework, First Nations opt out of the land provisions of the Indian Act and become the management authority over the land. Once a land authority is created and a Land Code is enacted, the First Nation can lease out land without having to seek approval from the government authority. This scheme provides far greater powers over land issues than it is the case under the Indian Act but on counterpart demands that the First Nation develops its own codes and regulations and applies them strictly.
Leased lands may be less valuable than equivalent land located off reserves. Reasons for this are the conditions imposed in the leases, but also the need to adjust to Band local regulations, while investors lack knowledge about them, or have to deal with uncertainty. In the case Musqueam Indian Band v. Glass (2000), the Supreme Court considered that “Indian reserve features” implied a reduction of 50% in the appraised value of land. Without discussing here whether this estimate is correct or not, this case shows how much the appraisal of designated land is a disputed issue, and a difficult task.
Land leasing has to be better regulated, in order to benefit communities:
Community plans should detail which land can be available for leasing and land codes should set up regulations of intended use and accepted levels of nuisance. Leases should not disrupt the spatial fabric of the community but be integrated into it.
The wider community should be consulted about whom the land is leased to and for which purposes. Having greater community control over leases would contribute to generating investments that are aligned with community objectives. It is noted that at present any changes to land use on a reserve needs to be approved by FN referendum of eligible voters in which quorum is achieved.
In case land is sub-leased, a portion of revenues should still revert to a collective entity, in order to generate benefits to all band members, not only to individuals.
Lease conditions should be periodically revised, even during the validity of the lease. The value of the lease and which uses are authorised should be part of the revision. Additional conditions may eventually be set to ensure heritage, cultural and environmental protection.
In case periodic revisions are not possible, reducing the length of leases would force revision of the conditions and values.
Certificates of possession
Certificates of possession constitute a formal way to allocate land rights, authorised under the Indian Act. The band council, which is the rightful holder of collective reserve lands, allocates certificates to individuals who occupy pieces of this land. The certificate transfers the right of possession to the individual, who can then build a house on it, or a commercial venture. Individuals cannot formally lease the land out to third parties, but informally many do so – these illegal leases are called buckshee leases.36 The CP scheme, if adequately applied, could contribute to greater flexibility of land occupation patterns in reserves. In addition, it would encourage possessors to engage in productive endeavours and increase their sense of responsibility over it.
Certificates of possession are infrequently and unevenly used in Canadian reserves. In 2012, there were 40,841 Certificates of Possession, concentrated in British Columbia, Ontario, and Quebec, which amounted to 3% of reserve land (Ballantyne, 2017[51]). In many reserves, Certificates of Possession coexist with leases and customary holdings – a mixture of formality and informality. The extent of its use is not well understood, due to the lack of available data. Certificates of Possession have to be registered in the Indian Land Registry System, but not all Nations abide to it. In fact, Elizabeth Bastien (2006[52]) estimated that 50 percent of all Bands do not use the Indian Act system of lands registry at all, and of the ones that do so, 34% of them use it very minimally.
The more consistent use of certificates of possession could reduce informality levels in reserves. In the absence of certificates, informal land tenure proliferates on reserves (customary holdings). Customary holdings are not considered lawful possessions under the Indian Act: differently from CPs, they have no legal status and are not enforced by Courts. Besides the lack of certainty generated by the widespread use of customary holdings, they are also associated with lower housing quality and less investment in upkeep and maintenance (Aragón and Kessler, 2018[50]); (Ballantyne, 2017[51]). These findings resonate with classical economic theory according to which informality hinders development.
Certificates of possession have generated some issues in reserves, for the way that they are administered. Although the emission of a certificate requires ministerial approval, future uses are not closely regulated. Once the certificate is issued, there is little control over future land uses, and whether the certificate is informally transferred to non-band members. This relates to the problem that not every band council has a community development strategy or has the authority to create land zoning schemes. In that case, certificates of possession may cut up the reserve land fabric in difficult ways, or make the best parts of reserve land unavailable for community development purposes (AANDC, 2013[8]).
In this respect, band councils ought to better control and regulate the emission of certificates of possession, by:
Enacting and enforcing land use regulations and community development plans.
Conditioning the approval of CPs to alignment with community land use regulations and economic development plans.
Systematically registering CPs in the Indian Land Registry System.
Enforcing the prohibition of transferring CPs to external stakeholders (buckshee leases) and imposing stricter penalties for violators, which may include the termination of the CP.
Supporting band members that hold CPs in obtaining loans. One option for Band councils is to guarantee the loan with the bank, in exchange of asking the CP holder to temporarily transfer it back to the band council while the loan is not returned.
Aligning land use regulations across the traditional territory
Land and environmental management issues vary according to the level of legal jurisdiction and administrative control over land. As discussed, reserve lands are regulated under the Indian Act, which is a federal legislation. When a band opts into the First Nations Land Management regime, they no longer abide to the land management provisions of the Indian Act. Ancestral lands off-reserve are, on their turn, under provincial or territorial authority and hence regulated by regional land-use plans.37
This two-tiered governance structure means that there is not a single regulation that equally applies to traditional lands on reserve and off-reserve. This creates regulatory gaps that often impede land development on reserve lands (Wilson-Raybould, 2014, p. 510[13]). Where there is a gap, the lack of enforceable standards lowers the bar of service provision. In water infrastructure, for instance, it has led to a situation in which many Indigenous communities lack access to clean drinking water.38 Other areas that can be affected include: solid waste, septic tanks, spill reporting and response, environmental emergencies, hazardous waste, and air quality. Furthermore, it increases transaction costs for potential developers and investors, who have to deal with two different regulatory regimes. For bands, it creates a situation in which they lack control over the activities and uses that occur in ancestral lands off-reserves, while the territory of the reserve, quite contrarily, is not well-integrated into the surrounding area. This can lead to adverse impact on lands, natural resources and waters from unregulated activities, inability to pursue polluters for damages and impose fines, increased costs and liabilities to First Nations (e.g., contaminated sites, illegal dumping) and delays to concluding self-government agreements.
An improved regulatory framework of land use would generate investment incentives. For external investors, such as private businesses and municipalities, would mean more clarity and certainty. For bands, it would facilitate forming partnerships to invest in infrastructure projects that cut across the reserve but extend to the surrounding territory. For provinces, it brings forth a more cohesive view of the territory and welcomes Indigenous groups into consultation procedures, fulfilling their duty to consult, as well as strengthens existing legislative tools.
Provinces and First Nations could address this challenge in two ways. First Nations could adhere to provincial regulations for specific projects on reserve lands, under the First Nations Commercial and Industrial Development Act (FNCIDA). The other way is for Provinces and Territories to clarify consultation protocols to engage Indigenous representatives in policy-making processes, including land use regional planning and local environmental assessment.
Adopting provincial regulations: FNCIDA
The First Nations Commercial and Industrial Development Act (FNCIDA) is federal legislation that authorises the incorporation of provincial laws to specific projects on reserve lands. The Act, enacted in 2006 and amended in 2010, was led by a group of First Nations with the goal of achieving more comprehensive regulation of major commercial and industrial development on reserves (Wilson-Raybould, 2014, p. 510[13]). Development can be led by the First Nation alone or in partnership with private or public stakeholders, or it can be a venture conducted solely by private investors.
Concisely, the Act provides for the adoption of regulations on reserves that are compatible with provincial rules off-reserve. Provincial laws do not generally apply to reserve lands, despite there often not being equivalent Federal legislation. This creates uncertainty for developers when developing reserve lands. By adopting regulations that are compatible with provincial ones, the federal government increases certainty for the public and developers on reserves, while minimizing costs (Wilson-Raybould, 2014, p. 510[13]).
Participating First Nations request the federal government to adopt new regulations. Each First Nation will have to address its particular circumstances in a separate FNCIDA regulation. The Nation and the federal government, together with the respective province, develop these regulations, which are specific to a project and to previously defined tracts of land. With these regulations and after signing a tripartite agreement, the province supports the monitoring and enforcement of this new regulatory regime.
So far, this process has proven to be best suited for major commercial developments, once it requires significant resources and time investment. The British Columbia Assembly of First Nations (Wilson-Raybould, 2014[13]) prepared a checklist for First Nations willing to adopt FNCIDA regulations (Table 3.5).
Table 3.5. Checklist for First Nations to adopt FNCIDA regulations
Source: Wilson-Raybould, J. (2014[13]), Governance Toolkit: A Guide to Nation Building, http://bcafn.ca/wp-content/uploads/2016/06/Governance-Toolkit.pdf (accessed on 29 November 2018).
Engaging Indigenous communities in regional and municipal land use planning
One of the intractable problems that arises in Canada regarding how land is used is the question of jurisdiction. While Indigenous peoples have a direct (to varying degrees) relationship with the Government of Canada, their relationship with provinces is less well-defined. As such – much is left to good will in terms of how Indigenous people and communities are involved in provincial and municipal policymaking. Moreover, because municipalities are “creatures of the provinces” their mandates to work with First Nations are provincially defined. Federalism thus raises many practical challenges to overcome in terms of how land is governed across these regimes and the relationship and rights of Indigenous peoples therein.
For example, regional and municipal land use plans seldom include Indigenous reserve lands. As reserve lands lie under federal jurisdiction, provinces and municipalities do not integrate them into their spatial planning frameworks. The image of a “blank” space left purposely in regional maps is most compelling. In Québec, for instance, the territory of the reserves is not portrayed in provincial maps, and there are no relations between the planning administration and the reserves.
Yet impacts and overlaps are most strongly felt at the local level. Provincial and municipal government land use decisions and zoning can affect reserve lands, particularly where adjacent land uses on- and off-reserve are incompatible. Environmental degradation, road infrastructure, energy projects, water management are all issues that likely affect a reserve and its surrounding municipalities or, if remote, lands owned by the regional level of government. Moreover, it is not uncommon that traditional territories cut across municipal or regional lands, case in which the local authorities have to manage and regulate competing land uses.
Under a functional perspective, the links that Indigenous territories have with surrounding areas have to be better framed and operationalised. This would generate better understanding of shared needs and means to address it. It can support the development of more well-structured partnerships for infrastructure development. It is relevant thus regardless of the land management model in place.
Considering these interactions, sub-national governments should engage with Indigenous communities on matters related to land use planning. Developing mechanisms to discuss planning issues with First Nations is likely to be mutually beneficial. These arrangements can be set out in memorandums of understanding or other agreements. Another possibility is to create nature conservation areas and to manage them jointly between the sub-national government and a First Nation. Moreover, impact studies and land use assessments could include estimations about the impacts of given activities on Indigenous lands. Governments could also consult with Indigenous peoples about significant sites to be protected, and in so doing help to preserve Indigenous heritage, culture and traditions. To illustrate, in the South Saskatchewan Region, municipal land use assessments have to include local histories and heritage sites of significance for the Indigenous groups of the area (Box 3.9).
Box 3.9. Municipal planning and Indigenous heritage: a good practice from Canada
The South Saskatchewan Regional Plan (SSRP) requires that municipalities consider the broader implications of land use, growth, and development, including on historical resources. Until now, however, these considerations largely excluded pre-settlement Indigenous heritage sites, many of which are more difficult for city planners to identify. These spaces include ceremonial and sacred sites, wildlife corridors, traditional hunting grounds, as well as places with significant narrative history.
In April 2016, the City of Lethbridge initiated its Traditional Knowledge and Use Assessment (TKUA) by holding a ceremony jointly hosted by Elders and officials from the Kainai, Piikani and Siksika Nations. Through the TKUA, the municipality is able to work collaboratively with these three nations to create a greater understanding of the local Indigenous heritage of the region. Traditional land use experts from these three nations are working in partnership with a local archaeology firm to identify, document, and capture the history of the Siksikaisitapi (Blackfoot Peoples) in this region for thousands of years.
The TKUA is part of a larger relationship building process between the City of Lethbridge and its Blackfoot neighbours. Reflecting the spirit and intent of the Truth and Reconciliation Commission of Canada's Calls to Action, the TKUA is working closely with the Blackfoot Confederacy to understand and protect this history. In this way, it is the Indigenous nations themselves who are empowered to gather information and tell their histories. The work of the TKUA is an example of reimagining the relationship between municipalities and Indigenous communities, and promoting reconciliation at the local level. The City of Lethbridge has shown significant efforts to acknowledge Indigenous histories as essential and foundational to city planning, rather than something that can be accommodated after development.
Source: AUMA (2017[53]), Municipal Planning Hub, https://www.auma.ca/sites/default/files/Advocacy/Programs_Initiatives/Municipal_Planning_Hub (accessed on 12 December 2018).
Indigenous peoples may wish to pursue economic activities related to hunting, fishing and sub-surface natural resources, or authorise others to do so. As seen above, Indigenous peoples may retain rights over sub-surface resources if explicitly granted in modern treaties – otherwise the ownership lies with the government. In the Nunavut Agreement, for example, the Nunavut Tunngavik Incorporated (NTI) holds such mineral rights. NTI had, as of 2009, signed 80 mineral exploration agreements with 15 different companies, granting them rights to explore 20% of sub-surface Inuit Owned Lands.39
Besides granting exploration rights to others, Indigenous communities may pursue these activities themselves. In Canada’s Northwest Territories (NWT), the 27 Dene First Nations fully own and operate a mining company, called DEMCo. DEMCo pursues mining activities with a strong sense of community engagement and environmental preservation.40
The relationship between Indigenous communities in regional and municipal land use planning could be strengthened by:
Including Indigenous representatives in the elaboration of regional plans regarding territorial development, mining, water, and environmental protection.
Ensuring there are mechanisms in place for Indigenous communities to have meaningful consultation with regards to the land use planning of municipal and other authorities that have jurisdiction on or near their traditional territories.
Creating opportunities for Indigenous peoples to benefit from fishing, hunting and sub-surface resources by:
Developing and updating data that provides information on the quantity and quality of these resources.
Ensuring that traditional knowledge and practices are incorporated into planning and licensing decision-making about the use of natural resources.
Clarifying ownership rights over natural resources, and providing commercially viable pathways to exploit these resources, and/or lease them to third parties.
Creating agreements that enable the co-management of nature conservation areas on traditional territories, and give opportunities for Indigenous peoples to generate economic development opportunities from them (e.g. land stewardship, eco-system services, and tourism activities).
Natural resource development projects and Indigenous communities
This section addresses how the regulations and decision-making processes around natural resource development projects can be inclusive and respectful of Indigenous peoples41. It focusses on two disputed issues: Impact and Benefit Agreements (IBAs) and consultation in environmental decision-making, gravitating around the meaning and implementation of Free, Prior and Informed Consent (FPIC). It departs from the assumption that Indigenous engagement in the policy-making and decision-making process should:
Start early in the project development cycle, even before a specific project is designed, to include the planning and regulatory dimension (setting the rules).
Structure a deliberative and negotiated process (not just information giving).
Carry out negotiations in good faith with the goal of reaching consent.
Compose a transparent and clear process with sufficient information to make informed decisions and with institutional support from the government.
Respect the timeframes set by Indigenous peoples and their cultural practices.
Include sincere attempts to share powers and functions, through contracts or agreements.
Involve government officials that have cultural competency to understand the diversity of Indigenous communities and that appreciate their local knowledge.
Count with agreed and transparent conflict resolution mechanisms, as well as mechanisms for monitoring and enforcement.
Impact and Benefit Agreements
Benefit-sharing agreements are contract-making opportunities by which Indigenous peoples negotiate monetary and non-monetary benefits with corporations, in the context of project development (e.g. a mining or major infrastructure project). Through benefit-sharing agreements, Indigenous groups can exert some influence in defining the conditions for its entering into operation. The project should secure the continuous reproduction of their traditional ways of life.
In Canada, benefit-sharing in large scale development projects is agreed upon through Impact and Benefit Agreements (IBA). IBAs are negotiated between resource-sector corporations, Indigenous communities and sometimes governments, to minimise environmental and socio-economic impacts of resource exploitation. In exchange of developing their projects, corporations provide additional environmental impact assessment and monitoring, as well as settle financial compensation, provision of jobs and eventual environmental restoration.
Yet in many cases there is no obligation to do conclude negotiations.42 The government is not a party of these agreements and their content is confidential. Because of this confidentiality, parties entering new negotiations are typically unaware of precedent negotiations, which may weaken the claims of Indigenous communities (Richardson, 2008[54]). The OECD has noted that agreements seldom result in changes to the project itself, and may actually serve the purpose of discouraging Indigenous peoples from making complaints in environmental assessment procedures or judicial proceedings (OECD, 2017[55]). In a similar line, others have stressed that the negotiation process associated with IBAs undermines the deliberative ethic at the core of the Free, Prior and Informed Consent (Papillon and Rodon, 2017[56]).
As of 2017, 510 agreements had been signed between Indigenous groups and mining companies, among IBAs, memoranda of understanding and surface lease agreements. Of these, 410 are still active. Counting just the number of active Impact and Benefit Agreements, there are 71, signed between 1995 and 2017. It is logic that older agreements are no longer active: as the mining activity moves in cycles, many sites have probably gone out of operation. The distribution across states is as below:43
Figure 3.5. Active Impact and Benefit Agreements across Canada (2017)
Source: Own elaboration based on Natural Resources Canada data obtained through personal communication.
The content of IBAs
Benefit-sharing agreements typically cover labour, economic development, community well-being, environmental, financial and commercial issues (Sosa and Keenan, 2001[57]). Provisions therefore verse on:
Preferential hiring, Indigenous staffing quotas, and seniority in the event of layoffs.
Capacity building, apprenticeship and training.
Priority bidding for local entrepreneurs to meet the supply needs of industry and additional efforts to support them in complying with the bidding criteria.44
Cultural recognition programs, including work-site language protection and local dietary provisions for Indigenous workers.
Heritage protection: a general prohibition on the accessing of Indigenous lands, hunting grounds, and burial and sacred sites by non-Indigenous.
Environmental provisions, in addition to or in concert with the ones determined at the environmental assessment process.
Social issues: mental health counselling, financial and infrastructural support for community projects, recreational programs, and special provisions to protect social groups at risk, such as women and children.
The environmental provisions of benefit-sharing agreements should complement the ones agreed upon in the environmental assessment (EA). More precisely, these provisions ought to be decided after impact assessment results and cannot replace the EA. There is a concern that benefit-sharing provisions might supersede the regulatory framework of environmental licensing, which has general rules and internal coherence. The risk is that environmental protection granted by law would be weakened in favour of contractual provisions. It is thus important that Indigenous communities and governments do not engage in or authorise negotiations with companies before the EA studies are undertaken. Environmental protection shall not be traded-off for economic benefits.
Furthermore, members of Indigenous communities should be involved in the assessment studies required for setting environmental and heritage protection conditions (see also the section below on environmental licensing). There are many examples in this direction, for instance, in the Ekati Diamond Mine in Canada, community elders have helped identifying burial and hunting sites that require protection (O’Faircheallaigh, 2015[58]).
Besides substantive provisions, benefit-sharing agreements ought to have procedural rules about how the negotiation is being carried, how the agreement will be implemented and how to solve conflicts. Procedural rules should thus concern:
Negotiation protocol: authorised representatives of each party, degree of involvement of third parties e.g. government or regional Indigenous bodies, consultation with community, information-sharing and confidentiality.
Timeframe of engagement: time granted for consultation, periodicity of meetings, expected timeline of the process, etc.
Means of delivering compensation, for instance through community payments, individual claims or specific trust funds.
Legal provisions about dispute resolution mechanisms, review and amendments.
Monitoring and enforcement of the agreement, e.g. by creating a monitoring committee, conducting assessment studies or other means.
Another element to be negotiated is the implementation of the agreement. In the past, the absence of action plans and monitoring mechanisms has led to inefficient or absent fulfilment of the obligations set up in agreements. Governments can require companies to show an action plan that demonstrates how the agreement will be upheld. For that to happen, the government must have some sort of oversight or authority over the process. Moreover, governments can create a monitoring committee to assess progress in the implementation of the agreement. Alternatively, they can provide assistance for Indigenous groups and organisations to set up their own monitoring committees.
Moreover, action plans must include provisions on the phasing out of operations. The cessation of activities is a phase of the project cycle and as such one that should be prepared for in advance. The phasing out plan may include provisions about lay-off, training, business development support and future use and maintenance of community infrastructure. The closure plan can be required in state legislation, as it is in Alaska, and communities can be involved in its elaboration (Box 3.10).
Box 3.10. Community Input Into Red Dog Mine Closure Plan
The Red Dog mine in northwest Alaska was developed under an operating agreement between Teck Alaska and the NANA Regional Corporation, a Native corporation owned by the local Inupiat people. The operation has injected more than a half billion dollars into the local economy, and over 50% of its current employees are NANA shareholders.
Although mining at Red Dog is expected to continue for another 20 years, State of Alaska law requires the operation to develop and fund a comprehensive closure plan. The company worked with Teck and NANA to get stakeholder input. That effort began with the development of reports describing the technically viable closure options. The options were presented at a series of public meetings, and an Inupiat-language DVD was produced and provided to all of the homes in the directly affected communities.
Two multi-stakeholder workshops were organised to review the options and provide feedback on stakeholder preferences. About 65 people attended the first workshop, and 45 attended the second. The participants included representatives of the communities of Noatak and Kivalina, a subsistence harvesting committee comprised of elder hunters from the region, Teck and NANA staff, State regulators, NGOs and technical specialists.
The workshops applied a number of innovations designed to help participants provide considered and clear feedback. Participants were grouped according to their primary interests, and each group was asked a series of questions that reflected their own perspective. For example, the elder hunters were asked “will this option protect subsistence uses of the area?”, whilst the regulators were asked “will this option protect downstream water quality?”. Answers were gathered from each group and compiled to show group preferences. Individuals were also polled and their preferences compiled. The group and individual results showed clear preferences that became the basis of a Closure and Reclamation Plan filed in 2008, and accepted by the State in mid-2009.
Source: Hockley, D. (2009[59]), “Community input into Red Dog mine closure plan”, https://www.srk.com/files/File/newsletters/SRKnews41-social-assessment-A4.pdf.
Types of compensation
Indigenous groups can accrue financial compensation and non-monetary compensation. Non-monetary compensation can range from employment opportunities, training and business development to infrastructure construction and provision of services. Financial compensation can take the form of royalties (based on the value of mineral output or output), tax on profits, single up-front payments, annual fixed payments, equity participation or shareholding.
Financial resources can be collected directly by the Band or be allocated to investment funds. An investment fund is a fund that invests its money in assets that earn income, or that due to other strategies is able to increase its capital stock. It is considered a good practice because it generates autonomous financial resources to support sustainable regional economic development for the future, beyond the duration of the project (Söderholm and Svahn, 2014[60]). There are operational costs in hiring fund administrator, approving plans with the community and ensuring accountability.
More and more agreements have been designed to provide a combination of the two types of benefits. It has been recognised that monetary compensation, while often legally required, seldom ensures that lives and livelihoods of affected communities are adequately restored (Loutit, Mandelbaum and Szoke‐Burke, 2016[61]). Community-wide benefits are more sustainable in the long run because they build up the infrastructure and the skills that allow Indigenous peoples to take advantage of employment opportunities that are brought by the investment.
Box 3.11. Community benefit agreement examples
In Canada, the Raglan Agreement, signed in 1995 between the mining company and the affected Indigenous group, emphasises the importance of cultural sensitivity in employment as a key means of retaining Indigenous employees. Specifically, the agreement seeks to encourage social harmony within the workforce by promoting inter-cultural understanding through cross-cultural training for all supervisors and managers, inviting local artists to perform outside of working hours at the project site, organizing sports events between employees and residents, and ensuring access to traditional food sources.
In Australia, the Argyle Diamond Mine Participation Agreement, signed in 2004, supersedes the 20-year-old “Good Neighbour Agreement”. It is the result of a renegotiation process, conducted in a far more participative manner, and supported by ethnographic and genealogical studies. In the Management Plan Agreement, the company commits to helping traditional owners establish businesses and develop good management practices. Where appropriate, an Argyle employee would help the business on an ongoing basis for three years. This case demonstrates how community development agreements can help local businesses to develop.45
Conditions for a fairer negotiation process
The negotiation of benefit-sharing agreements can yield difficulties. Power imbalances may compromise the ability of Indigenous groups to reach favourable agreements. These are groups which typically have less financial resources, less technical capacity and less human capital available to invest in demanding negotiation processes with governments and mining companies (Black and McBean, 2017[62]). This section elaborates on these difficulties and provides some indications of what governments can do to strengthen the Indigenous position.
Access to information is foundational for Indigenous peoples to participate in decision-making processes. Information has to be up-to-date and freely accessible, without need for registration of personal data or payment. It has to be accompanied by supporting documents, such as guidebooks or booklets, to render it more comprehensible. If necessary, information should be available in the Indigenous language, and a public official that speaks the Indigenous language should be put at disposal to clarify questions.
In addition, the confidentiality of benefit-sharing agreements works against Indigenous peoples. It weakens their bargaining power, because the terms and conditions of previous agreements signed with other Indigenous groups remain unknown. It may create divisions amongst Indigenous groups, as one may perceive that benefits have been unequally allocated. It prevents Indigenous group from seeking assistance from third parties, even if only for informational purposes. As a whole, it means that Indigenous groups cannot learn from past experiences.
Governments can address this problem by making key aspects of benefit-sharing agreements available. They can keep online databases of signed agreements. In Australia, for instance, the Native Title Tribunal has the complete list of registered ILUAS, with date of signature, name of the parties, state and date of commencement.46 The content of agreements is not however disclosed. In Canada, as already said, IBAs remain confidential. Whilst it is true that some clauses of agreements may need to remain confidential, for example the ones on market shares and amount of monetary compensation, other clauses could and should be freely disclosed.
Indigenous peoples must be able to negotiate project development with companies from a position of strength. This requires clarity about rules and fair negotiation procedures. Governments must be at a position of oversight, which should not be mistaken with interfering in the negotiation. They can provide standards and guidelines about how to act. They need to make information available, assist when needed and publish relevant information. They should also monitor the implementation of agreements and make companies accountable for what they had agreed.
Indigenous communities can get support not only from the government but also from other communities that had been involved in similar negotiation processes in the past. By sharing information and experiences they can be much more prepared. Indigenous organisations are another source of knowledge, and many of them have developed negotiation workshops, leadership courses and community toolkits on benefit-sharing agreements.
On the side of companies, the bottom line is negotiating in good faith. It includes respecting the timelines and conditions set by Indigenous people, adopting transparent rules of conduct, sharing information on a regular basis, holding meetings in accessible language and location, supporting financially the Indigenous negotiation team and being truly open to discuss alternative proposals. The Box 3.12 provides a list of leading practices on agreement-making for companies.
Box 3.12. Leading practices for Community Development Agreements
A Community Development Agreement or CDA can be a vital mechanism for ensuring that local communities benefit from large-scale investment projects, such as mines or forestry concessions. In formalizing agreements between an investor and a project-affected community, CDAs set out how the benefits of an investment project will be shared with local communities. In some countries CDAs are required by domestic legislation; in others, they are entered into voluntarily. The most effective CDAs are also adapted to the local context, meaning that no single model agreement or process will be appropriate in every situation. Nonetheless, leading practices are emerging which can be required by governments or voluntarily adopted by companies and communities. Some leading practices from a review of available agreements from the extractive sector in Australia, Canada, Laos, Papua New Guinea, Ghana and Greenland are as follows.
Develop a pre-negotiation agreement, such as a memorandum of understanding, that establishes among other things the negotiation framework and funding for each stage. Commence culturally sensitive orientation programs and/or negotiations training to ensure meaningful negotiations and approval of the final agreement.
Ensure community participation in the agreement-making process, including informed decision-making during negotiations and involvement in completing impact assessments.
Benefit sharing means more than financial compensation for use of the land or displacement; it includes non-monetary benefits, such as employment opportunities, training of locals, business development support, infrastructure and provision of services.
There must be strong, accountable governance arrangements in the agreement to facilitate effective implementation. A system of ongoing monitoring and review with mechanisms would allow for adjustment of the terms of the agreement when necessary.
The agreement must plan for project closure and legacy issues. Agreements should include action plans for dealing with expected and unexpected closure at the outset and create a closure taskforce at the time of execution of the agreement.
As far as possible, agreements should not be confidential, consistent with the objectives of transparency, accountability and good governance. Confidentiality provisions can weaken the capacity and power of local communities by prohibiting them from communicating with the media and other stakeholders for advice, support and information.
Governments can encourage investors to adopt these good practices and, in some cases, mandate such practices through legislation or regulations. Conduct extensive research and consult widely to identify all communities, and the individuals who will represent them, in the negotiation process.
Source: Loutit, J., J. Mandelbaum and S. Szoke-‐Burke (2016[61]), Emerging Practices in Community Development Agreements, http://ccsi.columbia.edu/files/2016/02/Emerging-practices-in-CDAs-Feb-2016-sml.pdf.
The Government of Canada should support the elaboration of benefit sharing agreements that combine monetary and non-monetary benefits; establish an action plan and dispute resolution mechanisms; and provide for project closure and remediation. Specific actions include:
Supporting and encourage project proponents to engage in dialogue and meetings with Indigenous groups prior to submitting projects for approval, and agreeing upfront on the terms and procedures for engagement (e.g. timing, location, language and translation, and financial support).
Creating opportunities to strengthen the negotiation power of Indigenous groups, by:
Providing all the necessary information on environmental conditions, sub-surface resources, land uses, competing economic interests and other elements that Indigenous groups may not be aware of.
Referring companies to a legitimate regional or national Indigenous organisation that can serve as the contact point with local groups.
Elaborating a common set of tools and templates from which Indigenous groups can draw to start negotiations.
Facilitating workshops among Indigenous negotiators and leaders to share experiences and good practices in agreement-making.
Creating an online platform that maps and registers signed impact-benefit agreements.
Developing databases that systematically record and publish benefit-sharing agreements (excluding commercial-in-confidence information), in order to ensure more transparency and, ultimately, more accountability.
Monitoring the implementation of benefit-sharing agreements, through a specific commission or administrative body or by obliging companies to report regularly on the outcomes of them.
Consultation in Environmental Decision-Making
The environment is an area of shared jurisdiction in Canada. The Supreme Court of Canada has ruled that all levels of government (including municipalities through delegated authority) have important roles to play in environmental protection; however, the federal government holds the largest role due to the scope of its powers. The Canadian federal government is responsible for environmental laws relating to “trade and commerce, navigation and shipping, fisheries, criminal law, aboriginal lands and people, taxation, anything that is a national concern or emergency, residual power over anything not specifically covered in either list, and to make laws for the peace, order and good government of Canada” and its own lands (Surtees, 2019[63]). Provincial powers extend to “mines, minerals and non-renewable resources, forestry, electricity, public lands the province owns, municipal institutions, matters of a local or private nature, local works and undertakings and property and civil rights within the province” (Surtees, 2019[63]).
Consultation in environmental decision-making has been at the spotlight in recent years. On the one side, the international provision of Free, Prior and Informed Consent has generated debates among international organisations, academics and social movements. On the other side, natural resource development projects that affect Indigenous territories and livelihoods have been a major source of controversy. The Trans Mountain Pipeline project illustrates this point exemplarily (OECD, 2017[55]). Put together, the meaning of consultation in environmental management processes that lead to decisions about the approval of natural resource development projects is ongoing discussion.
Public consultation is a prominent feature of Canadian government decision making. The federal, provincial and territorial governments are obliged to consult with Indigenous groups, in accordance with the Guidelines for Federal Officials to Fulfil the Duty to Consult (2011).47 Case law of the Supreme Court of Canada further reiterates this obligation. In addition, formal consultation protocols provide for assessing the environmental implications of projects on Indigenous lands.48 Public participation is ensured in the environmental assessment process through notification, reasonable timing for public comment, provision of accessible information and transparent reporting of results (OECD, 2017[55]).
However, Indigenous peoples often feel they have not had the opportunity to meaningfully participate in environmental decision-making (OECD, 2017[55]). They have claimed that consultation often occurs too late in the process, giving them too little influence over the decision. They feel that there is no possibility to question the existence and design of those projects, once the debate gravitates around the terms of compensation agreements. In the end, the fact that a compensation is accepted would give legitimacy to the project.
Erratic and limited consultation processes impose yet another barrier in the capacity of Indigenous peoples to fight against projects that would affect them disproportionally and negatively. Dumpsites, dams, tire deposit, incinerators… projects that clearly bring more negative than positive consequences are commonly proposed in Indigenous lands. This disproportionate burden in polluting, and nuisance-generating projects is labelled environmental racism (OECD, 2017, p. 82[55]).
A practical agreement is yet to be reached. Indigenous peoples would like recognition as right-holders rather than stakeholders in the context of natural resource management. They claim a special status in environmental decision-making that would give them the right to veto projects. Even though the government has committed to fully implement the UNDRIP, assuming an obligation to achieve consent would be too big a step, as it would dramatically reduce the likelihood of several natural resources projects of strategic importance taking place. FPIC should be, in this understanding, the guiding principle for consultation.
Box 3.13. Environmental racism in Canada
Environmental racism is a term used to describe circumstances where hazardous and harmful pollutant sites are located near areas with large minority populations. It describes racial discrimination in environmental policymaking. The term was coined in the early 1980s as a response to protests against a North Carolina landfill being located in a disproportionately poor and African American county (Bullard, 1993[64]). Since that time, a large literature has documented the disproportionate location of such sites near low income minorities across a wide range of countries including in Canada among, for example, African Nova Scotians and Indigenous Canadians (Fryzuk, 1996[65]; Buzzelli, 2008[66]; Wiebe, 2016[67]).
Sources: Bullard, R. (1993[64]), Confronting Environmental Racism: Voices from the Grassroots, South End Press, https://books.google.fr/books?hl=en&lr=&id=yVr9lhrrTVwC&oi=fnd&pg=PA1 (accessed on 25 March 2019).; Fryzuk, L. (1996[65]), Environmental Justice in Canada: An Empirical Study and Analysis of the Demographics of Dumping in Nova Scotia, http://www.nlc‑bnc.ca/obj/s4/f2/dsk3/ftp04/mq24966.pdf (accessed on 25 March 2019); Buzzelli, M. (2008[66]), Environmental Justice in Canada - It Matters Where You Live, http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.503.1447&rep=rep1&type=pdf (accessed on 25 March 2019); Wiebe, S. (2016[67]), Everyday Exposure: Indigenous Mobilization and Environmental Justice in Canada’s Chemical Valley, https://books.google.fr/books?hl=en&lr=&id=1PNJDAAAQBAJ&oi=fnd&pg=PP1&dq=landfills (accessed on 25 March 2019).
Options to improve the Environmental Assessment process
In 2017, the OECD conducted an Environmental Performance Review of Canada, with recommendations on how to improve environmental management. Among them, the OECD recommended the Government of Canada increase the transparency of the environmental assessment procedure by starting it at the early project design phase and ensuring closer integration between EA and permitting at the provincial level. Since then, an important piece of legislation on the environmental assessment procedure was enacted, Bill C-69. In June 2019, Bill C-69 obtained Royal Assent.49 This Bill enacts the Impact Assessment Act, which includes an emphasis on early planning and engagement with Indigenous peoples, proponent information provided at the outset of early planning and strengthened cooperation with provincial governments.
Moreover, federal strategic environmental assessments should be introduced at the provincial level in order to ensure its application to regional and local land-use plans and to evaluate and address cumulative environmental effects of economic activities (OECD, 2017[55]). Starting in 2018-2019, Canada has invested $15.5 million over 5 years to establish the Indigenous Centre of Expertise for Cumulative Effects Assessment and Management, in collaboration with Indigenous experts, practitioners and researchers specializing in cumulative effects science.50
Departing from Bill C-69 and counting with the expertise of this new Centre, the Government of Canada should define and implement the concept of Indigenous communities’ “free, prior and informed consent” (FPIC) with regards to land use and natural resource management (OECD, 2017[55]):
Guidelines on how to operationalise the FPIC principals are needed and Indigenous organisation should be involved in their elaboration. The guidelines should clearly define whom to consult, once discussions with community leaders may not reflect a community’s opinion, putting implementation at risk. It should also define FPIC, particularly whether the right to oppose a project constitutes a veto in EA processes (Papillon and Rodon, 2016[68]). These guidelines should include how Indigenous views will be expressed in the final assessment report in a manner that is inclusive and participatory. Indigenous communities and organisations need greater capacity in order to meaningfully participate in the EA process.
Foremost, EA processes should clearly outline how FPIC principles will be met, including in the terms of reference. Indigenous organisations should collaborate as full partners in the drafting of the relevant legislations, policies and guidelines, in consistence with the principle of collaborative consent (Papillon and Rodon, 2016[68]). In order to be effective partners in this process, Indigenous community engagement could be supported through access to the relevant training and expertise and capacity building.
Finally, the EA needs to be better integrated between EA and permitting at the provincial level. Once the consultation/deliberation phase is completed, invite the Indigenous community to participate in the preparation of the assessment report, either through the inclusion of a section dedicated to the positions expressed by the community or through a more hands-on collaborative process in the drafting. (OECD, 2017[55]) (Papillon and Rodon, 2016[68]). Indigenous communities and organisations are frequently asked to engage in consultations and often express burnout by time consuming nature of these requests. Participation in these consultation processes needs to be meaningfully structured such that those who give the time know that their voices will be included and considered in a specific way and within a specific timeframe.
Box 3.14. From Principle to Practise: Implementing FPIC federally and provincially in Canada
The 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) established the principle of Free, Prior, and Informed Consent as an international norm that ought to guide relations between Indigenous peoples, states, and extractive industries. However, the gap from principle to practice can be considerable (Papillon and Rodon, 2017[56]). Canada’s initial hesitation in signing on to the declaration stemmed from its incompatibility with existing Canadian law and the fact that the Canadian government does not recognise the FPIC principle as a veto right against resource development and administrative and legislative decision-making. A decade after UNDRIP, Canada removed its objector status, but the implementation of FPIC remains aspirational.
Part of the delay in implementation stems from the fact that provincial and territorial governments have an important role to play. Canada’s constitutional division of powers gives provinces purview over natural resources development and many issues related to the environment and land use. The implementation of FPIC principles must involve the dedication of all levels of government. In this, the government of British Columbia may lead the way. The Government of British Columbia’s 2019 throne speech committed the province to being the first in Canada to introduce legislation to implement UNDRIP and promised to co-develop legislation with the First Nations Leadership Council and other Indigenous organisations (Austin, 2019[69]). The government stated that this legislation would form the foundation for the Province’s work on reconciliation, mandating government to bring provincial laws and policies into harmony with the Declaration (Austin, 2019[69]). Inviting Indigenous organisations to collaborate as full partners in the drafting of the relevant legislations, policies and guidelines is consistent with the principle of collaborative consent and an important first step.
Sources: Papillon, M. and T. Rodon (2017[56]), “Proponent-Indigenous agreements and the implementation of the right to free, prior, and informed consent in Canada”, http://dx.doi.org/10.1016/J.EIAR.2016.06.009; Austin, J. (2019[69]), 2019 Speech from the Throne, https://www.leg.bc.ca/content/data%20-%20ldp/Pages/41st4th/ThroneSpeech_2019.pdf (accessed on 25 March 2019).
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Notes
← 1. The judgement from the federal Court of Appeal on the case of Tsleil-Waututh Nation et al. v. Attorney General of Canada et al. notes that: “at the last stage of the consultation process, a stage called Phase III, Canada fell well short of the minimum requirements imposed by the case law of the Supreme Court of Canada” and that “the law requires Canada to do more than receive and record concerns and complaints” (Federal Court of Appeal, 2018[75]).
← 2. The reduced focus on Métis rights is a limitation of this study. Since more material and literature are available on First Nations and Inuit rights, desk research suffered from the same bias. During the missions, the OECD had very few or no opportunities to meet with Métis representatives. Furthermore, Métis rights, and even more so in what concerns land rights, have been recognised by the courts and the government of Canada much more recently than the rights of First Nations and Inuit. The task of providing a concise analysis for the general reader may fall short in the face of ongoing recognition. In all, Further international comparable work on Métis land rights is needed.
← 3. The term Indigenous is used throughout the chapter to refer to the first peoples of the land that today corresponds to the country of Canada, in alignment with international conventions and declarations.
← 4. Information retrieved from: (Global News, 2018[76]).
← 5. The Truth and Reconciliation is broader and more disputed than just land rights. Some view it as rebuilding nation-to-nation relations and ensuring sovereignty, whereas to other groups it is a matter of identity politics. Some emphasise environmental justice, others the difficult issue of intergenerational trauma. When stating that land rights are part of the Truth Reconciliation project, it is meant that they are a component part of a government policy. It is not the whole of it, it is not the only issue at stake, but for the purposes of this chapter is an important one.
← 6. Information on the disadvantageous attributes of Indigenous lands was retrieved from (RCAP, 1996[6]), (Alfred, 2009[5]) and (Belley, 2000[10]).
← 7. An insufficient land base is consistently regarded as a barrier to First Nation government taxation, together with low states of economic development and political barriers. See (Department of Indian Affairs and Northern Development, 1997[90]).
← 8. The remainder of this section draws on (Thomas, 2016[91]) “A matter of national and constitutional import: report of the minister's special representative on reconciliation with Métis : section 35 Métis rights and the Manitoba Métis Federation decision", Gatineau, Qué. : Indigenous and Northern Affairs Canada, 2016. 46p.
← 9. Indigenous organisations and bands have positioned themselves in defence of the collective nature of Indigenous rights to land, against a proposal to create individual fee simple title to land in reserves. The proposal of the First Nations Property Ownership Act was met with great resistance. It was deemed to damage the core of Indigenous connection to land and to undermine the land base, by creating a patchwork of conflicting interests and by facilitating the transfer of land to third parties. For a critique, see (Pasternak, 2015[87]).
← 10. These lands are not legally held “in trust,” although the relationship is often characterised as being trust-like (Wilson-Raybould, 2014[13]).
← 11. For a detailed account of harvesting, fishing and hunting rights, see: (Imai, 2017[80]).
← 12. Information retrieved from: https://www.sgsyukon.ca/settlement-lands/.
← 13. Formalisation reforms have to be accompanied by clearly defined boundaries and conflict resolution mechanisms. They ought to respect local Indigenous cultural practices and governance structures. Formalisation also entails costs, such as the one of creating and administering a formal titling system. As Baxter and Trebilcock argue: “Given rich non-formal regimes, formal institutions may map poorly onto First Nation’s existing land tenure arrangements, thus creating conflict and greater insecurity where interest holders are unsure which system applies. Even in the absence of strong Indigenous institutions, formalization may create insecurity and conflict where individual property boundaries have been left intentionally fuzzy or undefined by the community. Additional costs to formalization also exist. The monetary cost of designing and administering a formal titling system can obviously be quite high, depending on the complexity of the system and the quantity of registered interests and transactions.” (Baxter and Trebilcock, 2009, p. 64[18]).
← 14. Information retrieved from: (Government of Canada, 2019[78]) (September 2019).
← 15. In the sense, see the report Resolving Aboriginal Claims: A Practical Guide to Canadian Experiences, also for a good overview of the comprehensive claims process and self-government agreements (Indian Affairs and Northern Development Canada, 2003[73]).
← 16. Note that this recommendation was made in the final chapter of the Royal Commission on Aboriginal Peoples: “Aboriginal land rights do not need to be extinguished to achieve a settlement of land claims or to agree to or implement new treaties” (RCAP, 1996[93]).
← 17. These recommendations are informed by previous scholarship on this matter including the those of the 2018 report of the Standing Committee on Indigenous and Northern Affairs of Canada’s House of Commons (Mihychuk, 2018[24]).
← 18. All the information on specific claims was retrieved from (Government of Canada, 2015[77]).
← 19. Information retrieved from (INAC, 2016[92]).
← 20. The technical name for this minimum amount of land that is to be acquired and set apart as reserve is “shortfall”. After a First Nation acquires its Shortfall Acres it may use any remaining funds to acquire additional reserve land, up to the maximum number of acres the First Nation is entitled to have transferred to reserve status through its settlement agreement. This land is called "Equity Acres." The money may also be used to enhance the community and for economic development. Information retrieved from (Government of Saskatchewan, n.d.[79])
← 21. Information retrieved from: (Government of Saskatchewan, n.d.[79]).
← 22. Information retrieved from: (IUS, 2012[83]).
← 23. In fact, the Indigenous tribe has the third priority in acquisition. The first priority goes to other government departments or local authorities, if they need the land for public purposes such as building a road. The second priority goes to those from whom the land was acquired, or its successors. Still, this policy places tribes in a much better position to acquire land that is already of their interest.
← 24. Information retrieved from: (LINZ, 2017[84]).
← 25. Information retrieved from (ANAO, 2013[74]).
← 26. Source: Personal communication with Government of Canada.
← 27. Source: Personal communication with Government of Canada.
← 28. Ideal types are simplified models. They express pure typologies, which rarely exist in the world. That is, within countries, more than one type can co-exist and there may be alternatives to them. There is nonetheless conceptual relevance in such simplification.
← 29. See (NAEDB, 2014[37]).
← 30. Canada became a signatory to the Framework Agreement on First Nation Land Management in 1996 with 14 First Nations. In 1999, the First Nations Land Management Act (FNLMA) received Royal Assent, which ratified the Framework Agreement and made it a statutory instrument. Information retrieved from (INAC, 2017[81]).
← 31. For more information about comprehensive community planning, refer to: (FMB, 2018[20])and (Stonecircle Consulting, 2018[89]).
← 32. The First Nations Property Ownership Act, first proposed in 2006, is no longer being debated. The legislative act endorsed the view that private ownership is key to unlock economic opportunities for First Nations. Opponents of the Act alleged that private ownership undermines intergenerational transmission of Indigenous land and the perpetuation of traditional livelihoods. For a defence of the Act, see (Flanagan, Le Dressay and Alcantara, 2010[49]). For a critique, see (Pasternak, 2015[87]). Another reason why this Act deserves scepticism relates to the risks of land fragmentation and absent owners, present in the United States and in New Zealand. The report Linking Indigenous Communities with Regional Development (OECD, forthcoming) contains a more detailed analysis of these risks.
← 34. For more information, see: (Indigenous Services Canada, 2017[82]).
← 35. In verbis: “we find that existing property rights, notably individual rights of lawful possession, have measurably improved housing outcomes on reserve. In addition, private property rights on collectively held land, that is, designated land and permits, are associated with markedly higher band spending and improvements in water quality.” (Aragón and Kessler, 2018, p. 29[50]).
← 36. “A Buckshee Lease is a common term that is used to describe an illegal lease under section 28(1) of the Indian Act, where lands are leased by the First Nation or a CP Holder outside of the provisions of the Indian Act. These types of leases are frequently encountered on Indian Reserves for short term and minimal rental payment leases, because the leasing process under the administration of the AANDC is lengthy, expensive, and time consuming. Where there is a tenancy dispute, the tenant has no rights if the Band or CP Holder wishes to evict the tenant, because the courts have found Buckshee Leases to be unenforceable. A Buckshee Lease has no security of tenure, and the lessee has no right to possession. Buckshee Leases are generally used for recreational or agricultural purposes, campgrounds, or primary residences, and are fairly common in Canada, because of the complexities created by the Indian Act.” (Munnings, 2015, p. 25[70]).
← 37. Regional plans typically contain high-level objectives and policies for growth management, environmental protection, regional-scale infrastructure and economic development (OECD, 2017[55]).
← 38. In a 2018 report, the David Suzuki Foundation notes: “Safe water supply off-reserves is the responsibility of the provincial governments. But First Nations and the reserves they live on fall under the jurisdiction of the federal government. This two-tiered governance structure means that, while most communities benefit from binding provincial water quality regulations, there are no such enforceable regulations on reserves.” (Lukawiecki, 2018[71]).
← 39. Information retrieved from (Johnson, 2009[72]).
← 40. In the words of DEMCo’s CEO, in a 2015 interview: “Before we do anything, we sit down with the community and go through everything that we’re doing. That’s what they want. They want that engagement, that conversation and being able to participate. (…) I think Dene participation will help develop a responsible legislative and regulatory framework. First Nations don’t want to start big initiatives just to make money and then ruin the land and the environment and the water. It’s a balanced approach that has got to ensure that the positive and negative impacts of mining and exploration are well understood” (Renders, 2015[88]).
← 41. This section draws on work published in the report Linking Indigenous Communities with Regional Development (OECD, forthcoming).
← 42. The Nunavut Land Claim Agreement and the Labrador Inuit Agreement both require the conclusion of IBAs for major developments. Some of the NWT agreements require that negotiations commence, though there is no guaranteed outcome.
← 43. Data obtained through personal e-mail communication from Natural Resources Canada, Government of Canada.
← 44. Noting that Indigenous entrepreneurs do not always meet the criteria set in companies’ tendering processes, in terms of financial capacity and skills, IBAs have included additional criteria to support them. Sosa and Keenan (2001[57]) have identified ways that governments can support Indigenous participation in bidding: “a) requiring the mining company and to provide information about the company’s tendering process; b) requiring the mining company or government to give or fund workshops on how to prepare tenders; c) providing extensions to Aboriginal businesses in the preparation of tenders; d) requiring that the company assist Aboriginal businesses to secure financing by, for example, providing them with letters of intent or conditional contracts; or by encouraging Aboriginal and non-Aboriginal enterprises to form joint ventures; e) requiring that the company give Aboriginal businesses advance payments in order to help them to initiate contracts; f) allowing aboriginal businesses to use the company’s infrastructural services, such as roads and airstrips, and g) “unbundling” contracts, that is, dividing complex contracts into smaller, simpler components that are tailored to specific Aboriginal businesses”.
← 45. The two examples were retrieved from Loutit, Mandelbaum and Szoke-‐Burke (2016[61]).
← 46. Available at Search Register of Indigenous Land Use Agreements (2018[85]).
← 47. Case law of the Supreme Court of Canada further reiterates the existence of the duty to consult, but diverge on whether it includes the obligation to achieve consent or not. In the Tsilhqot’in Nation v. British Columbia case (2014), the Supreme Court ruled the Crown must obtain consent from the Indigenous community rather than just fulfil the duty to consult. Other cases attest different interpretations. For a more complete analysis, see (Land, 2016[2]).
← 48. As the OECD Environmental Performance Reviews: Canada further details: “The duty to consult Indigenous groups is a key part of the federal government’s activities. The government of Canada signs consultation protocols with Indigenous groups to create a process for consulting on potential adverse effects on Indigenous rights. (…) In the environmental domain, such consultations concern policy and regulatory development, EA, licensing and permitting, etc. (…) Several provinces (e.g. Alberta and Quebec) are revising policies for consultation with Indigenous peoples to take account of these [from Indigenous peoples] concerns and move towards “co-creating” engagement approaches.” (OECD, 2017, p. 104[55]).
← 49. Information retrieved from: (Parliament of Canada, 2019[86]) (September 2019).
← 50. See the official website: https://www.aadnc-aandc.gc.ca/eng/1553539034821/1553539063871.