Canada: First Nations Land Management – Project Development And Compliance With First Nations Laws

Since 1999, First Nation communities in Canada have had the opportunity to assume management and control of their reserve lands and resources from the Government of Canada. As a result, in addition to any applicable laws enacted by federal or provincial governments, parties partaking in the development of projects on First Nation lands must also be aware of the laws implemented by the First Nation communities themselves (i.e., the third order of government) with respect to such First Nation lands.

First Nations Land Management System

Following a proposal by several First Nation communities to the Government of Canada regarding First Nation lands and resources, and following negotiation of the Framework Agreement on First Nation Land Management (the "Framework Agreement"), the First Nations Land Management Act (S.C. 1999, c. 24) ("FNLMA") was enacted to ratify the provisions of the Framework Agreement and set out a system under which the Government of Canada would transfer control over First Nation lands and resources to individual First Nation communities.

FNLMA originally applied to only a handful of First Nation communities. However, since being enacted, dozens of additional First Nations have sought to be included under the Framework Agreement. Over 100 First Nation communities have sought to be added as a party to the Framework Agreement and to be included under FNLMA's provisions in order to implement measures to exercise more control over the administration and management of their lands and resources.

One of the key components under the FNLMA system is the creation by each First Nation of their own land management regime, including development and implementation of an individual land code. Once implemented by a First Nation, its unique land code governs the administration of the First Nation's reserve lands and resources, including the ability to enact laws with respect to environmental protection, third party interests, expropriation and other matters regarding land management.

Moreover, a First Nation community that implements a land code is no longer subject to the application of the land management provisions of the Indian Act (RSC 1985, c. I-5) with respect to the First Nation's reserve lands and resources. While there are some matters which remain subject to the provisions of the Indian Act, such as taxation of real property, implementation of a land code transfers responsibility and control over the First Nation's reserve lands and resources from the Government of Canada to the First Nation, with the power and authority to administer laws implemented by the First Nation, including the enforcement and penalties for non-compliance with such laws.

While details regarding the criteria and specific procedures for First Nations to qualify under FNLMA are outside of the scope of this article, there are currently dozens of First Nation communities across Canada which are either developing or operating under their own land codes.

Impact on Project Development on First Nation Lands

Under the FNLMA system, First Nations that are FNLMA signatories and that have implemented a land code have gained an additional measure of sovereignty over their reserve lands and resources that they have not had in recent history.

This First Nations land management system allows participating First Nations to enact laws, including those governing the development, conservation, protection, management, use, possession and expropriation of First Nation lands, which provides First Nations the right to exercise control over those matters that may currently be governed under federal or provincial laws. Some examples of the types of laws contemplated by the Framework Agreement1 are:

  • laws on the regulation, control and prohibition of zoning, land use, subdivision control and land development;
  • laws on the creation, regulation and prohibition of interests or land rights and licences in relation to First Nation land;
  • laws on environmental assessment and protection;
  • laws on the provision of local services in relation to First Nation land and the imposition of equitable user charges; and
  • laws on the provision of services for the resolution, outside the courts, of disputes in relation to First Nation land.

The creation of new laws by a First Nation with respect to the management of the First Nation's lands and resources, particularly any laws with respect to the protection of the environment, can have a significant impact on the planning, development, construction and operation of projects on First Nation lands. It is imperative that parties proposing or participating in the development of projects on First Nation lands research and review the provisions of the First Nation's land code and any laws enacted thereunder, if applicable, to ensure legal compliance with them.

Administration and Enforcement of Environmental Laws

While enhancement of First Nation control over First Nation lands and resources is indeed laudable, the FNLMA system creates inherent risks with respect to the coordination of federal, provincial and First Nations laws, specifically environmental laws.

The intent of the provisions of the Framework Agreement, FNLMA and associated requirements is that any First Nation land code, or laws enacted under a land code, with respect to environmental protection will, at a minimum, have the same effect as federal environmental laws and environmental laws in place under the laws of the province in which the First Nation community is situated.2 And, in fact, the wording of Section 21(2) of FNLMA implies that a First Nation community may implement laws for the protection of the environment which exceed provincial laws.

However, whether any laws enacted by First Nations with respect to protection of the environment are equivalent to, or exceed, federal and provincial environmental laws, it may be difficult to achieve the desired intent of such environmental laws if the administration and enforcement resources available to such First Nations are not equivalent to the resources which federal and provincial governments allocate for administration and enforcement of their own environmental laws.

Administration and enforcement of environmental laws enacted by a First Nation community will only be as effective as the resources that the community has to administer and enforce such laws. Unless the community has, or is provided, the appropriate resources, there is a risk that such laws will not adequately be administered or enforced to the extent intended under such laws. This is a live issue that needs to be monitored and addressed by federal, provincial and First Nation governments in order to ensure that desired environmental protection outcomes are reached, and that parties participating in the planning, development, construction and operation of projects on First Nation lands are provided some level of certainty with respect to applicable laws for such projects.

As a result, any parties participating in development of projects on First Nation reserve lands must not only be aware of whether such First Nation is a signatory under FNLMA, but must also inform themselves as to whether the First Nation has implemented a land code and enacted any laws, particularly environmental laws, under such land code. It is recommended practice that any participating party also familiarize themselves with any such First Nation land code and laws enacted thereunder to identify any potential inconsistencies with federal or provincial environmental regimes or additional associated requirements; this exercise will help participating parties achieve compliance with applicable First Nations laws and avoid any project delays that may arise due to administration and enforcement of such laws.

Footnotes

[1] Section 18.2, Framework Agreement on First Nation Land Management

[2] Sections 21(2) and 40(1), the First Nations Land Management Act (S.C. 1999, c. 24)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions