First Nations

Land ManagementFramework Agreement

Presented by:

Lands Advisory Board

© 2004 Lands Advisory Board

Review of Principles

of the

Framework Agreement

29 Principles

Framework Agreement

1. Purpose: To enable First Nations to resume and exercise control over

their lands and resources for the use and benefit of their members without Government interference

2. Approach: First Nations driven; not driven by Government.

3. Application: Applies to existing reserve lands including natural resources

except for oil and gas, migratory birds, fish and atomic energy

4. Process: A Government to Government Agreement; can’t be changed

without First Nation consent

5. Optional to a First Nation which passes a BCR to permit its community to consider developing and voting on their Land Code

6. Unique to each First Nation. Each First Nation develops their own Land

Code that reflects their own laws, priorities, traditions and ways of doing

things

7. Paced: each First Nation will develop their Land Code and ways to

ratify their Land Code, at their own pace

29 Principles

Framework Agreement

8. Involvement: Community-based; at a minimum, all voting members, both

on-Reserve and off-Reserve

9. Transparency of lands’ decisions to the membership through regular

meetings and reporting

10. Accountability to the membership, replacing accountability to the

Minister

11. Sectoral: Replaces land management provisions of Indian Act; other

sections of the Indian Act are not affected.

12. Legal status: A First Nation is unconditionally recognized with all the rights, powers and privileges of an owner of its lands

13. Special relationship to the Crown is retained and title to First Nation

land is not affected

14. Constitutional protections are retained. First Nation land continues to

reserve land under Section 91 (24) of the Constitution Act, 1867

15. Treaty and Aboriginal Rights are not affected – the Agreement is not a Treaty.

29 Principles

Framework Agreement

16. No loss of Reserve land: surrender for sale excluded; no expropriation

by province; strong restrictions on federal expropriation

17. Increase in Reserve land may occur due to a land exchange

18. Provision to exclude certain lands from application of the Land Code, if

lands are in environmentally unsafe condition

19. First Nation not liable for any previous acts or omissions of Canada

20. Protection of a third party interest on Reserve, until that interest has

expired (e.g. valid leases continue).

21. Protection of an individual Band member’s interest on Reserve (e.g.

valid CP’s and other legal interests continue)

22. A separate First Nation lands Register to be set up and maintained for

each First Nation with a Land Code; also National Register

29 Principles

Framework Agreement

23. Power to Enforce First Nation laws including the appointment of a First

Nation’s own Justice of the Peace

24. Local dispute resolution of land issues through out-of-court processes

including mediation, arbitration and neutral evaluation

25. Marital property disposition on the breakdown of a marriage must be

provided for in the Land Code

26. Conflict of interest provisions are mandatory, ensuring fair lands’

practices

27. Federal Funding including developmental, technical and operational

funding

28. Environmental Agreement to ensure First Nations lands are

environmentally safe

29. Transfer Agreement: transfers administration of First Nation

lands and sets out operational funding

The Framework

Agreement on First

Nation Land

Management

COMMENTS

•Nation to Nation: Framework

Agreement was negotiated between

14 FN’s and Government of Canada

•Amended 3 times

•#1: To Add St. Mary’s Band as a

signatory

•#2: To Add Provisions dealing

matrimonial property

•#3: To allow other FN’s to join the

initiative in addition to the original

14

COMMENTS

• originally made February 12, 1996

• has been amended 3 times since

Recitals (The “Whereas clauses”)

• Explains the context and

purposes of the parties; can be

used to help interpret the meaning

of the operative provisions of the

agreement set out later on.

• government to government

nature of agreement

acknowledged

COMMENTS

• Framework Agreement is divided

into 11 Parts

Part 1 – Preliminary Matters

1. Interpretation

1.1: defined terms

Note: “First Nation” defined; this

is one of first pieces of federal

legislation to define and

acknowledge First Nations

“First Nation land” means reserve

land of a First Nation set out in its

land code

“First Nation law” is a law made

by a First Nation under its land

code

“interest” means any legal

interest in First Nation land

COMMENTS

“land code” is the basic land law

adopted by a First Nation in

accordance with the Framework

Agreement

“verifier” is an independent person

whose job it is to monitor the opting

in process of a First Nation and to

review its land code to ensure it

complies with Framework Agreement

requirements

1.3: Framework Agreement is not a

treaty

1.4: Crown’s special fiduciary

relationship with First Nations

continues

1.5: Framework does not affect

rights in lands not subject to

agreement, i.e. aboriginal title to

traditional territory

COMMENTS

1.6: Framework Agreement does not

define or prejudice inherent rights of

self-government or other rights such

as aboriginal rights, or preclude

other negotiations

2. First Nation land

only reserve land is eligible to

be managed under a land code (i.e.

not traditional territory outside

reserve boundaries

2.2: First Nation land includes all

interests in the land

2.3: First Nation land under a

land code remains under federal

jurisdiction (not provincial fee

simple lands)

3: Indian Oil and Gas Act continues

to apply to any First Nation land

COMMENTS

4. Reserves

4.1: FN land under a land code

continues to be reserve under

Indian Act (so, for example, s. 87

Indian Act tax exemption continues

to apply)

4.2: Canada continues to hold

legal title to FN land, but FN will

manage the land under its land

code

4.3 – 4.6: as a general rule the

whole of a reserve (not portions)

must be brought under land code;

exceptions are set out in 4.4

COMMENTS

Part II – Opting In Procedure

process is voluntary; 5.1: FN that

“wishes” to manage its reserves

will first develop a land code

5.2: sets out mandatory

requirements for a land code

description of the lands

rules/procedures for use and

occupancy of FN land

procedures for transfer of

interests under Wills or succession

general rules/procedures for

revenues from natural resources

accountability requirements re:

management of moneys and FN

land

procedures re: making and

publishing of FN laws

COMMENTS

5.2 (cont’d) mandatory

requirements for land code

conflict of interest rules

dispute resolution

rules/procedures for granting or

expropriating interests in FN land

procedures for amending land

code or approving exchange of FN

land

5.3 non-mandatory requirements

for land code

5.4 land code must establish a

community process to develop

rules to deal with spousal interests

in land on marriage breakdown;

rules to be developed within 12

months after adoption of land code;

rules cannot discriminate on basis

of sex

COMMENTS

6.0 Individual FN Agreement

6.1 to 6.4 deal with what is

commonly called the individual

transfer agreement (ITA) between

the FN and Canada; ITA must be

approved by community at time

land code voted on

ITA deals with two things

actual level of operational

funding

specifics of the transfer of

administration of the FN land

from Canada to the FN

COMMENTS

6.4 This agreement can only be

agreed upon by the First Nation

and the Government.

COMMENTS

7. Community Approval

• Both land code and ITA need

community approval as set out

in this clause

• Every FN member, on and off

reserve, who is at least 18 years

of age, is eligible to vote on

approval

• Majority of eligible voters must

vote, and a majority of those

who vote must approve; this

means at least 25% of eligible

voters plus 1 must vote for

approval (this minimum

percentage can be increased by

a FN council)

COMMENTS

Community Approval (cont’d)

7.6: FN must take reasonable

steps to locate eligible voters and

inform them of right to participate

in approval and the content of

Framework Agreement, the ITA, the

proposed land code and the First

Nation Land Management Act (Bill

C-49)

7.7: specifies what “reasonable

steps” can include

7.8: FN must take appropriate

measures to inform other persons

having interests in the lands of

First Nation Land Management Act,

the proposed land code and the

date of the vote

COMMENTS

Community Approval (cont’d)

7.10: An amendment to the land

code must be made according

to procedure set out in the land

code

8.Verification Process

Jointly appointed independent

verifier who has 4 functions

Ensure proposed land code

conforms with requirements of

clause 5

Ensure proposed approval

process conforms with clause 7

Ensure vote is conducted in

accordance with confirmed

process

Certify as being valid a land

code that is properly approved

COMMENTS

Verification Process (cont’d)

8.5: Verifier has power to finally

resolve disputes under clause 4.4

(whether portion of reserve may be

excluded from a land code) and

concerning specifics of transfer of

administration from Canada to FN

8.7: Verifier not authorized to

resolve disputes over funding

8.8: Within 30 days of receiving

documents, verifier to decide

whether proposed community

approval process and land code are

consistent with Framework

Agreement

COMMENTS

9.0 Conduct of Community Vote

9.1: proposed land code and ITA

are to be approved by community

vote

9.3: Verifier and assistants

observe and monitor the vote

9.5: Within 15 days after the vote,

verifier issues written report on

whether vote conducted in

accordance with approval process

previously confirmed

10. Certification of Land Code

• Clause 10 specifies the

procedure for certification by

verifier of land code that has been

approved by community

• Once certified the land code has

the force of law and takes effect

COMMENTS

Disputed Vote

• Minister or any eligible voter,

within 5 days after the vote, may

report any irregularity in the voting

process to verifier

• Verifier will not certify land code if

Process by which land code

approved varied from the

approved process or was

otherwise irregular AND

Land code might not have been

approved but for the irregularity

COMMENTS

Part III – First Nation Land

Management Rights and Powers

12.1: FN with land code will have

power to manage its FN land and

other powers under FA

12.2: Land management power

includes all rights of an owner and

the authority to grant interests and

licences, and to manage natural

resources

12.3: Grants of interests subject to

conditions established in Land

Code

12.4: FN will have full legal capacity

for any purpose related to FN land.

COMMENTS

Land Management Rights and

Powers (cont’d)

12.5: Council, or its delegate, is to

manage FN land and revenues for

use and benefit of the FN

12.6: FN can create legal entity to

administer FN land (e.g. a FN lands

board)

12.7: FN has right to receive and

use moneys acquired on behalf of

FN under land code in accordance

with code

12.8: Once land code takes effect,

revenue moneys previously

collected by Canada are transferred

to FN

COMMENTS

13. Protection of FN Land

13.1 Title to FN land is not changed

when land code takes effect

13.2: Important declaration of

fundamental importance of

maintaining the amount and

integrity of FN land

13.3: FN land cannot be sold; can

only be exchanged or expropriated

as provided in Framework

Agreement

14.Voluntary Exchange of FN land

• These provisions give effect to the

Framework principle that there is to

be no loss of land base through

surrender and sale of FN land

COMMENTS

Voluntary Exchange (cont’d)

Clause 14, in summary, provides

FN land may be exchanged for

other land with approval of

community as required by land code

Exchanged Land is to become FN

land with reserve status; may also

include as additional compensation

land that does not become FN land

with reserve status

15.Immunity from Seizure, etc.

• This clause preserves existing

Indian Act immunities from seizure

or mortgaging of FN land and

personal property situated on a

reserve

COMMENTS

Immunities (cont’d)

15.4: The existing s. 87 Indian Act

tax exemption continues to apply to

FN land

16. Third Party Interests

16.1: Third Party interests existing

when land code takes effect

continue in force according to their

terms and conditions

16.2: Rights of locatees (e.g. CP

holders) to transfer, etc. will be

defined in land code

16.3: No interest can be acquired

except in accordance with land

code

16.4: disputes regarding third party

interests to be dealt with as

provided in land code

COMMENTS

17. Expropriation by First Nations

• If provided for in land code, FN

can expropriate interests in FN land

for community works or other FN

purposes

17.4: Must pay fair compensation

as provided in federal

Expropriation Act

17.6: FN can’t expropriate interests

previously expropriated from

reserve under s. 35 of Indian Act or

interests held by Canada

COMMENTS

Part IV– First Nation Law Making

18. Law Making Powers

18.1: Confers on a FN with a land

code the general authority to make

laws regarding the development,

conservation, protection,

management, use and possession

of FN land and interests and

licences in relation to that land

18.2: Sets out specific examples of

the kinds of FN laws that can be

made. This list has been expanded.

18.3: A land code will not deal with

taxation; section 83 of the Indian

Act will continue to apply

COMMENTS

FN law making powers (cont’d)

18.5: Framework Agreement does

not deal with fisheries

19.0 Enforcement of FN Laws

19.1: To enforce its land code and

FN laws made under the land code,

a FN can create summary

conviction offences, provide for

fines and other means for

achieving compliance, and

establish enforcement procedures

such as inspections and searches.

19.3: FN can appoint Justices of

the Peace for enforcement

purposes

COMMENTS

Enforcement of FN Laws (cont’d)

19.5: Decisions of a Justice of

Peace can be appealed to courts

19.6: This provisions ensures that

Justices of the Peace will decide

cases with independence and

impartiality

19.8: A FN and Canada can

establish arrangements for

appointment, training, supervision

and administrative support for

Justices of the Peace appointed by

a FN

COMMENTS

Enforcement of FN Laws (cont’d)

19.9: FN can appoint its own

prosecutor to enforce its laws or enter

into and agreement with province or

Canada to prosecute offences

20.Application of Federal Laws

20.1: Federal law will continue to

apply to FN land except where

inconsistent with FN Land

Management Act. Land Code is

stronger than Federal law.

20.2-20.3: Federal Emergencies Act

applies on FN land; Atomic Energy

Control Act does also, but subject to

provisions of Part VII dealing with

expropriation by Canada

21.Inapplicable Sections of Indian Act

•The named sections are Indian Act

provisions dealing with land

COMMENTS

• Only those sections of the Indian

Act dealing with land cease to

apply; the balance of the Act (about

75%) continues to apply to FN’s

with a land code

22. Existing FN By-laws

• FN will continue to have authority

to make by-laws under Indian Act

Part V – Environment

23.General Principles

23.1 FN council can make

environmental laws

23.2 Should be environmental

assessment and protection regime

for each FN

23.3 Specific details to be set out

in environmental management

agreement

COMMENTS

23.4 Environmental and

assessment regimes will be

implemented by FN laws

23.5 Environmental regimes of FN

and Canada, and province (if it

agrees), to be harmonized

23.6 Framework Agreement does

not deal with migratory birds or

endangered species

24. Environmental Management

Agreement (EMA)

24.1 EMA to be negotiated

24.2 Province to be involved where

it agrees to participate

24.3 EMA will be plan of how FN

will enact essential environmental

laws and will include timing,

resource, inspection and

enforcement requirements

COMMENTS

EMA (cont’d)

24.4: Essential environmental

areas include solid waste

management, fuel storage tank

management, sewage treatment

and disposal, and environmental

emergencies.

24.5 FN environmental standards &

punishments to at least equal those

of province

24.6 Federal environmental law will

prevail over FN law in case of

inconsistency

24.7 Parties to use best efforts to

sign EMA within one year after

adoption of land code

25. Environmental Assessment

25.1 Best efforts to develop EAP

within one year after adoption of

land code

COMMENTS

Part II – Opting In Procedure

25.2: ITA will address

environmental assessments of

projects until FN EAP developed

25.3: FN EAP to be consistent with

federal Canadian Environmental

Assessment Act (CEA Act)

25.4: When a FN EAP is

“triggered”; to be early in planning

stage

25.5: Section 10 of federal CEA Act

(which deals with projects on

reserves) will not apply on FN lands

25.6: Principle that FN EAP to be

used for project on FN land where

EA required under CEA Act

25.7: Agreement to develop plan

for harmonization of FN, federal

and provincial EA processes

COMMENTS

26. Other Agreements

26.1: Parties recognize it may be

necessary to enter into other

agreements with each other, and

with other jurisdictions

26.2: Province will be invited to

join negotiations for other

agreements where provincial

interests affected

27. Resources

27.1 Canada accepts that FN

obligation to establish

environmental assessment &

protection regimes is dependent on

adequate financial resources and

expertise being available to FN

COMMENTS

Part VI – Funding

28. Appropriations

28.1: Funding by Canada to FN is

subject to appropriation of

necessary funds by Parliament

29. Developmental Funding

29.1: LAB agrees with Canada for

developmental funding

30. Operational Funding

30.1: Operational funding for FN to

be determined in ITA

30.2: Method of allocating

operational funding appropriated

by Parliament to be developed

between LAB and Canada

COMMENTS

30.3: Unless otherwise agreed,

maximum term of agreement for

operational funding under an ITA is

5 years

31.1: Canada and LAB enter into

arrangements for funding of LAB

Part VII – Expropriation

of FN Land by Canada

32. Restrictions

32.1-32.2: General principle that FN

lands will not be subject to

expropriation. However, FN land

may be expropriated, but only with

consent of federal cabinet and only

for a federal department or agency.

32.3: Cabinet will only consent to

expropriation of FN land if

justifiable and necessary for a

public purpose that serves the

national interest

COMMENTS

Restrictions (cont’d)

32.4: Cabinet, before making a

decision to expropriate, will at a

minimum take steps to avoid

having to expropriate FN land, and

where expropriation is unavoidable,

it will take only the smallest

interest for the shortest time

necessary

32.5: Requirement for a special

report justifying a proposed

expropriation

32.6: If FN objects, it can refer the

special report to independent

person for neutral evaluation under

Part IX

COMMENTS

33. Compensation by Canada

33.1 – 33.2: Canada must provide

compensation for expropriation of

FN land, which must include

alternate land of equal or greater

size or comparable value.

33.3: This clause sets out the

elements that compensation is to

be legally based on.

33.4: If compensation not agreed,

FN can refer the dispute to

arbitration

COMMENT

34. Status of Lands

34.1: Where less than full interest in

land expropriated, land remains FN

land, subject to the land code and to

FN law, and the FN may continue to

use the land except to the extent

inconsistent with the expropriation

34.2: Alternate land received as

compensation will become both

reserve and FN land.

35. Reversion of Interest in FN Land

35.1: Where less than full interest

expropriated and land is no longer

required for the purpose for which it

was expropriated, the interest in the

land reverts to the FN

COMMENTS

36. Return of Full Interest in FN Land

36.1 – 36.2: Where full interest in FN

land was expropriated, and it is no

longer required for the purpose for

which it was expropriated, it is to be

returned to the FN on terms

negotiated or settled by arbitration.

COMMENTS

37.1: Federal Expropriation Act

only continues to apply to FN land

where not inconsistent with

Framework Agreement.

Part VIII – Lands Advisory Board

38.1: LAB to consist of at least 3

members appointed by FN’s that

have ratified the Framework

Agreement by adopting land code

38.3: LAB will select chairperson

to preside over it and, subject to

LAB direction, to act on its behalf

COMMENTS

39. Functions of LAB

developing model land codes

and land management systems

developing other model

agreements

at request of a FN, assist it in

developing & implementing land

code, land mgmt systems and

environmental assessment &

protection regimes

establishing resource centre

proposing amendments to

Framework Agreement and FNLM

Act

etc.

COMMENTS

40. Record Keeping

40.1: LAB to maintain records

including each land code that is

adopted and amendments to land

codes

40.2.1 – 40.2.3: Originally only 14

original FN were part of lands

initiative. These provisions were

added by Amendment No. 3 to

allow other FN’s to join the process

by signing an adhesion to the

Framework Agreement.

41. Annual Report

• LAB must prepare and make

available an annual report within 90

days after each year

COMMENTS

42.1: If LAB ceases to exist in

future, the functions of the LAB

under the Framework Agreement

will be performed by the Parties,

subject to the exceptions noted

Part IX – Dispute Resolution

43.1: Principle of resolving

disputes by good faith negotiations

and out-of-court processes

43.2: Parties can use mediation to

assist in resolving disputes

43.3: Disputes arising from

implementation, application or

administration of Framework, FNLM

Act, an ITA or an environmental

management agreement can be

resolved either by neutral

evaluation or arbitration.

COMMENTS

43.4: Disputes about

compensation on expropriation to

be settled by arbitration

44. Panels of Arbitrators, etc.

44.1 Parties and LAB to jointly

establish lists of mutually

acceptable persons to act as

mediators, arbitrators, verifiers and

neutral evaluators

44.4 Individuals appointed must be

unbiased and free from any conflict

of interest and have appropriate

knowledge or experience

COMMENTS

45. Neutral Evaluation

• provides parties with a non-binding

opinion or recommendation

46. Arbitration

• Arbitration is more formal

• Arbitration Panel makes a decision

that is binding on the parties to the

dispute

COMMENTS

47.1: Dispute resolution costs to

be shared equally between parties

to the dispute

COMMENTS

47.2: Person (not a party to the

dispute) who is adversely affected

by a dispute may participate in

dispute resolution process if

parties consent and the person

pays the costs of his or her

participation.

47.3: Decision of verifier or

arbitrator will be final and binding

47.4 – 47.5: Judicial review of

decision of verifier, arbitrator or

neutral evaluator permitted only to

ensure jurisdiction not exceeded or

wrongly declined, and to ensure

observance of rules of natural

justice.

COMMENTS

Part X – Ratification &

Enactments By the Parties

48. Ratification of Agreement

Framework Agreement is ratified

by

a FN when it approves its land

code

Canada, when it enacted the

FNLM Act

49. Enactments by Parties

49.2: If inconsistency or conflict

between the FNLM Act and other

federal legislation, the FNLM Act

prevails

49.3: If inconsistency or conflict

between land code and provisions

of FN law or bylaw under s. 81 of

Indian Act, the land code will

prevail

COMMENTS

Part XI – Other Matters

50. Liability

50.1: FN not liable for actions or

omissions of Canada in relation to

FN land prior to land code

50.2: Canada not liable for actions

or omissions of FN after land code

50.3: Canada to indemnify FN for

loss arising from its actions or

omissions prior to land code

50.4: FN to indemnify Canada for

loss arising from its actions or

omissions after land code

50.5: Protection from liability for

members of LAB, etc. for things

done in good faith

COMMENTS

51. First Nation Lands Register

• Canada is to establish a FN Lands

Register to record documents

respecting FN land

• separate register for each FN with

a land code

52. Status of Documents

52.1: Statutory Instruments Act

(which requires publication of

federal regulations in Canada

Gazette) does not apply to a land

code or FN laws

53. Provincial Relations

53.1: Where Canada and a FN

intend to make an agreement not

dealt with in but required to

implement Framework, province

will be invited to participate where

its interests affected. This is only

where it would effect land.

COMMENTS

54.1: Time limits can be waived by

consent

55. Other Regimes

55.1: A FN can opt into other

regimes providing for community

decision-making and control

55.2: Clause 38.1 (right to appoint

members to LAB) and clause 57

(right to approve amendments to

Framework) do not apply to a FN

that opts into another regime

56. Review Process

56.1 LAB on an ongoing basis will

consult with Parties to assess

effectiveness of lands initiative

56.2 This Joint Review was

conducted; other FN’s now able to

join the lands initiative

COMMENTS

57. Amendments

57.2: No amendment to Framework

will affect the powers, authorities,

obligations, operations or

operational funding of a FN that

has ratified (i.e., adopted its land

code) without that FN’s consent

57.3: Amendments to Framework

require consent of Canada and 2/3

of the FN’s which have ratified (i.e.,

have adopted a land code).

58. Recital refer to headings.

“Whereas”, and “preamble” on pg 1

can be used to interpret L.C.

COMMENTS

59. Coming Into Force

59.1: As between Canada and a

particular FN, the Framework

comes into force when both have

ratified (Canada ratified by enacting

FNLM Act; FN ratifies by adopting a

land code)

59.2: This clause is spent. It dealt

with the situation before the

enactment of the FNLM Act.

Thank You!

For more information:

Visit the LAB website at

http://www.fafnlm.com