First Nations Land Management Act

As a general rule, Canada’s First Nations are governed by the Indian Act.  It sets out the general structure of First Nations Government, as well as defining the limits of a Band Council’s law-making powers.  (This is not to say that all First Nations have accepted the rules set by the Indian Act – see the Guide Page on Self-Government for more information). 

The First Nations Land Management Act was the result of negotiations between Northern and Indian Affairs Canada and 14 First Nations from across Canada that were dissatisfied with the limited powers given them under the Indian Act.  In 1996 the federal government and the First Nations agreed to a “Framework Agreement”, aimed at promoting increased self-management and economic development on reservations.  The Framework Agreement was then made into law through the Act, which allows other First Nations to choose to adopt the powers (and responsibilities) created by the Act. 

The following B.C. First Nations were among the 14 original First Nations signatories to the Framework Agreement: West Bank, Musqueam, Lheit Lit’en (Fort George), Nauatqua (Anderson Lake), and Squamish First Nations.  Since then the following First Nations have also signed the agreement:  Beecher Bay, Tsawout, Tsawwassen, Songhees, Pavilion, Burrard, Sliammon, Osoyoos, Kitselas and Skeetchesn.

The Land Code

The First Nations Land Management Act allows a First Nation to develop a “land code”, described as the “basic land law of the First Nation”.  The land code will replace, and can significantly expand, the sections of the Indian Act related to land management on reserves.  In order to be valid, the Land Code:

·         Must address various required issues, including the area to which the Code will apply; rules governing the use of First Nations land and the collection of revenue from resources on those lands; rules on how the First Nations government will be accountable to its members; a dispute resolution process; and various other issues;

·         Receive the approval of the First Nations community, usually through a referendum; and

·         Must be verified by an individual picked jointly by the First Nation and the Minister as being consistent with all the requirements of the Framework Agreement.

Each land code will convey different powers and restrictions on a First Nation government.  In determining the powers of a particular First Nation in relation to watershed protection, it is necessary to look at the Land Code. 

Powers that will generally be granted under a Land Code include powers to:

·         Collect and use revenue from resources on the First Nation lands;

·         Expropriate (or purchase from an unwilling seller) interests granted within the First Nations lands for

·         Create laws “respecting the development, conservation, protection, management, use and possession of First Nation land and interests and licences in relation to that land”, including zoning, the granting of rights, and regulation, of use of resources, environmental assessment, etc.; and

·         Enforce laws, including imposing fines, imprisonment, community service, restitution or other penalties for offenders.

Environmental Management Agreement

Before a First Nation enacts a law “respecting environmental protection” under a Land Code, it must negotiate an agreement with the federal Ministers of Indian and Northern Affairs, and Environment.  The provincial Minister of Environment can be, but does not need to be, involved in an agreement of this type. 

The Environmental Management Agreement (as it is called under the Framework Agreement) must ensure that the standards of environmental protection created by the First Nation’s laws are equal to, or better than, the laws of the province.  In addition, it must require an environmental assessment process to apply to all projects carried out on First Nations land that fall under the First Nation’s powers. 

Environmental Management Agreements can deal with other environmental concerns, and the Framework Agreement contemplated that they would address at least:

·         Solid Waste Management;

·         Fuel Storage Tank Management;

·         Sewage Treatment and Disposal; and

·         Environmental Emergencies.

Other Issues

In addition to the above, the First Nations Land Management Act creates other powers and rules less directly related to watershed management.  These include:

·         Restrictions on the transfer of First Nations Lands;

·         The Creation of a Land Advisory Board to advise on the development of land codes, etc.; and

·         Providing funding arrangements for First Nations governments.

Related Guide Pages:

·         Indian Act

·         First Nations Government

·         Aboriginal Rights and Title

For more Information on the First Nations Land Management Act:

·         The First Nations Land Management Act

·         The Land Advisory Board website contains a Summary (and complete text) of the Framework Agreement as well as sample Land Codes adopted by several First Nations.

·         Northern and Indian Affairs Canada website