The purpose of this study was to conduct an evaluation of the Additions to Reserves (ATR) Policy. The study was required to assess the performance of the policy and its continued relevance. Although the study was national in scope, particular attention was given to the three regions where the majority of the volume of additions has occurred to date; i.e., British Columbia, Saskatchewan and Ontario.

The objectives of the study were to look at the ATR policy from the standpoint of four main issues:

• Relevancy of the Policy
• Effectiveness of the Policy
• Impact of the Policy
• Effectiveness of Delivery

This review was undertaken by Goss Gilroy Inc. (GGI). Our approach emphasized:

• a review of relevant documentation;
• interviews;
• site visits to Ontario, Saskatchewan and British Columbia;
• detailed compliance reviews of selected additions to reserves files in each of the 3 regional offices visited;
• a presentation of the preliminary findings to the project authority and the program managers at Lands and Trust Services; and,
• a workshop.

Generally the policy is effective and is strongly supported by regions. Compliance is well done. The kinds of issues raised during the evaluation and the recommendations to address them reflect the rapidly changing environment and support the program directions.

Summary of Findings

Overall

Overall, the relevancy and effectiveness of the current ATR policy and regional compliance with the policy are positive.

Relevancy of the Policy

• In light of the current and projected land claims activity, increasing fiscal restraint, increased interest in urban reserves and the inherent right to self-government policy, the policy is still relevant in that it responds to the need for additional reserve land.
• The number of acres that have been added to reserves since 1991 has been relatively insignificant given the number of acres being proposed for addition. The situation in Saskatchewan is particular noteworthy with the addition of only 7000 acres out of a proposed 1.6 million acres.
• The policy does not adequately address: municipal tax loss compensation, the economic rationale, competing/ overlapping claims, and reserves held jointly by more than one band.
• In implementing the policy, the following are not adequately addressed: resolution of third party issues, surplus Crown property, compatibility with municipal by-laws and related enforcement, and significantly contaminated land.
• There are also a number of emerging issues in implementing the policy. These include: merchantable timber in British Columbia, surface access to sub-surface rights (minerals, oil and gas) by third parties, contaminated land, and the net incremental costs to a region in the longer term as the result of an addition.
• Fiscal restraint is affecting the amount of urban and non-contiguous land added to reserve across the country.
• The degree of difficulty encountered by a region to add urban versus rural non-contiguous land under the policy differs from region to region and from case to case. This was confirmed by the workshop participants.
• For municipal and First Nation stakeholders, the guidance provided to them during the process appears to be less than adequate.
• Some First Nations feel that the ATR policy is making it more difficult for them to achieve their goals for self-management.

Effectiveness of the Policy

• The Regional Additions Committees are generally satisfied with the policy and its procedures in handling additions proposals.
• The nature of the Regional Additions Committees (i.e., membership, frequency of meetings, existence of formal minutes, etc.) and the profile (who is responsible for implementing it) given ATR varies from region to region.
• From the point of view of the Department of Indian Affairs and Northern Development (DIAND), the ATR process is a long one; however, all steps are necessary. There is potential for streamlining the process by: modifying specific steps; combining some steps; or, undertaking some steps in parallel.
• Compliance is generally well done. In all regions, compliance was ensured through the Regional Additions Committees, the Regional Directors General, the Department of Justice, and the field officers. The number of "players" involved in reviewing the proposals varied from region to region.
• The costs of proposed additions are not known or well documented. The downstream costs to DIAND are of particular concern.
• To address the gaps in the policy, more specificity is needed to address the economic justification.
• In British Columbia and Québec, the use of a Licence of Occupation to address timeliness is raising concerns at Justice Canada over the potential legal implications for DIAND.

Impact of the Policy

• The specific claims route to add land is generally easier than adding land under other justifications.
• In general, there is concern that First Nations and claims negotiators may not fully understand the implications of the ATR policy on the implementation of claims settlements. The knowledge of the claims negotiators of the ATR process varied considerably and there is a danger that they give out misleading information to First Nations and raise expectations.
• Resolution of third party issues are a growing concern in Ontario, British Columbia and Saskatchewan.
• The addition of urban land to a reserve is usually more complex, time-consuming, and costly than an addition of rural land.

Effectiveness of Delivery

• Proposals for additions are handled consistently within regions regardless of the justification. However, the additions process itself may vary from region to region.
• The procedures involved in the greatest delays or difficulty in the additions process are:

• the federal Order-in-Council (OiC);
• the numerous checkpoints required by the provincial stakeholders; and,
• the timeliness of the band itself in processing their tasks required under the ATR.
• There is potential for streamlining by:

• streamlining specific steps through a (consultative) process involving all stakeholders; and,
• sharing corporate wisdom and lessons learned (from successful ATRs) across the country.
• First Nations' awareness of the site-specific aspects of the policy varied from region to region and within a given region.
• Third party interests are a concern for First Nations and they generally feel that they need more guidance and financial help in resolving them.
• Clearer policy guidelines could, to some extent, help solve and/or expedite many contentious issues (e.g., compensation for municipal tax loss).
• Region-specific procedural guidelines, developed by regions, would be helpful to complement the policy.
• Environmental review procedures are generally done quickly, inexpensively and competently. Some minor concerns have been identified.

Recommendations

Therefore, we recommend:

Recommendation:

1. That the Director of Lands coordinate with regions to identify ways to reduce the time required for the ATR process.

Recommendation:

2. That the Director of Lands convene an annual meeting to discuss Additions to Reserves issues. The agenda will include best practices for emerging issues (e.g., contaminated land), lessons learned, risk assessment, and other relevant information as needed. In addition, ways will be discussed on how to share this information (e.g., an electronic bulletin board).

Recommendation:

3. That the Director of Lands coordinate with the regions to take steps, including the preparation of appropriate documentation, to inform:

• claims negotiators on the Additions to Reserve process, so that
they communicate realistic information to First Nations on roles, responsibilities and time lines, and so that implementation of claims settlements can take place expeditiously;
• First Nations on the Additions to Reserve process and their role and responsibilities in the process to ensure they know what to expect;
• municipalities on the Additions to Reserve policy to ensure they are aware of the policy's implications for them; and,
• other affected parties.

Recommendation:

4. That the Director of Lands coordinate with regions to take action to assist First Nations, municipalities and local authorities to resolve their emerging implementation issues. Possible actions could include the development of best practices and/or new approaches to address these issues, as well as ways to test the effectiveness of such approaches.

Recommendation:

5. That the Director of Lands, in close collaboration with the regions, clarify the current policy in those areas that have been identified in the course of this evaluation as lacking precision.

Recommendation:

6. In order that regions have data which will enable them to determine what actions they should take in advance to ensure they can meet departmental obligations resulting from increased reserve land base, that RDGs undertake to develop an initial five-year projection for their respective regions, to be updated annually, of:

• the human and financial resources required both to process anticipated additions to reserves and to administer these lands once added to reserves; and,
• the related increases in demands on all departmental sectors.

And that RDGs undertake to advise the ADMs of both Lands and Trusts Services and Corporate Services sectors annually of their projections and the actions, if any, they propose.

Evaluation of the Additions to Reserves (ATR) Policy (PDF 224 Kb) in PDF format.

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