Canada Gazette

Whereas, pursuant to section 45 of the First Nations Land Management Act (see footnote a) , the Governor in Council is satisfied that the signing of the Framework Agreement, as defined in subsection 2(1) of that Act, on behalf of the first nations listed in the annexed Order has been duly authorized and signed;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to section 45 of the First Nations Land Management Act (see footnote b) , hereby makes the annexed Order Amending the Schedule to the First Nations Land Management Act.

1. The schedule to the First Nations Land Management Act (see footnote 1) is amended by adding the following after item 14:

Pursuant to section 45 of the First Nations Land Management Act (FNLMA), this Order requests the Governor in Council's approval to amend the schedule to the FNLMA enabling an additional 22 First Nations to become parties to the Framework Agreement and to participate in the alternative regime for land management.

The FNLMA is the formal legislation which ratifies and brings into effect the Framework Agreement. The FNLMA, was introduced as Bill C-49 in June 1998, and received Royal Assent on June 17, 1999. The Framework Agreement and the FNLMA contain provisions that enable other First Nations to be signatories to the Framework Agreement and in March 2002, the Government committed to opening the Framework Agreement and the FNLMA to other First Nations.

The FNLMA and Framework Agreement provides signatory First Nations with the opportunity to opt out of the land administration sections of the Indian Act and establish their own regimes to manage their land and resources, providing them with more decision making at the local level.

The First Nations added to the schedule pursuant to section 45 include; Beecher Bay First Nation, Kitselas First Nation, Osooyoos First Nation, Skeetchestn First Nation, Sliammon First Nation, Songhees First Nation, Tsawout First Nation, Tsawwassen First Nation, Tsleil-Waututh (Burrard) First Nation, Ts'Kw'Aylaxw (Pavilion) First Nation, Kinistin First Nation, Whitecap Dakota/Sioux First Nation, Chippewas of Kettle and Stony First Nation, Dokis First Nation, Garden River First Nation, Mississauga First Nation, Moose Deer Point First Nation, Whitefish Lake First Nation, Kingsclear First Nation, Muskeg Lake First Nation, Chippewas of the Thames First Nation, and McLeod Lake First Nation.

Currently, the Minister of Indian Affairs and Northern Development has wide ranging discretion regarding the use of reserve lands and resources. As a result of these provisions, First Nations have little direct control over the management of their lands and argue that procedural requirements imposed by the Indian Act complicate and delay land transactions. The FNLMA regime provides participating First Nations with the ability to create modern tools of governance over their lands and resources.

Each First Nation will develop a land code setting out the basic rules for the new land regime. Each participating First Nation must also enter into an individual agreement with the Government of Canada to determine the level of operational funding for land management and to set out the specifics to their transition to the new regime. Once the land code and the agreement are adopted by the First Nation membership and are in effect, the land administration provisions of the Indian Act no longer apply to the community.

There are no alternatives to this Order. The Framework Agreement and in particular, the FNLMA represent a statutory basis to support First Nation self-governance in the area of land management. It is only through an order that First Nations can be added to the schedule under the FNLMA.

The department is committed to funding this initiative through the reallocation of departmental resources. It is anticipated that levels of funding, including the opening up of the FNLMA regime to other First Nations will be in the area of $19 to $25 million a year over the next five years. These costs are based on the Minister's desire to have a "rolling thirty" First Nations in the transition process at any one time. The transition process has been streamlined due to the cooperative work of the Lands Advisory Board, the Minister of Indian Affairs and Northern Development and the signatory First Nations, particularly with the development of model land codes and transfer agreements.

Interdepartmental consultations on the decision to open up the FNLMA were attended by representatives of the Privy Council, Finance Department, Treasury Board Secretariat, Health Canada, Canadian Environmental Assessment Agency, Public Works and Government Services Canada, Natural Resources Canada, Environment Canada, Department of Justice and Canadian Heritage.

The opening up of the FNLMA regime to other First Nations has received much support, including the full membership of the Lands Advisory Board which consists of chiefs of the original signatory First Nations.

The Native Women's Association of Canada (NWAC) and British Columbia Native Women's Society (BCNWS) have filed a claim against Her Majesty the Queen, alleging breaches of the equality rights of the Canadian Charter of Rights and Freedoms by the Indian Act and the FNLMA. The claims included a specific reference to the silence of the FNLMA with respect to matrimonial real property.

Subsequently, the Framework Agreement and the FNLMA were amended prior to Royal Assent to include provisions requiring First Nations under the FNLMA to pass laws relating to matrimonial real property within 12 months of a First Nations' land code coming into force. The matrimonial real property laws are to reflect the wishes of the respective communities.

Discussions with the provinces have shown that they remain supportive of the initiative.

Terry Faubert
Senior Project Officer
FNLMA — Major Initiatives
Lands and Trusts Services
Department of Indian Affairs and Northern Development
Telephone: (819) 953-9824
FAX: (819) 997-8522