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 Agreement 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. 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.