AANO Committee Report

Mr. Chris Warkentin, M.P.
Chair, Standing Committee on Aboriginal Affairs and Northern Development
House of Commons
OTTAWA, ON
K1A 0A6

Dear Mr. Warkentin,

The Government of Canada would like to thank members of the Standing Committee on Aboriginal Affairs and Northern Development (the Committee) for their study on land-use and sustainable economic development and for their report entitled Study of Land Management and Sustainable Economic Development on First Nations Reserve Lands tabled March 26, 2014. The report identifies a number of key issues and challenges that were raised by the more than 70 witnesses who were heard by the Committee between November 17, 2011 and December 3, 2013. The Government agrees that a strategic approach for improving land management and sustainable economic development on reserves is required and is currently undertaking steps to address identified deficiencies while simultaneously looking forward to develop innovative measures in collaboration with First Nations to sever Indian Act constraints and create alternative solutions to improve the well-being of First Nations.

PROGRESS TO DATE

The Committee’s findings echo pronouncements of previous studies and reports, including those published by the Auditor General of Canada, the Standing Senate Committee on Aboriginal Peoples, and the Standing Committee on Finance, that have examined the challenges First Nations face with respect to land and environmental management in the context of economic development. The Government has taken action in response to these findings.

Under the authorities provided by existing legislation and through the establishment of new legislation, the Government has taken steps to improve environmental management on reserves, close the regulatory gap, and build capacity of First Nations. For example, the Safe Drinking Water for First Nations Act, passed in 2013, enables the government to develop, in partnership with First Nations, enforceable regulations to ensure access to safe, clean and reliable drinking water; the effective treatment of wastewater; and the protection of water sources on First Nations land. In consultation with various interested parties, including First Nations communities, the Government established the Wastewater Systems Effluent Regulations under the Fisheries Act in 2012 to create national standards for wastewater treatment. The Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations, made under the Canadian Environmental Protection Act, 1999, aim to prevent soil and groundwater contamination from storage tank systems located on federal and Aboriginal lands, including reserves. Under the Canadian Environmental Assessment Act, 2012, the Government reviews projects on reserve land to ensure that significant adverse environmental effects are identified, assessed and mitigated as necessary.

In addition, a number of policies and programs have been established to support the implementation of these and other legislative tools. These include the Contaminated Sites Management Program, and Aboriginal Affairs and Northern Development Canada’s Environmental Review Process for projects on reserve land. The Government also conducts outreach activities to support the effective implementation of its regulations on reserves. For example, over 60 information and training sessions, involving more than 200 First Nations communities, have been delivered to promote compliance with the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations. There are also various regional activities, including the Government’s work in the Atlantic-Quebec Region to improve coordination of environmental protection through initiatives such as the Atlantic First Nations Housing and Infrastructure Network and the First Nations Environmental Protection and Resource Management workshops. Finally, the Government is working to find opportunities to support or leverage other programs to build First Nations’ capacity, for example, by linking activities under federal conservation laws and programs with Aboriginal Affairs and Northern Development Canada’s efforts to strengthen land-use planning on reserves.

To facilitate sustainable economic development on reserve, the Government committed to establishing an economic development framework in conjunction with Aboriginal peoples and affected stakeholders in Budget 2008, promising $200 million over four years for the implementation of the Federal Framework for Aboriginal Economic Development. As part of the Federal Framework for Aboriginal Economic Development, $19 million has been invested in the Reserve Land and Environment Management Program since 2009. This program fosters land and environmental management capacity of First Nations who operate under the Indian Act. According to the Update on the Implementation of the Federal Framework for Aboriginal Economic Development published in 2012, communities that have completed the Reserve Land and Environment Management training program and that have certified land managers within their community have acquired new revenue-generating land instruments and increased capacity to manage those instruments. Furthermore, the Government has developed a new Locatee Lease Policy and Directive that streamlines leasing activity on reserve which responds to observations in the Report. Furthermore, as part of the Jobs and Growth Act, 2012, amendments to the land designation provisions of the Indian Act were introduced to reduce red tape, expedite the process of leasing reserve land to third parties, and to enable First Nations to operate at the speed of business.

The Government has also facilitated the development of small, medium, and large-scale economic development projects through funding investments and capacity-building initiatives while also contributing to land-use planning pilot projects to develop a shared vision for using lands and assets to build a foundation for sustainable land-based economic development. Further, to increase certainty and provide clarity, we have undertaken to modernize the Indian Lands Registry System in order to create a more user-friendly model while simultaneously streamlining procedures to provide more effective registration of land interests.

In Budget 2011, our Government committed to internally reallocate up to $20 million over two years to increase the number of First Nations participating in the First Nations Land Management regime. In Economic Action Plan 2013, the Government committed $9 million over two years for the expansion of the First Nations Land Management Regime to create further opportunities for economic development on reserve. In September 2013, 28 additional First Nations entered into the First Nations Land Management Act. This regime enables First Nations to opt out of the 34 land-related sections of the Indian Act to exercise control over lands and resources, allowing for community management of development. It continues to be an instrument of choice for First Nation community and economic development efforts and is a step forward toward self-government.

A number of significant pieces of legislation have also recently received Royal Assent, including statutes that improve well-being and provide for First Nation self-determination. These include amendments to the First Nations Commercial and Industrial Development Act, the Yale First Nation Final Agreement Act and the Sioux Valley Dakota Nation Governance Act. These important statutes demonstrate Government action with respect to unlocking economic potential for First Nations, ensuring environmental sustainability, and providing alternatives and tools outside the constraints of the Indian Act.  

The Government has also taken measures to improve the Additions to Reserve process in response to First Nation concerns and has worked with First Nations and other stakeholders to reform the policy and explore potential legislative change so that First Nations can better capitalize on economic opportunities. These measures respond to the recommendations in the Standing Senate Committee on Aboriginal Peoples’ ninth report published in November 2012 entitled Additions to Reserve: Expediting the Process. 

A COMMITMENT TO FURTHER ACTION

The Government is continuing to pursue initiatives that can target the specific challenges encountered by First Nations regarding their lands and economic prosperity. Below is a summary of how the Government is acting on stated plans for future reforms as well as exploring potential initiatives to respond to the recommendations brought forth by the Committee with respect to land and environmental management on reserve.

Improving Environmental Protection on Reserve

Aboriginal Affairs and Northern Development Canada will work in partnership with Environment Canada, First Nations, the provinces and other stakeholders to develop concrete measures to improve environment management on reserve. Specifically, Aboriginal Affairs and Northern Development Canada will develop strategies and options to improve waste management monitoring and enforcement.  Additionally, the Government will continue to support ongoing improvements to the new Environmental Review Process policy in response to the Canadian Environmental Assessment Act, 2012 obligations and will implement the modernized Indian Oil and Gas Act regulations and systems to facilitate further investment on reserve lands while ensuring rigorous controls are in place for environmental protection in respect of oil and gas production.

Improving Land Management on Reserve

The Government remains committed to providing alternative tools to the Indian Act to enhance land-related economic development opportunities and will continue to work with First Nations to develop measures to address identified deficiencies. Moving forward with past commitments under existing authorities, the Government will implement a governance structure to better coordinate support for Aboriginal participation in major projects. Further, the Government will support capacity building for First Nations to conduct land designations via training initiatives; develop a commercial lease template and multi-residential unit lease template to facilitate land-based development on reserve; and develop policies to enable First Nations to have more direct control over the development of designated lands. Our Government will endeavour to build capacity within First Nation communities still operating under the Indian Act to assist them in better capitalizing on land-related economic development opportunities and to improve the registration of Indian lands through the continuance of initiatives such as the Reserve Land and Environment Management Program which provides First Nation communities with the capacity to manage reserve lands so as to capitalize on land-based economic opportunities.

Capitalizing on the First Nations Land Management Regime

Currently, 40 First Nations are operating under their own land codes under the First Nations Land Management regime with the expectation that a total of 90 First Nations will be operational by 2017. The Government will continue to explore options to expand the regime and provide access to First Nations currently awaiting entry. Aboriginal Affairs and Northern Development Canada, in partnership with the Lands Advisory Board, are working with interested First Nations to build the necessary capacity in areas such as governance, communications, and land management and by promoting and supporting economic development activity on reserve. The department also continues to work with Indian Act First Nations to build land management capacity through training initiatives like the Reserve Land Environment Management Program should those communities wish to transition to the regime in the future.

Exploring Innovative Land Management Regimes

In Economic Action Plan 2012, the Government announced its intention to explore with interested First Nations the possibility of developing legislation that would allow private property ownership on reserve land. To date 12 proponent communities have expressed their interest to participate in the First Nations Property Ownership Initiative. Should the initiative move forward, it will be optional, ensuring that First Nations can exercise a choice regarding whether they pursue fee simple ownership of reserve lands. This is consistent with the views of many of the witnesses who appeared before Committee. 

Building on Improvements to the Additions to Reserves Process

The Government is currently working toward the development and implementation of a new Additions to Reserve Policy to improve the process of adding land to reserve. The development of the new policy has included extensive public engagement, particularly with First Nation and municipal organizations and provinces.

The Government has also created the option of pre-reserve designations that are realized before lands are granted reserve status to allow for development to begin in a timely fashion. Currently, First Nations in Alberta, Saskatchewan, and Manitoba can conduct pre-reserve designations for development on lands that have been selected for reserves under a Treaty Land Entitlement settlement or a specific claim settlement. The Government is prepared to explore options with Aboriginal representative organisations, local governments, and other stakeholders to extend the streamlined pre-reserve designation process available to First Nations in the Prairie Provinces to First Nations across Canada.

MOVING FORWARD IN PARTNERSHIP

Our Government is committed to developing innovative policies and programs and in pursuing legislative reform that remedy the unique challenges faced by First Nations on reserve. However, we also recognize the importance of extensive engagement with First Nations and stakeholders in developing any new initiatives, as success is contingent upon collaboration and the establishment of a shared vision. We will continue to forge ahead with our current reforms as well as explore new ideas. We look forward to building on past successes and lessons learned to enable First Nations to better participate in the Canadian economy and capitalize on economic opportunities that reflect their communities’ specific needs.

Sincerely,

Bernard Valcourt, PC, QC, MP