FirstNationsLand Management Initiative- Stephen Wells, INAC

Stephen began by explaining the current situation regarding ownership and control of lands in First Nations communities (“reserve lands”). Reserve lands are owned by the federal government of Canada. The Indian Act guides how these lands are managed. Western First Nations communities wanted more control over their own lands. Fourteen [14] First Nations worked out a framework agreement in 1996. St. Mary’s Mi’kmaq band in New Brunswick was one of the fourteen. The Lands Advisory Board was established to deal with these new agreements. The government of Canada passed an Act in Parliament in 1999 to allow First Nations to manage their own reserve land. All responsibility for land transactions uncer this Act is the bands’. (Website: Other First Nations wanted to do the same (i.e. manage their own lands), and the government made provision for 30 bands to join the framework agreement within 2 years (2002-04). More will join as time goes on.

The Lands Advisory Board has a technical resource centre to help any First Nations community that wants to join the initiative. Any band that wishes to join the initiative must submit a band council resolution to that effect. An independent verifier is appointed in each case. Each First Nation must make up its own regulations, land practices code, etc. These can mirror the Indian Act, but most don’t want to do that.

If a First Nation wants land developed, the process takes two years, and then Canada would lease the land (under the present system?). Under this new initiative, the First Nation does the leasing. A database like the provincial registry of joint stock companies is created. A phase one environmental assessment is done by INAC, then a legal land description (a survey). They should be able to address any disputes around the interior?? The First Nations can get revenue via a Trust Fund, and at present they must apply for this through INAC. Eventually bands will have control over all of this.

Each band joining the initiative must have a community approval process. The process includes anyone off reserve. The decision must go to a community vote. On the first ballot, 50% of the band membership must vote, and 50% of them must vote in favour. KingsclearNB is planning a community verification vote for November 2006.

Charlie D. asked if there has been any interest from local First Nations communities. Stephen W. replied there has been no interest expressed yet from any Nova Scotia bands. Jason N. asked if there was more interest from urban bands? Stephen W. said no, but most bands undertaking this are in the Western part of Canada. He also explained that in the province of Quebec, the provincial government still owns the reserve land; therefore this process cannot be undertaken there.

Fred B. asked, if say a local band wanted to protect their water supply they would have to go through the old system; would this new initiative make a process like that faster? Stephen W. replied that there is no fast-tracking under the Indian Act, but it is possible to protect water under that Act.

A discussion ensued about how lands are administered.

Fred B. asked if a band could establish a water utility commission. Stephen W. replied, yes a band could do this under Section 18.2 of the Indian Act. It must be registered, and the process would take 3 to 4 mos.

Lindiwe MacDonald asked if you would need a community vote for this. Stephen W. replied, no just a band council resolution. Each First Nation under this new initiative must make sure regulations are properly enforced. Bruce H. commented that it is a positive step to give control of lands to a social entity: it represents investment in the community. Bruce H. also asked if there is some sort of template which INAC considers to be an ecologically sustainable model, do bands just reinvent the plan each time? Stephen W. replied that there is a model, which each band must review; they then can revise it or they can adopt it as written. It’s a very time-consuming processs. Bruce H. suggested a this template may be useful to the CEPI committee, is it possible to obtain a copy? Stephen W. offered to get this information for the committee, if it is possible.

Bruce H. then asked about the definition of “land” – does it include adjacent water? Stephen W. replied that in this context, land is whatever can be considered Crown land in Canada – if Canada doesn’t own it, Canada cannot give control of it. Water lots are recognized, however.

Charlie Dennis asked for a definition of a “water lot”. Stephen W. gave a definition of a water lot, and indicated there is some conflict between federal and provincial ownership. Wagmatcook may possibly be adding a water lot to their reserve lands. Bruce H. further clarified that water lots exist under provincial law. Dave H. explained that the province of Nova Scotia has deeded some water lots to the federal government. Bruce H. said owning a water lot is different from leasing one – you have more control; yet the water and marine life are still not under the lot holder’s control.

Stephen W. continued with his explanation of the lands management process. After the community has ratified the land use code, the band has to determine a start date, and inform all interested/affected parties. Within 12 mos., matrimonial and property law must be deal with. An environmental management agreement is signed by Environment Canada and INAC, and an Environmental Assessment must be done within 12 mos.

The floor was opened up to questions for Mr. Wells. Fred B. asked about ownership of water, and who has jurisdiction over mineral rights and groundwater? Stephen W. replied that in Western Canada, mineral rights on reserve lands are retained by the First Nations. In Atlantic Canada, the province retains the mineral rights and jurisdiction over groundwater. Charlie D. remarked that there is extensive wood harvesting going on in the Eskasoni watershed, with large machines driving in the river. Who protects the river? Stephen W. explained that if the river is within federal lands, then protection is a federal responsibility. A timber permit must have been issued, and all relevant environmental requirements met. Often these permits are simply not applied for, or in the case of wood being harvested for personal use, a permit is not required. There is a $100.00 fine for harvesting timber without a permit. It is a serious issue, and can be addressed under the new initiative we are discussing. It can be difficult to stop abuses of forest land. INAC must do an investigation if there are complaints. Jason N. asked if a band member could sue another for cutting without a permit, or if the harvest etc. is not carried out properly. Stephen W. said litigation is possible, but you don’t sue another band member, you sue INAC. Charlie D. remarked there are also some issues about the gravel pit in Eskasoni, some gravel may have been sold off reserve. Stephen W. said INAC is still working on this. The band council denies gravel is being sold off reserve. Really, the problem is with the Indian Act – bands need to have more control over their own resources.

Jason N. asked if there is support for bands to develop capacity and expertise in land management and planning under the FNLMI. Stephen W. responded, no, but lands management experience is not required to start this process. INAC will assist any bands wishing to access this initiative. They have a resource centre, etc. Managing lands is very cumbersome and complicated under the Indian Act. A band can never go back under the Indian Act after they have accessed the FNLMI and developed their own land practices standards and codes.

Bruce H. offered that, in an area where good land management is difficult to achieve, Jason’s question about capacity is critical. If initiatives fail, the consequences may be far-reaching. How satisfied is INAC that what emerges from these efforts are objectively verifiable codes that can be effectively implemented?

Stephen W. stated that all effort is made to ensure the bands and community members are fully aware of what they are committing to. Bruce H. asked if there is a transfer of funding from INAC to each band to support the effort. Stephen W. indicated that operational funding is transferred from INAC to the band. There are guidelines, and the arrangement is negotiated between INAC and the band involved.

Lindiwe MacDonald asked if capacity building is included in funding considerations. Stephen W. replied, no, that is separate. Lindiwe M. emphasized it is necessary to ensure resources are in place to do things properly. Stephen W. said those involved on both sides are accountable to the community

Fred B. inquired as to have this worked with regard to streams, and other things under provincial jurisdiction. Stephen W. replied any damage could be stopped through the relevant federal or provincial legislation, nothing more is needed. Charlie D. said he thinks this is a very good idea. However, the cycle of chief and band council elections (every 2 years) makes it difficult to obtain continuity and to get things done within the bands. This is a big problem for all management on all reserves. Land is a limited resource; this is true for all Unama’ki bands. There are problems, such as silt runoff into the Bras d’Or after a heavy rain, which need to be addressed. Stephen W. stated in such cases a strong land management committee is needed within the band. B

Bruce H. commented that First Nations spiritual connection to the land and cultural values could lead to developing superb land management committees and plans, new models for same, etc.

Charlie D. asked Stephen W. to please see if Stephen could get the planning template for the committee to examine.

Many thanks to Stephen W. for coming to this meeting to explain this important initiative.