There are lessons to be learned from a pragmatic, incremental regime that has advanced self-determination for Indigenous communities.

At the Assembly of First Nations’ annual general assembly in Niagara Falls in July, Prime Minister Justin Trudeau and Justice Minister Jody Wilson-Raybould reiterated a commitment to advancing a nation-to-nation relationship, particularly through more robust self-government and new options to move beyond Indian Act governance. In this context, the quiet success of the First Nations Land Management Act (FNLMA) could hold lessons for the federal government and First Nations communities.

In 1991, a group of First Nations leaders from across Canada came together to develop a proposal to allow First Nations to assume management of their own lands by withdrawing from certain sections of the Indian Act, the legislation that granted the federal government pervasive control over land management on reserves. Negotiations with the federal government began soon after and found form in the 1996 Framework Agreement on First Nations Land Management, enacted in 1999 by the First Nations Land Management Act. The federal government refers to the system set up by the Framework Agreement and the FNLMA as the First Nations Land Management (FNLM) Regime.

To join the FNLM Regime, a First Nation first passes a resolution expressing its interest in doing so. Following approval by the federal government, the First Nation signs the Framework Agreement and is added to the schedule of the FNLMA. In the developmental phase, the First Nation works to draft a land code and negotiate an individual agreement concerning funding with Canada, both of which must be ratified by the First Nation’s membership.

After ratification, the minister of Indigenous affairs signs the individual agreement, which formally transfers land management authority and law-making powers to the First Nation. The First Nation is then operational under the FNLM Regime, and 32 sections of the Indian Act concerning land management no longer apply to it. First Nations can then make laws concerning land, environmental protection and natural resources and can process land transactions without requiring approval from the federal government.

Seventeen years later, 58 of the 615 recognized First Nations in Canada operate under their own land management systems developed through the FNLM Regime. Sixty more First Nations have ratified the Framework Agreement and are in the process of developing land codes and assuming land management authority. Numerous other First Nations have expressed interest in joining the FNLM Regime and are seeking federal approval to do so.

There are now nearly twice as many First Nations using the FNLM regime as there are First Nations that have concluded land claims or self-government agreements over the 43 years since the establishment of the modern treaty process. Joining the FNLM Regime typically takes around two years, while self-government agreements typically take many years if not decades to complete.

The consulting firm KPMG has conducted two studies on the economic impact of the FNLMA, in 2010 and 2014, both showing impressive results. By escaping from crippling paternalistic involvement of the federal government in land management under the Indian Act, First Nations have reported increased investment (both internal and external), increased revenues and increased job creation.

In some cases, processing speeds for First Nations in the FNLM Regime are as much as 35 times faster than under Indian Act land management.

Most impressive, however, have been increases in the processing speed of land transactions (such as mortgages, leases, permits, easements and land interests). In some cases, processing speeds for First Nations in the FNLM Regime are as much as 35 times faster than under Indian Act land management. Further, First Nations operating under the FNLMA report improved relations with corporations and local municipalities. Robert Louie, chair of the First Nations Land Advisory Board, has said, “We are able to respond to business at the speed of business and not wait six months or two years for decision-making with the Department of Indian Affairs.”

The time it is taking for First Nations to draft land codes is consistently declining. Further, increased First-Nation-to-First-Nation support and capacity helps to address issues arising under the regime. The First Nations Land Management Resource Centre, created under the FNLMA, has an increasingly robust support and accreditation regime for participating First Nations. Further, the flexibility of self-management improves possibilities for economic cooperation between First Nations. For example, Chief Austin Bear of Muskoday First Nation in Saskatchewan recently stated, “The inclusion of Mistawasis and Yellow Quill First Nations now means that all seven members of the Saskatoon Tribal Council will be signatories to the Framework Agreement. None of our Chiefs at the table will suffer any longer from the impediments of the Indian Act. We have been waiting many years for this moment so that we can plan joint economic ventures with the participation of all seven communities.”

However, despite the impressive success of this initiative, it has received little attention in the media and the academic community. The FNLMA has barely been mentioned in major media over the past several years.

This lack of coverage is due at least in part to a fixation on fee-simple ownership. Fee-simple ownership involves the right to sell or transfer the title of the property freely. It’s often seen as a panacea for the economic challenges facing Indigenous peoples, not just in Canada but internationally.

Fee-simple ownership is controversial among Indigenous communities because the lack of restriction on alienation of property can eventually lead to the loss of Indigenous land base, as was seen with the Dawes Act in the United States. The FNLMA is less controversial in that, while it does transfer land management authority to First Nations, lands under the FNLM Regime remain reserve lands and are thus inalienable except to the Crown (that is, while interests in reserve lands in Canada can be sold or mortgaged, the land itself can be sold only to the Crown).

In July, the Atlantic ran an article advancing fee-simple property ownership as a path to economic development for Native Americans; it also prominently featured the First Nations Property Ownership Initiative (FNPOI) in Canada. The FNPOI was a proposed piece of opt-in legislation that would have allowed First Nations to grant fee-simple interests to First Nations members. It faced stiff opposition from much of the First Nations community due to an unfortunate history of proposals to privatize reserve land, such as the Dawes Act in the United States and the 1969 White Paper on Indian policy in Canada. With the defeat of the Harper government, which had backed the FNPOI originally, this proposal is all but dead.

Another article, in the National Post in August, profiled Nisga’a fee-simple home ownership reforms in British Columbia. The Nisga’a home ownership program is an interesting development that merits discussion and may be beneficial for some other communities. Yet the fact remains that this reform currently affects 32 houses in one First Nation.

Scholarship on the FNLMA has been somewhat lacking, and what scholarship there is, particularly from proponents of the FNPOI, has in some cases offered criticisms of the FNLMA that are now quite simply inaccurate. For instance, while Thomas Flanagan, Christopher Alcantara and André Le Dressay’s 2010 book, Beyond the Indian Act (which introduced the FNPOI and was widely read), did acknowledge the FNLMA’s effectiveness in reducing transaction costs, it criticized the FNLMA for “leav[ing] each First Nation on its own to develop its own system of property rights” and failing “to provide technical assistance in the form of model land codes and zoning regulations.”

These criticisms ignore the First Nations Lands Advisory Board, in existence prior to 1996, and the First Nations Land Management Resource Centre, operating since 1999 and incorporated in 2004, which provide exactly the support Flanagan and his co-authors say is lacking. Indeed, the 1996 Framework Agreement specifically states that the role of the Lands Advisory Board and the Resource Centre is “developing model land codes, laws and land management systems” as well as “assisting First Nation[s] in developing and implementing” such laws and systems.

With the unprecedented attention to Indigenous affairs in Canada today, the success and popularity of the FNLMA hold several lessons, particularly for advancing self-determination and moving away from Indian Act governance.

The FNLMA is opt-in: only those First Nations wishing to participate are affected. Authority beyond what they may currently have capacity for is not thrust upon First Nations. It also gives First Nations flexibility in drafting their own land codes and environmental regulations to suit their own circumstances and traditions.

At the same time, the FNLMA allows groups of First Nations to enter the FNLMA jointly and to share land management capacity, as the Skowkale, Aitchelitz and Yakweakwioose First Nations (all part of the Sto:lo Nation in British Columbia) did in 2014. This could represent a step in the direction of First Nations reorganization as nations, which has been identified as an option by the federal government.

Consistent financial and First-Nations-led technical support have likewise been important to the success of the FNLMA. The First Nations Lands Advisory Board and Land Management Resource Centre constitute a strong First-Nations-led support network for self-government that grows stronger as more First Nations join the FNLMA. Consistent developmental and operational funding have also been important to ensuring adequate capacity on the part of First Nations, although funding could still be improved, particularly for environmental management.

Incremental steps toward self-determination, such as the FNLMA, can serve to support larger steps, such as negotiating around constitutionally entrenched treaties and self-government agreements.

Further, the FNLMA does not impact, alter or extinguish constitutionally entrenched Aboriginal rights or title, which has proven to be a stumbling block for land claims, self-government agreements and the FNPOI. More broadly, the FNLMA serves as a reminder that while it is important to think big in advancing Indigenous self-determination, this approach should not mean neglecting more incremental and sectoral options.

Incremental steps toward self-determination, such as the FNLMA, can serve to support larger steps, such as negotiating around constitutionally entrenched treaties and self-government agreements. Indeed, Robert Louie describes the FNLMA as “a stepping stone” that can help to prepare First Nations for potentially broader self-government powers under land claims or self-government agreements.

Two of the most economically successful First Nations in Canada, Tsawwassen First Nation and Westbank First Nation, both entered the FNLMA while in the process of negotiating with the government. Following the conclusion of the agreements, those nations have now adopted more robust land management authority.

As a councillor of Wai We Kai First Nations, Justice Minister Wilson-Raybould was in fact a key proponent of the FNLMA and served on the First Nations Lands Advisory Board for several years. Given her current leadership on the Aboriginal and treaty rights file, it seems likely the success of the FNLMA will be kept in mind as the federal government engages in discussions with First Nations on new arrangements for self-government and exiting the Indian Act.

Photo: S. Curtis / Shutterstock.com

 


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