Frequently Asked Questions - Additions to Reserves
Q1. What is an addition to reserve?
A1. An addition to reserve is a parcel of land that is added to the existing land base of a First Nation or is used to create a new reserve. The legal title to the land is set apart for the use and benefit of the First Nation making the application. Land can be added to reserve in rural or urban settings.
Q2. What are the reasons for adding land to reserve?
A2. There are many reasons why a First Nation may seek to add land to reserve. The existing federal ATR policy allows for additions to reserve to be proposed to fulfill a legal obligation (such as a treaty land entitlement or a claim settlement agreement), for community growth or for the creation of a new reserve. ATRs are categorized as:
- Legal Obligation – includes additions to existing reserve and creation of new reserves resulting from a treaty or claim settlement agreement, court order, or legal reversion (a legal interest in the lands that had been held by another party has ended).
- Community Additions – including for normal community growth, geographic enhancements or return of unsold surrendered land.
- New Reserves/Other – creation of new reserves for social or commercial needs that cannot be addressed under another form of land holding; provincial/territorial land offerings or return of unsold surrendered land; needs of landless First Nations and community relocations.
- A new category was added in 2011 to allow for ATRs arising from decisions of the Specific Claims Tribunal.
Expanding the reserve land base through additions to reserve is also an important mechanism by which First Nations can foster economic development in their communities for the benefit of all Canadians.
Q3. What is the federal ATR policy and when was it last updated?
A3. The federal Additions to Reserve policy (PDF, 149 Kb, 73 pp.) was created by the Government of Canada in 1972 and was last updated in 2001. The ATR policy sets out the conditions and issues to be addressed before land can become reserve and attempts to balance the interests of all levels of government (First Nation, federal, provincial/territorial and local government). The policy was created to fill a legislative gap, as ATRs are not addressed in the Indian Act or other federal legislation.
Q4. What are the existing criteria for ATR proposals?
A4. The existing criteria provide that each ATR proposal must be assessed to ensure certain basic criteria are met, including that:
- There are no significant environmental concerns;
- Reasonable attempts have been made to address the concerns of local or provincial/territorial governments;
- The proposal is cost-effective and the necessary funding has been identified within operational budgets;
- Third party legal interests (i.e., leases, permits and rights of way) have been addressed; and
- Issues of public access and the provision of public utilities have been addressed.
Q5. What is the current process for adding lands to reserve?
A5. The procedures for ATR depend on whether the land to be added is federal land, provincial/territorial Crown land or land that is privately owned. Depending on who owns the land in question, various partners will need to be involved in the ATR process. There are generally three stages to the process: (1) acquisition of land by the First Nation, (2) stakeholder negotiation and (3) approval of the ATR by the Minister or the Governor in Council.
Step 1: Acquisition of Land by the First Nation
Establishing the fair market value of lands is an important step in the process of adding land to reserve, particularly where urban or resource-rich lands are being sought. However, some First Nations have observed that private land holders inflate the value of their land once they are made aware that a potential buyer is a First Nation. This is known as predatory pricing and it can deplete the financial resources of the First Nation and limit their future purchasing options.
Step 2: Stakeholder Negotiation
In recognition that reserve communities and local governments coexist side-by-side, the Government of Canada promotes a "good neighbour" approach, which means that any discussions between First Nations, local governments, provinces/territories and private land owners should be conducted with good will, good faith and reasonableness. Issues of mutual interest and concern must be resolved through negotiation.
Some of the most common issues that arise in stakeholder negotiations are:
- Tax considerations - Lands within a town or city that become reserve are no longer subject to taxation by the town or city and agreements for tax loss compensation can be particularly challenging to conclude. This problem occurs most frequently in urban areas where much of the land is privately owned and has a higher market value.
- By-law harmonization – Local, provincial/territorial and First Nation governments must come to an understanding as to how by-laws of each jurisdiction could be harmonized.
- Impact on provincial/territorial policies and plans – The First Nation must notify the province/territory in writing of the ATR proposal and give them the opportunity to assess the potential impact on their existing land use plans and program delivery.
- Third party access – A private land owner may require access to a highway or water course around the reserve.
- Existing leases, licences and permits – A private land owner may have existing rights to the surface and/or subsurface of the land.
For successful and meaningful negotiation, the First Nation must identify the proposed land use as this will reveal the needs of the First Nation community and potential impacts on surrounding communities.
This step in the negotiations is complex and can often cause lengthy delays in the ATR process, particularly if an impasse is reached. While third-party dispute resolution is the responsibility of First Nations, the Government of Canada will continue to provide support to First Nations to strengthen and enhance the negotiation process.
Step 3: Approval of ATR by the Minister or the Governor in Council
Requests for ATR are reviewed by regional ATR committees and other officials within Aboriginal Affairs and Northern Development Canada to ensure the requirements of the ATR policy have been satisfied. In most cases, the Governor General has the final authority to approve ATRs. In the Prairie Provinces, the Minister has the authority to approve ATRs when either of the two federal Claim Settlement Implementation Acts applies and the First Nation chooses to invoke the applicable Act.
Q6. How do First Nations acquire new land for ATR proposals?
A6. A First Nation can acquire new land through a settlement agreement or by purchasing land on a willing seller-willing buyer basis. The Government of Canada does not expropriate private property to settle land claims, nor is anyone asked to sell their land unwillingly.
Q7. Who is involved in adding land to reserve?
A7. A number of different entities and levels of government may be involved in processing an addition to reserve proposal. These include the First Nation proposing the ATR and, potentially, any other First Nation that may have some claim or connection to the land in question; the provincial/territorial government (who may need to transfer ownership and jurisdiction of the land to Canada); the local government (who may need to resolve issues concerning the ongoing provision of local government-type services such as road clearing, water and sewer, etc.), and various third parties such as hydro and telephone utilities (who may require ongoing land tenure for their infrastructure situated on the land in question). Each land parcel identified as a potential ATR must be reviewed to determine the specific set of issues that will need to be resolved, and therefore identify the parties that will need to be involved in the process.
Q8. What are the benefits of urban reserves?
A8. An urban reserve is defined as a reserve within or adjacent to an urban local government or centre, whether a small town or a major city. Urban reserves offer First Nation businesses the chance to establish themselves and provide employment and training opportunities. There are now more than 120 urban reserves across Canada.
Urban reserves offer First Nation members economic opportunities that are generally unavailable in more remote areas. Urban reserves can be a stepping stone for the development of new Aboriginal businesses and a way into the mainstream job market for many First Nation people. With increased economic development comes increased self-sufficiency. Stronger First Nations mean a stronger Canada. The benefits of urban reserves also extend to neighbouring local governments.
Urban reserves can contribute to the revitalization of a local government by providing much-needed economic stimulus to urban centres. In addition to the revenue derived from local government service agreements, urban centres also benefit from job creation and new taxation revenue generated from off-reserve spin-offs of First Nation businesses.
Q9. Does the general public have a role in ATRs?
A9. First Nations are encouraged to involve and engage the general public as early as possible in the planning and development phase of an ATR proposal. The federal ATR policy provides members of the public who have interests in the land opportunities to be notified of a proposal and to express their views.
The nature and extent of public dialogue/consultation varies depending on the characteristics of the land being considered for an ATR. First Nations and local governments jointly decide how and who to consult.
Q10. What role do other levels of government play in the process?
A10. The federal ATR policy requires that provinces/territories and local governments be notified and consulted when lands have been selected for ATR. The federal government promotes a "good neighbour" approach that involves negotiating issues of mutual concern and interest, including agreements related to service provision, by-law compatibility and tax loss compensation.
Q11. How are local government issues addressed?
A11. The ATR policy requires that a First Nation seeking to add land to its reserve approach the appropriate local governments to resolve any issues of concern, such as:
- Measures to compensate for the local government's potential net loss of tax revenue once the land receives reserve status;
- Arrangements, including payment, for the provision of any local government services;
- Application and enforcement of by-laws on reserve (First Nation by-laws affecting neighbouring local government lands or residents should be consistent with the local government's by-laws);
- Creation of a joint consultative process for matters of mutual concern (such as land use planning) and a dispute resolution mechanism, where possible.
The First Nation and local government are expected to negotiate in good faith to address any reasonable concerns.
Q12. Do local governments have a veto over ATR applications?
A12. No, local governments do not have a veto over any ATR application that falls within local government boundaries. Because the majority of ATR applications are the result of a legal obligation, such a veto would interfere with the exclusive authority of the Crown.
Q13. What has the federal government done to support a "good neighbour" approach between local governments and First Nations involved in an ATR?
A13. The federal government has been working with local governments for a number of years to improve communication and understanding of the issues that can arise through an ATR proposal.
In 2003, Aboriginal Affairs and Northern Development Canada (AANDC) partnered with the Federation of Canadian Municipalities, the Indian Taxation Advisory Board (now First Nations Tax Commission), the Lands Advisory Board, and the National Aboriginal Land Managers Association to develop a toolkit to enhance communication between First Nations and local governments on the federal ATR policy and process. The toolkit included a best practices guide highlighting model agreements and successful partnerships between First Nations and local governments. The case studies of successful local government-Aboriginal partnerships demonstrated that the foundation for partnership building was built upon regular and open communication, mutual respect and trust, as well as a commitment to working together to build capacity in their communities.
Q14. Will development on ATR lands be consistent with regional and local land use planning and zoning?
A14. After an ATR has been approved, the local government's land use planning and zoning laws no longer apply to the use or development of the added land. The First Nation has the authority to determine how to use their reserve lands according to the needs and interests of the community.
The Indian Act authorizes First Nations to enact by-laws on land use planning and zoning, but does not impose the requirement that by-laws be compatible with neighbouring local government laws. However, as a prerequisite to ATR approval, First Nations must negotiate areas of joint land use planning and by-law harmonization with a neighbouring local government.
Q15. What procedures are in place for resolving disputes between local governments and First Nations?
A15. First Nations and local governments are required to negotiate a dispute resolution mechanism to address implementation and enforcement conflicts after the additional land becomes part of the reserve. If the issues cannot be resolved, both parties have access to the normal legal process to resolve these issues.
There is no dispute resolution mechanism currently in place to resolve disputes during the ATR process. The Government of Canada promotes a "good neighbor" approach and prefers that all issues be resolved through negotiated agreements between First Nations and their neighbours. However, in limited cases Canada retains a discretion to proceed with an ATR even if local government concerns have not yet been resolved. Each case is examined on its own individual merits.
Q16. How are environmental issues addressed?
A16. The ATR policy requires an environmental assessment of all land proposed for reserve status. This review will identify any existing contamination to ensure that future residents will not be exposed to health risks. Based on the findings of the review, remediation of the site may be required before reserve status can be granted.
Any lands that become reserve lands are subject to federal laws and regulations pertaining to environmental protection, including the Canadian Environmental Protection Act, the Canadian Environmental Assessment Act, the Species at Risk Act, the Fisheries Act and the Indian Reserve Waste Disposal Regulations.
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