Process, Roles and Responsibilities
- Step 1: Project Identification and Proposal
- Step 2: Project Review and Selection
- Step 3: Negotiation and Drafting
- Step 4: Administration, Monitoring and Enforcement
Step 1: Project Identification and Proposal
The process set out in the First Nations Commercial and Industrial Development Act (FNCIDA) requires a serious commitment from the participating First Nation. The process has been described as “front loaded” because much of the work required happens in the beginning stages. In this first step, called the project identification step, the work falls mostly to the First Nation proposing the project. Completing most of the proposal work in the beginning helps to reduce the overall time required for the process and ensures that the expectations of all stakeholders are properly managed.
This step involves developing a formal written proposal and providing documentation as set out by AANDC, as well as securing a Band Council Resolution (BCR) requesting the development of regulations under FNCIDA.
The tasks to be completed during this step are:
- The First Nation identifies an industrial or commercial project that needs regulations to advance, and for which regulations under FNCIDA are possible.
- The First Nation, the AANDC Regional Office and other key stakeholders (e.g., outside investors) engage in initial exploratory discussions. The aim of the discussions is to determine if further analysis is needed to establish project eligibility under FNCIDA (see Step 2 for the list of 5 questions that form the criteria for using FNCIDA).
- The First Nation prepares the required documentation, seeks to build the necessary skills and capacity to complete the process and secures community support.
- The First Nation passes a Band Council Resolution supporting the development of regulations under FNCIDA.
The project proposal sets out all project information supporting the application, including:
- A general description of the project;
- A legal description of the land that will be used;
- Confirmation that the land is reserve land, or that it is proposed as an addition to reserve (ATR) with an indication of the current stage of the approval process;
- A description of how the proposed lands will be used;
- A general proposal for key lease issues (e.g. term, rent, royalties, licenses);
- An identification of any possible contentious issues;
- Information on potential project risks, including potential loss of economic opportunities should the project not proceed;
- An evaluation of the existing or desired regulatory framework;
- A confirmation of community support or a timeline to obtain it;
- An indication of provincial readiness to negotiate;
- A proposed timeline; and
- An analysis of the economic and other benefits.
Tips on Building Community Support
Building support for commercial or industrial project begins at the community level. It is likely that the project will have a lasting impact on the community – be it new economic development opportunities, greater autonomy or a higher standard of living. The more extensive and significant the impact of the project, the better it is to have broad and lasting support from members of the First Nation. There are many ways the community can express its support. Some are required by FNCIDA (such as the Band Council Resolution) and others are optional but beneficial. These optional but recommended expressions of support include, but are not limited, to:
- Petitions to the Band Council in support of the project, which can form part of the documentation submitted to AANDC as part of the proposal.
TIP: Circulate the petition at local community events. Organize a town hall meeting with representatives of the groups involved in the proposal. Have a table by the entrance where people can sign the petition once they have heard the reasons why the project would benefit the community.
TIP: Contact local radio stations and encourage them to interview supporters of the project. During the interview, mention the petition and how people can sign up.
- A letter writing campaign. These could be from community leaders, religious leaders, prominent business people, past Band leaders and other political leaders.
TIP: Write letters of support to elected representatives, such as the local members of the federal and provincial parliaments, as well as the Minister of Aboriginal Affairs and Northern Development Canada
TIP: Looking beyond the First Nation, consider having other stakeholders, people, groups that might be impacted by the project write letters of support. This could include investors and developers involved in the project, as well as nearby businesses and adjacent municipalities.
TIP: Consider developing a communication kit that could be left with people or groups that you would like to write letters in support of the project. A kit could include a sample letter of support, a backgrounder with pertinent information (who will benefit and how, and why the project is important for the community).
Step 2: Project Review and Selection
The second step, Project Review and Selection, starts when the AANDC Regional Office receives the Band Council Resolution requesting the development of regulations under FNCIDA, the formal written proposal and the appropriate supporting documentation. Most of the tasks required during this step are to be completed by AANDC with help from the First Nation. AANDC may request additional information or clarification from the First Nation, as it assesses and evaluates the submission.
At this stage, the First Nation will be in a position to work with the relevant AANDC Regional Office to complete a legal risk assessment and cost-benefit analysis, identifying the cost of developing regulations and the potential for loss of economic development opportunities if the project does not proceed. The First Nation will also work with the AANDC Regional Office to evaluate the proposal based on established criteria set out in this section. Essentially, AANDC undertakes a thorough evaluation that includes a detailed review of the project, its regulatory needs, the feasibility of using FNCIDA, the level of community support, the risks inherent in the project and an analysis of costs and benefits.
The criteria that AANDC uses when reviewing a formal proposal to develop regulations under FNCIDA can be summarized by the following questions. If the answer to each of these questions is yes, then the project qualifies in principle for FNCIDA.
- Do the lands involved in the project meet all requirements (legal, policy, etc) so that AANDC is able to issue land tenure?
- Is there currently a lack of regulations to deal with environmental or health and safety issues, regardless of the degree of possible impact?
- If there is a lack of existing regulations, is it preventing economic development and is there no other regulatory regime that could be used to implement the project?
- Have all other alternatives for regulating the project, including the Indian Act, been considered and ruled out, and is using FNCIDA the only possible approach?
- Is the province supportive in principle of the project and will it be willing to play a role in the administration and enforcement of the regulations that would be developed under FNCIDA?
This step concludes when AANDC decides whether or not to proceed to the next step – the negotiation and drafting stage – and whether or not to allocate resources to developing the regulations.
Spot Check: The Roles and Responsibilities of
AANDC Regional Offices
Project recommendations and successful delivery of an approved project are the overall responsibility of the AANDC Regional Director General where the project is located. For each project, the Regional Director General will assign a dedicated AANDC regional project manager who will be responsible for the preparation of project documentation. This documentation includes:
- Project proposal and supporting analysis recommending project approval; and
- Project plans and a quarterly report on results, issues and risks.
Acting under the authority of the Regional Director General – and working collaboratively with the First Nation, investors, the province and the federal Department of Justice – the AANDC regional project manager will be responsible for:
- Managing the negotiation, drafting and completion of the three key documents:
- Tripartite agreement; and
- Land tenure instruments.
- Coordinating activities with the FNCIDA Project Management Office.
During the Administration, Monitoring and Enforcement step, regions will be responsible for:
- The ongoing oversight of regulations, tripartite agreements and land tenure instruments; and
- Engaging the Chair of the Major Projects Steering Committee to seek approval and funding to amend the regulations and/or tripartite agreements as needed.
Step 3: Negotiation and Drafting
This step starts once AANDC has given its approval for the project proposal. Once approval is granted, detailed project work plans can be developed.
These plans set out :
- The resources required to implement the project
- A list of key milestones
- Plans for engaging stakeholders (who, when and how)
- Strategies for risk management, and
Throughout this step, there will be close communication and consultation between the Government of Canada, the First Nation and the provincial government. This is required to develop the three important project-specific documents: the regulations; the tripartite agreement between the Government of Canada, the First Nation and the provincial government; and the land tenure instruments.
1. A tripartite agreement is
signed by the Government of
Canada, the provincial government
and the First Nation.
In depth: AANDC will be preparing guidelines and a template that will help the Government of Canada, the First Nation and the provincial government negotiate a tripartite agreement. The guidelines will outline the tools for establishing effective working relations with provincial governments and First Nations and compliance with Orders in Council, including the roles of signing authorities and program authorities.
The template for tripartite agreements includes:
- A project description;
- The project's technical requirements and processes;
- The responsibilities of all parties to the agreement;
- The key performance indicators
- A dispute-resolution process;
- The prosecution arrangements;
- A framework for operational management, including administration, monitoring and enforcement;
- The project's costs and resources; and
- Other items as required by the specific project.
2. The Minister of Aboriginal Affairs and Northern Development Canada and Cabinet approve the regulations.
This step concludes when the lease and tripartite agreement are executed and the regulations come into force.
Spot Check: The tripartite agreement process
for FNCIDA projects
FNCIDA enables the Government of Canada - in response to a request by a First Nation - to adopt federal regulations for a particular project on reserve lands. These regulations will, to a large extent, replicate the provincial regulatory regime. Since provinces have the necessary expertise, given their responsibilities for private sector economic development, FNCIDA provides for the province to carry out monitoring and enforcement of the new regulatory regime on behalf of the federal government. In these cases, an agreement will be required between the Government of Canada, the provincial government and the First Nation to govern the monitoring and enforcement of the regulations by provincial officials.
Requirements under FNCIDA
According to subsection 5(b) of the Act, a tripartite agreement must be concluded by all parties before making regulations under FNCIDA: "Regulations may not be made… in respect of undertakings on reserve lands of a first nation unless… the regulations specify a provincial official by whom, or body by which, a power may be exercised or a duty must be performed, and an agreement has been concluded between the Minister, the province and the council of the first nation for the administration and enforcement of the regulations by that official or body."
Signature of the tripartite agreement
The requirement that an agreement be concluded by all parties before making regulations does not imply that the agreement must be signed by all parties when proposing regulations under FNCIDA. A letter from the provincial government, signed by an Assistant Deputy Minister, Deputy Minister or Minister, showing support for provincial monitoring and enforcement of the proposed regulations is sufficient to complete Step 3. This would allow for the regulatory package to be published in the Canada Gazette, Part 1. The formal tripartite agreement must be signed before starting the approval process for the making of the regulations by the federal Treasury Board, a committee of Cabinet responsible for reviewing all federal regulations, and publication in the Canada Gazette, Part 2.
Approval process for the regulations and agreement
The approval process for the tripartite agreement is similar to the approval process for regulations made under FNCIDA. The only significant difference is that the regulations package is submitted to Cabinet for consideration.
Step 4: Administration, Monitoring and Enforcement
Once the lease and tripartite agreement have been executed and the regulations are in force, Step 4 begins. This step deals with the ongoing administration, monitoring and enforcement of regulations, agreements and land tenure instruments during the life of the project. This includes the construction of facilities and infrastructure and other project operations. Ultimately, it also includes the decommissioning of the project facilities and the reclamation of the lands used in the project.
Based on the tripartite agreement, and any other agreements or contracts signed, monitoring and enforcement required under the regulations will be done by the provincial government. Provincial governments have a lot of experience in the administration, monitoring and enforcement of off-reserve industrial activities. Carrying out these tasks on the reserve in a way agreed to by the First Nation and the Government of Canada is a natural extension of their work. Because of the provincial government's expertise, their role in administering, monitoring and enforcing the regulatory regime will improve both operational efficiency and transparency, and reduce costs.
Issues arising during the Administration, Monitoring and Enforcement step may necessitate negotiation and drafting of amendments to the regulations and/or tripartite agreement. In such cases, as with the project approval process, approval and allocation of resources would be required. Step 3, the Negotiation and Drafting step, would apply to any such amendments.
TIP: In some cases, provincial governments may charge "fees for service" for acquiring a license or permit related to regulating off-reserve projects. Fees for on-reserve projects will be similar to those off the reserve. Under FNCIDA, fees for services collected by provincial bodies under FNCIDA regulations would not be considered public monies under the Financial Administration Act and would therefore not flow through the Consolidated Revenue Fund. This would enable the fees to flow directly to the provincial body, if that arrangement was negotiated.
TIP: Cost estimates and funding arrangements can only reasonably be determined once there is a clear understanding of the obligations to be enforced and the anticipated benefits resulting from each project.
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