Frequently Asked Questions - Amendments to the Land Designation Sections of the Indian Act and related regulations
Q.1) What are First Nation designated lands?
First Nation designated lands are reserve lands that a First Nation has agreed to lease for commercial, agricultural, recreational or other purposes which is voted on by the members of a First Nation according to the rules of the Indian Referendum Regulations. Similar to how a municipality would zone land for a specific purpose off a reserve, First Nations who operate under the Indian Act identify lands on their reserve for specific purposes following a land designation process. Designated lands remain reserve lands. When a First Nation designates land, it allows a business partner to temporarily run a business on a specified portion of the reserve while the First Nation retains its interest in the land. This arrangement allows First Nations to economically benefit from their lands and to manage them according to their by-laws.
Q.2) Why did the Government of Canada make amendments to the designation provisions of the Indian Act?
The amendments to the designation provisions of the Indian Act respond to First Nations who have expressed frustration with the long standing, overly complex and lengthy process of designating land. For First Nations operating under the Indian Act, land designation is a prerequisite for economic development on reserve and is the legal instrument that permits leasing on First Nation land.
The changes will speed up the process to designate lands and, as a result, provide greater flexibility for First Nations to take advantage of time-sensitive economic development opportunities.
Q.3) What are the amendments?
The amendments will expedite the process for designating lands administered under the Indian Act to further improve the ability of First Nations to take full advantage of potential economic development and investment opportunities on reserve. Specifically, they:
- Lower the voting threshold to a simple majority from a majority-of-a-majority, rendering a second vote unnecessary.
- Change responsibility for approving designations to the Minister from the Governor in Council.
Q.4) What is the difference between a majority-of-a-majority and simple majority voting threshold?
Majority-of-a-majority means that a majority of eligible voters must vote and that a majority of those who vote must vote in favour. Simple majority requires that a majority of those who participate in the vote, vote in favour of the designation, regardless of the number of persons eligible to vote.
Q.5) What is the rationale for eliminating the need for a second vote?
Imposing a majority-of-a-majority voting threshold to approve a land designation on a first vote is often an impossibly high threshold for the First Nation to meet. Statistics show that voter turnout in approximately 80 per cent of communities is regularly significantly below 50 per cent for the first vote. If the first vote is unsuccessful, the Indian Act requires that a second vote be held requiring a simple majority approval. This requirement to hold a second vote not only impedes them from pursuing time-sensitive economic opportunities, but also causes the First Nation to incur additional administrative costs.
The legislative amendments reduce the voting threshold of the first vote to a simple majority, thereby making the process for a First Nation to approve a designation more efficient. Removing the second vote will increase the speed of the land designation process thereby enabling First Nations to better capitalize on economic development opportunities.
Reducing the voting threshold is consistent with other approaches where, for example, a simple majority vote is currently sufficient to elect the Chief and Council of a First Nation, to accept multi-million dollar out-of-court settlements, and to accept a settlement of a specific claim valued between $3-7 million. In comparison, the requirement to have a majority-of-a-majority vote for designations is unjustifiably high in light of the impediments it poses to economic development.
Q.6) What is the rationale for removing the Governor in Council requirement?
Following the First Nation community's vote, it typically takes several months to obtain the authorization of the Governor in Council for a land designation, making this internal-to-government step the lengthiest step of the land designation process. The amendment replaces Governor in Council authority with Ministerial authority. This will help First Nations respond more quickly to business opportunities.
Q.7) What was the designation process and how has it changed as a result of the amendments?
The main focus of the amendments is to reduce delays within the land designation process, which currently takes an average of one to two years to complete.
Currently, the process begins when a First Nation expresses its interest to the department to discuss its land development plans. The Department works with the First Nation to identify conditions of the land use, lease terms and licensing requirements. The land designation is voted on by the members of the First Nation according to the rules of the Indian Referendum Regulations. The department provides all eligible electors, including those living off-reserve with supporting documentation necessary to make an informed decision. Previously, if voter turnout was less than a majority, the band council could request that a subsequent simple majority vote be held. The designation was then submitted for Governor in Council approval. Upon approval, the land designation is then recorded in the Indian Lands Registry.
The amendments do not change the current level of service provided to First Nations, including the initial discussions and planning and the community information meeting. The amendments only change the designation process in two areas by:
- Reducing the voting threshold to one vote; and
- Authorizing the Minister of Aboriginal Affairs and Northern Development, rather than the Governor in Council, to approve the land designation upon receipt of a band council resolution.
Combined, the changes will reduce the time it takes to administer the land designations process by several months and create new economic opportunities on reserve.
Q.8) Will information sessions on land designation continue to be provided to First Nations to ensure informed voting?
There will continue to be a requirement to provide information sessions on land designation to First Nations to ensure informed consent. In accordance with the Indian Referendum Regulations, an information document is made available to the members of the First Nation, and at least one information meeting is held prior to the designation vote. The information document sets out the proposal and includes details such as the legal description of the lands, the environmental impact assessment, the appraised value of the lands, and the benefits and risks associated with the proposal. The information meeting provides an opportunity for the proposal to be discussed by the proponent and the First Nation members.
Q.9) Is designated land the same as surrendered land?
No. Land designation is frequently confused with land surrender. Under rarely used land surrender, the First Nation surrenders all of its interests in the land in question and it ceases to be reserve land. Under land designations, First Nations retain their rights and interests in the land.
Q.10) Has the voting threshold for land surrenders also been reduced to a simple majority?
No, the amendments to lower the voting threshold to a simple majority apply only to the land designation provisions, not to the land surrender provisions of the Indian Act. A successful majority-of-a-majority vote will continue to be a requirement for land surrender. This higher voting threshold is considered to be appropriate for land surrender given the implications of surrendering ownership and jurisdiction over reserve land.
Q.11) Do the amendments affect land management under the First Nations Land Management Act (FNLMA)?
No. Since FNLMA First Nations do not operate under the land-related provisions of the Indian Act, the amendments to land designation are not be applicable to them.
Q.12) Do the amendments affect individual ownership of reserve land?
No, a certificate of possession verifies the lawful possession of reserve land by a member of the band. A land designation is not required to lease or otherwise manage individually owned lands. Land designation applies only to collectively owned land, which requires a community vote before it may be developed.
Q.13) Do the amendments to land designation apply to First Nation communities north of 60?
Yes, the amendments do apply to those reserves north of 60 that are governed by the Indian Act, including the Hay River Dene 1 Reserve (K'atlodeeche First Nation) and the Salt Plains No. 195 and Salt River No. 195 reserves (Salt River First Nation #195) in the Northwest Territories. The amendments do not apply to communities north of 60 that have self-government agreements or modern treaties in place.
Q14. Do the amendments impact off-reserve members' rights to vote on a land designation, as provided by the Corbiere decision?
No, eligible off-reserve members will continue to be able to exercise their right to vote on a proposed land designation.
Q.15) Do these amendments affect lands held in possession by First Nation band members?
No. Lands in the lawful possession of a band member do not require a designation before being leased.
Q.16) Who will be affected by the amendments to the designation provisions of the Indian Act?
These amendments will affect First Nations who designate lands under the Indian Act. They will not, therefore, affect self-governing First Nations or First Nations under the First Nations Land Management Act. As of September 2012, Canada has completed 18 comprehensive self-government agreements involving 32 communities and another establishing a public government in Nunavut, and as of February 27, 2013, 35 First Nations have been operating under the First Nations Land Management Act.
Q.17) How many First Nations have to go to a second vote?
Over the past five years, approximately 80 per cent of First Nation communities held a second vote.
Q.18) What is the average number of months between the first and second vote?
On average, the second vote is held four to six months after the first vote.
Q.19) Do the amendments to land designation sections of the Indian Act encroach on Aboriginal or Treaty Rights?
No, these amendments to the land designation provisions of the Indian Act do not impact Aboriginal or Treaty Rights and Canada's obligations to First Nations. These changes preserve existing requirements under the Indian Act to ensure that an informed ratification vote is held before land is designated, and that there is federal approval to finalize the designation. While ensuring that these requirements are met, the Government has sought to make the land designation process itself more efficient by reducing red tape and streamlining internal processes.
Q.20) Did the Government receive requests from First Nations to improve the land designation provisions in the Indian Act?
In bringing forth the amendments to the land designation provisions in the Indian Act, the government is acting on requests from First Nations across the country to expedite the land designation process set out in the Indian Act. They expressed the need for a level playing field for First Nations to attract investment. These concerns were also heard on November 19, 2012, when several Aboriginal witnesses testified before the Standing Committee on Aboriginal Affairs and Northern Development regarding the changes to land designation.
First Nations are welcome to comment on legislation and regulation through the Parliamentary process. Bills and regulations under consideration are listed at Parliament of Canada and the Canada Gazette respectively.
Q.21) Will the changes to the land designation provisions in the Indian Act strengthen First Nation decision making power and authority over their lands?
Yes, the amendments aim to restore greater decision making power to First Nations. By lowering the voting requirements that the government accepts in order to officially designate land on behalf of First Nations, greater flexibility will be restored to First Nations to conduct their voting processes and to lead business partnerships with industry.
Q.22) Why has the Government of Canada amended the Indian Referendum Regulations?
In light of the recent amendments to the land designation process in the Indian Act, consequential amendments to the Indian Referendum Regulations were necessary.
The changes to the Indian Referendum Regulations work together with the recent legislative amendments to speed up the process to designate reserve lands and, as a result, provide greater flexibility for First Nations to act on time-sensitive economic development opportunities.
Specifically, the regulatory changes provide for the new simple majority voting threshold and the new requirement for a Band Council Resolution either accepting or declining the results of the community vote.
Q.23) What are the amendments to the Indian Referendum Regulations?
The changes to the Indian Referendum Regulations modify references to Indian Act section numbers to be in line with the recent amendments to the Indian Act, provide for the referendum requirements to apply the new simple majority voting threshold, and provide for the new requirement for a Band Council Resolution either accepting or declining the results of the community vote.
Under the new regulations, if community leaders had doubts as to whether the vote represented the informed consent of their community, the Band Council would now have the option to recommend that the Minister of Aboriginal Affairs and Northern Development reject and therefore stop the process.
More specifically, amendments to the Indian Referendum Regulations:
- Replace section 1.1 to modify the references to the Indian Act to apply the new section 39.1 of the Indian Act that establishes the conditions for land designation that must be satisfied in order for a designation to be valid.
- Replace section 3(1) to include new section 39.1 of the Indian Act which sets out the conditions for land designations to apply to the procedure for holding a referendum.
- Replace section 23 by separating the review procedure for land surrender from the new rules for land designation into (1) and (2).
Both the legislative and regulatory amendments apply only to land designations and not to land surrenders. Provisions for an absolute surrender will be maintained. The changes do not affect the Crown-First Nation relationship as designated land remains reserve land.
Q.24) Were these changes published in the Canada Gazette?
Yes, the changes have been published in the Canada Gazette, fixing March 1, 2013 as the day on which the amendments come into force: 1) Division 8 of Part 4 of the Jobs and Growth Act, 2012 and 2) amendments to the Indian Referendum Regulations .
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