Frequently Asked Questions - Proposed Changes to the ATR Process
Q1. What input was the Government seeking in conducting public outreach on this initiative?
A1. The Government requested feedback on the proposed revisions to the Policy on Additions to Reserve and Reserve Creation. This was communicated to all First Nation communities across Canada, as well as to provincial and territorial governments and other stakeholders for feedback during the comment period beginning on July 26, 2013 through to October 31, 2013. This was the first of many steps to implement improvements to the current ATR process and the first of several engagements with stakeholders.
Q2. Did the Government receive requests from First Nations to improve the Additions to Reserve process leading up to the public comment period?
A2. In bringing forward the proposed revisions to the Policy on Additions to Reserve and Reserve Creation, the Government is responding to multiple requests for change that were brought to the attention of the Standing Senate Committee on Aboriginal Peoples'. The Government Response (PDF, 329 Kb, 3 pp.) to the Standing Senate Committee on Aboriginal Peoples' Report Additions to Reserve: Expediting the Process (PDF, 153 Kb 31 pp.) identifies several ways in which the ATR process will be improved. The proposed changes also take into account the input which led to the recommendations made by the Auditor General of Canada for improvements to the ATR process.
AANDC also invited First Nations and other interested Canadians to comment on the proposed changes to the ATR process through July and October 2013.
Q3. What other studies have identified the need for change to the Additions to Reserve process and how has the Government made this a priority?
A3. In March 2007, the Standing Senate Committee on Aboriginal Peoples' released its final report, Sharing Canada's Prosperity - A Hand Up, Not a Hand Out, on the special study of the involvement of Aboriginal communities and businesses in economic development activities in Canada, provided that "Limited access to lands and resources is also identified as a barrier to wealth generation that must be addressed as an urgent priority. The Government of Canada engaged with Aboriginal groups and other stakeholders from August 2008 to early 2009 to initiate a dialogue. Through both the engagement process and analysis, a consensus emerged on the principal barriers to Aboriginal economic development. The Federal Framework for Aboriginal Economic Development recognized that "faster processes for additions to reserves are considered essential to economic progress" and the "Government processes need to adapt to the speed of business."
The Government of Canada remains committed to helping unlock the economic potential of reserve lands and to create conditions for First Nations communities to participate more fully in Canada's economy.
Q4. How has the Government responded to past recommendations, particularly from the Auditor General of Canada, for improving the ATR process?
A4. Since 2011, AANDC has been working together with the Assembly of First Nations to answer many calls to streamline and accelerate the lengthy ATR process, beginning with a revision of the 2001 ATR Policy.
In 2005 and 2009 reports on Treaty Land Entitlement and a 2009 report on Land Management and Environmental Protection on Reserves, the Auditor General of Canada provided a series of recommendations to Government on how to improve the ATR process.
To address the Auditor General's recommendations:
- A National ATR Tracking System was created in 2010 to monitor progress and identify where action was needed to address barriers in the process of adding lands to reserve;
- An ATR toolkit, developed in partnership with the National Aboriginal Land Managers Association, has also proven to be an effective tool for First Nations in navigating the process of adding lands to reserve; and
- To reduce processing times, improvements to service standards have been put in place and procedures have been streamlined by devolving the final stage of document preparation from AANDC headquarters to regional offices.
Q5. Why are changes needed to the ATR policy?
A5. Expanding the reserve land base through ATR is an important mechanism by which First Nations can foster economic development that benefits all Canadians. ATRs also contribute directly to improving the treaty relationship, enabling Canada to fulfill legal obligations established by land claims and treaty settlement agreements and compensating First Nations for lands owed under historic treaties.
The ATR policy was created by AANDC in 1972 and was last updated in 2001. The ATR Policy sets out 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 and Territorial, and local governments).
ATRs are typically lengthy and complex – taking an average of five to seven years to complete. After lands have been selected for ATR, First Nations are required to negotiate agreements with local governments to include service provision, by-law harmonization and land use planning. There are generally three stages to the process: (1) acquisition of the land by the First Nation, (2) stakeholder negotiation and (3) approval of addition to reserve by the Minister or the Governor in Council.
Changes are required to the existing system to better enable First Nations to engage in economic development by accelerating their Additions to Reserve. Nothing in the ATR policy will affect ownership or tenure of reserve lands.
Q6. What are the proposed revisions to the Policy on Additions to Reserve and Reserve Creation and the anticipated benefits?
A6. The proposed revisions to the 2001 Policy on Additions to Reserves / New Reserves would (1) streamline the ATR proposal and remove duplication (2) clarify roles and responsibilities and (3) facilitate economic development.
(1) Streamline the ATR Proposal and Remove Duplication
- Minimum Proposal Standards: Under the new 2013 policy, proposals will meet minimum requirements before an official ATR process will be initiated. Several guidance documents will be available to better assist First Nations who wish to submit an ATR proposal. By investing early in a well developed ATR proposal there will be a clear starting point that will reduce delays later on in the ATR process.
- Earlier Letter of Support: In the 2001 policy, an Approval in Principle was provided at a late stage in the process after most of the ATR requirements were completed, and this Approval in Principle lacked relevance as it duplicated Order in Council and Ministerial submission requirements. The proposed 2013 policy will provide First Nations with a Letter of Support at an earlier stage and will set out conditions required to complete the ATR proposal. The letter forms the foundation for a Joint Work Plan and establishes a commitment between AANDC and a First Nation.
- Improved Service Standards: The 2001 policy does not provide clear expectations for how long an ATR takes to complete. The 2013 policy will establish guidelines for both Canada and First Nations to ensure accountability and build monitoring into the process. This is in alignment with the AANDC-wide service standard development for improved processing times. These standards will be developed the year after the new policy comes into effect.
Service standard guidelines will establish for both Canada and First Nations requirements to complete Reserve Creation after the policy has been implemented in order to:
- allow for analysis of impact of policy changes on process to better assess where service standards will be appropriate; and
- align with AANDC wide Service Management Strategy, including priorities identified in the Government of Canada Red Tape Reduction Action Plan.
- Updated Policy Categories: For the 2001 policy, an ATR proposal must belong to one of 4 categories for consideration: (1) Legal Obligations, (2) Community Additions, (3) New Reserve/Other (4) Specific Claims Tribunal Decisions. Under the 2013 policy, landless or relocated First Nations will be required to negotiate a lands agreement with AANDC before submitting a proposal under the ATR policy. These will then be dealt with under an expanded Legal Obligations and Agreements category and the New Reserve/ Other category will be eliminated.
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.
- Consistent Criteria for all Policy Categories: The 2001 policy specified differing criteria for each category, resulting in criteria that were more restrictive for the "Community Additions" category than the "Legal Obligations" category. The 2013 policy will provide for equal criteria for all categories.
- Required Environmental Remediation: Under the 2001 Policy, lands were required to be fully remediated to a residential standard before they could be set apart as reserve, even if the intended use did not require that level of remediation. The proposed 2013 policy will require that the land to be added to reserve be remediated to a standard compatible with the intended use of the reserve land. Furthermore, to enable faster completion of the ATR, the remediation work may occur post-reserve creation. In such cases, the First Nation may be asked to indemnify Canada for potential liabilities. This would be similar to most municipal rules that require remediation tailored to the specific use of the land.
- Improved Tools for Resolving Third Party Interests: Under the 2001 policy, requirements to resolve third party interests were subject to broad interpretation and lacked an AANDC role. The proposed 2013 policy provides guidelines with best practice examples to assist with the process of resolving Third Party Interests. AANDC will now also provide a facilitative role to assist in negotiations, where requested, and subject to resource constraints.
- Ensure that the federal government has consulted with all affected Aboriginal groups: Under the 2001 policy, Aboriginal and Treaty Rights consultation was delegated to the First Nation advancing the ATR proposal. In the proposed 2013 policy, AANDC will consider potential or established Aboriginal or Treaty rights of First Nation, Métis and Inuit peoples before setting apart lands as Reserve, and will assess whether the Crown has met its duty to consult before setting apart lands as reserve.
(2) Clarify Roles and Responsibilities
- Joint Work Plans: The proposed 2013 policy will require that First Nations and AANDC complete a Joint Work Plan that sets out the steps required to complete the ATR. This will provide for clearer plans and timelines and ensure that joint efforts result in progress towards reserve creation.
(3) Facilitate Economic Development
- Identifying Economic Development ATRs: The 2001 policy allowed for "community development" under the Community Additions category and "economic development" under the New Reserves category. The new 2013 policy more clearly states that lands can be added to reserve for economic development purposes under the Community Additions category.
- More Flexible Locations for ATR: Normally, the proposed reserve land is located within a First Nation's treaty or traditional territory. The proposed 2013 policy allows the selection area to be outside of the First Nation's treaty or traditional territory, provided that it is within the province or territory where the majority of the First Nation's existing Reserve land is located. This will improve First Nations' access to lands that have high economic development potential, such as lands close to highways and urban centres. The cost implications of such proposals will continue to be assessed, as the proposed policy clearly states, in section 12.0, that the approval of an ATR does not create any new funding entitlements. The proposed new ATR policy was published for public comment with input due by October 31, 2013.
Q7. Do the proposed revisions to the Policy on Additions to Reserve and Reserve Creation encroach on Aboriginal or Treaty Rights?
A7. No. The Proposed Revisions to the Policy on Additions to Reserve and Reserve Creation do not have an impact on Aboriginal and Treaty Rights nor on Canada's obligations to First Nations. The ATR policy maintains the existing step-by-step approach to apply to each individual ATR proposal in determining any impacts on rights.
Q8. What progress has been made to explore ideas for national ATR legislation?
A8. The Assembly of First Nations and the Government of Canada have found that features currently in the optional claims settlement implementation legislation for TLE agreements in the Prairies may be useful for all ATR's and in all locations across Canada. Further extensive engagement would occur before the Government moved forward with any specific legislative proposals.
Q9. Has the AANDC ATR policy been informed by previous audits performed by the Department?
A9. Yes. Most recently, an audit was conducted in 2012-13 on the ATR process to assess the adequacy and effectiveness of procedures and controls used to manage the process. The Audit team will make recommendations on areas where control practices and processes could be improved so that ATR submissions are prepared and completed as efficiently as possible. The recommendations will also support management in the redesign of the ATR process, and ensure compliance with relevant program authorities, frameworks and Treasury Board and AANDC policy requirements. All of these changes will support the effective implementation of the proposed changes to the ATR policy.
Q10. How will the Government implement the Proposed Revisions to the Policy on Additions to Reserve and Reserve Creation?
A10. The input gathered during the public comment period is being used to finalize the new ATR policy. The Department will provide a summary of the input received at the time we release the final version of the new policy. Several guidance documents will be available to assist First Nations who wish to submit an ATR proposal or who already have an active ATR proposal.
Q11. Would the ATR policy apply to First Nations operating under the First Nations Land Management Act?
A11. Yes. The ATR policy provides guidance to First Nations with respect to the assessment, acceptance and implementation of Reserve Creation Proposals, including First Nations operating under the First Nations Land Management Act. Under the First Nations Land Management Act, First Nation lands continue to be reserve lands and remain within Parliament's legislative authority under section 91(24) of the Constitution Act, 1867.
Q12. What are the objectives of the proposed revisions to the ATR policy?
A12. The proposed revisions to the ATR policy intend to:
- Provide clear policy direction for Reserve Creation.
- Promote consistent assessment, acceptance and implementation of Reserve Creation Proposals under a new set of minimum requirements.
- Consider the interests of all parties and find opportunities for collaboration where possible.
- Streamline the process for Reserve Creation Proposals.
Q13. How would any existing third party interest (encumbrance) be addressed in the new ATR policy?
A13. Options to address third party interests or rights on lands would need to be identified when considering Reserve Creation Proposals under the new ATR policy.
A First Nation would need to include the results of investigations identifying existing encumbrances (third party interests or rights both registered or unregistered, i.e., leases, licenses, permits, easements, rights of way, etc.). The First Nation has the lead role in the negotiations on third party access issues. Where requested by a First Nation, AANDC may provide facilitative or technical assistance in support of negotiations.
Third-party access, such as utilities and subsurface rights would also need to be addressed by the First Nation, who must negotiate access over the proposed ATR land to exercise those rights, or a buy-out of those rights, before the land is added to the reserve. If a third party owns the Mines and Minerals in the proposed ATR land, and intends to exploit the Mines and Minerals, the First Nation must have written consent of that party to a surface only Reserve, or a buy-out of the sub-surface title must be completed prior to the surface land being granted Reserve status.
The ATR policy would also require the First Nation to notify the province of the proposed reserve creation and provide an opportunity to assess the potential impact on existing provincial land use plans and program delivery.
Q14. How would dispute resolution be addressed in the new ATR policy?
A14. In recognition that Reserve communities and Local Governments exist side-by-side, AANDC promotes a "good neighbour" approach, which means that any discussions between First Nations and Local Governments would be conducted with good will, good faith and reasonableness.
The ATR policy would promote the discussion of issues of mutual interest and concern, such as joint land-use planning, by-law harmonization, tax considerations, service provision or dispute resolution.
Where the proposed reserve land is within or adjacent to a local government, the First Nation would be required to notify the Local Government and provide the opportunity to assess the potential impact on existing land use plans and program delivery.
Q15. How could I become familiar with the proposed ATR revisions?
A15. The proposed revisions to the Policy on Additions to Reserve and Reserve Creation was communicated to all First Nation communities across Canada, as well as to provincial and territorial governments and other stakeholders for feedback during a public comment period ending on October 31, 2013. These comments were received either through the online comment box or by sending correspondence in the mail.
The Government of Canada would like to express its appreciation to participants who shared their perspectives on how to improve the process for ATRs and reduce delays.
If you haven't already, we suggest that you read the Proposed Revisions to the Policy on Additions to Reserve and Reserve Creation made available during the comment period to familiarize yourself with the information that guided the feedback process.
The input gathered during the public comment period is being used to finalize the new ATR policy. The Department will provide a summary of the input received at the time we release the final version of the new policy.
Q16. Why did the Government of Canada extend the time period for public input?
A16. The Government of Canada extended the time period for public input on the proposed revisions to the policy on ATR to respond to requests received from First Nations and other stakeholders for additional time to provide their comments.
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