Published on January 10, 2014
“Expanding a Reserve” Information on the Additions to Reserve Process Presented by Lands Unit, Lands and Economic Development, BC Region Bradley Evers and Tamara Davidson December 17, 2013
Overview 1. ATR Process 2. Proposed Policy Changes – Highlights 3. Proposed Policy Changes – Categories of Reserve Creation 4. Proposed Policy Changes – Criteria for Reserve Creation 5. Implications for First Nation-Local Government Relations 6. Questions 2
Adding Lands to Reserve is at the discretion of the Crown • Additions to Reserve (ATR) is the process of setting apart land (e.g., adding to an existing reserve or creating a new reserve ) for the use and benefit of First Nations. This can done for many reasons including: – as part of historic treaties, – to settle outstanding claims, – for exchanges of land due to the expropriation of existing reserve land, – to accommodate expanding reserve populations and for economic development. • Currently, there is no national legislation governing the ATR process. Only the prairie provinces have claims legislation that allows, for example, ATRs by Ministerial Order (rather than Order-in-Council) for Saskatchewan and Manitoba treaty land entitlements and Alberta specific claim settlements. • Land can be added to reserve in rural or urban settings. 3
The ATR Process has received some scrutiny and attention • The existing Additions to Reserve Policy was last substantively updated in 2001. Since that time, there has been considerable attention to the challenges of adding lands to reserve in a timely manner. • The Auditor General of Canada provided a series of recommendations in three reports to Government (one in 2005 and two in 2009) on how to improve the ATR process generally, and on the putting in place of more efficient management tools and systems. • A 2007 political agreement with the Assembly of First Nations (AFN) on Specific Claims reform contained key commitments on improving the ATR process. A Canada – AFN Joint Working Group has reviewed policy, legislative and operational options. • In 2011-2012, The Standing Committee on Aboriginal Affairs and Northern Development, as part of the study of Land Use and Sustainable Economic Development, discussed the ATR process with a number of witnesses and identified key challenges and opportunities to adding lands to reserve. • In November 2012 the Standing Senate Committee on Aboriginal Affairs tabled its ninth report: Additions to Reserve: Expediting the Process, which outlined several key recommendations for improvement. 4
Improvements have been made… • In 2010, a National ATR Tracking System was launched to monitor progress and identify where action is needed to address slowdowns in the process. • An ATR Toolkit was developed in 2010 in partnership with the National Aboriginal Land Managers Association. • A new draft Additions to Reserve policy has been completed. – The draft policy was developed in collaboration with the AFN, the National Aboriginal Land Managers Association, and Natural Resources Canada – Extensive research has informed the policy revisions, including case studies, First Nation regional dialogue sessions, local government discussion papers, Parliamentary Committee testimony, and recommendations from the National Aboriginal Economic Development Board (NAEDB) • A Government Response to the Senate report on ATR was tabled on April 5, 2013. The Government Response details specific actions that will be taken to accelerate the ATR process. • Progress continues to be made towards meeting these commitments. 5
Proposed Policy Changes – Highlights Change 2001 Policy 2013 Policy Advantage Removal of “generally contiguous” service area -ATR required to be within a service area “generally contiguous” to the existing land base in order to deliver services at little or no cost -Lands not contiguous were considered New Reserve Creations and assessed more restrictively due to the potential for added costs to the Department - Selection area will be expanded to Treaty or traditional territory, with potential for Province wide in exceptional circumstances - All proposals will be subject to meeting other Reserve Creation criteria, including any Duty to Consult or Financial Impacts -Allows for better First Nations access to lands for Economic Development and to address land acquisition challenges. -Provides direct focus on costs, rather than an indirect control on costs via the requirement for contiguous selections -Consistent with TLE Framework Agreements Recognition for Economic Development ATRs -Confusing references to community economic projects in the Community Additions category and economic development in the New Reserve/Other category -Restrictive assessment of New Reserve/Other proposals did not facilitate development opportunities - Revised Community Additions category will contain a specific sub-category for Economic Development -Removes duplication, and will benefit from streamlined Reserve Creation Criteria -Clearly communicates that Economic Development is a priority consideration 6
Proposed Policy Changes – Process Change 2001 Policy 2013 Policy Advantage Minimum Standards for Proposals -No minimum requirements for ATR proposals, often just a BCR request -Proposals will contain minimum requirements before being considered for support by AANDC -Clear starting point for a Reserve Creation Proposal -Well developed proposals will reduce delays later on Joint Work Planning -Unclear expectations of Roles and Responsibilities -Lack of coordination and communication between AANDC and First Nation -Joint Work Plans will be required between First Nation and AANDC to complete necessary Reserve Creation Steps -Roles and Responsibilities clearly defined - Clear plans and timelines, improved capacity to monitor progress Removing the AIP, implementing Federal Letter of Support at an earlier stage - AIP’s required at late stage in process, lacked relevance, duplicated OIC/MO submission requirements -Letter of Support at early stage will set out conditions required to complete Reserve Creation -Foundation for development of Joint Work Plan -Establishes commitment between AANDC and First Nation to work towards completing a proposal -Facilitates a project management approach to reserve creation process Service Standards - No clear service standards in place -Service standard guidelines will be established for both Canada and First Nations requirements to complete Reserve Creation (after policy completion) -Alignment with AANDC wide service standard development -Improved processing time lines -Builds accountability and monitoring into process 7
Proposed Policy Changes – Categories of Reserve Creation Change Updated Policy Categories 2001 Policy 2013 Policy - 3 categories of Reserve Creation: •Legal Obligations and Agreements •Community Additions •Specific Claims Tribunal Decisions - New Reserve requests made before any landless Band or relocation agreement reached Consistent Criteria for all Policy Categories - 4 categories of Reserve Creation: •Legal Obligations •Community Additions •New Reserve/Other •Specific Claims Tribunal Decisions (added 2011) - Legal Obligations and Agreements category will include new reserve creation from relocation agreements and agreements for landless bands (or other special circumstances) - Differing criteria for each category that was more restrictive in the Community Additions and even more so in New Reserve/Other category - Streamlined criteria requirements applicable across categories Advantage -For new Reserves, Policy is triggered once an agreement (eg, for landless bands or for relocation) is reached -Avoids frustration of having ATR proposals rejected under the New Reserve/Other category -Community Additions category will contain a specific sub-category for Economic Development -Less restrictive process requirements of the former ‘Legal Obligation’ category are now applied to all categories -More restrictive criteria removed to allow Reserve Creation Proposals to be assessed on their merits, rather than the category 8
Proposed Policy Changes – Criteria for Reserve Creation Change 2001 Policy 2013 Policy Advantage Environmental Requirements based on intended use -Lands were required to be fully remediated to a residential standard before they could be set apart as reserve, even if the intended use is commercial -Will provide for the ability to remediate to a standard compatible with the intended use of the reserve land, with provisions for remediation to occur post-Reserve Creation -Faster completion of Reserve Creation Improved tools for resolving Third Party Interests -Requirements to resolve third party interests were subject to broad interpretation, and lacked an AANDC role -Clearer policy language -Guidelines with best practice examples will assist with process of resolving Third Party Interests -AANDC will also now provide a facilitative role to assist in negotiations, where requested -Will limit subjectivity in applying the policy -Enhanced capacity for First Nations in negotiating agreements with Third Parties -Faster completion of Reserve Creation Duty to Consult with other Aboriginal Groups -Aboriginal and Treaty Rights consultation was delegated to proponent First Nation to address -AANDC will consider potential or established Aboriginal or Treaty rights when considering a Reserve Creation proposal, and will assess whether the Crown has met its duty to consult before setting apart lands as reserve -Reserve Creation Policy will comply with Federal Guidelines on Duty to Consult 9
Implications for First Nation-Local Government Relations • The proposed revisions to the Policy seek to improve negotiations with Local Governments in areas of mutual interest such as servicing, by-law harmonization and tax loss by: – Continuing to promote a “good neighbour” approach to negotiations – Requiring engagement with Local Governments early in the ATR process – Enhancing Canada’s role to better facilitate negotiations where assistance is requested – Developing tools and resources for parties to employ when negotiating agreements, potentially with the support of the Federation of Canadian Municipalities – Creating opportunities for economic development ATRs that provide spin-off benefits to adjoining communities 10
There has been considerable opportunity for input… • For the first time ever, a draft version of the ATR Policy was published for public comment on our website ( www.aandc-aadnc.gc.ca/ATR). • The new draft policy will be discussed at the workshop. • The new policy is targeted to come into effect next fiscal year. Several sets of guidelines are under development to support the new policy, along with a transitional directive for managing existing ATRs. 11
Questions For more information on Additions to Reserve: • National Aboriginal Land Managers Association: www.nalma.ca • Aboriginal Affairs and Northern Development – New Additions to Reserve Policy: http://www.aadnc-aandc.gc.ca/eng/1332267668918/1332267748447 Thank you Bradley Evers, Land Management & Leasing Officer (604) 666-0369, firstname.lastname@example.org Tamara Davidson, Program Manager, Addition to Reserves (604) 666-0099, email@example.com 12
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