Self-government seen in land act

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Chiefs and technicians marked the addition of another 17 First Nations to the 14 already participating in the First Nations Land Management Act [FNLMA] with a press conference on March 31. The main point that media were meant to take away from the discussion is that even in this one small area of governance, a lot of learning and institution-building is required before First Nations can assume a role previously performed by the federal government.

The fact that this land management regime allows First Nations to go places where the Indian Act never allowed them to go adds to the difficulty of the task.

Westbank First Nation (British Columbia) Chief Robert Louie, who is also chair of the federal government's Lands Advisory Board, said all the work is worth it in the end.

"The whole process is meant to be one of decision-making. That's a fundamental concept, because it means that the First Nation is going to be empowered with law-making power-that's clearly recognized in the process-to manage its own lands and its resources. It means that the minister of Indian Affairs and department of Indian Affairs' officials will no longer be making decisions on behalf of the First Nations who have got land codes. It provides an opportunity for the community to do what it thinks is best," he said. "This is the future. It gives the First Nation who wishes to participate the option to manage its own lands and its own affairs."

Recent additions of First Nations participating are: from British Columbia, Beecher Bay, Tsawout, Songhees, Pavilion, Burrard, Sliammon, Kitselas, and Skeetchesn; from Saskatchewan, Kinistin, and Whitecap Dakota Sioux; from Ontario, Garden River, Mississauga, Whitefish Lake, Dokis, Kettle and Stony Point, and Moose Deer Point; and from New Brunswick, Kingsclear.

They join Westbank, Musqueam, Fort George (also known as Lheit-Lit'en and Lheidli T'enneh), Anderson Lake (also known as N'Quatqua) and Squamish in B.C.; Siksika Nation in southern Alberta; John Smith (also known as Muskoday) and Cowessess in Saskatchewan; The Pas (also known as Opaskwayak Cree) in Manitoba; Nipissing Band of Ojibways (also known as Nipissing), Scugog (also known as Mississaugas of Scugog Island), Chippewas of Rama (also known as Chippewas of Mnjikaning), Chippewas of Georgina Island in Ontario; and Saint Mary's in New Brunswick.

Recent amendments to the Act allow more bands to join or start the preparation of a land code so they can put themselves in a position to join.

Indian Affairs Minister Robert Nault was clearly pleased to see the rise in the number of participating First Nations.

"By signing the framework agreement on First Nations land management-and being added to the schedule of the First Nations Land Management Act, which put into effect the framework agreement-these communities are re-establishing their authority to manage their lands and resources for the benefit of all members of their communities," he said.

The First Nations involved have the opportunity to 'opt out' of about 30 sections of the Indian Act, Nault said, and will be able to develop land codes, regulate zoning, and implement environmental laws and policies.

"Also, revenues generated by on-reserve resources-such as forests or leasing-now will flow directly to these First Nations and will no longer be held in trust by the government of Canada."

The minister said the land management initiative " clarifies the legal status of bands and band councils, granting First Nations the right to pass and enforce certain laws, and to negotiate binding agreements."

More than 50 First Nations have passed resolutions indicating their interest to sign the agreement. Louie said 36 bands are currently in the process.

Aside from allowing the bands to increase the scope of their governance powers, the Act also has the potential to allow the federal government to address an embarrassing shortcoming of the Indian Act.

"The land management initiative enables First ations to address the controversial issue of matrimonial property rights. Until now, the legal title to an on-reserve matrimonial home has been unclear," the minister said. "As a result, marriage breakdowns have often led to unnecessary hardship, particularly for children. For the first time in history, First Nations can acquire the right to address this situation according to the wishes of their communities."

Robert Nault said Louie and Muskoday Chief Austin Bear were "the two chiefs who are the most responsible for the agreement."

Bear said local control of land management will be much more efficient.

"Business opportunities won't wait for Indian Affairs and Indian Act processes. The decision is made in the community by the powers granted to council by the people in their land code and we can make decisions in a timely fashion and in appropriate time and eliminate, as in the past, possibilities for missed opportunities," he said. "I think First Nations all across the country can share stories and incidents where there were missed opportunities because of the procedures and processes of Indian Affairs under the Indian Act."

Louie said the act gives First Nations the authority to protect the environment.

"A First Nation can develop its own environmental laws," he said. "There's also something that's being worked on right now and is near conclusion and that's the harmonization of the environmental laws between the First Nation and Canada and the various provinces in which the First Nations are located. All met to address the environmental issues to ensure that there's environmental soundness."

The original framework agreement was signed on Feb. 12, 1996. It allows participating First Nations to develop their own land use codes. The federal government insisted that the codes must be ratified by both on and off-reserve membership.

Bear emphasized that this is not simply another government policy.

"The framework agreement is government-to-government. The Firt Nations that are signatory to the framework agreement, we enter into that agreement with Canada on a government-to-government relationship. It's not a policy of government," he said.

But the land is still considered Crown land, Louie admitted. And oil and gas and offshore resource matters are not included in the agreement.

"No, it won't go into the ocean and it won't cover oil and gas," he explained. "There are several things that are excluded from the land code and this whole land management process that we're currently embarking upon. Oil and gas is certainly one of the areas. Atomic energy is another area. The migratory birds, because of the treaty with the United States and Canada, and fisheries, is another area that has been excluded, along with the Species at Risk Act."

Nipissing First Nation Chief Margaret Penasse-Mayer said the process will make it easier for a First Nation to improve basic community infrastructures, such as sewer and water systems.

"The land management will produce a master plan for the community in terms of all the different areas that need to be developed," she said.

Windspeaker asked if INAC had retained the last word in the event of disputes.

An INAC official said there were arbitration processes included in the framework agreement, but it would not be the department that would referee disputes.

"When it comes to land management, we're out of the picture," he said.

Louie said the authority First Nations wield under the Act is greater than any municipal power.

"Once a First Nation approves its own land code, it has a process to pass its own laws. Here we're talking about powers that currently exist with the federal government and what the First Nations are doing by passing a land code are saying the powers are now going to rest with that individual First Nation community. It's law-making capacity and powers that are approved by its own community that goes far beyond the powers that might be referred to . . . local governments, he said.