Guest Column: First Nations Land Use and Resource Permitting

With 202 First Nation governments in BC, their decisions regarding land use and resource extraction have a significant impact on local and regional economies.  To better understand the land use decision-making process and the implications of the recent First Nations Lands Management Act, UBCM has invited Ken Cossey, Songhees First Nation Director of Local Government Services, to share some observations.

Historical Overview

Upon the initial colonization of lands by European settlers, First Nations and settlers traded goods, and shared the land and resources. With the mass movement of Europeans onto the landscape, this cooperative arrangement gradually changed, with land and resources becoming centralized under the control of the federal government. In 1755, the British Crown established the British Indian Department, and subsequently passed the Indian Lands Act, which centralized control over Aboriginal affairs in the colony. Since then, First Nations have been removed from any true decision-making on their lands. The Act created the office of the Chief Superintendent of Indian Affairs in the Crown Lands Department, and authority for First Nations and their land in the Province of Canada was transferred to this department. The Indian Act was created in 1876, revised in the early 1950s, and exists as the major expression of federal jurisdiction in this area today. It includes the provision of allowing a First Nation to create a zoning bylaw, however, the zoning bylaw needs ministerial approval, which may or may not be granted. Under section 81 (g) of the Indian Act, a First Nation is permitted to create zones and prohibit land use activities, buildings or businesses that are not in compliance with the zoning bylaw. This is a very basic and general approach to what a zoning bylaw should actually contain.

Land Use Decision-Making Authority/Approval

For First Nations subject to the Indian Act, land use and resource permitting decision-making authority currently rests with Aboriginal Affairs and Northern Development Canada (AANDC), located in Vancouver and Ottawa; and for the Oil and Gas authority or permitting in Calgary.

Treaty First Nations, on the other hand, are not subject to the Indian Act and its requirement for AANDC decision-making approval, as treaty powers incorporate all sectors of self-government.

Current Land Tenure programs offered by AANDC

AANDC officials realized that First Nations need to have input into land use and permitting decisions that affect their daily lives and their territories, so three programs were developed and implemented. These programs are briefly outlined below:

1.     53/60 Delegated Authority Program

53/60 delegated authority refers to sections of the Indian Act that have been delegated to the respective First Nation. Under certain circumstances, the First Nation can work upon lands dispositions, but the Minister or their designate still needs to sign off on the agreement and this power may be revoked from the First Nation at any time.

 2.     Regional Lands Administration Program (RLAP)

Under RLAP the First Nation partners with AANDC on the provision of lands management services, required under the various sections of the Indian Act.While the First Nation has been delegated more authority, the Minister or designate must still sign off on the agreement and this power may also be revoked from the First Nation at any time.

 3.     Reserve Land and Environment Management Program (RLEMP)

RLEMP is an enhanced program that would allow the First Nation to increase their responsibility over lands management, environmental planning and resource management. This program was expected to roll out in April 2013, but as of April 2014, it does not appear that any First Nation has been authorized to enter this program.

Observations about the programs

The challenges First Nations have with the first two programs are that the First Nation is involved in lands disposition activities with little or no final decision-making capabilities. This is problematic because there is a huge distinction between lands disposition issues and granting approvals. While the third program is attempting to move from a strict lands disposition process to an integrated process of land use planning, environmental planning and authority concept, the program seems to have stalled. Another observation about each of these programs is that AANDC officials decide whether the First Nation meets their criteria to enter into any of these programs. This does not amount to any local control or autonomy.

Local Control

How does a First Nation get back the land use decision-making control that they once had, prior to the centralization of the decision-making process in 1755? This can be achieved through any of the following methods:

  1. Self-Government Status: currently limited to three First Nations across Canada.
  2. Modern Day Treaty: this is a time-intensive process.
  3. First Nations Lands Management Act:when a First Nation accesses this sector of self-government, they generally have all their land use and resource permitting decision-making powers returned to them within two years.

What is the First Nations Lands Management Act?

Briefly, the First Nations Land Management Act acknowledges and gives back to the First Nation the authority to administer their own land use management and resource permitting regime in accordance with the Framework Agreement and the Act. This Act allows the First Nation to set up their own Land Code, which in turn returns the final approving authority to the First Nation.

Consequently, a new sector of self-governance is emerging across Canada. This trend is most prevalent in British Columbia as there are 606 First Nation governments across Canada with 202 First Nations located within BC. Of the 606 First Nations across Canada, 43 have operational lands codes, 28 of which are located in BC. At the developmental level, there are 51 First Nations waiting to become operational, 22 of which are located in BC. Under the Songhees First Nation Land Code, the First Nation can now create approximately 27 types of land laws or related land laws. This includes the following:

  • Zoning and land use – issuance of DP, TUP, DVP;
  • Archaeological assessment and protection;
  • Protection of cultural, heritage and spiritual sites;
  • Environmental assessment and protection;
  • Regulation, control, authorization and prohibition of residency, access and the occupation and development of land;
  • Setting aside protection and regulation of parks and parkland;
  • Setting aside lands for community purposes;
  • Management and protection of fish, wildlife and their habitat;
  • Subdivision of the land – works and services that are required; and,
  • Building regulation and inspections.

Which First Nations are operational in BC?

According to the Lands Advisory Board/Resource Centre website, as of April 17, 2014 the following BC First Nations are in the operational and developmental stages of land code development:

Operational:

Operational First Nations have their Land Code in place and they are again exercising their land use and resource permitting approvals.

Aitchelitz

Skowkale

Ts’kw’aylaxw (Pavilion)

Beecher Bay

Sliammon

T'sou-ke

Kitselas

Snaw Naw As (Nanoose)

Tsleil-Waututh

Leq' a: mel

Songhees

Tzeachten

Lheidli T'enneh

Squiala

Westbank B

Matsqui

Stz'uminus

We Wai Kai (Cape Mudge)

Musqueam

Sumas

We Wai Kum (Campbell River)

Seabird Island

Tsawout

Yakweakwioose

Shx'wha:y Village

Tsawwassen

 

Skawahlook

Tsekani (Mcleod Lake)

 

Developmental:

Developmental First Nations are working with the Lands Advisory Board and AANDC officials on the development and implementation of their Land Code. Generally once a First Nation has been accepted into the developmental category, within two years they become operational.

Akisqnuk

Lower Nicola

Tahltan

Chawatil

Malahat

Williams Lake

Cheam

Metlakatla

 

Cowichan

Nak'azdli

 

Haisla

Neskonlith

 

Homalco

Scowlitz

 

Katzie

Shuswap

 

Komoks

Shxw'ow'hamel

 

Kwantlen

Soowahlie

 

Lil'Wat Nation (Mt. Currie)

St. Mary's

 

 What does this mean for local governments?

The face of land use planning and governance on First Nations land is changing in British Columbia due to the emergence of this sector of self-government. So what does this mean for local governments?

From the Songhees Nation perspective it has allowed us to respond quicker to a land developer’s request so that we can participate in the local economy as a full participant. In addition to this it has provided us an opportunity to look at forming partnerships with our adjacent municipalities and the Capital Regional District (CRD) that strengthen our internal capacity development for our members. For example, we have a draft Building Regulation and Inspection Law in place, we have been using the CRD Building Inspection Department to assist us on reviewing any building plans that have been submitted to the Songhees Nation for our approval. On a final note, a First Nation with a Land Code in place and an adjacent local government can now collectively work on common land use planning goals, as the First Nation will be able to use the same type of planning tools that the local government has at their disposal.

If you have any questions on this article, or would like additional information, please contact:

Ken Cossey MCIP, RPP
Director of Local Government Services
Songhees First Nation
(250) 386 1043 ext 208 Ken.cossey@songheesnation.com

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