THE LANDS ADVISORY BOARD

submission to

the Federal Working Group of

Ministers on the Review of Laws

and Policies Related to Indigenous

Peoples

INHERENT RIGHTS, GOVERNANCE and

THE FRAMEWORK AGREEMENT ON

FIRST NATION LAND MANAGEMENT

September 7, 2017

Page | 1

TABLE OF CONTENTS

COVERING LETTER 2

1 SUMMARY OF LANDS ADVISORY BOARD RECOMMENDATIONS TO MINISTERS 4

2 SECTION 35: RECOGNITION AND RECONCILIATION 6

3 INHERENT RIGHTS AND GOVERNANCE 7

4 UNDRIP 8

5 THE FRAMEWORK AGREEMENT: GOVERNMENT TO GOVERNMENT AGREEMENT 9

6 COLONIZATION OF THE FRAMEWORK AGREEMENT: FNLMA 11

7 THE TWO-STAGE AMENDMENT CONVENTION 15

8 A PRINCIPLED PRECEDENT FOR DECOLONIZATION 15

9 RECOMMENDATIONS: REALIZING THE POTENTIAL OF THE FRAMEWORK AGREEMENT 17

ANNEX: FIRST NATIONS LAND MANAGEMENT AND GOVERNANCE ACT 23

Page | 2

Page | 3

Page | 4

Inherent rights, Governance and

The Framework Agreement on First Nation Land Management

Lands Advisory Board submission to the Ministers’ Working Group

NATION-TO-NATION, GOVERNMENT-TO-GOVERNMENT, AND INUIT-CROWN RELATIONSHIPS, INCLUDING TREATY RELATIONSHIPS, THEREFORE INCLUDE: (A) DEVELOPING MECHANISMS AND

DESIGNING PROCESSES WHICH RECOGNIZE THAT INDIGENOUS PEOPLES ARE FOUNDATIONAL TO

CANADA’S CONSTITUTIONAL FRAMEWORK; (B) INVOLVING INDIGENOUS PEOPLES IN THE EFFECTIVE

DECISION-MAKING AND GOVERNANCE OF OUR SHARED HOME; (C) PUTTING IN PLACE EFFECTIVE

MECHANISMS TO SUPPORT THE TRANSITION AWAY FROM COLONIAL SYSTEMS OF ADMINISTRATION AND

GOVERNANCE, INCLUDING, WHERE IT CURRENTLY APPLIES, GOVERNANCE AND ADMINISTRATION UNDER

THE INDIAN ACT; AND (D) ENSURING, BASED ON RECOGNITION OF RIGHTS, THE SPACE FOR THE

OPERATION OF INDIGENOUS JURISDICTIONS AND LAWS.

PRINCIPLES RESPECTING THE GOVERNMENT OF CANADA'S RELATIONSHIP WITH INDIGENOUS PEOPLES (JULY 14, 2017)

[HTTP://WWW.JUSTICE.GC.CA/ENG/CSJ-SJC/PRINCIPLES-PRINCIPES.HTML]

On behalf of the First Nation signatories to the Framework Agreement on First Nation Land Management (Framework Agreement), The Lands Advisory Board (LAB) strongly asserts that the inherent right to governance of reserve lands and resources is recognized and affirmed by section 35 of the Constitution Act, 1982. The Framework Agreement does not exhaust, limit or define the inherent rights of any First Nations.

1. SUMMARY OF LANDS ADVISORY BOARD RECOMMENDATIONS TO MINISTERS

The LAB offers the following recommendations for the consideration of the MWG:

1. REPLACE THE FNLMA WITH A SHORTER RATIFICATION ACT

To recognize First Nation authority and respect self government, the existing FNLMA should be replaced by shorter legislation sufficient to ratify and give legal effect to the Framework Agreement. This is an essential element of decolonization (see Annex).

2. NEGOTIATING SELF-GOVERNMENT AGREEMENTS IS IMPORTANT BUT FEDERAL RECOGNITION OF INHERENT RIGHTS OF SELF-GOVERNMENT MUST START NOW

The LAB recommends a culture shift within federal departments and agencies to recognize self government now - not as an abstract ideal, nor a far off objective dependent on negotiated agreements. Limitations imposed or assumed under the Indian Act must be abandoned in recognition of the capacity of First Nations to exercise their inherent rights.

Page | 5

3. DEVELOP A DIRECTIVE REGARDING THE FRAMEWORK AGREEMENT SIMILAR TO THE RECENT DIRECTIVE REGARDING RESPECTFUL INDIGENOUS LITIGATION.

The LAB wishes to work with Ministers to develop a directive similar to the one recently established by the Minister of Justice for respectful Indigenous litigation. A directive could for example signal the primacy of the Framework Agreement as a self-executing agreement – not subject in any way to the FNLMA or its successor statute.

4. PROMOTE FEDERAL-FIRST NATION PARTNERSHIPS TO RECOGNIZE FIRST NATION CONNECTIONS TO TRADITIONAL TERRITORIES

The LAB recommends that the MWG signal a broad acceptance of the historic reality that Framework Agreement First Nations have “unique connections” to their traditional territories and treaty lands – even before formal modern treaties and land claims agreements are finalized. Federal regulators should consider First Nations as necessary partners in federally regulated projects, and federal environmental laws should be amended to better respect Framework Agreement capacity in respect of species at risk and environmental assessments. Such acceptance is consistent with UNDRIP principles.

5. FEDERAL MINISTERS SHOULD MAKE THE FINANCIAL COMMITMENTS NECESSARY FOR REAL SELF-GOVERNMENT

Framework Agreement First Nations, like others, require financial support for governance. Superficially, efficiency may suggest aggregations and these are possible under the Framework Agreement. In principle, the LAB supports any group of First Nations that wish to work together. Mandatory aggregations, however, are considered to be highly problematic.

6. FEDERAL MINISTERS SHOULD MAKE OTHER LAND RELATED COMMITMENTS NECESSARY FOR REAL SELF-GOVERNMENT

The LAB recommends specific deadlines and commitments for full and timely treaty implementation. The LAB recommends that Canada increase efforts to resolve land issues arising from the history of Indian Act land administration such as contaminated sites, external boundaries and utility rights. The LAB recommends increased resources focused on closing the environmental regulatory gap on reserves.

7. FEDERAL MINISTERS SHOULD WORK WITH FIRST NATIONS TO DEVELOP EFFECTIVE MECHANISMS FOR ENFORCEMENT OF LAWS – REAL SELF-GOVERNMENT

The LAB is interested in partnerships with federal authorities to improve enforcement of First Nation laws by engaging experts at Public Safety Canada, the RCMP, the Aboriginal Justice Directorate of the Department of Justice, Fisheries and Oceans Canada and Environment & Climate Change Canada.

8. FEDERAL MINISTERS SHOULD ADOPT A FEDERAL COMMUNICATIONS STRATEGY THAT RECOGNIZES INHERENT RIGHTS OF SELF GOVERNMENT AND HIGHLIGHTS THE FRAMEWORK AGREEMENT AS A MODEL OF RECONCILIATION

The LAB is willing to explore with federal communication experts opportunities to raise awareness of the very ‘real’ and practical exercise of the inherent right of self government through the Framework Agreement. This could benefit both the public and federal departments and agencies working with Framework Agreement First Nation governments.

Page | 6

2. SECTION 35: RECOGNITION AND RECONCILIATION

The text of section 35 mandates recognition of existing aboriginal and treaty rights. The Supreme Court of Canada has set out various historical tests for such recognition, notably in VAN DER PEET

(1996) and PAMAJEWON (1996), making recognition essentially a question of mixed fact and law. As will be seen, the same line of cases also prescribed limits on the scope of recognition in ways that continue to create confusion.

One of the challenges for the Ministers’ Working Group (MWG) is to find ways for a general and expansive recognition of inherent rights in federal enactments, policies and constructive agreements. In the matter of First Nation governance of lands and resources, recognition can be achieved through constructive agreements like:

• Treaties or Modern Land Claim Settlements, which commonly provide for governance of lands and resources. Framework Agreement First Nations that have subsequently concluded treaties are Tsawwassen and Sliammon (Tla’amin). These provisions are now protected by section 35.

• Self-Government Agreements, which also provide for detailed governance of lands and resources. Framework Agreement First Nations that have subsequently moved to a self-government agreement are Westbank (2004) and Whitecap Dakota (AIP 2017). These agreements become self-executing on ratification.

• Sectoral Self-Government Agreements such as the Framework Agreement. In this particular case, recognition is uncertain and the relationship requires repair.

The Supreme Court has also read elements into the text of section 35 that are not written or, arguably, implied; examples being the constitutional duty to consult with aboriginal groups in certain situations, a justificatory standard for infringement of aboriginal and treaty rights and, for present purposes, the goal of reconciling the pre-existence of aboriginal and treaty rights with the sovereignty of the Crown. After recognition comes reconciliation. The Court does not regard reconciliation as a legal remedy however; instead, it is a process that requires continuing engagement. HAIDA NATION (2004) states:

Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982.

In MIKISEW CREE (2005), the Court confirmed that reconciliation is a process that continues even after treaty or land claims settlement. We say this principle applies as well to other constructive agreements, including the Framework Agreement. In LITTLE SALMON/CARMACKS (2010) the Court acknowledges ad hoc arrangements directed at reconciliation and refers to an intention “to create some precision around property and governance rights and obligations.” In the same case, the Court refers to “the long journey of reconciliation.”

While there is a wealth of legal and other literature available on the subject of recognizing and reconciling section 35 aboriginal and treaty rights, the limited guidance referred to above, coupled with the mandate and Principles of the Ministers’ Working Group, are sufficient to recognize the

“

Realizing a Nation-to-Nation Relationship with the Indigenous Peoples of Canada, Minister J. Wilson-Raybould to the Cambridge Lecture Series, July 3, 2017 [https://www.canada.ca/en/department-justice/news/2017/07/realizing_a_nation-to-nationrelationshipwiththeindigenouspeoples.html]

Page | 7

Framework Agreement and situate it properly in our law. The LAB says, with emphasis, that it is possible to achieve reconciliation in a tangible way and at an early date.

3. INHERENT RIGHTS AND GOVERNANCE

The advantage of constructive agreements as instruments of recognition and reconciliation is made clear by a brief review of the Court’s pronouncements about what is “inherent” in the context of aboriginal and treaty rights.

VAN DER PEET (1996) uses the term “inherent” in many ways, including a reference to “inherent limits” on the aboriginal right to commercial fishing. It does not address inherent rights of self-government. The Court assesses assertions of aboriginal rights on the basis of whether they were historically “integral” to distinctive societies, not whether they are inherent in the context of section 35. In recent years, academic writers have noted, the Court has moved away from the reductionist approach taken in this case.

In PAMAJEWON (1996) – decided the next day – the Court applied the “integral” test to First Nations’ assertions of the right to regulate gambling on their reserves. Gambling was found not to meet the historical test and the right to regulate it was rejected. As gambling is an activity, in this case conducted on reserve land, the decision tells us nothing about the governance of land and resources per se. If applicable, it presents an impoverished view of such governance.

DELGAMUUKW (1997) gives further insight into the Court’s views on what is inherent and what is not. The Court states that: “The content of aboriginal title contains an inherent limit that lands held pursuant to title cannot be used in a manner that is irreconcilable with the nature of the claimants’ attachment to those lands.” (emphasis added). Inherency, in these cases, is negative. See also TSILHQOT’IN (2014).

MITCHELL (2001) supplies yet another limitation: the doctrine of sovereign incompatibility, meaning that certain aboriginal rights, even inherent ones, did not survive the assertion of Crown sovereignty, if they are found to be inconsistent with Crown sovereignty. This gloss on the word “existing” in section 35, goes beyond extinguishment by clear and plain intention – expressly relieving the Crown of any burden to prove such intention -- and appears to adopt a modified test that may be necessary implication or operational inconsistency or simply judicial fiat.

Finally, the Court recognizes that aboriginal and treaty rights, and even aboriginal title, are subject to infringement. In assessing justification, “a compelling and substantial public interest” is a relevant factor and may be a determinative one: TSILHQOT’IN (2014). Contrast this with the statement in SPARROW (1990) that “The "public interest" justification is so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights.”

The LAB notes that Ministers are alert to the phenomenon of denial and that the Working Group intends to address the issue in a systematic way at all levels. One technique to implement recognition and reconciliation that avoids endless debate of legal niceties is a simple declarative sentence in a constructive agreement; e.g., the 2017 Agreement between Canada and the Grand Council of the Crees of Quebec in relation to governance of Category 1A lands:

Framework Agreement of First Nation Land Management [https://labrc.com/framework-agreement/]

Page | 8

WHEREAS the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada, and Canada recognizes the inherent right of self-government as an existing Aboriginal right.

For the reasons set out below, the LAB recommends that a similar provision be included in the Framework Agreement. The Court has not provided anything more than a fragmentary view of First Nations’ inherent rights of self-governance. In Matsqui (1995), the Court spoke of “the development of Aboriginal self-government by allowing bands to exercise the inherently governmental power of taxation on their reserves.”

Could this mean that the power to tax is protected by section 35? If so, it must follow that governance of land and resources is equally protected, recognizing these as natural objects of taxation, but this is an oblique route to the correct result.

In Osoyoos (2001), the Court spoke of “the relationship between an aboriginal community and the land and the inherent and unique value in the land itself which is enjoyed by the community.” The LAB says that section 35 does recognize and affirm the inherent right of First Nations to govern that relationship and that land.

It is now 35 years since section 35 came into force and effect. It has taken the Court a long time to make this simple pronouncement, and the Court has not made it clear yet. Governments, Ministers and First Nations cannot afford to wait for judges to arrive at what must be an inevitable and obvious conclusion. The Ministers’ Working Group is already here.

First Nations see recognition of their inherent rights of governance as analogous to constitutional recognition of “the inherent jurisdiction of the superior courts”. Both are rooted in history, both can be exercised to legal effect, both generate legal consequences and both imply a power of enforcement. More particularly, both can be articulated without compromising future development and growth.

Constructive, or collaborative, agreements like the Framework Agreement take us into the specifics of recognized rights of governance, usually providing that they do not define or limit those rights. The Framework Agreement has taken us a long way, in partnership with government, towards recognition and reconciliation. It is time to move on to the next way station and give real meaning and effect to those terms.

The LAB submits that, for the reasons set out below and by means of the process described, this move to recognize and reconcile the Framework Agreement should be a priority for Government.

4. THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES

MWG Principle No. 1 sets out Canada’s recognition of the ongoing presence and inherent rights of Indigenous peoples as a defining feature of Canada, grounded in the promise of section 35 of the Constitution Act, 1982, and in addition to reflecting Articles 3 and 4 of the UN Declaration. These are:

ARTICLE 3 INDIGENOUS PEOPLES HAVE THE RIGHT TO SELF-DETERMINATION. BY VIRTUE OF

THAT RIGHT THEY FREELY DETERMINE THEIR POLITICAL STATUS AND FREELY PURSUE THEIR

ECONOMIC, SOCIAL AND CULTURAL DEVELOPMENT.

Principles respecting the Government of Canada's relationship with Indigenous peoples (July 14, 2017) [http://www.justice.gc.ca/eng

/csj-sjc/principles-principes.html]

Page | 9

ARTICLE 4 INDIGENOUS PEOPLES, IN EXERCISING THEIR RIGHT TO SELF-DETERMINATION, HAVE

THE RIGHT TO AUTONOMY OR SELF-GOVERNMENT IN MATTERS RELATING TO THEIR INTERNAL

AND LOCAL AFFAIRS, AS WELL AS WAYS AND MEANS FOR FINANCING THEIR AUTONOMOUS

FUNCTIONS.

The Framework Agreement is consistent with all these statements. It provides for local autonomy and law-making in relation to the internal and local matter of governing reserve lands and resources (which the LAB says is inherent and fundamental to self-government in any form), and it promotes free pursuit of economic, social and cultural development. The LAB submits that the UN Declaration should be given explicit recognition in the Framework Agreement.

The preamble to the Principles states that they are rooted in section 35 and guided by the UN Declaration. Noting that implementation of the Declaration requires transformative change, the Government has committed to the present review of laws and policies, as well as other collaborative initiatives and actions. As part of this exercise, the LAB proposes that the implementation of guidance of the UN Declaration be included as an express term of the Framework Agreement. The LAB recommends that a clause could be included similar to the following:

Canada and the First Nation parties to the Framework Agreement agree that the interpretation or application of the Framework Agreement and this Act shall be guided by the principles established in the United Nations Declaration on the Rights of Indigenous Peoples;

5. THE FRAMEWORK AGREEMENT: GOVERNMENT TO GOVERNMENT

In preparing this submission to the Ministerial Working Group, The LAB is well aware of the need to discuss the Principles more widely among the First Nations who are signatories to the Framework Agreement. Included in this submission are a number of proposals that will go a long way to resolving long standing irritants relating to recognition and reconciliation. However, this submission should be viewed as a starting point for First Nation signatories in considering the Principles set out by the MWG. The LAB will continue to develop and propose practical and beneficial solutions to meet the needs of these First Nations, consistent with the Principles.

The Framework Agreement recites the mutual intention of Canada and the First Nations to enter into “a government to government agreement within the framework of the Constitution of Canada” and this recital forms part of the Agreement. The first Principle set out by the MWG is:

THE GOVERNMENT OF CANADA RECOGNIZES THAT ALL RELATIONS WITH INDIGENOUS PEOPLES

NEED TO BE BASED ON THE RECOGNITION AND IMPLEMENTATION OF THEIR RIGHT TO SELF-DETERMINATION, INCLUDING THE INHERENT RIGHT OF SELF-GOVERNMENT.

This brings the Framework Agreement squarely within the Ministers’ mandate of review and renewal of collaborative agreements. In this context, recognition means confirmation that the Framework Agreement is an expression of First Nations’ inherent right of governance over their

UNITED NATIONS

DECLARATION ON THE RIGHTS

OF INDIGENOUS PEOPLES

Page | 10

reserve lands and resources. The Framework Agreement, as a collaborative government to government agreement, is the foundational and pre-eminent document in this process. To that end, recognition includes confirmation of the Framework Agreement as a self-executing agreement.

The mandate then turns to the question of whether the Framework Agreement requires reconciliation or renewal. The LAB advises here that the relationship requires repair. Reconciliation, in the case of the Framework Agreement, means legal clarity and certainty that it has the force of law.

The first point to be made about the Framework Agreement is that it lies at the core of the opportunity for First Nations to govern their reserve lands and resources. First Nations gain access to that opportunity by signing, with the Minister, the Framework Agreement. A signatory First Nation then proceeds to develop a land code, which will be its fundamental land law, and to negotiate a separate Individual Agreement with the Minister. The First Nation then ratifies the Framework Agreement and the Individual Agreement by community vote after independent verification that the draft land code and community approval process are consistent with the Framework Agreement. When the vote is certified by the independent verifier, the First Nation’s land code becomes law.

At all stages of the process, the touchstone is the Framework Agreement.

The second, and equally important, point to be made is that the Framework Agreement was drafted to be self-executing – meaning that it only requires ratification by the parties to be given legal effect according to its terms. Two examples of its terms demonstrate this point:

12.1 A FIRST NATION WITH A LAND CODE IN EFFECT WILL, SUBJECT TO CLAUSE 13, HAVE

THE POWER TO MANAGE ITS FIRST NATION LAND AND EXERCISE ITS POWERS UNDER THIS

AGREEMENT.

[SEE ALSO, 7.1, 8.8, 10.6, 13.3, 17.2, 17.6, 18.5,19.4, 19.5, 19.8, 47.4, 50.5, 59.2, ETC.]

59.1 THIS AGREEMENT WILL COME INTO FORCE IN RESPECT OF CANADA AND A FIRST

NATION WHEN CANADA AND THAT FIRST NATION BOTH RATIFY THIS AGREEMENT UNDER

PART X.

The Framework Agreement sets out how the parties, Canada and a First Nation, are to ratify it, and Canada did enact the federal legislation.

Nothing more was required than a clear statement of Parliament’s decision to ratify the Framework Agreement. Section 4(1) of the federal legislation (FNLMA) was by itself sufficient to achieve legal certainty. For purposes of recognition of the Framework Agreement as a self-executing government to government agreement dealing with First Nations’ inherent rights, there should have been nothing more. But there was.

Without the consent or support of the First Nations that negotiated the Framework Agreement, Canada elected to include in the federal legislation (FNLMA) its own restatement of most of the terms of the Framework Agreement and thus to create confusion about whether implementation of the Framework Agreement is governed by the agreement itself or by the federal legislation. Canada’s approach is problematic both because some of the language of the Framework

First Nation Lands Management Act http://laws-lois.justice.gc.ca/PDF/F-11.8.pdf

Page | 11

Agreement has been omitted and also because some of the carefully worded provisions of the Framework Agreement have been recast in a way that does not properly capture what was agreed to in the Framework Agreement.

Canada’s approach has also been problematic because federal departments and officials tend to consider the federal legislation as the source of First Nation land authority and therefore see the federal legislation or FNLMA as a delegated form of self-government. Federal departments and officials mistakenly focus on the federal legislation as the basis of the relationship, failing to give proper recognition to the Framework Agreement as a government to government recognition of the inherent right of self-government.

This, in the view of the Land Advisory Board, is a classic example of colonization; fortunately one that can be easily reconciled and repaired as an example of Ministers acting decisively in the discharge of their mandate.

6. COLONIZATION OF THE FRAMEWORK AGREEMENT: FNLMA

The colonization of indigenous governance has taken place over a period of at least 250 years and it has been a destructive process. Erosion of First Nation autonomy began slowly, and then inexorably, resulting in the various versions of the Indian Act, which is still with us today.

Page | 12

Laudably, the Ministers’ Working Group seeks to separate First Nation governance from the Indian Act, which is what the Framework Agreement does to a significant extent. It has the potential to do more.

In essence, colonization of governance means that the Crown itself makes the ultimate decision in matters of First Nation governance and imposes its own controls and limits on the rights of First Nation governments to exercise their inherent powers of governance. Many of the elders and leaders of our First Nations today remember very well the days of Indian Agents micro-managing our lives. One aspect of that colonization is that the Crown took unilateral control of a bilateral, government to government agreement - the Framework Agreement - with the clear intention of diminishing its force and effect

For example, the Tsawwassen First Nation Final Agreement Act, (2008) refers to the FNLMA and “the Tsawwassen land code adopted under subsection 6(1) of that Act.” Adopting a land code is not terminology used in the Framework Agreement. Pursuant to clauses 10.5 – 10.7, a land code is “approved” by the First Nation and has the force of law on the date it takes effect. The Framework Agreement is not enhanced by these statutes. It is first ignored and then its provisions restated, using terminology not used in the Agreement itself.

More to the point, there is no reason for the Tsawwassen legislation to include a reference to anything like subsection 6(1), if the Framework Agreement is properly recognized as a self-executing government to government agreement. The FNLMA, as a colonizing act akin to the Indian Act, not only undermines the solemn nature of the Framework Agreement but contributes to both legal and public confusion.

Apart from the “restatement” problem already noted, the FNLMA itself treats the Framework Agreement in different ways:

(a) Provisions that appear to defer to the Framework Agreement; e.g.

17 (1) A FIRST NATION SHALL, IN ACCORDANCE WITH THE FRAMEWORK AGREEMENT AND

FOLLOWING THE COMMUNITY CONSULTATION PROCESS PROVIDED FOR IN ITS LAND CODE, ESTABLISH GENERAL RULES AND PROCEDURES, IN CASES OF BREAKDOWN OF MARRIAGE, RESPECTING THE USE, OCCUPATION AND POSSESSION OF FIRST NATION LAND AND THE

DIVISION OF INTERESTS OR RIGHTS IN FIRST NATION LAND.

(B) PROVISIONS THAT APPEAR TO GIVE EQUAL EFFECT TO THE AGREEMENT AND ACT; E.G.

18 (1) A FIRST NATION HAS, AFTER THE COMING INTO FORCE OF ITS LAND CODE AND

SUBJECT TO THE FRAMEWORK AGREEMENT AND THIS ACT, THE POWER TO MANAGE FIRST

NATION LAND AND, IN PARTICULAR, MAY . . .

(b) Provisions of the Agreement not reflected in the Act at all; e.g.

39.2 THE LANDS ADVISORY BOARD WILL HAVE AUTHORITY TO ADOPT RULES FOR THE

PROCEDURE AT ITS MEETINGS AND GENERALLY FOR THE CONDUCT OF ITS AFFAIRS.

(Note: S. 35 of the FNLMA acknowledges, for purposes of immunity, the fact that “a board” was established by the Framework Agreement. The LAB’s authority, however, is only to be found in the Agreement.)

Framework Agreement of First Nation Land Management [https://labrc.com/framework-agreement/]

Page | 13

As a matter of statutory construction of the FNLMA, the intended interplay between the Act and the Framework Agreement is at best uncertain. In addition, public confusion caused by the FNLMA is almost as bad. Despite the obvious centrality of the Framework Agreement, the public – and even First Nations – are told that the FNLMA governs the process. This sends mixed messages which all derogate from proper recognition of the Framework Agreement as a collaborative expression of inherent rights; in fact, the message derogates from the term “collaborative.” INAC documents such as the First Nations Land Management Readiness Guide attempt to create a false equivalence between the Framework Agreement and the FNLMA under the heading of the “First Nations Land Management Regime”, described as follows:

“The term ‘First Nations Land Management Regime’ refers to the Framework Agreement and the FNLMA, which together provide the opportunity for First Nations to opt out of land-related sections of the Indian Act and assume jurisdiction over their reserve lands and resources under their own land codes.”

The reason this “Regime” approach demonstrates a false equivalence is that a true government to government agreement is ratified by the parties by actions independent of the agreement itself. The FNLMA does not “together” provide the opportunity of land governance. Both acts of ratification are necessary but neither governs the Agreement, which takes on its own force and effect when ratified.

It is the Framework Agreement that provides the opportunity of land governance: a First Nation signing it and following its provisions through to ratification has done all that is needed or ever contemplated by the First Nations who negotiated the Framework Agreement.

The FNLMA does nothing “together” with the Agreement to reflect its essential nature as a self-executing agreement. What Canada actually communicates in its FNLM ‘regime’ messaging is that once a First Nation signs the Framework Agreement, all subsequent steps, including ratification, are governed by the Act. This is not equivalence, and it is not partnership. In a further example, a note received by LAB advisors from government officials describes the Framework Agreement in this way:

“[In 1999] the First Nations Land Management Act (FNLMA) received Royal Assent, which ratified the Framework Agreement, making it a statutory instrument.”

It is beyond legal doubt that the Framework Agreement is not a statutory instrument: nothing says it was intended to be a statutory instrument and it comes nowhere near the definitions in the Statutory Instruments Act. The above statement is a fallacious attempt to explain why the Framework Agreement is somehow subordinate to the FNLMA. To a broader audience, the message is repeated that the FNLMA is the active agent of change. An archived FAQ online web page written by INAC, provides a further example:

Page | 14

Q.1. WHAT IS THE FIRST NATIONS LAND MANAGEMENT ACT (FNLMA)?

The FNLMA enables participating First Nations to opt out of the 34 land-related sections of the Indian Act and develop their own land codes . . .

Under the FNLMA, all administration of land is transferred to the First Nation, including the authority to enact laws . . .

The FNLMA is the formal legislation ratifying the Framework Agreement on First Nation Land Management . . .

The FNLMA is a priority for the Government of Canada . . .

Q.2. DOES THE FNLMA HAVE AN IMPACT ON OTHER SELF-GOVERNMENT ARRANGEMENTS?

No. The provisions of the FNLMA are sufficiently flexible and progressive to fit harmoniously with other self-government initiatives.

This is the message that has been sent by Government, and which continues to be sent: that the lesser achievement of an ordinary statute is more important than the signal achievement of a government to government agreement implementing First Nations’ inherent right of self-governance over the lands and resources reserved to them - an agreement fully capable of being, and originally intended by the First Nation parties to be, self-executing. This colonizing message also continues to pervade First Nation dealings with Canada. In the 2017 Whitecap Dakota First Nation Governance AIP, for example, there is this clause:

9.05 WDFN PRESENTLY IS AN ADHERENT TO THE FIRST NATIONS LAND MANAGEMENT ACT

There is nothing in the Framework Agreement, nor is there any step in implementing the Framework Agreement, that suggests a First Nation will “adhere” to the statute. Individual First Nations are only referred to in the statute if their names are added to the Schedule, and that is a process predicated on signing, or adhering to, the Framework Agreement. The FNLMA says:

45 (1) THE GOVERNOR IN COUNCIL MAY, BY ORDER, ADD THE NAME OF A BAND TO THE

SCHEDULE IF HE OR SHE IS SATISFIED THAT THE SIGNING OF THE FRAMEWORK AGREEMENT ON

THE BAND’S BEHALF HAS BEEN DULY AUTHORIZED AND THAT THE FRAMEWORK AGREEMENT HAS

BEEN SIGNED.

Once again, we see the spectre of an all-encompassing statute and the disregard and disrespect of the Framework Agreement. The basic problem is unilateral colonization of the Framework Agreement. The LAB says that the cure, which is entirely consistent with the mandate and Principles of the Ministers’ Working Group, is decolonization. This will require only a single ordinary statute replacing the FNLMA with a successor enactment consistent with the inherent right of self-government. In the following sections of this submission, we show how it can be done.

Page | 15

7. THE TWO-STAGE AMENDMENT CONVENTION

The FNLMA does perform the federal responsibility of ratifying the Framework Agreement, defined in the Act as:

“The Framework Agreement on First Nation Land Management concluded between Her Majesty in right of Canada and the First Nations on February 12, 1996, and includes any amendments to the Agreement made pursuant to its provisions.”

The Framework Agreement does have provisions relating to the manner in which First Nations authorize amendments. Because it is an agreement, Canada’s concurrence to Framework Agreement amendments is necessary as well. But the Agreement also includes this clause:

49.1 CANADA AGREES THAT THE FEDERAL LEGISLATION THAT IT RECOMMENDS TO PARLIAMENT

WILL BE CONSISTENT WITH AND WILL RATIFY THIS AGREEMENT.

Because the FNLMA includes many provisions attempting to capture, restate or govern the Framework Agreement, it becomes necessary for amendments to go through two stages: formal amendment of the Agreement itself, then legislation amending the FNLMA to resolve any inconsistencies between the amended Agreement and the existing statute. Over the years a convention has evolved for this two-stage amending process. The LAB submits that decolonizing the Framework Agreement to confirm that it is a self-executing government to government agreement will have the salutary effect of discontinuing the second stage: an act of Parliament every time the Framework Agreement is amended.

If that is not actually a waste of Parliament’s time -- because statutory amendment should be unnecessary -- it is Parliamentary time in Committee and in both chambers that can be devoted to other purposes.

8. A PRINCIPLED PRECEDENT FOR DECOLONIZATION

In the 1990’s, Canada took the position that there was a difference between a sectoral self-government agreement and a general self-government agreement. That was the reason given for refusal to ratify the Framework Agreement as a self-executing agreement. That is how the Framework Agreement became colonized by the FNLMA in 1999.

In 1999, there was only one precedent for First Nation self-government: the Sechelt Indian Band Self-Government Act (1986) where the substance of the legislation had been approved by referendum of the members. It did not ratify an agreement as there was none. Since the FNLMA (1999), which does ratify an agreement, two things have changed:

1. There are now other precedents for legislation that ratifies self executing governance agreements; and

2. This Ministers’ Working Group has established forward-looking Principles with a mandate which includes the review, renewal and reconciliation of those principles with existing programs, policies and laws.

Page | 16

With both factors in mind, the LAB refers Ministers to a precedent which can serve as a model for recognition, reconciliation and repair of the Framework Agreement relationship by enacting, one time only, an appropriate replacement for the FNLMA. The new Act would look similar to the Westbank legislation (condensed in the table on the next page) and have the legal effect of making the Framework Agreement self-executing.

In brief, the new Act replacing the FNLMA would ratify the Framework Agreement and nothing more. In this way, the Framework Agreement is fully recognized as a self-executing agreement, the goal of reconciliation is achieved and no remnants of colonization remain.

In the Annex at the end of this submission, we suggest a full draft Bill for replacement of the FNLMA. We are pleased to be able to propose to the Ministers a realistic product for their endeavours which can be delivered in a relatively short period of time.

WESTBANK FIRST NATION SELF-GOVERNMENT ACT (2005)

2 (1) IN THIS ACT, AGREEMENT MEANS THE WESTBANK FIRST NATION

SELF-GOVERNMENT AGREEMENT SIGNED ON BEHALF OF THE WESTBANK

FIRST NATION AND HER MAJESTY IN RIGHT OF CANADA ON OCTOBER 3, 2003 AND LAID BEFORE THE SENATE AND THE HOUSE OF COMMONS ON

NOVEMBER 5, 2003, AND INCLUDES ANY AMENDMENTS MADE TO IT

FROM TIME TO TIME IN ACCORDANCE WITH ITS PROVISIONS. 3 (1) THE AGREEMENT IS APPROVED AND HAS THE FORCE OF LAW.

(2) PERSONS AND BODIES HAVE THE POWERS, RIGHTS, PRIVILEGES

AND BENEFITS CONFERRED ON THEM BY THE AGREEMENT AND ARE

SUBJECT TO THE OBLIGATIONS AND LIABILITIES IMPOSED ON THEM BY

THE AGREEMENT. 4 (1) THE AGREEMENT IS BINDING ON AND MAY BE RELIED ON BY ALL

PERSONS. 5 IN THE EVENT OF A CONFLICT BETWEEN THIS ACT OR THE AGREEMENT

AND ANY OTHER FEDERAL LAW, THIS ACT OR THE AGREEMENT PREVAILS

TO THE EXTENT OF THE CONFLICT. 9 JUDICIAL NOTICE SHALL BE TAKEN OF THE AGREEMENT AND

WESTBANK LAW.

Page | 17

9. RECOMMENDATIONS: REALIZING THE POTENTIAL OF THE FRAMEWORK AGREEMENT

The LAB offers the following recommendations for the consideration of the MWG:

1. REPLACE THE FNLMA WITH A SHORTER RATIFICATION ACT

For the reasons set out throughout this submission, the LAB recommends that the FNLMA be replaced by shorter legislation that would be sufficient to give legal effect to the Framework Agreement. This approach would respect self government and recognize the authority of First Nations in a way consistent with many of the ten principles of the MWG. The model statute attached in the Annex has been drafted to meet both the standards set by First Nations and the Principles recognized by the MWG.

2. NEGOTIATING SELF-GOVERNMENT AGREEMENTS IS IMPORTANT BUT FEDERAL RECOGNITION OF INHERENT RIGHTS OF SELF-GOVERNMENT MUST START NOW

MWG PRINCIPLE #1 STATES THAT “THE GOVERNMENT OF CANADA RECOGNIZES THAT ALL RELATIONS

WITH INDIGENOUS PEOPLES NEED TO BE BASED ON THE RECOGNITION AND IMPLEMENTATION OF THEIR

RIGHT TO SELF-DETERMINATION, INCLUDING THE INHERENT RIGHT OF SELF-GOVERNMENT”.

The Framework Agreement is an example of the recognition of inherent rights of self-government. However, the LAB recommends more be done to emphasize the recognition of existing “inherent” rights of self-government. Too often in the past, federal departments and officials have either assumed that Indian Act First Nations have no self-government capacity or have adopted a narrow and technical reading of self-government authority which assumes that First Nation governments do not have the internal capacity, accountability or decision-making systems to provide good government. The default assumption appears to be that the federal government can do better instead which leads to a lingering Indian Act colonial mentality rather than embracing the MWG #1 statement of principle.

More and more First Nations wish to adopt land codes under the Framework Agreement and to escape the crushing limitations of the Indian Act. There is no doubt that First Nation self- government authority and capacity is greatly increased by adopting land codes. However, it is important for Canada to recognize that even Indian Act First Nations wishing to adopt land codes already start with inherent rights of self-government. For instance, despite the fact that many of these First Nations already have well established voting systems for elections, Canada insists in the Framework Agreement that votes be monitored by independent verifiers and imposes a minimum threshold for yes votes. This approach shows a distrust of First Nation’s existing decision-making processes and capacity. It is an overt denial of the inherent right of self-government.

The LAB is recommending changes to eliminate imposed voting thresholds and to reduce the role of verifiers. This would make the voting process equivalent to the voting systems of other governments. This innovation would show greater respect and dignity for existing rights of self-government of First Nations.

More generally, the LAB recommends that federal legislation, programs, directives, operating procedures and publications should start from the premise that First Nation governments already exist. Federal departments and officials need to understand that they are dealing with First Nation governments, just as they are dealing with governments when engaging the

Page | 18

provinces, territories and municipal governments. Formal self-government agreements and legislation enhance existing self-government but do not create First Nation governments out of thin air.

Federal departments and officials must see that recognizing the inherent right of self- government is not an abstract ideal, nor a far off objective dependent on negotiated agreements. MWG Principle #9 rightly recognizes that reconciliation is an ongoing process and the LAB fully expects that the Framework Agreement will lead to increasingly stronger First Nations over time and a greatly improved fabric of Canadian society as a whole.

3. DEVELOP A DIRECTIVE REGARDING THE FRAMEWORK AGREEMENT SIMILAR TO THE

RECENT DIRECTIVE REGARDING RESPECTFUL INDIGENOUS LITIGATION.

MWG PRINCIPLE #3 STATES THAT “THE GOVERNMENT OF CANADA RECOGNIZES THAT THE HONOUR

OF THE CROWN GUIDES THE CONDUCT OF THE CROWN IN ALL ITS DEALINGS WITH INDIGENOUS

PEOPLES”.

The LAB wishes to work with Ministers to develop a directive similar to the one recently established by the Minister of Justice for respectful indigenous litigation. The Framework Agreement itself is well drafted, containing important principles to be respected by all parties. However, given the long-term nature of the relationship established through the Framework Agreement and the mutual benefits that can be derived from effective implementation of the Framework Agreement, a directive could assist federal departments in meeting Minister’s expectations for the honour of the Crown.

A directive on respectful implementation of the Framework Agreement could for example signal:

• The primacy of the Framework Agreement as a self-executing agreement – not the FNLMA;

• The “recognition” of self-government through the Framework Agreement – not a “delegated” self-government model

• The recognition that sectoral self government and comprehensive self- government are just variations on the scope of self-government (Framework Agreement should not be seen in the federal system as a lesser grade of governance or a mere step toward self-government)

4. PROMOTE FEDERAL-FIRST NATION PARTNERSHIPS TO RECOGNIZE FIRST NATION

CONNECTIONS TO TRADITIONAL TERRITORIES

MWG PRINCIPLE #4 STATES THAT “THE GOVERNMENT OF CANADA RECOGNIZES THAT INDIGENOUS

SELF-GOVERNMENT IS PART OF CANADA’S EVOLVING SYSTEM OF COOPERATIVE FEDERALISM AND

DISTINCT ORDERS OF GOVERNMENT”.

In describing this principle, the MWG notes that; “As informed by the UN Declaration, Indigenous peoples have a unique connection to and constitutionally protected interest in their lands, including decision-making, governance, jurisdiction, legal traditions, and fiscal

Principles respecting the Government of Canada's relationship with Indigenous peoples (July 14, 2017) [http://www.justice.gc.ca/eng

/csj-sjc/principles-principes.html]

Page | 19

relations associated with those lands”. We recommend that the MWG take some steps now within the scope of federal jurisdiction to move in the direction contemplated by the UN Declaration. This may assist in making progress in the complex multi party negotiations regarding traditional territories undertaken with provinces and territories.

The Framework Agreement describes self-government authority over reserve lands that are within Parliament’s legislative authority under section 91(24) of the Constitution Act, 1867. The Framework Agreement does not prejudice the ability of individual First Nations to control their lands or resources (beyond reserves) nor does it preclude other negotiations in respect of those rights. Canada has typically required participation of provinces and territories in negotiations dealing with lands beyond the reserve land base.

The LAB recommends that the MWG signal a broad acceptance of the historic reality that Framework Agreement First Nations have “unique connections” to their traditional territories and treaty lands.

This would not go so far as to tread on any provincial or territorial jurisdiction, but instead be a recognition of the historic reality that reserve lands are not the outer boundaries of First Nation lands within the meaning of the UN Declaration. Unfortunately, in the past, federal departments and officials have tended to operate on the assumption that there is no traditional territory unless First Nations prove otherwise in the courts. Some federal departments and officials have tended to assume that First Nations historically had “unique connections” to treaty lands but that these historical connections were terminated when reserves were established. A narrow and legalistic approach also tends to be taken when determining the minimum legally necessary for consultations on federally regulated projects.

Signalling an expectation that the federal government wishes to respect the “unique connection” of First Nations to their traditional territories – even before formal modern treaties and land claims agreements are finalized – would send a powerful signal of the expectations in respect of federally regulated projects and federal environmental management. The LAB envisions a major change to the way in which federal regulators review and consider federally regulated projects but also a major change in the approach of environmental authorities responsible for fisheries management and species at risk: respect First Nations as necessary partners, rather than question to what extent they pose an obstacle to federal activity. It is particularly important to signal to federal authorities that Framework Agreement First Nations have real self-government law and decision-making authority in respect of the development, conservation, protection, management, use and possession of their lands. Some federal departments dealing with Framework First Nations still make the mistake of thinking that INAC remains engaged in reserve land management. Federal decision makers and regulators should reach out to work with Framework Agreement First Nations because federal decisions can not only affect traditional territories but also have real impacts on reserve lands. Better to work in partnership on land and resource management throughout a traditional territory rather than risk making federal decisions that undermine the underlying aboriginal rights and title, land use plans, environmental controls and/or economic development efforts of Framework Agreement First Nations on reserve.

Page | 20

The LAB has recommended changes to the federal Species at Risk Act to respect the “unique connection” of the Framework Agreement First Nations to their lands. Where Framework Agreement First Nations have put in place measures to manage species at risk, those measures should be recognized by the federal government. Federal species at risk legislation should not prevail over or overturn the work of Framework Agreement First Nations.

The LAB recommends that federal species at risk legislation be amended to treat First Nation governments the same way as provincial and territorial governments – that would show greater respect and fairness – and lead to more consistent management of species at risk across jurisdictions.

5. FEDERAL MINISTERS SHOULD MAKE THE FINANCIAL COMMITMENTS NECESSARY FOR REAL SELF-GOVERNMENT

MWG PRINCIPLE #8 STATES THAT “THE GOVERNMENT OF CANADA RECOGNIZES THAT

RECONCILIATION AND SELF-GOVERNMENT REQUIRE A RENEWED FISCAL RELATIONSHIP, DEVELOPED IN

COLLABORATION WITH INDIGENOUS NATIONS, THAT PROMOTES A MUTUALLY SUPPORTIVE CLIMATE

FOR ECONOMIC PARTNERSHIP AND RESOURCE DEVELOPMENT”.

The MWG “…. recognizes the importance of strong Indigenous governments in achieving political, social, economic, and cultural development and improved quality of life”.

Supporting strong First Nation governments may, in some instances, lead to aggregations of First Nations for land management or governance purposes. As a matter of principle, the Framework Agreement does not prevent aggregation of groups of First Nations and has resulted in successful fiscal and governmental arrangements of this type. The LAB supports any group of First Nations that wish to work together. Mandatory aggregations, however, are considered to be highly problematic.

6. FEDERAL MINISTERS SHOULD MAKE OTHER LAND RELATED COMMITMENTS NECESSARY FOR REAL SELF-GOVERNMENT

MWG PRINCIPLE #5 STATES THAT: “THE GOVERNMENT OF CANADA RECOGNIZES THAT TREATIES, AGREEMENTS, AND OTHER CONSTRUCTIVE ARRANGEMENTS BETWEEN INDIGENOUS PEOPLES AND THE

CROWN HAVE BEEN AND ARE INTENDED TO BE ACTS OF RECONCILIATION BASED ON MUTUAL

RECOGNITION AND RESPECT”.

In describing this principle, the MWG notes that “Across much of Canada, the treaty relationship between the Indigenous nations and Crown is a foundation for ongoing cooperation and partnership with Indigenous peoples” and targets “…. constructive partnerships… that support full and timely treaty implementation”.

The Board would like to work with the MWG to set specific deadlines and commitments, for all parties involved to finish this vital work. Not only is this the right thing to do morally, it is a vital ingredient for even greater success of Framework First Nations. The Board also proposes to work with the MWG to track and complete outstanding (non TLE) additions to reserve. It

Page | 21

should be easier to complete ATRs where an effective land code governance system has been established to govern reserve lands.

The LAB recommends that Canada dedicate significant efforts to reduce Indian Act generated land issues for all First Nations. The Framework Agreement was designed to recognize the inherent government authority of First Nations not to resolve lingering outstanding land issues. Over the years, these outstanding issues have caused lengthy delays in the finalization of the developmental phase and continue to hinder the full expression of First Nation operational government authority under land codes.

In addition to addressing long outstanding treaty obligations, the LAB also recommends a more focused effort to address other long-standing lands issues. While the Framework Agreement recognizes that these lingering issues will continue to be the responsibility of the Federal Government even after a land code has been brought into force, their indefinite persistence can be a major source of impediment. Issues related to external boundaries, internal boundaries, contaminated sites, 3rd parties, Utilities, land registry related problems and many other miscellaneous issues persevere without clear plans for redress. A greater focus to the resolve of these matters would mean a faster developmental phase and a greatly facilitated operational phase of self-government.

The LAB recommends increased resources focused on closing the environmental regulatory gap on reserves. The Framework Agreement intended that Federal, Provincial and First Nations would work collectively on Environmental Management Plans (EMP) and the harmonization of Assessment and Protection laws.

Over the past 17 years, only a handful of Framework Agreement First Nations have been successful in developing EMPs and law creation through a combination of uncertain own source revenue, federal and provincial funding programs. Implementation of these plans requires clear coordination, assured resources and partnerships which has so far been inconsistent. First Nations have the same environmental goals as the greater Canadian society. Lesser standards should not exist on reserve lands in 2017 and First Nations should have the support to achieve those standards.

Independent studies by KPMG over the past 10 years have confirmed that Federal engagement in the implementation of the Framework Agreement supports operational First Nation governments to generate sizeable economic development dividends for themselves and to Canada as a whole.

To achieve even more effective self-government, the LAB recommends that federal support and partnership be increased to recognize the significant transitional costs to build effective First Nation governments.

7. FEDERAL MINISTERS SHOULD WORK WITH FIRST NATIONS TO DEVELOP EFFECTIVE MECHANISMS FOR ENFORCEMENT OF LAWS – REAL SELF-GOVERNMENT

Page | 22

MWG PRINCIPLE #9 STATES THAT “THE GOVERNMENT OF CANADA RECOGNIZES THAT

RECONCILIATION IS AN ONGOING PROCESS THAT OCCURS IN THE CONTEXT OF EVOLVING INDIGENOUS-CROWN RELATIONSHIPS”.

Framework Agreement First Nations have made significant progress in managing lands and enacting a comprehensive range of land, natural resource and environmental laws. A key priority for the LAB going forward is to promote compliance and to improve our ability to enforce laws. First Nations technical expertise for monitoring and inspections, policing and court systems will likely evolve over time, consistent with this MWG principle recognizing that “reconciliation is an ongoing process”.

The Framework Agreement does set out authority to enforce laws through for example the appointment of justices of the peace and the Framework Agreement signals to the courts the need to take judicial notice of First Nation laws. In practice though, building First Nation mechanisms for effective enforcement of laws is a work in progress. In the near term, the LAB is interested in partnerships with federal authorities to implement better enforcement of laws.

Specifically, the LAB hopes with the assistance of the MWG, to engage Public Safety Canada, the RCMP, the Aboriginal Justice Directorate of the Department of Justice, Fisheries and Oceans Canada and Environment & Climate Change Canada.

There are also obstacles which prevent First Nations from enforcing their land laws. One essential element of governance that is sorely lacking among most First Nations is the ability to enforce their laws through the Canadian court system.

To assist First Nations to enforce their laws, the LAB recommends that the MWG support First Nation initiatives to participate in provincial and territorial ticketing systems.

8. FEDERAL MINISTERS SHOULD ADOPT A FEDERAL COMMUNICATIONS STRATEGY THAT RECOGNIZES INHERENT RIGHTS OF SELF GOVERNMENT AND HIGHLIGHTS THE FRAMEWORK AGREEMENT AS A MODEL OF RECONCILIATION

MWG PRINCIPLE #9 STATES THAT “THE GOVERNMENT OF CANADA RECOGNIZES THAT

RECONCILIATION IS AN ONGOING PROCESS THAT OCCURS IN THE CONTEXT OF EVOLVING INDIGENOUS-CROWN RELATIONSHIPS”.

The Framework Agreement is an expression of the government to government relationship establishing First Nation governance over their reserve lands, resources and the environment. The LAB understands the MWG to be saying that reconciliation is part of a process over time, with the implication that different First Nations are at various stages within that process even as Government develops its understanding and policies. In our experience, federal departments and the broader Canadian public are not sufficiently aware of the Framework Agreement and the authority, roles and responsibilities of Framework Agreement First Nation governments. Proper recognition and reconciliation of the Framework Agreement will go some distance toward clarity and consistency.

Page | 23

ANNEX: LANDS ADVISORY BOARD PROPOSAL FOR REPLACEMENT OF THE FNLMA

First Nations Land Management and Governance Act

An Act to replace the First Nations Land Management Act, S.C. 1999, c. 24,

Preamble

WHEREAS Her Majesty in right of Canada and a specific group of first nations concluded the Framework Agreement on First Nation Land Management on February 12, 1996 in relation to the management by those first nations of their lands;

WHEREAS Canada recognizes the inherent right of self-government as an existing aboriginal right under Section 35 of the Constitution Act, 1982;

WHEREAS the ratification of the Framework Agreement on First Nation Land Management by Her Majesty requires the enactment of an Act of Parliament;

WHEREAS the Framework Agreement on First Nation Land Management was ratified by the First Nations Land Management Act given Royal Assent on June 17, 1999;

WHEREAS Canada and the First Nation parties to the Framework Agreement on First Nation Land Management agree that the interpretation or application of the Framework Agreement and this Act shall be guided by the principles established in the United Nations Declaration on the Rights of Indigenous Peoples;

WHEREAS Canada and the First Nation parties to the Framework Agreement on First Nation Land Management agree that the First Nations Land Management Act shall be replaced by this Act;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short Title

1 This Act may be cited as the First Nations Land Management and Governance Act.

Interpretation

2 (1) In this Act,

First Nation means a party to the Framework Agreement that is a “band” as defined in subsection 2(1) of the Indian Act. (première nation)

Framework Agreement means the Framework Agreement on First Nation Land Management concluded between Her Majesty in right of Canada and the First Nations on February 12, 1996, and includes any amendments to the Agreement made pursuant to its provisions and this Act. (accord-cadre)

Lands Advisory Board means the board referred to in clause 38 of the Framework Agreement; ("Conseil consultative des terres")

Page | 24

Minister means the Minister of Indian Affairs and Northern Development or such other member of the Queen's Privy Council as is designated by the Governor in Council for the purposes of this Agreement; (ministre)

(2) Terms used in this Act and not defined above have the same meaning they are given by Clauses 1.1 and 1.2 of the Framework Agreement.

Her Majesty

3 This Act is binding on Her Majesty in right of Canada and any reference in this Act to Her Majesty means Her Majesty in right of Canada.

Ratification of the Framework Agreement

4 (1) The Framework Agreement is ratified and continues in effect in accordance with its provisions.

(2) The Minister shall cause a copy of the Framework Agreement as amended from time to time, certified by the Minister and by the Chair of the Lands Advisory Board to be a true copy, to be deposited in the Library and Archives of Canada, the library of the Department of Indian Affairs and Northern Development situated in the National Capital Region and in such regional offices of that Department and other places as the Minister considers advisable.

(3) The Lands Advisory Board shall cause copies of the Framework Agreement as amended from time to time to be sent to each First Nation.

(4) Amendments to the Framework Agreement may be authorized by First Nations according to its provisions and may be signed by the Minister on behalf of Her Majesty.

Effect of Ratification of the Framework Agreement

5 The Framework Agreement has the force of law and is binding on all persons.

6. Persons and bodies have the powers, rights, privileges and benefits conferred on them by the Framework Agreement and are subject to the obligations and liabilities imposed on them by the Framework Agreement.

7. For the purpose of discharging its functions and duties pursuant to the Framework Agreement, the Lands Advisory Board is deemed to be a natural person.

8. For greater certainty, provisions of the Framework Agreement relating to the application of federal law are confirmed.

9. Judicial notice shall be taken of the Framework Agreement. First Nation Land Register 10 (1) The First Nation Land Register is continued.

Page | 25

(2) The Governor in Council may, on the recommendation of the Minister and in accordance with the Framework Agreement, make regulations respecting the administration of the First Nation Land Register, the registration of interests or rights in it and the recording of any other matter, including but not limited to regulations respecting

(a) the effects of registering interests or rights, including priorities;

(b) the payment of fees for the registration of interests or rights and for any other service in relation to the Register;

(c) the appointment, remuneration, powers, functions and duties of officers and employees who administer the Register; and,

(d) the keeping, by officers and employees, of documents that are not registrable.

(3) Nothing in this Act prevents Her Majesty and the First Nations from making, by way of amendment to the Framework Agreement, a different arrangement or arrangements for the registration of interests or rights in First Nation lands.

Amendment of Schedule

11 (1) The Minister may, by order, add the name of a First Nation to the schedule if he or she is satisfied that the signing of the Framework Agreement on a First Nation’s behalf has been duly authorized and that the Framework Agreement has been signed.

(2) The Minister may, by order, add to the schedule the date on which a land code comes into force with respect to First Nation lands.

(3) The Minister may, by order made with the consent of a First Nation, delete from the schedule the name of the First Nation and the date on which a land code comes into force with respect to the First Nation’s lands, if that First Nation is no longer a party to the Framework Agreement by virtue of any of its provisions.

Saving Provision 12. Nothing in this Act affects the validity of actions taken or things done in accordance with the

Framework Agreement on First Nation Land Management or the First Nations Land Management

Act prior to the coming into force of this Act.

[Transitional/Consequential Amendments; e.g.,

As of the date this Act comes into force, a reference to the First Nations Land Management Act in

any statute shall be read as a reference to the Framework Agreement on First Nation Land

Management.

A reference in any statute to the continuing existence of the First Nations Land Management Act

shall be read as a reference to this Act.]