Land Code and the Possibilities it Creates
Background
A Land Code is a comprehensive law created by a First Nation to replace the 32 sections of the Indian Act that relate to land management. When members of a First Nation vote yes to a Land Code, the Government of Canada no longer has a say in how the community’s reserve lands are managed. Specifically, First Nations exercise powers without supervision or approval of Indigenous Services Canada (“ISC”) and the First Nation holds and manages revenue from their lands instead of ISC holding funds in trust. With a Land Code in place, Canada continues to hold title to reserve land for First Nations’ use and benefit, so First Nations cannot sell or transfer title. Today more than 70 First Nations have implemented their own Land Codes[i].
Along with a Land Code, an Individual Transfer Agreement exists between the First Nation and Canada. This agreement identifies what land the Land Code applies to, when the transfer of responsibility for land management takes place and how much funding the community will receive to manage the reserve lands. First Nations members must vote in favour of the Land Code and the Individual Agreement before the Land Code takes effect.
In preparation for Land Codes, the Framework Agreement on First Nation Land Management was signed in 1996 by 14 First Nations and Canada as the initiative for First Nations to opt out of the land management sections of the Indian Act and assume responsibility for management and control of reserve lands and resources. This Framework Agreement guarantees that First Nation title and rights are not affected by Land Code. The Land Code only deals with reserve lands, so does not affect treaty rights or other constitutional rights of First Nation members. The Framework Agreement also does not allow for land surrenders. The reserve land base can never shrink, only be added to.
Inclusive, Accountable, Transparent
Contents of the Land Code are created by the membership of a First Nation. Typically, a Land Code Development Committee forms and drafts the Land Code, holds community meetings to develop policy and circulates the proposed Code to the community for feedback. The Land Code and Individual Agreement rely on intensive community involvement and must be ratified by members of the First Nation. The Framework Agreement outlines a procedure for the Community Ratification Process (“CRP”) that includes creating a document to explain the ratification process, locating all eligible voting members and giving everyone a chance to vote. The process is overseen by a Verifier, an independent person appointed by the First Nation and confirmed by Canada. The Verifier ensures accountability and transparency by confirming that the CRP and Land Code are consistent with the Framework Agreement and that the CRP is followed.
Transparency is also built into the Land Code in several areas:
- annual reports to members on land management activities by Chief and Council become mandatory (the Indian Act requires Chief and Council only to be accountable to the Minister);
- each Land Code must include rules on financial accountability for management of lands, resources and revenues;
- First Nation leadership is legally required to follow the laws they enact in Land Codes;
- rules are built in to identify and prevent conflicts of interest; and
- there are clear procedures for amending the Land Code.
Benefits
The main benefits of a Land Code come down to four related, overlapping areas: moving a step closer to self-government, creating greater potential for economic development, gaining more control and having the same weight as the Indian Act in court.
Closer to Self-Government: On- and off-reserve members are involved in every step of creating the Land Code and are kept informed of how Chief and Council are maintaining and managing the land. This movement toward self-government and self-determination is an opportunity to reclaim the individual history and right to govern lands of each First Nation. It is a chance to restore traditional values into everyday modern practices.
Economic Development: Land Code removes administrative hurdles that the Indian Act imposes and allows for new rules and procedures on revenues from natural resources and how land and money generated from the land are managed. With the power to make decisions, the First Nation can create more favourable conditions for business, deal directly with companies, industry and municipalities and improve communication and time management, making processes move faster and more efficiently.
More Control: Creating a Land Code returns control to a First Nation so that they can exercise the powers, rights and privileges of an owner in relation to their land. They can enter into contracts; borrow, expend and invest money; be a party to legal proceedings regarding the land; and regulate, control or prohibit land use and development, including zoning and subdivision control. Land transactions can happen much faster and cheaper without Canada as an intermediary.
Equal weight as Indian Act: Land Code, once enacted, holds the same authority as the Indian Act in court. The Land Code is approved by the members of the First Nation that it applies to, not by the Minister.
Drawbacks
Potential drawbacks of enacting a Land Code include the cost, liability, learning curve and finality of the decision. There is some federal funding when a First Nation decides to develop Land Code, but the funding typically only covers one third to one half of the costs. Funding, resources, technical knowledge and training are all needed and often underestimated. Taking responsibility for land management includes assuming liability for issues that arise. This means potential legal costs and financial losses if a lawsuit comes from administering the Land Code. When new policies and laws are enacted, the learning curve for staff is steep, so the increase efficiency and effectiveness can take some time. Because there is no turning back to the Indian Act as a land management system once the Land Code is enacted, the adjustment phase can be challenging, but the self-regulation and empowerment that comes from taking back control of the lands can be worth it.
Ready to get started?
DGW Law has experience and resources to help you develop the Land Code that will best serve your community. Whether you know how you want to manage your lands or need some guidance and suggestion on what the full range of possibilities are, our team can walk you through the steps of the process and ensure that all the requirements are met, your Land Code reflects your goals and that your community is taken care of from a legal perspective.
[i] https://onefeather.ca/blog/land-code-q-and-a