General Background
On February 12, 1996, Canada and 14 Chiefs signed a Framework Agreement on First Nations Land Management (Framework Agreement).

The Framework Agreement allows the signatory First Nations to opt out of the land management sections of the Indian Act and establish their own regimes to manage their lands and resources, thereby providing for more control at the local level. The Framework Agreement was developed by the affected First Nations in full partnership with the Government of Canada, to promote self-management initiatives that will result in, among other things, improved economic development on reserves. This initiative is a form of self-government that offers an alternative land management regime for a specific group of First Nations; it does not bind other First Nations to this model.

The First Nations Land Management Act (known as Bill C-49) is the formal legislation for this initiative. It ratifies the Framework Agreement which requires First Nations to develop a land code setting out the basic rules for the new land regime. The 14 First Nations must also enter into individual agreements with Canada to determine the level of operational funding for land management and to set out the specifics of transition to the new regime. Once the land code and the agreement are adopted by the First Nation membership and are in effect, the land management provisions of the Indian Act no longer apply to these communities.

The structure of the new regime was first advanced by the Chiefs in 1987. Since that time, negotiations have taken place between the Chiefs, federal officials, provincial governments and other interested third parties (e.g. the Union of British Columbia Municipalities and the Ontario Cottagers Association), resulting in the Framework Agreement and the First Nations Lands Management Act. The Framework Agreement is not a treaty and therefore will not receive constitutional protection under s.35 of the Constitution Act, 1982.

The Framework Agreement and the FNLMA do not fundamentally alter the Crown’s fiduciary relationship to the signatory First Nations, although certain of the Crown’s fiduciary obligations diminish as the First Nations exercise their new authority and take on their responsibilities under the new regime. The Framework Agreement is subject to the Canadian Charter of Rights and Freedoms. Federal laws of general application continue to apply, as well as the Indian Act for all other purposes other than land management. The lands affected are known as First Nation lands, and continue to be reserves for the purposes of other applicable legislation.

Matrimonial Real Property
While the Indian Act currently provides no protection for women with respect to the division of the matrimonial home upon marriage breakdown, the Framework Agreement and the First Nations Land Management Act have provisions to address the issue of matrimonial real property.

The First Nations and Canada agreed that the signatory First Nations must establish a community process that will develop rules and procedures to deal with matrimonial property within 12 months from the date the land code takes effect. In essence, the First Nation community itself will develop the land codes and procedures. These codes must address the issue of division of matrimonial real property and they cannot discriminate on the basis of sex.

Further, the federal government recognizes that there is a legislative gap in the Indian Act with regards to the issue of matrimonial property. Lands are not owned by individual band members, but are held by the community for the benefit of the community. This unique situation is one of the reasons why this legislative gap in the Indian Act is being addressed by a fact-finding process already initiated in the Department of Indian Affairs and Northern Development in consultation with Aboriginal representatives. Departmental officials have held preliminary meetings with key Aboriginal groups and the Minister hopes to appoint an individual to lead the fact finding process in the near future. However, it is still incumbent on the 14 First Nations affected by the FNLMA to address this issue in their own land codes within 12 months of coming under the new legislation.

Expropriation Powers
In 1991, Canada undertook an extensive review of its Aboriginal policies launching the Royal Commission on Aboriginal Peoples. A major theme in the Royal Commission’s final report was active participation by Aboriginal people in the policies that govern their lives. The First Nations Land Management Act incorporates this philosophy to ensure that First Nation members have an active role in developing all aspects of their land management regime, including expropriation.

The power of expropriation is an essential power of governance and a necessary facet of land management which is granted to differing authorities in Canada (i.e., federal and provincial governments, public and private organizations, such as municipalities, school boards, universities and hospitals) and as such, has been provided for in the Act.

Under the FNLMA, First Nations councils can only exercise their expropriation powers with the authority of their community. They are accountable to their community and are governed by the rules and procedures specified in land codes developed by the First Nations. In addition, in determining compensation for any expropriated interests, First Nations are required to apply the rules on compensation contained in the Expropriation Act (Canada).

Consultation
The FNLMA underwent an extensive consultation process with the 14 signatory First Nations and the Assembly of First Nations and more than two years of consultation with non-Aboriginal parties which included meetings with the affected provincial governments (New Brunswick, Ontario, Saskatchewan, Alberta and British Columbia), the Union of British Columbia Municipalities, BC Rail, National Pipeline Agency, national Bankers’ Association, CN Rail, SaskTel, Manitoba Hydro, Ontario Lottery Corporation and the Ontario Association of Cottage Owners.

Third-Party Agreements
Under the FNLMA, existing third-party interests, such as leases, will continue in force according to their terms and conditions. Also, First Nations land codes will provide for an alternative dispute resolution process to address any disputes relating to interests in First Nations lands. In addition, all decisions of band councils are subject to judicial review under the Federal Court Act. Upon expiration, third party agreements are subject to negotiations with the signatory First Nations.

Signatory First Nations
The following First Nations are signatories to the Framework Agreement: Westbank, Musqueam, Lheidli T’enneh (formally known as “Lheit-Lit’en”), N’Quatqua, Squamish (British Columbia); Siksika (Alberta); Muskoday, Cowessess (Saskatchewan); Opaskwayak Cree (Manitoba); Nipissing, Mississaugas of Scugog Island, Chippewas of Georgina Island, Chippewas of Mjikaning (Ontario); and Saint Mary’s (New Brunswick).

June 1999