New legislation introduced to streamline the addition to Reserve & Reserve creation process

On December 13, 2018, the Additions to Reserve Land and Reserve Creation Act (“ARLRC Act”) received Royal Assent. This legislation was introduced in Division 19 of the omnibus Budget Implementation Act, 2018, No. 2. The new ARLRC Act was introduced to govern the addition to Reserve and Reserve creation (“ATR”) process in Canada. Although the ARLRC Act has received Royal Assent, it will not come into force until a future date set by order of the Governor in Council.

ATRs take place when the Crown agrees to add land to a First Nation’s Reserve land base for the use and benefit of that particular First Nation. Under Canada’s policy, there are 3 categories under which a First Nation can apply for an ATR. The first is where Canada accepts it has a legal obligation to provide land, such as through a Treaty Land Entitlement or other Specific Claims Agreement. The second is where a First Nation needs additional Reserve land for purposes such as to accommodate community growth or protect culturally significant sites. The third is where a First Nation seeks to acquire land with compensation awarded by the Specific Claims Tribunal in circumstances where the breach involved loss of, or failure to provide, land.

The ATR process has long been criticized by First Nations as complicated, lengthy, and lacking standard implementation due to ATR legislation that exists in Alberta, and Saskatchewan, and Manitoba. Until now, the process has been governed by an Addition to Reserve/Reserve Creation Policy Directive implemented in 1972 and revised in 2016 that sets out a four-step process for approval. In a 2005 Report from the Auditor General of Canada, average wait times to complete the process were recorded as five to seven years.

The new ARLRC Act will streamline and standardize the ATR process for all First Nations in Canada. One of the biggest changes is that ATRs will be granted to all First Nations via Ministerial Order, in contrast to the previous policy which required approval by an Order in Council for all provinces except Alberta, Saskatchewan, and Manitoba. The government anticipates that this change will lead to more timely approvals.

Another major change modelled after the legislation in Alberta, Saskatchewan, and Manitoba is that a First Nation who has requested an ATR will now be able to designate or zone land prior to the ATR process being completed. While these designations will be subject to acceptance by the Minister, they would allow First Nations to begin putting leases and permits in place while they await final approval. The government sees this as an opportunity for First Nations to pursue increased economic development opportunities.

The new ARLRC Act will also introduce two new clauses that were not contemplated in Alberta, Saskatchewan, and Manitoba’s legislation. The first is that the Minister may authorize, with the consent of the First Nation, certain transfers or grants of lands to a province, authority, or corporation before the ATR process is completed. Additionally, if a First Nation enters into an agreement to exchange certain lands for other lands that will be set apart as a Reserve, the First Nation can exchange lands with approval from the Minister (rather than the Governor in Council) as long as the decision to exchange lands is assented to by a majority of electors of the First Nation.

The main goals of the new legislation are to harmonize the ATR process, facilitate more timely decisions, and give First Nations more autonomy to make designations while the ATR process is underway. The government also characterizes the ATR process as a means for improving First Nations’ access to resources, facilitating economic development, and improving Crown-First Nations relationships while progressing the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

Although this legislation introduces some new changes that are sure to be welcome by First Nations previously frustrated with the system, the granting of ATRs will continue to be guided by the four-step process set out in the Addition to Reserve/Reserve Creation Policy Directive. While Ministerial approval is less cumbersome than seeking an Order in Council for each ATR, it is uncertain at this point whether the new process will have a significant impact on reducing wait times for First Nations.

If your First Nation has questions about the new ARLRC Act and how it may apply to existing or future ATRs once the legislation is in force, be sure to get in touch with us.