On December 15, 2022, the federal Framework Agreement on First Nations Land Management Act (“FAFNLMA”) received royal assent as part of Bill C-32, the Fall Economic Statement Implementation Act. The FAFNLMA is the outcome of years of negotiations between Canada, the Lands Advisory Board, the First Nations Land Management Resource Centre (“FNLMRC”), and First Nations managing or seeking to manage reserve lands under the 1998 First Nations Land Management Act (“FNLMA”).
One of the main purposes of the FAFNLMA was the repeal and replacement of the FNLMA, which had become a barrier to the First Nations taking over land management powers on reserve. Before we can understand the effect of the FAFNLMA, we first have to understand the FNLMA and why so many First Nations came to believe that it had outlived its usefulness.
At its core, the FNLMA was Canada’s mechanism for ratifying the Framework Agreement on First Nation Land Management (“Framework Agreement”), a 1996 government-to-government agreement between Canada and 13 First Nations who wanted to take over management of reserve lands (and lands set aside for First Nations in the Yukon) from the federal government. The parties to the agreement have negotiated several amendments in the years since. As of mid-December 2022, 194 First Nations have signed the Framework Agreement, 101 have fully ratified it on their side by enacting Land Codes by a formal votes of their members, and another 44 are in the process of developing the Land Codes necessary for full ratification.
By enacting a Land Code, a First Nation can escape dozens of land-related provisions of the Indian Act. Although the Framework Agreement is not a treaty and does not affect Crown title to reserve land, it is the most far-reaching mechanism for land-related self-government outside of modern treaty arrangements.
From the perspective of First Nations, the Framework Agreement has always been central to the system. It has the force of law, and the terms of the transfer of authority are set out in individual agreements between Canada and a First Nation that are based on the Framework Agreement. However, the FNLMA itself has caused problems. According to the FNLMRC:
The sole purpose of the [FNLMA] was to provide federal ratification of the Framework Agreement. However, the FNLMA modifies the spirit and intent of the original agreement through duplication and omission of certain sections of the Framework Agreement and the use of divergent language resulting in unhelpful and unproductive confusion. Specifically, the FNMLA has created:
- A misleading impression that the FNLMA is the complete text of what First Nations and Canada agreed to, and are implementing
- A misleading impression that First Nations are governed by the FNLMA
- A misleading impression that Canada has created or granted the First Nation Inherent Right to govern reserve lands and resources
- An unnecessary time consuming and costly two-step process when amendments to the Framework Agreement are agreed to by First Nations and Canada.
The repeal of the FNLMA and its replacement with the FAFNLMA are intended to address these issues. The FAFNLMA is a much shorter law that allows for the continuation of the Framework Agreement and the First Nation Lands Register, which was established under the FNLMA, but removes all of the FNLMA’s detailed rules about the content of Land Codes and the process for their adoption, as these are covered in the more up-to-date Framework Agreement.
The new law also adds new notice rules in section 12 for situations where someone challenges a provision of the FAFNLMA, the Framework Agreement or a Land Code based on the Framework Agreement. In the case of a legal challenge to a provision of the law or the Framework Agreement, both the Lands Advisory Board and the Attorney General of Canada must be notified by the party bringing the challenge. A party challenging a provision of a First Nation’s Land Code must notify that First Nation. In every case, a party receiving such a notice has the right to participate in the legal proceedings as a party.
Because the former FNLMA is referenced in many other federal laws, the FAFNLMA also includes a long list of transitional rules and consequential amendments to align these other laws with the Framework Agreement and the FAFNLMA.
While the replacement of the FNLMA is an important step forward, Land Code First Nations still have unfinished business with Canada in relation to the enforcement of Land Codes and laws enacted under Land Codes. Under the Framework Agreement, First Nations have limited options for enforcing both Land Code laws. The House Standing Committee on Indigenous and Northern Affairs acknowledged several barriers to effective enforcement in a 2021 report, including the refusal of Canadian law enforcement officials to support enforcement and prosecution, confusion arising from the overlapping jurisdictions of First Nations and federal and provincial governments, the inadequacy of current First Nations policing programs, and the overall lack of funding for enforcement-related activities. The Lands Advisory Board is continuing to work with Framework Agreement First Nations to address these issues.