ATR Process Proposed Policy Changes: Highlights/Categories of Reserve creation, Criteria for Reserve creation. Implications for First Nation local government relations.

1. “Expanding a Reserve” Information on the Additions to Reserve Process
Presented by
Lands Unit, Lands and
Economic Development, BC Region
Bradley Evers and Tamara Davidson
December 17, 2013

2. Overview
1. ATR Process
2. Proposed Policy Changes – Highlights
3. Proposed Policy Changes – Categories of Reserve Creation
4. Proposed Policy Changes – Criteria for Reserve Creation
5. Implications for First Nation-Local Government Relations
6. Questions
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3. Adding Lands to Reserve is at the discretion of the
Crown
• Additions to Reserve (ATR) is the process of setting apart
land (e.g., adding to an existing reserve or creating a new
reserve ) for the use and benefit of First Nations. This can
done for many reasons including:
– as part of historic treaties,
– to settle outstanding claims,
– for exchanges of land due to the expropriation of existing reserve land,
– to accommodate expanding reserve populations and for economic
development.
• Currently, there is no national legislation governing the ATR
process. Only the prairie provinces have claims legislation
that allows, for example, ATRs by Ministerial Order (rather
than Order-in-Council) for Saskatchewan and Manitoba
treaty land entitlements and Alberta specific claim
settlements.
• Land can be added to reserve in rural or urban settings.
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4. The ATR Process has received some scrutiny and
attention
• The existing Additions to Reserve Policy was last substantively updated in
2001. Since that time, there has been considerable attention to the
challenges of adding lands to reserve in a timely manner.
• The Auditor General of Canada provided a series of recommendations in
three reports to Government (one in 2005 and two in 2009) on how to
improve the ATR process generally, and on the putting in place of more
efficient management tools and systems.
• A 2007 political agreement with the Assembly of First Nations (AFN) on
Specific Claims reform contained key commitments on improving the ATR
process. A Canada – AFN Joint Working Group has reviewed policy,
legislative and operational options.
• In 2011-2012, The Standing Committee on Aboriginal Affairs and Northern
Development, as part of the study of Land Use and Sustainable Economic
Development, discussed the ATR process with a number of witnesses
and identified key challenges and opportunities to adding lands to reserve.
• In November 2012 the Standing Senate Committee on Aboriginal Affairs
tabled its ninth report: Additions to Reserve: Expediting the Process,
which outlined several key recommendations for improvement.
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5. Improvements have been made…
• In 2010, a National ATR Tracking System was launched to monitor
progress and identify where action is needed to address slowdowns
in the process.
• An ATR Toolkit was developed in 2010 in partnership with the
National Aboriginal Land Managers Association.
• A new draft Additions to Reserve policy has been completed.
– The draft policy was developed in collaboration with the AFN, the National
Aboriginal Land Managers Association, and Natural Resources Canada
– Extensive research has informed the policy revisions, including case
studies, First Nation regional dialogue sessions, local government
discussion papers, Parliamentary Committee testimony, and
recommendations from the National Aboriginal Economic Development
Board (NAEDB)
• A Government Response to the Senate report on ATR was tabled
on April 5, 2013. The Government Response details specific
actions that will be taken to accelerate the ATR process.
• Progress continues to be made towards meeting these
commitments.
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6. Proposed Policy Changes – Highlights
Change
2001 Policy
2013 Policy
Advantage
Removal of
“generally
contiguous”
service area
-ATR required to be within a
service area “generally
contiguous” to the existing
land base in order to deliver
services at little or no cost
-Lands not contiguous were
considered New Reserve
Creations and assessed
more restrictively due to the
potential for added costs to
the Department
- Selection area will be
expanded to Treaty or
traditional territory, with
potential for Province wide in
exceptional circumstances
- All proposals will be subject
to meeting other Reserve
Creation criteria, including any
Duty to Consult or Financial
Impacts
-Allows for better First Nations
access to lands for Economic
Development and to address
land acquisition challenges.
-Provides direct focus on
costs, rather than an indirect
control on costs via the
requirement for contiguous
selections
-Consistent with TLE
Framework Agreements
Recognition for
Economic
Development
ATRs
-Confusing references to
community economic
projects in the Community
Additions category and
economic development in
the New Reserve/Other
category
-Restrictive assessment of
New Reserve/Other
proposals did not facilitate
development opportunities
- Revised Community
Additions category will contain
a specific sub-category for
Economic Development
-Removes duplication, and will
benefit from streamlined
Reserve Creation Criteria
-Clearly communicates that
Economic Development is a
priority consideration
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7. Proposed Policy Changes – Process
Change
2001 Policy
2013 Policy
Advantage
Minimum
Standards for
Proposals
-No minimum requirements
for ATR proposals, often just
a BCR request
-Proposals will contain
minimum requirements before
being considered for support
by AANDC
-Clear starting point for a
Reserve Creation Proposal
-Well developed proposals will
reduce delays later on
Joint Work
Planning
-Unclear expectations of
Roles and Responsibilities
-Lack of coordination and
communication between
AANDC and First Nation
-Joint Work Plans will be
required between First Nation
and AANDC to complete
necessary Reserve Creation
Steps
-Roles and Responsibilities
clearly defined
- Clear plans and timelines,
improved capacity to monitor
progress
Removing the
AIP,
implementing
Federal Letter of
Support at an
earlier stage
- AIP’s required at late stage
in process, lacked
relevance, duplicated
OIC/MO submission
requirements
-Letter of Support at early
stage will set out conditions
required to complete Reserve
Creation
-Foundation for development
of Joint Work Plan
-Establishes commitment
between AANDC and First
Nation to work towards
completing a proposal
-Facilitates a project
management approach to
reserve creation process
Service
Standards
- No clear service standards
in place
-Service standard guidelines
will be established for both
Canada and First Nations
requirements to complete
Reserve Creation (after policy
completion)
-Alignment with AANDC wide
service standard development
-Improved processing time
lines
-Builds accountability and
monitoring into process
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8. Proposed Policy Changes – Categories of Reserve Creation
Change
Updated Policy
Categories
2001 Policy
2013 Policy
- 3 categories of Reserve
Creation:
•Legal Obligations and
Agreements
•Community Additions
•Specific Claims Tribunal
Decisions
- New Reserve requests
made before any landless
Band or relocation
agreement reached
Consistent
Criteria for all
Policy Categories
- 4 categories of Reserve
Creation:
•Legal Obligations
•Community Additions
•New Reserve/Other
•Specific Claims Tribunal
Decisions (added 2011)
- Legal Obligations and
Agreements category will
include new reserve creation
from relocation agreements
and agreements for landless
bands (or other special
circumstances)
- Differing criteria for each
category that was more
restrictive in the Community
Additions and even more so
in New Reserve/Other
category
- Streamlined criteria
requirements applicable
across categories
Advantage
-For new Reserves, Policy is
triggered once an agreement
(eg, for landless bands or for
relocation) is reached
-Avoids frustration of having
ATR proposals rejected under
the New Reserve/Other
category
-Community Additions
category will contain a specific
sub-category for Economic
Development
-Less restrictive process
requirements of the former
‘Legal Obligation’ category are
now applied to all categories
-More restrictive criteria
removed to allow Reserve
Creation Proposals to be
assessed on their merits,
rather than the category
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9. Proposed Policy Changes – Criteria for Reserve Creation
Change
2001 Policy
2013 Policy
Advantage
Environmental
Requirements
based on
intended use
-Lands were required to be
fully remediated to a
residential standard before
they could be set apart as
reserve, even if the intended
use is commercial
-Will provide for the ability to
remediate to a standard
compatible with the intended
use of the reserve land, with
provisions for remediation to
occur post-Reserve Creation
-Faster completion of Reserve
Creation
Improved tools
for resolving
Third Party
Interests
-Requirements to resolve
third party interests were
subject to broad
interpretation, and lacked an
AANDC role
-Clearer policy language
-Guidelines with best practice
examples will assist with
process of resolving Third
Party Interests
-AANDC will also now provide
a facilitative role to assist in
negotiations, where requested
-Will limit subjectivity in
applying the policy
-Enhanced capacity for First
Nations in negotiating
agreements with Third Parties
-Faster completion of Reserve
Creation
Duty to Consult
with other
Aboriginal
Groups
-Aboriginal and Treaty
Rights consultation was
delegated to proponent First
Nation to address
-AANDC will consider potential
or established Aboriginal or
Treaty rights when considering
a Reserve Creation proposal,
and will assess whether the
Crown has met its duty to
consult before setting apart
lands as reserve
-Reserve Creation Policy will
comply with Federal
Guidelines on Duty to Consult
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10. Implications for First Nation-Local Government
Relations
• The proposed revisions to the Policy seek to improve
negotiations with Local Governments in areas of mutual
interest such as servicing, by-law harmonization and tax loss
by:
– Continuing to promote a “good neighbour” approach to negotiations
– Requiring engagement with Local Governments early in the ATR
process
– Enhancing Canada’s role to better facilitate negotiations where
assistance is requested
– Developing tools and resources for parties to employ when
negotiating agreements, potentially with the support of the
Federation of Canadian Municipalities
– Creating opportunities for economic development ATRs that provide
spin-off benefits to adjoining communities
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11. There has been considerable opportunity for
input…
• For the first time ever, a draft version of the ATR Policy was
published for public comment on our website (
www.aandc-aadnc.gc.ca/ATR).
• The new draft policy will be discussed at the workshop.
• The new policy is targeted to come into effect next fiscal year.
Several sets of guidelines are under development to support the
new policy, along with a transitional directive for managing
existing ATRs.
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12. Questions
For more information on Additions to
Reserve:
• National Aboriginal Land Managers Association:
www.nalma.ca
• Aboriginal Affairs and Northern Development – New Additions to
Reserve Policy:
http://www.aadnc-aandc.gc.ca/eng/1332267668918/1332267748447
Thank you
Bradley Evers, Land Management & Leasing Officer
(604) 666-0369, bradley.evers@aandc.gc.ca
Tamara Davidson, Program Manager, Addition to Reserves
(604) 666-0099, tamara.davidson@aandc.gc.ca
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