Lands Committee and Dan Penner: SFN Land Code Draft One Review

Posted June 5, 2024 in 

4:30 pm PST, June 5, 2024

Next Steps/Committee Considerations

    1. There will be a Committee meeting on July 10th and Legal will be invited to answer questions.
    2. The Committee will create a ‘living list of questions’ in addition to a binder (physical copies and an online version) of relevant LC information. This will help the Committee ensure consistency and make sure everyone is on the same page.
    3. Going forward as a Committee, it is important to capture the critical pieces that may affect Treaty and become more comfortable with LC information/processes.
    4. For Committee review, as soon as possible:
      1. Draft 1 of SFN LC
      2. Treaty 8 Rights (if unfamiliar)
      3. The Framework Agreement
      4. Examples of operational FNs
      5. Examples of FNs with LC conflicts, or FNs that have rejected LC
      6. Processes for conflicts of interest

    Status of the Land Code

    • Draft 1 of the LC will be refined in August, after review, and engagement will begin in September 2024.
    • The Committee will be sent Draft 1, along with some resources/references for review.

    Meeting Minutes

    The meeting began with the welcoming of new Committee members and an update on the work being done to build the SFN Lands Office so that more focus is on Land Code (LC).

    Brief History of Land Code

    • A collection of FNs negotiated with Canada a path for LC. The Framework Agreement is a piece of legislation that guides LC processes. LC is an option for FNs who want to resume and responsibility and develop laws that strengthen their role as governments. LC removes approximately 50 sections of the Indian Act. LC and the Framework Agreement do not impact Title or Treaty.
      • Government oversight – to what extent is the Canadian government overseeing FN rights? LC is not tied to Aboriginal Rights, Title or Treaty, it is tied to the processes (e.g., leasing reserve land).
        • FN Tax Commission involvement, how and if any? The FN Tax Commission is a separate body that provides support for FNs to develop tax commission without any impact to SFN. Also, the FN Tax Commission is not part of the LC agreement.
    • It is important to remember the principles of Treaty (nation-to-nation, Treaty is territory) and the obligations that need to be maintained. When LC is adopted, SFN assumes responsibility of maintaining their enacted laws. Though it is not clear exactly how LC impacts Treaty obligations.

    Questions about Land Code

    FN/Committee needs to answer these types of questions. In addition to learning about the Framework Agreement and working on communication.

    • Sovereign nation – will this be something of the past when SFN adopts LC? LC is only applicable to reserve lands, and so Canada does not assume liability. For example, with LC, casino revenue would go directly to SFN, but without LC, the revenue would go to Canada. Also, SFN always had the ability to implement a tax.
      • What about the first provision (fundamental rights)? Canada must maintain Treaty, and LC does not interfere with this. LC allows for management of lands. With LC, there is continuous building (e.g., policing, enforcement, taxation on reserves, etc.) and developing of laws (e.g., child welfare). The Canadian government only does the procedural check. LC is like building a foundation, and the walls are the laws. You can think of LC like the “constitution”.
    • What are some examples of enforcement that SFN could look into/adopt? LC talks to drug abuse. SFN could develop a law to remove drug users and evict them from the nation (e.g., Doig hired a retired police officer for their enforcement.
    • Who appoints the verifier? SFN appoints the verifier.
    • How much does LC cost? Canada provides annual funding and funding for community engagement. SFN does not have to pay for a LC.
    • Will SFN require minister-approval to enact laws once the LC is operational? No, once a FN is operational, the FN can enact their own laws on the use/management of their reserve lands without requiring approval from the federal government/ministers.
    • The additional of reserve lands? Going through LC, the process will be much simpler. In addition, there will be or there is a new system for additions to reserve lands (to follow-up).
    • With LC, can we protect governing council to make regulations (regulation rights)? SFN has legal counsel. The legal council is there to assist SFN in not jeopardizing any future plans. The principles of Treaty rights apply off reserves and our governed under the Indian Act.
    • Do the laws need to align with the current federal/provincial laws? Yes. SFN would have the ability to make laws aligned with the Nation, but they will have to pass provincial courts and meet the minimum standards. The Justice of Peace (judge) is obligated to enforce LC laws, but within their courts, so the LC laws cannot go outside of this.
      • Note, SFN does not have access to a Justice of Peace.
      • Can SFN piggyback from other nations? Yes. Doig is a good example, as they are Treaty 8, and may be able to share information.
        • A few FNs in Treaty 8 (Fort Nelson and McLeod) fell short on ratification/in the developmental stage, which could be interesting for the Committee to review.
        • Gary Oaker was initially against LC but is not on board. When the community voted, it was in favour and had a high voting rate.
    • Is LC contributing to the assimilation of FNs? There’s argument that the current system is stronger in assimilation (Indian Act, etc.). As of right now, SFN must go through governments for the majority, if not all, the processes. For example, SFN does not own their own gravel (the revenue goes to federal government) nor can SFN use the gravel to pave roads within reserve lands.
      • Is the federal government unloading the administrative burden on LC FNs? LC does place a large administrative burden on FNs. Once LC is adopted, the FNs will get funding to develop their laws and administer staff. There is a huge financial component to LC. It was noted that the more FNs develop their LC, the more money you could get year after year.
    • Won’t Treaty be affected by LC? Treaty pertains to off-reserve obligations and is its own independent thing. LC and Treaty are meant to be helpful. LC does not alter or impact Treaty.
      • SFN lawyers said that in 2-3 generations, Treaty may not even exist.
      • There are other nations under Treaty that may be of interest for the Committee to review, like West Bank (Kelowna) and the Coast Salish.
    • Will SFN have to report to governments? Under LC, SFN will not have to report to governments.
    • Can LC be rejected? Not many FNs have rejected LC.
    • Can SFN change definitions in the LC? Changing the definitions are not easy and must align with the Framework Agreement.
      • It is unclear if amendments and revisions need to align with the Framework Agreement.
      • If SFN accepts the Framework definition of a “nation”, will it be acceptable? There are options for SFN to consider. There are 3 possibilities right now: (1) administer reserve lands under the Indian Act, which doesn’t produce anything for SFN, (2)
    • Can the descriptions change over time (e.g., legislative authority)? SFN can change the descriptions in LC and adapt them as needed.
    • What happened to SFN police enforcement? Canada pulled the funding for the police. SFN has not had police enforcement in years. Currently, SFN can apply for auxiliary officers. But with LC, there may be a way to design/leverage Aboriginal policing.
    • SFN/members are paying for land right now, will that money come back with LC? There is a complicated funding metrics being designed to recoup money.
    • If we accept framework definition of a nation, is that acceptable? There are options: (1) administer reserve lands under the Indian Act, which produces nothing for SFN, (2) proceed with LC under the Framework Agreement, or (3) pursue self-determination and litigation.
    • What are some challenges with LC? It can be challenging for developmental FNs to continue with the process of LC, because the Indian Act limits resources to sue and enforce. LC gives clear laws to enforce at a higher degree.
    • Are federal lands still regulated by the Department of Fisheries and Oceans? Yes. Lots of members believe SFN owns the shoreline, which is not true. SFN does not have the right to build a dock, because it is not SFN’s jurisdiction.
      • It will be important to educate members on where SFN premises end.
    • Treaty is supposed to be equal. With LC, is SFN signing ultimate authority to Canada? This is a great question, which does not have an answer yet. It’s clear that the side-battles are unsettled and there aren’t clear definitions. What is true is that LC FNs are mandated to implement policies and processes that are aligned with the current Canadian laws.
    • Would LC include building bigger lots? There is already a policy on Land Use, which is indirectly apart of LC. So, there are different solutions to this. It is also up the individual leadership.
      • C&C have the right to make lots bigger if SFN assumes financial responsibility and takes on some financial risks for new construction subsidies.

    SFN Land Code

    SFN wants to build LC from the grassroots, with community at the centre of this process (ensuring that everything possible will go through membership). SFN does not want a process in which the decisions are coming from the top down. Which is also why the process will take time to advance (LC typically takes 2-3 years to become operational).

    • It’s important for SFN to do their due diligence to try and get it ‘right’ the first time, although LC is a living document. If something happens, then SFN will review and try to improve in the future.
    • The Lands Committee will always be a part of SFN LC, unless members disagree.
    • SFN is a developmental LC nation. Once SFN becomes operational, there will be more benefits (e.g., policing, emergency management, etc.).
    • When SFN first applied to LC, there was justification to accept SFN as a developing nation because of the land management and potential benefits and opportunities.
    • Draft 1 of the SFN LC outlines the tentative process SFN will take and sets the stage for future work. The draft is just a starting point for LC laws.
    • When reviewing the Draft, reflect on the degree SFN wants members involved. There are examples of communities involved throughout the entirety of the LC process and there are examples of community being informed but not actively involved in the process.
      • For example, driveways, does SFN need the entire community to vote?
    • It is important to remember that the Committee also acts as spokes people for the community, and people will be coming to the Committee with questions. It’s important that the Committee/SFN take the time to get all the questions answered and continue to meet and take the time to delve into the questions.
    • SFN/Committee needs to know the guidelines that are enforced with LC, and do the process at our own pace, enforcing everything SFN wants the way SFN wants.

    SFN Land Code Phases

    There are 7 phases. The first draft of the LC will be going through review with community, most likely in fall.

    • There must be 3 versions of the LC. Each version must be engaged with the community.
      • LC has a similar principle to sectoral self-governance, which is a custom election model. LC is a type of delegation.
    • There is a checklist/work-plan for SFN LC, which outlines roles and responsibilities for SFN and LABRC.
    • SFN is past Phase 1.
      • Phase 1 was to establish a LC coordinator (to support the Nation), review examples of LC with C&C, discuss with C&C how to inform eligible members, establish a Committee, conduct an environmental site assessment (done), and report on interest on land.
    • Up next, technical work needs to be done on the lands, 3 drafts of the LC must be created then engaged with community, and community must vote on each draft.

    Table of Contents Overview

    Dan reviewed the structure of the LC with the Committee. Not every section of the Table of Contents was discussed. The structure of the LC is a starting point, and so tweaks/changes can be made.

    • Part 4: Describing law authority - this section describes the processes and types of laws within SFN LC. As well as a section on emergency land laws, if there is no time to do a law vote (e.g., flood, crisis, disaster).
    • Part 5: Roles and responsibilities of SFN - the role of SFN in the LC process. This is essentially the Lands Office.
    • Part 6: Lands meetings and voting - this section is about the structure of meetings, the timeline for notices and the voting process. It also provides examples of land laws.
      • SFN gets to configure the voting metrics. Given that there’s been an increase of members in the last year and the urban members, SFN will need to include online voting. Everyone must be involved for the success of future generations.
    • Part 7: Protection of land
      • This section speaks to laws like expropriation, etc.
        • Will the LC be superior to the Framework Agreement/supersede the Agreement? With LC, Canada cannot expropriate FNs. But LC does not override Canadian laws.
        • Expropriation speaks to SFN community/lands. But as a Committee, we need more clarity on this topic and discuss/review multiple possibilities. In addition to making sure SFN is providing equitable options for expropriation.
      • This section needs to be made more clear and more defined in a way that protects the Nation.
    • Part 8: Conflict of interest - this section outlines conflicts of interests with respect to LC (such as conflicts between Committee members or C&C).
      • What about the right to still participate with conflict resolution [in LC]? Yes, if SFN wants this, then the option can be developed. What is in this section, and the document itself, is a starting point. It may be helpful to review what other communities have done and see how those ways may fit SFN.
    • Part 9: Financial management and reporting – this section is about accounting and maintaining financial reporting transparency.
      • With LC, all the money earned would stay in the community.
      • Trustee? Yes, a trustee will be appointed by SFN.
    • Part 10: Interests and licenses in land – this section discusses the ability to use the reserve lands.
      • For example, there could be a land law that says only members of SFN can use and have access within reserve.
      • With LC, does SFN still have to register with Indigenous Services Canada? No, Canada would not be involved anymore in this process with LC. SFN could create possession laws and make a “SFN Certificate” or “Saulteau Holding”.
      • Underground utilities – is there anything in this section about systems/registration of underground utilities (e.g., line location), or something to manage/register underground utilities? Not yet. Though, it should be there. SFN can add this in the LC and adopt a process. In addition, this section could discuss what will be done about existing interest.
        • The Peace River Regional District was brought up for discussion. SFN could incorporate something similar and make it better (e.g., detailed Land Use Planning), or make a land registry.
    • Part 11: Residency and access – this section outlines procedures for trespassing and eviction and other matters concerning residency and access to reserve lands.
      • It is worth thinking about the ability to collect fines, rent and to evict to be self-sustaining. There is a need to protect collective and individual rights, and enforcement comes in to play here.