A Government of Canada Perspective on Aboriginal Issues

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First Nations Commercial and Industrial
Development Act
Presented at the 5th National Lands Managers
Gathering Diversity in Land Management September
19, 2007
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Table of Contents
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Context economic activity on reserve

• Increasingly, First Nations are pursuing large
  scale commercial and industrial projects for
  reserve lands.
• Some of these projects involve regulatory gap
  issues.
• Mirroring provincial regimes and creating a more
  level playing field on and off reserve fosters
  sustainable economic development opportunities
  for First Nations.

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What is the regulatory gap?

• Some provincial laws dealing with commercial and
  industrial activities (or parts of them) do not
  apply to reserves because they deal with use of
  land.
• In the division of powers between the federal
  government and provincial governments, S. 91(24)
  of the Constitution gives the federal Parliament
  exclusive authority in respect of Indians and
  Lands reserved for the Indians
• Identifying which provincial laws or parts of
  them are in respect with use of land may be
  challenging.
• Regulatory gaps involve a range of issues,
  including environmental, health and safety,
  resource management, and industry operations
  issues.

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Why are regulatory gaps a problem?

• Without appropriate regulatory regimes, it can be
  harder to ensure that industrial and commercial
  activities are carried out in safe, responsible,
  sustainable ways.
• Regulatory gaps and uncertainties can discourage
  companies from investing on reserve or make
  projects less profitable.

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Options for addressing regulatory gaps

• Locate project off reserve (e.g. First Nation
  owned, fee simple land).
• First Nation laws (e.g. under the First Nations
  Land Management Act or the First Nations Oil and
  Gas and Monies Management Act).
• Lease terms require compliance with provincial
  laws.
• Federal regulations under the First Nations
  Commercial and Industrial Development Act
  (FNCIDA).

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Development of FNCIDA

• FNCIDA is a First Nations-led initiative that was
  developed and promoted with the active engagement
  of the following partnering First Nations
• Squamish Nation of British Columbia
• Fort McKay First Nation of Alberta
• Tsuu Tina Nation of Alberta
• Carry the Kettle First Nation of Saskatchewan
  and
• Fort William First Nation of Ontario.
• The First Nations Commercial and Industrial
  Development Act (Bill C-71) received Royal Assent
  on November 25, 2005.
• The Act came into force April 1, 2006.

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FNCIDA is

• simply enabling legislation that grants authority
  for the Governor in Council to make federal
  regulations on request of a First Nation
• designed to allow development of projects on
  reserve lands which would not otherwise be able
  to proceed.

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Regulations under FNCIDA

• Regulations can only be made on request of a
  First Nation.
• Regulations will be project specific and limited
  in application to the particular lands described
  in the regulations.
• A regulation under FNCIDA can replicate
  provincial laws for a major commercial or
  industrial project.

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FNCIDA does not

• extend provincial jurisdiction on reserve lands
• apply automatically to all First nations or
  projects instead, FNCIDA enables the government
  to create project specific regulations
• create a funding program
• affect the ability of a First Nation to
  participate in and benefit from any other federal
  government program
• include non-derogation language instead, FNCIDA
  provides for the inclusion in the regulations of
  provisions to accommodate Aboriginal or treaty
  rights. This approach was supported by the
  partnering First Nations.

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Administration and enforcement of regulations

• With the consent of the First Nation and
  province, the federal government intends to use
  existing provincial boards and officers to
  administer and enforce the regulation.
• If provincial officials will carry out
  administration and enforcement functions, the
  regulation can only be made once an agreement is
  signed between the First Nation, the province and
  the federal government.

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Process for seeking regulations under FNCIDA

• Explore whether regulations under FNCIDA should
  be considered for the project.
• Exploratory discussions between INAC and FN
• Preparation of proposal
• FN Proposal considered by INAC
• Analysis
• Decision by INAC senior management
• 3. Development of regulations, inter-governmental
  agreement, other key documents.
• Negotiation and drafting
• BCR and execution of intergovernmental agreement
• Formal federal process for the making of the
  regulations by the Governor in Council

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Identifying projects for which regulations under
FNCIDA should be considered

• Some questions for FNs to consider
• Does it look like this project involves
  regulatory gaps?
• Is this the kind of project for which leases and
  approvals under the Indian Act are routinely
  given?
• Does the FN want to address the gaps some other
  way (e.g. locate off reserve, develop its own
  laws under FNLMA, FNOGMAA, etc.)?
• Is there potential for provincial involvement?

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Preparing a proposal - INAC will need the
following from the FN in order to decide whether
to develop regulations under FNCIDA for the
project

• Project description and conceptual design for use
  of lands
• Information regarding legal status of land (legal
  land description, confirm of reserve status or
  stage of ATR process, current designation of
  land, etc.)
• General proposal regarding term, rent, royalties,
  other key lease matters.
• Identification of contentious issues
• Information on potential project risks
• Preliminary information on existing and desired
  regulatory framework
• Confirmation of community support or timeline to
  obtain
• Indication of provincial readiness to negotiate
• Benefits analysis
• Proposed timelines

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Benefits

• For First Nations
• Enable communities to compete for investment
  opportunities and develop their economies,
  increasing economic self-sufficiency, and
  enhancing quality of life
• Provide a regulatory tool to more effectively
  balance economic development and protection of
  reserve lands and resources for future
  generations.
• For the federal government
• Help meet commitments to First Nations regarding
  economic development, stewardship of reserve
  land, and timely access to land and resources
• Increase economic activity and
• Increase tax revenue.

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Benefits

• For provinces
• Ensure that major commercial and industrial
  development projects on reserve lands are subject
  to comprehensive regulatory regimes similar to
  those applying off reserve in the province.
• Increase economic activity in the region.
• Increase provincial tax revenues from businesses
  and individuals.

• For industry
• Enable establishment of regulatory regimes that
  are certain, transparent, familiar and
  well-understood.

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Additional Information

• British Columbia Region
• Richard Horne _at_ 604-666-9810
• Alberta Region
• Elizabeth Seale _at_ 780-495-8057
• Ontario Region
• Trevor Sinclair _at_ 416-973-6256
• Headquarters
• Sylvie Picard _at_ 819-994-6729