2003 November Report of the Auditor General of Canada

Land

Land management (Indian and Northern Affairs Canada)

Under various sections of the Indian Act, the Minister of Indian and Northern Affairs has authority to make regulations, policies, and practices and to enforce those regulations related to reserve land administration and management. The Minister's duties include

• preparing reserve surrenders, designations, and expropriations transactions;
• managing proposed additions to reserve;
• reviewing and approving land transactions and individual land holding allotments within First Nations;
• negotiating, preparing, executing, and monitoring leases, licences, and permits to non-Indians on reserve;
• providing advisory services, and managing and distributing funding to organizations that deliver land management transactions on behalf of the Minister;
• co-ordinating, developing, and funding land management training; and
• co-ordinating federal initiatives that relate to land management.

The Minister seeks the consent of First Nations in all transactions. All proceeds from land transactions are received, retained, and managed by the Minister in trust for the First Nation.

Regional Lands Administration Program

Under this regime, First Nations staff participate in the delivery of land management and administration with Indian and Northern Affairs staff. Although First Nations staff are trained in land management and to administer transactions, there is no delegation of authority and accountability remains with the Minister. Under this program, First Nations staff may

• negotiate, monitor, and ensure compliance of the use and occupancy of reserve lands under lease or permit;
• prepare and process individual land holding or interest transactions; and
• maintain records of transactions.

Land Management Delegation Program (sections 53 and 60 of the Indian Act)

Under sections 53 and 60 of the Indian Act, a band may opt to exercise control and management over reserve lands. The band may approve allotments and other transactions among band members and sign leases and other agreements on behalf of the Minister. Under section 81(1), bands have authority to make by-laws on the survey and allotment of reserve lands for both common and individual band member use to the extent granted under section 60. However, under this delegation, all federal legislation, regulations, and departmental policies continue to apply, including the requirements for environmental assessment when applicable. Band councils have regulatory and taxing powers over designated lands that have been leased for development purposes.

First Nations Land Management Act

Under the First Nations Land Management Act, authority over reserve land and associated natural resources and revenues is transferred to the First Nation. The First Nation must first adopt a comprehensive land code and agreement with the federal government, ratified by a vote by the First Nation. Under the transfer, the First Nation must have mechanisms to properly manage the lands as well as several good governance arrangements in place, including conflict of interest rules, alternate dispute resolution mechanisms, environmental assessment and protection regimes, and rules and procedures relating to matrimonial real property. The transfer empowers the First Nation to enact and enforce its own laws. The transfer also enables the First Nation to develop land use and management plans to suit its development priorities. Under the regime, First Nations do not have authority to sell reserve land but land exchanges are possible. Where there is inconsistency or conflict between the Act and other federal laws, the Act prevails. All decisions of band councils are subject to judicial review under the Federal Court Act.

Oil and gas

Indian Oil and Gas Act and Regulations

Established in 1987, Indian Oil and Gas Canada operates under the Indian Oil and Gas Act and Regulations and reports to the Assistant Deputy Minister, Lands and Trust Services of Indian and Northern Affairs. It manages and administers the exploration, development, and production of oil and gas on reserve through a regulatory regime last updated in 1995. Working with First Nations, it provides technical information, advice, and such services as

• verifying title ownership,
• determining hydrocarbon potential,
• ensuring that environmental assessments take place,
• negotiating the lease of surface and subsurface rights,
• documenting and administering contracts,
• making assessments for lease continuance or expiry, and
• enforcing reservoir production compliance and royalty collection.

The regulatory regime provides for employment of First Nation residents for oil and gas exploration and development activities on reserve, where practicable and reasonably efficient, safe, and economical to do so. The regulations also ensure greater First Nations involvement in the management of oil and gas resources on reserves.

Forests

Indian forestry regulations

The Indian Timber Regulations and the Indian Timber Harvesting Regulations are enacted under the Indian Act to control and manage the timber resource on reserves and to enforce the laws, regulations, and policies that apply to it. Under the regulations, the Minister controls the granting of licences and permits (with band consent), the imposition of fees, ground rents and deposits, the obligations for record keeping, fire protection and conservation, and the exercise of seizure and imposition of penalties.

Sub-surface resources

Indian Act

and

Indian Mining Regulations

The Indian Act and Indian Mining Regulations provide the Minister of Indian and Northern Affairs with authority to control, manage, and enforce the exploitation of sub-surface resources on reserve. This includes the granting of leases and permits and their terms, imposition of rents, deposits and royalties, the requirements for assessment work, and the imposition of penalties and sanctions.

Fisheries

Aboriginal Fisheries Strategy and Marshall Response Initiative programs

To provide for effective management and regulation of fishing by Aboriginal communities, Fisheries and Oceans Canada has undertaken the Aboriginal Fisheries Strategy and the Marshall Response Initiative. Under the Strategy, the Department negotiates mutually acceptable and time-limited fisheries agreements with Aboriginal groups. The fisheries agreements are related in particular to food, social, and ceremonial fisheries, and include negotiated, time limited harvest plans that are fished under a communal licence. Strategy agreements may also contain arrangements for the co-operative management of the Aboriginal fishery by the Department and the Aboriginal group, for example, stock assessments and fish habitat enhancement projects. The agreements may also provide for access to commercial fisheries.

Under the Marshall Response Initiative, Fisheries and Oceans Canada negotiates agreements with affected First Nations to increase their access to the fisheries, develop their fishing capacity, and build a new framework for management of First Nations fishing, working together with the communities.