Additions to Reserve Policy Redesign: Insights from Engagement Report

Sub-theme 1

Review, adjust, enhance, and tailor the ATR Policy so that it best serves the priorities of First Nations and is well supported legislatively by the federal government. This needs to be done through aligning national ATR legislation with First Nations rights and federal responsibilities, establishing appropriate federal operational support, and through ensuring a First Nations-led ATR Policy and process.

Group 1 of recommendations for sub-theme 1:

The largest number of recommendations within this sub-theme (74) specified the removal of certain restrictions in the policy, which include requirements that are not necessarily needed for every ATR, but create delays.

Other examples within this group of recommendations included:

• removing the narrow categories of ATRs: this will help speed up the process if there are not certain requirements for certain types of ATRs (such as legal obligation ATRs and their settlement through Specific Claims)
• removing the restrictions on improvements to proposed reserve lands: this will allow First Nations to continue to move forward while respecting applicable rules and regulations
• removing complexities in proposing joint reserves: for example, removing referendum-style votes in communities
• removing the requirement for environmental issues to be solved in advance of an ATR: First Nations can indemnify Canada's liability for any transferred land where there are no major environmental concerns and cut down on Environmental Site Assessment (ESA) costs and processing times
• removing required justification for reserve creation: Canada's values for justification may not reflect the values of First Nations, and it was seen as disrespectful to have to justify adding land back that is already considered the territory of First Nations
• removing the need for lands to be contiguous/adjacent: adjacent land should have a streamlined process to be added to reserve
• removing rules on having to navigate tax-loss negotiations and paying taxes on land before an ATR is complete: First Nations articulated the need to develop a clear and fair tax framework, specifically that there should be no taxes paid on ATRs, there should be adjustments to the process of tax-loss compensation (such as the Government of Canada to pay, First Nations to pay tax-loss compensation upon acquisition of land as opposed to before), and there should be a review of the 25-year tax payment

Group 2 recommendations for sub-theme 1:

The second largest number of recommendations (44) within this sub-theme emphasized the importance of creating an ATR Policy and process that is First Nations-led and First Nation-specific. Many recommendations detailed the need for First Nations to craft the ATR Policy and process in order to manage and implement it while leading decision-making with their land. Within this, specific requirements, including Municipal Service Agreements, ESAs, third-party consultation and Third Party Interests (TPI) should be determined by the First Nation, or at least be considerate of the values and priorities of the First Nation.

One recommendation detailed that "First Nations should manage all aspects of their affairs and make their own decisions regarding their land." A few recommendations focused on First Nations leading the process to focus on specific Nations' priorities.

Some recommendations focused on making sure ATR policies and processes were reflective of First Nations values, principles, and priorities, noting that there should be flexibility since a one-size-fits-all approach does not reflect the uniqueness of communities and circumstances. As one recommendation detailed, "the policy needs to be flexible enough to accommodate the differences between our communities. This cannot be a ‘cookie cutter' process."

Some recommendations were more focused on the need to transfer the responsibility of the ATR process to First Nations, given that First Nations operate within their own Nation's best interests.

Group 3 recommendations for sub-theme 1:

Twenty-six (26) recommendations focused on working toward a more streamlined ATR process that fully incorporates all parties, including:

• third parties
• municipalities
• provincial governments
• multiple federal departments

In general, First Nations and First Nation Organizations saw a need for a clear and coordinated approach between First Nations, all governments, and third parties, as well as enhanced communication to avoid delays and complications in the process.

Group 4 recommendations for sub-theme 1:

Twenty (20) recommendations described that recognizing First Nations authority and governance structures is paramount in these discussions. It was seen as crucial for Canada to acknowledge First Nations sovereignty and freedom to make decisions, as well as for Canada to respect treaties, agreements, and First Nations legal and historical rights. Similar recommendations wanted to have the ATR process tailored to the governance structure of the First Nation. Specifically, ensuring the process is accommodating to the differences between First Nations that are governed under the Indian Act, Nations which are developing a land code, and First Nations that are operational under a land code.

Group 5 recommendations for sub-theme 1:

Sixteen (16) recommendations were further focused on aligning the ATR Policy with First Nations economic development. First Nations and First Nation organizations were interested in exploring reforms that could unlock economic opportunities, improve community infrastructure, and prioritize the economic wellbeing of First Nations (such as initiatives that support the use of land for community-owned enterprises, commercial development, tourism, resource management, or renewable energy). ATR delays were also seen as preventing First Nations from moving forward with economic development activities.

Group 6 recommendations for sub-theme 1:

Thirteen (13) recommendations outlined the need to align federal and provincial policies, as well as provide clarity on their differences. Ensuring consistency within requirements and mutual understanding of policies was considered essential to prevent unreasonable delays. Regular review of policies in the changing landscape was suggested. Recommendations also detailed the need to ensure that the ATR Policy is compatible with Specific Claims settlements. In particular, providing funding for this process, automatically rezoning land to reserve land, prioritizing land-based settlements, and respecting Treaty Land Entitlement (TLE) and other Specific Claims equally in policy.

Group 7 recommendations for sub-theme 1:

Seven (7) recommendations suggested that Canada should clarify policy requirements and decentralize approval processes to expedite decision-making in order to improve efficiency, expedite decision-making, reduce delays, and empower local governance. For example, recommendations included that the need for Ministerial approvals should be removed and Deputy Ministers and Regional Director Generals should instead hold this authority. Additionally, recommendations suggested that Ministerial approvals should take no more than 3 months or in excess of this time, should be automatically granted.

Group 8 recommendations for sub-theme 1:

First Nations and First Nation organizations also provided 7 recommendations that lobbied to ensure federal accountability for the priority and timelines of ATRs. Recommendations detailed that Canada should behave in a reconciliatory manner by recognizing the importance and urgency of ATRs and should be held accountable for its responsibilities regarding ATRs.

Group 9 recommendations for sub-theme 1:

In addition, 7 recommendations suggested simplifying the ATR application process to be more user-friendly by reducing steps and only asking First Nations to provide basic information. This would help avoid superfluous and/or duplicate work from First Nations, as well as cut down on time.

Group 10 recommendations for sub-theme 1:

Four (4) recommendations noted that the ATR Policy principles should be aligned with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), ensuring clear direction and tangible application of UNDRIP.

Sub-theme 2

Ensure that the ATR process is effective through:

• restructuring Environmental Site Assessments to include associated resources and timelines aligned with the ATR process
• establishing facilitative dispute resolution mechanisms
• increasing funding, building capacity and expertise for First Nations
• improving relationships with all parties
• implementing a standard process for the Duty to Consult, and being flexible in carrying out the relevant steps within the ATR process

Group 1 recommendations for sub-theme 2:

Eighty-six (86) recommendations highlighted the need to support and fund First Nations education, training, and capacity to participate in the ATR process in order to make the process more viable for First Nations. In particular, it was requested that support be provided for training and capacity-building for First Nations staff to undertake ATR responsibilities and related requirements, including Environmental Site Assessments and title search processes. Similarly, tailored education and outreach programs for community members to learn more about the ATR process and land management were seen as important. Further suggestions included:

• the development of user-friendly materials in a wide variety of formats (such as online resources)
• training workshops
• mentorship programs
• access to expert guidance
• building practitioner networks, and funding in-house ATR technical experts

Group 2 recommendations for sub-theme 2:

There were also 34 recommendations to use clear, strong, and impartial dispute resolution mechanisms that serve the priorities of:

• First Nations
• the federal government
• provincial/territorial governments
• municipal governments
• third parties

It was noted that, since third parties and municipalities can often be a stalling factor in the progress of an ATR, dispute resolution mechanisms should focus primarily on First Nations priorities. Further, it was suggested to build capacity and provide funding for dispute resolutions and negotiations to take place.

Group 3 recommendations for sub-theme 2:

Thirty-two (32) recommendations deemed it important to facilitate productive relationships (such as joint planning and communication). To do this, the following was suggested:

• meetings with relevant, decision-making officials
• consistent relationships with federal officials
• federal employees broadly included in relationships to support the continuity of the ATR file if there are federal personnel changes
• development of communication protocols
• early and often communication
• ensuring dialogue and cooperation between governments
• hearing directly from community members and First Nations
• co-developing workplans

Group 4 recommendations for sub-theme 2:

It was also suggested that the federal ESA requirement be reconsidered or eliminated (17). Some recommendations preferred that the First Nation itself determine the parameters and need for an ESA, as sometimes they may not be necessary to complete in specific contexts (such as culturally significant sites) or that the use of First Nations knowledge should be preferred.

Group 5 recommendations for sub-theme 2:

Fifteen (15) recommendations noted that a standard practice to execute the Duty to Consult should be created. Specifically, the federal government should uphold their responsibilities regarding consultation and inform the First Nation where there should be a minimum Duty to Consult., Additionally, a standardized framework for municipalities to consult with First Nations should be developed, ensuring that the respective duties of all parties are clear and adhere to respectful and timely practices.

Group 6 recommendations for sub-theme 2:

Further, recommendations (10) suggested that procedural requirements should be streamlined to reduce processing times. Examples included reducing the number of steps, avoiding the duplication of steps, clarification within the ATR process where steps can be carried out flexibly and simultaneously, and finding commonalities in multiple submissions/combined parcels to reduce delays in the review of ATRs.

Group 7 recommendations for sub-theme 2:

Finally, 9 recommendations deemed it important that the current requirements for applicable environmental and remediation standards be clarified, specifically regarding levels of contamination, and the federal liability/responsibility to clean up lands proposed for reserve creation.

Sub-theme 3

Support operational stewardship of the ATR process through efficient file management and tracking and provision of information that is clear, transparent, and accessible to all parties.

Group 1 recommendations for sub-theme 3:

Regarding federal capacity, there appeared to be a consensus (across 17 recommendations) that the federal government needed to dramatically increase staffing resources and their specialized knowledge base. This will assist with prioritizing the efficient finalization of long-outstanding requests for ATRs submissions, and assist in the timely processing of applications to avoid lengthy periods of knowledge transition during periods of turnover. Tied to this was a general note that efficiencies would be found if additional efforts were made to ensure government staff retention for not only institutional memory purposes but also to continue developing relationships between officers and communities. It was also noted that increasing specialized capacity through hiring land management and regional planning specialists would make the process more efficient.

Group 2 recommendations for sub-theme 3:

Among the 11 recommendations, several highlighted that the existing systems could be leveraged to improve file management and tracking to better manage documents. For example, NATS could be modified to allow First Nations to upload key completed documents. Some reports also suggested that the system could even include reports on all proposed land purchases, such as deals that did not make it to final purchasing. In other words, NATS could provide tracking for targets, deliverables, and progress reporting, and allow First Nations to share current statuses with CIRNAC and other government departments.

Group 3 recommendations for sub-theme 3:

Seven (7) recommendations focused on providing ATR information in a more accessible, clear, and transparent manner. Some noted that a best practice would be to share documents with First Nations in a way that takes into consideration individual communities existing data-sharing systems and to collaborate with First Nations at the beginning of the ATR process to determine the best way to share and store data for their communities.

Tied to this, it was recommended to implement a system for regular review and evaluation of the ATR process, with feedback from First Nations communities to make ongoing improvements to the process, ensuring that it remains responsive to the priorities of the communities that it serves.

Moreover, CFP reports recommended that it would be most beneficial to formalize systems to plan, prepare and budget the actual costs of completing an ATR in full coordination with First Nations and across all necessary federal departments.

Sub-theme 4

Clarify the ATR processes used to convert land to reserve status through time-related guidelines, milestones, and authorities while also prioritizing First Nation access to suitable lands.

Group 1 recommendations for sub-theme 4:

The need to reduce processing time through milestone development came up in 21 recommendations across all the reports. Recommendations focused on identifying time-related milestones and service standards as well as clear criteria for unreasonable delays. Some suggested that timelines should be legally binding while others suggested hard deadlines with measurable goals, established timeframes, and service standards for ATR processes, response times, and approvals for all parties (provincial and federal departments) involved in the process. One recommendation suggested that a tax incentive would encourage timely cooperation from third parties.

Additional recommendations detailed a phased approach to transfer the agreed-upon lands when delays occurred. Others suggested that after a specific period of time, the land should be automatically added to the First Nation's reserve.

Group 2 recommendations for sub-theme 4:

First Nations provided 4 recommendations on establishing guidelines to inform land selection/land purchase. These recommendations stated that the federal government should:

• assist Nations in developing a strategic plan supporting the way in which lands would be purchased under settlement
• develop policies and procedures for land acquisition and administration
• look at ATR Policy and ensure no provincial boundaries are creating limitations for First Nation communities to purchase interprovincial lands for reserve creation

They also suggested that the federal government look at opportunities for land purchase outside of TLE and Specific Claims.

Recommendations identified that the federal government should work with each First Nation involved in competition over the same land. This would ensure that purchases and agreements were settled appropriately.

Group 3 recommendations for sub-theme 4:

First Nations provided 4 recommendations about modifying the authorities for granting reserve status. They recommended using a First Nation organization or a Regional Director General to authorize the granting of reserve status. They recommended that, if First Nations owned land in fee simple, it should be viewed as part of the reserve land. These recommendations also suggested that the federal government use its prerogative authority to set aside land with clear agreements about the consequent authority to administer the land.

Sub-theme 5

Reform the ATR Policy to incorporate broader changes including Land Set Aside (LSA) processes, potential climate change impacts, and the removal of colonial aspects and language within the policy.

Group 1 recommendations for sub-theme 5:

Fourteen (14) recommendations focused on prioritizing First Nations access to suitable lands. There were suggestions to create First Nation Reconciliation Reserve Land which would fall under the current zone use of the municipality for development and land use planning cohesiveness or go through a joint review process. They also detailed that surplus federal land should be offered to First Nations first as an act of reconciliation, over municipalities. Recommendations also identified the need to make it easier to create First Nations urban reserve lands. As well, there is a need to include the waters, not just the lands.

Group 2 recommendations for sub-theme 5:

Eight (8) recommendations had the position that a pathway needs to be provided within the ATR Policy to convert LSA to reserve land, including new definitions of land and reserve creation categories.

Group 3 recommendations for sub-theme 5:

Further recommendations (3) highlighted the need to address colonialism and negative language in the ATR Policy. By recognizing the colonial nature of the policy itself, and the history of the land that was taken from First Nations, this perspective of respect should guide the ATR Policy. Further amendments to colonial and disrespectful language were suggested.

First Nations recommended that the federal government work with the provinces to identify Crown lands, thereby eliminating the reliance on the acquisition of private land for ATR. Several recommendations suggested that First Nations who have experienced climate disasters, particularly with regard to recovering land, should be prioritized. There was also a recommendation to take the approach of protecting lands currently used for the Northern Boreal Forest and use it in designating reserve land.

Further recommendations detailed the need to support First Nations in addressing broader land-related challenges. For example, considering the effects that climate change and climate change emergencies would have when making policy changes, and mitigating these issues through special funding and an expedited process. The ATR Policy Directive should also consider the importance of cultural and traditional territory and First Nation's land use (such as hunting, medicinal and food gathering, and grave and cultural sites).

Sub-theme 6

Support First Nations capacity and autonomy in land management through sufficient training and First Nations-led practices. Work with First Nations to clear the ATR backlog and to address improperly surrendered land.

Group 1 recommendations for sub-theme 6:

Most recommendations in this group (7) focused on the need for training and capacity building to support First Nations land management. Recommendations reinforced First Nations current ability to manage their land through community-developed land management practices and user-friendly internal processes while using less colonial tools like Band Council Resolutions. They detailed the need for sufficient capacity to be aware of all interests in advance, and to have permits in place ahead of reserve creation.

First Nations recommended that they exercise autonomy in developing and implementing their own land management practices. They also suggested that sustainable support systems be established to provide communities with resources and expertise for effective land management.

There were also recommendations to establish long-term support mechanisms to ensure that communities receive ongoing assistance and guidance in developing and implementing effective land management practices. This may involve incentives in the form of funding, the creation of dedicated support teams or partnerships with external organizations specializing in First Nations land governance.

Group 2 recommendations for sub-theme 6:

Three (3) recommendations focused on recognizing and respecting traditional land stewardship practices while integrating them with contemporary land management frameworks. They recommended dialogue between traditional knowledge holders and modern land management experts to find commonalities and develop culturally sensitive hybrid approaches. They also detailed the need for the ATR process to reflect and support their cultural heritage, ensuring that land additions are harmonious with traditional practices.

Group 3 recommendations for sub-theme 6:

Two (2) recommendations were made to address the backlog of applications to those currently awaiting ATRs. These recommendations specified that the backlog in the processing of ATR submissions was a dishonourable grievance holding First Nations back in their critical Nation-building processes.

Group 4 recommendations for sub-theme 6:

Similarly, 2 recommendations focused on federal acceptance of greater responsibility for land that was improperly surrendered during the return process. These recommendations suggested that improperly surrendered land should be restored to the same status as the rest of the community's land, as it should still be considered First Nations lands.

Group 5 recommendations for sub-theme 6:

There were 2 recommendations focused on establishing First Nation institutions to build First Nation capacity to address land sovereignty and land management. It was recommended that this be a hybrid institution located in a First Nation organization with First Nation staff advisors, access to departmental officials to provide legal, environmental, survey, planning and other expertise, and connection with a network of experts.