Bill C-49: An Act providing for the ratification and the bringing into effect of the framework agreement on First Nation Land Management(LS324E)

BILL C-49: AN ACT PROVIDING FOR THE RATIFICATION
AND THE BRINGING INTO EFFECT TO THE FRAMEWORK
AGREEMENT ON FIRST NATION LAND MANAGEMENT

HOUSE OF COMMONS		SENATE
Bill Stage	Date	Bill Stage	Date
First Reading:	11 June 1998	First Reading:	9 March 1999
Second Reading:	1 December 1998	Second Reading:	13 April 1999
Committee Report:	4 December 1998	Committee Report:	13 May 1999
Report Stage:	1 March 1999	Report Stage:	13 May 1999
Third Reading:	8 March 1999	Third Reading:	13 May 1999

Message sent to the House of Commons: 13 May 1999 Concurrence in Senate Amendments: 11 June 1999 Royal Assent: 17 June 1999 Statutes of Canada 1999, c.24 N.B. Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print.

BILL C-49: AN ACT PROVIDING FOR THE RATIFICATION
AND THE BRINGING INTO EFFECT OF THE FRAMEWORK
AGREEMENT ON FIRST NATION LAND MANAGEMENT

Bill C-49 was introduced in the House of Commons and given first reading on 11 June 1998. The bill would ratify the Framework Agreement on First Nation Land Management ("the Agreement"), signed by a group of First Nations and the federal government on 12 February 1996, and implement necessary legislative changes at the federal level.

Bill C-49 would enable participating First Nations to opt out of land management sections of the Indian Act and to establish their own land codes to manage reserve land and resources. Fourteen First Nations are signatories to the Agreement that would be ratified by the bill. The bill would not in any way directly modify the Indian Act, but would exclude the application of land-related sections of that Act to the participating First Nations, once they had followed procedures to enact their own management regimes.

A previous version of the bill (Bill C-75) was introduced in the 35^th Parliament, but died on the Order Paper with the dissolution of Parliament. Bill C-49 includes a number of changes to the previous bill, including provisions regarding the use, occupation, possession and division of interests in First Nation land upon the breakdown of a marriage.

Under section 91(24) of the Constitution Act, 1867, the federal government has exclusive jurisdiction over reserve lands and resources. Only Parliament can legislate with regard to the use of reserve lands. The federal Indian Act, the Indian Oil and Gas Act, and regulations made under those statutes vest control, management and disposition of Indian lands and resources in the Department of Indian Affairs and Northern Development ("the Department"). The Indian Act contains provisions regarding the purposes for which reserve lands may be used; the rights of individual Indians in possession of reserve lands; trespass on reserves; the surrender and designation of reserve lands;(1) the management of reserves, surrendered and designated lands; and other matters.(2) The Minister of Indian Affairs and Northern Development ("the Minister") has wide-ranging discretion regarding the use of reserve lands and resources.

As a result of these provisions, First Nations have little direct control over the management of their lands and argue that procedural requirements imposed by the Indian Act complicate and delay land transactions. Bands may take on some delegated powers for land management under sections 53 and 60 of the Indian Act. Under section 60, the Governor in Council may grant a band powers to control and manage land in the reserve, but may withdraw that right at any time. Delegation to bands does not relieve the Minister of legal responsibility for reserve land management. As a result, all transactions must be consistent with the Indian Act. As of March 1997, 16 First Nations were participating in the Lands Delegation Program. Another 126 First Nations were part of the Regional Land Administration Program, a departmental co-management initiative.

The inadequacy of the legislative framework for the management of reserve lands has led to efforts by both First Nations and the Department to find alternatives. In 1988, a group of chiefs from across Canada launched a review of the federal policy on delegated land authority as part of a broader exploration of alternatives to the Indian Act. This group began work on new draft legislation in 1991 and the Minister of Indian Affairs agreed to support their initiative. A draft First Nations’ Chartered Lands Act, which would have enabled all First Nations to opt into a new land management regime, was formally submitted to the Minister in December 1992. However, the bill produced strong opposition from some First Nations that saw its provisions as a potential threat to Aboriginal rights and objected that the draft was not limited to the First Nations that had proposed it.

The Chiefs’ Working Group continued to explore alternatives and over 1994-95 developed the Framework Agreement. It applies only to those First Nations that are signatories. Thirteen First Nations signed the Agreement in February 1996: Westbank, Musqueam, Lheit-Lit’en, N’Quatqua, and Squamish (British Columbia); Siksika (Alberta); Muskoday and Cowessess (Saskatchewan); Opaskwayak Cree (Manitoba); and Nipissing, Mississaugas of Scugog Island, Chippewas of Georgina Island, and Chippewas of Mnjakaning (Ontario). Saint Mary’s First Nation (New Brunswick) was added as a party to the Agreement effective 10 December 1996, through a 12 May 1998 amendment. All 14 First Nations have experience in dealing with land management matters, and wish to further development on their reserve lands.

The Framework Agreement contains provisions for an opting in procedure, First Nation land management rights and powers, First Nation law-making, environmental protection, funding, expropriation of First Nation land by Canada, a Lands Advisory Board, dispute resolution, and ratification and enactment by the parties. In brief, each First Nation will develop a land code setting out its basic laws in regard to land management. They will also have the authority to pass laws for the development, protection, use and possession of First Nation land, and to issue leases, licences and regulate other interests in their lands. First Nations will enter into individual agreements with Canada to determine operational funding for land management and transition from the Indian Act provisions. The Agreement requires an extensive community approval process for land codes and funding and transition agreements. A Lands Advisory Board will be established by the First Nation parties to assist with the development of lands codes, negotiation of individual agreements and monitoring of the process.

The Agreement is an operational document, not a treaty, and does not receive constitutional protection under section 35 of the Constitution Act, 1982. Land use codes and federal legislation must be consistent with the Agreement, which can only be amended by the parties to it. Under section 1.4 of the Agreement, the parties acknowledge that the Crown’s special relationship with the First Nations will continue. Section 1.6 affirms that the Agreement is not intended to define or prejudice inherent rights, or any other rights, of First Nations to control their lands or resources or to preclude other negotiations in respect of those rights.

As noted above, the Framework Agreement was amended on 12 May 1998 to add the St. Mary’s First Nation as a party to the Agreement. A second Amending Agreement was also signed on 12 May 1998, to clarify the intention of the parties with respect to several provisions of the Framework Agreement and to clarify the intention of the First Nations to address issues related to the use, occupation, possession and division of interests in First Nation land upon marriage breakdown.

Bill C-49 contains a brief preamble, 48 clauses and a schedule listing First Nations to which the Act applies. It would bring into effect the provisions of the Framework Agreement on First Nation Land Management and exclude the application of certain sections of the Indian Act. The main provisions of the bill are discussed below under the major headings found in the bill. Corresponding sections of the Agreement are mentioned in the text or noted in parentheses.

The clauses of Bill C-49 are preceded by a preamble setting out the context and intent of the proposed legislation. The preamble states that Her Majesty in right of Canada and a specific group of First Nations entered into a Framework Agreement on Land Management on 12 February 1996, and that the ratification of the agreement requires enactment of a statute by Parliament.

Clause 1 gives the short title of the bill, the First Nations Land Management Act.

Clause 2 provides a series of definitions for terms used in the bill. A "first nation" is defined as a band named in the schedule and "first nation land" is defined as that land in a reserve to which a land code applies; the term includes all the interests and resources of that land that are within the legislative authority of Parliament. "First nation law" is a law enacted by a First Nation under the new regime to be created by the bill. "Minister" means the Minister of Indian Affairs and Northern Development. Under clause 2(2), words and expressions used in the bill have their present meaning under the Indian Act, "unless the context otherwise requires."

Clause 4 would legally ratify and bring into effect the Framework Agreement, as required by section 48 of the Agreement.

Clause 5 would clarify that, with the exception of "exchanged" First Nation land,(3) the Agreement and the bill would not affect title to First Nation land. Thus, any land covered by a land code and not "exchanged" would continue to be reserve land within the meaning of section 91(24) of the Constitution Act, 1867, with title held by the federal Crown and set apart for the "use and benefit" of a band under the terms of S. 2(1) of the Indian Act.

Clause 6(1) requires a First Nation to adopt a land code with certain mandatory provisions in order to establish its land management regime. (These are also set out in section 5.2 of the Agreement.) Land codes would include a legal description of the land involved; the rules and procedures that would apply to the use and occupancy of First Nation land ¾ for example, under licences and leases, under interests held pursuant to allotments under subsection 20(1) of the Indian Act, or pursuant to custom ¾ and to the transfer, by testamentary disposition or succession, of any interest in the land; the rules regarding revenues from natural resources; requirements for accountability to First Nation members for the management of land and moneys derived from First Nation land; and provisions related to First Nation law-making, land "exchange" procedures, conflicts of interest in the management of First Nation land, dispute resolution, expropriation, delegation of management authority and procedures for amending the land code. Clause 6(1)(f) would also require the land code to include a community consultation process for the development of rules and procedures respecting the use, occupation and possession of First Nation land and the division of interests in that land in cases of marriage breakdown. This clause was not included in Bill C-75, and reflects an amendment made to the Framework Agreement (clause 5.4). In effect, a land code would describe how a First Nation would exercise the land management powers provided to it under Bill C-49.

Under clause 6(4), a first nation wishing to establish a land management regime would be required to enter into an "individual agreement" with the Minister describing the land to be covered by the land code, and providing for the terms of the transfer of its administration. The agreement would also contain a description of any interests and licences in the First Nation land that had been granted by Her Majesty, the timing and terms of their transfer, and the environmental assessment regime. These agreements are required by section 6 of the Framework Agreement. Individual agreements would identify the level, terms and conditions of operational funding to be provided by Canada to the First Nation for managing First Nation land and for making, administering and enforcing its laws under a land code (section 30.1 of the Agreement).

While clause 6(1) refers to land codes covering all land in the reserve of a First Nation, clause 7 would permit certain portions of a reserve to be excluded, if they had been surveyed under the Canada Lands Surveys Act and were environmentally unfit, were the subject of unresolved litigation, were uninhabitable or for other reasons agreed on by both the First Nation and the Minister. If conditions no longer justified the exclusion of the land, this land could in future be included in the land code.

Bill C-49 would provide for extensive verification and community approval processes for proposed land codes and individual agreements.

Under clause 8, each First Nation and the Minister would jointly appoint a verifier to confirm whether the proposed land code and community approval process were consistent with the terms of the bill and the Agreement, and to determine whether the land code and individual agreement had been approved by the confirmed process.(4) The selection of a verifier would have to be done in accordance with section 44 of the Agreement, which states that Canada, First Nations and the Lands Advisory Board (established by section 38 of the Agreement) would arrange the selection of independent verifiers.

The process for community approval of proposed land codes and individual agreements is set out in clauses 10-13 of the bill and section 7 of the Agreement. These provisions would require proposed land codes and individual agreements to be submitted to members of the First Nation for approval, and would outline related procedures. All members of the First Nation who were 18 years or older, whether resident on or off-reserve would be eligible to vote in a community approval process. Under clause 12, First Nations could select from among various means of obtaining community approval, consistent with section 7.3 of the Agreement. More than 25% of eligible voters would have to approve land codes and individual agreements for them to be valid. Clause 12(3) would permit band councils to increase this minimum percentage.

Under the Indian Act, most functions of band government are conferred on the band council, although some powers, such as the decision to surrender land, are left to the band as a whole.(5) Clause 10 would prevent First Nations from choosing to take on land management powers by means of a band council resolution adopted by a majority of council members; rather, all members of the band would be given an opportunity to participate in the decision. The provision for the inclusion of off-reserve members is important, as the bill would provide bands with significant authority over the use and disposition of communal band resources. The participation of off-reserve members in band decisions has been the subject of disputes and litigation.(6) Under the Indian Act, an "elector" must be "ordinarily resident" on reserve, so that band members living off-reserve are automatically disqualified from any vote requiring "elector" status. Bill C-49 uses the term "eligible voters," defined as First Nation members of eligible voting age, rather than the term "electors."

Under clause 14, the verifier would be required to certify the validity of a duly approved land code and provide a copy of the certified code to the Minister and the First Nation. Clause 15 provides that a land code would come into force when certified, or on another day specified in the code.

Clause 16 provides that, upon the coming into force of a land code, no interests or licences in relation to First Nation land might be acquired except in accordance with the code. Interests and licences in relation to First Nation land that existed before the coming into force of a land code would continue, in accordance with their terms and conditions. The interests of First Nation members in First Nation land would be subject to specified provisions of the land code. Rights and obligations of the Crown as the grantor of existing interests and licences described in an approved individual agreement would be transferred to the First Nation when the land code came into force.

Clause 17 would require a First Nation, following the community consultation process set out in its land code, to establish general rules and procedures for land-related matters in cases of marriage breakdown. Clause 17(2) would establish a time limit of twelve months after the land code came into force for the First Nation to incorporate these rules in its land code or enact a First Nation law pertaining to them.

The powers that First Nations would assume under the legislation are set out in clause 18(1). These powers would include the receipt and management of all moneys acquired by the First Nation under its land code, the authority to grant licences in relation to the land, and the general powers of an owner in relation to the land. Clause 18(3) provides that First Nation councils would have to exercise land management powers themselves and could delegate any of those powers to a body or person, in accordance with their land code.

Clause 18(2) would give the First Nation, for purposes related to First Nation land, the legal capacity to acquire real and personal property, contract, borrow, expend and invest money, and be a party to legal proceedings (see section 12.4 of the Agreement). By contrast, under clause 18(4), any body established by the First Nation to manage the land would be a legal entity with the powers of a natural person (see section 12.6 of the Agreement). The Indian Act has no explicit provision with respect to the legal status of bands governed by it. While most recent court decisions have held that a band has the capacity to sue and be sued, other decisions have ruled that a band is not a "person," has no corporate status, and may not own real estate.(7) The uncertain legal capacity of bands and band councils has caused problems for bands that want to enter into contractual arrangements to develop reserve lands. Clauses 18(2) and (4) would clarify the legal capacity of First Nations and of any person or body delegated by the First Nation council to manage First Nation land.

Under the terms of the Indian Act, "Indian moneys" are "all moneys collected, received or held by Her Majesty for the use and benefit of Indians or bands." Indian moneys received from the sale of surrendered lands and capital assets (including oil and gas revenues) are defined as "capital moneys," while Indian moneys from other sources, such as the rental or leasing of band lands, the sale of renewable resources, or interest on capital and revenue accounts, are "revenue moneys." Indian moneys are held by the department, on behalf of bands, in the Consolidated Revenue Fund. The expenditure of revenue moneys by a band is subject to authorization by the Minister; however, many bands have assumed delegated authority to control, manage and expend revenue moneys under section 69 of the Indian Act. Clause 19 of Bill C-49 would provide for the transfer to the First Nation of revenue moneys, which would cease to be Indian moneys under the terms of the Indian Act. As a result of clauses 18(1) and 19, existing revenue moneys and future moneys acquired by the First Nation under its land code would be under the direct authority of the First Nation. This would eliminate the requirement for First Nation expenditures to conform to section 66 of the Indian Act (thereby providing for some degree of control by the Minister) and would enable First Nations to collect such moneys on their own behalf or on behalf of members. As previously noted at clause 6, First Nations would be accountable to their membership for these funds under their land codes.

The laws that a First Nation council would have the power to enact in accordance with its land code are described in clause 20(1). These would respect: interests in and licences for First Nation land; the development, conservation, protection, management, use and possession of First Nation land; and other matters related to the exercise of the above powers (section 18.1 of the Agreement). Clause 20(2) describes more specific areas in which First Nations could make laws, although they would not be restricted to these matters (section 18.2 of the Agreement). These would include:

Currently, the Indian Act provides bands with some powers in relation to land management through by-law-making authority under s. 81. Also, under section 60, bands may be granted other land management powers by a declaration of the Governor in Council. This right may be withdrawn at any time. Section 60 powers granted vary for each band and only a small number of bands have been granted section 60 authority. Bill C-49 would expand the range of powers that First Nations could exercise and no longer leave them at the discretion of the Governor in Council or Minister.

Under clause 20(3), First Nation laws might provide for enforcement measures as long as these measures were consistent with federal laws. Clause 20(4) would make the land code of a First Nation prevail over any conflicting First Nation by-laws under the Indian Act, or laws under the proposed legislation.

Bill C-49 also includes provisions for the environmental protection and assessment of First Nation lands. Clause 21 would, consistent with section 24 of the Agreement, require a First Nation to enter into an agreement with the Minister and the Minister of the Environment to protect the environment, before it could pass environmental protection laws. First Nation environmental protection standards and enforcement provisions for the purposes of such an agreement would have to be at least equivalent to those of the province in which the First Nation was located. Clause 21(3) provides that the environmental assessment laws of a First Nation would have to require the establishment of an environmental assessment process applicable to any project on First Nation land that was approved, regulated, funded or undertaken by the First Nation. Under section 25.3 of the Agreement, First Nation environmental assessment processes must be consistent with the requirements of the Canadian Environmental Assessment Act. The parties to the Agreement also made a commitment to harmonize their environmental regimes and processes, with provincial involvement where agreed, so as to promote effective and consistent regimes (sections 23.5 and 25.7).

Clauses 22 to 24 concern law enforcement. Under clause 22(1), First Nation laws could create summary conviction offences punishable by fines, imprisonment, restitution, community service or other means. Clause 22(2) provides that First Nation laws could adopt or incorporate summary conviction procedures of the Canadian Criminal Code. Under clause 22(3), a First Nation might determine the manner of prosecution for violation of its laws. A First Nation would, under clause 24(1), be able to appoint justices of the peace, or, where it had entered into an agreement with the Crown, to have justices appointed by the Governor in Council (see sections 19.3 and 19.8 of the Agreement). Clause 24(5) provides that where no justices were appointed, First Nation laws would be enforced through provincial courts.

Under clause 25, the Minister would establish a First Nation Lands Register, which would be administered in the same manner as the Reserve Land Register established under the Indian Act. The Reserve Land Register is a register kept by the Department in which particulars relating to Certificates of Possession, Certificates of Occupation, and other transactions regarding land in a reserve, are entered.

Bill C-49 and the Agreement provide that the Governor in Council might, on the recommendation of the Minister, make regulations concerning the administration of the First Nation Lands Register and the registration of interests (section 51 of the Agreement). The Indian Act does not provide the Governor in Council with similar authority to establish regulations for land registry functions with respect to the Reserve Lands Register. This lack of regulatory authority has impeded certain types of development.(8)

The bill would place limitations on the alienation of First Nation land by providing, in clause 26, that such land could not be alienated except in exchange for other land and that interests in First Nation land could be expropriated only by the Crown or a First Nation. Under clause 27 and section 14 of the Agreement, a First Nation could exchange First Nation land only for land that the Crown in right of Canada had agreed would be set apart as a reserve and become First Nation land. The Minister would have to approve such exchanges. Under clause 27(4), the exchange of First Nation land would have to be approved by First Nation members in accordance with the land code of the First Nation and be completed within the terms of the Agreement.

Currently, section 37 of the Indian Act permits the surrender and sale of reserve lands, but has no provision requiring replacement of the sold lands. Bill C-49 would remove the application of this section to First Nations operating under a land code, so that these First Nations could sell reserve lands only if they were exchanged for other lands that would become reserve land. Additional compensation could include land that would not become First Nation land.(9)

Bill C-49 also addresses the expropriation of interests in First Nation land. Clause 28 would empower a First Nation to expropriate, with compensation, any interest in its First Nation land that the First Nation council deemed necessary for community works or other community purposes. A First Nation could not expropriate interests in land that had been obtained under section 35 of the Indian Act or held by Canada (section 17 of the Agreement).

Section 35 of the Indian Act provides that the Governor in Council may permit the expropriation of reserve land by provincial or local authorities for public purposes. This section would cease to apply to bands under Bill C-49. Clause 29 of the bill would, however, permit the Crown to expropriate interests in First Nation land for the use of a federal department or agency by order of the Governor in Council, provided such expropriation was "justifiable" and "necessary" for a federal public purpose that served the national interest. Certain minimum steps would have to be satisfied before land could be taken (section 32 of the Agreement). Under clause 31, compensation would be provided; this would include land that would become First Nation land and additional compensation determined on the basis of prescribed factors (section 33 of the Agreement).

According to clause 30, where only a partial interest in First Nation land was expropriated, the land would continue to be First Nation land, subject to the provisions of the land code and First Nation laws that were not inconsistent with the expropriation. The First Nation would have the right to continue to use and occupy the land to the extent that this would not be inconsistent with the expropriation.

Clause 32 provides for the reversion of an expropriated interest back to a First Nation where the interest was no longer required for the purpose for which it had been expropriated. The interest would have to be returned to the First Nation in accordance with the terms and conditions negotiated by the First Nation and the expropriating department or agency.

Clause 34 addresses the liability of First Nations and Canada regarding acts or omissions in relation to First Nation land. A First Nation would not be liable for any acts or omissions committed by Canada or its agents prior to the coming into force of a land code, and would be indemnified by Canada for any loss suffered as a result of such act or omission. Likewise, Canada would not be liable for any acts or omissions committed by a First Nation after the coming into force of the land code, and would be indemnified by the First Nation for any resulting loss.

Clause 35 would protect verifiers, arbitrators, mediators, and other such persons appointed under the Act or the Agreement from civil or criminal prosecution for any of their actions or omissions during the course of their authorized duties exercised in good faith (section 50 of the Agreement). Under clause 36, the decisions of verifiers, arbitrators and neutral evaluators might only be reviewed by the Federal Court for errors of jurisdiction or natural justice.

Clause 38 lists the specific sections of the Indian Act that would no longer apply to a First Nation once its land code had come into effect (section 21 of the Agreement). The non-applicable sections would be:

In addition, clause 38(1)(c) provides that regulations made under sections 42 and 73 of the Indian Act would not apply if they were inconsistent or in conflict with the Agreement, the land code or First Nation laws. Section 42 empowers the Governor in Council to make regulations regarding the property of deceased Indians. Section 73 authorizes the Governor in Council to make regulations in a range of areas, including the protection of wildlife and fish; traffic on reserve; the provision of medical treatment and health services for Indians; the operation of pool rooms, dance halls and other places of amusement on reserve; and the borrowing of money for band projects or housing purposes.

Under clause 38(2), section 89(1.1) of the Indian Act would continue to apply to leasehold interests in First Nation land that, when the land code came into effect, was designated land. This section of the Indian Act provides that leasehold interests in designated lands are subject to mortgage and seizure, unlike other property on reserve. Under clause 38(3), First Nation land codes could provide that any part or all of section 89(1.1) would apply to other leasehold interests in First Nation land.

According to clause 37, Bill C-49, if enacted, would prevail over other federal laws of general application in the event of an inconsistency or conflict.

Clause 39 provides that the Indian Oil and Gas Act, which governs the administration and disposition of oil and gas resources on reserve lands, would continue to apply to First Nation land (see section 3 of the Agreement). The Governor in Council has the authority to make regulations for the exploration of oil and gas on reserves, including the granting of interests in oil and gas and the levy of royalties. The consent or approval of the band council is required for the issuance or variation of a disposition. Thus, Bill C-49 would give First Nations authority over timber and mineral resources, but the existing regime for oil and gas would continue to be in force.

Clause 40 is an additional provision to ensure that environmental laws would be consistent. It provides that in the case of any conflict between First Nation land codes or environmental protection laws and federal environmental laws, the provision of the federal law would apply. Under clause 40(2), Bill C-49, if enacted, would not affect rights or powers in relation to migratory birds, endangered species or fisheries (see section 23.6 of the Agreement).

Under clause 41, section 10 of the Canadian Environmental Assessment Act would not be applicable to projects on First Nation land (section 25.5 of the Agreement). This section requires First Nation councils to ensure that an assessment of the environmental impacts of a project is concluded in accordance with regulations under the Canadian Environmental Assessment Act before any person or body receives financial assistance provided by a federal authority for a project to be carried out in whole or in part on a reserve. Section 10 would be replaced by the environmental processes to be undertaken under provisions of Bill C-49 and the Agreement.

Under clause 42, the Emergencies Act (which authorizes special temporary measures to ensure national safety and security during emergencies) would continue to apply to First Nation land, but any use of First Nation land required under that Act would have to be authorised by an order in council (section 20.2 of the Agreement).

Clause 43 would provide for the application of the Atomic Energy Control Act to First Nation land.

Clause 44 provides that the Statutory Instruments Act would not apply to land codes or First Nation laws enacted under clause 19(1).

Clause 45 would permit the Governor in Council to add the names of other First Nations to the schedule. This would enable any additional First Nations that became parties to the Framework Agreement to participate in the alternative regime for land management that would be established by the bill. Under clause 48, clause 45 would not come into force until after review of the Framework Agreement and any consultations required by the Governor in Council.

Clause 46, a transitional provision, states that any actions or decisions taken pursuant to the Framework Agreement prior to the coming into force of Bill C-49 would be considered validly made under the First Nations Land Management Act, as long as they were consistent with the enumerated provisions of the Act.

Clause 47 is a technical conditional amendment that would provide for the textual replacement of clause 43 on the coming into force of the Nuclear Safety and Control Act.

The Framework Agreement on First Nation Land Management requires the Minister and the Lands Advisory Board to jointly conduct a review of the Agreement within four years of the federal legislation’s coming into force (section 56.2 of the Agreement).

The 14 First Nations that are parties to the Framework Agreement have all expressed their support for Bill C-49. They welcome the opportunity to assume greater control over reserve lands and resources and argue that the changes proposed would enable them to act more quickly to take advantage of economic development opportunities.

The previous version of the bill did give rise to some opposition from other First Nations. Although the legislation would apply only to participating First Nations, some were concerned that the bill could set a precedent for other First Nations. Others argued that land management issues should be addressed in the context of claims and treaties or suggested that the legislation separates land management issues from the broader context of self-government. There was also a concern among some parties that the legislation would create the potential for a further erosion of the reserve land base, in that First Nations would be permitted to exchange existing reserve lands for an equal portion of lands elsewhere.

In March 1997, the British Columbia Native Women’s Society and two individual plaintiffs launched a suit against the federal government in the Federal Court, claiming that the government had failed to fulfil fiduciary obligations to Indians with respect to the division of the matrimonial home upon the breakdown of a marriage. The matrimonial land issue is problematic because court rulings have found that provincial laws about equal division of matrimonial property do not apply to First Nations women and men on reserve because the Indian Act, and not provincial law, governs real property on reserves. However, since the Indian Act does not deal with the issue of matrimonial property on marital breakdown, there is a legislative gap.

While the suit primarily concerned the Indian Act, the plaintiffs argued that, by taking steps to implement the Framework Agreement on Land Management without ensuring matrimonial property protection for married Indian women on reserves, the federal government was breaching fiduciary duties and violating section 15(1) of the Charter. Subsequently, as noted previously, the Framework Agreement was amended to require First Nations to establish procedures with respect to the division of the matrimonial property, and related provisions were included in Bill C-49. In June 1998, it was reported that the B.C. Native Women’s Society planned to apply for an injunction that would prevent the government from signing individual agreements with First Nations as required by Bill C-49. The Society argued that, although the bill would require bands to deal with the issue of matrimonial property, it does not clearly define how property on a reserve would be divided when a marriage ended.(10) Also in June 1998, the Minister of Indian Affairs announced her intention to establish an independent fact-finding process to examine the effects of a marriage breakdown on First Nations members’ rights to real property such as land and homes.

Opposition to the bill may also come from third parties with interests in reserve lands. In some of the areas that would be affected by Bill C-49, cottagers and other lease-holders have expressed concerns about the implications of the transfer of administration to First Nations for the future of their leases on reserve lands.