Canada announces new “Additions to Reserve” policy

The Ministry of Indigenous and Northern Affairs Canada (“INAC”) has just released a new Policy Directive on Additions to Reserve (“ATR”) and Reserve Creation. The Directive replaces the previous version, last updated in 2001. The update seems to implement a number of changes that could make it easier for First Nations to increase their reserve land base.

ATRs/Reserve Creation

An ATR is a process for adding reserve land to a First Nation’s reserve, and reserve creation can refer either to adding land to an existing reserve or creating a new reserve for a First Nation. For a First Nation who wants a certain piece of land to become part of their reserve, they are required to get the federal government to agree to do this. The ATR process is the federal government’s way of managing these requests.

A major roadblock for sustainable economic development for many First Nations is the lack of an adequate landbase. While a far cry from an adequate measure, such as co-management of resources on treaty land, ATRs and reserve creation are ways of partially addressing this issue. However, the process has proven time-consuming and frustrating for many First Nations. The ATR process has in the past been the subject of criticism from the Auditor General of Canada, the Standing Senate Committee on Aboriginal Peoples, and the Assembly of First Nations, for, among other things, being very slow, and for not adequately dealing with the interests of third parties such as municipalities.

The New Policy Directive

The new Directive was released on July 27, 2016, and is in force as of that date. First Nations that already have ATRs/reserve creation processes underway and that have already received approvals in principle from INAC can choose to opt into the new Directive, or they can continue under the previous Directive. The files of First Nations that have not received approvals in principle will be evaluated by INAC jointly with the First Nation to determine which directive should be followed. Any proposals submitted after July 27, 2016 will be governed by the new Directive.

Similarly to the previous directive, the Government of Canada has set out a number of categories for reserve creation/ATR in the new version:

• Where there is a legal obligation or commitment from Canada (e.g. a land exchange agreement, a self-government agreement, a treaty land entitlement agreement, a legal settlement, etc.)
• Where there is an existing reserve that needs additional reserve land for any of various reasons (e.g. land is needed for residential use or economic development, etc.)
• Where the Specific Claims Tribunal has determined that Canada is obligated to provide land as compensation (e.g. a failure to fulfill a Treaty obligation, etc.)

A welcome change is that Canada will now specifically recognize economic development and the protection or use of culturally significant sites as bases for ATR/reserve creation. This provides new options for First Nations who are looking for ways to protect sacred places, as it makes it possible for them to ask the federal government to protect them as part of the First Nation’s reserve land base.

INAC claims that the new Directive,

• provides policy direction for reserve creation
• promotes consistent assessment, acceptance and implementation of reserve creation proposals where possible
• considers the interests of all parties and encourages collaboration between First Nations and provincial, territorial, and local governments
• streamlines the process for reserve creation proposals

INAC appears to be taking a more hands-on approach to ATRs/reserve creation under the new Directive, which includes an option for an INAC-facilitated dispute resolution process with third parties and also provides First Nations with the option of requesting technical or facilitative support from INAC in negotiations with third parties. The new Directive also provides for INAC and First Nations to jointly complete workplans.

First Nations that already have ATRs or reserve creation proposals in the system may opt into the new Directive but may opt to follow the previous version. It may be a good idea for First Nations with ATR/reserve creation processes underway to contact their regional INAC office to discuss the implications of the new Directive on the process.

Overall, it is too early to tell what the practical effect of the new Directive will be, but if it does indeed make the ATR/reserve creation process faster and less resource-consuming for First Nations, it is a welcome development.

By Michael McClurg