IRWA’s 56 th International Education Conference “Processes and Considerations in Transfers of First Nation Indian Reserve Lands” June 29, 2010 Lorne J. Ternes Professional Corporation Box 300, 3-11 Bellerose Drive St. Albert, Alberta T8N 5C9

The Issue Why is it so difficult to build commercial, industrial or other projects on Canadian Indian reserves? Why is it so difficult to complete “land-use” projects on Indian reserves such as; irrigation projects, golf courses, hydro dams, municipal roads, city freeways or provincial/national highways?

The Issue Why is it so difficult to transfer Indian reserve land to other Parties for projects?

Constitution Act, 1867 Distribution of Legislative Powers under the Constitution of Canada s.91 – The heads of power exclusive to Parliament: The exclusive Legislative Authority of the Parliament of Canada extends to all matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, … 24. Indians and Lands reserved for the Indians 4

Constitution Act, 1867 There is not a lot of commercial, industrial or other activity on Indian reserves partly because much of the law making power respecting such projects is vested in the Provincial Government, not the Federal Government. s.92 of the Constitution Act, 1867 sets out the heads of power exclusive to Provinces. Much of the environmental and “land-use” law is a provincial head of power.

Constitution Act, 1982 As of April 17, 1982 The Constitution of Canada was significantly amended in a manner that has served as a catalyst for recognition and enforcement of aboriginal and treaty rights across Canada. RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA 35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, ‘aboriginal peoples of Canada’ includes the Indian, Inuit and Métis peoples of Canada. (3) For greater certainty, in subsection (1) ‘treaty rights’ includes rights that now exist by way of land claims agreements or may be so acquired. THESE ARE UNDEFINED RIGHTS GENERAL 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. 6

Constitution Act, 1982 In Alberta, First Nations continue to hold Aboriginal and Treaty rights on-reserve. This category of rights are primary constitutional rights. The Aboriginal peoples of Canada may also hold these types of rights off of Indian reserves in some instances.

Constitutional Limitations Because Indian reserves are “federal lands“, provincial law does not apply if the provincial law: Singles out Indians as “Indians” Affects integral part of Parliament’s primary jurisdiction over s. 91(24) – “Indianness” Is inconsistent with the Indian Act, or other federal law Case law has set out that provincial law cannot be directed towards the “use” that Indian reserve land may be put … but can apply to “activities” carried out on land

Provincial Expropriation Acts are Land-Use Statutes

Calgary Ring- Road 10 Tsuu T’ina IR

Calgary Ring Road Proposal In a June 30, 2009 referendum Tsuu T’ina First Nation members reject an offer from Alberta that included: 400 hectares of land to Alberta from Tsuu T’ina First Nation to Alberta for the Calgary Ring Road Project for 2,000 hectare of land from Alberta to the First Nation on the NW of an existing Indian reserve 240 Million Dollars from Alberta

Lessons Learned Because this is Indian reserve (federal): The Community must approve the transfer through a referendum (Indian Act) Canada must approve the deal and must be engaged early on in the process. The Federal Cabinet must pass a Privy Council Order that removes the land from s. 91 (24) status and transfers that land to Alberta (province) Because of the 2001 Supreme Court of Canada Osoyoos case, Canada can only authorize the removal of lands from Indian reserve status if Canada is convinced that no greater rights are taken than what is needed for the public purpose.

Time Issues These requirements mean that it will take a great deal of time to: Negotiate with the First Nation (no expropriation) Convince Canada that the type of taking (especially if a transfer) is appropriate Convince the First Nation leadership and community that the proposal is fair and too good a deal to reject Transfer the land through a Privy Council Order Process

Osoyoos Indian Band v. Oliver (Town), [2001] SCC In 1925 an irrigation canal is built through an Indian reserve using a transfer process under the federal Indian Act. The title in 1961 ends up in the hands of the province (British Columbia). The Town of Oliver operates and maintains the canal. In 1995 the First Nation; believes the original transfer did not remove the land from Indian reserve status, has the land assessed, and taxes the town. The Town objects.

Osoyoos Indian Band v. Oliver (Town), [2001] SCC The Supreme Court of Canada held that the Privy Council Order did not evidence a clear and plain intention to totally extinguish the First Nation’s interest in the canal lands. Canada has a fiduciary relationship with the First Nation requiring Canada to satisfy itself 1.) the expropriation is in the public interest and 2.) to only “expropriate or grant only the minimum interest required in order to fulfill that public interest.” The nature of the 1925 transfer was like a leasehold interest and therefore subject to First Nation taxation (like a statutory easement).

Lessons Learned Be absolutely certain that the Community understands and supports the “public interest” of the proposed taking It is absolutely critical that the Community receive information about the project and proposal in a timely and continuing manner Many First Nations and Community members distrust government and industry This distrust is a perfect petri dish for suspicion You must be very generous in budgeting the time for each stage of the project

FNCIDA Examine the interest in land needed to support the project. If a transfer (out of Indian reserve status) is not needed, consider the First Nations Commercial and Industrial Development Act (FNCIDA) option. FNCIDA allows Indian Affairs and Northern Development to referentially incorporate provincial laws into a federal regulation. The regulation then provides the law to support the particular on- reserve project. This is one way a project proponent can avoid the transfer process and keep the project on Indian reserve lands.

Duty to Consult and Accommodate Project Proponents must also be aware that off- reserve, Aboriginal peoples also continue to hold s. 35 Constitution Act, 1982 constitutionally protected rights respecting existing aboriginal and treaty rights. There is a procedural duty to investigate if these rights exist. If a project does infringe or will infringe rights, there is a substantive duty to consult and accommodate with the Aboriginal people affected. Failure to satisfy the procedural duty or the substantive duty (if it exists) can result in the Court issuing injunctive relief and perhaps striking the authority of the “transfer”.

1997 Delgamuukw Justification/Consultation Spectrum Calibration in an Aboriginal Rights Context (+) Aboriginal Title Range of Large open pit mine severity of Activity Based Right over sacred burial ground impact the use has on Single oil &gas well & the land in low profile road in area Question used by several aboriginal groups for hunting Cultural Rights Museum built & maintained to promote Type of right aboriginal culture, site Type of Consultation located by aboriginal people Theoretical impact (-) (+) How integral is the land in question to fostering, maintaining the distinct culture Apsassin v. BC Oil & Gas Commission (2004) – BCCA Treaty case indicates Courts in calibrating consultation requirements will also consider if the First Nation provides meaningful information. Notification Discussion Consultation Consent 19

QUESTIONS?