Process For Community Approval Of A Lease Of First Nations Community Lands On Indian Act Reserve Land

There are generally two types of lands which may be leased on a First Nations reserve governed by the Indian Act:  lands allocated to individual members by a Certificate of Possession, often referred to as “CP Lands”, and lands which are unallocated and held for the benefit of the community as a whole, often referred to as “Community Lands”.

When planning a development project, the parties need to first determine whether the lands that they intend to lease are CP Lands or Community Lands, as the process for community approval of these two types of lands are quite different.  In both cases, the landlord will be the Government of Canada through the Department of Indian and Northern Affairs (“INAC”), and all lease negotiations will be approved by that department.

The process described in this article applies to First Nations reserve lands governed by the Indian Act.  First Nations which have adopted a Land Code under the First Nations Land Management Act and Self Governing First Nations, such as Westbank First Nation, have different approval processes. We will discuss the approval process for leasing of Westbank First Nation reserve lands in an upcoming article.

Community Approval for Lease of CP Lease.  With respect to CP Lands, community approval is not required for leases of 49 years or less.
 
If a developer would like a lease with a term of more than 49 years, the lease must be approved by a resolution of a majority of band members eligible to vote present at the band meeting called to consider the lease.  This may mean that community interests need to be accommodated in the negotiation.

Community Approval for Lease of Community Lands.  Community approval is always required for leasing Community Lands, and the process involves a formal referendum.  The process for obtaining community approval for leasing Community Lands is much more complicated than that for CP Lands, and requires that the lease be approved by a “majority of the majority”.  This means that at least half of the eligible voters must vote, and of those that voted, at least half must vote in favour.

In order to lease Community Lands, those lands must be “designated for leasing”.  Technically, it is the designation which is being approved by the community, but since INAC requires that all of the major business terms of the lease be included in the designation, in effect the community will be approving the overall leasing transaction.

Once the developer and the First Nation’s representatives have settled the major business deal terms of the lease, the developer and the Band Council must apply to INAC have INAC prepare the wording of the designation and the lease.  At this time, the developer will also have to prepare all surveys, environmental assessments and other information which INAC requires.  The parties may also negotiate terms regarding to sharing the costs of holding the referendum.

Once the language of the designation and the lease are settled, the Band Council will pass a resolution requesting a referendum.  This will trigger an order from the Minister appointing an electoral officer.  The referendum will be at least 45 days after the date of this order, and could be longer.

The Band Council (or INAC if they keep the voters list) will send to the electoral officer a list of all eligible voters at least 45 days before the election.  At least 42 days before the election, the electoral officer will post a notice on the reserve and send information packages and ballots to eligible voters living off reserve.  The Band Council must hold an information meeting at least 14 days before the vote.

On referendum day, eligible voters may vote in person at voting places or by mail in ballot.  The electoral officer will then count the votes and report on the results.  An eligible voter may challenge the election results, but any such challenge must be brought within 7 days.

If the designation is approved, then the electoral officer and a member of Band Council will certify an oath confirming that the designation was approved and send that certification to INAC.  INAC will then prepare an Order In Council approving the designation, which can take some time to work its way through the parliamentary system.  After the Order In Council is passed, the Band Council will pass a resolution approving INAC’s execution of the lease, INAC and the developer will execute the lease and the lease will be registered in the Indian Lands Registry.

A designation that is not approved may have a second chance if a majority of the votes were in favour, but less than half of the band members cast a vote.  The Band Council and the developer may apply to INAC for a second referendum.  This is not automatic, and the parties will need to make a case for its approval.  A second referendum may be approved by a majority of the voters who vote, without requiring a majority of eligible voters to cast a ballot.  The second referendum is held at least 35 days after it is ordered, and no information meeting is required.

Andrea East is a business lawyer at Pushor Mitchell LLP practicing in the area of First Nations Law. You can reach Andrea at (250)869-1245 if you would like help in the process of obtaining community approval for the leasing of First Nations lands.