New legislation will open doors to development on First Nations lands

Investors and developers planning to do business on reserve land will find it easier thanks to new provincial legislations. Bill 43, the First Nations Commercial and Industrial Development Act (FNCIDA) Implementation Act, introduced in the BC Legislature on May 3, 2012, will create certainty for business by enabling provincial laws and regulations to apply to major commercial, industrial and residential projects on First Nations lands.

Currently, provincial laws and regulations don’t apply to reserve lands. First Nations lands are under the jurisdiction of federal government and only the federal government has the authority to make laws for “Indians, and Lands reserved for the Indians,” as set out in the Constitution Act 1867, s 91(24) and under the Indian Act. One notable exception is the Tsawwassen First Nation (TFN). Its landmark 2008 Tsawwassen treaty with the federal and provincial governments gave the TFN self-governing powers similar to those of a municipality and land I fee simple, which it can lease.

Of the province’s 198 First Nations, 116 have expressly stated they want the same rights as the TFN by participating in the BC Treaty Commission’s treaty negotiation process. However, progress has been slow, often taking years. During this time, business opportunities are being lost – and their accompanying economic and social benefits including jobs and tax revenue.

Bill 43 holds the potential to speed and simplify business activity by creating a level regulatory playing field so that developments on reserve lands are subject to the same provincial regulations that apply to off reserve developments. This will lead to certainty for business, residents and neighbouring local governments. The impetus for the new legislation came from request from two First Nations involved in two projects.
•The Haisla Nation which has a proposed liquefied natural gas facility for its lands near Kitimat; and
•The Squamish Nation which has a proposed commercial and 600 unit, four tower residential development for its lands in West Vancouver

Bill 43 will operate at the request of First Nation and will also be project-specific. For example, a First Nation planning a mixed-use development alongside a stream can ask the federal and the provincial governments to produce project-specific regulations, which the province will have the authority to monitor and enforce.

Regulations could span everything from the building code to environmental issues to a land title system and a title assurance fund compatible with the BC land title system.

Bill 43 will work with two pieces of federal legislation:
The First Nations Commercial and Industrial Development Act (FNCIDA) (2006), which facilitates commercial and industrial development on First Nations lands by allowing provincial regulations to be replicated and to apply on reserves; and
The First Nations Certainty of Land Title Act (2010), which gives the federal government the authority to make regulations respecting commercial land title at the request of a First Nation where the First Nation has the support of a private sector partner and the provincial government.

Currently First Nations land interests are registered under the federal Indian Lands Registry System which contains three separate deeds-based systems:
•The Indian Land Registry System (ILRS), which includes documents related to and interest in reserve (and any surrendered) land administered under the Indian Act;
•The First Nations Land Registry System (FNLRS), which includes land records of First Nations operating under their own Land Code as set out in the First Nations Land Management Act (FNLMA); and
•The Self-Governing First Nations Land Register (SGFNLR), which includes First Nations self-government agreements and documents which grant an interest in self-governed First Nation lands.

None of these systems is as secure as the Torrens-based land registration system used in BC.
Bill 43 will work with the First Nations Certainty of Land Title Act (2010), to enable the provincial government to create, at the request of a Fist Nation, a land title system administered by the provincial Land Title and Survey Authority (LTSA) on behalf of the federal government.

The Squamish First Nation has made this request. A new land title system will be created for residents of the proposed Squamish project, who will be able to register leases with the provincial LTSA on behalf of the federal government.
The Squamish First Nation will also negotiate a range of service agreements, for example transportation, schools, water and sewer.  


Article from RealtorLink, May 18 2012, Volume 13, Number 10

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