WHEREAS the Federal Government in cooperation with the Alberta Provincial Government increases the size of First Nations reserves from time to time; and
WHEREAS the land proposed to be added to the First Nations reserve may be Crown lands or non-Crown lands owned by a First Nation and forming part of a municipality; and
WHEREAS parcels proposed to be added to a First Nations reserve often are not contiguous to existing First Nations reserve lands; and
WHEREAS creation of First Nations reserve land has an effect on municipal planning in many cases, especially if the land in question is bordering municipal development either urban or rural; and
WHEREAS converting parcels of land, non-contiguous with an existing First Nations reserve, to reserve status, will result in adjacent landowners being subject to differing regulations;
THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties urge the Province of Alberta to not allow parcels of land which are not contiguous with existing First Nations reserve lands to become reserve lands.
Many municipalities have First Nations reserves located within the municipal boundary or bordering their municipality. It has been the past practice of the Federal Government in cooperation with the Provincial Government, to increase the size of these reserves. In some instances, the land proposed to be added to the First Nation Reserve is not contiguous to the existing reserve lands. Such parcels may not be Crown lands, but rather lands acquired by a business corporation, owned by the First Nation. The designation of such parcels of reserve lands affects neighbouring urban and rural municipalities. The lands added to the reserve in many cases may cause problems with proper land use planning and regulation, issues with respect to road access to lands for development, access to major waterways, or main lines such as gas lines for municipal purposes, payment for services requested, and adjoining parcels of land being subject to differing regimes. In addition, the municipality is expected to provide services to the new reserve lands pursuant to a service agreement. However, due to the laws applicable to First Nation Reserves, the municipality will not have available to it the tools and remedies usually relied upon by a municipality to ensure performance of such an agreement to provide services.
Such parcels of land need not be added to a First Nations reserve in order to be developed more intensively.
The AAMDC has no active resolutions directly related to this issue.
While Canada has the power to effect reserve creation, the federal government policy on additions to reserve necessitates that First Nations reach agreement with municipalities and, where relevant, provinces on jurisdictional and financial issues. Canada reserves the legal right to set aside any lands owned by First Nations as reserve land with or without the ultimate consent of municipalities or provinces.
In 2000, the Agenda and Priorities Committee (A&P) determined that unless the proposed creation of reserve land was in fulfillment of a constitutional obligation on the part of Alberta under the Natural Resources Transfer Agreement (NRTA), Alberta officials could only agree to reserve creation if additional land was contiguous with existing reserves. Any proposal to agree to reserve creation regarding non-contiguous land would require Cabinet approval. Further, A&P directed that officials were not to enter into negotiations regarding non-NRTA reserve creation in any individual case until Canada and Alberta could agree on a framework Protocol Agreement to address issues such as regulatory and by-law harmonization, service delivery and taxation issues and the protection of third parties. While some progress was made in initial discussions with representatives of the Alberta Region of Aboriginal Affairs and Northern Development Canada (AANDC), Alberta officials were later advised that a Protocol Agreement was not considered a priority by AANDC Headquarters.
Environment and Sustainable Resource Development:
Land negotiations occur between the Government of Canada and Alberta Aboriginal Relations.
Environment and Sustainable Resource Development is responsible for Crown land only. Stakeholders (for example municipalities) have an opportunity for comment prior to the transfer or sale of any Crown land. Alberta does not transfer the sub-surface rights to First Nations when they purchase private lands. Alberta Energy becomes involved in treaty land entitlement negotiations only if mineral rights are also transferred to meet Canada’s obligations under treaty.
International and Intergovernmental Relations:
International and Intergovernmental Relations has reviewed the response from Aboriginal Relations regarding non-contiguous additions to reserve lands and has no further comment on the issue.
Municipal Affairs has no comment on this resolution, as non-contiguous additions to First Nations reserve lands fall under the jurisdiction of Aboriginal Relations and International and Intergovernmental Relations, and the disposition of Crown lands falls to Environment and Sustainable Resource Development.
Although the resolution specifically addresses the provincial government, the creation of reserves falls under the jurisdiction of the federal government. The provincial government does not have the legal authority to satisfy this resolution.
Federal policy recommends that consultation take place with the province and affected municipalities. However, while there is some indication that the federal government is reluctant to proceed with reserve creation in the absence of an agreement, the federal government continues to have the legal authority to create reserve lands without municipal or provincial consent. Consequently, the AAMDC assigns an Unsatisfactory status to this resolution and will continue to advocate on this issue with both the federal and provincial governments.