Archived - Impact Evaluation of Contributions to Indian Bands for Land Management on Reserve

Structure

The evaluation is structured around the five core evaluation issues as outlined in the 2009 Treasury Board Secretariat Evaluation Policy and Directive: continued need for program; alignment with government priorities; alignment with federal roles and responsibilities; achievement of expected outcomes; and demonstration of efficiency and economy.

Lines of inquiry

The evaluation made use of a number of methodologies to fully examine the many activities under analysis.

• An Elders Roundtable Discussion provided an essential understanding of the special relationship Aboriginal people share with the land.
• A Historical-Legal Review analyzed applicable statutes, regulations and decisions of the courts to provide an understanding of land management under the Indian Act and incorporated interviews with Department of Justice officials to provide perspectives on INAC's fiduciary obligation to First Nations in an increasingly complex environment.
• A Document and Literature Review provided evidence for the rationale of the programs, their alignment with government priorities and other evaluation issues.
• Key Informant Interviews with a number of representatives from First Nations, INAC (regions and Headquarters (HQ) and other stakeholders contributed to a multi-faceted understanding of how the programs are working and the extent to which they are achieving results.
• Case studies targeted important issues in modern-day land management, including integrated land use planning, land survey fabric, customary land allocations, capacity-building at the community-level and co-operation among ATR stakeholders.
• The Financial and Performance review, though limited in its application, enabled analysis of trends over time and provided an understanding of how departmental A-base and contribution funding support land management and land conversion.

Quality control

A Working Group consisting of program managers, and including regional representation, was established to review and verify documents throughout the evaluation process, including the methodology, preliminary findings and draft report. Quality control was further ensured through advice and support from an Aboriginal Advisory Committee.

Summary of findings

The following findings are organized based on the evaluation issues and questions outlined in the evaluation Terms of Reference.

Relevance

1) To what extent do the programs under evaluation address a demonstrable need?
All programs under analysis clearly address a demonstrable need. Increasing the reserve land base is necessary and significant to First Nations. The Additions to Reserve Program aims to correct historical inaccuracies, increase economic opportunities and help to sustain a growing on-reserve population.

First Nations require the resources, flexibility and expertise to respond to land management demands and take advantage of economic opportunities. INAC's land management services and capacity-building programs are intended to support modern land management to the greatest extent possible under the Indian Act.

2) To what extent are the programs responsive to the needs of Aboriginal people?
Though the programs target issues of great need in First Nations communities, they are not completely responsive to these needs. The ATR process is slow, cumbersome and focuses almost entirely on Canada's legal obligations to First Nations.

The RLEMP is responsive to the needs of some First Nations, namely those that have a high capacity in land management and are already involved in RLAP and 53/60. Entry requirements into the newly redesigned RLEMP program are still restrictive. Financial and human resources limit the extent to which INAC land administration services are responsive to First Nation needs.

3) To what extent are the programs aligned with Government of Canada priorities?
The evaluation found that the programs under evaluation are in line with Government of Canada priorities, specifically those related to engaging Aboriginal people in the Canadian economy, building capacity and self-reliance, and fulfilling Canada's treaty obligations. However, there is evidence that improvements could be made to the design of the ATR program to better enable it to achieve efficiency priorities.

4) To what extent are the programs aligned with INAC strategic outcomes and priorities?
The programs under evaluation are integral to achieving INAC's Strategic Outcome of the Land to enable First Nations to benefit from their land, resources and environment on a sustainable basis. The programs are aligned with INAC priorities of increasing social and economic well-being of First Nation communities, encouraging investment and promoting development.

5) Is there a legitimate and necessary role for INAC and the Government of Canada in the activities under evaluation?
Canada has the obligation to address legitimate claims. Most of the ATRs that were processed during the evaluation period fell under the Legal Obligations category of the ATR policy. INAC's land administration program fulfils statutory obligations under the Indian Act.

Design & Delivery

6) To what extent does the design of the programs contribute to outputs and outcomes?
Communication and collaboration regarding ATRs are weak, both within INAC (between HQ and regions, across the Lands and Economic Development (LED) sector, with the Specific Claims Branch) and with stakeholders and partners outside the Department. While program design satisfies the ATR policy, the policy itself impedes efficiency and the achievement of outcomes through cumbersome process requirements. As such, discussion is underway with the Assembly of First Nations to streamline the ATR process and achieve more timely results.

The current design of RLEMP excludes First Nations that do not already have some land management capacity. The curriculum of the program could be expanded to better meet First Nations' needs through a greater emphasis on environmental training. More generally, the evaluation found legislative and regulatory design flaws with land administration under the Indian Act. As a simple repository for lands transactions, the design of the Indian Lands Registry system is not aligned with the need for a reliable registry that secures land tenure through guarantee to title.

7) To what extent have programs been implemented as planned?

1. Understanding of roles and responsibilities
   In addition to differences across provincial jurisdictions, roles and responsibilities are unclear and not well-understood. A lack of tools is resulting in the inconsistent delivery of policies, procedures and guidance.
2. Alignment of delivery with design
   There has been mixed success in the alignment of program delivery with program design. Resource pressures, including staff turnover, limited organizational knowledge, low classifications and budgetary constraints are restraining the ability of programs to be delivered as planned.

8) To what extent are performance data, reporting and accountability systems in place and contributing to success?
Limitations and gaps in the performance and accountability systems make it difficult to fully assess success. Nevertheless, new performance measurement and reporting systems for both the RLEMP and ATR programs have been developed and are now being implemented.

Performance (effectiveness)

9) To what extent is the program achieving progress toward outcomes, including:

Immediate outcomes
Some of the immediate outcomes related to the ATR program have been achieved. Reserves are being created and expanded across the country. However, many of these new reserves are being created under the Treaty Land Entitlement process as Canada's legal obligations take precedence over other ATR policy categories. While the Crown's legal and policy obligations for the transfer of title are being met, a slow and cumbersome process based on an inefficient policy is impeding success. As well, there has been mixed success in the engagement of stakeholders, further slowing the ATR process. Special ATR legislation in the Prairie provinces was found to increase the effectiveness of the process.

The capacity-building/devolution programs, namely RLEMP, are increasing knowledge and skills and enabling First Nations to assume greater control over land management. Where possible, through its land administration services, INAC provides technical and advisory support upon request to all First Nations (including those outside the RLEMP program). However, land management on reserve is becoming increasingly complex due to land use planning and environmental standards and highly specialized commercial leasing projects. The level of human and financial resources available, including expertise and knowledge is presenting significant challenges in this regard. With an average backlog of 67 percent in survey needs requested versus survey needs met, INAC's land survey program does not adequately support land management.

In addition, at present, only eight percent of the total First Nations in the RLEMP, RLAP and 53/60 programs are managing their lands under delegated status. In total, 27 percent are either operational or fully administering their land. All others in these programs are involved only at the training and development levels or are performing land administration services alongside regional INAC land managers.

Intermediate outcomes
Without data concerning the requests by ATR policy category and the timeline between ATR request received and ATR completion, the evaluation is not able to properly assess the extent to which the program is increasing access to land that meets First Nations communities' interests and needs.

Few First Nations have the ability to fully manage land and environment to meet their communities' needs as a result of the capacity building/devolution programs. Some First Nations land managers either do not have the opportunity to use knowledge and skills to perform a complete set of land management activities, or cannot perform these activities. However, the evaluation found that First Nations in the RLEMP, RLAP and 53/60 programs are involved in a range of land administration activities.

Long-term outcome
Given the prospect of resource development or urban location, there is the potential to increase economic development opportunities through ATRs. When available in 2011, data from the Community Well-being Index will allow for a comparison with 2006 data to better assess whether First Nations are benefiting from the lands programs. Analysis has shown, however, that there is a positive relationship between the Community Well-being Index and internal survey fabric.

It is difficult to establish attribution between the programs and the long-term outcome of increased quality of life and self-reliance. The limited number of First Nations operating under the RLEMP, RLAP and 53/60 programs, and the fact that RLEMP has just recently emerged from pilot status, suggest that more time is required before there is indication of progress toward this outcome.

Performance (efficiency and economy)

10) To what extent have the programs been delivered efficiently? How could efficiency be improved?
The evaluation found that efficiency could be improved by streamlining the ATR policy and process, which may require legislative and regulatory change. Greater capacity among INAC officials, First Nations and others involved in the ATR process may also help to increase efficiency.

The RLEMP program is achieving results; however, the efficiency of the program could be increased by expanding the role of the National Aboriginal Land Managers Association (NALMA). More generally, a lack of legislative frameworks, policies and tools that meet the needs of a modern land management regime is inhibiting efficiency. Communication and collaboration between the LED units of INAC are not maximized.

INAC's funding to Natural Resources Canada (NRCan) for survey services inhibits efficiency. Reliance on departmental operational funding late in the fiscal year makes it difficult for NRCan to properly plan for and implement surveys.

11) Are the programs cost-effective? How could cost-effectiveness be improved?
Given approximately 68 percent of all First Nations in Canada are not engaged in INAC's land management capacity building/devolution programs or are conducting land management activities outside of the Indian Act points to two key findings related to cost-effectiveness. First, long term support from INAC is necessary to address the needs of those First Nations requiring assistance to perform their land management responsibilities. As such, the RLEMP program alone and as it is currently structured is not likely to achieve cost-effectiveness. Second, the fact that many of these First Nations choose to conduct land administration outside of the Indian Act suggests that the current land management regime under the Indian Act is not effective and does not meet their needs. In addition, INAC still plays a significant role in providing land management services to First Nations under RLEMP, suggesting that the program has not yet resulted in cost-effectiveness.

The evaluation found some evidence that fee-simple ownership of land may be a viable alternative to ATRs to achieve economic development. Fee-simple land holdings present far fewer challenges and transaction costs; however, it is also important to note that fee simple land remains under a provincial regime, which prevents First Nations governance over the land. Fee-simple land holdings do not offer the tax benefits associated with ATRs and impose further municipal tax requirements on First Nations.

1.4.1 Background and Description

a) Additions to Reserve
Additions to Reserve involve the transfer of either provincial Crown land or privately-held lands to the federal Crown. Through the ATR program, reserve status is granted to land that a First Nation has acquired or is entitled to receive through one of three policy categories:^{Footnote 13}

• Legal Obligations. Legal obligations, the category under which most land was added to reserve over the evaluation period, include land obligations related to specific claim settlement agreements, court orders and legal reversions of former reserve land.
• Community Additions. The community additions category provides for the addition to an existing reserve to meet land base needs related to the normal growth of a community. It provides the means to enhance the physical integrity of a reserve most commonly road right-of-way corrections. This category also provides for the return of unsold, unsurrendered land to reserve. In order for proposals to be accepted as a community addition, the ATR must not present incremental costs to INAC regions.
• New Reserves / Other Policy. The final category encompasses a number of additional reasons for adding land to reserve, including providing land for a landless band, the establishment of reserves for social or commercial purposes, creating a reserve from provincial land offerings and, in the case of claims settlements, to provide land beyond the commitment of the agreement.

If an ATR proposal is accepted under one of the three policy categories, the selected land is subject to a 12-step review/approval process designed to ensure the selection meets basic legal and environmental requirements. An acceptable legal condition has several components. The underlying title to the land must be authoritatively established. The land must be free of other legal interests, unless arrangements acceptable to Canada and the First Nation can be made to regularize those following transfer to reserve status. Legal, service and tax-related issues with the province or, in the case of urban reserves, adjacent municipalities, must be agreed upon in advance, especially where access to utilities or local infrastructure or services is required. In some cases, for instance, when there is a need to comply with treaty provisions, the land must include sub-surface rights that are capable of being separately held, or, where sub-surface rights are not part of the reserve, satisfactory arrangements must be made for surface access to those rights for mineral development. ^{Notes en bas de page 14} In addition, the land's boundaries must be legally determined and surveyed. The land's environmental condition must also be satisfactory.

b) Land Management/Administration under the Indian Act
There have been several developments in programming targeted at devolution of land administration duties from INAC to First Nations, specifically RLAP, 53/60 and most recently, RLEMP. While each of these programs drew some amount of funding from the Contribution Authority within the past five fiscal years, the central focus of the evaluation is on the RLEMP program, which drew the majority. It is believed that this approach will be most useful to inform future programming, particularly as RLEMP is the key INAC program for building First Nation capacity to manage land under the Indian Act, now that RLAP and 53/60 are sunsetting.^{Footnote 15}

Regional Lands Administration Program
RLAP has been in existence since funding for land administration activities began in the 1980s. The program is based on a co-management model of land administration where First Nations partner with INAC regional land managers in implementing land administration activities required under the Indian Act. Together, the participating First Nation and INAC follow departmental policies, systems and operating guidelines.

53/60 Delegated Authority Program
The 53/60 Delegated Authority Program was introduced alongside RLAP. Under 53/60, First Nations assume land administration authority under sections 53 and 60 of the Indian Act, giving them greater autonomy to implement INAC's land administration policies and procedures.

Reserve Land and Environment Management Program
RLEMP began as a pilot in June 2005 with 15 First Nations invited from the RLAP and the 53/60 programs. Delivered to First Nation land managers, the RLEMP is intended to build new competencies and to strengthen knowledge and skills of land and environment management under the Indian Act, specifically in the areas of community land use planning, management of reserve land and natural resources, environmental management and compliance with policy and legislative frameworks.^{Footnote 16} In support of this objective, RLEMP provides tools, systems, procedures, templates and advice related to land and environment management and administration. A central purpose of the RLEMP is to devolve Indian Act land and environment management responsibilities from INAC to participating First Nations.^{Footnote 17}

First Nation land managers generally enter RLEMP at the Training and Development level. Two organizations – the National Aboriginal Land Managers Association (NALMA) and the University of Saskatchewan – deliver the two-year professional training and development curriculum consisting of general land and environment management training and technical instruction in land administration under the Indian Act. After successful completion of the Professional Land Management Certification Program and approval by the regional INAC lands office, land managers progress to the operational level where they begin to provide land administration services. The final stage – Delegated Status – occurs when the First Nation receives funding, on a transactional basis, for assuming land administration responsibilities under the Indian Act. INAC continues to play an advisory and monitoring role.

INAC Land Management
In total, approximately 68 percent of First Nations in Canada operate outside of any formal INAC land management/administration program. Under the Indian Act, Canada has a statutory obligation to provide some land administration services to these First Nations and they receive support for various land administration needs, on an ad hoc basis, through regions' A-base funding. Common activities include reviewing and approving land transactions among band members; approving the allotment of individual land holdings; preparing, executing and monitoring leases, licences and permits; and coordinating reserve surrenders, designations and expropriations. It is important to note up front in this report that INAC does not manage reserve land; it administers the Indian Act as it applies to these activities.

c) Other Land Administration Activities
An initial assessment of the scope of the evaluation revealed that it would be essential to consider not only INAC's ATR and RLEMP programs but the fundamental role that various other land management activities play in supporting the land and resource management system as a whole (including resulting economic development). These activities either relate to one or both of the two key programs under evaluation or to INAC's land administration duties on behalf of First Nations:

Land surveys.
Surveys are conducted to define allotments to individual band members, leases, permits and other limited interests, a parcel of land for alienation, or to re-establish or restore boundaries.^{Footnote 18} Surveys are required during the ATR process to determine the boundaries of the prospective reserve land. Natural Resources Canada (NRCan) is an important partner in the delivery of the survey program. NRCan's role historically has been as corporate surveyor for Canada. The Department fulfils a steward role by providing specifications for survey work, managing surveys and boundary work, ensuring standards are met and maintaining official records. And, it fulfils a facilitation role through its administration of various programs.

Creation of legal interests / Registration of legal interests under the Indian Act support economic development initiatives by allowing access to reserve lands and resources through various tenure instruments and agreements, including leases, permits, easements, designations and surrenders. Legal interests can be created both for First Nation and non-First Nation entities. Examples range from mining and timber permits to commercial leasing to arrangement with band-owned corporations. Of all of these interests, only funding used for commercial leasing was drawn from the Contribution Authority under analysis. However, the evaluation discusses to some extent, negotiation and transfer of legal interests related to fulfilling Crown obligations for the transfer of title under the ATR process.^{Footnote 19} Creation of legal interests is performed with support from the Department of Justice (DoJ). ILRS is a database containing instruments relating to transactions on reserve lands. The system permits the generation of inquiries and reports by First Nation reserve.

1.4.2 Program Objectives

a) Additions to Reserve
The objectives of the ATR program are to:

• Ensure that all steps necessary for effective transfer of land are completed and all third-party interests are properly recorded and addressed;
• Ensure that all environmental concerns are identified and addressed;
• Promote good ongoing relationships with neighbours, third parties, municipalities, and provincial governments; and
• Balance the interests of First Nations, government, third parties, and the public.

b) Land Management: Reserve Land and Environment Management Program
According to the RLEMP Program Manual, the program objectives are to:^{Footnote 20}

• Strengthen First Nation governance and improve accountability;
• Deliver an integrated training approach with skill development and institutional support;
• Increase involvement of First Nations in the full scope of land management and environmental activities on reserve;
• Provide opportunities for alignment with the First Nations Land Management (FNLM) Regime, treaty processes and self-government;
• Establish linkages between funding, scope of activities and results, as well as financial sustainability; and
• Increase First Nations' involvement in the core functions of community land use planning and environmental compliance.

c) Other Land Management Activities
Land surveys. Objectives and expected outcomes of the Land Survey Program are to ensure that the statutory duties of interests in Indian lands are carried out in accordance with the Indian Act and Canada Land Surveys Act. Beyond these obligations, the program engages in a number of activities, including providing advisory services; setting guidelines for survey work; disseminating land survey, mapping, imagery and land registry information; and working to ensure that external reserve boundaries and internal allotments are clear, unambiguously described and registered in ILRS.^{Footnote 21}

Creation of Legal Interests / Registration of Legal Interests in Reserve Land According to representatives from the Lands Branch, a key expected result of this activity is to support First Nation goals for economic development, specifically, through the activation of their land base to generate income either directly through rent or indirectly by attracting business on reserve. Registration of legal interests contributes to certainty of possession.

1.4.3 Program Resources^{Footnote 22}

Table 1 below shows the total amount of contribution funding allocated to each program or activity under analysis. Of the total amount of funding allocated to land management/administration and ATR activities (calculated as the A-base funding and contribution amounts combined), contribution funding comprised 38 percent, while A-base funding (salary and operation and maintenance) represented 62 percent. Later in the report, findings will highlight that INAC continues to play a significant role in land administration as the Department builds capacity among First Nations and works towards devolution of its Indian Act duties.

a) Additions to Reserve
Between 2005/2006 and 2009/2010, the ATR Program drew $2.7 million from the Contribution Authority for non-TLE activities. Most of this funding was allocated to activities in British Columbia ($820K), Alberta ($220K), Ontario ($720K), Quebec ($110K), Saskatchewan ($330K), and Manitoba ($280K). The remaining funds were allocated to 17 projects in the Atlantic region ($10K) and one project in the Northwest Territories ($200K). ATR funding was provided to First Nations, which have an ATR proposal accepted under the "Community Additions" category. This funding provided support to First Nations for the selection of the new land and, land surveys and in negotiations related to third party interests who have an interest in the new reserve land.

b) Land Management: RLEMP, RLAP & 53/60
Between 2005/2006 and 2009/2010, RLEMP, RLAP and 53/60 drew some $39.3 million from the authority. Regions receiving the highest proportion of funding were Saskatchewan (33 percent), Ontario (23 percent), and British Columbia (18 percent).^{Footnote 23}

c) Other Land Management Activities
A relatively small amount of funding was spent through the Contribution Authority on surveys ($1.9 million) and commercial leasing ($2.4 million) between 2005-2006 and 2009-2010 to support the ATR program and economic development on reserve. However, these activities are mostly supported through NRCan and DoJ A-base funding (these figures were not available). As will be discussed in greater detail below, INAC also transferred a total of $4.9 million to NRCan in surplus departmental operational funding late in each fiscal year for surveys to NRCan over the evaluation period.^{Footnote 24} Additional funding for supporting activities for ATR and RLEMP programs arrives at the regional level through the INAC's Environment Program.^{Footnote 25}

1.4.4 Program Management, Key Stakeholders and Beneficiaries

a) Additions to Reserve
Most of the ATR steps are carried out at the regional level working with First Nations. The Director General of Lands Branch, Lands and Economic Development (LED) Sector at Headquarters (HQ) is responsible for providing national coordination of the program, including the approval of ATR either through the Minister, in accordance with either of the two existing Claims Implementation Acts, or the Governor General in Council if the reserve is being created through Royal Prerogative.

Key stakeholders include NRCan and Environment Canada, (NALMA), provincial governments, municipal governments, the Federation of Canadian Municipalities and third parties with legal interests in the land. ATRs may also present cost implications to other departments, such as the Royal Canadian Mounted Police and Health Canada through increased service requirements. In some ATRs, Justice Canada plays a facilitative role in providing legal support and negotiation advice and aids in moving legal instruments and documents associated with legal interests and easements to closure. Indian Oil and Gas Canada assists with creating leases in ATRs involving resource development and plays an educational role both with First Nations and resource companies. Key beneficiaries are the First Nations receiving additional reserve land through the ATR process.

b) Land Management: Reserve Land and Environment Management Program
Responsibility for monitoring and assessment at the program-level rests with the regional directors general and at HQ with the Director General of the Lands Branch. Two to three workshops with the Professional Land Management Certification Program Steering Committee (i.e., INAC, NALMA and the University of Saskatchewan) are held annually to discuss status and performance, region-specific issues/concerns and emerging issues in land, resource and environment management. At the agreement-level, responsibility for monitoring the finances and program progress rests with the regions. Regional land offices provide advisory and technical support to First Nations land managers.

Key stakeholders include NALMA, the University of Saskatchewan and other First Nation and non-First Nation associations that focus on land, resources and environmental management issues. Key beneficiaries are the First Nations participating in the RLEMP.

c) Other Land Management Activities
Surveys. Regional offices perform most activities related to land surveying, including identifying survey requirements, processing survey proposals and approving survey plans. INACHQ provides advisory services, performs a quality assurance role, and provides ministerial approval of survey plans. The key partner in the delivery of the surveys program is NRCan, specifically the Earth Sciences Sector of the Department, which provides technical support. Key beneficiaries of this function are First Nations and others with legal interests in reserve land who are afforded greater certainty of possession.

Creation of Legal Interests / Registration of Legal Interests in Reserve Land. INAC HQ sets the policy, based on legal requirements, for drafting, issuing, cancelling and registering legalinterests as well as administering leases and permits. INAC regions and DoJ work with First Nations to administer transactions. INAC regional lands officers are responsible for ensuring that the Department's policy requirements are met for preparing, executing and registering leases and are also available to provide support during negotiations.^{Footnote 26} DoJ Counsel provides legal advice and support. Operational RLEMP First Nations are responsible for registering transactions. The beneficiaries of this activity are First Nations who benefit through the activation of the economic development potential of their land and other stakeholders (i.e. leasees) afforded the opportunity to use reserve land.

1.5 Logic Model

Logic models are used to demonstrate linkages between program activities, outputs and intended outcomes. They provide a conceptual foundation upon which performance indicators can be built. In the absence of a logic model that incorporated all activities considered in this evaluation, EPMRB developed the model on the following page and received verification from program managers. It is primarily divided along the lines of the two central programs under evaluation.

Activities and outputs show the efforts and tangible products that result in outcomes. Immediate outcomes are those over which the Department has considerable influence and that occur in a short period of time. One example in relation to RLEMP is the enhanced capability of First Nation land managers to manage land. One or more immediate outcomes contribute to intermediate outcomes. Following the same example, over time, given adequate and ongoing support from INAC and considering external influences, enhanced capabilities should result in First Nations effectively planning and sustainably managing their land and environment to meet their community needs. The long-term outcome speaks to a change in the state of being of Aboriginal communities that may occur as a result of these programs and others. Findings in Sections 4 and 5 below are organized around the outcomes identified in the logic model.

2.3.1 Data Sources

Document and Literature Review. A document review was undertaken to collect and review documents that address the evaluation questions. It provided evidence for the rationale of the programs, their alignment with government priorities and relevant roles and responsibilities of INAC. Documents also contribute to an understanding of the historical and legal context of land management and support case studies.

In total, over 300 documents were identified for use in this evaluation. These included: INAC reports (HQ and regions); reports from other federal departments (i.e., NRCan and DoJ); audits, evaluations and management reviews; academic articles; and reports from First Nations and First Nation organizations. Documents were gathered through program managers and an extensive internet scan.

Financial and Performance Data Review. The evaluation undertook a review of the financial contributions provided to First Nations under the Contributions to Indian Bands for Lands and Estates Management authority and a review of the salary allocations provided to the Land Branch (HQ and regions) from the Department's A-base budget. A review of the available performance data related to ATR and RLEMP activities was undertaken.

Historical-Legal Review. Early in the development of the methodology, the Evaluation Team determined that it was essential to provide appropriate legal and historical context to understand and appreciate the intricacies, limitations and opportunities of land management under the Indian Act. The Historical-Legal Review focuses on issues identified in commentaries on Indian reserve land management and discusses applicable statutes, regulations and decisions of the courts. Information from ten interviews with DoJ officials from across the country supports this analysis and provides perspectives on INAC's fiduciary obligation to First Nations in an increasingly complex environment.

Key Informant Interviews. Following the scoping exercise, eight key stakeholder groups were identified with the following responses from each: INAC Senior Officials (HQ and regions) (N=5); INACHQ Land Managers (N=13); INAC Regional Land Managers (N=23); FN Land Managers (N=16); Aboriginal Organizations (N=6); NRCan (land surveys) (N=5); DoJ (N=10); and Other Government (namely provinces and municipalities) (N=13). In total, 128 interviews were conducted. The researchers conducted 91 key informant interviews. An additional 37 stakeholders were interviewed to collect data as part of the Case Study research. Refer to Annex A for more detailed information on the interview groups.

Elders Roundtable. In response to the Advisory Committee's recommendation to speak to Elders about Aboriginal peoples' relationship with the land, the Evaluation Team was invited to participate in a roundtable discussion with six Elders representing First Nations from across Canada. This meeting was held over a two-day period in a traditional manner and was co-facilitated by the Elder who hosted the meeting. The results of this discussion form the foundation of this evaluation report by clearly establishing the significance of land to Aboriginal people, their culture, economies and overall quality of life.

Case Studies. Five case studies were examined as part of the evaluation. The case studies were selected with input and guidance from both the Advisory Committee and Working Group. Several criteria were employed during the selection process: the studies had to investigate key issues in each of the areas of inquiry and, have broad implications and, to the greatest extent possible, provide even coverage of the regions south of 600. The case studies brought together several methodologies, including a review of documents (drawn from both First Nation communities and INAC); focus groups and key informant interviews with INAC officials, First Nations and other stakeholders.

• Expediting ATRs through stakeholder cooperation: an assessment of how one First Nation, INAC, the province, rural municipality and other stakeholders worked co-operatively to allow the First Nation to take advantage of economic opportunity.
• Impacts and benefits of a strong survey fabric on land use planning and economic development: how one First Nation is employing the tools of modern land management.
• Impacts and benefits of RLEMP on environmental and integrated land use planning: how two First Nations environmental and land use planning issues.
• A model in providing land management services to First Nations that lack capacity: how one tribal council works with six small First Nations to meet their land management responsibilities and plan for the future.
• On the way to self-government: how one First Nation enters into land transactions outside of the Indian Act in order to expedite economic development and increase self-reliance.

2.3.2 Presentation of findings

The following terms are used throughout the report to refer either to the proportion of key informants in agreement or the frequency with which an opinion was expressed:^{Footnote 28}

2.3.3 Limitations and Mitigating Strategies

It is important to note that a number of limitations – both in methodology and analysis – constrained the ability of the evaluation to report on some findings.

Performance measurement information. Inadequate performance measurement information and difficulties with performance measurement systems limited analysis in some areas.^{Footnote 29}

• Indian Lands Registry System. It was difficult to extract meaningful data from the ILRS system because the system collects information by reserve and not by band. The Evaluation Team was unable to conduct a comparison of transactions registered by RLEMP First Nations and INAC, which would have been a useful indication of the success of the program. Analysis relies instead on national totals.
• Additions to Reserve. The ATR tracking system had significant reliability problems until about three years ago and the new National ATR Tracking System (NATS) has only been fully operational in the last few months. A useful indicator of the extent to which the ATR program is meeting First Nations needs, for which data was unavailable, is the number of ATR proposals that are not accepted including rationale for rejection. Most data on processing times, a key indicator of efficiency in ATR delivery was not available at the time of the evaluation. These data are now being collected through NATS . The ATR program recently completed a performance measurement strategy.
• RLEMP and INAC Land Administration. The RLEMP tracking system is limited to collecting data on numbers of land managers involved in each of the programs, RLAP, 53/60 and RLEMP. It does not collect data related to land management activities, such as number and type of land transactions. One useful indicator of the effectiveness of INAC's land management support that is currently not being collected is the length of time it takes to execute a lease. RLEMP has completed a performance measurement strategy as part of the Federal Framework for Aboriginal Economic Development.

This limitation meant that performance information had limited application in analysis and was used generally as a descriptive tool. Another impact on the evaluation was the difficulty in trend analysis over time. To mitigate these shortcomings, analysis made use of as much relevant performance information as possible, supplementing gaps with other methodologies.

Financial data. The Evaluation Team encountered several instances where financial information from INAC and other government departments either was unavailable or imprecise. Since salary amounts are not allocated on a program basis and the organizational structure of each region differs, it was difficult to gather consistent salary information from the regions. As well, financial data on HQ salary allocations, while available for 2006-07 to 2009-10, were not available for 2005-06 because there was a change in financial systems at that time. A-base financial information from NRCan and DoJ related to surveys and creation of legal interests was not available.

These shortcomings limited the extent to which financial data used in the evaluation is comparable and reliable across regions and over fiscal years. It also made it difficult to understand the full cost of activities related to land management. For instance, without access to operational financial information from NRCan and DoJ, the evaluation could not determine the true cost of surveys and creation of legal interests to the Government of Canada. Financial limitations were mitigated by ensuring full collection and analysis of all available financial data, including INAC contribution and operational funding. These data, though imprecise at times, allow for some trends to be determined over time and by activity.

Expected outcomes. Few expected outcomes were available at the time of evaluation design, making it difficult to measure whether progress had been made over time. This limitation made it difficult to evaluate the programs and activities against agreed upon outcomes that they had been working towards over the past five years. To mitigate this issue, the Evaluation Team developed a full logic model and evaluation matrix, complete with outcomes and performance measures based on an understanding of the purpose and objectives of the programs. Program managers provided input and validated the model before the evaluation began. This exercise helped inform the concurrent development of performance measurement strategies for the ATR and RLEMP programs with the goal of establishing a baseline understanding of performance in the present evaluation and tracking this over time.

Data collection and triangulation of evidence. Although every effort was made to gather balanced evidence for each of the evaluation questions, in a few cases, the Evaluation Team had to rely on few lines of inquiry or limited variation of sources within one line of inquiry to address evaluation questions. The best example of this is can be found in analysis related to the extent to which stakeholders, including provincial and municipal governments, other First Nations with overlapping claims and other stakeholders have been engaged and accommodated in the ATR process. Unable to make contact with representatives from these stakeholder groups with the exception of several interviews conducted during a case study, analysis relies heavily on key informant information from INAC officials and First Nation land managers.

This limitation presents the potential for bias as the views from only several groups are relied on in some cases. This was mitigated through a thorough review of documents and literature related to municipal government involvement in ATRs. A case study on TLEs in Saskatchewan targeted provincial, municipal and third party players to better understand the web of relationships that makes adding land to reserve possible.

Gender-based analysis. The evaluation was unable to conduct gender-based analysis given a lack of performance information and the inherent difficulty in applying a gender-based lens to land management. The Evaluation Team considered examining matrimonial real property, but it was decided that inclusion of this issue would push the boundaries of an already ambitious scope. Gender-based analysis has been considered in both the ATR and RLEMP performance measurement strategies and recently, a study has been completed on gender-sensitive indicators for RLEMP through a partnership with INAC's Gender-based Analysis Directorate, EPMRB and the program.

Sustainable development. Discussions held with the Sustainable Development Directorate indicate that principles on sustainable development were in place and available to program managers beginning in 2007 (i.e., mid-way through the evaluation period). As a result, there is no performance data related to sustainable development and little indication that its principles were considered at the time of program design. The report includes limited discussion of sustainable development in analysis.

Attribution challenges. Attribution between government activities and outcomes in First Nation communities is often difficult to establish, especially when drawing conclusions on longer-term outcomes. That the RLEMP is only just emerging from its pilot stage made it hard to conclude, with certainty, progress towards some outcomes. For instance, joint management agreements for RLEMP First Nations have not yet been implemented. These will be useful in the future to examine the extent to which devolution of land management responsibilities is occurring. Another attribution challenge was linking the small amount of funding devoted to ATR through the Contribution Authority – a fraction of the total money spent on ATR delivery through specific claims settlements – to any tangible outcome.

At times, these limitations influenced the extent to which the evaluation could arrive at definitive conclusions on progress towards outcomes. To mitigate this, research relied heavily on key informant interviews to determine progress towards RLEMP outcomes. The scope of the evaluation was adjusted in an attempt to draw connections between ATR activities and outcomes. This meant that a large amount of ATR activity initiated through specific claim funding was included.

4.1.1 Meeting Land Base Needs

Many key informants, including those involved in the Elders roundtable claimed that adding land to reserve is necessary and significant to First Nations as existing reserve land is small. Respondents felt that an adequate land base is important for economic and social outcomes and to support a growing on-reserve population. Land forms the basis of Aboriginal identity. Adding land to reserve addresses historical injustices and helps to provide for the cultural and spiritual survival of Aboriginal communities.^{Footnote 54}

In 2005, at the beginning of the evaluation period, Indian reserves represented less than one half percent of the total land area of Canada's ten provinces.^{Footnote 55} The Report of the Royal Commission on Aboriginal Peoples discusses at length, inadequacies in the land base of First Nations, which it claims has shrunk by two thirds since the time of Confederation.^{Footnote 56}Canada'sAboriginal population has grown steadily since the Royal Commission on Aboriginal Peoples report, expanding by 45 percent to a total of 1,172,790 in the ten-year period between 1996 and 2006. Of this total, the 2006 Census counted 698,025 people identifying themselves as First Nations.^{Footnote 57} Future INAC projections place the number of First Nation people in Canada at over 1 million by the year 2024.^{Footnote 58} These findings suggest that more land is needed to support growing First Nations populations.

4.1.2 Consistency with Government Priorities

The evaluation found that while the ATR program is consistent with Government of Canada priorities, specifically those related to improving economic development on reserve and fulfilling Canada's treaty obligations; however, its design could be improved to better achieve these priorities (see Design section below).

In March 2007, the Standing Committee on Aboriginal Peoples found limited access to land and resources to be a key barrier to economic development, identifying this area an "urgent priority."^{Footnote 59} InJune 2007, the Prime Minister announced plans to accelerate the resolution of specific claims with the objectives of ensuring justice for First Nation claimants and certainty for government, industry and all Canadians.^{Footnote 60} The ATR program is necessary to carry out this commitment: INAC officials expect that the accelerated claims resolution process may increase the number of settlement agreements requiring additions to reserves.

The timely processing of additions to reserves continues to be a government priority and considered "essential to economic progress" under the Framework for Aboriginal Economic Development. This framework advocates adaptation of government processes to meet the speed of business.^{Footnote 61}

4.1.3 Alignment with Departmental Objectives and Initiatives

The emphasis of the ATR program on TLEs (discussed below in greater detail) is well aligned with departmental objectives and initiatives. In August 2006, the Minister of INAC committed to adding 150,000 acres of new reserve land per year in Manitoba to help fulfil TLE obligations.^{Footnote 62} On November 27, 2007, an agreement signed by the Minister of INAC and the National Chief of the Assembly of First Nations (AFN) gave priority to ATRs affected by provisions of The Specific Claims Tribunal Act, which the Minister introduced in the House of Commons on the same day.^{Footnote 63} Most of INAC's 2005-2010 Planning and Priorities Reports to Parliament state that ATRs are an integral program in achieving its Lands Strategic Outcome. According to INAC's most recent Departmental Performance Report, they encourage investment and promote development, both on reserves and in surrounding communities.^{Footnote 64}

While some key informants noted that the ATR program needs to be more closely aligned with the economic development priorities of INAC and the government of Canada, an ATR Policy and Process Review with the AFN, which is currently underway, confirms that the program is working towards better alignment in this regard.^{Footnote 65} This initiative is discussed in greater detail in the Design section that follows.

4.1.4 Legitimate and Necessary Role of INAC in Additions to Reserves

ATR are required to meet treaty obligations, which are solemn, constitutionally-protected agreements between the Crown and First Nations.^{Footnote 66} Claims may be resolved by adding lands to reserve. In 1992, Canada signed the Saskatchewan Treaty Land Entitlement Framework with 25 First Nations and the Government of Saskatchewan to fulfil this obligation.^{Footnote 67} In 1997, a similar agreement was signed by 19 First Nations and the Government of Manitoba.^{Footnote 68} INAC has the lead responsibility for the implementation of these agreements, with support from other government departments.

There is commentary to the effect that Canada should settle "valid" specific claims. In 2006, the Senate Standing Committee on Aboriginal Peoples conducted a special study on the specific claims process. In this study, the committee stressed that the federal government's responsibility to settle specific claims as an obligation and a legal imperative that cannot be postponed^{Footnote 69} Likewise, the Standing Committee acknowledged the responsibility of the federal government in their report, Sharing Canada's Prosperity – A Hand Up, Not a Handout.^{Footnote 70} Finally, ATR are required by the Government of Canada where legal obligations of settlement have been specially legislated or where the courts have directed the Crown to add lands to reserve.^{Footnote 71}

4.2.1 Program Design

Land acquisition and harmonization of different legal regimes is a complicated task. The design of the ATR program has been under review several times since its inception to examine ways in which the land transfer process can be facilitated. While progress has been made, the evaluation found that the design of the ATR policy and process still requires improvement.

Past ATR policy / process design flaws
A 1996 evaluation of the ATR policy found that the ATR process was lengthy and that there was potential for streamlining specific steps through combining steps or completing some steps in parallel.^{Footnote 72} The 2001 AFN-INAC Joint Initiative for Policy Development discusses a number of design issues of the ATR policy. For instance, First Nation focus groups claimed that the ATR policy/process suffered from an over-emphasis on liability and cost implications to the federal government.^{Footnote 73} The ATR policy was modified in 2001 as a result of the Joint Initiative.^{Footnote 74}

In a 2005 report, the Office of the Auditor General (OAG) noted that a large number of treaty land entitlement acres in both Manitoba (790,000 acres) and Saskatchewan (473,000 acres) had been selected by First Nations, but that there had been limited progress in addressing longstanding problems with the land conversion process in these two provinces.^{Footnote 75} Although the 2009 OAG report acknowledged that the ATR program had made significant progress since the 2005 report in converting lands selected by First Nations to reserve status in Saskatchewan and Manitoba, many of the design issues remained unresolved particularly in the other provinces where there is no special TLE legislation.^{Footnote 76}

Current issues with the ATR policy / process
The evaluation found considerable evidence that the current design of the ATR process flowing from the policy is cumbersome with unnecessary steps leading to long delays that compromise the potential for economic development. Many key informants identified a number of areas where change might be warranted and noted that work in some of these areas is already underway. These include the following:

• Conducting further research and policy work on sub-surface rights;
• allowing for approvals of ATRs to occur at the Regional Director General level, instead of at the Deputy Minister level;
• clarifying definitions around urban and rural ATRs and service areas;
• establishing greater collaboration with the provinces to address some of the challenges related to securing urban ATRs;
• better engaging Aboriginal land management associations (e.g., NALMA and its regional chapters);
• improving dispute resolution mechanisms;
• better monitoring ATR service standards; and
• further developing the ATR tool kit.

Promising change
Many of these obstacles and other design issues have been addressed for treaty land and certain other claim settlements in the Prairie provinces. The Manitoba Claim Settlements Implementation Act and the Claim Settlements (Alberta and Saskatchewan) Implementation Act provide procedures for First Nation councils to request permits or designations before transfer and for those to be conferred with lawful effect. Evidence suggests that a significant obstacle to other ATRs could be removed if such opt-in legislation were extended to all regions, thereby reducing the number of steps and time required to add land to reserve.^{Footnote 77}

INAC is working with the AFN to review the national ATR policy and process in an effort to reduce processing time and steps, significantly accelerate the ATR process and provide greater certainty to third parties. It is expected that the new policy and process direction will be restructured along the lines of settlement acts in place in the Prairies. Key informants from all groups claim that these developments are adequately involving the input of Aboriginal land managers and NALMA.

Clarity of roles, responsibilities, communication and collaboration
The evaluation found evidence that the clarity of roles and responsibilities in the ATR process needs to be improved. Better communication and collaboration both within the Lands Branch and with other INAC sectors and government departments is needed to ensure the effectiveness and efficiency of the ATR process and to support economic development outcomes.

Many evaluation respondents indicated that greater collaboration and coordination across the Economic Development and Lands Branches is needed, particularly at the regional level. It was felt that economic development outcomes would be better realized if regional economic development officials were involved with, or at least made aware of, ATRs early in the process. This was specifically the case when ATRs are being proposed to support economic development.

NRCan's role during the ATR process is to manage contracts with land surveyors, ensuring that standards are met, records are properly archived and, ultimately, that lands have legal standing. In terms of supporting ATRs, NRCan respondents indicated that while they have typically become involved near the end of the ATR process, they often identify problems. As a result, they are increasingly becoming involved in the consultation process before an ATR is accepted by INAC. NRCan receives no funding for those activities, despite the lengthy ATR process.

Through key informant interviews with representatives from LED and the Specific Claims Branch (SCB) of the Treaty and Aboriginal Governance Sector, the evaluation found that INAC officials in both of these branches sectors lack a common understanding of the implementation implications of specific claims settlements as they apply to ATRs.^{Footnote 78} Further, the two sectors approach prioritization of ATRs and claims involving land differently based on their obligations to First Nations. There was some concern on the part of LED that a lack of prioritization of claims based on economic potential impeded the achievement of outcomes. Representatives from Treaties and Aboriginal Government explained that based on processing requirements, all claims are dealt with as they arrive, without prioritization.

Both LED and SCB respondents mentioned that there may be several opportunities to improve communication and coordination between the two sectors, namely through a more systematic approach informing LED of the acceptance of land-related claims for negotiations and, including LED regional land managers in claims negotiations involving land earlier in the process.

No concerns regarding the relative roles and responsibilities of DoJ were raised.

4.2.2 Program Delivery

The evaluation found limitations in INAC's capacity to implement ATRs in a timely manner, primarily stemming from human resources pressures. In addition, many interviewees identified key supporting activities – the delivery of some of which are out of the direct control of INAC – that must be undertaken to implement ATRs. Completion of each of the following activities adds time to the ATR process and may be contingent on stakeholder capacity and cooperation: consultation with third parties; surveys; title searches, appraisals; environmental site assessments; negotiations; and transfers.

Internal delivery pressures
Limited human resources at INAC combined with workload pressures, are delaying ATR implementation, with land transfers taking many years as a result. A number of INAC key informants claimed that INAC land managers are ill-equipped to conduct the complicated transactions involved with ATRs. Reasons provided for this finding echo those discussed in the 2005 OAG TLE audit: Low job classifications and limited training to deal with complex files. Further, the program offers few professional development opportunities to equip lands managers with the necessary knowledge and skills to process ATR selections.^{Footnote 79}

Evidence of some ATR program activities not delivered as planned
Key informants claimed that several specific activities related to ATRs were not implemented as planned. Environmental site assessments and land surveys – carried out to prepare land for transfer– have, in most regions, been constrained by either a shortage of resources or inflexible funding arrangements. Title searches, identification of encumbrances and transfer of title – activities carried out by DoJ – have faced similar challenges. A shortage of resources, difficulty in procuring DoJ agents at the fees that have been established for these activities and high DoJ workload have all contributed to delays in the ATR process. Again, these findings are aligned with the 2005 OAG TLE audit, which found that inadequate resources were being allocated to processing land selections.^{Footnote 80}

Almost all INAC land managers reported difficulty in justifying non-TLEATRs due to cost and backlog constraints. Other ATR categories outlined under the ATR policy, such as community additions, were rarely used. The implication of this on the performance of the program, namely First Nation accessibility to additional land, is discussed in greater detail below.^{Footnote 81}

Support to ATR delivery partners / Extent to which INAC is meeting its legal and policy obligations for transfer of title^{Footnote 82}
In order for an ATR to be successfully implemented, First Nations require cooperation from government departments, provinces, municipalities and other stakeholders. Orchestration of this complex set of activities and relationships depends in large part on INAC's support, but requires the understanding, collaboration and capacity of partners and stakeholders.

First Nations play a significant role and have many responsibilities in relation to the implementation of ATRs. They must become familiar with all the steps in the ATR process, a requirement that increases INAC regions' workload as the Department provides technical and advisory support to First Nations. Negotiation with third parties involved in the land transfer process and accommodation of their interests has experienced a number of challenges. These activities are the responsibility of the First Nation requesting the ATR; however, INAC is responsible for producing instruments involved in identifying third party interests. Delays in producing these instruments often delay the accommodation and transfer process. Discussion of this issue and its impact, not only on First Nations, but others with interests in reserve land, is developed in the following section on performance.

NRCan is another important partner in preparing land for addition to reserve through their guidance to First Nations to engage private professional surveyors. However, there is substantial evidence to suggest that the lack of long-term planning and INAC funding transfers to NRCan for surveys are problematic (refer to Table 5 below). Highly-skilled professionals are required to do this work, making it necessary for NRCan to be able to plan for the work requirements well ahead of time.

Potential ATR land requires environmental site assessments (ESA) – used to determine levels of site contamination – before a decision can be made to receive lands for reserve creation.^{Footnote 83} This is often a complex, time consuming and costly exercise. An important consideration is that ESAs are timed appropriately, as they often become stale-dated and require updating when the ATR process is not completed soon thereafter. INAC has recently mitigated this by increasing the stale date period from two years to five years.^{Footnote 84}

Performance data and systems
While the 2009 Report of the Auditor General found that the Department had made satisfactory progress in implementing some of its 2005 recommendations, it indicated that the information system that the Department was using to track the overall time it takes to convert lands to reserve status could not demonstrate improvements in processing times over the last three years.^{Footnote 85} A new NATS is in the final stages of development, with a target completion of existing ATR data input for the fall of 2010. This new system will allow for improved tracking of the various types of ATRs by category, region and total number of hectares. An important addition to the tracking system will be the average time it takes to process ATRs.^{Footnote 86} As part of the implementation of NATS , INAC-HQ is conducting consultations with the regions this coming year, which will include how to better coordinate data collection across regions and eliminate duplication in reporting.

4.3.1 Results and Outcomes^{Footnote 87}

In addition to the central role that First Nations and INAC play in the ATR process, successfully adding land to a reserve requires the involvement and agreement of numerous stakeholders, including provinces, municipalities, other First Nations with overlapping claims and third parties that hold legal interests in the potential reserve land. This section expands on some of the delivery issues that impede successful engagement, negotiation and accommodation of these groups and reviews possible solutions.

Problems with and barriers to engagement and accommodation
Past audits and evaluations of the ATR policy and process have noted deficiencies in the design of the ATR policy and its implementation limiting the ability to successfully engage third parties.

The 1996 evaluation of the ATR policy found that its implementation did not adequately address resolution of third party interests, including access to sub-surface rights and compatibility with local municipal by-laws. Guidance provided to First Nations and municipal stakeholders was found to be less than adequate with no direction on how First Nations should handle municipal relationships. The same report recommended that the program ensure that municipalities and other affected parties are aware of the ATR policy's implications.^{Footnote 88}

Findings from the 2005 OAG study on TLEs echoed those from the 1996 evaluation. This report found that resolving third party interests contributes to long delays. While the Department has little control over these negotiations, this report and the 2009 OAG follow-up found that guidance and support from INAC is rarely provided to First Nations to resolve third party issues. For instance, there is no strategy to guide facilitation between First Nations and third parties.^{Footnote 89} The Saskatchewan case study on stakeholder cooperation in one ATR and many of the key informants from a variety of groups confirmed this finding, claiming that First Nations lack the capacity and resources to deal with consultation in a timely and informed manner. In addition, First Nations may not always understand INAC's duty to consult with other Aboriginal groups in the case of overlapping claims to land, or fundamentally understand the ATR process.

Involvement of municipalities
The evaluation found evidence that INAC/First Nation relationships with municipalities involved in the ATR process may become strained due to a lack of information and understanding and, at times, conflicting interests. The document and literature review revealed common concerns and issues of municipalities in relation to ATRs that must be considered when entering into an ATR. Many key informants mentioned these issues as well:

• potential tax revenue loss and the possibility of providing municipal services to a First Nation community without adequate compensation;
• by-law compatibility, compliance and enforceability;
• apparent lack of dispute resolution processes;
• environmental standards/land use planning;
• access to reserve lands;
• resolution of municipal interests such as roads;
• uncertainty of ATR process including unclear consultation requirements;
• negotiating service agreements; and
• unclear jurisdictional matters.^{Footnote 90}

The ATR policy urges consultation with municipalities and requires First Nation-municipal negotiation in areas, such as joint land use planning/bylaw harmonization, tax considerations, service provision and future dispute resolution.^{Footnote 91}

Engagement and accommodation of other third parties
Evidence from both the TLE case study and key informant interviews shows that there is a general disinterest by third parties to engage in negotiations unless First Nations offer significant economic incentives or favourable lease terms, such as an increase in lease tenure. Once third parties are engaged, INAC policies present a range of requirements, including cost, rental, limited term, environmental remediation, or decommissioning that make the process unduly complicated. Evidence suggests that the process could be simplified if a standard for transactions was developed.

As well, evidence indicates that there are often problems translating property interests under well understood provincial law into the federal scheme (e.g., under the Federal Real Property and Federal Immovables Act or the Indian Act). There is a general distrust of regime change from provincial laws to federal jurisdiction, especially where such change would result in ministerial discretion.^{Footnote 92}

Strategies to improve municipality and third party engagement
The literature and key informant interviews offer several solutions for dealing with impasses in consultation, negotiation and accommodation. Many of these findings were confirmed in the Saskatchewan TLE case study:

• increased intergovernmental coordination and meaningful engagement of local governments and other affected parties and organizations such as regional districts early in the ATR process, at the time of the ATR proposal;
• fee-for-service arrangements that are approximately equal to the tax revenue loss on the land;^{Footnote 93}
• coordination in land use planning to prevent a patchwork of jurisdictions;^{Footnote 94}
• educating third party partners and clearly defining roles that each party is responsible for;
• dispute resolution training and mechanisms; and
• a traditional talking circle as a first step to create a common understanding of the positions of both parties.

Progress being made
The TLE Case Study found that negotiations with stakeholders and third parties were more effective when there was special legislation to regulate this process.^{Footnote 95} There are some success stories of additions to reserves benefiting both First Nations and municipal stakeholders. A publication by the Western Economic Development Agency points out that strong municipal-First Nation relationships contributed to the establishment of nine urban reserves in Saskatchewan.^{Footnote 96} The Federation of Canadian Municipalities discusses several successful municipal-First Nation partnerships occurring through ATRs that resulted in positive economic development outcomes for both communities.^{Footnote 97}

The 2009 OAG report found that INAC was devoting greater effort to informing and educating third parties through learning sessions.^{Footnote 98} In addition, key informants mentioned that NALMA is creating a tool-kit for First Nations clarifying the roles and responsibilities of First Nations and the Department in relation to ATRs. The toolkit will assist First Nations in taking a "diligent buyer approach" to land acquisition, all of which is expected to significantly accelerate ATR processing times.

To address First Nation capacity development, INAC and NALMA have collaborated to create a tool-kit for Phase I of the ATR process clarifying the roles and responsibilities of First Nations and the Department in relation to ATRs. The toolkit will assist First Nations in taking a "diligent buyer approach" to land acquisition, all of which is expected to significantly accelerate ATR processing times. NALMA took the lead in arranging two focus groups (East and West) and invited First Nations, INAC regional staff and third party participants to map out the process and add best practices. NALMA plans to print and distribute this to all First Nations across Canada this fiscal year. As well, the organization plans to use the ATR toolkit to train various stakeholders, depending on the availability of funds from INAC.

Indian reserve land in Canada totalled 3,221,212.70 hectares in 2005. During the five-year period under evaluation, reserve land grew by 294,281.483 hectares, or 9.14 percent^{Footnote 99}Although there has been marked progress in adding land to reserve, only 112 First Nations (less than 20 percent of the total First Nations in Canada) have accessed additional lands.^{Footnote 100} Further, the program focuses on meeting treaty obligations; rarely is land added under alternative ATR policy categories.

Table 2 below sets out the number of ATRs by category over the period of the evaluation. During this time, most of the expansion, in terms of total hectares, occurred in Manitoba with just over 48 percent of the total hectares added to reserves in Canada.^{Footnote 101} Several other regions experienced a significant increase in hectares, namely Saskatchewan with 21 percent of the five-year national total, Ontario (12 percent), Alberta (nine percent) and Northwest Territories (8.6 percent). While all regions experienced some increase, British Columbia and Quebec stand out as two regions with little ATR activity.^{Footnote 102}

Showing 80 percent of the total ATRs classified as legal obligations, this table confirms key informant claims that this ATR policy category is the most used. The majority of this figure (80.3 percent) was added under TLE legislation in Saskatchewan and Manitoba. This strongly suggests that the focus of the Justice at Last initiative on resolving specific claims has put pressure on the ATR program to prioritize ATRs classified as legal obligations. This has resulted in a discrepancy between provinces. For instance, due to historical reasons, the Prairie provinces are subject to a far greater number of TLEs than British Columbia, a region where few historical treaties were signed.

Of the 20 percent of ATRs that were added under the Community Additions category, most were located in Quebec, British Columbia, Atlantic Canada and Alberta. The New Reserves/Other policy category was not used over the evaluation period. That 95 percent of ATRs occurred in rural areas is in line with the common key informant contention that it is easier to negotiate rural land as urban land involves more stakeholders and presents greater economic implications for these stakeholders. However, it should be noted that some key informants claim that securing rural ATRs involving mineral access is difficult, if not impossible in some provinces. These figures should be interpreted with caution as many INAC officials mentioned that there is a lack of consistency in the definition of rural and urban ATRs

Source: INAC LED/ATR "List of Approved OIC and MO Submissions" July 28, 2010
* An ATR is based on OIC/MO Order Number and may include more than one reserve addition or creation.
** Urban/Rural definition differs from each Province and Territory

Access to land that meets the interests and needs of First Nations communities
Without data on the number of ATR proposals for each category and information concerning the reasons for which proposals were not accepted, the evaluation was not able to determine whether land selected is meeting First Nation communities' interests and needs.^{Footnote 103} Moving forward, the newly developed ATR performance measurement strategy will investigate this intermediate outcome through an assessment of ATR/TLE proposals.^{Footnote 104}

Most respondents claimed that there is no direct evidence to suggest that ATRs, namely non-TLEATRs, contribute to sustainable development, economic development or First Nation self-reliance. Respondents revealed that very few First Nations have been able to acquire land of significant value (e.g. in urban centres) to enhance their community's economic well-being and overall self-reliance. Processing times of ATRs were commonly noted as the main obstacle to economic development. Respondents indicated that nothing happens at the speed of business and, as was mentioned in the Delivery section above, that economic development outcomes could be improved through better and more timely communication and greater awareness both between First Nations seeking ATRs and between the economic development and lands programs Finally, a number of respondents commented that access to valuable sub-surface rights would increase economic development opportunities, an issue determined through provincial jurisdiction.^{Footnote 105}

The Saskatchewan case study and the literature that speaks to this issue reveal that ATRs have the potential to deliver positive socio-economic benefits to Aboriginal communities if they target the right land for the right reasons. Resource development made possible through the ATR has propelled the community examined in the case study to the wealthiest First Nation in the province. Urban ATRs provide First Nation communities with the opportunity to engage in the economy and to become increasingly self-reliant.^{Footnote 106} With additional land comes the opportunity to develop Aboriginal businesses, creating self-generating revenue that reduces dependence on federal government support. Economic development resulting from ATRs has been shown to increase employment opportunities for on- and off-reserve residents. All of this leads to an increased standard of living.^{Footnote 107} Strategic location of reserves in areas that allow access to markets is crucial to meeting economic development outcomes.^{Footnote 108}

4.3.2 Unintended Outcomes

The evaluation found some evidence of unintended outcomes, both positive and negative.

The literature suggests that there may, in fact, be positive unintended outcomes for municipalities and neighbouring communities when an ATR is established. Successful urban reserves in Saskatchewan have provided economic benefits to surrounding populations through an increase in real estate values, development spin-offs and employment ^{Footnote 109} Likewise, there is evidence that ATRs promote community and capacity building not only within a First Nation, but also among surrounding municipalities. Several benefits include stronger infrastructure and reduced service provision costs.^{Footnote 110}

Conversely, some respondents believe that the long and tedious ATR process can discourage communities applying to add land to reserve and acts as a disincentive to engaging in the process. Some respondents reported that pressure to move parcels of land has sometimes led to ignoring some aspects of the process, which sets a poor precedent for future ATRs.

4.3.3 Best Practices and Lessons Learned

The following best practices and lessons learned were drawn from the Saskatchewan TLE case study, an example in which many partners and stakeholders worked together to quickly move a high opportunity ATR forward.

4.3.4 Efficiency

Most key informants claimed that the ATR policy and process is not efficient as it is currently structured. Without data on the processing time involved in each phase of the ATR process, the evaluation was not able to conclude beyond information provided through the key informant interviews the extent to which the process is inefficient. Informants claimed that the full process has taken anywhere between two and seven years. The 2005 Auditor General's report found a range of five to seven years.^{Footnote 111} Limited information from NATS places the total time from the initiating Band Council Resolution received at the regional office to the approved date of the Order-in-Council at 2.91 years.^{Footnote 112}

The evaluation did, however, find key formant evidence of legislative and policy improvements in the Alberta, Saskatchewan and Manitoba have increased efficiency.^{Footnote 113} For instance, some respondents claimed that vesting the Minister of INAC, rather than the Governor General in Council with authority to approve ATR applications has significantly improved Phase III processing times. This contention is supported through available performance information collected from 2008 to the present through NATS . A comparison of these two approval methods reveals that ministerial approval is 56 percent (68 calendar days) faster than obtaining an Order-in-Council. Data indicating efficiency trends over time were not available, though the Auditor General recently noted that since 2006, Phase III times in Saskatchewan had almost tripled from 76 to 210 days.^{Footnote 114} As mentioned earlier, improvements in the ATR policy and process will be explored jointly with the AFN and NALMA. If these changes incorporate the process and approval improvements set out in Prairie Settlement Acts, greater efficiency in all categories of ATRs across regions may be achieved.

There is evidence that service standards play a role in increasing efficiency. For instance, a report of the United States Government Accountability Office suggests that a lack of specific time frames for deciding on land trust applications and a clear definition of what is acceptable increased the processing time of applications and caused significant inconsistency. The report suggests that setting clear service standards and consistently collecting data has the benefit of providing greater transparency to stakeholders and increasing processing times.^{Footnote 115} The ATR program has had service standards in place since April 2008 for Phase III of the process (approval by the Minister of INAC or Governor General in Council). These include 75 calendar days for Saskatchewan TLE First Nations and 100 business days for all other ATRs. These are now being tracked through the NATS .

4.3.5 Cost-Effectiveness

The evaluation found some evidence from the key informant interviews that fee-simple ownership of land may be a viable alternative to ATRs to achieve economic development, but only at the discretion of the First Nation, i.e. it is not a true alternative to INAC programming. Fee simple land acquisition is far less complicated and may offer a more flexible alternative. This particularly holds true for urban reserves where First Nations are presented with high transaction costs, many of which are associated with competing municipal and private interests in the land. It is, however, important to note that fee-simple land remains under a provincial land regime, which prevents First Nation governance of that land. This means that fee-simple acquisition of land is not an alternative for treaty land entitlement. It does not offer the tax benefits associated with ATRs and in fact, imposes further municipal taxes on the First Nation. The evaluation did not attempt to conduct a detailed analysis of the costs and benefits of tax implications of ATR and fee-simple land and transaction costs involved in acquiring reserve land.

5.1.1 Meeting Land Management Needs

Land Management and Capacity-building Programs
Interviewees, both from INAC and Aboriginal organizations felt that capacity-building programs such as RLEMP are integral to achieving greater self-reliance and ultimately, the ability to self-govern. As the volume of activity on reserve lands increases,^{Footnote 116} First Nations will require the resources, flexibility and expertise to respond to these demands and take advantage of economic opportunities.^{Footnote 117} There is a need for First Nations to participate more fully in land management practices on reserve, evidenced in part by the high level of interest shown by First Nations in the capacity-development/devolution programs (RLEMP, RLAP and 53/60). There is a need for greater First Nation control over and involvement in land management, be it exclusive decision-making authority or co-management arrangements.^{Footnote 118}

INAC Land Administration Activities
There is a need for reliable land surveys, legally-enforceable land rights and reliable title-based registry systems to secure land tenure and orderly land development.^{Footnote 119} Internal surveys and registry systems support housing development, community planning and sustainable land use and protection of culturally important sites. They provide clarity of title through defined tenure, which provides certainty to developers, private-sector investors and lending institutions. A focus group session related to the surveys case study undertaken for this evaluation found that poor survey fabric impedes economic development. A second case study found that surveys and proper registration of internal allotments is critical in providing social order by preventing disputes between neighbours. These systems provide a permanent record and identify encroachments on reserve land, thereby, limiting liability to the Crown. In short, they provide the foundation for a property rights infrastructure based on identification, documentation, registration and protection of land interests.^{Footnote 120} According to one key informant, surveys and registration of interests are the underpinnings of modern land management.

5.1.2 Consistency with Government Priorities

Acknowledging the fact that there was limited articulation of outcomes linking the RLEMP and INAC land administration programs to broader goals of government during the evaluation period, evidence from the document review suggests that by design, the capacity-building and devolution programs are aligned with federal government priorities. Current federal government priorities include the provision of training and professional development for First Nations people in order to build capacity and economic self-reliance^{Footnote 121} and ensuring that Aboriginal Canadians fully share in economic opportunities.^{Footnote 122} The Government of Canada has sought to ensure the sustainable use of reserve lands and improve the value of Aboriginal assets^{Footnote 123} To this end, RLEMP, RLAP and 53/60 allow First Nations to operate under an improved management environment, creating more favourable conditions for economic development; and, support First Nations in becoming more capable of managing their own lands, which in turn better positions them to capitalize on economic opportunities.

5.1.3 Alignment with Departmental Objectives and Initiatives

Evidence suggests that the RLEMP, RLAP and 53/60 programs and land management in general are aligned with INAC's priorities. Departmental priorities flow from those federal government priorities mentioned above and include training and professional development to build capacity in land management.^{Footnote 124} The Department is seeking to transfer decision-making responsibilities to First Nations so that communities might enjoy greater control over activities on reserve.^{Footnote 125} INAC's objective is to increase the number of First Nations moving towards FNLMor self-government.^{Footnote 126} Strong land management practices are one way to build institutional capacity, foster good government and improve accountability, according to INAC's 2008-09 Departmental Performance Report.^{Footnote 127} Such conditions are necessary to provide the stability and institutional certainty that attracts business and the partnerships necessary to pursue economic opportunities, fulfilling a key INAC priority of economic development.^{Footnote 128}

The full roll-out of the RLEMP under the Aboriginal Economic Development Framework appears to provide better alignment to support these priorities through improved funding, a professional development training program and an expansion of the scope of land management responsibilities for First Nations.^{Footnote 129} There is also evidence that land and resource capacity-building initiatives are aligned with the Department's priorities to strengthen First Nations' capacity in economic development. In 2009-2010, the Department merged the Lands and Trusts Services Sector with the Economic Development Sector to facilitate a stronger linkage between land and economic opportunities.

However, some key informants – both INAC officials and First Nation land managers – were careful to point out that fundamentally, the Indian Act and by virtue programs developed under its structure, are not designed to meet outcomes and priorities associated with modern land management. These respondents suggested that the Indian Act creates a continued dependency of First Nations on INAC that could perpetually inhibit progress towards outcomes. The inherent restrictions and limitations of the Indian Act may stand in the way of government priorities to foster economic self-reliance on reserve.

5.1.4 Legitimate and Necessary Role of INAC in Land Management Activities

While key informants did not speak to the issue of INAC's role in land management on reserve, a review of documents and legislation suggests that there is a legitimate, appropriate and necessary role for INAC in the activities under evaluation. INAC's role is mandated by the constitutional and legislative responsibilities of the Government of Canada to First Nations.^{Footnote 130} Section 91 (24) of the Constitution Act, 1867 gives the federal government exclusive legislative jurisdiction over "Indians and lands reserved for Indians."^{Footnote 131} The Indian Act contains obligations in regard to land administration which have been considered by the Supreme Court of Canada.^{Footnote 132} Pursuant to Section 2 of the Indian Act, reserves are set aside by the Crown in Right of Canada for use and benefit of a First Nation.

The Indian Act and Canada Lands Surveys Act mandate certain responsibilities concerning the registration of interests and surveys on Indian lands. Section 19 of the Indian Act, states that the Minister of INAC may authorize surveys of reserve lands and the preparation of plans and reports dealing with these surveys. The Canada Lands Surveys Act stipulates that NRCan is responsible for regulating surveys on Indian reserves at the request of the Minister of INAC.^{Footnote 133}

Section 51(3) of the Indian Act vests the Minister with authority to "manage, lease or carry out any other transaction affecting designated lands." Section 55(1) of the Indian Act sets out the requirement for a departmental registry of containing transaction particulars for surrendered and designated reserve lands.

The evidence suggests that these programs are not duplicated by any other. Educational institutions do not offer training in Indian Act land management.^{Footnote 134 Footnote 135}

5.2.1 Program Design

Land Management and Capacity-building and Devolution Programs
RLEMP was designed to replace the transaction-based and restrictive RLAP and 53/60 programs, which were found not to have met the needs of either INAC or First Nations. Unlike these earlier programs, RLEMP is intended to be a capacity-building program focused on integrated land and environmental management. It represents a further shift from the Department's traditional operational role to more of an advisory and monitoring role^{Footnote 136} The program's focus on modern management practices includes a broad scope of land management responsibilities, a revised funding formula and an improved training program.

Design issues and First Nations needs
The evidence suggests, however, that some aspects of the program are not designed to address identified needs. Training is not sufficient to meet all demands and lacks practical applicability.^{Footnote 137} Many respondents suggested that training could be more comprehensive (e.g. environmental training, hands-on experience, dispute resolution, governance, interpersonal skills, accounting, economic development planning, refresher courses) and could include more hands-on experience to gain necessary technical skills. One suggestion was made to introduce an internship component to RLEMP training.

Admittance criteria for the RLEMP are not addressing identified needs. Some respondents found admittance to be unnecessarily restrictive. For example, RLEMP training requires familiarity with land management practices, thus, precluding inexperienced applicants.^{Footnote 138} Furthermore, the program will only fund a single trainee from any given community^{Footnote 139} INAC is not able to meet demand for entry into RLEMP and the program has been unable to increase accessibility,^{Footnote 140} which, according to some interviewees may be because INAC did not expect the high level of First Nation interest in the RLEMP. Entry into the RLEMP was limited to First Nation land managers already enrolled in the RLAP or 53/60 programs. It should be noted, however, that the program is currently looking to address some of these design deficiencies. For example, INAC is expanding access to First Nations not currently in a land management program, revising entry assessment criteria for the 2011-12 cohort and exploring the possibility of equivalency exams to potentially reduce the training timeframe.^{Footnote 141}

Program funding structure
Many respondents found the funding formula to be deficient in its design, by awarding funding based on transactions, where transactions are not necessarily an appropriate proxy for need. Similarly, funding eligibility is based on the number of active land transactions registered in the Indian Lands Registry System^{Footnote 142} and thus, is retrospective. ^{Footnote 143} Some respondents felt that multi-year, block-funding would be more appropriate for these programs and would help to eliminate delays associated with the annual funding allotments. However, some respondents positively remarked that that RLEMP's new incentive based funding program encourages community development plans.^{Footnote 144}

Clarity of roles and responsibilities in RLEMP
Roles and responsibilities in these programs are unclear to many respondents. Evidently, no accountability framework is in place. It was suggested that the development of such a framework could help to clarify roles and responsibilities. Several respondents claimed that when delegation occurs without proper monitoring, confusion about fiduciary or other responsibilities may occur. Some respondents indicated that the implementation of Joint Management Agreements between INAC and RLEMP First Nations will help to establish clear roles and accountabilities.

Almost all respondents identified a successful partnership with NALMA as contributing to the effective delivery of programs and to certainty in First Nations roles and responsibilities with respect to land management. Further, NALMA provides land management resources and reference materials to First Nations upon request and is developing a basic training module in land management to be delivered to band councils.

INAC Land Administration Activities
A key finding recurring throughout all groups of key informant interviewees was that land management on reserve is becoming increasingly complex due to land use planning and environmental standards and a heavy reliance on legal advice to manage, for instance, specialized projects and the monitoring and enforcement of commercial leases. Increased opportunities for professional development and advanced hands-on training of INAC staff were suggested to compensate for this complexity and to fill a gap left by a shortage of corporate knowledge. One additional idea related to training was to develop the same curriculum for INAC and First Nation land managers. It was felt that this would provide an appreciation of each other's roles, policy development requirements and work.

Legislative and regulatory gaps
The evaluation found evidence of legislative, regulatory and program-specific design flaws. Some key informants and the Auditor General's reports referenced significant gaps in the policy and procedures relating to Lands programming.^{Footnote 145} Respondents commonly agreed that policies and manuals may not be applicable to First Nations situations or to provincial regulatory regimes. Several key informants suggested that new legislation is required to replace the Indian Act land regulations with a modern land regime better-suited to meet current requirements. One significant legislative and regulatory design gap is the lack of on-reserve environmental regulations, an issue given extensive consideration in the 2009 OAG report on Land and Environment Management.^{Footnote 146} The Indian Act and its regulations do not provide adequate tools or mechanisms for environmental monitoring, compliance and enforcement activities on reserve.^{Footnote 147} However, several key informants suggested that the problem is not a regulatory gap problem but a lack of support for monitoring and compliance.

While some work has been completed on developing national standards and templates for land management and new legislation has been introduced, strong evidence indicates that the current policies related to land management require updating to meet increasingly complex issues, become better integrated with one another and to create consistency across regions. For instance, many respondents voiced the concern that there is a lack of defined processes, roles and responsibilities within INAC.

Finally, there were mixed responses on whether First Nation input is adequately integrated into program and policy design. According to INAC officials, several opportunities exist for First Nations or First Nation organizations to provide input into policy redevelopment. While the main point of contact is NALMA, RLEMP has provided the opportunity for individual First Nation land managers with direct knowledge of land administration issues to become involved. Others felt that the existing mechanisms in place do not adequately engage First Nations.

Indian Lands Registry System
Many respondents noted that the design of the ILRS was flawed, namely because it is difficult to find information in the system, it is incomplete and less reliable than a title-based system, causing time delays, additional legal costs and in some cases, uneasiness with entering into an agreement whereby an investment may not be secure. Others noted that it is not in fact a registry at all, but rather a repository of information. The system lacks legislative and regulatory underpinnings associated with a Torrens system that assure legal validity of registered transactions thereby affirming certainty to title. Instead, land managers and others rely on policy direction from INACHQ on what elements of land transactions to collect, maintain and input into the registry system. Several informants claimed that direction in this area is limited.

With that said, improvements have recently been made to the ILRS software. The upgrade enhances usability of the system and, according to program managers, will support a title-based registry should that be implemented in the future.

5.2.2 Program Delivery

RLEMP
Three key activities fall under the capacity-building programs: assessment of First Nations' land management capacity and execution of joint management agreements; provision of training to First Nation land managers and the provision of ongoing management support during and outside of 53/60/RLAP/RLEMP. Respondents expressed highlighted issues related to the delivery of these activities. Land management assessments were lengthy, a model for joint management agreements is still under development and, as discussed in relation to performance in what follows, there are limitations to INAC's ongoing support. INAC officials attributed these deficiencies to the pilot status of RLEMP.

The evaluation found that NALMA, the University of Saskatchewan and the Regional Aboriginal Land Associations have played a significant role in delivering the training for First Nation land managers through the Professional Land Management Certification Program and workshops.^{Footnote 148}

Human resources capacity and pressures
There is considerable evidence to suggest that high INAC staff turnover has impacted some regions' ability to meet their management support obligations, both to RLEMP First Nations and others.^{Footnote 149} Retirees are being replaced at lower classification levels. Less qualified and knowledgeable staff are then responsible for increasingly complex land management issues, creating stressful work environments and leading to high rates of turnover. High turnover in First Nations lands staff is depleting expertise, which necessitates ongoing support from INAC's regional offices, placing further burden on regional land management officers.

Due to the lack of continuity in leadership and human resources and the uncertainty of financial resources, HQ is often unable to provide regions with clear and concrete program directions. A few respondents noted that long-term funding resources, communication strategies, toolkits and policies have yet to be finalized. The uncertainty surrounding these resources has impeded effective program delivery and frustrated regions and recipients.

Despite the many human resources challenges facing the Lands Branch, it appears that some progress is being made in internal capacity development. Officials at HQ have been working with NALMA to undertake a review of the current First Nations training program under RLEMP to assess it as a foundation for an internal INAC training program.

Tools, policies, processes and procedures
A lack of consistency in application of advice or tools at the HQ and regional levels are resulting in inconsistent delivery of policies and procedures. Many respondents noted inconsistencies in documentation from region to region and variance in First Nation compliance with the land processes and procedures, as set out in the Lands Management Manual. Evidence also points to a lack of clarity in roles and responsibilities relating to the lands functions, and poor communication at all levels within INAC. Monitoring systems to facilitate First Nation compliance with regulations under the Indian Act are absent. One promising model mentioned to address this gap, employed by the Aboriginal Habitat Stewardship Fund, was for Aboriginal organizations to monitor First Nations.

Performance measurement
There is considerable evidence that program outcomes have not been adequately defined and program monitoring is insufficient.^{Footnote 150} This has led to confusion and inconsistencies across regions, particularly in reporting requirements and monitoring practices. According to the 2010 Performance Measurement Strategy for RLEMP work plans and final activity reports are submitted to INAC regions.^{Footnote 151} Evidence suggests, however, that performance measurement is largely anecdotal.^{Footnote 152} The re-designed RLEMP has taken these weaknesses into account and will include a performance monitoring, measurement and reporting system as part of RLEMP implementation.^{Footnote 153} This system is expected to be in place by end of fiscal year 2010-11.

Other delivery factors, according to many respondents, include delays in release of funding to the regions, a slow survey process and sporadic and delayed funding in support of surveys. The last point is discussed below in relation to performance.

5.3.1 Results and Outcomes

At the moment, very few First Nations are operating under a fully delegated model of land management. On a global level, figures from Table 3 below reveal that eight percent of all First Nations in the RLEMP, RLAP and 53/60 programs hold devolved status and 27 percent are either operational or fully administering their land. This suggests that at the present time, the majority of First Nations involved in the programs do not have the capacity to fully manage their land. Moreover, many respondents noted that INAC regional workload is increasing and becoming more complex despite attempts to build capacity at the community level. Other respondents identified regional inconsistencies in the degree to which devolved authority has been successful.

The extent to which responsibilities have been delegated to the First Nations that are operational under RLEMP is unclear without the implementation of RLEMP joint management agreements between the Department and First Nations – a key source of information to answer this question.

Access and reach of the devolution/capacity-building programs
It should also be noted that RLEMP provides the opportunity for First Nations women to become involved in land management. Although the program did not collect gender-sensitive data during the period of evaluation, the performance measurement strategy for RLEMP claims that women have made up approximately 50 percent of the student body since the inception of the program.^{Footnote 154}

Table 3 below shows the number of First Nations involved in the RLAP, RLEMP and 53/60 programs.^{Footnote 155} These numbers indicate that of the 74 First Nations involved in RLEMP, eleven are operational. Including the two First Nations operating under 53/60, this means that 2.3 percent of the total First Nations in Canada currently hold delegated status.^{Footnote 156} Despite this small number, the future trend looks promising. According to program managers, the admittance of 61 First Nations is pending.^{Footnote 157} The total number of First Nations involved in all programs, including FNLMI is 33 percent. Respondents expect that over the next four years, the number of First Nations operational under RLEMP will increase by 20 each year.

Nevertheless, the fact that 68 percent of all First Nations in Canada either require full land management support from INAC or conduct land management activities outside of the Indian Act presents some issues that need to be taken into consideration for future program design:

• Program reach. The percentage of First Nations in each region with access to the programs may not adequately represent the total number of First Nations that desire and are eligible for developmental or delegated opportunities.
• Alternatives. There may be other types of land management support models that could be implemented to engage First Nations with lesser capacity (e.g. continued support through NALMA and through tribal councils). One suggestion that emerged from the interviews was to develop a land management support system that addresses the needs of three capacity levels: high, medium and low. This approach is in line with the Economic Development Branch and the Community Development Framework.

Source: First Nations and Inuit Transfer Payment System 2005-2010, updated June 8, 2010

Many respondents suggested that programs have helped to improve capacity in land management. First Nations have greater control, enhanced decision-making capabilities and the opportunity to develop lands and resources for socio-economic benefit. There is also some evidence from the key informant interviews that First Nations with certified land managers are more efficient and proficient in their land transactions than those that have not received RLEMP training. As certified land managers gain experience, their confidence grows and they are better able to advise their colleagues and other First Nations on land management matters.

However, almost all respondents identified improvements that could be made to enhance First Nation land management capabilities. In particular, land use planning and environmental management, though enhanced in the recent re-design of the RLEMP, have not been devoted sufficient attention in training programs. The same holds true for services offered through the Department. There is an absence of clear land use policies integrating economic development, housing, capital infrastructure and other INAC initiatives. Findings from the key informant interviews reveal that some First Nations under RLEMP do not perform or report land transactions. This may be because the land managers lack confidence in their land management abilities or because they are not supported by their Chief and Council to work within the Indian Act. Several other respondents claim that proper quality control measures in legal descriptions for the creation/registration of legal interests are not in place. As mentioned in the limitations section above, data is not available from the ILRS to conduct a comparison of transaction registration by RLEMP First Nations and INAC land managers to further investigate this issue.

First Nation Land Management Capacity in the Future
An analysis of RLEMP resources reveals some uncertainty as to whether the program will be able to emerge from the pilot stage to become increasingly accessible to First Nations. From 2005/2006 to 2008/2009, RLEMP contributions funding was an average of $9.3 million per year. Only 35 percent of the funding allocated in 2009/2010 was spent under the RLEMP. Furthermore, the funding allocated on average, for the next four years, including 2009/2010, is $6.65 million per year, representing a decrease of $28.5 percent. This indicates that the RLEMP funding available to eligible recipients in 2009/2010 and coming years will be limited, which may in turn limit enrolment. In the medium to long term, this could limit the number of First Nations that will have the capacity to properly manage their land.

Source: Treasury Board Submission #835286
* Designates funding as ongoing

Land Management capacity-building and devolution programs
The evaluation found a number of issues related to land administration support. Many of these could be addressed through design and delivery improvements. Many respondents noted that regions lack adequate financial and human resources to enable support. Other shortcomings include the lack of one-on-one support from INAC and the lack of strategies for dealing with turnover (and the associated loss of corporate knowledge) among band staff and council. According to some respondents, limited funding does not support the breadth of responsibilities devolved to First Nation land managers.

There was a mixed response from First Nation land managers on the usefulness and ease of use of the tools provided under RLEMP for land management. About a third state that they are excellent, easy to use and effective. About a third find them hard to understand while the remaining third had not yet received the tool-kit at the time of the key informant interviews. Respondents suggested that access to GPS tools would improve land management capabilities and alleviate dependency on INAC resources. It is expected that the forthcoming NALMA ToolKit for First Nation land managers will present "how to" templates to clarify processes and develop standard approaches to various land management activities.

Evidence points to the fact that First Nation land managers are not equipped with the necessary training, tools and ongoing support to effectively manage the environment and develop community plans. Several areas that could use improvement are training and template development in land use planning and environmental by-laws and zoning, as well as ongoing support in monitoring and compliance. With that said, the case studies that investigated RLEMP's environmental management training in depth found that the Community Environmental Sustainability Plan (CESP) required as a capstone project was indeed useful and applicable to community environmental planning. In order for this to make an impact on community environmental planning, the First Nation must implement the CESP, for instance through the development of a land use plan and by-laws.

Many informants across groups claimed that that First Nation land managers still rely (in some cases heavily) upon INAC regional staff to assist and/or take the lead on many land administration activities.

INAC land administration
Many key informant interviews and a case study on the capacity of smaller First Nations to undertake land management found that INAC's regional lands staff are reactive in their delivery of these services, not proactive. INAC responds to requests from bands rather than initiating activity. However, many smaller First Nations lack the capacity to engage in land use planning and land management and thus require outside support to initiate land-based transactions. The result is that only those First Nations that have the internal land management capacity engage with the regional lands unit, leaving most of the smaller First Nations without capacity, on their own and without support. In addition, several respondents claimed that INAC does not have the capacity or expertise to offer support in specialized projects, such as mineral interests in potash or uranium.

One important finding that was heard from many key informants from all relevant groups was the active and helpful role that NALMA and Regional Land Associations are playing in educating and assisting First Nations. One promising model for reducing the burden on INAC staff and delivering better and more responsive services to First Nations was investigated through a case study on the role that a tribal council plays in educating, increasing capacity and providing other support to the First Nations served by the council. The benefits of this model are discussed in greater detail in the Best Practices section below.

Land surveys
A review of contribution funding revealed that of the total $2 million (29 percent of the total survey spending) spent on surveys over the evaluation period, 65 percent supported surveys in the Maritime region. Eighteen percent was allocated to survey activity in Ontario, leaving the remaining 17 percent ($340,000) for the rest of the regions. No contribution funding was available for fiscal years 2007/08 and 2009/10.^{Footnote 159}

Over and above contribution amounts, INAC transferred $4.9 million (71 percent of total survey spending) in departmental operational funds to NRCan.^{Footnote 160} The funding comes from INAC's budget late in the fiscal year and varies according to leftover operation and maintenance (O&M) funds available. Key informants claimed that this approach severely limits the ability of NRCan to plan for survey activities as it does not provide adequate time to plan and execute the many steps involved in surveying reserve land. This, combined with budgetary cuts to surveys for individual land holdings in 2005 and internal INAC allocation survey funding in 2008 and 2009, has made it very difficult for regions to determine which survey requests will be addressed and when. Moreover, this approach has limited First Nation registration activity due to the current policy requiring legal survey plans for the registration of many instruments.

Table 5 below further reveals that survey demand is not being met. On average, over the evaluation period, 33 percent of the value of surveys requested were completed, leaving an average backlog of 67 percent.

Source: NRCan

Based on these findings, the evaluation cannot conclude that survey funding is being implemented efficiently to meet the needs of First Nations. As the foundation for land management, this directly impacts the ability of the land survey program to provide adequate support for other activities. Nevertheless, the case study that investigated land surveys found that support provided through the program contributed to good planning and decision making through internal surveys and GIS systems. Respondents noted that NRCan was responsive in its survey support and knowledgeable of private sector needs relating to development projects. It is important to note that increased support through the Land Surveys Program will only have an impact if improvements are made to the land registry.

Commercial leasing
Contributions to First Nations for commercial leasing through the authority totalled $2,367,091 over the evaluation period. British Columbia region was the largest benefactor of this funding, receiving some 43 percent of the total national amount. Likewise, the Authority funded lease activity of 27 First Nations in British Columbia, representing 42 percent of the national total of 64 First Nations. Another noteworthy finding was that 21 percent of the funding was spent in the National Capital Region, leaving 36 percent for the remaining seven regions that received funding.^{Footnote 161} Breakdown of INAC regional and DoJ A-base funding related to supporting commercial leasing activities was not available.

Chart 1 below shows the trend in lease and sub lease activity over the five-year period.^{Footnote 162} This time series reveals a downward trend in the number of new registrations of leases and subleases over the past five years. Data on the total number of requests for support in creating leases would have revealed whether INAC's involvement in this area is meeting First Nations' needs. Over the five-year evaluation period, lease revenue totalled $ 1.4 billion. There appears to be no trend over this period.

The extent to which First Nations are managing their land and environment as a result of the programs varies across regions; however, substantial evidence emerged from the key informant interviews that the First Nations that have certified land managers under RLEMP are involved across a range of land management activities, from managing surrendered land transactions and approving the allotment of individual land holdings, to monitoring of leases, license and permits on reserve, reviewing and approving land transactions among band members on reserve developing land use plans and by-laws and providing advisory services.

Awareness of environmental issues and processes is varied across regions. Some First Nations work within provincial laws to ensure adequate environmental provisions, particularly those First Nations pursuing large scale commercial or industrial developments. However, some First Nations operate primarily on buckshee leases and thus, outside provincial and federal laws. Through the case study on environmental management, the evaluation found that inadequate capacity, tools and limited knowledge of environmental laws contribute to non-compliance. Program managers and NALMA indicated that the principles were integrated in the RLEMP curriculum through, for instance, land stewardship and comprehensive sustainable community planning.

The ILRS is used to varying degrees. While some respondents reported that registry system was straightforward, others noted difficulty in accessing or manipulating the system and suggested that technical support from INAC would be necessary to improve usage or avoid error. In 2008/09, the Lands Branch conducted an analysis of transactions registered in ILRS. It was found that over 80 percent of land registry activities were linked to just over 10 percent of First Nations. Between 2004/05 and 2008/09, 77 of the total 615 First Nations in Canada had 80 percent of their transactions registered in the system. This and other evidence led a recent study to conclude that un-registered land transactions are more than equal to those recorded in ILRS with trends showing a decrease in registrations. For instance, this study estimates that at least60 percent of all residential allotments on reserve are custom-based and not registered in ILRS.^{Footnote 164}

One final indicator of the extent to which RLEMP communities are managing their land to meet their needs are examples of how community input is being incorporated into decision making at the band-level, including the following:

• involvement in a comprehensive community plan;
• traditional land holding dispute resolution through membership meetings;
• election of members with experience in land issues onto land-use committees, providing advisory services to the land manager;
• consultation with elders for building cultural norms into land code development; and
• land use planning based on cultural significance, such as archaeological importance.

Land Management capacity-building and devolution programs
There is limited evidence confirming whether the RLEMP, RLAP and 53/60 programs have contributed to improved quality of life, mainly because it was difficult to establish attribution between the program and this long-term outcome as the program is only just evolving from its pilot stage. When available in 2011, data from the Well-being Index will allow for a comparison with 2006 data to better assess whether First Nations are benefiting from the lands programs.

INAC Land Administration
Many key informants claim that INAC's land administration and registration programs do not contribute to economic development, self-reliance or sustainable development due to a number of constraints, including insufficient resources, a patch-work of policies, legacy problems and changing economic and judicial environments. Without guarantee to title, the registry system does not contribute to economic development either. Some respondents suggested that a total renovation and modernization of lands policies on reserve would help to bring them into line with provincial regimes, thereby facilitating development.

Nevertheless, findings from one case study underscore that a strong and complete survey fabric on one reserve unlocked the economic development potential of that First Nation. This is supported by an analysis conducted by the Surveyor General Branch of NRCan, which found a statistically significant relationship between internal parcel fabric on reserve and Community Well-being Index scores.^{Footnote 165} Through defining clear parcels of land for commercial leasing, surveys have contributed to a dependable and long-term stream of lease revenues. This has led to taxation and utility revenues through, for instance, the provision of water supply and sewage treatment services by band operated utilities. A clear understanding of internal allotments has further contributed to quality of life on this reserve by facilitating emergency management services and enabling home insurance.

5.3.2 Best Practices / Lessons Learned

Best Practices

Integrated land use planning. The case study on environmental management and land use planning found that the development of an integrated land use plan is essential to understand the relationship between economics and the environment and to ensure sustainability.

Active participation of community members in surveys. The case study on surveys found that the First Nation involved community members throughout the survey process to avoid misunderstandings related to land possession. This included gathering input from community members during the survey and preparing a letter describing the survey results.

Surveying services. The same case study found that a key factor in NRCan and INAC's effective and timely provision of survey services is selecting the right surveyor, for instance, one that has built a relationship with NRCan and knows the lay of the land on a particular reserve. This First Nation requests that surveyors apply provincial standards to increase the "comfort level" of private and commercial leases.

Planning for the creation of legal interests. Case study findings from one successful First Nation engaged in multiple commercial leases reveal that it is useful to focus on a limited and manageable number of leasing projects to better control the timely implementation of these projects to meet the business needs of investors and leasees.

Aboriginal community support for land management. Some Aboriginal communities and organizations are sharing their knowledge and expertise with those of lesser capacity. One example researched in greater detail through a case study is a tribal council that supports members in a number of areas, including support in the creation of community maps and in the ATR process, including the designation vote, setting the terms of leases, coordination of survey work with NRCan and ESAs. This model was identified as a key best practice because it provides a viable option to both provide land management services and, at the same time, build land management capacity. Several benefits of this model include the following:

• identifying opportunities for ATRs for member bands;
• working with member communities to identify economic development opportunities;
• establishing a centralized repository for lands information and corporate memory to provide continuity and stability in the face of changing First Nation leadership;
• providing access to a pool of expertise as needed including lands advisors, GIS technology, legal counsel, natural resource technicians and others;
• developing and providing easily accessible and comprehensive information and data to support informed governance decisions; and
• holding workshops and other forms of information sharing to increase understanding of the connection between land base, quality of life and self-reliance.

Lessons Learned
Consistency and continuity of First Nation Land Management Staff. Most of the case studies found that continuity of experienced First Nation land management staff with knowledge of the specific issues related to a particular First Nation community was a significant factor in the success of land and environment management. The Saskatchewan TLE case study found that continuity of staff was vital to sustaining a consistent vision for the project and maintaining strong relationships with third parties and stakeholders. Management of highly technical environmental issues in another case study was lost with the departure of a long serving land manager. Continuity of land management staff in yet another case example enabled cost-effective land use planning through expertise and experience in processes and fostered relationships with lease holders.

Ongoing training. While there is evidence that RLEMP is preparing First Nations to manage reserve land, a complex and changing development environment may require ongoing training opportunities for certified First Nation land managers. These could take the form of practical job shadowing/mentoring opportunities (with INAC staff or Regional Land Associations) as well as on-line platforms linking certified First Nation land managers.

5.3.3 Unintended Outcomes

INAC Land Administration Activities
Buckshee leasing
The high incidence of buckshee leasing on reserve is perhaps the most noteworthy unintended outcome of the significant transaction costs associated with administering land under the Indian Act regime, the dependency that the Indian Act fosters and the unresponsiveness of INAC land administration services. This topic arose throughout the evaluation not merely as an unintended outcome, but as a serious issue that puts into question the legitimacy of the Indian Act. According to INAC land managers, all regions experienced some degree of buckshee leasing with one respondent claiming that buckshee leases represent 70 percent of land transactions in a single region. On a national level, informal tenure systems and buckshee leases raise several policy questions. For instance, given the inherent risk of these agreements, INAC is faced with the question of whether to allocate economic development funds in situations where Indian Act land provisions are not being followed.

The evaluation investigated this issue in greater depth through a case study in a community where non-Indian Act land transactions are extensively practiced. Fundamentally, the community believed it has an inherent right to make their own decisions relating to land management. The informal tenure system in place in this community has enabled it to achieve economic self-reliance and has increased quality of life for its members. In part, the community attributes this success to the strong survey and land use planning practices in place. More importantly, it is using innovative strategies to build financial and economic development partnerships. For instance, despite the fact that the community does not have legally recognized land transactions in place, its steady and reliable income gives assurance to lending institutions.

Although this particular community has realized great success working outside of the Indian Act, a number of key informants warned that without proper land planning and administration and given the significant risks of buckshee leasing, many communities operating under informal tenure systems are placing themselves and other stakeholders at high risk.

Surveys.The absence of a comprehensive survey program has created a number of issues including overlapping internal reserve boundaries and a lack of economic and community development stemming from the absence of property rights infrastructure on reserve. Since the majority of survey requests are tied to the housing and capital infrastructure programs, which requires an adequate description of the land before a decision is made to allocate housing, a lack of surveys limits the potential for housing development on reserve. Risk to the Crown as lessor of Indian lands is growing due to the inability to fully identify the extent and location of existing land interests when granting new leases or permits.

RLEMP. First Nation land managers who have received the RLEMP certification are in high demand off reserve, which has led to high turnover among First Nation land managers. One suggestion for mitigating First Nation land manager turnover is to adopt an ISO-type model that certifies that the community, instead of individual land managers, has in place land management processes and tools that meet the RLEMP standard. One positive unintended outcome of the program is that through the RLEMP training, First Nations have established a relationship with other First Nations across Canada and are networking and sharing information on land management issues. This networking has led to First Nations' partnering on land and economic development projects.

5.3.4 Efficiency

There is evidence that RLEMP is an efficient alternative to other forms of land administration under the Indian Act. Some respondents reported that working with First Nations who have certified land managers is much more efficient than working with First Nations outside of the capacity-building/devolution programs that still depend upon INAC staff for their land administration needs. FNLM may be an even more efficient alternative. The majority of First Nation respondents in a recent study claimed that land management processes are faster under FNLMA when compared with those under the Indian Act and all First Nations declared that they would not consider returning to operations under the Indian Act. Greater efficiency in land management processes, in turn, was cited as the key factor contributing to the attraction of business activity on reserve lands.^{Footnote 166}

Key informant interviewee evidence suggests that the Lands Branch's efficiency could be improved by developing policies, frameworks and tools that better meet modern land management needs. Improving communication between the Lands Branch and the Economic Development Branch with activities merged at the working level (e.g. economic development plans merged with community land use plans) is another possible way to achieve efficiency.

During a case study, respondents from one First Nation with high land management capacity made the point that INAC should vary its approach to land administration support based on the needs of First Nations. For instance, high-capacity First Nations require more of a service-culture approach to stay abreast of economic development opportunities.

This same idea is discussed at length in an audit of Māori land administration in New Zealand. To better support land administration in a complex legal and historical environment, not wholly unlike the Indian Act regime, the Māori Land Court has established a trustee service independent of the Crown to manage Māori land on behalf of its owners. The service operates on a fully subsidized fee-for-service model and trustees operate in a competitive environment. If clients are not satisfied with services, they may choose another trustee. This model does not support administration of "uneconomic land" – land that cannot support the trustee administration costs (e.g. non lease-generating). Land owners must either administer these lands themselves, or leave them without administration. A key benefit of this model is that trustees search for innovative ways to identify opportunities for development on their clients' land. They take a proactive interest in land administration to build and retain a clientele base.^{Footnote 167}

5.3.5 Cost-Effectiveness

Land management capacity-building and devolution programs
A comparison of the funding allocated to First Nations to enable management of their own lands with ongoing INAC land administration support through departmental operational funding suggests that funding appears to be allocated proportionally based on the services and programs being delivered. As discussed above, a total of $46 million (38 percent of total funding of $122 million) was contributed to the 32 percent of First Nations involved in the RLEMP, RLAP and 54/60 programs, while $76 million (62 percent) was spent land administration support activities through departmental A-base funding.^{Footnote 168}

Cost-effectiveness does not yet appear to have been achieved. Few First Nationsare operational under RLEMP, RLAP and 53/60 and most require ongoing support from the Department.^{Footnote 169} Further, many of the remaining 68 percent of First Nations not involved in INAC's land administration/management programs appear to be conducting land administration activities outside of the Indian Act, making it difficult to determine the full extent to which these First Nations are benefiting from INAC's support.

A recent cost-benefit analysis of the FNLM program sheds light on the cost-effectiveness of building capacity in First Nation communities to manage their own land, suggesting that greater First Nation involvement in land management (which, may be achieved through a higher percentage of operational RLEMP First Nations) increases self-reliance and lowers costs to the Government of Canada.^{Footnote 170}

INAC Land Administration
Evidence from both INAC and NRCan officials suggests that better funding arrangementsbetween the two departments could improve the ability to plan and deliverservices and to manage risks. In the Yukon and Northwest Territories fundingis profiled over five years, which gives NRCan greater predictability and lowers costs.

One of the case studies conducted for this evaluation found that the involvement of tribal councils in local-level land management support and capacity-building is an effective model for relieving INAC's role. INAC's support to NALMA and regional land management associations, similarly, achieves cost-effectiveness.

Evidence suggests that the recent software improvements to ILRS will only be cost-effective if the registry system itself is improved to provide certainty of title.