Evaluation of the Administration of Reserve Land Sub-program (PAA# 3.2.3)

1.1 Evaluation Overview

In accordance with the 2009 Treasury Board Secretariat's Policy on Evaluation to evaluate program spending every five years, the Evaluation, Performance Measurement and Review Branch (EPMRB) of AANDC has conducted an evaluation of the federal Administration of Reserve Land.

The overall purpose of the evaluation is to provide reliable evaluation evidence that will be used to support policy and program improvement and, where required, expenditure management, decision making and public reporting.

The evaluation of the Administration of Reserve Land addresses the Policy on Evaluation's Core Issues of relevance and performance (including cost-effectiveness and cost-efficiency). Additionally, the evaluation considers issues related to the program's design and delivery and considers best practices and lessons learned.

The period under evaluation is fiscal year 2009-10 to fiscal year 2013-14 but was guided by the Performance Measurement Strategy for the program.

Terms of Reference for the evaluation were approved in June 2015 by AANDC's Evaluation Performance Measurement and Review Committee. The evaluation was undertaken by EPMRB between June 2014 and September 2015 with the assistance of a consulting firm, Prairie Research Associates Inc.

1.2 Administration of Reserve Land Profile

This section of the report includes a brief description of the Administration of Reserve Land sub-program, including its activities, expected outcomes, management structure, and resources associated with the sub-program.^{Footnote 12} This section also presents the linkages between the Administration of Reserve Land sub-program and the Community Development program area under which Administration of Reserve Land is currently situated in the Department's Program Alignment Architecture.

1.2.2 Outcomes and Expected Results

A Performance Measurement Strategy for Administration of Reserve Land was approved in March 20, 2014, by the AANDC Evaluation, Performance Measurement and Review Committee.

The logic model of the Administration of Reserve Land sub-program is outlined in the figure below:

Text alternative for Figure 1 Logic Model for 3.2.3 Administration of Reserve Lands

Figure 1 is a logic model flow chart illustrating the process of administration of reserve lands. Flowing from top to bottom, the chart is composed of four levels of the process, which flow from Activities (the top level), to Outputs (the second level), to Immediate Outcomes (the third level) and finally arriving at Sub-Program Expected Results (PMF) (the final and bottom level.)

The first activity, Facilitate, guide and support Additions to Reserve, flows down to the output of Additions to Reserves, continues to the immediate outcome of Increased clarity and size of reserve land base, and finally arriving at the sub-program expected result of First Nations benefit from the administration of reserve land.

The second activity, Define land boundaries, flows down to the output of Surveys, which continues to the immediate outcome of Increased clarity and size of reserve land base, and finally arriving at the sub-program expected result of First Nations benefit from the administration of reserve land.

The third activity, Support the creation, renewal monitoring, administration and registration of legal interests, flows down to output of Leases, permits and other legal interests, which continues to the immediate outcome of Indian moneys, receipts and opportunities for revenue generation, and finally arriving at the sub-program expected result of First Nations benefit from the administration of reserve land.

Activities involving supporting the Additions to Reserve process, defining land boundaries and supporting the creation, renewal, monitoring, administration and registration of legal interest results in the following immediate outcomes for the sub-program:

• Increased clarity and size of reserve land base; and
• Indian moneys, receipts and opportunities for revenue generation.

The expected results of the Administration of Reserve Land are:

• First Nations benefit from the Administration of Reserve Land.

Further, this sub-program is expected to contribute to the Community Development Program's expected results, which are:

• Enhanced conditions for First Nation and Inuit communities to pursue greater independence/self-sufficiency and sustainable economic development are in place; and
• First Nation land is available for economic development.

In order to demonstrate performance, as part of the Performance Measurement Strategy, the program tracks the number of Additions to Reserves and total acres added; the number of new leases, permits and other instruments being registered; the value of money collected by Indian Oil and Gas Canada (IOGC); the value of funds collected from legal instruments; and the number of surveys created. (See Appendix B: Evaluation Matrix for indicators).

2.1 Evaluation Scope and Timing

The evaluation examined Administration of Reserve Land activities undertaken and outcomes achieved between fiscal year 2009-2010 and fiscal year 2013-2014. This includes program design and delivery changes in 2012, whereby registration of land instruments and some ATR responsibilities were decentralized from Headquarters to the regions and four Regional Support Centres were created to assist regions in their work related to registration of land transactions, designations, and Additions to Reserve.

The evaluation focuses on AANDC commitments as per the program's logic model and examines the relevance, effectiveness, efficiency and economy and design and delivery of program activities, outputs and outcomes.

Terms of Reference were approved by AANDC's Evaluation, Performance Measurement and Review Committee in June 2014. Field work was conducted between March and June 2015. The Terms of Reference outline the scope, methodology, key issues and resources for the evaluation.

The evaluation was conducted between June 2014 and September 2015.

It should be noted that Band Moneys, while part of the scope of this evaluation, was not a main focus of this evaluation, given that this component was recently evaluated as part of an evaluation of the Indian Moneys, Estates and Treaty Annuities^{Footnote 14}, as well as having only partial jurisdiction falling under the Lands and Economic Development Sector.

This evaluation was considered, and further, several key informant interviews were undertaken, in order to consider this aspect in the overall evaluation of Administration of Reserve Lands.

2.2 Evaluation Issues and Questions

For the purpose of this evaluation, the outcome statements in the logic model of the 2014 Performance Measurement Strategy, and associated indicators, where available, were used to measure performance.

As per the Treasury Board Directive on the Evaluation Function and the approved Terms of Reference and program's logic model, the evaluation issues focussed on the following core evaluation issues and questions were addressed:

2.3 Relevant Evaluations and Reviews

The following recent evaluations and reviews of activities pertaining to the Administration of Reserve Land sub-program were considered in the scoping of this evaluation and to inform the evaluation issues and methodology:

• Impact Evaluation of Contributions to Indian Bands for Land Management on Reserve, September 2010;
• Summative Evaluation of the First Nations Oil and Gas and Moneys Management Act Implementation, 2010; and
• Evaluation of Indian Moneys, Estates and Treaty Annuities, April 2013.

The following reviews also contributed to informing the evaluation:

• Report of the Standing Senate Committee on Aboriginal Peoples. Additions to Reserve: Expediting the Process, November 2012;
• Audit of the Additions to Reserve Process, February 2013;
• Audit of Southern Oil and Gas, September 2013; and
• Report of the Auditor General of Canada on Land Management and Environmental Protection on Reserves, Fall 2009.

2.4 Evaluation Methodology

Additions to Reserve

There is no statutory requirement to add land to reserves. However, the federal government has authority for reserve lands under the Indian Act, and so once land is transferred by another government department, a province, municipality or third party to be added to reserve following a Ministerial Order or Order in Council, its management falls under the responsibility of the federal government. Furthermore, the Government does have an obligation to add land to reserves when ATR fall under the Legal Obligations category, as ATRs in this category are a result of treaty settlements, specific claim settlement agreements or court decisions. In contrast, under non-Treaty Land Entitlement (TLE) categories, there is no legal obligation to add land to reserves and, as a result, this is typically done in light of other considerations specific to a First Nation.

Land surveys

As properly surveyed lands are required for ATR and land transactions, land surveys are a necessary part of the program. Approving land surveys is a federal responsibilit^{Footnote 16}: Section 24 of the Canada Lands Surveys Act clarifies that reserve land falls under the responsibility of the Surveyor General of Canada when surveying is required. Section 29 outlines surveying for external boundaries of a reserve (known as official plans) and Section 31 outlines surveying for internal division of land (known as administrative plans). The Surveyor General will issue instructions to a private federally-certified land surveyor to conduct the land surveys.

Creation of land instruments

The land tenure system under the Indian Act differs significantly from other Canadian jurisdictions. On-reserve, title is held by the Crown on behalf of First Nations as per Section 18 of the Indian Act and thus, AANDC has legislative duties to exercise in this area on behalf of the Minister. As such, the Indian Act contains a series of administrative clauses that govern the following types of land transactions, which fall under two broad categories of land holdings: communal holdings (held and administered by the Band) and individual holdings (allocated by Council, with approval by the Minister, to individual band members):

• Certificates of Possession – Certificates of Possession allow for indeterminate and exclusive use and occupation of the land under conditions set by the Indian Act.^{Footnote 17} Governed primarily by sections 22 to 27 of the Indian Act, Certificates of Possession are granted formally through a Band Council Resolution, which is then approved by the Minister.
• Certificates of Occupation - Certificates of Occupation are similar in nature to Certificates of Possession in that they are considered lawful possession but are often temporary in nature.
• Designated Lands - Communally-held lands are subject to restrictions such as the inability to be used by a third party. However, bands can choose to undergo a Land Designation as per Section 38(2) of the Indian Act. Under a Designation a band chooses to surrender some of its rights back to the Crown and to designate the land for a specific purpose (commercial, industrial, residential, etc.). This can allow land to be leased to non-band members and for leasehold interests to be mortgaged, which literature reviewed suggests is the option most preferred by external business stakeholders.^{Footnote 18}
• Leases – Land can be leased to band members or to third parties if it has first been designated or the transaction has been specifically approved of by the Minister. 'Locatee' leases refer to the leasing of land held under Certificates of Possession.
• Permits - Permits for a variety of activities, such as extracting gravel or laying phone lines, are issued under several sections of the Indian Act. As permitting can be quite complex, mining and timber activities are governed by specific regulations.
• Easements can occur to permanently transfer land back to the Crown for purposes such as construction of provincial highways, often with financial or land compensation in exchange.

In practice, under this regime, roles and responsibilities of AANDC and First Nations differ depending on the land management status of the First Nation. Under the Indian Act land management regime, AANDC is responsible for creating headleases, permits and other legal instruments on Crown land based on the needs of First Nations.

If First Nations are participating in LEDSP, however, they are expected to draft the legal instruments. These are then submitted to AANDC regional offices for final approval and registration. Under delegated authority or Section 53/60 status (achieved under the former Reserve Land Administration Program), a First Nation is responsible for the process of creating legal instruments.

However, regional key informants have noted that, in practice, LEDSP First Nations often communicate extensively with regional offices to ensure documents are correctly drafted. The Department of Justice is also routinely consulted in cases where legal clarification is needed.

Registration of instruments

All land transactions falling under the categories outlined directly above are registered in the Indian Land Registry System as per sections 21 and 55 of the Indian Act.^{Footnote 19} Until December of 2012, all registrations were done at AANDC Headquarters. Currently, however, when a First Nation operating under the Indian Act land management regime completes a transaction, they submit it to the regional office for registration. It should be noted that unlike provincial registries that operate under 'Torrens' systems, the Indian Land Registry more closely resembles a 'Deeds' system. In other words, whereas provincial systems maintain lists of title and serve to confer and clarify that title, under the Indian Act, all title belongs to the Crown. As a result, the Indian Land Registry System does track transactions based on title, but it does not establish priority or certainty as to transactions that may relate to a title (with the exception of assignment of leases on designated lands).^{Footnote 20}

It should be noted that all of this is in contrast to First Nations under FNLM, where the community is solely responsible for creating the legal instrument, which is then registered at Headquarters.

Some First Nations operate under an alternative land management regime known as customary allotments, whereby band councils choose to allocate lands to individuals without formal registration. While the system does not require departmental approval, this approach to land use and occupation is not legally enforceable in a court of law.^{Footnote 21} Literature reviewed notes that without this legal enforcement, this land cannot be used as collateral, making investment and economic development much more difficult.^{Footnote 22} It is estimated that 80 percent of individual allotments, 50 percent of overall band leasing and 66 percent of short-term land use on-reserves is done via customary allotment or 'buckshee' agreements with non-band members.^{Footnote 23}

Oil and Gas Activities

The Indian Oil and Gas Act outlines the federal responsibility for oil and gas activities on-reserve. Specifically, Section 3 gives the Governor in Council the power to issue leases, permits and licenses for the exploration of oil and gas on Indian Lands, as well as power over disposition of interests and prescribing royalties. Section 4 states that royalties are to be held in trust for First Nations, and Section 6 requires the Minister of AANDC to consult with bands that will be affected by oil and gas activities. Key informants noted that the Department has a fiduciary responsibility to manage oil and gas on behalf of First Nations.

Band Moneys

Indian Moneys are typically generated from legal instruments under the land management system. Indian Moneys are governed by sections 18 (2), 28 (2), 35 (1), 38 (1), 39, 61-69 and 104 of the Indian Act, with sections 61-69 in particular describing how this money is to be managed.^{Footnote 24} Particularly relevant to this evaluation are the sections governing Band Moneys, which are the collective moneys to be spent in the benefit of the band: Sections 66 and 69, which authorize expenditure of Revenue accounts, and Section 64, which authorizes expenditure of capital accounts. Capital moneys are derived from the sale of surrendered lands or the sale of the capital assets of a band. These moneys include royalties, bonus payments and other proceeds from the sale of timber, oil, gas, gravel or any other non-renewable resource. Revenue moneys are defined as all Indian moneys other than capital moneys. They are derived from a variety of sources, which include, but are not limited to, interest earned on band capital and revenue moneys, fines, proceeds from the sale of renewable resources (i.e., crops), leasing activities (i.e., cottages, agricultural purposes, etc.) and rights-of-way. Capital and revenue moneys are held in separate interest-bearing accounts under the name of a particular First Nation. While lands officers ensure money is deposited into capital and revenue accounts, it is generally officers outside of Lands branches who are responsible for approving First Nations' requests for use of funds.

3.2.1 Continued Need for Additions to Reserve – Access to valuable land

The evaluation has found a continued need for the ATR process.

In some cases, this continued need is for purposes of historic redress.^{Footnote 25} Such ATRs typically fall under the Legal Obligations category of Additions to Reserve. Many of these ATRs are distinct because they fall under specific legislation pertaining to Alberta, Saskatchewan and Manitoba that facilitate the process for ATRs stemming from Treaty Land Entitlement Agreements. In some cases, ATRs under this category also arise as a result of court rulings or specific claim settlement agreements. There is a clear continuing need for the Legal Obligations category of ATR in order to provide land owned by the Crown to First Nations. Case study key informants referred to the duty of the Crown and the importance of reconciliation with First Nations when discussing the need to ensure such ATRs are processed in as timely a manner as possible.

There is also a continued need for ATRs related to economic opportunities as well as community and social needs. The previous evaluation of land management activities noted that between Confederation and 1996, the collective Aboriginal land base shrunk by two thirds; this is in contrast to the growth of the Aboriginal population by 45 percent during the same period.^{Footnote 26} Consequently, a growing population often requires more residential areas and many First Nations are looking for means to leverage economic opportunity as well. For some First Nations, these economic opportunities may lie outside of the reserve and thus require purchasing new land. In its case study work, the evaluation team witnessed the economic benefits First Nations were able to leverage off of land that had been recently added to reserve.

It was also noted, however, that in some cases, it is more beneficial for First Nations to keep fee-simple land and that this does not prevent them from leveraging its economic benefits.

3.2.2 Continued need for Land Surveys – Clarifying land tenure

Surveys provide a necessary support function to other components of the sub-program as they are required for Additions to Reserves, Designations and legal instruments and land transactions (including Certificates of Possession, leases and permits)^{Footnote 27}.

In addition to being required for legal instruments, Additions to Reserves and Designations, surveys help to delineate where assets exist on-reserves and who has claims to these assets, as well as to define the external boundaries of a reserve, preventing encroachment by third parties. Some literature reviewed for the evaluation stresses the importance of providing certainty over title to property,^{Footnote 28} and surveys help to fill this need by defining boundaries on-reserves. While some bands may wish to hold their lands communally, others wish to divide them into individual holdings and so for these bands providing a clarity of parcel fabric that matches the off-reserve context can help provide certainty to businesses and other stakeholders.

While there is a clear need for the survey function, key informants were divided over the extent to which surveys should be funded by AANDC as opposed to being paid for by bands and individuals: Currently, AANDC only provides funding for surveys that have a communal benefit as opposed to for specific lots. One key informant suggested that the rationale behind this prioritization method stems from the concept that surveys such as those for individual land holdings in residential areas would typically be the responsibility of an individual in any other Canadian jurisdiction, and therefore should not be funded when compared with surveys for communal benefit. Other key informants expressed concerns that without funding for internal surveys, parcel fabric will not be adequately maintained, leading to future disputes and a lack of clarity for the purposes of land administration. In some cases, new survey needs also arise as they are required to define the extent of environmental issues or to correct incomplete or incorrect surveys conducted previously. As is further discussed in Section 4.2, demands currently outstrip supply for land surveys: during the evaluation period, the Department was able to accommodate only 40 percent of survey requests, further indicating an ongoing need for the survey function.

3.2.3 Continued need for AANDC's involvement in the creation of legal instruments – Legally sound instruments for economic activity

There is a need for AANDC's involvement in instrument creation to provide legal and administrative support to First Nations, as the Indian Act land regime can be quite complex. As an example, as a precursor to a lease on band land being signed with an outside party, a First Nation must first undertake a Designation whereby the land is surveyed and the community holds a formal vote on the proposed land use; although the Designation process was simplified during the evaluation period (to be discussed in Section 4.1), several key informants and First Nations community representatives noted this process can still take several years, is expensive, and requires significant legal capacity for land descriptions and voting procedures. This is in contrast to the FNLM regime where the complexity of land transactions depends on the land code that each First Nation chooses to adopt.

Several key informants argued that while the Indian Act land management regime may present cumbersome requirements, it also provides the advantage of legal protection to First Nations. As mentioned above, most liability falls on the Crown as the authority behind the instruments. This benefits First Nations that have limited administrative or legal capacity. As such, key informants indicated that a portion of regional offices' work includes maintaining templates for standard documents such as leases and permits to ensure land instruments meet current legal requirements. Alternatively, First Nations would face significantly higher legal fees ensuring the documents were legally sound.

This concept was reinforced by one First Nations land manager who felt their community was better suited to remain under the Department's legal responsibility than to transition to the First Nations Land Management regime. Key informants at Headquarters and in regional offices also noted that, on occasion, AANDC is seen as a neutral third party to assist in land management when there are challenging political divisions within the community.

This legal and administrative support is of need not just to First Nations but to AANDC as well. Given that liability for legal instruments on-reserve falls mostly on the Crown, land administration expertise is important to mitigate the risk of improperly created land instruments and thus increased liability on the part of the Department.

3.2.4 Continued Need for Indian Oil and Gas Canada – Instruments for specialized economic activity

IOGC administers the Indian Oil and Gas Act, under which it manages oil and gas activities for First Nations.The agency undertakes a number of activities in support of First Nations involved in oil and gas development, including the negotiation, issuance and administration of agreements with oil and gas companies; the completion of environmental reviews; the monitoring of oil and gas production and sales prices; the collection of monies such as bonuses, royalties and rents; and the monitoring of legislative and contractual requirements. The agency is staffed with experts in engineering, geology, and legal guidance, which is useful for First Nations communities that do not have the expertise or financial means to acquire guidance in such areas.

Key informants noted that, similarly to the role AANDC plays in creation of other legal instruments, these experts have a central role in providing First Nations with lower capacity the guidance needed to obtain fair agreements for their resources.

3.2.5 Relevance of the Indian Land Registry – Documenting certainty of instruments

While stakeholders' opinions were divided on the value of the Indian Land Registry, there is consensus that cleaning up the data and implementing formal policy or regulations would enhance its credibility.

Section 21 of the Indian Act states that the Department is responsible for maintaining a Reserve Land Register in which to enter details related to "Certificates of Possession, Certificates of Occupation and other transactions respecting lands on-reserve." Section 55 (1) further states that the Department is to maintain a Surrendered and Designated Lands Register, to record details regarding any transaction affecting surrendered or designated lands. Together, these registers are more commonly known as the Indian Land Registry, a system that is thus mandated by law. However, the particulars of the registry are not defined by the Indian Act and the evaluation has found diverging opinions on the value and purpose of the registry in its current form.

In particular, key informants were divided on whether the registry lends legal certainty to instruments in light of the fact that its purpose is not to confer title. Some argue that any legal instrument that is properly designed creates a solid legal foundation. The fact that the federal government is systematically engaged as the title holder also serves to strengthen the legal certainty surrounding such instruments. In that context, the registry serves an important, but distinct purpose by offering a publically available repository of transactions related to surveyed pieces of land. While it may not confer finality over competing claims related to land held by the Crown in cases where two instruments are registered to the same parcel of land, key informants argued it offers critical information that serves multiple purposes for the ongoing planning and management of reserve land.

While recognizing these benefits, others argue that the registry system has the potential to broaden its purpose in order to provide greater economic development opportunities. These stakeholders' views were aligned with the literature that argues that the Indian Act land tenure system suffers from weak property rights that are necessary to facilitate economic development.^{Footnote 29} Proponents of this argument suggest that a Torrens registry system, which confers title, is more effective than a system whose primary purpose is to track transactions based on pre-existing title. They argue that the certainty that accompanies a Torrens system would strengthen the capacity of First Nations to attract investments in their communities by removing any ambiguity as to the existence and priority of legal instruments related to these pieces of land. As such, they argue that the registry should rest on a legislative or regulatory framework that provides finality as to the existence and priority of legal instruments related to specific pieces of reserve land.

While key informants were generally divided between these two views, relatively common ground was found on practical steps to take to strengthen the value of the registry: first, to clean up inconsistencies in its data, which a number of key informants stated are not currently reliable; second, to put in place formal policy or regulations. The program is currently working on ways to improve the registry function, which will be discussed in Section 4.1.

3.2.6 Continued Need for Band Moneys – Collecting Revenue from instruments

The 2013 evaluation of Indian Moneys, Estates and Treaty Annuities found that there is an ongoing need for Band Moneys because there is currently no widespread alternative to access these funds, given the requirements prescribed by the Indian Act.^{Footnote 30} Key informants for this evaluation noted that for some First Nations, this system is preferable over an outside trust as holding accounts with AANDC avoids fees they would have to pay otherwise. If a First Nation does not have enough revenue to make these other fees justifiable, it is preferable to remain with AANDC and as such, there is a continuing need for Band Moneys for some bands.

However, key informants also spoke about the importance of increased autonomy for First Nations, particularly in the area of governance over their moneys. Key informants felt that there is a need to shift toward a model where First Nations have more control over their moneys, such as the First Nations Oil and Gas and Moneys Management Act (FNOGMMA). FNOGMMA is an alternative piece of legislation, enacted on April 1, 2006, that allows First Nations to assume control of their capital and revenue trust moneys held by Canada; currently, there is one First Nation operating under the Moneys Management portion of FNOGMMA. In addition to FNOGMMA, there is a growing alternative Band Moneys design under the Indian Act to be discussed in Section 4.1.

3.2.7 A need for alternatives to the Indian Act

Key informants, case studies and literature review all suggest that providing a variety of land management options, including the Indian Act and the First Nations Land Management Act, best responds to a variety of ongoing needs among First Nations depending on their legal, administrative and economic capacity:

It is important to note that the argument that there is a continuing need for the land tenure system stemming from the Indian Act predominantly comes from key informants and documents review, whereas literature generally advocates either for changes to the current regime or for a move toward greater self-sufficiency under systems such as the First Nations Land Management regime.^{Footnote 31}

Key informants also expressed a range of opinions; for some, there will always be a need for AANDC to support some bands, particularly those with limited land management capacity. Others felt that the Indian Act land management regime is an unsustainable and ineffective system that does not adequately support economic development and constrains First Nations. For these key informants, the Indian Act was only the beginning of a 'continuum' of phases of responsibility, where First Nations could gain increasing land management control through LEDSP, the First Nations Land Management regime and, ultimately, self-government. As such, they felt that more resources should be devoted to transferring land management ability and capacity directly to First Nations as opposed to streamlining Indian Act procedures. The promotion of sectoral self-governance described by these key informants is aligned with findings from the literature that indicate primary efforts should be focused on increasing community control over land management.^{Footnote 32}

According to key informants, the Indian Act and the First Nations Land Management regimes have differing advantages and disadvantages based on their respective regulatory requirements and levels of legal protection offered. A variety of land management tools will best respond to the ongoing need for land management across First Nations in Canada. Therefore, just as there is a continued need for AANDC's involvement in land administration, there is also a continued need for alternatives to the Indian Act land tenure system.

3.2.8 A need for capacity-building alongside alternatives

Multiple sources indicate that the current level of technical land management expertise found in some First Nations is a hindrance to autonomous land management; as such, there is a continued need for capacity-building efforts such as LEDSP, and this need is fundamentally linked to Administration of Reserve Land and the transitionary approach to the First Nations Land Management regime discussed in Section 3.2.7.

In a 2015 survey conducted by National Aboriginal Land Managers' Association in Ontario of 48 land managers, 13 environment officers and 35 economic developments officers, respondents highlighted project management and strategic planning training as an ongoing need; specifically, 78 percent of lands and environment respondents said the most beneficial training they could take would be in land use planning and 62 percent of respondents also identified project management as an area in which they required training. Land managers also identified Geographic Information System technology, surveys and appraisals, and land instruments as the most beneficial and necessary training areas to their work. As two thirds of land managers and economic development officers participating in the survey indicated that there was no training plan in place for their positions, it is likely that there is a lack of skills development in the aforementioned areas. While results of this study cannot be taken as representative of the country or fully definitive in Ontario, the responses to the survey suggest an ongoing need for support in these areas.

Several key informants stressed the importance of AANDC's capacity-building role in reserve land management. It was suggested that capacity could be built by AANDC through greater funding and resources to assist in hiring land and environmental managers. Key informants indicated that the department's focus should not be on communities that can internally build capacity, but on communities that are unable to build capacity without AANDC's support. It should be recognized that although capacity building activities are officially a component of LEDSP (3.2.1), they still have an impact on, and are thus relevant to discussion of, 3.2.3.

4.1.1 The program has undertaken significant work during the evaluation period to improve its design and delivery in response to the Federal Framework for Aboriginal Economic Development as well as previous evaluations, audits and Parliamentary reports.

The Federal Framework, as discussed above, calls for the modernization of the land management regime and also recognizes the importance of Additions to Reserve moving forward. The program has focused both on Additions to Reserve and on the land transactions processes during the period under review.

4.2.1 Additions to Reserve

The Treaty Land Entitlement Model

Additions to Reserve data demonstrate that the Treaty Land Entitlement model facilitates Additions to Reserve well: there were 197 Additions to Reserve (more than 350,000 acres of land) during the period covered by the evaluation, 120 of which were processed under the Treaty Land Entitlement category. Best practices under the Treaty Land Entitlement category of Addition to Reserve include pre-reserve designations of land to be added to reserve and ministerial rather than Order in Council approval.

Key informants, case study participants and document review all confirm that the TLE model expedites the ATR process.^{Footnote 51} This is corroborated by program data, which show that of the 197 ATRs processed during the evaluation period, 120 (61 percent) were TLE ATRs. The TLE model applies to the legal obligations category of ATR specifically under unique claims settlement legislation in Alberta, Saskatchewan and Manitoba: the Manitoba Claim Settlements Implementation Act and the Claim Settlements (Alberta and Saskatchewan) Implementation Act. ATRs processed under the TLE model are distinct in two ways:

First, communities are allowed to conduct votes on designations of the land before it is added to reserve.^{Footnote 52} Key informants note that the pre-reserve designation approach can facilitate the process because a common challenge for ATRs is the wariness of third parties regarding their interest in the land once it falls under the reserve framework, given the Indian Act's unique rules and its leasing restrictions. These key informants suggest that having the land pre-designated for commercial or industrial interests, however, helps demonstrate to third parties that there is consent from the band for their activities to continue when the land is added to the reserve.

Second, the claims settlement legislation allows for an ATR to be approved via Ministerial Order rather than via an Order in Council, which is required in all other ATR cases.^{Footnote 53} Several key informants suggested that ministerial approval tends to be a quicker process than Order in Council approval as there is typically an extra stage of analysis applied by central agencies regarding the net benefit of the ATR. This is in contrast to legal obligation ATRs, which are not subject to this analysis given that they have already deemed to be a legal obligation.

Case study key informants noted that the TLE model generally makes the ATR process faster, and this is corroborated by program administrative data. As Figure 3 demonstrates, significantly more TLE ATRs were processed than Order in Council ATRs:

Text alternative for Figure 3 Distribution of ATR between Order in Council and Minister's Order (2009-2010 to 2013-2014)

This bar graph shows the breakdown of processed Additions to Reserve in the categories of Order in Council and Minister's Order from 2009-10 to 2013-14. One axis lists "Manitoba", "Saskatchewan" and "All regions." The other axis has a scale increasing in increments of 20 for the number of Additions to Reserve processed.

The bar for Manitoba shows that during this period, 2 Order in Council Additions and 23 Minister's Order Additions were processed. The bar for Saskatchewan shows that 15 Order in Council Additions and 97 Minister's Order Additions were processed. The bar for All regions shows that 77 Order in Council Additions and 120 Minister's Order Additions were processed.

Sixty-one percent of the ATRs approved during this period were completed by Ministerial Order. Moreover, Figure 3 indicates that Saskatchewan and Manitoba, where the special legislation applies, are the provinces that have had the highest volume of ATRs processed during the evaluation period. Saskatchewan had a total of 112 of the 197 ATRs approved during the evaluation period. In terms of total acres, Manitoba First Nations received the most: 147,981, representing 42 percent of the total land added to reserve.^{Footnote 54}

One notable exception to the trend of most ATRs processed being TLE ATRs is that during the evaluation period, 34 non-TLE ATRs were completed in British Columbia. Of these, 19 were completed in 2013-14, following the establishment of the regional support centre. However, while this figure may at first appear to be a result of the support centre's influence, regional key informants note that the reason for a higher level of processing in that fiscal year is because First Nations placed additional emphasis on having ATRs completed, particularly those for specific claims; the regional office responded by devoting more time and effort to ATR files relative to other work. As such, data combined with key informant responses suggest that when additional resources are devoted to the process, non-TLE ATRs can also be expedited. Nonetheless, the overall data suggest that it is easier to have a TLE ATR processed using the same level of resources as a non-TLE ATR.

Thus, data, documents and key informants demonstrate that the TLE model has been very successful at expediting the Additions to Reserve process. The House of Commons report from 2014 suggested including key elements of the TLE model into future ATR policies or legislation.^{Footnote 55}

4.2.2 Performance - Land Surveys

Given that clearly-defined land parcels are a requirement for land activity on reserve, key informants and case study participants indicate that limited access to land surveys creates a barrier to community land-related needs. However, innovative approaches to survey work such as Geographic Information System technology, emphasis on land-use planning and capacity-building to conduct surveys locally could make surveys more accessible.

The land survey resource gap

There are two types of Canada lands surveys: Official plans are for reserve boundaries and are required for lands work such as Additions to Reserve and Section 35 transfers. As per the 2014 agreement between AANDC and Natural Resources Canada, these are approved by the regional offices instead of Headquarters. Administrative plans, in contrast, are for internal boundaries and apply to land instruments such as leases, Certificates of Possession and Occupation, and Designations. These can now be approved at the band level.

Currently, the Department maintains some funding for land surveys deemed to support economic development (such as for Designations, Section 35 surrenders and ATRs), and $750,000 of this funding is administered through the Administration of Reserve Land sub-program by the National Aboriginal Land Managers' Association. Survey funding can also be accessed through LEDSP's targeted pot of funding for land management capacity. It should be noted that the Department does not offer funding for Administrative plans on individual allotments.

During the evaluation period, an average of 40 percent of requests per year were funded. Figure 4 shows the amount of funding requested and the amount of funding approved from 2009-10 to 2012-13, and Figure 5 shows the number of surveys recorded from 2011-12 to 2013-14:

Text alternative for Figure 4 Survey funding requested and approved, per fiscal year

This bar graph shows a comparison between survey funds requested and survey funds approved by fiscal year. Fiscal years 2009-2010 through 2012-2013 are shown on one axis, and the other axis shows dollars in increments of $1 million.

The bar shows that for 2009-2010, $3.9 million were requested for surveys and $1.4 million were approved. For 2010-2011, $5 million were requested and $2.5 million were approved. For 2011-2012, $6 million were requested and $2.6 million were approved. For 2012-2013, $5 million were requested and $1.6 million were approved.

 

Text alternative for Figure 5 Number of land survey plans recorded, per fiscal year

This chart shows the number of land survey plans recorded per fiscal year. One axis shows fiscal years 2011-2012 through 2013-2014 and the other axis shows the number of survey plans recorded in increments of 200.

The chart indicates that in 2011-2012, 1083 survey plans were recorded. In 2012-2013, 857 survey plans were recorded. In 2013-2014, 704 survey plans were recorded.

As can be seen in Figure 4, survey demands significantly exceed survey funding. Moreover, as Figure 5 demonstrates, the total number of land surveys recorded per year has decreased since 2011-12. Thus, there is a substantial gap between what First Nations have identified as a need for surveying and the surveying resources AANDC can provide. It is important to note as context that some of the requests made are deemed ineligible for funding as they are related to needs other than economic development.

The implications of the land survey resource gap

Without access to land surveys, not all First Nations will be able to maintain clearly defined parcel fabric on-reserve. However, evaluation findings indicate that ensuring clearly defined parcel fabric on-reserve is one of the essential steps to ensuring communities have a land base that can facilitate economic activities and other community needs such as clearly defined lots for the purposes of housing.

For example, the evaluation team visited Kahkewistahaw First Nation in Saskatchewan as part of its case study work. As can be seen in Figure 6 below, Kahkewistahaw is unique amongst reserves in Canada as a significant majority of its land (in red) falls under the Indian Act, whereas other land parcels fall under the First Nations Land Management Act. Kahkewistahaw, the province, and the federal government are currently trying to clarify the northern boundary of the community's main reserve. Due to movement of the river along this boundary, there have been changes in the jurisdictions under which certain parcels of land fall. However, as one case study participant noted, the survey work is difficult to afford, which slows down the process. Until this is resolved, this land cannot be brought under the community land code.

As one participant noted, Kahkewistahaw's First Nations Land Management land code works well and is preferable for facilitating business on the reserve. As such, a lack of resources for land surveys is currently slowing Kahkewistahaw's process of economic development.

There was significant concern among key informants that many First Nations face the same challenges as Kakhewistahaw and are unable to access enough funding for surveys. Specifically, many First Nations are not in a position to pay for the Administrative plans necessary to maintain a clear parcel fabric. Key informants and case study participants expressed concern that parcel fabric may become unclear in future given the extent to which natural landscape changes and properties change hands. Lack of clear parcel fabric in turn would make using the formal land management system under the Indian Act difficult as clearly defined parcels are a requirement for most land transactions. Therefore, there is a risk that a lack of survey funding has implications for future community needs on-reserve.

4.2.3 Creation and Registration of Land Instruments and Transactions

4.2.4 Oil and Gas Activities

In 2013-2014, IOGC was managing the oil and gas resources of more than 50 First Nations that had active oil and gas agreements. In the same fiscal year, IOGC collected $157.5 million on behalf of First Nations for oil and gas operations conducted on-reserve land, exceeding its performance target by $37.5 million.^{Footnote 68}

The environmental unit at IOGC is responsible for ensuring companies are compliant with environmental protection legislation, regulations, and IOGC's environmental protection terms. In 2013-14, the unit visited eight reserves and inspected 146 surface agreement sites, resulting in the issuance of 55 inspection letters.^{Footnote 69}

4.2.5 Other factors affecting performance

It is important to note that there are factors outside of the program's control that have an impact on land management on-reserves. For example, a First Nation's distance from an urban centre likely affects the amount of land transactions and economic opportunity that will occur on-reserve.^{Footnote 70}The literature also notes that governance is a key factor; some argue that good governance strengthens investors' confidence, and that steps to separate business from politics are vital.^{Footnote 71} Governance was in fact mentioned as a key factor by a number of key informants, and several participants in the Nipissing case study corroborated this by noting they found having an independent economic development corporation to be a best practice for economic development on-reserve. The strength of the surrounding economy and a First Nation's bylaw-making power were both also cited as factors that affect land management on-reserve.^{Footnote 72} Key informants have also mentioned that an initial stream of incoming revenue is necessary for services and infrastructure.

Finally, document review, key informant interviews and case study work all pointed to the importance of access to land use planning as a way to take stock of assets and clarify land use across a reserve.^{Footnote 73} Additionally, key informant interviews suggested that providing greater access to land use planning for First Nations is a way to better assess their needs, and thus to use funding effectively.

Considerations for the ATR support centres:

The Toronto support centre for non-TLE ATRs reviews one in ten applications as required by its mandate. However, the Regina support centre, by virtue of the fact that many of the TLE ATR applications take place in Saskatchewan, is able to review all applications going forward. As case study key informants in Saskatchewan explained, they have discovered it is much more efficient to review everything, as it saves time in the long-run that would otherwise be spent in back-and-forth discussions with Headquarters.

Efforts made by these support centres are targeted at the final portion of an ATR process (the Departmental administration phase) whereas the majority of challenges occur during the part of the process where First Nations are examining, purchasing, and negotiating land with third parties. Some key informants have noted that the submission packages for TLE and non-TLE ATRs are not very different. As such there is not a clear rationale for having two distinct ATR centres.

Considerations for the Registration Support Centre:

The Registration support centre's work in the first two years of operation focused on ensuring all regions had the necessary equipment to process transactions, and then training the regions on the impact of the new Matrimonial Real Property legislation on registration requirements. Furthermore, for most of the first three years of operation the centre, designed to have 2.5 full time equivalents full time equivalents, it only operated with 1.5 total full time equivalents. As such, there were not sufficient resources to adequately monitor submission quality and respond to regional requests for assistance. This is made more difficult by the fact that each region has First Nations with unique preferences regarding types of land instruments and holdings, and as such each regional office requires unique areas of expertise that one support centre may not be able to effectively address.

The most universal theme to emerge from key informant discussions on the support centres was that in its current form and with its given level of resources, the Registration Support Centre is ineffective. As a result, key informants in Headquarters and the regions noted that in practice, Headquarters is still answering many regional questions related to land transactions. This is a challenge because Headquarters is no longer appropriately staffed to provide this level of support. Several suggestions for changing the design and delivery of the support centre were made, including moving it to Brantford where regional staff have considerable corporate memory, or relocating it to Headquarters to facilitate communication with the Indian Land Registrar.

Considerations for the Designation and Section 35 Support Centre:

Case study participants noted that Designation and Section 35 submissions seem to be improving over time. However, they noted that there are areas for improvement: first, it would be helpful for Headquarters to include the Centre in discussions surrounding changes to submissions to give the Centre more of a chance to provide input on the documents that are presenting challenges. Second, case study participants felt that in some cases, Headquarters staff could benefit from a more up-to-date awareness of Designation and Section 35 policy. They noted that it is likely difficult for Headquarters staff to do this given that they do not work with First Nations day-to-day on the files, but that it would nonetheless be beneficial to the process. Finally, case study participants suggested that Designations and Section 35 submissions face some of the same processing delays as Additions to Reserve, and that the Centre would benefit from increased communication with Department of Justice.

Overall, case studies, data review and key informant interviews yielded the following findings about the support centres:

• There is a lack of clear rationale for maintaining two separate ATR centres. While there are differences between the two, the processes and requirements are very similar.
• Aside from the TLE centre in Saskatchewan, where most TLE ATRs occur, there is a lack of a clear rationale for the regions selected for the support centres; specifically there is not a clear rationale for maintaining a registration support centre in a regional office, as each region has differing registration needs.

• For those centres that only review a selected number of files for quality control purposes, it is particularly important that they be provided with ongoing feedback from headquarters or central agencies on the quality of proposals being submitted. This may allow the centres to provide more targeted feedback to regional staff and save future back-and-forth communication with Headquarters and central agencies. Findings indicated that, at the time of the evaluation, there was limited communication of this nature. This is important to ensure that they focus their activities where needs are most prevalent.
• For those centres that provide templates to be used for final approval, findings indicate that it has proven challenging to maintain up-to-date templates that can be readily applied to all regions of the country.

As was discussed above, part of the rationale for registration at the regional level is that regional staff have the closest relationships with communities. However, this process only works if regions are given the necessary tools for their duties, which means having the most effective support possible.

Recommendation: Clarify the purpose and role of the Regional Support Centres.

5.2.1 Registration delays

While data reviewed indicates registration standards are being met, key informants suggest there are significant delays. This discrepancy is likely due to differing interpretations across the regions of how to track processing times.

As mentioned in Section 5.1, program restructuring included a change in registration responsibilities from Headquarters to the regions due to the reduction in staff at Headquarters. In order to track its effectiveness in completing the registration of land transactions, the Department has adopted service standards; for non-permits the standard is 10 days (changed to 15 days for the 2015-16 fiscal year) and for permits the standard is 15 days respectively once the documents are deemed to be in a registerable format. A key component of the evaluation has been to examine the effects of program restructuring, including the effects on registration of land transactions. As is demonstrated in figures 7 and 8, registration times initially lagged in the mid-point of the evaluation period but this appears to have generally improved as regions have adapted to their new duties:

Text alternative for Figure 7 Average time to process registrations for non-permits for First Nations under the Indian Act land management regime (standard: 10 days)

Figure 7 is a bar chart illustrating the average time it took provinces and the Atlantic region to process registrations for non-permits for First Nations under the Indian Act land management regime (with the standard being 10 days) for the fiscal years of 2009-2010, 2010-2011, 2011-2012, 2012-2013 and 2013-2014.

For 2009-2010 it took 6.2 days in British Columbia, 6 days in Alberta, 6.1 days Saskatchewan, 4.7 in Manitoba, 7.2 days in Ontario, 9.3 days in Quebec and 5.3 days in Atlantic Canada.

For 2010-2011 it took 9.8 days in British Columbia, 8.7 days in Alberta, 9 days Saskatchewan, 11.4 in Manitoba, 14.3 days in Ontario, 20.1 days in Quebec and 17.4 days in Atlantic Canada.

For 2011-2012 it took 9.6 days in British Columbia, 9 days in Alberta, 8.2 days Saskatchewan, 9.1 in Manitoba, 17.7 days in Ontario, 24.2 days in Quebec and 23.1 days in Atlantic Canada.

For 2012-2013 it took 12.9 days in British Columbia, 18.2 days in Alberta, 18.8 days Saskatchewan, 21.5 in Manitoba, 18.3 days in Ontario, 21 days in Quebec and 23.3 days in Atlantic Canada.

For 2013-2014 it took 22.7 days in British Columbia, 3.5 days in Alberta, 4.5 days Saskatchewan, 5.6 in Manitoba, 3.1 days in Ontario, 8.6 days in Quebec and 4.9 days in Atlantic Canada.

Text alternative for Figure 8 Average time to process registrations for permits for First Nations under the Indian Act land management regime (standard: 15 days)

Figure 8 is a bar chart illustrating the average time it took to process registrations for permits for First Nations under the Indian Act land management regime (with the standard being 15 days) for the fiscal years of 2009-2010, 2010-2011, 2011-2012, 2012-2013 and 2013-2014.

For 2009-2010 it took 8.1 days in British Columbia, 7.1 days in Alberta, 7 days Saskatchewan, 10 in Manitoba, 6.8 days in Ontario, 12 days in Quebec and 12.5 days in Atlantic Canada.

For 2010-2011 it took 6 days in British Columbia, 9.3 days in Alberta, 8.6 days Saskatchewan, 11.7 in Manitoba, 10.7 days in Ontario, 22 days in Quebec and 13 days in Atlantic Canada.

For 2011-2012 it took 9.7 days in British Columbia, 5.9 days in Alberta, 8.1 days Saskatchewan, 12.2 in Manitoba, 16.8 days in Ontario, 12.5 days in Quebec and 9.3 days in Atlantic Canada.

For 2012-2013 it took 14.7 days in British Columbia, 9.8 days in Alberta, 13.6 days Saskatchewan, 25 in Manitoba, 5.1 days in Ontario, 9.3 days in Quebec and 17 days in Atlantic Canada.

For 2013-2014 it took 10.5 days in British Columbia, 3.1 days in Alberta, 4.7 days Saskatchewan, 19.8 in Manitoba, 1.3 days in Ontario, 1 days in Quebec and 11 days in Atlantic Canada.

There are concerns, however, with these data. As one can see from Figure 7, processing times for non-permits spiked in 2010-2011, before major program restructuring occurred. It is not clear from the data alone that either increases or decreases in processing times are a result of restructuring, as other factors are likely at play. For example, regional staff indicate that the implementation of Matrimonial Real Property legislation was an external factor that had a significant impact on the registration of land instruments.

Moreover, while the data show processing times decreasing, they are not corroborated by case study discussions or key informant interviews. Several case study participants suggested that non-permits, for example, take significantly longer than ten days to process, sometimes spanning several months. This discrepancy suggests a lack of consistency in the way processing occurs. For example, whereas one office may log the beginning of processing as the date a file arrives in the office, another may consider the date processing begins as the date they begin work on the file. It would thus be advisable to review the way processing is tracked to ensure consistency, and to communicate the agreed upon process to First Nations land managers in such a way that all parties develop a common understanding of how regional offices process documents.

5.2.2 Data Integrity

There is a risk that land transactions are being registered inconsistently across the regions. This may weaken the value of the Registry in the long term due to a lack of comparability and, in some cases, inaccurate information.

Now that registration is being conducted in a decentralized manner, inconsistency is a risk. A number of key informants mentioned that different registration processes are in fact occurring in the regions, and expressed concern that it will weaken the integrity of the Indian Land Registry in the long-run. In fact, the most universal theme to emerge from key informant interviews regarding the registry was not whether it inherently provides certainty to stakeholders, but that ensuring clean and consistent data is necessary for maintaining its value. Aside from the quality assurance component of the Registry Support Centre, which faces the challenges discussed in section 5.1, the evaluation found no process currently in place to address the issue of inconsistency during the evaluation period. It should be noted, however, that a Quality Assurance process has recently been initiated for future registration.

Concerns about inconsistency are exacerbated by the fact that the Administration of Reserve Land sub-program operates with outdated software. In particular, the Netlands system used to track leases and permits runs on ‘active server pages' which is a technology that is no longer supported. Moreover, because it does not have the ability to integrate with the Trust Fund Management System, which is used to issue payments, there have been cases where revenue from a land instrument is entered into the Trust Fund Management System but cannot be properly matched with the corresponding instrument in Netlands. As a result, suspended funds can occur. In some cases the Indian Land Registry System can be used to clarify the problem, but this is not always possible.

It is important to note that the program has launched a review of its Information Technology (IT) systems to determine the feasibility of adapting Netlands, the Indian Land Registry System and the National Additions to Reserve Tracking Tool in order to either integrate them or enhance communication across systems. Immediate steps are being taken to move Netlands to a more up-to-date NET framework.

In the longer term, however, supporting the recommendations of the review would facilitate better information management capabilities and could mitigate some of the risks discussed in this section. As the program continues to review its IT systems and options for upgrading, it is important to consider that there is an opportunity for increased integration of all land-related IT components. In particular, one key informant with expertise in surveying and land fabric recommended implementing a system whereby land use plans are integrated into the same platform as surveys and land instruments. A single-window system design that includes a land use plan with access to surveys and information on land interests and ATRs could serve to greatly improve clarity and efficiency across all areas of the program.

As the program examines options for how best to strengthen the registry itself, as discussed in Section 3.3.5, it is strongly worth considering changes to the IT platform that lend value to the registry's clarity and consistency.

Recommendation: Enhance the Indian Land Registry and related IT systems in order to leverage the registry's potential for facilitating economic development. Note: this recommendation also applies to Section 3.2.5 of this report.

Land Management Manual

The Land Management Manual is the instruction manual used by regional staff (and, to a certain extent, First Nations) who are creating and registering legal instruments. This manual was last updated in 2002-2003.^{Footnote 78} Key informants from AANDC and Department of Justice noted that given the shifting nature of land management on-reserves, it should be updated regularly. It was noted in particular that it is pressing to update the manual, as out-of-date instructions may not be in line with current legal practice. As such, a comprehensive review by Department of Justice and updating by AANDC staff is advisable to ensure that the instructions regional staff use incorporate the most current legal precedent.

Access to Department of Justice

Key informants also note that as a cost-saving measure, access to advice from Department of Justice has been reduced during the evaluation period. Case study key informants note that this service is important to ensure there are no legal risks in the documents being drafted by First Nations and executed by AANDC. While Department of Justice is still very present in the program's activities, there is now a formalized process whereby request forms are filled out in order to have access to Department of Justice. Key informants both from AANDC and Department of Justice noted it is now not practical to ask small questions to Department of Justice, and that the result could be increased legal issues in the instruments being created. It should be noted that key informants both from AANDC and from Department of Justice stressed this point and expressed a willingness for more communication.

Monitoring and Compliance

Finally, compliance is a challenge with land transactions on-reserves. The House of Commons report on land management in 2014 found that the workload placed on staff means they are not equipped to monitor whether stakeholders on reserves are in compliance with legal requirements. This issue has been noted for the Government of Canada as a whole on environmental regulations; overall, the federal government is supposed to have a compliance inspection rate of 60 percent of environmental regulations; however, with current resources, it has only managed to inspect 13 percent of instruments.^{Footnote 79} Considering the increasing volume of instruments on reserve, this presents an ongoing legal challenge.

It should be noted that most of this information comes from key informants only, and they were unable to contextualize the legal risk that is present because it is not easily measurable and because the main concern key informants had was that the amount of liability is not known. Thus. the evaluation was unable to measure the extent of this issue. However, liabilities that trigger litigation related to land transactions include collection of rent, missed rent reviews, not ensuring insurance is in place, and a lack of environmental cleanup that was supposed to have been done by the lessee. What was clear to evaluators was that while reductions in staff and access to the Department of Justice may yield short-term cost savings, the implications in liabilities created by outdated instructions, a lack of legal advice and a lack of monitoring could yield significantly higher costs to the program in future. It would be advisable, in particular, to place greater emphasis on updates to the land management manual with input from the Department of Justice to refresh regional offices' instructions.

Recommendation: Work with federal partners and stakeholders to review and update the Land Management Manual to ensure that this instrument provides guidelines that are clear, consistent, current and conducive to flexible approaches that facilitate economic opportunities on-reserve. Note: this recommendation also applies to Section 4.2.3 of this report.