Preliminary engagement: What we heard report

Meaningful engagement on the ATR Policy redesign

• The preliminary engagement approach is appreciated. It is important for First Nations to be part of the process from the beginning and build relationships through engagement based on trust and transparency.
• Flexibility, open dialogue, and working at the pace of First Nations is integral to engagement activities.
• It is crucial that engagement on the ATR Policy redesign is First Nation-led and that First Nations have a part in validating options when engagement is complete.
• Discussions on the ATR Policy intersect with broader land related challenges, such as:
  • climate change
  • access to land
  • cultural recovery
  • traditional territory
  • land acquisitions
  • lands set aside
  • fee simple lands
  • alternatives to Indian Act surrenders
• Canada needs to provide support for First Nation-led engagement at all levels, including:
  • nation-based collectives
  • First Nations under the Framework Agreement on First Nation Land Management
  • self-governing First Nations
  • First Nations who continue to be governed under the Indian Act
  • national and regional First Nation-led institutions, organizations and tribal councils
• It is important to engage with tribal councils and First Nation communities directly, not just through organizations, as many organizations do not represent rights-holders.
• In order to participate in the ATR Policy redesign, education on the ATR Policy must be part of the engagement process to support the development and communication of policy options.
• In person dialogue is appreciated, as one Chief noted, "It’s difficult talking to boxes on a screen trying to advocate for ourselves".

Transparency and communication

Key quote: "How do First Nations track the status of their ATRs? It is difficult to uphold community accountability when you cannot provide updates".

• Publicly available, accessible information pertaining to ATR Policy and process is lacking, including the ability to access past versions of the ATR Policy, timelines, process steps, and metrics on ATRs across the country (such as the average completion time for an ATR in each region and total ATRs in the national inventory).
• It would be beneficial if the Government of Canada created a national depository of best practices, strategies and tools to facilitate knowledge sharing.
• The burden of updating new government staff on ATR files often falls on the First Nation.
• Information about ATR files are often held by one person in the Government of Canada, which causes delays during staff changeovers.
• Relationship building is important throughout the ATR process.
• There is a need for a communication strategy that changes the perception and conversation about ATRs to be one of success, not risks of failure. Alongside First Nation organizations, the Government of Canada must develop a communication strategy that shifts the narrative on ATR to emphasize economic opportunities and mutually-beneficial partnerships between Indigenous communities, municipalities, and non-First Nation communities.
• Misconceptions about ATRs and expanding reserve land can lead to resistance from third parties, municipalities, and provinces and therefore delay ATRs.
• The Government of Canada must develop an ATR webpage that includes metrics, links to ATR audit reports, and tools and resources that support First Nations and Indigenous organizations in building knowledge on the ATR Policy and process. This can include communication guidelines and checklists for activities in the ATR process.
• First Nations would benefit from a clear outline of the requirements for reserve creation.

ATR process delays and concerns

Key quote: "We need space to consult with our own communities and make our own decisions. Consult with our partners whom we live with for generations. We have a longstanding relationship with the municipality and have our regional economies aligned. We are the ones who have intimate relationships with stakeholders. We have intimate knowledge of these relationships. The current process does not allow for this intimacy to occur."

• Third party interests are a key barrier across all regions. The delays and concerns caused by third party interests varies from each region and each file.
• The linear, 4 phase process approach to ATRs creates delays. For example, third party interests must be addressed prior to reserve creation. The Government of Canada must support First Nations in opening dialogue with third parties early in the process.
• Directives, forms and templates are paternalistic and out of date. For example, the application form asks First Nations to justify the intended use of reserve land and outline anticipated benefits and impacts of the proposal. Moreover, strict provisions in the lease template create long-term liability for the First Nation, as they are often leasing to their own corporation.
• Remove ATR Policy and process directives from Indian Act Lands Management Manual, as many First Nations operate under the Framework Agreement on First Nations Land Management Act or other self-governing arrangements.
• Delays can be mitigated by seeking direction from the proponent First Nation on how to proceed with the duty to consult and addressing third-party interests. It is important to work collaboratively with First Nations to navigate their long-standing relationships with municipalities and neighboring stakeholders. For example, duty to consult letters that inform other First Nations about reserve creation should respect the pre-existing relationships between Chiefs, nations, and their longstanding relationships with neighboring communities.
• Absence of clear ATR duty to consult guidelines and timelines results in delays.
• First Nations holding title to their land would promote autonomy in reserve creation.
• Key quotes: "Why can't First Nations take over the process themselves?", "It's time for First Nations to have the lead hand on ATRs". First Nations recommend exploring and supporting the creation of a First Nation organization(s) to administer the ATR process.
• The lack of knowledge and accessible information about the ATR process prevents First Nations from streamlining the ATR steps with provincial processes, communicating expectations to their communities, and creating their own stakeholder engagement plans to present to leadership.
• There is a lack of training and support for First Nations to complete requirements for the ATR process. Further capacity building is required to strengthen the approach to the ATR project lifecycle.
• The Government of Canada is slow in reviewing permits to make sure they are insulated from risk.
• First Nations mentioned developing optional alternatives to the established ATR process.
• The Government of Canada must simplify, streamline and adjust the existing process and ATR Policy and adopt a project-based approach to ATRs.

Limiting policy and process requirements

There must be a two-pronged approach to reforming policy and process: "Don't wait for the policy to fix the process", "If we do not address both policy and process then we will see no change".

• A framework to guide how federal surplus land becomes reserve is needed.
• There are various restrictions in the policy, such as: rigid joint reserve creation provisions, restrictive ATR categories and traditional territory rules prohibiting strategic urban parcels.
• One size fits all approach does not work across all regions or with all First Nations. This ATR redesign must recognize First Nation and regional differences, priorities and needs.
• Indigenous governance structures must be respected and reflected in the process and policy.
• The ATR Policy must include a simplified process for dealing with uncontroversial or small scale ATRs.
• Need to redesign the ATR Policy to accommodate First Nations who wish to stay under the Indian Act and First Nations who wish to hold lands fee simple and Aboriginal title.
• Delayed ATRs cause a tax burden on the First Nation when they are required to pay taxes on the land they purchased until parcels are converted into reserve.
• First Nations have raised significant concerns on Section 7.0 of the Additions to Reserve Policy on Joint Reserves. Requirements for the Joint Reserve process result in significant delays due to their inflexibility and inability to align with First Nations communities and their governance structure. Joint Reserve creation requirements include, but are not limited to:
  • written co-management agreement that must address cost implications
  • unanimity of all First Nations involved
  • applicability of a First Nation Land Management land code
  • the interest or right of each First Nation
  • a referendum vote by the electors of each participating First Nation
• To address Joint Reserve concerns, First Nations recommended that a case-by-case approach be applied until a new ATR Policy is in place.
• First Nations recommend exploring a fast-track approach to ATRs where former reserve land is being converted back to reserve status (such as former reserve land used for a railway that is no longer in use).

Urban reserves and economic development

• First Nations have increasing interest in economic benefits of urban reserves.
• The ATR process is not synced to business project timelines. ATRs should "move at the speed of business" to link business development opportunities.
• The key to sustainable and long-term success of urban ATRs is long-term planning and collaboration with other First Nations, municipalities, or private enterprise. Urban ATRs are also more difficult due to the higher number of third party interests that must be addressed. Integration into existing local economies must be possible.
• The Government of Canada must work alongside Indigenous organizations to develop strategies to promote the fiscal and economic potential of urban reserves.
• The Government of Canada must support First Nations who wish to collaborate on ATRs by removing barriers and incentivizing municipalities to work with First Nations.
• Long-term planning and collaboration with third parties in the creation of urban ATRs must be promoted.