Why Urban Reserves?
In Saskatchewan, many reserves are located outside of urban centres, sometimes in isolation. Accordingly, many First Nations have established urban reserves which have provided employment and educational opportunities for their members in an urban setting.
Urban Reserves Historically
The Treaty Land Entitlement (“TLE”) process was designed to satisfy outstanding land claims for those First Nations that did not receive the amount of land they were entitled to under their respective treaty. TLE allows First Nations to purchase federal, provincial, municipal, and privately owned land on a willing buyer/willing seller basis. When a First Nation purchases land, it is typically held in ‘fee simple’ until Her Majesty the Queen in Right of Canada, referred to as the Crown, has declared the land to be reserve status.
There are generally two ways in which urban reserves are created. The first is through the Saskatchewan Treaty Land Entitlement Framework Agreement (“TLEFA”), which is a Saskatchewan-specific, comprehensive land claims agreement signed in 1992 by the federal government, the province, and twenty-five (25) Saskatchewan First Nations. The second is the federal Additions of Lands to Reserves and Reserve Creation Act or Additions to Reserve Policy (“ATR”), the federal government’s policy and procedure that applies to properties to be made into reserve status, regardless of how they are acquired by a First Nation. Commonly, First Nations will establish a Trust and related Trust Agreement (the “Trust Agreement”), which establishes the parameters of the usage of the TLE Trust Lands to purchase lands under TLE.
Indian Act Community
First Nations bound by the Indian Act will seek to have a particular parcel of land approved as a reserve under the Indian Act. Once the urban lands are purchased, the First Nation will ensure that the reserve creation process is successfully completed. This includes abiding by the terms of the TLEFA, or the ATR process, as necessary. The First Nation must then “surrender” the rights and interests in the lands for leasing and other related purposesto the Crown in order to lease the reserve lands.
In order to lease the lands, a First Nation must also get member approval through a Designation vote. A Designation Vote on a First Nation under section 38(2) and 39.1 of the Indian Act is a process through which a First Nation, through an affirmative Designation Vote of its members, may manage reserve land and lawfully authorize the Crown to grant a lease or other interest in reserve land.
Once the land is legally vested in the Crown and the Designation Vote is completed, the Crown may grant a lease or other interest in the reserve land. At this stage, the land is generally governed by a Head Lease, which outlines the permitted use of the urban reserve.
First Nations Land Management Act Community
A First Nation that has adopted the Framework Agreement on First Nation Land Management (“Framework Agreement”) and First Nations Land Management Act (“FNLMA”) can effectively opt-out of forty (40) sections of the Indian Act relating to land management. When a First Nation adopts the FNLMA, it exercises control over its lands and resources for the use and benefit of its members, rather than having its reserve lands managed on its behalf by the Crown. This is done through the establishment of a Land Code, which governs the land of that particular First Nation.
A First Nation that plans to create an urban reserve under the FNLMA has to acquire the desired land and then convert it to reserve status much in the same way as a First Nation under the Indian Act. This land acquisition can be accomplished by purchasing the land generally or through the TLE process. Once the urban lands are purchased, the First Nation must ensure that the reserve creation process is successfully completed, either by abiding by the terms of the TLEFA, or the ATR process, as necessary.
First Nations under the FNLMA have a Land Code and therefore have the ability to lease lands without having consent from the Crown, making this a desirable option for those First Nations who have established a Land Code under the FNLMA. Urban reserves have proven to be a successful structure for First Nations. This article is intended as a generic overview of the process and is not intended as legal advice. For those First Nations interested in more information about the process, including timelines, we recommend consulting with McKercher’s Indigenous Practice Group.
Lorne R. Fagnan is a member of the Pine Creek First Nation in Manitoba and an associate in McKercher LLP’s Saskatoon office. He maintains a general practice and is actively engaged in the firm’s First Nations/Indigenous Practice Group. Lorne acknowledges the assistance of Elliott J. Peterson, student-at-law at McKercher LLP, in compiling information for this article.