This is an update to my Dec 22, 2009 article, incorporating the changes to INAC’s locatee leasing policy.
Indigenous and Northern Affairs Canada (“INAC”) is the arm of the federal government responsible for managing leasing of First Nations lands. INAC has an extensive process before a lease can be approved and registered in the Indian Lands Registry. The steps listed in this Article can be conducted concurrently with the negotiation of the terms of the lease. The “Locatee” is the Band member who has a right of occupation in the land to be leased, usually by a Certificate of Possession. The “Proponent” is the person seeking to lease the land.
The process in this article does not apply to the lands of the Westbank First Nation or other Bands which have their own Land Code.
- Application to INAC
When: Initial Step
Who: The Locatee
The Locatee applies to INAC to lease the lands. The application requires that the Locatee provide information about the Proponent and the general nature of the plans for the type of use for which the lands will be developed. - Band Collective Interests (Band Approval no Longer Required)
When: Before lease finalized and approved by INAC
Who: INAC
INAC will ask the Band office to provide feedback on whether the proposed use of the lands comply with the Band’s bylaws passed under s. 81 of the Indian Act or other applicable laws. Some Bands have adopted community plans and zoning laws which would limit acceptable uses. A community vote on leases over 49 years is no longer required. - Survey
When: Before lease finalized and approved by INAC
Who: The Proponent
A survey is required if the land to be leased is part of a larger parcel or if boundary changes are necessary. The survey will show the exact area of the lands to be leased, and must be completed by a registered Canada Lands Surveyor. A survey is also required for any permit areas relating to access to the lands if the lands do not have direct access to a public highway. The surveyor must contact the Department of Natural Resources at the federal government to obtain survey instructions. A Band Council Resolution is required to allow a surveyor to survey the Lands and any permit areas. A new survey is not required if there is a Canada Lands Survey already registered in the Indian Lands Registry and there will be no changes to the boundaries of the parcel to be leased. - Appraisal
An appraisal of the fair market rent for the land is no longer required, although it is an option available to the Proponent and the Locatee should they wish to have independent information on the amount of rent. - Environmental Assessment
When: Before lease finalized and approved by INAC and before review of technical plans
Who: The Proponent
An environmental site assessment for the proposed use must be conducted. INAC provides general terms of reference which must be followed by the environmental consultant. This environmental assessment provides a baseline of the environmental condition of the lands prior to leasing, and will also consider the impact of any proposed development. - Highway Access and Servicing, if required
When: Before lease finalized and approved by INAC and before review of technical plans
Who: The Proponent
If adjustments need to be made to access a highway to accommodate the development, then consent must be obtained from the British Columbia Ministry of Transportation and Infrastructure. The Proponent will need to make arrangements for water, sewer, electricity, gas, fire and any other applicable services which are not already sufficiently provided for at the site. These steps would not be required if there is no new development or change in use. - Design Approval, if required
When: Before lease finalized and approved by INAC
Who: The Proponent
The Proponent must submit a conceptual engineering study and conceptual drawing to INAC for approval. Band input may also be required. This would not apply if no new development is taking place.
Upon completion of these steps and negotiation of the lease, the lease can be signed by the parties and registered in the Indian Lands Registry. The Proponent can begin the construction phase of the project once the lease is registered. In my next article, I will review the legal documents which are typically prepared in connection with a development on First Nations lands.
Andrea East is a business lawyer at Pushor Mitchell LLP practicing in the area of First Nations Law. You can reach Andrea at 250-869-1245 if you would like help in preparing or negotiating a lease of First Nations land.
