S. 28(2) Permits First Nations Technology Council of BC ICT Summit February 24, 2012

2 Connectivity Projects Fibre optic technology is the newest way to transmit broadband connectivity and is used for data, internet, videoconferencing, and VoIP telephone services. First Nations are seeking to upgrade their communities with fibre optics for their public buildings. Upgrades have stalled because AANDC requires providers to obtain permits.

Issue Installation projects were able to proceed without AANDC permits in some provinces but have been delayed in others. Are there other ways in which projects can commence without AANDC permits?

4 Acquiring Interests in Reserve Lands –The Indian Act provides a number of ways to provide non-members or corporations with a legal basis for exercising rights on reserve land. Sale; Right of Way Leases; Expropriation; and Permits –Permits do not require a surrender of land

5 Legal Status of Reserves –Section 2 of the Act defines a "reserve" as a tract of land in which the legal title is vested in the Crown and has been set apart for the use and benefit of a band. –Thus, the federal Crown, not the First Nation, has title to reserve lands

6 Capacity to Contract -Objectionable as it is, the Crown has title to the First Nation lands and, thus, the Crown has the legal capacity to contract with 3rd parties for the use of First Nation lands. -The lack of legal power of First Nations to dispose of reserve lands is reflected in s. 28(1) of the Act, which provides that any agreement to provide an interest in land to non-band members is void.

7 Section 28 of Indian Act –28 (1) Subject to subsection (2), any deed, lease, contract, instrument, document or agreement of any kind whether written or oral, by which a band or a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or reside or otherwise exercise any rights on a reserve is void. –(2)The Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve.

8 Permits –Permits have been commonly issued for the purpose of granting rights to graze livestock on reserve lands or extracting of items such as sand, gravel, clay, and other non-metallic material from reserve land. –Permits are also used for access rights or for utilities rights-of-way ancillary to a development.

9 Characteristics of 28(2) Permits A permit has the following characteristics: –it does not grant exclusive possession of land; –it may grant a limited interest in reserve land, such as an easement or a lesser use; –the term is usually short, but may be for longer periods.

10 Duty to Consult –The Minister is permitted to issue the permit on the strength of the BCR as this is consistent with Parliaments intention to broaden the scope of representative government in Band affairs. –While it may be politically wise to consult with Band members, the Chief and Band Council are not under any legal duty to consult with individual band members. Provost v. Canada 2009 FC 1214.

11 AANDC Permitting Process –permit pursuant to subsection 28(2) of the Indian Act, must submit a resolution to the local INAC office containing the following elements: description of the area to which the permit will apply; clear description of the proposed use; duration of the permit; proposed compensation (amount of rent); –An application requesting the Minister to issue the permit in accordance with subsection 28(2) of the Indian Act.

12 Other Requirements –An environmental assessment is required for every project on First Nations land that: involves a financial contribution from AANDC or the issuing of a land instrument (permit, lease, etc.). –The assessment must establish the environmental impacts of the proposed activities, along with measures to mitigate any significant impacts.

Conclusion Objectionable as it is, the Crown has title to the First Nation lands under a trust like relationship. As the title holders, the Crown has a legal and fiduciary duty to act in the best interest of First Nation communities. The Crown can impose any terms on any agreements with 3rd parties for the use of First Nation lands.