An Act to amend the First Nations Land Management Act (S.C. 2007, c. 17)

Assented to 2007-06-22

An Act to amend the First Nations Land Management Act

S.C. 2007, c. 17

Assented to 2007-06-22

An Act to amend the First Nations Land Management Act

SUMMARY

This enactment amends the First Nations Land Management Act to incorporate, to the extent provided for by the Framework Agreement on First Nation Land Management, the concepts and terminology of the civil law of the Province of Quebec.

1999, c. 24

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

  •  (1) The definition intérêts in subsection 2(1) of the French version of the First Nations Land Management Act is repealed.

  • (2) The definitions “first nation land” and “licence” in subsection 2(1) of the Act are replaced by the following:

    “first nation land”

    « terres de la première nation »

    “first nation land” means reserve land to which a land code applies and includes all the interests or rights in, and resources of, the land that are within the legislative authority of Parliament.

    “licence”

    « permis »

    “licence”, in relation to first nation land, means

    • (a) in Canada elsewhere than in Quebec, any right of use or occupation of the land other than an interest in that land;

    • (b) in Quebec, any right to use or occupy the land other than a right as defined in this subsection.

  • (3) The definition “interest” in subsection 2(1) of the English version of the Act is replaced by the following:

    “interest”

    « intérêt »

    “interest”, in relation to first nation land in Canada elsewhere than in Quebec, means any estate, right or interest of any nature in or to the land, but does not include title to the land.

  • (4) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

    “right”

    « droit »

    “right”, in relation to first nation land in Quebec, means any right of any nature in or to that land, including the rights of a lessee, but does not include title to the land.

  • (5) Subsection 2(1) of the French version of the Act is amended by adding the following in alphabetical order:

    « intérêt »

    “interest”

    intérêt S’agissant des terres de la première nation situées au Canada mais ailleurs qu’au Québec, tout domaine, droit ou autre intérêt portant sur celles-ci; est cependant exclu le titre de propriété.

  •  (1) Paragraphs 6(1)(b) and (c) of the Act are replaced by the following:

    • (b) the general rules and procedures applicable to the use and occupancy of first nation land, including use and occupancy under

      • (i) licences and leases, and

      • (ii) interests or rights in first nation land held pursuant to allotments under subsection 20(1) of the Indian Act or pursuant to the custom of the first nation;

    • (c) the procedures that apply to the transfer, by testamentary disposition or succession, of any interest or right in first nation land;

  • (2) Paragraph 6(1)(f) of the Act is replaced by the following:

    • (f) a community consultation process for the development of general rules and procedures respecting, in cases of breakdown of marriage, the use, occupation and possession of first nation land and the division of interests or rights in first nation land;

  • (3) Paragraphs 6(1)(i) and (j) of the Act are replaced by the following:

    • (i) the establishment or identification of a forum for the resolution of disputes in relation to interests or rights in first nation land;

    • (j) the general rules and procedures that apply in respect of the granting or expropriation by the first nation of interests or rights in first nation land;

  • (4) Paragraph 6(3)(b) of the Act is replaced by the following:

    • (b) a description of the interests or rights and licences that have been granted by Her Majesty in or in relation to that land, and the date and other terms of the transfer to the first nation of Her Majesty’s rights and obligations as grantor of those interests or rights and licences;

 Subsection 7(2) of the Act is replaced by the following:

  • Marginal note:Condition

    (2) A portion of a reserve may not be excluded from a land code if the exclusion would have the effect of placing the administration of a lease, other interest or a right in that land in more than one land management regime.

 Subsection 10(4) of the Act is replaced by the following:

  • Marginal note:Third parties

    (4) If other persons have an interest or right in the land that is to be subject to the proposed land code, the council shall, within a reasonable time before the vote, take appropriate measures to inform those persons of the proposed land code, this Act and the date of the vote.

 Section 16 of the Act is replaced by the following:

Marginal note:Effect
  • 16. (1) After the coming into force of a land code, no interest or right in or licence in relation to first nation land may be acquired or granted except in accordance with the land code of the first nation.

  • Marginal note:Interests or rights of third parties

    (2) Subject to subsections (3) and (4), interests or rights in and licences in relation to first nation land that exist on the coming into force of a land code continue in accordance with their terms and conditions.

  • Marginal note:Transfer of rights of Her Majesty

    (3) On the coming into force of the land code of a first nation, the rights and obligations of Her Majesty as grantor in respect of the interests or rights and the licences described in the first nation’s individual agreement are transferred to the first nation in accordance with that agreement.

  • Marginal note:Interests and rights of first nation members

    (4) Interests or rights in first nation land held on the coming into force of a land code by first nation members pursuant to allotments under subsection 20(1) of the Indian Act or pursuant to the custom of the first nation are subject to the provisions of the land code governing the transfer and lease of interests or rights in first nation land and sharing in natural resource revenues.

 Subsection 17(1) of the Act is replaced by the following:

Marginal note:Obligation of first nation
  • 17. (1) A first nation shall, in accordance with the Framework Agreement and following the community consultation process provided for in its land code, establish general rules and procedures, in cases of breakdown of marriage, respecting the use, occupation and possession of first nation land and the division of interests or rights in first nation land.

  •  (1) Paragraph 18(1)(b) of the Act is replaced by the following:

    • (b) grant interests or rights in and licences in relation to that land;

  • (2) Paragraph 18(2)(a) of the Act is replaced by the following:

    • (a) acquire and hold property;

  •  (1) Paragraph 20(1)(a) of the Act is replaced by the following:

    • (a) interests or rights in and licences in relation to first nation land;

  • (2) Paragraph 20(2)(b) of the Act is replaced by the following:

    • (b) subject to section 5, the creation, acquisition and granting of interests or rights in and licences in relation to first nation land and prohibitions in relation thereto;

  •  (1) The portion of subsection 25(3) of the Act before paragraph (b) is replaced by the following:

    • Marginal note:Regulations

      (3) The Governor in Council may, on the recommendation of the Minister and in accordance with the Framework Agreement, make regulations respecting the administration of the First Nation Land Register, the registration of interests or rights in it and the recording of any other matter, including but not limited to regulations respecting

      • (a) the effects of registering interests or rights, including priorities;

  • (2) Paragraph 25(3)(b) of the English version of the Act is replaced by the following:

    • (b) the payment of fees for the registration of interests or rights and for any other service in relation to the Register;

 Subsection 26(2) of the Act is replaced by the following:

  • Marginal note:Expropriation

    (2) Interests or rights in first nation land may not be expropriated except by Her Majesty or a first nation in accordance with the Framework Agreement and this Act.

  •  (1) Subsections 28(1) and (2) of the Act are replaced by the following:

    Marginal note:Expropriation by a first nation
    • 28. (1) A first nation may, in accordance with the general rules and procedures contained in its land code, expropriate any interest or right in its first nation land that, in the opinion of its council, is necessary for community works or other first nation community purposes.

    • Marginal note:Exception

      (2) An interest or right in first nation land obtained under section 35 of the Indian Act or held by Her Majesty is not subject to expropriation by a first nation.

  • (2) Subsection 28(3) of the English version of the Act is replaced by the following:

    • Marginal note:Effective date

      (3) An expropriation takes effect from the day on which a notice of expropriation is registered in the First Nation Land Register or the thirtieth day after the day on which the notice is served on the person whose interest or right is expropriated, whichever is the earlier.

  • (3) Subsections 28(4) and (5) of the Act are replaced by the following:

    • Marginal note:Effect of expropriation

      (4) An expropriated interest becomes the property of the first nation free of any previous claim or encumbrance. In Quebec, a first nation becomes the holder of an expropriated right free of any previous right, charge or claim.

    • Marginal note:Compensation

      (5) A first nation shall pay fair compensation to the holder of an expropriated interest or right and, in determining that compensation, the first nation shall apply the rules set out in the Expropriation Act, with such modifications as the circumstances require.

  •  (1) Subsection 29(1) of the Act is replaced by the following:

    Marginal note:Expropriation by Her Majesty
    • 29. (1) An interest or right in first nation land may be expropriated by Her Majesty for the use of a federal department or agency and with the consent and by order of the Governor in Council.

  • (2) Paragraphs 29(3)(b) and (c) of the Act are replaced by the following:

    • (b) reasonable efforts have been made to acquire the interest or right through agreement with the first nation;

    • (c) the most limited interest or right necessary is expropriated for the shortest time possible; and

  •  (1) The portion of section 30 of the Act before paragraph (a) is replaced by the following:

    Marginal note:Partial expropriation

    30. If less than the full interest of a first nation, or less than the entire right of a first nation, in first nation land is expropriated by Her Majesty,

  • (2) Paragraph 30(a) of the English version of the Act is replaced by the following:

    • (a) the land in which an interest or right is expropriated continues to be first nation land and subject to the provisions of the land code and first nation laws that are not inconsistent with the expropriation; and

  •  (1) The portion of subsection 31(1) of the Act before paragraph (a) is replaced by the following:

    Marginal note:Compensation
    • 31. (1) Where an interest or right in first nation land is expropriated by Her Majesty, compensation shall be provided to the first nation consisting of

  • (2) Subsection 31(2) of the English version of the Act is replaced by the following:

    • Marginal note:Land of a lesser area

      (2) Land provided to a first nation as compensation may be of an area that is less than the area of the land in which an interest or right has been expropriated if the total area of the land comprised in a reserve of the first nation is not less following the expropriation than at the coming into force of its land code.

  • (3) Paragraph 31(3)(a) of the Act is replaced by the following:

    • (a) the market value of the expropriated interest or right or of the land in which an interest or right has been expropriated;

  • (4) Paragraph 31(3)(d) of the Act is replaced by the following:

    • (d) any reduction in the value of any interest or right in first nation land that is not expropriated;

  • (5) Subsection 31(6) of the Act is replaced by the following:

    • Marginal note:Limit

      (6) Any claim or encumbrance in respect of an interest expropriated by Her Majesty may only be made or discharged against the compensation paid under this section. In Quebec, any right, charge or claim in respect of a right expropriated by Her Majesty may only be made or discharged against the compensation paid under this section.

  •  (1) Subsections 32(1) and (2) of the Act are replaced by the following:

    Marginal note:Restitution
    • 32. (1) An interest or right in first nation land expropriated by Her Majesty that is no longer required for the purpose for which it was expropriated shall revert to the first nation and, if the full interest or the entire right of the first nation was expropriated, it shall be returned to the first nation in accordance with terms and conditions negotiated by the first nation and the expropriating department or agency.

    • Marginal note:Improvements

      (2) When an interest or right reverts or is returned to a first nation, the minister responsible for the expropriating department or agency shall determine the disposition of any improvements made to the land.

  • (2) Subsection 32(3) of the English version of the Act is replaced by the following:

    • Marginal note:Dispute

      (3) If the first nation and the expropriating department or agency cannot agree on the terms and conditions of the return of the full interest or of the entire right, the first nation or the department or agency may, in accordance with the Framework Agreement, refer the matter to an arbitrator.

 Section 33 of the Act is replaced by the following:

Marginal note:Expropriation Act

33. Without limiting the generality of section 37, in the event of any inconsistency or conflict between this Act and the Expropriation Act in relation to the expropriation of interests or rights in first nation land by Her Majesty, this Act prevails to the extent of the inconsistency or conflict.

 Subsections 38(2) and (3) of the Act are replaced by the following:

  • Marginal note:Leasehold interests or leases

    (2) Subsection 89(1.1) of the Indian Act continues to apply to leasehold interests or leases in any first nation land that was designated land on the coming into force of a first nation’s land code.

  • Marginal note:Application

    (3) A land code may extend the application of subsection 89(1.1) of the Indian Act, or any portion of it, to other leasehold interests or leases in first nation land.

 Paragraph 39(1)(b) of the Act is replaced by the following:

  • (b) applies in respect of an interest or right in first nation land that is granted to Her Majesty for the exploitation of oil and gas pursuant to a land code.

Marginal note:Coming into force

 This Act comes into force on a day to be fixed by order of the Governor in Council.

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