First Nation Lands Register Training and Workshop November 14, 2017

Transcription

1 First Nation Lands Register Training and Workshop November 14, 2017

2 Opening Prayer Chief Patricia Big George Anishinaabeg of Naongashiing Welcoming Remarks by Lands Advisory Board Director Philip Goulais

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4 Long Lake No. 58 Land Code Vote November 24, 2016

5 First Nation Lands Register Overview Angie Derrickson Capacity Building, Training and Professional Development

6 First Nation Land Management Resource Centre Inc. Land Governance Manual A Guide to Best Practices for Land Governance First Nation Land Registry Training Think Tank Session #3 - East 1:1 Support Survey interpretation, LUP challenges (traditional use vs economic development), legal challenges, and enforcement challenges 1

7 Background LAND GOVERNANCE MANUAL A Guide to Best Practices for Land Governance Prepared as a resource tool for Operational First Nations under Framework Agreement on First Nation Land Management Focus group was coordinated by Valerie Sam and consisted of 8 operational communities from the Sto:lo Valley and BC support technicians with operational experience Started in May 2014 with a brainstorming exercise to determine what topics the group thought would be useful in assisting with day to day administration of lands management At every meeting a new topic was selected, participants shared their operational practices, the materials were then reviewed and revised into a generic form that can be modified to meet specific FN needs 2

8 Live Manual The manual is a living document, as more and more FNs become operational best practices will continue to be refined Its something to utilize if needed and can be tweaked and modified for each community The manual is based on real life experiences from the participants some of the participants have 20+ years working in lands and governance The manual is made up of best practices used by the focus group, LABRC, INAC and other professionals Gaps continue to be identified and content will continue to be written to address the topic (rent reviews, ATR, TLE, etc.) 3

9 Overview Further to the LAB AGM 2015 & LGM Intro Sessions held over 2016, a series of Think Tanks have been held to further refine the LGM. East Think Tank sessions: Introduction - Sept 21-22, 2016 TT#1 - Individual Land Interests, Land Registry Procedures, FNLRS / Allotment, Traditional Land Holdings, Wills & Estates / Lands Inventory, File Management, Mapping, Surveys, Website, ATR/TLE Nov 15-17, 2016 TT#2 - Land Governance Auth., Operational Start Up, Law Dev (LUP) Mar 21-22, 2017 TT#3 FNLR Training & 1:1 Support (Surveys, LUP, Legal, Enforcement) Focus Group Think Tanks Refine LGM Best Practices 4

10 Presentations First Nation Land Registry System We encourage you to share your experience, today s presenters are: FNLRS Overview Presentation Questions & Discussion 7

11 Land Governance Manual Land Registry If you do not have a copy of the Land Governance Manual please contact your FNLM Support Technician Within this Land Governance Manual you will find: Section 4 First Nation Land Registry (Pg. 21 PDF) Section 5 - Land Registry Checklists & Procedures (Pg PDF) Checklists Fee Schedule Leasing process (Individual Holding & Community Lands) Registration of Lease, Sublease, Assignment, Mortgage, Discharge, etc. Sample Leases, Law, etc. LGM Attachment E Registry Forms (Pg PDF) 9

12 Land Governance Manual Individual Land Interests If you do not have a copy of the Land Governance Manual please contact your FNLM Support Technician Within this Land Governance Manual you will find: Section 6 Individual Land Interests / Allotments (Pg PDF) Attachment E Registry Forms (Pg PDF) Attachment H Individual Land Interests & Allotments (Pg PDF) 10

13 Traditional Land Holdings If you do not have a copy of the Land Governance Manual please contact your FNLM Support Technician Within this Land Governance Manual you will find: Section 7 Traditional Land Holdings (Pg. 53 PDF) First Nations are working to develop Traditional Land Holdings Laws (Family Holdings, Custom Holdings, etc.) that merge the non-registered historical knowledge of the reserve to grant interests under the new system of Land Management. These types of interests are being researched and a new type of land tenures (e.g. Individual Land Holding (ILH), Right of Occupancy, Certificate of Allocation, etc.) are being shaped for those First Nations that do not issue Certificate of Possession on reserve. Under a First Nation Land Code unique interests may be created by First Nations to reflect their preferred instrument name. This section will be expanded once more laws are developed, in the meantime you can contact FNLMRC Support Technician to see if there is more information available. 11

14 Land Forums 3 rd Party & Member CE During implementation it is important to continue communication activities with your community, interest holders & professionals: Within the data files you will find sample resource materials from WFN: Brochures (registry, surveys, mortgage, etc.) Lands Seminar Administrative Process to assist with event coordination Presentations (land code, lenders, developers, appraisers, etc.) Land Code & applicable Laws Follow up package Land Governance Information Package 12

15 Feedback Land Registry Procedure We encourage you to share your experiences: Land Registry Policy & Process Land Encumbrance Checks Individual Holdings Round Table Share Processes Questions & Discussion 13

16 Open Discussion Existing Policy & Law Knowledge Sharing Networking Other Needs & Support Policy & Law Templates Local Workshops Other 14

17 First Nations Land Registry System (FNLRS) Think Tank #3 EAST November 14, 2017

18 FNLRS Training Day 3

19 Background on FNLRS Subsection 51(1) of the Framework Agreement on First Nation (FN) Land Management provides for Canada to establish a FNLRS to record documents respecting FN land or interests on the reserve It is administered by Canada as a subsystem of the Indian Lands Registry System (ILRS) established under the Indian Act

20 Background Subsection 25(1) of the First Nations Land Management Act states the Minister shall establish a register The FNLR Regulations set out the rules for the registration or recording documents These regulations only apply to FNs that have an effective land code in place

21 Administration of the Registry The FNLR is administered by the Department of Indigenous & Northern Affairs Canada (INAC) and is located in Ottawa The system is entirely electronic and does not contain the actual physical documents Applications are submitted to the Registry through a secure website

22 Access to the FNLRS Access to the FNLRS are controlled by the INAC Access Control Group, appropriate access will be granted to users upon request. There are two main accesses: 1. Public Registries which is limited and unable to view certain documents, reports or to initiate a registration Citrix which provides FN secured access to retrieve and register documents including reports.

23 CITRIX XenApp ILRS (FNLRS) New account, forward request CITRIX ILRS Access to INAC IT Services - E: sti its@aadnc aandc.gc.ca, TF: You will need to ask for full access to the ILRS (FNLRS) and include the First Nation, your name, job title and contact information Access should be limited to Land staff that are authorized (BCR) to conduct Land Management tasks on behalf of the First Nation To access Citrix ILRS log into the Access Portal:

24 Reports Created by FNLRS Main 2 Reports that are generated: Reserve General consists of instruments relating to Band/FN Land as a whole ex. Establishment of the reserve, OIC s, ATR s, ROW s for public use Parcel Abstract Report consists of instruments relating to an individual parcel/lot of land ex. Lease or Sublease, certificate of possession (CP) Every parcel/lot has Parcel Identification Number (PIN) unique to that parcel When a lot or parcel gets subdivided a new PIN is given to the new lot/parcel

25 Purpose of Registration 3 Goals of the FNLRS: 1. Give notice to the public of all documents that are registered or recorded pertaining to a piece of land 2. Establish priorities among competing registered interests (not recorded documents) 3. And an orderly listing of documents which concern the title to the FN land or parcel of land

26 Registration vs. Recording There is a difference between registering a document and recording a document A document that grants or effects an interest in FN land is Registered. A Registered document has priority in accordance with the Regulations The date the document is registered determines the priority, not the date of the document or submission date A Recorded document does not effect the interest in the land ex. Change of name or corporation

27 Registration vs. Recording For example: 2 documents are prepared separately for the same parcel of land, regardless of the date on which either document was being prepared or the date they were submitted, the ultimate priority will be given to the document registered first Ex. Mortgage and a name change of one of the grantees. Priority will be given to the mortgage since it is a registration and not a recorded document as is the name change

28 Priority Example Sublease # Priority Example Mortgage #

29 Document handling Documents are submitted for registration or recording either by the FN or a lawyer acting for the party When a document is received by the Registrar for registration/recording, the year, month, day and hour are endorsed on the instrument and it is given a registration number This process establishes a priority of registration for all documents that are registered Documents may be sent electronically or by mail, faxes will not be accepted

30 Unacceptable documents In the event a document is unacceptable the Registrar will return to the applicant the application and all accompanying documents and provide written reasons for refusal to register/record If electronically submitted the Registrar will send an to the applicant (FN) outlining the reasons for rejection

31 Grounds for rejection The grounds for rejection of a registration/recording are outlined in Sec. 16 of the Regulations The Registrar will not register/record a document if: a) it is not dated; b) it is not legible; c) it does not identify each party to the document; d) the information contained in the application for registration/recording conflicts with the information contained in the document or e) the land description does not meet the requirements see subsections 17(1), 18 or 19 of the FNLR Regulations

32 Validity of Documents There is absolutely no guarantee that a document which is recorded or registered in the FNLRS is legally valid or effective It is essential that the person wishing to obtain an interest in FN land become familiar with any FN laws concerning validity or effect

33 FN Registration Process First Nations have authority to make laws requiring that documents be certified or approved by the First Nation before registration The First Nation law would provide that the document will have no effect if it is not certified or approved by the First Nation prior to being registered or recorded However, there are many documents which do not require First Nation certification or approval (see FNLRR section 15)

34 FNLR Regulations Application to Register/Record 10(1) Any person may apply for the registration or recording in the Register of a document that affects first nation land (a) in person, by submitting the document and a completed application for registration or recording to the Registrar at the address set out in section 11; (b) by mailing the document and a completed application for registration or recording to the Registrar at the address set out in section 11; or (c) electronically, in the manner set out in section (2) An application for registration or recording shall contain the following information, in relation to the document submitted for registration or recording: (a) the names and addresses of all parties to the document; (b) the name and address of the person who completed the application; (c) the type of document;

35 FNLR Regulations Application to Register/Record (d) if applicable, the date the document was executed or, in Quebec, signed according to all the required formalities for its validity or, if there is more than one date indicated, the most recent date; (e) the province where the first nation land is located; (f) the name of the first nation, the name of the reserve and the lot number, if any, associated with the land; (g) the land description; (h) a list of any supporting documents accompanying the document submitted for registration or recording; and (i) if two or more documents that are to be registered or recorded are submitted together by mail, directions regarding the order to be respected in registering or recording each document relative to each other. Only one completed application and the actual document accompanying the application is required.

36 10 STEP Registration Process Step 1: An original document (lease, assignment, etc) is sent to the First Nations Lands Office along with a completed FN Land Registration Form only requires two original copies and payment for the registration (if applicable). Step 2: The FN Lands Officers completes the appropriate checklist to ensure all of the information from the law office is complete and it is approved by the First Nation Lands Registrar. Step 3: Compile the form and documentation to scan as one image (.PDF).

37 10 STEP Registration Process Step 4: The Lands Officer completes the on-line application and uploads the scanned document for registration. Step 5: At that point the application is given a registration number, but it will not technically be registered until INAC/INAC completes the registration from their end. Step 6: Proof that it was sent for registration is ed to the FN Lands Officer and FN Lands Registrar usually within a day or so. Step 7: The Lands Officer prints off the application and files it with the original documents.

38 10 STEP Registration Process Step 8: Once it becomes a priority registration INAC then registers the document and an is automatically sent to the Lands Officer and Registrar which tells us the document was registered. Step 9: The Lands Officer prints off the new parcel abstract report and reviews it for accuracy of the registration. Step 10: The Lands Officer stamps the original documents to show proof of registration, it includes the date of registration and registration number. Final Step the original documents are mailed back to the appropriate law/notary office.

39 Sample Forms Within the Land Governance Manual you will find: Section 4 First Nation Land Registry (Pg. 21 PDF) Section 5 - Land Registry Checklists & Procedures (Pg PDF) Checklists Fee Schedule Leasing process (Individual Holding & Community Lands) Registration of Lease, Sublease, Assignment, Mortgage, Discharge, etc. Sample Leases, Law, etc. LGM Attachment E Registry Forms (Pg PDF)

40 Wôlinak Land Code Vote March 2, 2017

41 First Nation Lands Register Procedures Angie Derrickson Capacity Building, Training and Professional Development

42 Land Encumbrance Checks LGM TT#3 East Nov 14, 2017

43 What is an Encumbrance? Legal Definition A general term for any claim or lien on a parcel of real property. These include: mortgages, deeds of trust, recorded abstracts of judgment, unpaid real property taxes, tax liens, mechanic's liens, easements, and water or timber rights. While the owner has title, any encumbrance is usually on record and must be paid for at some point. Copyright by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

44 Legal Definition There are encumbrances of another kind which cannot be removed, such as easements for example, a highway, or a pre-existing right to take water from, the land.

45 What is a Land Encumbrance Check? A systematic way of checking the lands for any encumbrances, or interests that encumber the land to determine the status of land. Specifically by using a combination of tools: FNLRS, Registry Index Plan (RIP), erip, Reference Plans/Survey Plans, Google Maps, Pre- ILRS Data, checking within the office with the Capital/Housing and Property Manager for any unregistered encumbrances.

46 When will you require a Land Status Report? For new Leases, Permits, Easements, ROW s, CP s, Band Housing and any survey work on the reserve.

47 Why do we need to do Encumbrance Checks? To identify any incompatible interests. Very important to do this to ensure for example: the CP being issued is not already held by someone else, or to ensure band or community land is in fact band land or accurate title to the property for a proposed lease or permit.

48 What is E-RIP? It s a colour coded compiled plan of the reserve. Available on the FNLRS and ILRS. Indicates the land status as per ILRS and shows legal survey fabric. Automatically updated. Doesn t show where the unsurveyed interests are such as cardex holdings, easements, permits. Parcel abstract report can be generated. (If there is one. )

49 Registry Index Plan (RIP) Tzeachten 13

50 Survey Information Individual survey plans either CLSR or RSBC. It shows the boundaries, no longer accessed through FNLRS/ILRS. Can be found at: Reference Plans are similar to erip it is very accurate, it shows the entire reserve s most recent surveys, roads, ROW s, boundaries and gives legal descriptions for each surveyed lot.

51 Reference Plans Reference Plans can be purchased from NRCan or downloaded as AutoCad files directly off the web at:

52 Sample Reference Plan

53 Google Earth

54 Registry Information Reserve General Abstract Report gives a report of all registered instruments to the band land includes all blanket permits for transmission lines, timber permits, OCPC s, etc. these need to be listed on the report. (Pre ILRS records if available) Parcel Abstract Report gives legal description, any other registered instruments, legal CP holders. (Pre ILRS records if available) Prov General Abstract & Canada General Abstract.

55 Other Resources Provincial Integrated Land Resource Registry (ILRR) at: Zoning & Land Use Laws Community Physical Development Plans Comprehensive Community Plans NRCan Plan Search original survey plans

56 Process Preliminary Steps: - Location of area; - Purpose of encumbrance check. Review survey information: - Print NRCan RIP and reference plan, e- RIP, Google Earth Map. Print survey plan if surveyed (NRCan). Check for access. Check for unregistered surveyed interests such as sewer/water lines.

57 Process Print parcel abstract report (if exists): review for previous and forwarding PINs, identify any encumbrances ex. ROW Agreements, Easements, mortgages, subleases, etc. Generate Lawful Possessors report for active interests: review for NE s, Cardexes (NETI), check the legal description associated with the PIN which tells you if the parcel is un-surveyed.

58 Process Review Reserve General Abstract: eliminate instruments that deal with creation/confirmation of reserves and expired instruments. Identify potential encumbrances; - if plan number is identified check the plan on the reference plan or search by plan number. - If no plan number is indicated, print instrument. Designations, amendments to designations, revocations are often on report. Review provincial Reserve General for large leasing projects.

59 Process Check for pending transactions on ILRS/FNLRS or with registry person. Environmental concerns if known. Pending s.35 transfers Unregistered interests (custom holdings) Zoning/Land Use Laws/Land Use Plans CCP Plans, PDP Plans.

60 Result For surveys: Land Status Report For land transactions (leases, permits, band housing project, CP s): Checklist & interpretation of findings.

61 Final Steps Prepare: Land Status Report based on checklist; list all encumbrances (actual and potential). File: Checklist, Land Status Report, BCR/Request along with Sketch and supporting documents. Forward: Land Status Report to Surveyor. Advise: Band member/developer about encumbrances if any.

62 TIPS Need to look at both survey and land records; Make sure you verify land status indicated on erip; If NRCan RIP exists for the reserve, use your judgment: always check for parcel abstract including previous and forwarding PINs. Check the last update on RIP, check Reserve General from that date; Include all steps.

63 Things to Keep In Mind Be accurate and thorough; Set aside time to do this research; Be systematic; Document all findings on the checklist, print all relevant documents from FNLRS/ILRS; Ask for help if you cannot determine the location of an encumbrance.

64 Thank You!

65 Wasauksing Land Code Vote February 25, 2017

66 Family Homes on Reserves and Matrimonial Interests and Rights Act and the Framework Agreement on First Nation Land Management Michelle Delorme Environment/Enforcement Advisor

67 Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) and the Framework Agreement Presentation by: First Nation Land Management Resource Centre Inc. November 14,

68 Introduction One of the major weaknesses of the Indian Act is that it fails to address division of property on marriage breakdown or the death of a spouse Clause 5.4 of the Framework Agreement (FA) requires a First Nation operating under a land code to establish a community process in its land code to develop rules and procedures applicable upon the breakdown of a marriage, to the use, occupancy and possession of First Nations land and the division of interests in that land Section 17 of the First Nations Lands Management Act (FNLMA) indicates the same Under both the FA and FNLMA, the general rules and procedures shall be contained within a First Nations law or incorporated into the First Nations land code within 12 months after the First Nations land code comes into force 2

69 Where does your First Nation fall with respect to Matrimonial Real Property (MRP) laws? Is your First Nation operating under your own Land Code pursuant to the First Nation Land Management Act? If yes, do you already have your own MRP laws in force (You had until June 18, 2016) If No to both questions the default provisions of FHRMIRA apply on your reserve lands until you either 1) enact your own MRP laws pursuant to your Land Code; or 2) enact your own laws under the FHRMIRA Upon reviewing the provisional rules under FHRMIRA you can adopt them under the Act even if you are governing under your own Land Code 3

70 Main principles of MRP law with a Land Code The right of spouses to make their own agreement (contract) as to the disposition of interests in First Nation lands The value and necessity for mediation where the parties have not or are unable to reach their own agreement The right of spouses to have access to a court of competent jurisdiction Compulsory Mediation intended to create a process to divide interest in reserve lands where there is no agreement. A court can create rules and procedures for mediation process Access to Courts of Competent Jurisdiction courts can be used to apply provincial laws and also provide members with various orders. For example: an order that First Nation land be transferred to a spouse absolutely 4

71 Land Code MRP Continued Courts of competent jurisdiction continued If a court orders an auction, the council may set the prices. Courts can also declare the matrimonial home. General Provisions a First Nation can set penalties and punishments if a person contravenes an order set by courts of competent jurisdiction First Nations have jurisdiction from their land code and MRP to address the division of interest in First Nation lands upon the breakdown of a marriage or spousal separation FHRMIRA Rules are temporary only in the sense that a First Nation may make laws applying to the division of rights and interests in reserve lands on marriage breakdown or the death of a spouse 5

72 Notable aspects of MRP under FNLMA FNLMA provides for FN authority to pass rules and procedures in cases of marriage breakdown unclear whether this includes domestic violence matters FNLMA refers to MRP as it applies to a breakdown of a marriage not clear whether it applies to customary marriages or common law Words and expressions in the FNLMA have the same meaning as in the Indian Act FNLMA and FA does not address the issue of FN s jurisdiction to determine MRP rights in situations of violence requirement for nondiscrimination on the basis of sex provides for the power of FNs to adopt land codes dealing with interests in FN land held pursuant to allotment under the Indian Act or "pursuant to the custom of the first nation", as well as licences and leases 6

73 What is the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA)? FHRMIRA is aimed at remedying the lack of rules regarding the protection of spouses in cases of a relationship breakdown or violence passed by federal Parliament, received Royal Assent June 19, 2013 creates a comprehensive regime that provides for rights and obligations related to the protection of the family home and division of matrimonial real property (referred to as the provisional federal rules ) Two major parts: 1)First Nations law-making authority - exercise of lawmaking respecting matrimonial real property on reserve, ss (as of Dec. 16, 2013) 2) Provisional federal rules, ss. 12 to 53 (came into force December 16, 2014) These federal rules were developed from common elements found in provincial family law 7

74 Elements of FHRMIRA The stated purposes of FHRMIRA are two-fold: 1. To enable First Nations to pass laws regarding: (a) the occupation and possession of family homes located on reserves; and (b) the division of the value associated with structures or real property located on reserve upon the breakdown of the conjugal relationship or the death of a spouse. 2. To establish provisional rules and procedures that apply until such time as individual First Nations enact their own laws regarding the occupation, use, possession and division of value of property located on reserve 8

75 Purpose and Application of FHRMIRA Section 4: The purpose of this Act is to provide for the enactment of First Nations laws and the establishment of provisional rules and procedures that apply during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner, respecting the use, occupation and possession of family homes on First Nation reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on those reserves. FHRMIRA applies on your reserve now and until you enact your own MRP laws. After June 18, 2016, the provisional rules apply if a First Nation land code and their own MRP laws under the Framework Agreement or the new legislation are not in force 9

76 Provisional federal rules (as of December 16, 2014) Equal right to occupancy of the family home Requirement of spousal consent for the sale or disposal of the family home Emergency protection orders (in situations of family violence) Exclusive occupation order (short or long-term occupancy of family home) Enforcement of agreements/contracts on the division of the value of the matrimonial property Entitlement of each spouse or common-law to an equal division of the family home and any other matrimonial interests or rights Order for the transfer of matrimonial real property between member spouses or common-law Entitlement of surviving spouse or common-law partner to stay in the home for a specified time after death (180 days) and can apply for half the value of the matrimonial property interests or rights as an alternative to inheriting from the estate 10

77 What is the issue for on-reserve matrimonial property? Matrimonial real property on-reserve generally refers to the family home where both spouses or common-law partners live during a marriage or common-law relationship Both provincial and federal laws protect matrimonial real property interests and the rights of both spouses or common-law partners in the event of separation, divorce or death so for most Canadians undergoing a break-down of their marriage, common-law relationship, death of a spouse or partner there is legal protection available to ensure their matrimonial real property is dealt with equitably Ex. Provincial laws allow a judge to order a spouse or partner to leave the home if there is domestic violence or physical abuse Issue is that many of these important protections related to matrimonial interests are not available on-reserve Indian Act is silent on the issue 11

78 Issue continued FHRMIRA addresses a long standing issue from the Supreme Court of Canada decisions of Paul v. Paul and Derrickson v. Derrickson that provincial matrimonial property laws cannot alter rights of possession on-reserve land, causing a legislative gap meaning that on-reserve residents lacked basic rights and protections With FN matrimonial real property laws enacted under FHRMIRA and the federal rules, many legal protections relating to matrimonial real property similar to those applicable off-reserve are available to individuals on-reserve. For Example Spouse or common-law is not able to sell an on-reserve family home without the consent of the other and not able to keep all of the sale proceeds One spouse or common-law partner is not able to bar the other from their onreserve family home In cases of domestic violence, a court is able to order a spouse or common-law to leave a family home situated on-reserve on a temporary basis 12

79 Who does FHRMIRA apply to? Married couples and common-law partners living on reserve, where at least one of them is a FN member or an Indian (sec.6) Note: 12 month transition period began December 16 th The provisional federal rules in secs automatically apply to all FN s with reserve land. EXCEPT FNs that enacted matrimonial real property laws under FHRMIRA FNs with a self-government agreement which includes the power to manage their reserve lands unless they opt into the federal rules FNs with land codes under the FNLMA in place by Dec. 16, 2014 FNs without land codes in place but were on the schedule to the FNLMA before June 19, 2013 are exempted for a period of three years from that date Any time a FN enacts their own matrimonial real property law under FHRMIRA, the provisional federal rules no longer apply 13

80 FHRMIRA Women, families and violence prevention provides basic protections and rights to individuals on reserves regarding the family home and other matrimonial interests or rights during a relationship, in the event of a relationship breakdown, and on the death of a spouse or common-law partner. These protections will either be through First Nations' laws or provisional federal rules. provisional federal rules provide that, a spouse or common-law partner can apply for an emergency protection order to stay in the family home at the exclusion of the other spouse in situations of family violence. The provisions also enable a designated judge to order that a peace officer remove the other person, and/or prohibit that person from returning to the home unescorted during the duration of the order provisional federal rules allow for courts to provide short to long-term occupancy of the family home to the exclusion of one of the spouses or common-law partners. 14

81 Access to FHRMIRA Generally, the protections and rights provided in the provisional federal rules are accessible through the provincial and territorial superior courts that normally deal with family law matters. FHRMIRA provides a degree of legal certainty making it easier for couples to come to an agreement so they can avoid court. However, if on-reserve individuals feel they need to access the courts, they have to do so in the same way as those living off reserve. For emergency protection orders, the intent of the Emergency Protection Orders Regulations made pursuant to the Act is to increase accessibility given the rural nature of many communities and urgency of family violence situations. An application can be made to the judge in person or by telecommunication systems including telephone, or fax and can be made by the applicant or someone acting on the applicant's behalf. 15

82 Emergency Protection Orders under FHRMIRA In circumstances where a serious or urgent situation involving family violence occurs, a spouse can bring an ex parte application seeking a 90-day order for interim exclusive occupation of the family home and removal of the other spouse or any person who habitually resides at the family home ( Emergency Protection Order ). Family violence includes actual or threatened acts of bodily harm, sexual assault, unlawful confinement, criminal harassment, or damage to property, regardless of whether it involves an intentional or reckless act. an application for an Emergency Protection Order can be brought on an application by either a spouse or by a Peace Officer on behalf of the spouse, either with or without that spouse s consent. An Emergency Protection Order may also be granted regardless of whether or not criminal charges occur or a conviction is entered. 16

83 Division of the Value of Matrimonial Interests or Rights The heart of FHRMIRA is to provide for the division of the value of MRP interests or rights on the breakdown of a conjugal relationship, or on the death of a spouse. In both cases entitlement is determined by a spouse bringing an application either within three years of ceasing to cohabit, or within 10 months of the death of their spouse. Importantly, a spouse that holds the interest or right to the family home is required to obtain the written consent of the other spouse prior to disposing or encumbering their rights or interest in the family home. The calculation of entitlement depends on whether the applicant is a member of the First Nation on whose reserve the MRP is situated, any spouse is entitled to one half of the value of the interests/rights held in or to the family home as well as, one half of the appreciated value of any rights or interests of assets either 17

84 Division of the Value continued acquired during the relationship, or in contemplation of the relationship (excluding gifts or legacies). for those rights or interests acquired before the relationship, and not in contemplation of the relationship, the spouse who is a member of the FN (on whose reserve the MRP is situated) is entitled to the greater of one half of the appreciated value or alternatively, the amount of their contributions towards any improvements for all rights and interests. spouses or survivors who are not members of the FN on whose reserve the MRP is situated, are only entitled to the net value of payments made toward improvements for land and structures that were acquired by the other spouse prior to the relationship 18

85 Enforcement Responsibility under FHRMIRA Responsibility for enforcing orders made under the provisional federal rules varies depending on the circumstances. With the division of the value of matrimonial interests or rights, in many circumstances, due to section 89 of the Indian Act, orders in favour of a non- Indian cannot be executed against property of an Indian situated on reserve. On application from a non-member or non-indian spouse or common-law partner, the provisional federal rules provide that a FN council is able to enforce a court order against a member for compensation made under the Act. If the council does not enforce the order within a reasonable time, a court will be able to vary the order to require the member spouse or common-law partner to pay the specified amount into the court directly. With respect to FNs' own MRP laws, the power to enact FN laws contained in FHRMIRA enables FNs to make laws respecting enforcement of court orders on reserve despite section 89 of the Indian Act. 19

86 Is utilizing FHRMIRA always necessary? No. When developing their MRP laws, FN s can choose the best way to resolve issues in their community. For example by way of agreement through traditional dispute mechanisms, or through the courts. Individuals may come to agreement on division of property or temporary exclusive occupation of the family home through mediation, alternative dispute resolution or existing traditional systems for resolution. However, as a result of the Act, seeking resolution through the court system is an option The provisional federal rules of FHRMIRA may be accessed in circumstances that require the protection offered by the court system 20

87 Can a non-member hold an interest or right on reserve under FHRMIRA? No. FHRMIRA respects the principle of non-alienation of reserve lands. The provisional federal rules do not lead to non-indians or non-members acquiring permanent interests in reserve land. (Ss. 5 of the Act: the protections and rights in the legislation do not affect title to reserve lands. ) Non-member spouses are entitled to a division of the appreciation in value of relevant matrimonial structures located on reserve but may not share in the appreciation in value of the related interests or rights to the lands; however, in a situation where the non-member spouse has made direct payments to improvements made to such matrimonial interests or rights, a court is able to order that they be compensated. 21

88 Valuation of Homes and Land under FHRMIRA Member and Member ½ value of family home = $50 K ½ value of land = $10 K Possible division: $60,000 Division of Value Calculation Ex. Home value $100,000 Land value $20,000 Non-Member and Member ½ value of family home = $50 K Possible division: $50 K NotNote e: Non-Members cannot share in the value of land 22

89 FHRMIRA additional information In addition to providing one spouse with a valuation owed to them in relation to rights and interests held by the other spouse for on reserve MRP, a court subject to any land code or First Nation law, can also order the transfer of any interest or right to any structure or land situated on reserve. A court may also make orders: restraining the improvident depletion of the interest or right in or to the family home; enforcing a consent agreement regarding the division of MRP that either the partners entered into varying the terms of a trust so that payment may be made to the survivor. Note: Either a spouse or an executor can bring an application to vary the amount of a valuation order, there are no internal provisions within FHRMIRA for challenging the transfer of a right or interest. 23

90 Does FHRMIRA affect custom allotments? Yes. The provisional federal rules will apply to custom allotments if the "family home" is located on such lands. provisional federal rules dealing with the division of value of matrimonial interests or rights do not automatically apply to the value of the lands that have been allotted according to custom; however, they can be applied on custom allotments which are recognized by First Nations or by the courts in accordance with the Act. 24

91 Concluding Remarks 25

92 FHRMIRA confers rights and obligations on spouses regarding the occupation of the family home and division of matrimonial property, none of these rights or obligations affect the title to the land Land continues to be reserve land and as such, cannot be held otherwise than in accordance with the Indian Act or FNLMA No transfer of ownership can result from any proceeding under FHRMIRA so the reserve land base is not affected Access FHRMIRA at 1.2/page-1.html 26

93 Concluding Remarks Despite some opposition to the imposition of provincial family laws on reserve, FHRMIRA mirrors key provisions of provincial family law legislation regarding Emergency Protection Orders, and orders for Exclusive Occupation, and echoes policy considerations influencing the equitable distribution of family property. FHRMIRA also provides for the enforcement of any consent agreements reached between the parties. Essentially, FHRMIRA masks the imposition of provincial family law legislation on reserve, under the guise of providing First Nations with the ability to enact their own laws in this regard. 27

94 Concluding Remarks Arguably, an applicant can continue to rely on the provisions and procedures provided under FHRMIRA in circumstances where a First Nation either fails to enact its own MRP laws, or where First Nation MRP laws fail to provide the same or similar provisions found under the FHRMIRA. Therefore, any First Nation laws will necessarily be modeled pursuant to the provisions of FHRMIRA. These laws will then be applied by the court rather than an on-reserve First Nation tribunal or similar First Nations body. Ultimately, FHRMIRA inevitably results in the imposition of provincial family law legislation on reserve. 28

95 29

96 If you require further information please contact: First Nations Land Management Resource Centre Inc. THANK YOU!!! 30

97 Open Discussion Existing Policy & Law Limited examples and approaches Community engagement Other Needs & Support Further research policy & law development approaches Continued networking Other 18

98 Knowledge Sharing With a significant portion of the Indian Act no longer applicable, it is necessary to reconfigure current land management functions into a new nation specific governance approach. The LGM Think Tank concept is to engage in focused discussions on land governance principles and practices, supported by operational communities who wished to share their experiences: Successes Challenges Needs Land Governance Manual Collect this information and compile a nation wide resource tool for Operational First Nations under the Framework Agreement on First Nation Land Management 19

99 LGM - Proposed Schedule & Topics FNLMRC Advanced Technical Training 2018/2019 schedule to be announced (2 per region) Please provide your input in the evaluation forms: Topics / Dates 20

100 THANK YOU!!! Your participation and feedback is appreciated If you require further information please contact: FNLM Resource Centre Inc. 21

101 First Nation Lands Register Training and Workshop November 15, 2017

102

103 Summary Conviction Offences Kevin Broughton Enforcement Advisor

104 Introduction of Summary Conviction Courts and Process 1

105 Summary Conviction Offences Generally speaking summary offences are less serious and indictable offences are more serious. Many offences can be prosecuted as either a summary offence or an indictable offence the Crown prosecutor makes this choice. These offences are called dual offences or hybrid offences. Usually, Crown prosecutors prosecute the less serious of these as summary conviction offences, but they may choose to treat them as more serious indictable offences when, for example, the accused person has a criminal record or where the circumstances make the crime more serious. Court procedures and possible sentences vary according to the category of the criminal offence. Summary means in a quick and simple manner. A judge hears summary conviction cases in provincial court. There is no choice of court, and the accused does not have a right to a jury trial. Usually, a person charged with a summary conviction offence is not arrested, but given a notice to appear in court on a certain date at a certain time. The person must be charged within six months of the offence. After this time a person cannot be charged with a summary conviction offence 2

106 Summary Conviction Offence Definition: In Canada, is a less serious offence than indictable offences and for which both the procedure and punishment tends to be less onerous. All summary conviction offences must be tried in what the Canadian Criminal Code, at Section 785, defines as summary conviction court, usually a lower-level court such as a provincial court, as opposed to a higher court, such as a Superior, Supreme or Court of Queen's bench court. In regards to sentence, offences punishable by summary conviction do not exceed six months imprisonment or a $5,000 fine, or both under the Criminal Code or as stated in the legislation in the penalty section. 3

107 Summary Conviction Court means: a person who has jurisdiction in the territorial division where the subject-matter of the proceedings is alleged to have arisen and who (a) is given jurisdiction over the proceedings by the enactment under which the proceedings are taken, (b) is a justice or provincial court judge, where the enactment under which the proceedings are taken does not expressly give jurisdiction to any person or class of persons, or (c) is a provincial court judge, where the enactment under which the proceedings are taken gives jurisdiction in respect thereof to two or more justices; trial includes the hearing of a complaint. 4

108 Powers of the Council (Indian Act Section 81) By-laws 81 (1) The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes, namely, (a) to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases; (b) the regulation of traffic; (c) the observance of law and order; (d) the prevention of disorderly conduct and nuisances; (e) the protection against and prevention of trespass by cattle and other domestic animals, the establishment of pounds, the appointment of pound-keepers, the regulation of their duties and the provision for fees and charges for their services; 5

109 (f) the construction and maintenance of watercourses, roads, bridges, ditches, fences and other local works; (g) the dividing of the reserve or a portion thereof into zones and the prohibition of the construction or maintenance of any class of buildings or the carrying on of any class of business, trade or calling in any zone; (h) the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band; (i) the survey and allotment of reserve lands among the members of the band and the establishment of a register of Certificates of Possession and Certificates of Occupation relating to allotments and the setting apart of reserve lands for common use, if authority therefor has been granted under section 60; (j) the destruction and control of noxious weeds; (k) the regulation of bee-keeping and poultry raising; (l) the construction and regulation of the use of public wells, cisterns, reservoirs and other water supplies; (m) the control or prohibition of public games, sports, races, athletic contests and other amusements; (n) the regulation of the conduct and activities of hawkers, peddlers or others who enter the reserve to buy, sell or otherwise deal in wares or merchandise; (o) the preservation, protection and management of fur-bearing animals, fish and other game on the reserve; (p) the removal and punishment of persons trespassing on the reserve or frequenting the reserve for prohibited purposes; 6

110 (p.1) the residence of band members and other persons on the reserve; (p.2) to provide for the rights of spouses or common-law partners and children who reside with members of the band on the reserve with respect to any matter in relation to which the council may make by-laws in respect of members of the band; (p.3) to authorize the Minister to make payments out of capital or revenue moneys to persons whose names were deleted from the Band List of the band; (p.4) to bring subsection 10(3) or 64.1(2) into effect in respect of the band; (q) with respect to any matter arising out of or ancillary to the exercise of powers under this section; and (r) the imposition on summary conviction of a fine not exceeding one thousand dollars or imprisonment for a term not exceeding thirty days, or both, for violation of a by-law made under this section. Power to restrain by order where conviction entered (2) Where any by-law of a band is contravened and a conviction entered, in addition to any other remedy and to any penalty imposed by the by-law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted. Power to restrain by court action (3) Where any by-law of a band passed is contravened, in addition to any other remedy and to any penalty imposed by the by-law, such contravention may be restrained by court action at the instance of the band council. 7

111 Penalty where no other provided (Indian Act Section 102, 106,107) 102 Every person who is guilty of an offence against any provision of this Act or any regulation made by the Governor in Council or the Minister for which a penalty is not provided elsewhere in this Act or the regulations is liable on summary conviction to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding three months or to both. Jurisdiction of provincial court judges 106 A provincial court judge has, with respect to matters arising under this Act, jurisdiction over the whole county, union of counties or judicial district in which the city, town or other place for which he is appointed or in which he has jurisdiction under provincial laws is situated. R.S., 1985, c. I-5, s. 106; R.S., 1985, c. 27 (1st Supp.), s Appointment of justices 107 The Governor in Council may appoint persons to be, for the purposes of this Act, justices of the peace and those persons have the powers and authority of two justices of the peace with regard to (a) any offence under this Act; 8

112 Examples of Summary Conviction Offences and Legislation Criminal Code offences Summary conviction offences Summary conviction offences encompass the most minor offences in the Criminal Code. Examples are cause disturbance and harassing telephone calls. Importing or exporting instruments or literature for illicit drug use s (a) Carrying weapon while attending public meeting s. 89(2) Causing a Disturbance s. 175(1) Disclosure of jury information s. 649 Failure to comply with order restricting publication of evidence etc. re justice system participants s and 486.6(1) Failure to keep watch on person towed s. 250(1) Found in in common gaming or betting house s. 201(2) Fraud in obtaining food, beverage or lodging s. 364(1) Fraudulently obtaining transportation s. 393(3) Interfere with boundary line s. 442 Interference with marine signal s. 439(1) Lottery offence involving ticket s. 206(4) Not safeguarding opening in ice or excavation of land s. 263(3)(c) Offences by employers re union activity s. 425 Offences involving permitted lottery scheme s (3)(b) Offences involving permitted lottery scheme (on ship) s. 207(3)(b) Offensive volatile substance s. 178 Personation at examination s. 404 Possession of slugs and tokens s. 454 Pretending to practice witchcraft s. 365 Prize fights s. 83(1) Take auto without consent s. 335 Towing of person by vessel after dark s. 250(2)No Trespassing at Night s

113 Canadian Shipping Act Small vessel Regulations Prohibition 3 No person shall operate or permit another person to operate a vessel unless the safety equipment required by these Regulations is carried on board the vessel and the equipment meets the requirements of these Regulations. Life-Saving Appliances Personal Life-Saving Appliances 204 A pleasure craft shall carry on board (a) a personal flotation device or lifejacket of an appropriate size for each person on board; (b) a reboarding device, unless the vertical height that must be climbed in order to reboard the pleasure craft is not more than 0.5 m; and (c) for the length of pleasure craft set out in column 1 of the table to this section, the additional personal lifesaving appliances set out in column 2. 10

114 In what cases may a justice receive an information Pursuant to the Criminal Code Commencement of proceedings 788. (1) Proceedings under this Part shall be commenced by laying an information in Form 2. One justice may act before the trial (2) Notwithstanding any other law that requires an information to be laid before or to be tried by two or more justices, one justice may (a) receive the information; (b) issue a summons or warrant with respect to the information; and (c) do all other things preliminary to the trial. R.S., c. C-34, s Formalities of information 789. (1) In proceedings to which this Part applies, an information (a) shall be in writing and under oath; and (b) may charge more than one offence or relate to more than one matter of complaint, but where more than one offence is charged or the information relates to more than one matter of complaint, each offence or matter of complaint, as the case may be, shall be set out in a separate count. No reference to previous convictions (2) No information in respect of an offence for which, by reason of previous convictions, a greater punishment may be imposed shall contain any reference to previous convictions. R.S., c. C-34, s

115 Requirements and Process required to commence charges for Summary Conviction offences: 1. Found Committing by Peace Officer Release on an Appearance Notice or Information and Summons 2. Reliable Witness and Statement Reasonable Grounds to believe by a person or an officer swears or affirms out an Information (Form 2). 3. Once the Justice of the Peace has reviewed and accepted the information, the information must be endorsed either confirming the Appearance Notice, or issue a summons. If satisfied there is reasonable grounds to believe an offence has been committed, the justice may issue a summons to compel the accused to attend before the justice of the peace or a provincial court of the territorial jurisdiction. 4. A peace officer or person authorized, serves the summons on the person or organization prior to the set date of attendance. 5. The Summary Conviction offences do not allow the accused to be compelled under the Identification of Criminals Act for fingerprints and photographs. 12

116 Example of an Information Form 2 13

117 Example of an Appearance Notice Form 9 14

118 Example of an Summons to a Person Charged with an Offence Form 6 15

119 First Nations Land Management Act (S.C. 1999, c. 24) Enforcement Strategy Enforcement Strategy can address issues such as trespassing, curfews, matrimonial real property disputes, problematic residential tenancies, property vandalism, emergency management and response, traffic control and some serious environmental issues such as preventing illegal dumping. First Nation Laws Power to enact laws 20 (1) The council of a First Nation has, in accordance with its land code, the power to enact laws respecting (a) interests or rights in and licenses in relation to First Nation land; (b) the development, conservation, protection, management, use and possession of First Nation land; and (c) any matter arising out of or ancillary to the exercise of that power. 16

120 First Nations Land Management Act (S.C. 1999, c. 24) Particular powers (2) Without restricting the generality of subsection (1), First Nation laws may include laws respecting (a) the regulation, control or prohibition of land use and development including zoning and subdivision control; (b) subject to section 5, the creation, acquisition and granting of interests or rights in and licenses in relation to First Nation land and prohibitions in relation thereto; (c) environmental assessment and environmental protection; (d) the provision of local services in relation to First Nation land and the imposition of equitable user charges for those services; and (e) the provision of services for the resolution of disputes in relation to First Nation land. Enforcement measures (3) A First Nation law may provide for enforcement measures, consistent with federal laws, such as the power to inspect, search and seize and to order compulsory sampling, testing and the production of information. Inconsistency (4) In the event of any inconsistency or conflict between the land code of a First Nation and the provisions of a First Nation law or of a by-law made by its council under section 81 of the Indian Act, the land code prevails to the extent of the inconsistency or conflict. 1999, c. 24, s. 20; 2007, c. 17, s. 8; 17

121 There is a necessity to create laws providing proper authority for the police and other persons appointed to properly carry out the desires of the First Nation and Band Council as expressed in their laws, consistent with the Charter of Rights and Freedoms. First Nations have authority, if they wish, to incorporate federal or provincial legislation and laws of other land code First Nations. This can be a convenient starting point for laws on an interim basis while internal legislation and processes are developed. The creation of a complete set of laws will empower the Police and other persons appointed to successfully investigate, identify the culprits, and provide the court or tribunal with evidence of the offences or contraventions against First Nation Laws (enforcement must be clearly based on laws). Following the proper rules in accordance with the Charter of Rights and legislation enacted in accordance with the Framework Agreement and land codes, can lead to appropriate remedies including restorative justice measures or penalties (failure to follow required procedures or meet basic fairness requirements will cause enforcement to fail). There is considerable flexibility to address infractions of the law, with only a fraction going all the way to a sentence imposed by courts. Along with the proper enforcement measures, approved laws will protect the Band Council and any persons or Police Service acting on their behalf mitigating them from civil litigation and avoid putting individuals and/or organizations at risk. 18

122 First Nations Land Management Resource Centre Lands Advisory Board Kevin Broughton, Enforcement Advisor (e): 19

123 Akwesasne Court System Gilbert Terrance Court Administrator

124 Temagami Land Code Vote June 24, 2017

125 Provincial Working Group Updates Questions and Answers Ministry of Indigenous Relations and Reconciliation Ontario

126 Restorative Justice Project Andrew Beynon Law Making and Enforcement Advisor Ministry of the Attorney General

127 Framework Agreement Amendments FNLM Technical Training Workshop November, 2017

128 Framework Agreement Amendments The Lands Advisory Board s strategic plan sets a 2020 target for amendments to make the Framework Agreement even stronger. Lands Advisory Board held a May 2017 Special Meeting of Framework Agreement First Nations and agreed to the following objectives: 1. amendments to voting procedures to make it easier for more First Nations to opt out of the Indian Act; 2. clarifying self government authority of FA Nations; 3. new provisions for additions to reserve; and 4. updating the Framework Agreemnent in light of UNDRIP.

129 Amendments Two Phase Approach INAC has proposed a two phase approach to the Framework Agreement amendments. Phase 1 subjects within INAC s authority and Phase 2 for more complex subjects involving other federal departments (for example environment improvements will await Phase 2). Our target is to finalize Framework Agreement amendments by the end of 2017 but INAC has requested that ratification by Framework Agreement First Nations occur in early 2018 so that Canada can complete cabinet consultations Canada s target is to table legislation to ratify the Framework Agreement amendment in spring-summer 2018

130 Federal Review of Laws The Prime Minister established a Working Group of Ministers to examine federal laws affecting Indigenous peoples The Lands Advisory Board has submitted recommendations to the Working Group, including a recommendation to replace the federal legislation which ratifies the Framework Agreement with much shorter legislation exclusively focused on ratifying the Framework Agreement..and adopting a new UNDRIP clause Timing of INAC s Phase 1 FA Amendments relative to the work of the Working Group of Ministers is unclear potentially in Parliament at the same time in spring-summer 2018?

131 Splitting up INAC The Prime Minister announced that INAC will be formally split into two departments. According to news reports, federal legislation to replace the Department of Indian Affairs and Northern Development Act and name the two Ministers is targeted for spring of Framework Agreement amendments could be made to track the new Minister rather than the Minister of Indian Affairs and Northern Development Timing of INAC s Phase 1 Framework Agreement amendments relative to the Working Group of Ministers and relative to legislation to split INAC is unclear potentially all of this in Parliament at the same time in springsummer 2018?

132 Potential Phase 1 Framework Agreement Amendments UNDRIP clause in Phase 1 likely just an introductory clause to acknowledge Canada s commitment to UNDRIP..may help guide the courts on interpretation of the Framework Agreement Changes to voting eliminate the minimum 25% threshold of yes votes verifier is only required to confirm that the land code and voting process comply with the Framework Agreement.not monitor the actual vote or appeals individual First Nations can still set a minimum threshold and use the verifier for the whole process if they want Expanded list of self government law making powers the Framework Agreement sets broad powers to make laws regarding lands, natural resources and environment a new list of examples of environmental law making powers will be added

133 Potential Phase 1 Framework Agreement Amendments (continued) Matrimonial real property expansion of current provisions to go beyond breakdown of marriage to full range of MRP under other federal laws recognizing self government (eg. death of spouse.) eliminate the 12 month period for First Nations to make MRP rules and eliminate dispute resolution with Canada regarding land code provisions eliminate land code obligations regarding MRP (discretionary instead) and set out MRP law making powers notice requirement to provinces or territories when proposing to make MRP laws Publishing land codes eliminate the current requirement for Lands Advisory Board to maintain land code amendments replace with individual First Nations publishing on website or other means their land codes and amendments Limitation of liability for First Nation governments provisions to limit liability of employees and volunteers working for First Nations must be within the limits typical under provincial law of the province within which a First Nation is located

134 Potential Phase 1 Framework Agreement Amendments (continued) Indian moneys provisions for transfer of all capital moneys in addition to the transfer of revenue monies already provided for in the Framework Agreement First Nations opting into the Framework Agreement in future would automatically receive capital and revenue moneys existing operational First Nations would have to request a transfer of capital moneys First Nations lands registry authority to make federal regulations to replace the current federal lands registry with a First Nation led registry these federal regulations may require several years to develop (certainty, informatics systems and costs are key issues)

135 Potential Phase 1 Framework Agreement Amendments (continued) Additions to reserve lands added to reserve automatically become First Nation land over which Framework Agreement First Nations have authority additions to reserve by Ministerial order rather than federal Order-in-Council (potential to cut off part of the delay in current process) discretion for First Nations to accept third party interests and provide for replacement interests before reserves are created First Nation discretion no obligation to do so discretion for First Nations to impose land use restrictions (eg zoning laws) in advance of reserve creation First Nation discretion no obligation to do so

136 Potential Phase 1 Framework Agreement Amendments (continued) Enforcement & Agreements with other Governments authority to enter agreements with other governments and bodies to perform duties or exercise powers under First Nation laws no obligation to do so potentially useful for policing agreements, appointing experts dealing with building codes.. authority to establish liens, garnishment or similar remedies to collect debts and authority to add non-tax debts to property taxes eliminate land code obligations regarding MRP (discretionary instead) and set out MRP law making powers Eliminating Effect of Indian Act designations provision to clarify that old Indian Act designations have no relevance to a land code First Nation

137 Next Steps Canada is targeting February for Cabinet approval of drafting instructions for FA amendments October and November targeted for intense drafting French and English versions of Phase 1 amendments to the FA and FNLMA require our approval An FA amendment package will be sent to FA First Nations for approval target February or March 2018 The devil is in the details of drafting some proposals may prove too difficult to agree upon Canada cannot unilaterally change the Framework Agreement - amendments must be approved by at least 2/3 of FA First Nations

138 New Signatories to the Framework Agreement on First Nation Land Management (2016 and 2017) Eastern Region Paq tnkek Mi kmaw Nation Nova Scotia Listuguj Mi gmaq Quebec Woodstock New Brunswick Brunswick House - Ontario Wikwemikong - Ontario Animbiigoo Zaagi igan Anishnaabek - Ontario Chapleau Cree - Ontario Big Grassy - Ontario Hiawatha - Ontario Mattagami - Ontario Saugeen - Ontario Sheshegwaning - Ontario Rainy River - Ontario

139 Taxation on Fee Simple Lands and Taxes in Lieu Joan McLeod Nipissing Nation Lands Manager

140 Nipissing Nation Land Management Land Tenures Taxation November 2017

141 Towards self government Request by Chief and Council for control of land (1980) Land Management Delegation under Indian Act since 1982 (1989) Chartered Land Act (1988) First Nation Land Management Act (1999) Nipissing Land Code ratified May 2003, came into effect July 1, 2003

142 Nipissing Ghi chi Naaknegewin Part 16 Our Land Laws - Lands and Land Management Nipissing Nation maintains Aboriginal title over its own traditional territory, including the lands set aside by the Robinson Huron Treaty of 1850 and any other land titles that may be gained in the future for the benefit of its People. Part 17 - Environment & Natural Resources Nipissing Nation has exclusive jurisdiction to make laws with respect to environmental protection of natural resources. These laws shall be in accordance with Nipissing Nation cultural practices designed to sustain and maintain our lands, fish, forest, wildlife, water and air and our heritage for future generations.

143 Nipissing Land base 64, ac (26, ha) Nipissing Territory 26, sq. km 6,555,892 ac (2,653,075 ha) Nipissing Territory & Trade Routes Has the capability of owning 3 additional Reserves adding to land base an additional 109,400 acres (44,272.6 ha)

144 Nipissing People have a land base of 64, acres (26, ha) and is managed under different land tenures

145 Nipissing Land Tenures Acreage Hectares Nipissing I. R. #10 19, , Est. Land Under water 325 Lake Nipissing Shore Remaining Unsold Surrendered Additions to Reserve Specific Agreement 33, , ATR Corp Fee Simple Lands Exemption grandfathered Purchased from Ontario Schedule 'J ATR Corp ATR Schedule 'I 1, Corporate Purchases 107 & 114 On Inc Purchases prior '97 Exempt. Ach. ATR & Patterson Ossuary 3, , Purchased after '97 No Exempt. ATR 3, , Former Railway Lands Not Exempt Pending Corporate purchases Not exempt Total Corporate Fee Simple 10, , TOTAL NIPISSING LAND HOLDINGS 64, ,057.22

146 Nipissing IR #10 proper

147 Unsold Surrendered and ATR

148 Corporate Lands ATR grandfathered Tax Exempt

149 Nipissing Nation Corporate Tax Exempt

150 and Corporate Tax Exempt

151 Nipissing Nation Corporate Not Tax Exempt

152 Corporate Not Tax Exempt

153 Corporate (1997) Not Tax Exempt

154 Corporate Patterson Tax Exempt

155 Nipissing Nation Land Holdings

156 Nipissing has designated lands for commercial industrial use. Phases 2, 3, 4 & 5 are within grand fathered tax exemption under the Specific Agreement of 1995 Phase 1 Couchie Industrial Park since 1955 Phase 2 Bineshii Commercial Industrial Park since 1990 Phase 3 & 4 Bineshii future expansion Phase 5 Other commercial lands

157

158 How Convenient Entrepreneur Bill McLeod

159 Yellek Storage & Blue Sky Travel Entrepreneur Garnet Avery

160 Eagle s Nest Owner - Douglas Chevrier

161 Young Landscaping & Forestry Ltd Entrepreneur Brian Young

162 Lessee Union of Ontario Indians/Anishnabek Management

163 Lessee Nipissing Quarry McAsphalt Miller

164 Lessee Northern Brick & Tile

165 Lessee Miller Paving Ltd, McAsphalt.

166 Nipissing Trusts on Corporate Land Beneficial Owner is a Band as defined under the Indian Act; Trustees appointed to MANAGE land (Chief, Deputy Chief and highest ranking Councillor); Trustees Holds legal title to the Lands in trust and as bare trustee for the sole use, benefit and advantage of the Beneficial Owner and that all proceeds (including revenues) accruing or to accrue there from are to be held in trust for the Beneficial Owner as exclusive beneficiary. Trustee s Responsibility enter into such agreements and other contracts as agent of the Beneficial Owner Nipissing Land Office provides management as well as administrative services for the Trusts.

167 Section 83 of Indian Act Nations have taxation capabilities under the I.A. Sec. 83 and may tax for a number of uses including Nation Member property taxation. Nipissing ONLY utilizes Section 83 for nonnation service levies and for PILT or Grants In Lieu payments for easements & RW s.

168 Section 87 of the Indian Act: (1) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83 and section 5 of the First Nations Fiscal Management Act, the following property is exempt from taxation (a) the interest of an Indian or a band in reserve lands or surrendered lands; and (b) the personal property of an Indian or a band situated on a reserve. (2) No Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property mentioned in paragraph (1)(a) or (b) or is otherwise subject to taxation in respect of any such property. (3) No succession duty, inheritance tax or estate duty is payable on the death of any Indian in respect of any property mentioned in paragraphs (1)(a) or (b) or the succession thereto if the property passes to an Indian, nor shall any such property be taken into account in determining the duty payable under the Dominion Succession Duty Act, chapter 89 of the Revised Statutes of Canada, 1952, or the tax payable under the Estate Tax Act, chapter E-9 of the Revised Statutes of Canada, 1970, on or in respect of other property passing to an Indian.

169 Native businesses located on Nipissing Corporate Fee Simple Land, not exempt or not grandfathered under the 1995 Specific Agreement

170 Nation owned businesses should ensure that their goods, personal property, services and income remain protected under Section 87 of Indian Act. Native business owners are encouraged to follow the rules defined by court decisions: Business CARRYING ON REVENUE GENERATING ACTIVITIES must be located on reserve; Income is earned on reserve; or other less important CONNECTING FACTORS could determine tax exemption; 1. Whether or not owner of business resides on a reserve; 2. Whether the business maintains an office or take business orders from a location on a reserve; 3. Whether the business s books and records are kept on a reserve; 4. Whether business s administrative, clerical and accounting activities take place on a reserve;

171 Other Exemptions: Native Organizations and INAC Native employees have achieved exemptions for all or a percentage of the Native employee earnings prorated based on job activities taking place on a reserve, or related to native government.

172 Income of Partners of a Native Businesses are taxed in the same way as any other business. No taxation rights may be transferred to a nonnative business partner.

173 Nipissing Land Code Section 35 (1) of Nipissing Land Code is being utilized to set in place the Memorandum of Understanding and license for PILT (HONI).

174 Hydro One Transmission Line (28-2 Permit)

175 Tim s Convenience Entrepreneur Tim McLeod

176 Necessities Nipissing Entrepreneur Louis McLeod

177 Short Radar Range Base-NavCan Lessee

178 Fishing Activities (RESOURCES): CRA determination if a commercial fishery business income is taxable by utilizing CONNNECTING FACTORS The location of the fishing activities - catching, preparing and transporting the fish and, The location of the selling activities including the location of the customers and The location of the sale of the fish CRA will apply where connections between the reserve and the fishing are bonafide and there is no artificial manipulation of connecting factors, ALL the following must be met: Fishing activities in waters near or abutting the reserve have a significant historical and continuing important economic connection to the reserve and Fisherman is a member of a cooperative of band members or a member of a band that owns and operates an organization located on the reserve that has a predominant role in fisherman(s) fishing and selling activities and An important role in the general economic life of the reserve.

179 Miigwetch, Thank You & Merci