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Interim Updates

Additions to Reserve (“ATR”) is a federal policy established in 1972 to create a process of adding land to a First Nation’s reserve land base. It was subsequently updated in 1991, 2001 and 2016. Updates were supposed to make the process easier and more First Nations’ friendly. Instead, we ended up with a complex, lengthy and expensive process. Some ATRs have been done in a couple of years but many last over a decade. It is well established that the current ATR process is problematic and does not serve First Nations.
 
The federal government is in the midst of an ATR redesign. It is a multi-stage, multi-year process with the goal of making the process responsive to First Nations’ needs. Crown-Indigenous Relations and Northern Affairs Canada (“CIRNAC”) announced nine interim changes to the ATR process which take effect immediately. These changes are designed to address barriers, mitigate delays and inflexibility in the current process. The nine interim updates include changes to:

1. ATR proposal intake form
   • Streamlines the ATR proposal intake form and removes the need to provide information that isn’t needed until later in the process (not yet available, projected for early 2025)
2. Environmental site assessments
   • Removes the five year “stale date” on environmental site assessments, as long as no significant changes have occurred since the original assessment
   • Provides that First Nations can enter into an agreement with a third party that accepts financial responsibility for addressing contamination on the proposed reserve land
3. Dispute resolution
   • Recognizes that dispute resolution mechanisms should be informed by First Nations and not Canada or third parties
   • Clarifies that despite outstanding issues or concerns, where dispute resolution options have been explored, Canada may agree to support a reserve creation proposal
4. Improvements to proposed reserve land
   • Clarifies that First Nations may want to discuss improvements to lands proposed for reserve with ISC to identify potential concerns and how to best mitigate them
5. Notifying provinces, territories and other federal departments
   • Removes the 90-day mandatory waiting period for other federal departments to review reserve creation proposals
   • Clarifies that issues identified by provinces and territories may not need to be resolved for a reserve creation proposal to advance
6. Municipal service agreement
   • Adds flexibility by clarifying that servicing lands proposed for reserve could take many forms and does not always involve neighbouring municipalities
   • Outlines scenarios where services may not be required for reserve creationSupports a flexible approach to servicing lands proposed for reserve
   • Clearly defines the minimum services required for lands proposed for reserve creation
7. Joint reserves
   • Eliminates the one-size-fits-all approach and minimizes the requirements for joint reserve creation
   • Clarifies that joint reserve creation proposals will be considered where First Nations governance and management of a joint reserve have been addressed
8. Removal of the justification framework
   • It is no longer required for a First Nation to justify the need for the land
9. Removal of categories
   • It is no longer required for a First Nation to fit their ATR into a specific category

Each update will impact individual ATRs differently as each is unique to the First Nation and that specific ATR application.

Land is fundamental to your community, and it is our privilege to help First Nations get land back. The Indigenous Practice Group at Foglers has expertise in land issues and guiding First Nations through ATRs, among an array of other available services and expertise. Please reach out to us to further understand the importance and impacts of the new changes or on any other matter: we are happy to hear from you.

This publication is intended for general information purposes only and should not be relied upon as legal advice.