The Lheidli T’enneh is one of fourteen First Nations in Canada who is party to a Framework Agreement on First Nation Land Management. The federal government is also a party to the agreement and ratified it through the First Nation Land Management Act on June 17, 1999. The province of British Columbia is not a party to this process.
The Agreement and legislation enable the fourteen First Nations to take over management and administration of their reserve lands from the Department of Indian Affairs. In order to do this, each First Nation must enact a Land Code. A Land Code serves two purposes:
- It is the First Nation’s ratification of the Framework Agreement; and
- It is the First Nation’s fundamental land law, setting out the basic rules for its own land and resource administration and enabling them to pass other land laws in the future.
Implementation of the Land Code would be supported by a formal Transfer Agreement with the Department of Indian Affairs which would provide, among other things, the funding to support this initiative.
The Lheidli T’enneh Land Code was drafted by an interim community advisory committee. It contains nine parts, summarized as follows:
Part 1: Preliminary Matters
This part contains a Preamble setting out the community’s desire for future self-reliance based on its culture, traditions and values. It provides definitions for terms used in the Land Code and sets out the basic purpose and principals which underlie the Code. In particular:
- The Land Code takes priority over other Band laws if such laws are inconsistent with the Code;
- The Code will be liberally interpreted in accordance with Lheidli T’enneh values;
- Aboriginal and treaty rights and the fiduciary relationship with Canada are asserted and preserved;
- The term “land” also applies to natural resources and water; and
- The Lheidli T’enneh reserves to which the Code applies are described and there is provision for applying the Code to other reserves in the future.
Part 2: First Nation Legislation
This part sets out the authority and procedures by which Lheidli T’enneh Band Council may enact land laws. This general authority includes the power to regulate development, conservation, protection, management, use and possession of reserve land and resources. Examples of laws that may be made are listed in section 6.2, and include zoning, leases, permits, environmental assessment, environmental protection, enforcement and settlement of disputes.
Copies of Lheidli T’enneh laws must be available to members and the public.
Part 3: Community Approvals
This part sets out the procedures for community consultation and voting on land laws. It also provides for notice of community meetings and the right of all members to attend.
All land laws will require a community consultation. The primary consultation body will be the elected Lands Authority described in Part 6. Other proposed laws require more formal discussion at a full community meeting. These include laws regarding community plans, subdivisions, additions of new lands un the Land Code, heritage sites, environmentally sensitive sites, environmental assessment, transfer of tenures, rates and fees. The Land Code requires that community consultation process be formalized within a reasonable time after the Code in enacted.
Some land laws will also require full community approval through a voting process. These laws include land use plans, any grant or disposition of an interest in reserve land and resources, mortgage of leases, spousal property and amendment to the Land Code. Any Band Member who is at least eighteen years old on the date of a vote is eligible to vote and twenty-five percent of the eligible voters constitute a quorum.
More formal approval by community ratification vote is required for development on designated heritage sites, exchange of reserve land and certain amendments to the Transfer Agreement. Council has the right to increase, but not decrease, the requirements for community approvals and ratification.
Part 4: Protection of Land
This part enables the Band to pass laws to expropriate interests in reserve lands for community purposes. Such laws are required to include a fair process, formal community consultations, compensation and dispute resolution.
It also provides for protection of community heritage sites and voluntary exchange of reserve lands for other lands of equivalent size and area. Such land exchanges are made subject to strict standards.
Part 5: Accountability
This part establishes rules to prevent conflict of interest for Council members, employees and Band land officials. The basic requirement is that if such persons have a vested interest in a decision, they are required to declare the interest and refrain from participating in the decision-making process. If Council is unable to act due to a conflict of interest, the matter is referred to a community meeting. If a community land board, committee or other body is unable to act, the matter is elevated to Council. No more than two members of the same family may serve on any land board, committee or other such body dealing with land matters.
This part of the Code also established measures for management of land-related funds, including separate bank accounts, designation of signing officers, bonding and audits. Annual budgets must be disclosed to the community and are binding on the Council. Financial records must be maintained and made available to members.
Part 6: Land Administration
This part requires election of a three-to-five member community Lands Authority to assist and advise Council on implementation of the Land Code, to assist with community consultations and information and to recommend necessary laws and policies. One member of the Lands Authority will be appointed by Council and will serve as chair. Members will serve a staggered term and be elected within fourteen days of a band election. Any member over the age of eighteen years is eligible to serve on the Lands Authority, except for members who have been convicted of a criminal offence or election violation, or who are bankrupt.
The Lands Authority is required to work with Council to establish land-related fee schedules and employee standards.
This part also provides for registration of reserve land and resource tenures in a formal Registry.
Part 7: Interests and Licenses and Lands
This part ensures that the Band’s Land Code provides the only mechanism for creating tenures on reserve lands. It enables Council to enact law for granting tenures and setting standards for such tenures, and specifically provides authority to issue residential lots and permanent land possession tenures to members and for those members to benefit from the resources on their tenures. It also restricts the kinds of tenures non-members may hold. Reserve land may be mortgaged to the Band and leases may be mortgaged with written consent of Council. Default provisions ensure that mortgaged reserve land will not be lost.
Tenures which exist at the time the Land Code in enacted will continue to exist. Members are permitted to transfer their interests to other members.
The right of members, invitees and tenure holders to reside on Reserve land is recognized, as is a right of access to interest holders. The Code creates an offence of trespass for persons who reside, enter or use Reserve lands without authority.
Members may pass on their interests through a Will. Unless a member’s will provides otherwise, surviving spouses, including common-law spouses, are entitled to reside on the member’s land until the deceased’s relatives or the community decide on disposition of the interest.
Section 39 requires council to enact a law governing disposition of spousal property upon breakup of a marriage. Such a law must be enacted within one year of the Land Code taking effect and will also apply to common-law marriages which have lasted at least a year. The law-making process requires community consultation and will respect principals set out in the Code, including the interests of any children of the marriage. These principals are non-discriminatory and reflect the general laws of British Columbia.
Part 8: Dispute Resolution
This part establishes a process for community-based settlement of land and resource disputes. Disputes may be heard by a representative three member panel appointed by the Lands Authority. Special provisions are made for the appointment of an independent panel if the Lands Authority is a party to the dispute. Any land-related dispute, including those arising prior to enactment of the Land Code, can be referred to the Panel.
This process is optional and all other court or other civil processes can still be used.
Panelists will serve voluntarily for three year terms and are required to act impartially. It is an offense to attempt to influence a panel member. The panel has broad powers to resolve disputes and its decisions are binding.
Part 9: Other Matters
The final part of the Land Code establishes requirements for liability insurance covering the First Nation and its representatives and employees.
It also provides that offences again the Code can be prosecuted as summary conviction offences. The Band is empowered to appoint Justices of the Peace to enforce the Code, or alternatively, to rely on the provincial court system.
Finally, the Land Code and Transfer Agreement come into effect only after being ratified by community vote.