The Framework Agreement on First Nations Land Management Act - A Critical Perspective

What is it?

            The Framework Agreement on First Nations Land Management Act (“Framework Agreement”) came into force in December 2022. The Framework Agreement is a series of laws that replace the First Nations Land Management Act (FNLMA), which has been around since 1999. 

            The Framework Agreement was developed with the Lands Advisory Board and the First Nations Land Management Resource Centre (which are First Nation organizations). The Framework Agreement provided some much-needed updates to the FNLMA, bringing it more in line with the United Nations Declaration on the Rights of Indigenous Peoples, specifically the provisions about land management and Indigenous-led processes. 

How Does it Work?

            The Framework Agreement is an opt-in program that allows a First Nation to bypass 44 lands-related sections of the Indian Act. The First Nation can create what is called a land code, a series of laws and bylaws about land, and subsequently build a land management administration. After the community has approved the land code, the First Nation manages the land.

            The Framework Agreement does not provide individual First Nations members the opportunity to own land privately. The general rule is that no one can possess reserve lands unless they have been issued a certificate of possession, according to section 20 of the Indian Act. Band councils can also grant custom allotments, but this has been highly political because their creation lies in the gift of the band council and as a gift, custom allotments can also be taken away.

            Once a community has a land code in place, it is up to them to decide what to do with the land and how to manage their resources. This replaces the tedious (and infantilizing) process of having to have every decision checked out and approved by the government.

To What Land Does It Apply?

            Under Section 91(24) of the Constitution, the federal government is responsible for “Indians and Lands reserved for Indians.” These lands include reserves, which are federal lands that are for the collective use and occupation of Indian bands/First Nations. The same idea is set out in section 18(1) of the Indian Act. The Framework Agreement applies to reserve lands only, so it only impacts First Nations on reserve lands.

Who Does It Apply To?

            The Framework Agreement is opt-in, which means that a First Nations can register and then begin the process of developing a land code and establishing a land management system, including laws and land management administration. After all of this is in place, then the First Nation is the one managing what happens on and to the land, rather than the Department of Indian Affairs under the Indian Act.

Why Does the Government Support It?

            When it comes to First Nations within Canada, the government in recent years has shifted away from a welfare state model (in which the state takes responsibility for funding social services) and has moved towards a neoliberal model. The neoliberal model explains how the state relates to First Nations communities. It is rooted in self-sufficiency, economic development, and market-based solutions. It places the “blame” for an individual’s quality of life on that person and contradicts widely shared Indigenous values of collectivism. The emphasis on independence takes a zoomed-in approach and ignores bigger power structures that impact First Nations communities' experiences of (un)wellness. The government of Canada has moved toward this model, especially when it comes to self-determination for Indigenous communities. If a community can be financially independent, then the financial burden and responsibility of the state are lessened, allowing it to continue to defund social services. The Government of Canada has championed neoliberal self-determination models as a key feature in addressing the socio-economic gap and the disproportionate levels of poverty between First Nations communities and the rest of Canada. The Framework Agreement is a neoliberal model of self-determination. It is a step in the direction of providing more control over land to a community and relieving the state of some of its financial obligations to communities. 

Benefits

            The Framework Agreement has been praised for giving control of the land back to First Nations. When a land code is adopted, 44 land-management sections of the Indian Act no longer apply. The Framework Agreement also does not impact constitutionally entrenched rights. This includes Aboriginal rights under section 35 of the Constitution and established Aboriginal title.

            By cutting out the need for government approval, the nation can move swiftly and effectively. A review of the new system demonstrated that leases and permits that could take on average 584 days under the Indian Act now take about 17 days under a land code. This allows for much more involved participation in business endeavours and trade.

            The Framework Agreement can help First Nations increase economic independence. A nation is in control of their own land, allowing them to participate in land development and resource extraction in profitable ways. The goal of increased profits is to pour that money back into social services on reserves, thereby relieving some of the stress caused by the chronic underfunding of social services at the hands of the government.

            Another benefit of the Framework Agreement is that it is not a private property system in a way that would shrink the land base of a First Nation. The land is owned and managed by the First Nation as a collective. Individual interest can be granted to members, but a 100% private or “fee simple” interest is impossible. For that reason, the actual land base of the nation is not broken up and sold piecemeal. This protects the land base of a nation.

            There are also several institutions in place to support a First Nation throughout the process of developing a land code and managing their affairs. These include the Land Advisory Board, which was in existence before 1996, and the implementation of the FNLMA and the First Nations Land Management Resource Centre, which has been in operation since 1999. The Framework Agreement also allows First Nations to join forces with other nations and create a joint land code, which helps them save on costs for all the administrative work involved in the process.

            By opening reserve lands and reserve resources to different financial opportunities, the community’s economic well-being shifts from being dependent on their relationship with the federal government, based on Aboriginal title, to a market-based relationship centred on an interest in profits. 

            The Framework Agreement has been labelled as a “stepping stone” to broader self-government powers. It has been said that it gives a First Nation enough wiggle room to test out the waters of governance without the responsibility for all aspects of governance on a reserve. It also minimizes the need for a First Nation to negotiate a full modern treaty (or land claim) agreement, which can take decades. The land code development process is pretty effectively streamlined. According to the Land Advisory Board, as of February 26, 2024, the 117th land code made under the Framework Agreement was approved. 

Critiques

            The Framework Agreement has been criticized for several reasons. One of the key critiques of the Framework Agreement is that it fundamentally misunderstands the First Nations' relationship to land. By opening up the land to resource extraction, the land is misunderstood as a collection of material resources to be exploited, rather than as an arrangement of reciprocal relations and obligations. The neoliberal model that the government is offering up is focused on self-sufficiency, economic independence, and market-based solutions. This model of self-determination relies on a nation to potentially resort to land development and resource extraction as a means of improving economic conditions on the reserve. The Framework Agreement and the land codes developed under it assume that altering the core of a relationship to the land will not change the character of Indigenous peoples and the structures of their communities.

            There are also negative impacts associated with land development and resource extraction. There can be harm to the land, the water, the animals, and humans, and these impacts limit or constrain the ability of people to live off the land. The sustainability of the resource extraction processes under any given land code has been questioned. Self-determination that is not sustainable has been called a hollow paper right. For self-determination to be meaningful, it needs to be economically, environmentally, and culturally sustainable and intimately connected to Indigenous relationships with nature. 

            Another critique is that the Framework Agreement does not require a broad consensus before a land code can be approved. In 2018, changes to the Framework Agreement removed the minimum approval percentage for community participation. Now, as long as the Council publishes notice of the vote, even if only 10% or 5% of band membership votes, then the land code will come into effect.

            The Framework Agreement has been said to overwrite treaty history and obligations. It is a limited type of self-determination. Canadian ideals and concepts of property are seen as culture-free and superior, and so it’s assumed they can easily be transported into different First Nations without consequences.

            The Framework Agreement has also been found to have positive benefits for the Canadian economy. The money generated through increased profits accumulating on reserve lands eventually flows into the Canadian economy. Consulting firms have evaluated the Framework Agreement and have called it a success because of its impact on the Canadian economy. There are currently no studies showing whether the Framework Agreement has reduced poverty on reserve or whether the increased overall wealth of a First Nation has improved socio-economic status, including health, language renewal, or cultural revitalization. 

            The Framework Agreement also has several gendered implications. One of the key issues is that the increase in control and power over reserve lands usually ends up in the hands of band councils and chiefs who have been imposed under the Indian Act. These governance structures tend to be male-dominated, which leaves First Nations women on the outside of conversations about land management. Indigenous women and gender-diverse people tend to be left out of research and consultation in developing land codes, even when that research is meant to speak for the interests of an entire community. Indigenous women are also more likely to live in urban centres and so stand to benefit less from the Framework Agreement because increased economic activity on reserve has fewer upsides for them. The new land codes are a version of property law that is created out of state property law and Indigenous legal traditions around property coming together. Property law is assumed to be free from any political implications. However, it is steeped in the same power dynamics of class, gender, and sexuality that marginalize Indigenous women at all different levels of social, political and economic life. 

Questions Left Unanswered

            While there are certainly arguments to be made about increased economic opportunities and improved quality of life, questions about the Framework Agreement remain. Does creating a land code support the actual workings of Indigenous legal systems? Is increased economic opportunity for resource extraction on reserves the answer to all social ills? Are neoliberal self-determination schemes a band-aid solution, or do they have long-term promise? Is there a way to find a balance between theorizing what is the “right” model of self-determination while still practicing self-determination in what is maybe a less-than-perfect form?