• Problems
• Membertou First Nation and the FNLMF

Problem Context #

Please read this CBC News article, in which former Senator Dan Christmas, the first Mi’kmaw member of the Canadian Senate, describes challenges the Membertou First Nation has faced with respect to lands governance under the federal Indian Act and how his community has responded to these challenges.

As the article notes, Membertou has recently opted out of the lands-related provisions of the Indian Act and opted into an alternative federal regime under the First Nations Lands Management Act (FNLMA). This legislation was subsequently repealed in 2022 and replaced by the Framework Agreement on First Nation Land Management Act, SC 2022, c 19 (FAFNLMA). The FAFNLMA gives effect to the Framework Agreement on First Nations Land Management, which empowers participating First Nations to create their own Land Code dealing with property and lands-related governance on their reserve lands.

Membertou adopted its current Land Code in 2019. Some key provisions from this Land Code are excerpted below.

Membertou Land Code, 2019 (excerpts) #

Preamble

WHEREAS Membertou is a part of the Mi’kmaw Nation whose ancestors have used and occupied Mi’kma’ki from time immemorial;

WHEREAS Membertou has an unextinguished right to self-determination, as affirmed by the United Nations Declaration on the Rights of Indigenous People, which includes a right to govern itself, its members and its lands;

WHEREAS Membertou has an unextinguished and inherent right of self-governance which emanates from its people, culture, language, land and aboriginal and treaty rights, which are recognized by section 35 of the Constitution Act, 1982;

WHEREAS Membertou has a profound relationship with the lands and waters that is rooted in respect for the Spiritual value of the Earth and the gifts of the Creator. Membertou wishes to preserve and protect its relationship with the lands and waters as well as to ensure sustainability and appropriate stewardship for the benefit of future generations;

WHEREAS Membertou hereby recognizes and affirms the existence of Treaty and Aboriginal Rights as separate, distinct and unaffected by this Land Code;

WHEREAS Membertou hereby recognizes and affirms the collective rights of its members to the land, water and resources;

WHEREAS Membertou has entered into the Framework Agreement on First Nation Land Management with Canada, as amended, and which was ratified on behalf of the Government of Canada by the First Nations Land Management Act;

AND WHEREAS Membertou, as an aspect of its unextinguished right to self-determination and its unextinguished and inherent right of self-governance, has jurisdiction to create rules for the resolution of issues on Membertou lands, waters and resources, rather than having its lands, waters and their resources managed on its behalf under the Indian Act or any other statute;

NOW THEREFORE, this Land Code is hereby enacted as the fundamental land law of Membertou as follows:

[…]

3.6 The structures, organizations and procedures established by or under its Land Code shall be interpreted in accordance with the culture, traditions and customs of Membertou, unless otherwise provided.

3.7 The Mi’kmaw language may be used to clarify the meaning of any provision in this Land Code, if the meaning of that provision is not otherwise clear in English.

[…]

7.1 The [Band] Council may, in accordance with this Land Code, make laws respecting the development, conservation, protection, management, use and possession of Membertou Land, Waters and Resources, and Interests and Licenses in relation to those Membertou Land, Waters and Resources. This power includes the power to make laws in relation to any matter necessary or ancillary to the making of laws in relation to Membertou Lands, Water and Resources.

[…]

25.5 A person who is not a Member may hold a lease, licence, easement, mortgage or permit in Membertou lands.

25.6 The written consent of Council shall be obtained for the original grant of a lease, licence, easement or permit in community land, waters and resources to a person who is not a Member.

25.7 Notwithstanding section 25.5, if Council has consented to the original grant of a lease in Membertou Land, Waters and Resources to a person who is not a Member, that leasehold interest may be subsequently mortgaged, transferred or assigned without the consent of Council or approval of members.

28.1 Council may enact laws providing for an Interest in Membertou Land, Waters and Resources that entitles a Member holding that Interest to:

(a) permanent possession of the land;

(b) benefit from the resources in and of the land;

(c) grant subsidiary interests, licences and permits in the land;

(d) transfer, devise or otherwise dispose of the land to another Member; and

(e) any other rights, consistent with this Land Code, that are attached to Certificates of Possession under the Indian Act.

28.2 For greater certainty, no interest under section 28.1, may be granted to or held by a person who is not a Member.

28.3 Members may transfer or assign their Interest in Membertou Land, Waters and Resources to Membertou or a Member without the consent of Council.

[…]

28.5 There shall be no transfer or assignment of an Interest in Membertou land without the written consent of Council, except for:

(a) transfers between Members;

(b) transfers that occur by operation of law, including transfers of estate by testamentary disposition; and

(c) transfers in accordance with the Membertou Family Homes Law, 2016. reserve law.

Weekly Problem #

Before addressing the questions below, please read the Guerin case, along with the excerpts provided from the federal Indian Act and the Framework Agreement on First Nation Land Management.

1. How are the problems described by Senator Christmas shaped by the legal structures of property and lands governance defined under the Indian Act and by court decisions interpreting this legislation?

2. How does the Membertou Land Code change the structure of property and lands governance on Membertou’s reserve lands? What does it not change? Why do you think some Nations have opted into the First Nations Land Management regime while others have declined to do so?

Doctrinal Map to Aboriginal Title #

After you have addressed the two questions above and familiarized yourself with the context of reserve lands, please read section 35 of the Constitution Act and the two seminal cases interpreting Aboriginal Title under that section: Delgamuukw and Tsilhqot’in Nation.

The contemporary legal framework for “Aboriginal title” is complex and contains several elements that we have not yet encountered in our historical study of this area of law. Below is a map of the case materials to help you develop your understanding of this area of law with an eye to our continued study of these topics next week.

Step 1: Background #

First, start by establishing in your own mind the context of the two leading cases on Aboriginal title. Read the introductory sections of Delgamuukw (A. The Claim at Trial and B. The Gitksan and Wet’suwet’en People) and Tsilhqot’in (Parts I to IV) for background on the parties and a brief review of the relevant caselaw.

Step 2: Test for Proof of Title #

At this step, you are addressing the question of what a plaintiff First Nation needs to demonstrate in order to successfully make out a claim for recognition of Aboriginal title to a particular territory. Read the linked sections in Delgamuukw and Tsilhqot’in that deal with the 3-part test for proof of title, and then watch the video at the end of this topic in Tsilhqot’in.

Step 3: Content and Source of Title #

At this step, you are addressing the question of what rights are recognized on the part of a plaintiff First Nation if they are successful in making out their claim at Step 2. The step answers the question (which we have encountered several times before in the course): “What is Aboriginal title, from the common law’s perspective?” Read the linked excepts from Delgamuukw and Tsilhqot’in addressing these questions of content and source. Then watch the video at the end of the material on source and content in Tsilhqot’in.

Step 4: Infringement of Title #

Finally, once Aboriginal title has been proven and its content and source defined, the courts have left open the possibility that the Crown can justifiably infringe upon the rights associated with that title. What is the test and rationale for infringement? Read the Tsilhqot’in court’s judgement on infringement and watch the summary video at the end.