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Chapter B1-2 ver. 4

INTERDEPARTMENTAL AGREEMENT WITH THE DEPARTMENT OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT RE LAND TRANSACTIONS ON RESERVE LANDS, 2009

Table of Contents

Effective Date

This agreement came in force February 25, 2009, and the schedule came in force November 17, 2009. They supersede the Interdepartmental Agreement respecting Land transactions on Reserve Lands, 2003, published in Chapter B1 of the General Instructions for Surveys of Canada Lands, e-Edition and the subsequent agreement of March 11, 2004. Only excerpts of the agreement are provided on this Web site.

Chapter Sections

FRAMEWORK ACCORD

(hereinafter referred to as "the Accord")

between the

DEPARTMENT OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT

Represented by the Lands and Economic Development Sector

(hereinafter referred to as "INAC")

and the

DEPARTMENT OF NATURAL RESOURCES

Represented by the Earth Sciences Sector,

(hereinafter referred to as "NRCan")

(hereinafter jointly referred to as "the Participants")

concerning

COOPERATION IN THE AREA OF LAND MANAGEMENT FOR FIRST NATION LANDS

Whereas the Participants have stated their mutual desire to develop and reinforce their cooperation in the area of land management of First Nation lands in Canada;

Whereas this Accord reflects the continuing intention by the Participants to fulfill federal government obligations to First Nations within their own mandates and as outlined under the Indian Act (R.S.C. 1985, c. I-5), the First Nations Land Management Act (S.C. 1999, c.24) and the Canada Lands Surveys Act (R.S.C. 1985, c. L-6);

Whereas this Accord reflects the commitment of both Participants to work together towards common objectives in defining, describing and recording interests on reserve lands, and in supporting the development of First Nations capacity to manage their lands;

NOW THEREFORE, the Participants have reached the following understanding:

1.0 DEFINITIONS

For the purposes of this Accord:

"Accord" refers to this agreement and accompanying Schedules.

"CCCM" refers to the "Canada Centre for Cadastral Management", Earth Sciences Sector (ESS), Natural Resources Canada (NRCan).

"First Nation lands" refers to lands held and administered by INAC for the use and benefit of First Nations.

"LB" refers to the "Lands Branch", Lands and Economic Development Sector (LED), Indian and Northern Affairs Canada (INAC).

"Reserve", "reserve lands." These terms refer to a reserve, designated lands and surrendered lands, as defined in the Indian Act.

2.0 BACKGROUND

Under the Indian Act, the First Nations Land Management Act and the Canada Lands Surveys Act, the Participants have mandated responsibilities concerning the registration of interests and land surveys on First Nation lands. Under the Indian Act, INAC through the Lands Branch is responsible for the management of reserve lands. The Canada Lands Surveys Act mandates NRCan through the CCCM to manage the land survey system on First Nation lands and to cause surveys to be made of such lands on the request of the Minister of INAC.

The Accord applies to First Nation lands and reserve lands. It does not apply to lands of First Nations who, by self government legislation, may use land registries other than the Indian Lands Registry (ILR), the First Nations Land Registry (FNLR) and the Self-Governing First Nations Land Registry (SGFNLR), or to dispositions made pursuant to the Indian Oil and Gas Act.

3.0 PURPOSE

The purpose of this Accord is to establish a framework for cooperation between the Participants in the area of land management on First Nation lands, in particular:

  1. activities to support land management for First Nations under the Indian Act and the First Nations Land Management Act, administered by the LB; and
  2. the implementation of land survey programs to support the implementation of:

    i. the First Nations Land Management regime under the First Nations Land Management Act administered by the First Nations Land Management Directorate (FNLM) of the LB;

    ii. the land transaction systems on First Nation lands administered by the Lands Operations and Registration Directorate (LOR) of the LB; and

    iii. Additions to Reserve administered by the Additions to Reserve Directorate (ATR) of the LB.

4.0 SCHEDULES TO THE ACCORD

This Accord is general in nature and is neither comprehensive nor exhaustive. When the Participants intend to conduct activity under this Accord, they will execute written Interdepartmental Letters of Agreement ("ILOA") that will be attached as Schedules to this Accord, which will be approved by the Participants and may include the following information:

  1. purpose, timing, and scope of the cooperation;
  2. division of tasks and related responsibilities between the Participants;
  3. workplan description, including products and/or services required;
  4. funding and resource details, including complete cost estimates;
  5. ownership of intellectual property;
  6. the responsible senior managers;
  7. the contacts responsible for the implementation of the ILOA;
  8. specific provisions for the amendment, extension, duration, termination and renewal of the ILOA;
  9. standards and specifications; and
  10. any other matters on which agreement of the Participants is desirable.

It is understood that the ability of each Participant to undertake forms of cooperation under this Accord is subject to the availability of funds and resources (including facilities and personnel). The form of cooperation shall be negotiated, agreed upon and ratified at the appropriate management level, within the scope of their respective mandates, responsibilities and capacities. Nothing in this Accord prevents the Participants from entering into tripartite agreements.

All activities under this Accord will be conducted in accordance with the applicable laws, orders in council, regulations, and policies of the federal government of Canada.

5.0 FORMS OF COOPERATION

Cooperation between the Participants under this Accord may include the following forms, where appropriate:

  1. exchange of information and expertise on land and cadastral management activities;
  2. access to government facilities and equipment for developing projects as required;
  3. collaboration in the development of common standards;
  4. provision of advice and consultation regarding specific land management projects;
  5. provision of services, including contract management, investigations and product quality assurance;
  6. training through participation in collaborative land management projects or workshops; and
  7. other forms of cooperation as may be mutually agreed upon between the Participants.

6.0 AREAS OF SPECIFIC INTEREST

Cooperation under this Accord may include the following areas of specific interest:

  1. legal descriptions and surveys of reserves;
  2. development of cadastral management products, including plans, maps and geospatial data bases;
  3. development of cadastral management standards for products and business processes;
  4. other areas of interest to be mutually agreed upon by the Participants.

7.0 FINANCIAL ARRANGEMENTS

The terms of financing will be established and approved by the Participants as part of the ILOA prior to the commencement of any cooperative activity. Services provided by NRCan that are considered to be over and above those related to mandated activities will be costed on an incremental cost recovery basis as per Treasury Board policies.

No cost incurred by one Participant shall be assumed by the other Participant unless otherwise agreed to in writing under an ILOA to this Accord. All costs or estimated costs will be detailed in the ILOA.

7.1 Mandated Activities/Responsibilities of NRCan

For existing Canada Lands, the mandated responsibilities managed and funded by NRCan include:

  1. setting survey standards for Canada Lands;
  2. providing specific survey instructions;
  3. confirmation and approval processes, examination of plans and survey returns deemed necessary by the Surveyor General;
  4. field inspections deemed necessary by the Surveyor General;
  5. boundary monitoring deemed necessary by the Surveyor General;
  6. custody and maintenance of survey records; and
  7. access to survey records.
7.2 Mandated Activities/Responsibilities of INAC

Survey and mapping products and services requested by INAC shall be funded by INAC. These items include but are not limited to:

  1. surveys carried out by either private sector professionals or CCCM staff;
  2. field inspections;
  3. preparation of legal descriptions by CCCM staff (e.g. for an Order-in-Council);
  4. photo mapping, imagery and line mapping products;
  5. reports, sketches, plans and maps, including but not limited to registration plans, Land Use Areas (LUA), registry index plans, official plans and administrative plans;
  6. customized digital products as requested;
  7. the preparation and reformatting of digital information and products when requested by LB; and
  8. training for LB staff and for First Nations.
7.3 Other Activities/Responsibilities

Other survey activities or services requested by INAC will be funded according to mutually negotiated and agreed upon Interdepartmental Letters of Agreement. Normally, these Agreements are developed regionally between the Participants on a program and/or project basis.

All survey services (except NRCan mandated activities) requested by the FNLM and the ATR will be funded within the resource levels of INAC unless NRCan is specifically provided funding from other appropriation sources.

8.0 PLANNING AND REVIEW

In order to implement cooperation under this Accord, the Participants will designate appropriate representatives to identify cooperative activities and details of implementation.

Activities under this Accord shall be reviewed annually by a joint INAC/NRCan Steering Committee consisting of the Surveyor General, Canada Centre for Cadastral Management, and the Director General, Lands Branch. This meeting will include the finalization of annual work plans and the provision of input into the budget cycle of the next fiscal year. The annual work plans, which will be prepared jointly, will include: projects and activities for the upcoming fiscal year; funding and resource requirements or rationalization; and service level standards. This meeting will be facilitated by a call letter to INAC from NRCan.

9.0 CORRESPONDENCE

Correspondence in regards to any aspect of this Accord, unless notice to the contrary is given, should be made to the following representatives of both Participants:

For INAC:

Paul Fauteaux
Director General
Lands Branch
Lands and Economic Development Sector
10 Wellington Street
Gatineau QC K1A 0H4

For NRCan:

Peter Sullivan
Surveyor General and International
Boundary Commissioner
Canada Centre for Cadastral Management
Earth Sciences Sector
605 - 9700 Jasper Avenue
Edmonton AB T5J 4C3

10.0 TITLE TO PROPERTY

Unless otherwise agreed to in an ILOA , any and all property or equipment of whatever nature or kind furnished by either Participant in connection with work under this Accord is and will remain the property of the Participant furnishing such property and equipment.

11.0 LANGUAGE

This Accord is written in English and French with each version being equally valid.

12.0 DURATION AND TERMINATION

This Accord will become effective upon signing by both Participants and remain in effect for five (5) years, unless extended or terminated. It may be amended or extended by mutual written agreement, and may be terminated immediately with the written consent of both Participants or by either Participant upon 90 days written notice to the other Participant.

Termination of this Accord does not affect the implementation of any existing ILOA between the Participants. Termination or amendment of the ILOA will be in accordance with the provisions of each specific ILOA.

13.0 LEGAL OBLIGATIONS

This Accord does not create any legally binding obligations between the Participants.

Signed at Ottawa on the 25th day of February, 2009.

Accepted on behalf of NRCan by:

Copy - Original signed
Mark Corey

Assistant Deputy Minister
Earth Sciences Sector
Natural Resources Canada

Accepted on behalf of INAC by:

Copy - Original signed
Sara Filbee

Assistant Deputy Minister
Lands and Economic Development
Indian and Northern Affairs Canada


Interdepartmental Letter of Agreement "A"
SPECIFICATIONS AND STANDARDS OF LAND DESCRIPTIONS FOR RESERVE LANDS TO BE REGISTERED IN THE INDIAN LANDS REGISTRY ("ILR"), FIRST NATIONS LAND REGISTRY ("FNLR") AND SELF-GOVERNING FIRST NATIONS LAND REGISTRY ("SGFNLR")


to the Framework Accord (hereinafter "the Accord") signed on February 25, 2009 between the Department of Indian Affairs and Northern Development (hereinafter "INAC") and the Department of Natural Resources (hereinafter "NRCan").
1.0 PURPOSE AND SCOPE

1.1 The Interdepartmental Letter of Agreement was prepared in collaboration between INAC and NRCan (hereinafter the "Participants") to identify appropriate methods of describing reserve lands when legal descriptions are required for executing and/or registering land transactions in the ILR or the FNLR . This Interdepartmental Letter of Agreement also applies to land transactions that must be registered in the ILR to any self-government legislation hereinafter referred to as the "SGFNLR". This Interdepartmental Letter of Agreement prescribes which products and methods of describing lands to use for specific types of land transactions involving reserve lands. It also sets out the basic principles on which the standards for the products and methods of describing land are based.

1.2 This Interdepartmental Letter of Agreement applies to reserve lands and any other lands held and administered by INAC for the use and benefit of Indians.

1.3 This Interdepartmental Letter of Agreement also applies to legal descriptions of provincial lands which will subsequently become Indian lands.

1.4 The requirements for legal descriptions for reserve lands, as detailed in this Interdepartmental Letter of Agreement, are the minimum required to provide a definition of the extent of interests to be registered in the ILR, FNLR or the SGFNLR. Surveyors and land managers, when advising clients, should carefully consider whether the minimum requirements outlined in this Interdepartmental Letter of Agreement provide adequate protection to the Crown, the parties to the proposed transaction and to any third parties that the transaction may affect.

2.0 GENERAL

2.1 For the purposes of this Interdepartmental Letter of Agreement, the word 'lease' includes any authorization given to other federal departments respecting the exclusive right to use land for a specified period. The word 'permit' includes any authorization given to other federal departments respecting the nonexclusive rights to use land. For the purposes of this Interdepartmental Letter of Agreement, the terms of lease and permit include any renewal or extension provisions contained in the lease or permit.

2.2 To describe the location and extent of lands subject to a land transaction that will be registered in the ILR, FNLR or SGFNLR that requires a description approved by the Surveyor General, only the following land description products shall be used:

  1. Official Plan (provincial plan - see Section 3.4 of this Interdepartmental Letter of Agreement); or
  2. Registration Plan (see Section 4.5 of this Interdepartmental Letter of Agreement to decide if a field survey is required).

2.3 The above land description products are described in Sections 3.0 and 4.0 of this Interdepartmental Letter of Agreement. The land transactions which use each product are identified in Chart A (attached) of this Interdepartmental Letter of Agreement. As a general rule, the minimum appropriate land description product will be selected when Lands and Economic Development (LED) of INAC funds its preparation. If the circumstances warrant it and subject to the availability of funds, the INAC Regional Lands Manager may select a higher quality land description if the option is available in Chart A (attached). Nothing precludes a third party from funding a higher quality land description product if the option is available in Chart A. The choice of such a product is at the discretion of the third party.

2.4 Notwithstanding section 2.3, if specific circumstances warrant it or in cases where it is not clear which product should be used, the Head of the Client Liaison Unit (CLU), Surveyor General Branch (SGB) - formerly known as the Canada Centre for Cadastral Management (CCCM) of NRCan - and the INAC Regional Lands Manager, will jointly identify the product to use, except for cases where the requirements for land descriptions are given in the First Nations Land Registry Regulations or a SGFNLR regulations, such as the Westbank First Nation Land Registry Regulations.

2.5 The General Instructions for Surveys of Canada Lands, e-Edition sets out standards required for the products referred to in Sections 3.0 and 4.0.

2.6 When SGB contemplates changes to product standards for Registration Plans, the Lands Operations and Registration Directorate, the Lands Advisory Board and Self Governing First Nations using the SGFNLR will be consulted and given an opportunity to comment on the proposed changes.

2.7 Plan suitability criteria for the ILR, FNLR or SGFNLR:

  1. When an entire interest in land is returned to a First Nation, then the original land description used in the transaction document is acceptable for use in the document returning the interest to the First Nation;
  2. Access to each parcel created by a plan must be shown on the plan. However, if for some reason showing the access is not possible, a note on the plan dealing with the matter of access will be acceptable;
  3. The lots or parcels depicted on a plan used to register an interest in the ILR, FNLR or the SGFNLR cannot be significantly changed in size or location by a new plan, without the written consent of the owner of the interest and all other affected parties. This consent will take the form of a request for update of titles in individual land holdings, a lease amendment in leasing situations or a new permit or permit amendment in instances where an existing permit is to be amended;
  4. All parcels created by a plan, including roads to be set aside for band purposes under Section 18(2) of the Indian Act, will be identified by a distinct lot number consistent with the records of the ILR, FNLR or SGFNLR. Areas subject to an easement shall not be identified with a distinct lot number; and
  5. If the parcels created by a plan are not compatible with current registered interests, any request for registration using the plan will be rejected until the underlying interests are dealt with and the plan will not be publicized in the ILR, FNLR or SGFNLR abstracts until the plan is modified or until the individual interests are dealt with.
3.0 OFFICIAL PLAN (confirmed under Section 29 of the Canada Lands Surveys Act - CLS Act)

3.1 As a general rule, Official Plans are only to be used when the purpose of the survey is to determine reserve and jurisdictional boundaries.

3.2 An Official Plan is a graphical description of boundaries of land prepared from field notes of a survey and is confirmed pursuant to Section 29 of the CLS Act.

3.3 Pursuant to Section 29 of the CLS Act, a plan of survey will not be confirmed unless it has first been approved by the Minister of INAC or by the authorities given in the legislation for Self Governing First Nations.

3.4 Plans depicting surveys carried out under provincial legislation and approved by provincial authorities, that define boundaries of land that will subsequently become reserve lands, may be considered acceptable to use for the same purposes as an Official Plan when a copy of the provincial plan is recorded in the Canada Lands Surveys Records (CLSR). When an existing plan prepared under provincial legislation is used to define lands that will subsequently become reserve lands, the Head of CLU, SGB in the region must be consulted to decide if the existing plan is satisfactory and suitable for recording in the CLSR. If the plan is acceptable, an officer of INAC will acquire a copy of the provincial plan acceptable to the Surveyor General. This copy will then be forwarded to SGB for recording in the CLSR.

3.5 A First Nation Council for whose land an Official Plan was made must be given an opportunity to comment on the plan before it is approved by INAC. A minimum and a maximum time that the Council will have to comment may be established in each region.

3.6 Chart A (attached) shows the transactions where an Official Plan must be used.

3.7 The appropriately delegated officials of INAC will approve an Official Plan.

4.0 REGISTRATION PLAN (approved under Section 31 of the CLS Act)

4.1 As a general rule, Registration Plans will be used for all new internal subdivisions or other surveys related to internal interests in a reserve.

4.2 A Registration Plan is a graphical description of the boundaries of land prepared from information which can include: existing land descriptions, field notes of survey, controlled aerial photographs, imagery or maps and information found in land transaction documents.

4.3 Existing Regional Surveyor Plans that are technically equivalent to a Registration Plan as required under this Interdepartmental Letter of Agreement may be used in the ILR in place of Registration Plans where appropriate.

4.4 A Registration Plan prepared by a Canada Lands Surveyor and certified correct may be used to depict the boundaries of lands that are subject to interests that may be registered in the ILR, FNLR or SGFNLR. Chart A (attached) shows the transactions where a Registration Plan must be used.

4.5 Standards for the preparation of a Registration Plan are based on the following general guidelines:

  1. SGB will give the Canada Lands Surveyor lot numbers and authorize the survey within 48 hours of receiving an appropriate written request from the surveyor;
  2. The plan must show the area of each parcel dealt with. This provision does not apply to permits where the cost of determining natural boundaries by field survey would be prohibitive;
  3. Parcels created on the plan will be tied mathematically to the existing lots, the reserve boundary or the geographic coordinates and the ties must be shown on the plan; and
  4. When a field survey is required:

    i. the plan must tie in and show all relevant evidence of occupation;

    ii. the plan must show all survey evidence found and placed. The plan will not show traverse information; and

    iii. monumentation must consist of a minimum of two survey markers per parcel created. Additional survey markers may be placed as requested by the client funding the work.

4.6 A field survey is mandatory if the minimum land description requirements outlined in Chart A (attached) require it or under the following circumstances:

  1. None of the limits of the parcel to be created coincide with an existing surveyed and monumented boundary (unless the parcel is in an isolated portion of the reserve); and
  2. When new lots created have an area of less than 0.2 of a hectare (0.5 of an acre). In all other cases, the need for a field survey is optional and left to the discretion of the Canada Lands Surveyor and the client.

4.7 A Registration Plan for a parcel in an isolated portion of a reserve may be prepared from a controlled aerial photograph, class A line map, or orthophoto map.

5.0 TEXTUAL DESCRIPTION

5.1 Chart A (attached) indicates that a textual description may be used to describe the lands subject to certain transactions. The textual descriptions referred to under this section are prepared under the guidelines of the Indian Lands Registry Manual or the First Nations Land Registry System (FNLRS) User Guide and without reference to any standards or instructions from the SGB. This Interdepartmental Letter of Agreement does not deal with these textual descriptions.

6.0 AMENDMENT

6.1 This Interdepartmental Letter of Agreement may be amended at any time by the mutual written agreement of the Participants.

7.0 EFFECTIVE DATE

7.1 This Interdepartmental Letter of Agreement becomes effective upon the signature of the Participants' authorized representatives below:

Accepted on behalf of NRCan by:


Copy - Original signed
Peter Sullivan

Surveyor General and International
Boundary Commissioner
Surveyor General Branch
Earth Sciences Sector
Natural Resources Canada

Date: November 17, 2009

Accepted on behalf of INAC by:


Copy - Original signed
Paul Fauteaux

Director General
Lands Branch
Lands and Economic Development Sector
Indian and Northern Affairs Canada


Date: October 30, 2009


Interdepartmental Letter of Agreement - CHART A
ILR, FNLR and SGFNLR, MINIMUM LAND DESCRIPTION REQUIREMENTS

Standards for these products are set out in the General Instructions for Surveys of Canada Lands, e-edition.
Purpose
Administrative Plan - Sec. 31

Registration Plan (No Survey)
Administrative Plan - Sec. 31

Registration Plan (Field Survey mandatory)
Official Plan - Sec. 29

Survey Plan
I ADDITIONS TO RESERVE
No
No
Yes/ Prov. plan
II RE-SURVEYS OF JURISDICTIONAL BOUNDARIES
No
No
Yes
III SALES
Surrender vote Sec. 38(1) and accepting OIC Footnote Note 3
Yes
Optional
No
Disposition
No
No
Yes
Section 35 (highways, etc.)
No
No
Yes
Section 35 (easements)
Yes
Optional
No
IV FIRST NATION PURPOSES
Designation Vote Sec 38(2) and accepting OIC Footnote Note 3
Yes
Optional
No
Welfare of First Nation (Sec.18(2)) Footnote Note 1
No
Yes
No
V LAWFUL POSSESSION
Allotment Sec 20 Footnote Note 1
Yes
Optional
No
Transfers Sec 24, 43, 49 Footnote Note 1
Yes
Optional
No
Access Agreements Footnote Note 4
Optional
Optional
No
VI LEASES Sec. 53, 58 (including subleases) Footnote Note 5
10 years or more Footnote Note 1
Land
No
Yes
No
building unit with interest in land
Yes
Optional
No
building unit only
Yes
Optional
No
less than 10 years Footnote Note 4
Land
Optional
Optional
No
building unit only
Optional
No
No
VII PERMITS Sec. 28(2)
10 years or more Footnote Note 5
Optional
No
less than 10 years Footnote Note 4
Optional
Optional
No
Utilities distribution (Blanket permit) Footnote Note 4
Optional
Optional
No
VIII EXCLUDED LANDS Section 7 (FNMLA)
Internal parcel Footnote Note 6
No
Yes
Optional
Parcel adjoining a jurisdicational boundary Footnote Note 7
No
No
Yes
Chart A - Notes and Definitions

O.I.C = Order-in-Council
FNLMA = First Nation Land Management Act
NOTES:

  1. Specific circumstances may require a higher quality product.

  2. The plan will create no new lots. The plan will create a right-of-way or may be used to create an easement.

  3. Not required if the parcel can be fully described by reference to existing plans recorded in the CLSR.

  4. The minimum description required by the ILR and the FNLR for these transactions is a textual description. The guidelines for textual descriptions are set out in the Indian Lands Registry Manual. A Land Use Area Plan (LUA) prepared under the instructions of the Surveyor General may be used as the basis of a textual description prepared for an agricultural permit.

  5. The term of leases and permits include any renewal and extension provisions.

  6. A registration plan with survey is usually used to exclude lands located within a Reserve, i.e. when none of its boundaries adjoins a jurisdictional boundary.

  7. An official plan may be used to exclude reserve lands. However, an official plan must be used whenever the parcel adjoins a jurisdictional boundary.

References to Sections 29 and 31 in Chart A are to the Canada Lands Surveys Act; all other Section references are to the Indian Act, except Section VIII which refers to the First Nations Land Management Act.

Subsection 18(2)
land in a reserve may be taken for the general welfare of the Band (e.g. schools, Band roads, churches, etc.).
Subsection 20(1)
possession of land can be allotted by a Band Council.
Section 24
the right to possession of land may be transferred.
Subsection 28(2)
permits may be issued on reserve lands.
Section 35
land in a reserve may be taken for public purposes.
Subsection 38(1)
a Band may absolutely surrender all of its rights in land to Her Majesty in Right of Canada.
Subsection 38(2)
a Band may designate (by way of a surrender that is not absolute) any right for the purpose of leasing or granting the right.
Sections 43 & 49
the administration of property of deceased Indians.
Sections 53 & 58
Surrendered, designated or reserve lands may be leased.