Case. McLeod Lake Indian Band
FIRST NATIONS RESERVE PLANNING CASE STUDY
Learning Objectives
Reserve Lands are established by the Indian Act and represent an egregious colonial practice that, among many other things, removes and restricts property rights of Indigenous Peoples. In particular, First Nations and its members have limited options regarding land development and economic development. The Framework Agreement on First Nation Land Management (Framework Agreement), adopted and enacted in 1996, enables First Nations to opt out of sections of the Indian Act and to acquire planning and management rights for their Reserve lands. Full rights to manage Reserve lands can be pursued through the modern BC Treaty process. These options for First Nations represent a continuum of control over property rights on Reserve lands, thus affecting how land use planning is practised. This case highlights how the McLeod Lake Indian Band (MLIB) has learned to function within this context and, to the best of their ability, maximise benefits from restricted opportunities available by choosing to operate under the Framework Agreement. Learners are encouraged to understand and appreciate the practice of land use planning on Reserve lands that is very different from other jurisdictions in British Columbia (BC).
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“We, The Tse’Khene Nation (People of the Rock), are proud people. We believe the Creator put us here as stewards of the land. We will regain our Traditions to cultivate a respected, united, self-sufficient community. We recognize all people as equal regardless of name and ancestry. Our governing body is elected based upon integrity, honor, accountability and transparency to all members. Together we will provide healthy, educated, self-sufficient and prosperous lifestyles for our future generations”
McLeod Lake Indian Band Vision Statement, April 10, 2001.[1]
Members of the McLeod Lake Indian Band (MLIB) are of the Tse’Khene[2], an extension of the Athapascan speaking peoples of northern Canada.[3] Traditionally, Europeans refer to Tse’Khene as “Sekani.” The roughly 108,000 km2 traditional territory (as shown on Map 1 and described in Box 1) has been occupied by McLeod Lake Tse’Khene since before European contact. The main settlement of the McLeod Lake Indian Band is located on McLeod Lake, about 150 kilometres north of Prince George. Throughout its history, the McLeod Lake Tse’Khene people have remained defiant in protecting their lands and interests.
Map 1. McLeod Lake Tse’Khene Traditional Territory (approximate boundary)
Box 1. The McLeod Lake Tse’Khene traditional territory
To the south, the height of land separating the Arctic and Pacific watersheds near Summit Lake. To the east, following that height of land to the border of British Columbia and Alberta. To the north, following the border to the Peace River, west, following the southern bank of the Peace River to Williston Lake, south, following the western bank of Williston Lake to the western bank of Manson Arm, south, along the west bank of Manson Arm, southwest and west, along the height of land between Manson River and Eklund Creek and Jackfish Creek, southwest. To the west, along the height of land between the Nation River watershed and the Omineca River watershed, south and east along the height of land separating the Arctic and Pacific watersheds to the commencement point.
Source: territory as described by oral history in the 2004 McLeod Lake Indian Band Land Use Plan.
European Contact and Cultural Erosion
European fur traders first settled in the area in 1805 at Fort McLeod, which served as the first trading post west of the Rockies and is the oldest continuously occupied non-Indigenous settlement in BC. The opportunity to trade with Europeans at Fort McLeod enticed the traditionally nomadic Tse’Khene people to establish nearby residences. But this contact had consequences. “Exposure to disease, alcohol, firearms contributed to the systematic breakdown of almost all their laws, customs and social systems”[4] and had profound and devastating effects on the Tse’Khene. From 1840 to 1925, the recorded population was reduced from 202 to 60.
In 1867, through section 91(24) of The Constitution Act, 1867, the Government of Canada was granted law making power over all “Indians and Lands reserved for the Indians” to ensure the “Peace, Order and Good Government of Canada.” By these laws the McLeod Lake Tse’Khene were arranged onto five Reserves, which combined for a total land base of 244 km2. The extent of original set of McLeod Lake Indian Reserves (#1-5) are depicted in Map 2.
Map 2. McLeod Lake Reserve Lands and Fee Simple Lands
The erosion of the traditional territory of the McLeod Lake Tse’Khene and their culture continued throughout the twentieth century with devastating effects. The McLeod Lake Tse’Khene were subject to institutional assimilation at Lejac Indian Residential School (1930s-1976), the economic impact of closure of Fort McLeod as a trading post (1956), and the flooding of 1,761 km2 of traditional territory following the construction of the W.A.C. Bennett Dam (1969).[5] By the 1970s, the traditional livelihood of the Tse’Khene had been compromised significantly.
Formalisation of Tenure
The erosion and transformation of the traditional territory of the McLeod Lake Tse’Khene took place within a process of “tenure formalisation.”[6] (See Box 2 for a definition of tenure formalisation.) In Canada and other colonised countries (e.g., United States, New Zealand, Australia), many of the historical efforts at tenure formalisation centred on granting a person legal title to small portions of traditional territory. According to Baxter and Trebilcock, the physical boundaries created by the reserve system serve as a means for implementing government policy with the eventual goal of “civilisation.” They also characterise the Canadian reserve system as a “vestige of past attempts to promote the norms, if not the legal rights, of private ownership…while maintaining central control of tenure administration in First Nations communities.”[7] Voluntary enfranchisement[8] packages, which have been presented in various incarnations were offered as alternatives to the restrictive property interests afforded under the reserve system.
Box 2. Tenure formalisation
Baxter and Trebilcock define tenure formalisation as follows.
“Our definition seeks to characterise formalization in terms of goals to improve tenure security and transferability. In this sense, formalization captures attempts to create greater predictability by: (1) leveraging the coercive power of the state—for example, through the judiciary—to enforce land tenure regimes for rights holders against counter-claimants; and (2) harmonising the group’s land tenure regime with the regime that is already administered by the state for outsiders, potentially increasing the familiarity of the group’s system for some rights holders. It would be an oversimplification to regard formalisation merely as a process of imposing private property rights on individuals within the group; the state can recognise and enforce land tenure at various levels of governance. For example, the federal government in Canada might directly administer a tenure regime in a First Nation by granting individuals limited possessory and use rights. Alternatively, a First Nation might be vested with a sphere of protected communal rights, which the federal government enforces against outsiders, but within which the community defines the parameters of its own land tenure regime. Both of these scenarios exist to some degree under the status quo in Canada today. Finally, given autonomous and well-supported Indigenous institutions such as bureaucracies, courts, and social services, “formal” land tenure can be interpreted as a property regime that is defined and enforced by a First Nation’s own government—an arrangement that accords more closely with some First Nation peoples’ ultimate visions of self-governance. Overall, our definition of formalisation reinforces our emphasis on exploring how tenure security and transfer rights relate to development outcomes, rather than fixating on the process of formalisation itself.”[9]
Efforts to implement tenure formalisation by Canadian governments were opposed by Indigenous peoples, who have generally regarded tenure formalisation as either inappropriate to cultural traditions or as a thinly veiled attempt at assimilation (or both). This criticism is not to suggest that Indigenous peoples are opposed to tenure reform or private land ownership. On the contrary, achieving greater stability and minimising uncertainty over lands management have been a central theme in Indigenous rights advocacy throughout the twenty-first century. However, most attempts at tenure formalisation have been imposed in a homogenised and centralised manner, lacking the “social, economic, political, geographical and historical context” necessary to create tenure regimes congruous with the traditions, practices, and capacities of the many individual nations inhabiting the land base known as Canada.[10]
Consequently, Indigenous peoples experience the dichotomy of having cultural values tied to the land with restricted rights to access and use the land. The inability for Indigenous peoples to exercise greater authority in managing Reserve lands and the assets generated by those lands is cited frequently as a contributing factor toward many of the injustices currently occurring on Reserve lands. Some of these injustices include inadequate housing, unsafe drinking water, unemployment, drug and alcohol abuse, elevated suicide rates, and spousal abuse.
Learning Modules
Contemporary Land Tenure and Property Rights Negotiations
While tenure formalisation can be antithetical to Indigenous rights to land, it is also possible for Indigenous peoples to improve tenure security through the same process. The McLeod Lake Indian Band has both confronted tenure formalisation and attempted to use the process to its advantage.
During the 1980s, the McLeod Lake Indian Band engaged in several heated litigious battles with both the federal and provincial governments over unresolved land claims. The Band’s claim centred on Treaty 8, which was signed in 1899 and covered a very large area that was then part of the Northwest Territories and now part of Alberta, Yukon, and northeastern BC. The McLeod Lake Indian Band claimed that the original treaty applied to the Arctic watershed, which extended beyond the geographic “height of land” of the Rocky Mountains, which was the designated western boundary of Treaty 8.
In relation to their land claim, the Band asserted their rights to the claimed land to protect their future interests. They disrupted provincially-sanctioned forestry operations and demanded an equitable share in forestry contracts conducted on their traditional territory. In July, 1987, for example, the Band established a blockade along the gravel road to Carp and War lakes. Chief Harry Chingee explained their aim was to get the provincial government to stop logging in the area until their land claim was settled. Chief Chingee stated, “I think the biggest problem we have is that our people can’t get work. That’s why we want to get control of our resources.”[11]
The land claims, and associated on-the-ground actions, culminated in the signing of the McLeod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement (2000). This agreement benefitted the Tse’Khene in several ways, including the following financial and land benefits:
- $2,900,000 to cover portions of litigation expenses;
- $9,750,000 in legal settlement;
- Provincial and Federal recognition of Tse’Khene traditional territory;
- certainty of traditional resource use rights; and
- an additional 18,521 ha of Treaty 8 Reserve land.
The adhesion agreement contributed substantially to the amount of land available to the McLeod Lake Indian Band for potential development and resource extraction. The number of Reserve lands increased from 5 to 22 (as shown in Map 2, above). The Band also purchased additional lands from the province that they own as fee simple: 43 hectares in Mackenzie Junction; 56 hectares at Summit Lake. As per the agreement, the settlement funds were deposited to a trust, with Band members having use of the income derived from the invested funds but not from the principal.
In 2002, shortly after signing the Treaty No. 8 Adhesion Agreement, the McLeod Lake Indian Band became one of the first[12] band councils in Canada to ratify a Land Code under the Framework Agreement on First Nations Land Management, a piece of legislation that transfers federal jurisdiction over Reserve land and resource management to signatory bands. The Land Code, which was drafted by an appointed Land Management Committee with assistance from the national Lands Advisory Board, came into force in May, 2003, thereby establishing the rules for how the Band would govern its Reserve lands. Upon ratification, the McLeod Lake Indian Band Land Code, 2002, established the rules for how the Band would govern its Reserve lands. The original Land Code was reviewd and amended in 2022. The new McLeod Lake Indian Band Land Code, 2022 is divided into 14 parts. A summary of contents is presented in Table 1.
Table 1. Highlights of McLeod Lake Indian Band Land Code[13]
|
Section |
Key Points |
|
Preliminary Matters |
The Land Code initially applies only to MLIB Reserves #1-5, with additional Treaty 8 lands made subject to the Code following an environmental audit and designation as Indian Reserves. The Land Code takes precedence over any other Band laws or bylaws which are inconsistent with the Code. The term ‘land’ applies to water bodies and all renewable and non-renewable resources. |
|
First Nation Legislation |
Sets out the law-making powers of Band Council, including the development, conservation, protection, management, use, and possession of Band Land and all interests and licenses in relation to Band Land Examples include zoning; land use planning and development; the granting and regulation of interests, including leases, permits, easements and right-of-ways; environmental assessment; subdivision regulation; as well as parkland and heritage dedications. |
|
Membership Approval |
Member meetings are required before passing of all land laws, including land use plans, subdivisions, environmental assessment, transfer of tenures, and rates and fee adjustments. Formal membership approval is required prior to the adoption of land use plans, long-term disposition of reserve land (over 15 years), or amendment to the Land Code. |
|
Protection of Land |
Sets the terms for expropriation of land for Band purposes. |
|
Accountability |
Where the potential for conflict of interest exists, council members may not take part in any vote or deliberation concerning land. |
|
Land Administration |
Establishes a five-member Land Management Committee to assist with the development of a system for Band Land administration, make policy recommendations respecting Band Land. Creates a Band Land Register for all interests and licences in Band Land. |
|
Forest Resources |
Ensures forestry practices on Reserve lands are conducted in accordance with Band values, as per the McLeod Lake Indian Band Forest Practices Code, which was developed as a requirement of the Treaty 8 Agreement. |
|
Interests and Licenses |
Guarantees that any interest or license in Band Land may only be issued in accordance with the Land Code. Enables Council to grant interests and licenses in Band Land, including leases, easements and rights-of-ways, and permits to extract resources. Creates an offence of trespass for people entering or using Reserve lands without authority. Laws may be enacted enabling a Member holding Band Land to benefit from the resources in and of that land; grant subsidiary interests and licenses in that land; and transfer, devise or otherwise dispose of that land to another Member. A person who is not a Member may hold a lease, license or permit in Band Land; however, the written consent of Council must be obtained for any grant or disposition of a lease, license, or permit in Band Land to a person who is not a Member. Pre-existing tenures are recognised under the Code. |
|
Dispute Resolution |
Established a process for the resolution of disputes through a three-person panel. Other court and civil means are also available to disputing parties. |
|
Other Matters |
Offences under the Land Code are to be prosecuted as summary convictions. |
| Section | Key Points |
| Fundamental Rights |
|
| Definitions and Interpretation |
|
| Lands |
|
| Land and Natural Resources Administration |
|
| McLeod Lake Indian Band Legislation |
|
| Land Meetings and Votes |
|
| Protection of Land |
|
| Conflicts of Interest |
|
| Financial Management |
|
| Forest Practices and Land Use Plan |
|
| Interests and Licenses in Land |
|
| Residency and Access |
|
| Accountability |
|
| Oversight Committee |
|
| Dispute Resolution |
|
| Other Matters | Covers the following items:
|
After the Land Code came into force, the McLeod Lake Indian Band adopted a land use plan in 2004. This plan was updated in 2021. The scope and purpose of the Land Use Plan is stated in the plan, as follows.
The 2021 McLeod Lake Indian Band (MLIB) Land Use Plan provides a community-driven decision-making tool to guide the land management and land uses of the MLIB reserve lands for future development including resource use, industrial, commercial, recreational, residential and tourism. It has been created to be a living document, which the Land Management Committee and the community will be able to use to guide land management decisions. The document has been laid out with ease of use as a priority. Please note the inclusion of a glossary, which explains some terms which are not in everyday use.
From the land use priorities identified by the Membership, the MLIB Land Use Plan will also inform smaller development plans such as subdivisions, business plans, agricultural applications and ultimately act as a development template with respect to type of development, location and issues for consideration such as physical constraints, land tenure, federal legislation, and community desire.[14]
The Land Use plan establishes five land use designations, described below. These designations reflect the priorities expressed in the Land Code, including traditional values, economic development, and residential demands.
Community Development Area
Land designated for residential (including lease lands for residential development), commercial, service industrial, recreation and institutional development.
Protected Area
Land protected from major developments including resource development such as forestry, mining, large-scale tourism, and high-density residential development in order to maintain traditional uses, cultural values, protect fish, wildlife or other
Valued Ecosystem Components (VECs).
Seasonal cabins, camping, recreation and traditional uses are allowed. Selective tree removal is allowed where required for cabins and recreation, but Band member consent is required first.
Resource Development Area
Land prioritized for the purposes of resource development such as forestry, mining, hydroelectric and oil and gas.
General Resource Development Area
Land that has several resource values and permitted uses, for example resource development such as forestry or mining, agriculture, residential, recreation, traditional use, resource extraction and protection of VECs.
Heritage Sites
While not one of the core zoning labels, MLIB can establish a Heritage Site designation over one of their reserves or a portion of a reserve. This designation offers a higher form of protection for significant values than a “Protected Area” designation, because it offers a higher level of community approvals to change the land use associated with this designation.
In addition to establishing a Land Code and Land Use Plan, in 2004, the McLeod Lake Indian Band released their statement of intent to enter a self-governance negotiation with the Province of British Columbia and the Government of Canada. Six years later, the Band had progressed to the second stage of the process, called Readiness to Negotiate. However, by policy, Canada and British Columbia will not negotiate self-government agreements outside of the BC Treaty Process. This condition places McLeod Lake Indian Band in a dilemma. To negotiate a self-government agreement, the Band must complete the BC Treaty Process. But to participate in the BC Treaty Process the Band must “open up” its 2000 Adhesion Agreement, which could result in loss of some benefits under that agreement.
Private interests in land and economic development
Improving living conditions, income, and employment opportunities for Indigenous peoples is closely tied to on-reserve economic development. However, sources of capital for band councils and their members to pursue economic development opportunities are limited, unaffordable, restrictive, and insufficient.[15] Most critically, Section 89 of the Indian Act eliminates the ability of a band council or individual member to pledge real and personal property on-reserve as security for financing.
In their discussion of economic development for Indigenous peoples, Shanks highlights the importance of private interests in land.[16] For financial institutions, land is a primary source of equity, and tenure security and land value are essential for funding a business venture. Shanks argues,
The availability of, use, tenure, and jurisdiction over land is at the heart of economic development. There exists an incredibly high level of frustration over the timeframe and processes involved in land designations and additions to reserve. Certainty of tenure is fundamental to the concept of using equity in land as a component of economic development. Efforts to clarify tenure and modernise the current system of land registration, although difficult to achieve, are necessary.[17]
Thus, land tenure and transaction costs are strongly associated with pursuing opportunities for economic development on Reserve lands, and an important part of Indigenous sovereignty over their economy.
In their study of the economic effects of existing private property rights on Reserve lands,[18] Aragón and Kessler found there is a positive relationship between on-reserve private property and homeownership rates, housing conditions, and band public spending. The researchers also highlight an important drawback. A positive relationship between private tenure and average income was associated with an increase in non-Indigenous population, not by improvements in Indigenous households’ income or on-reserve employment.
Some of the mixed results are attributed to the ability to designate Reserve lands for third party use, thereby generating revenue for bands through lease payments and permit fees. These revenues support band spending for the benefit of all, such as community halls and improving water systems. Thus, while individual incomes may not increase substantially, the researchers found that overall quality of life improved. The researchers conclude that, notwithstanding limitations to alleviate on-reserve poverty, enabling interests in private property has some positive effects.
Entreprenurial spirit
In addition to protecting their title and rights to their traditional territory, the McLeod Lake Indian Band have always demonstrated an entrepreneurial spirit—a strong desire to support the quality of life of its members. While the ratification of their Land Code in 2003 was an important step to gain greater control over their opportunities for economic development, the McLeod Lake Indian Band already had a history of successful entrepreneurship. For example, during the 1980s, the Tse’Khene disrupted provincially-sanctioned forestry operations and demanded an equitable share in forestry contracts conducted on their traditional territory. This display of land use rights eventually led to the formation of Duz Cho Logging, a 100% owned company that is one of the biggest Indigenous-owned logging companies in Canada.[19] Presently, the Band operates several businesses.
- Duz Cho Construction
Mining, pipeline, hydroelectric and oil and gas industries - Lone Pine Forest Products
Specialialty manufacturer of Rig Mats and Access Mats used extensively in energy, mining, construction, and other industries - Tse’Khene Food & Fuel
Gas bar, store, Little Teapot Cafe - Tse’Khene Sand & Gravel
- McLeod Lake Mackenzie Community Forest Limited Partnership
Partner with the District of Mackenzie
The entrepreneurial spirit of the McLeod Lake Indian Band is supported by the Tse’khene Community Development Corporation. This economic development agency promotes and facilitates community and economic development to secure opportunities for business development and to increase employment of Band members.
The McLeod Lake Indian Band have a wide range of agreements with the Province of British Columbia that support not only economic development, but also social and cultural development of the Indigenous Nation. These agreements include revenue sharing agreements for wind energy projects and forestry economic development, and benefits agreements for natural gas pipelines. These agreements are listed in the appendix.
APPENDIX
The following are a list of current agreements between McLeod Lake Indian Band and the Province of British Columbia.
Current activities
- Land issues have been settled through the Mcleod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement Act, 2000.
Completed agreements
- McLeod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement – 1999
- Vol. 1
- Vol. 2
- Vol. 3
- Mcleod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement Act, 2000.
Other negotiations
First Nation Clean Energy Business Fund (FNCEBF) Revenue Sharing Agreements
- McLeod Lake Indian Band FNCEBF Revenue Sharing Agreement (Quality Creek Wind IPP) – 2017
- McLeod Lake Indian Band FNCEBF Revenue Sharing Agreement (Septimus Wind IPP) – 2017
- McLeod Lake Indian Band FNCEBF Revenue Sharing Agreement (Thunder Mountain Wind IPP) – 2017
- McLeod Lake Indian Band FNCEBF Revenue Sharing Agreement (Tumbler Ridge Wind IPP) – 2017
Forestry Agreements
- Mcleod Lake Indian Band Economic Development Agreement – 2010 (PDF)
LNG Agreements
- McLeod Lake Natural Gas Pipeline Benefits Agreement (Coastal GasLink Pipeline Project) – 2015
- McLeod Lake Natural Gas Pipeline Benefits Agreement (Pr. Rupert Gas Transmission Project) – 2015
- McLeod Lake First Nations Limited Partnership (FNLP) Pacific Trails Pipeline (PTP) Economic Participation Agreement – 2009
Other Agreements
- McLeod Lake Government to Government Agreement – 2017
- McLeod Lake Site C Tripartite Land Agreement – 2017
- McLeod Lake Economic and Community Development Agreement – 2010
Media Attributions
- Map 2. McLeod Lake Reserve Lands and Fee Simple Lands © McLeod Lake Indian Band is licensed under a All Rights Reserved license
- McLeod Lake Indian Band Land Code, 2022. ↵
- McLeod Lake Indian Band refers specifically to the Band, the form of governance dictated by the Indian Act. Culturally, the members of MLIB are part of the Tse’Khene people, which also includes the Tsay Keh Dene Nation and Kwadacha Nation. Accordingly, members of the McLeod Lake Indian Band can be distinguished as the McLeod Lake Tse’Kene. Alternate spellings: Tse Keh Nay; Tse Kay Dene. ↵
- McLeod Lake Indian Band website. ↵
- Land Use Plan (2004), p. 5. ↵
- Golder Associates (2009). "Overview of McLeod Lake Indian Band Traditional Knowledge of Alpine Ecosystems as Relevant to the Proposed Roman Coal Mine." Report No. 07-1414-0149. ↵
- Baxter, Jamie, and Michael Trebilcock (2009). ""Formalizing" Land Tenure in First Nations: Evaluating the Case for Reserve Tenure Reform." Indigenous Law Journal 7(2). ↵
- Baxter & Trebilcock (2009), p. 70. ↵
- Generally, to enfranchise refers to giving someone the legal right to vote. In the context of Indigenous peoples, enfranchisement, whether voluntary or, more likely, enforced by the federal government, refers to a legal process for terminating or losing one’s Indian Status under the Indian Act and attaining Canadian Citizenship. Enfranchisement under the Indian Act was extinguished via amendments in 1985. See The Canadian Encyclopedia and Indigenous Foundations. ↵
- Baxter & Trebilcock (2009), pp. 62-3. ↵
- Baxter & Trebilcock (2009), p. 49. ↵
- Clark, Gordon (1987). “Fight is one of hope,” Prince George Citizen (July 11, 1987, p. 1). ↵
- McLeod Lake Indian Band was the second First Nation in BC and sixth in Canada to sign. ↵
- Source: McLeod Lake Indian Band Land Code, 2022. ↵
- McLeod Lake Indian Band 2021 Land Use Plan, p. 1. ↵
- Williams, T. (2008). Journey to Economic Independence: BC First Nations’ Perspectives. In Halseth et al., Understanding Indigenous Economic Development in Northern, Rural, and Remote Settings. Prince George, BC: Community Development Institute, p. 55. ↵
- Shanks, G. (2005). Economic Development in First Nations An Overview of Current Issues. Public Policy Forum, p. 16. ↵
- Shanks (2005), p. 5. ↵
- Aragón, F. M., and A. Kessler (2018). “Property rights on First Nations' reserve land.” Burnaby, BC: Simon Fraser University. ↵
- Duz Cho Group of Companies ↵
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