Draft Policy on Setting Apart Lands as Reserve

Table of contents

Part roman numeral 1 — Policy

1.1 Title and Effective Date

Title: Policy on Setting Apart Lands as Reserve

Effective date: This Policy is effective as of XXXX and applies to all Reserve Creation Proposals received before and after this date.

1.2 Objectives and Outcomes

Reserve Creation supports First Nation community, social, and economic objectives by expanding or creating Reserve land bases. The Reserve Creation approach is grounded in a nation-to-nation relationship which emphasizes respect and partnership as the foundation.

The objectives of this Policy are to bring clarity and transparency to the Reserve Creation process, and provide a clear overview of the requirements for adding land to Reserve or to create a new Reserve.

This Policy establishes a baseline approach to Reserve Creation and is designed to accommodate different regional contexts and priorities. The Policy provides guidance on the assessment and implementation of Reserve Creation Proposals, and further confirms the requirements for the Minister to set apart land as Reserve under the Addition of Lands to Reserves and Reserve Creation Act and the Framework Agreement, as ratified by the Framework Agreement on First Nation Land Management Act.

The expected outcomes of the Policy are to reduce processing times of Reserve Creation Proposals, and increase community, social, and economic benefits from land-based opportunities for First Nations.

To accomplish these outcomes and advance reconciliation, the Policy establishes a predictable, transparent, and accountable framework for setting apart lands as Reserve. Informed by First Nation recommendations, this framework:

  • Supports First Nation priorities;
  • Enables timely decision-making;
  • Allows risk-managed sequencing of technical requirements; and
  • Enables transparent, accountable service delivery supported by service standards and public tracking.

1.3 Authorities

The Policy is issued under the authority of the Minister of Crown-Indigenous Relations and is administered, through delegation, by the Department of Indigenous Services Canada.

The Minister may delegate any of the duties or functions under the Policy to the Minister of Indigenous Services.

Internal delegations should be to the lowest appropriate level while maintaining accountability to First Nations.

Relevant Federal Legislation:

  • Addition of Lands to Reserves and Reserve Creation Act (ALRRCA) (S.C. 2018, c. 27).
  • Framework Agreement on First Nation Land Management (the "Framework Agreement") and the Framework Agreement on First Nation Land Management Act (FAFNLMA) (S.C. 2022, c. 19, s. 121).
  • United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIP Act) (S.C. 2021, c.14).
  • Federal Real Property and Federal Immovables Act (FRPFIA) (S.C. 1991, c. 50) and regulations.
  • Canada Lands Surveys Act (R.S.C. 1985, c. L-6) and regulations.
  • Department of Crown-Indigenous Relations and Northern Affairs Act, S.C. 2019, c. 29, s. 337.

1.4 Application and Interpretation

  • This Policy replaces the 2016 Policy on Additions to Reserve/Reserve Creation, which was formerly included as Chapter 10 of the 2002 Land Management Manual.
  • This Policy applies to all federal officials engaged in the Reserve Creation process. It supports First Nations seeking Reserve Creation, including First Nations with no existing Reserve land.
  • Where provisions of this Policy are inconsistent with a Self-Government Agreement, the Framework Agreement, treaty or other Agreement with Canada, those Agreement provisions prevail to the extent of the inconsistency or conflict, unless otherwise agreed to by Canada and the First Nation, and other parties.
  • References to this Policy include its directives. Guidelines and annexes serve as supporting documents to assist with implementation.
  • Definitions applicable to this Policy and its directives are provided in Annex A.

1.5 Principles

Spirit of UNDRIP: This Policy is guided by the spirit and intent of the United Nations Declaration on the Rights of Indigenous Peoples and the United Nations Declaration on the Rights of Indigenous Peoples Act.

Honour of the Crown: The implementation of this Policy is embedded in the Honour of the Crown and must be an ongoing collaborative effort between the Crown and First Nations, each of whom have implementation responsibilities.

First Nation Priorities: Meeting the priorities of First Nations in a timely and appropriate fashion is the primary driver in implementing this Policy.

Service Excellence: Canada is committed to providing quality, culturally appropriate and timely services to First Nations.

Flexibility: This Policy will be implemented with flexibility to accommodate and respect the diverse governance structures, jurisdictions, local contexts, and capacities of First Nations.

Transparency: Federal officials responsible for implementing this Policy will ensure transparency and accountability through appropriate and timely communication, accessible information, clearly established timelines, where feasible, joint work plan review with First Nations and regular reporting.

Risk Management: A foundation for this Policy is the recognition that managing identified risks will be different for different parties, and whereby the risk for the federal government should not override overall decision-making.

Dispute Resolution: It is recognized that disputes will arise and that effective and culturally informed mechanisms for their timely resolution may be required.

1.6 Reserve Creation

Selection Area:

Land proposed for Reserve Creation is normally located within an Initiating First Nation's Treaty or Traditional Territory. Land proposed for Reserve Creation that is located outside of an Initiating First Nation's Treaty or Traditional Territory will be considered on a case-by-case basis.

Title:

The Federal Real Property and Federal Immovables Act is the primary legislation governing the transfer of land to the federal Crown. This transfer must be arranged between the vendor or the provincial Crown and the Department of Justice.

Initiation:

The Initiating First Nation must submit a resolution that requests Minister to set the specified land apart as Reserve, see 2.2.1.

Technical Requirements:

In order for the Minister of Crown-Indigenous Relations to consider an Initiating First Nation's Reserve Creation Proposal, the following requirements must be met:

  • Title Search (legal status of the land needs to be identified), see 2.2.2;
  • Land Description and Survey (parcel boundaries need to be described), see 2.2.3;
  • Duty to Consult and Accommodate (Canada's duty to consult and accommodate, where it arises, will be fulfilled), see 2.2.4;
  • Environmental Due Diligence (the environmental condition of the lands must be known), see 2.2.5;

Where applicable, the following must also be addressed:

  • Third Party Interests (leases, permits, rights of way and other third party interests must be identified, assessed and addressed, where they exist), see 2.2.6; and
  • Essential Services (fire, emergency and other Essential Services must be considered and planned when required), see 2.2.7.

1.7 Policy Administration Framework

Flexibility and First Nation Priorities:

  • The Initiating First Nation and Canada will work collaboratively to identify the Policy requirements that the Initiating First Nation wishes to undertake, where feasible.
  • Initiating First Nations are not required to justify the need for Reserve Creation.
  • A Reserve Creation Proposal for the establishment of a Joint Reserve will be considered where First Nations governance and management of a Joint Reserve have been addressed.
  • Technical steps may proceed in parallel to allow for flexible sequencing of Reserve Creation Requirements.
  • Certain existing Third Party Interests on land proposed for Reserve Creation may be continued, subject to an Agreement between Canada and the Initiating First Nation.
  • Providing Essential Services to land proposed for Reserve Creation may not be required for a Reserve Creation Proposal to be recommended to the Minister.

Results-Based Approach:

This Policy provides a Results-Based Approach to setting apart lands as Reserve and is designed with flexibility to accommodate different Land Management Structures, regional contexts and priorities. A Results-Based Approach to Reserve Creation is a collaborative process that requires early and ongoing engagement with key partners to support transparent decision making, and includes joint implementation planning between the Initiating First Nation and Canada, unless otherwise agreed.

To support a Results-Based Approach, the Initiating First Nation and Canada should jointly develop an implementation plan, unless otherwise agreed upon. The implementation plan should:

  • Identify the workstreams and deliverables to meet the Reserve Creation requirements;
  • Outline the roles and responsibilities of each party;
  • Estimate timelines and develop a critical path; and
  • Incorporate any other items the Initiating First Nation and Canada agree upon.

The Initiating First Nation may propose an alternative to the Results-Based Approach to be implemented while still meeting the requirements identified in this Policy.

Risk-Management:

  • Canada will work collaboratively with the Initiating First Nation to streamline processing while considering legal and financial implications, and Indigenous rights and interests. The assessment and processing of each Reserve Creation Proposal will be proportionate to its level of complexity and risk.
  • Canada and the Initiating First Nation can explore opportunities to mitigate risk through indemnification agreements, releases, remedial actions plans or other agreements, as appropriate.

Intergovernmental Coordination:

  • Canada will work in collaboration with First Nations, provinces, territories and local governments to streamline procedures, approaches and leverage tools to accelerate Reserve Creation Proposals.
  • Provinces, territories, and local governments can play an important role in the Reserve Creation process and their input will be considered, however, they do not have a veto over Reserve Creation.

1.8 Roles and Responsibilities

The Government of Canada:

  • Sets apart lands as Reserve pursuant to Addition of Lands to Reserves and Reserve Creation Act, and the Framework Agreement as ratified by Framework Agreement on First Nation Land Management Act.
  • Notwithstanding successfully meeting all Reserve Creation requirements, the Minister continues to have discretion to create Reserves.
  • Upon written request from the Initiating First Nation, provides all readily available information in Canada's possession related to the Initiating First Nations' Reserve Creation Proposal. Where permitted by law, this may include personal information as defined in section 3 of the Privacy Act for that purpose.
  • Responds to general inquiries from the public regarding this Policy.
  • Maintains a National Additions to Reserve Tracking System (NATS) that is available and accessible to First Nations to track Reserve Creation Proposals, and that Indigenous Services Canada can use to maintain data and metrics on Reserve Creation Proposals
  • Fulfills its Duty to Consult and, where appropriate, accommodates adversely impacted asserted or established Aboriginal or Treaty Rights.
  • In collaboration with First Nation partners, implements this Policy, and develops guidance documents, information bulletins, best practices and other supporting documentation to support the effective implementation of this Policy.
  • Engages provinces, other levels of government, and third parties as required to support the advancement of Reserve Creation Proposals.

Initiating First Nation:

  • Initiates Reserve Creation by submitting a Reserve Creation Proposal through National Additions to Reserve Tracking System (NATS) or using the PDF fillable form (see Guidelines).
  • Notifies Indigenous Services Canada (ISC) if the Reserve Creation Proposal is being submitted as a result of a legal obligation of Canada to the Initiating First Nation and any land related provisions and/or funding obligations identified within an Agreement.
  • Responds to correspondence and provides information and documentation to Canada, in accordance with the requirements of this Policy to advance the Reserve Creation Proposal.
  • Fulfills any requirements under this Policy that the Initiating First Nation and Canada agree will be the responsibility of the Initiating First Nation.
  • Collaborates with federal, provincial, and local governments, as well as relevant partners, to advance and support the development of Reserve Creation Proposals.

1.9 Service Standards

Canada must make best efforts to meet the following service standards:

  • Confirming receipt of Reserve Creation Proposals within 7 business days of receipt.
  • Responding to enquiries within 7 business days.
  • Convening a meeting with the Initiating First Nation to develop a critical path, determine lead points of contact, and establish responsibilities, within 30 days of receipt of a Reserve Creation Proposal.
  • Upon request from the Initiating First Nation, Canada will collaboratively draft a joint workplan within 60 days of the initial meeting between both parties, and upload it to National Additions to Reserve Tracking System (NATS).
  • Updating the National Additions to Reserve Tracking System (NATS) within 10 business days of completion of an activity on the critical path/work plan.
  • Processing and submitting a package for Ministerial consideration within 30 business days of Canada and the Initiating First Nation agreeing that all technical requirements are met and the final Reserve Creation package is complete.
  • Upon the Minister's approval of a Reserve Creation, Indigenous Services Canada (ISC) commits to preparing and submitting the complete legal transfer package to the Department of Justice within 15 business days of the transfer being initiated by the First Nation. ISC will continuously monitor the file's progress with the Department of Justice and provide the Initiating First Nation with regular status updates via the National Additions to Reserve Tracking System (NATS).
  • Indigenous Services Canada (ISC) and Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) are committed to monitoring and reporting on service standards to support a transparent and accountable service delivery model.

1.10 Monitoring, Oversight, and Review

Monitoring and evaluation:

  • Canada will establish mechanisms to receive feedback from First Nations on this Policy.
  • This Policy will be reviewed by Canada every 5 years from its effective date to assess its effectiveness against Policy objectives and First Nation feedback.
  • Following each five-year assessment, Canada will make modifications to this Policy, if needed, in collaboration with First Nation and technical experts.

Performance indicators:

  • Canada will establish and report on appropriate performance indicators to monitor the effectiveness of this Policy and support a transparent and accountable service delivery model.

Consequences for non-compliance:

  • Deputy heads or their designates are responsible for ensuring that corrective actions are taken to address significant issues of non-compliance with this Policy by federal officials.

1.11 Enquiries

Indigenous Services Canada or Crown-Indigenous Relations and Northern Affairs Canada

Email: infopubs@aadnc-aandc.gc.ca
Phone: (toll-free) 1-800-567-9604
Fax: 1-866-817-3977
TTY: (toll-free) 1-866-553-0554

Part roman numeral 2 — Directives

2.1 General Purpose and Objectives

The purpose of these directives is to outline the requirements that the Initiating First Nation and Canada must meet before setting apart land as Reserve. These requirements include:

Required for all Reserve Creation Proposals:

  1. Formal Request
  2. Title Search
  3. Land Description and Survey
  4. Duty to Consult and Accommodate
  5. Environmental Due Diligence

Most Reserve Creation Proposals may require these to be addressed:

  1. Third Party Interests
  2. Essential Services

2.2 Reserve Creation Technical Requirements

In order for the Minister of Crown-Indigenous Relations to consider a Initiating First Nation's Reserve Creation Proposal, the following requirements must be met:

2.2.1 Formal Request

The Initiating First Nation must provide a formal decision from its recognized governing body (such as a Band Council Resolution or equivalent governing instrument) that includes the following information:

  • A request that the Minister set the specified land apart as Reserve under the authority of either the Addition of Lands to Reserves and Reserve Creation Act or Framework Agreement on First Nation Land Management Act; and
  • Identification of any treaty, or settlement agreement that applies to the land proposed for Reserve Creation.

The reserve name must be confirmed by the Initiating First Nation prior to Reserve Creation. Where a proposed name for the new Reserve lands is available, it must be included in the initiating resolution. If a name has not yet been identified, a subsequent resolution confirming the Reserve name must be submitted before the proposal is recommended to the Minister.

2.2.2 Title Search

A title search is required to confirm that the land proposed for Reserve Creation can be lawfully set apart as reserve and is free of interests that would impede Reserve creation. The title search must identify the registered owner(s) of the lands and disclose all existing encumbrances, interests, or third-party rights, including liens, easements, rights-of-way, and leases.

2.2.3 Land Description and Survey

Minimum Requirement

A description of the land proposed for Reserve Creation must be prepared or approved by Natural Resources Canada. Land descriptions do not always require a new survey for the minimum requirement to be met, as they often rely on existing, registered (provincial) plans. However, a new survey is required when Natural Resources Canada identifies the description as outdated or inaccurate.

General
  • Parcel boundaries must be described in accordance withFootnote 1:
  • The applicable Memorandum of Understanding Concerning Cooperation in the area of Land Survey-Related Activities on First Nation/Reserve Lands, and
  • The Memorandum of Agreement with British Columbia Respecting Legal Surveys of Highways over or through Canada Lands in British Columbia, 2025.
  • All land descriptions must be prepared by the Surveyor General Branch of Natural Resources Canada and reviewed by the Department of Justice Canada to identify and address legal issues before Reserve Creation.
  • Any suggested amendments to the land description are to be approved by the Surveyor General Branch.
Other Requirements and Considerations
  • A Reserve Creation Proposal must include a reference to the parcel of land, either by an existing survey plan or land description).
  • If the existing survey plan or land description clearly and accurately describes the lands, the Surveyor General Branch may deem it sufficient for Reserve Creation.
  • If the existing survey plan or land description does not clearly describe the lands, the Surveyor General Branch will require a survey of the land proposed for Reserve Creation.
  • If a survey is required for federal Crown land, the survey will be conducted by a Canada Lands Surveyor (CLS) under the authority of Section 47 of the Canada Lands Surveys Act.
  • If a survey is required for land that is classified as fee simple land, provincial Crown land or territorial Crown land, the survey will be carried out under the applicable provincial or territorial authority with the resulting survey plan filed in the applicable public land registry. There may be some exceptions for land within the province of Québec.
    • For land within the province of Québec, the lot number (also termed cadastral designation) in "le Cadastre du Québec" may be used as the official description.
    • If a survey is required for land that is classified as a provincial highway in British Columbia, the survey will be conducted by a dual commissioned CLS and British Columbia Land Surveyor, under the authority of the Canada Lands Surveys Act.
    • Where former Reserve land is being returned to Canada for proposed Reserve Creation, the existing survey plan or land description used to remove the land from the original Reserve may be used, subject to approval from the Surveyor General Branch.
    • Where there is a survey plan filed in the Public Land Registry depicting the extent of the land proposed for Reserve Creation, or if a new plan is developed, the resulting survey plan or copy of the survey plan will be recorded in the Canada Lands Surveys Records by the Surveyor General Branch.

2.2.4 Duty to Consult and Accommodate

Minimum Requirement

A Reserve Creation Proposal will only be recommended to the Minister once Canada's Duty to Consult, and where appropriate, accommodation requirements have been considered.

General
  • Canada has a legal Duty to Consult and, where appropriate, accommodate Indigenous Groups when the Crown contemplates conduct that may adversely impact asserted or established Aboriginal or Treaty Rights, as recognized and affirmed by section 35 of the Constitution Act, 1982.
  • The Crown's decision to create a reserve may trigger the Duty to Consult as it may adversely impact the constitutional rights of other Indigenous groups.
  • Consultation may reveal the need for accommodation. Where appropriate, accommodation helps reconcile interests, prevents harm to rights, and responds to concerns before recommending a Reserve Creation Proposal to the Minister.
Other Requirements and Considerations
2.2.4.1 Fulfillment of the Duty to Consult and Accommodate
  • The Duty to Consult must be assessed for all Reserve Creation Proposals.
  • If there is uncertainty, Canada will notify the potentially affected Indigenous Groups to clarify and resolve the issue.
  • The Duty to Consult process should begin as early as possible and in parallel with other Reserve Creation activities where appropriate.
  • The Initiating First Nation may carry out some or all procedural aspects of consultation or accommodation. Canada retains responsibility for fulfilling the Duty to Consult and Accommodate and will determine whether Initiating First Nation-led consultation activities are sufficient to meet its legal obligation. The Initiating First Nation will work closely with Canada to ensure legal obligations are met.
  • Prior consultation processes may be used to fulfill Canada's Duty to Consult. Canada will review consultation efforts to determine adequacy on a case-by-case basis.
    • Canada will engage with the Initiating First Nation to discuss the adequacy of prior consultations. Canada will also contact Consultee(s) to verify the record and provide them with an opportunity to raise any concerns.
  • If prior consultations are deemed adequate, Canada will inform the Initiating First Nation and Consultee(s). If deemed inadequate, a new or supplementary consultation process must be undertaken.
  • Throughout the Duty to Consult process, Canada will ensure robust documentation, meaningful dialogue, and support for adaptive and scalable approaches tailored to the unique circumstances of each case.
2.2.4.2 Scoping of Consultation
  • Canada must identify the Indigenous Groups whose established or asserted Aboriginal or Treaty Rights may be adversely impacted and share the results with the Initiating First Nation.
  • Canada must determine the depth and scope of the consultation by assessing the strength of the Consultee(s)' claim and severity of the potential adverse impacts, and may update the assessment as additional information becomes available. This assessment will rely on information from the Initiating First Nation, Consultee(s), and other government sources.
  • If an Indigenous Group identified during the scoping process will not be consulted, a justification must be documented and, if required, supported with advice from the Department of Justice.
2.2.4.3 Consultation
  • An Initiating First Nation, or a third party representing an Initiating First Nation, may lead or contribute to procedural aspects of the Duty to Consult process. These may include: 
    • Supporting Canada to identify Consultee(s);
    • Advising if prior consultation has been completed;
    • Leading engagement;
    • Maintaining engagement and communication records for Canada's review and final decision; and,
    • Recommending accommodation measures to Canada, if appropriate.
  • The Initiating First Nation must notify Canada if a third party undertakes procedural aspects of the Duty to Consult.
  • Canada may, on a case-by-case basis, provide resources to support Initiating First Nation-led engagement.
  • If the Initiating First Nation cannot, or chooses not to, lead procedural aspects of consultation, or if an Indigenous Group prefers to engage directly with Canada, Canada must conduct consultation.
2.2.4.4 Communication and Engagement with Consultee(s)
  • Canada, the Initiating First Nation or a designated third party must notify all potentially impacted Consultee(s) and invite them to identify potential adverse impacts on their established or asserted Aboriginal or Treaty Rights.
  • Consultee(s) must clearly articulate any potential adverse impacts to established or asserted Aboriginal and Treaty Rights. Consultee(s) may be asked to provide evidence to support their claims.
  • Canada will follow existing consultation protocols signed by both Canada and Indigenous Groups, unless otherwise directed. In the absence of a protocol, Canada will seek out the preferred consultation approach by Consultee(s).
  • Canada may work with the Initiating First Nation and Indigenous Groups and may develop agreements concerning consultation where resources allow.
  • Where there are significant dispute over established or asserted Aboriginal and Treaty Rights arises, Canada may offer structured dispute resolution where resources allow. In such cases, a dispute resolution report must be included in the consultation record.
2.2.4.5 Duty to Accommodate
  • Accommodation rests with the Crown. Canada must balance Consultee(s)' concerns with the objectives of the Reserve Creation Proposal reasonably and transparently.
  • The Initiating First Nation may work with the Consultee(s) towards identifying potential accommodation measures for recommendation to Canada. Canada must decide if the proposed accommodation is reasonable.
  • Consultee(s) may work directly with Canada to address accommodation.
  • The scope of accommodation will be determined based on the strength of claim and the severity of the potentially adverse impacts.
  • Canada must make best efforts to coordinate with relevant Crown entities to identify and implement potential accommodations.
  • Canada must justify and document a decision to reject a proposed accommodation or Consultee's adverse impact claim.
  • Where an Initiating First Nation opposes a proposed accommodation, their reasons must be documented by Canada.
  • Where the Consultee rejects accommodations that Canada deems to be reasonable, the Reserve Creation Proposal may still be recommended to the Minister.
2.2.4.6 Crown Coordination
  • The Duty to Consult and Accommodate binds the entire Crown and Canada must make best efforts to coordinate with Crown entities, guided by applicable federal consultation guidelinesFootnote 2. Where coordination is not feasible, Canada must consult and accommodate independently and maintain a complete record.
  • Where Reserve Creation forms part of a broader settlement agreement, consultation should be unified into a single process with all applicable federal departments where possible.

2.2.5 Environmental Due Diligence

Minimum Requirement

The environmental condition of the land proposed for Reserve Creation must be determined to meet the Applicable Environmental Standard prior to Reserve Creation.

General
  • In accordance with the Treasury Board Secretariat Directive on the Management of Real Property, Canada must conduct environmental due diligence to assess and understand the environmental condition of any land proposed for Reserve Creation prior to its acquisitionFootnote 3 or the final transfer of its administration and control for the purpose of Reserve Creation.
  • This directive recognizes that every site is unique. The application of all environmental due diligence requirements will be flexible and tailored to the specific context of the land proposed for Reserve Creation, the Initiating First Nation's intended use, and the risk of contamination to human health and the environment.
Other Requirements and Considerations
  • All lands proposed for Reserve Creation will undergo a phased Environmental Site Assessment (ESA) process. The scope and intensity of this process will be proportional to the risk of contamination.
2.2.5.1 Environmental Site Assessments (ESA)
  • The ESA process will involve the Initiating First Nation and other First Nations, as appropriate, to seek and incorporate their traditional knowledge, community concerns, and land use plans.
  • The information provided by the ESA will be used to:
    • determine if the land is environmentally suitable for the Initiating First Nation's intended use;
    • identify the nature and extent of contamination; and
    • establish a factual basis for assigning legal and financial responsibility for contamination.
  • The ESA process will be managed collaboratively between the Initiating First Nation and Canada. The specific roles, responsibilities, Applicable Environmental Standards, methodology, and quality assurance checkpoints for each ESA will be agreed upon and documented prior to the commencement of work. The ESA will be managed under one of the following pathways:
    • The Initiating First Nation leads and manages the ESA process and provides to Canada an ESA that meets the standards established by the Canadian Standards Association (CSA) and is suitable for the Initiating First Nation's intended land use; or
    • Upon written request from the Initiating First Nation and subject to securing necessary funds and resources, Canada will be responsible for securing expertise to lead and manage the technical components of the ESA in accordance with the applicable CSA standards.
  • A copy of the final ESA report must be provided to both the Initiating First Nation and Canada for their records. Canada's review role in each pathway—whether for conformance, or quality assurance—is the primary mechanism through which it fulfills its due diligence.
2.2.5.2 Changes in Environmental Conditions
  • Canada and the Initiating First Nation must be aware of any changes in the environmental condition of the land proposed for Reserve Creation throughout the Reserve Creation process.
  • Any changes in the environmental conditions of the land proposed for Reserve Creation that complies with the Applicable Environmental Standards will be accepted by Canada for the purpose of Reserve Creation.
  • The Initiating First Nation does not need to provide an updated ESA while the Reserve Creation Proposal is under consideration if the Initiating First Nation confirms in writing that no significant change in the environmental status of the land has occurred.
2.2.5.3 Environmental Assessment Outcomes
  • If the ESA confirms that the land meets the Applicable Environmental Standard for its intended use, Canada will proceed with recommending the Reserve Creation Proposal to the Minister.
  • If the ESA confirms that the land exceeds the Applicable Environmental Standard for its intended use, the land is considered a contaminated site.
  • The Reserve Creation Proposal may be recommended to the Minister if:
    • The contamination is remediated prior to the final land transfer; or
    • The land is transferred with contamination in place, conditional on a risk management approach that includes but it is not limited to:
      • formally documented acceptance of the land "as is" by the Initiating First Nation;
      • formal release and indemnity of Canada from environmental liability; and
      • if applicable, an identified party that holds the financial responsibility for addressing environmental contamination. A party may include a municipality, province, territory, federal government department or agency, the Initiating First Nation, or other third party.
  • The Reserve Creation Proposal may be recommended to the Minister while Canada continues to pursue and implement the necessary remediation plan for determined federal liabilities, provided the land is demonstrably safe for its intended interim use.
2.2.5.4 Sites of Cultural Significance
  • Where sites have been identified by the Initiating First Nation as culturally or spiritually significant, Canada and the Initiating First Nation will take all necessary steps to protect the site's physical integrity and spiritual sanctity. As a primary step, intrusive work, including but not limited to sampling, testing, drilling, or excavation, will not be permitted on these sites without the express, and revocable consent of the Initiating First Nation.

2.2.6 Third Party Interests

Minimum Requirement

All existing Third Party Interests on land proposed for Reserve Creation should be identified and addressed by the Initiating First Nation and Canada. Provincial and territorial reservations are not considered Third Party Interests and are not required to be extinguished or replaced.

General
  • Identifying and addressing Third Party Interests, in accordance with the Federal Real Property and Federal Immovables Act and its Regulations, is required before recommending the Reserve Creation Proposal to the Minister. An inability to address these Third Party Interests may result in title issues that would prevent Canada from acquiring the parcel of land, or impact the exclusive use and benefit of lands for the Initiating First Nation.
  • If a Third Party Interest holder refuses reasonable options or cannot be located despite reasonable efforts and is causing undue delay to the Reserve Creation process, the Minister may consider granting Reserve status to the land, subject to the Third Party Interest, even without the Third Party Interest holder's consent.
  • The Initiating First Nation holds the primary responsibility for leading negotiations of replacement agreements with a Third Party Interest holder. However, at the Initiating First Nation's request, Canada may provide assistance in these negotiations with the level of support determined collaboratively and in accordance with the Initiating First Nation's preferences.
Other Requirements and Considerations
2.2.6.1 Identifying Third Party Interests
  • The Initiating First Nation will lead the identification of Third Party Interests and include any known interests in the Reserve Creation Proposal.
  • The identification of Third Party Interests may be achieved through one or more of the following methods:
    • A comprehensive title search, including a search for off-title interests;
    • A canvass of relevant provincial or territorial ministries;
    • A legal survey of the land;
    • An Environmental Site Assessment; or
    • A site visit.
  • The Initiating First Nation should engage with Canada to ensure due diligence efforts meet all requirements for rigour and completeness. All findings and results must be provided to Canada for review and verification.
  • Where Canada holds title data or information regarding the land proposed for Reserve Creation, including information on Third Party Interests, that information will be shared with the Initiating First Nation.
  • Where possible, Canada should consolidate relevant information across provincial or territorial ministries to support the Initiating First Nation to access title and Third Party Interest research.
  • The Initiating First Nation and/or Canada should contact Third Party Interest holders as early in the Reserve Creation process as possible to identify issues and potential solutions.
2.2.6.2 Addressing Third Party Interests
  • When land is being transferred to Canada, an assessment must be conducted to ensure that the presence of Third Party Interests and/or encumbrances does not prevent Canada from valid and legal acquisition or acceptance of administration and control.
  • Where land is already under federal administration, a review must be conducted to identify Third Party Interests that may be incompatible with the Initiating First Nation's intended use.
  • Third Party Interests that are incompatible with the Initiating First Nation's intended use or would significantly impair the Initiating First Nation's effective use and benefit of the land may be extinguished, including via purchase, or excluded, with the Third Party Interest holder's consent.
  • Third Party Interests may be addressed by replacing the existing interest with an equivalent legal instrument with the consent of the Third Party Interest holder. The legal framework governing the new replacement instrument will depend on the Initiating First Nation's jurisdiction, and may include:
    • The Indian Act;
    • A Land Code developed pursuant to the Framework Agreement on First Nation Land Management, as ratified by the Framework Agreement on First Nation Land Management Act;
    • A Self-Government Agreement;
    • First Nations Commercial and Industrial Development Act, or
    • The Civil Code in Quebec.
  • Third Party Interests may continue after Reserve Creation based on a case-by-case assessment and as authorized under paragraph 4(2)(a) of the Addition of Lands to Reserves and Reserve Creation Act. This is contingent on an Agreement between Canada and the Initiating First Nation.
  • If practical, the area affected by the Third Party Interest may be excluded from the land proposed for Reserve Creation by conducting a survey to 'carve out' the excluded land to amend the land description. Excluding an area affected by the Third Party Interest can support a more expedient process.
  • The excluded lands may be included in a separate, future Reserve Creation Proposal for the Minister to consider. These lands will be subject to all of the requirements of this Policy, including addressing any Third Party Interests that still exist.

2.2.7 Essential Services

Minimum Requirement

The Initiating First Nation must demonstrate that Essential Services have been considered and that a proportionate plan exists, where required, relative to land use and timing.

General

Canada will consider setting apart land for Reserve Creation where:

  • There is no immediate need for Essential Services;
  • The Initiating First Nation has an Essential Services agreement;
  • Essential Service agreement negotiations are at an advanced stage;
  • There is an operational and funding plan to put Essential Services in place; or
  • The Initiating First Nation will be providing the Essential Services.

When Essential Services cannot be provided solely within the boundaries of the land proposed for Reserve Creation, agreements between the Initiating First Nation and the Local GovernmentFootnote 4 or other service provider may be negotiated to ensure Essential Services are available to the land proposed for Reserve Creation.

Canada is not a signatory to any Essential Service agreements that are entered into between the Initiating First Nation and providers, including Local Governments.

While Local Governments may be consulted, they have no unilateral veto with respect to a Reserve Creation Proposal.

2.2.7.1 Essential Service Agreements

An agreement for Essential Services should, at a minimum, include the following:

  • A description of the services that the service provider will supply to the land proposed for Reserve Creation;
  • The basis for any fees and/or charges levied along with pay schedules; and the manner in which the First nation will be billed for the services;
  • Access provisions to install, maintain, repair and operate the services;
  • Access for emergency services, including fire protection;
  • Access provisions for upgrading, improving, replacing or conducting major repairs respecting services;
  • Costs for related engineering studies, if applicable; and
  • Impacts of major development on the land proposed for Reserve Creation.

2.3 Special Circumstances

2.3.1 Joint Reserves

A Reserve Creation Proposal for the establishment of a Joint Reserve will be considered only after details about the governance and management of the Joint Reserve have been agreed to by the participating First Nations.

2.3.2 Unsold Surrendered Lands

Provincial or territorial concurrence is required for the return of unsold surrendered land within the province or territory where the unsold surrendered land is under provincial or territorial title, for example, in Ontario, pursuant to the Indian Lands Agreement Act, 1986.

2.3.3 Lawful Possession of Individuals Occupying Land Proposed for Reserve Creation

  • The Initiating First Nation is responsible for identifying, addressing, and resolving all matters related to lawful possession or rights for individual(s) occupying the land proposed for Reserve Creation pursuant to section 22 of the Indian Act.
  • Canada will provide notice to the Initiating First Nation if it becomes aware of any potential rights arising under section 22 or 23 of the Indian Act. The Initiating First Nation must also notify Canada if it is aware of any such potential rights.
  • Land Code First Nations and Self-Governing First Nations remain responsible for addressing and resolving all matters related to lawful possession or rights for individual(s) occupying the land proposed for Reserve Creation in accordance with their respective Land Management Structure, as applicable.

2.3.4 Subsurface Rights

  • Reserve Creation Proposals for subsurface rights only are not permitted through this Policy.
  • When the land being set apart as Reserve is subject to a provincial or territorial exception in the surface title or right of ownership, every effort should be made to include the mineral rights underlying the exception even if this makes the subsurface rights greater than the surface rights.
  • If a third party holds the subsurface or rights to the subsurface of land proposed for Reserve Creation, the First Nation must resolve any legal and operational issues before the Reserve Creation Proposal is recommended to the Minister. This resolution must be achieved through one of the following methods:
    • The negotiation of formal access to allow the third party to exercise their rights, through an agreement between the First Nation and the third party;
    • a complete buy-out of those rights; or
    • Securing a written agreement from the province and the third party, where applicable, to accommodate a surface-only reserve, provided such an agreement clearly preserves access and management rights for the third party, and protects the First Nation's use of the land.

2.3.5 Former Reserve

  • A Reserve Creation Proposal that involves the return of former Reserve lands to an Initiating First Nation will be triaged, to ensure these lands are returned as quickly as possible.
  • Where an Initiating First Nation advances multiple Reserve Creation Proposals, including the return of former Reserve lands, Canada will sequence and prioritize the processing of these files based on the economic and social timelines and priorities identified by the Initiating First Nation.

2.3.6 Accretion and Erosion

  • Any lands accreted to a Reserve takes on the characteristics of the Reserve and any lands lost by Erosion lose the characteristics of the Reserve.
  • No Ministerial Order is required to change the boundary of the Reserve unless there are exceptional or controversial circumstances such as litigation or contentious relations between parties, to be determined on a case by case basis.
  • Accretion and Erosion do not apply to flooding.

2.3.7 Natural disasters

  • Reserve Creation Proposals resulting from a natural disaster will be assessed on a case-by-case basis and may require consideration of the following:
    • The risk involved if the community remains at the original site;
    • The nature and extent of future risk;
    • Extent of preventative or remedial action required;
    • The cost of undertaking preventative or remedial measures compared to the cost of relocation;
    • The overall benefits to the community for each option.

2.3.8 Regulatory Gaps

  • Where a proposed activity reveals a regulatory gap (for example, where provincial laws would cease to apply and no sufficient federal laws exist), Canada and the Initiating will identify proportionate interim risk-management measures and, where needed, pursue longer-term regulatory solutions in parallel so that Reserve Creation can proceed if risks are acceptable.

Part roman numeral 3 — Guidelines

To be developed.

Annexes

Annex A - Definitions

Aboriginal Title is a right to land that is similar to property defined at common law as fee simple title and "pleine propriété" in civil law in that it confers the right to decide how land will be used; the right to enjoyment and occupancy; the right to possess the land; the right to economic benefits from the land; and the right to proactively use and manage the land.

Agreement means any written agreement to which Canada is a party that includes provisions with respect to Reserve Creation.

Applicable Environmental Standards means Standards and guidelines that are used to determine whether the environmental condition of land is suitable for its current or intended land use. The standards are endorsed by the Canadian Council of Ministers of the Environment (CCME), or their equivalents, including but not limited to the environmental provisions outlined in applicable Treaty Land Entitlement (TLE) Framework Agreements, and any applicable provincial or territorial standards that are more stringent than the federal standards.

Canada means His Majesty the King in right of Canada.

Consultee means an Indigenous Group who has asserted or established AboriginalFootnote 5 or Treaty Rights to, or near, the land proposed for Reserve Creation, and whose Aboriginal or Treaty Rights may be adversely impacted by Crown conduct regarding on that land. A Consultee also includes any Indigenous Group which is being consulted with respect to a particular Reserve Creation Proposal.

Crown means His Majesty the King in right of Canada or in right of a Province, depending on the context.

Duty to Consult means an obligation of the government as a whole to consult with Indigenous peoples (and accommodate where appropriate) when the Crown contemplates conduct that might have an adverse impact on asserted or established Aboriginal or treaty rights protected by section 35 of the Constitution Act, 1982.

Environmental Site Assessment or ESA means A systematic investigative process that meets the standards established by the Canadian Standards Association (CSA) to characterize and delineate any contamination on land proposed for Reserve Creation. The purpose of this investigation is to provide the factual data needed to determine if contaminant concentrations exceed the Applicable Environmental Standards.

Essential Services means fire and other emergency response, as well as water, wastewater, solid waste, snow removal, road maintenance, and others as required.

First Nation means a "band" or "First Nation" as defined under the Indian Act, the Addition of Lands to Reserve and Reserve Creation Act, or the Framework Agreement on First Nation Land Management.

First Nation Law means a law that is enacted by a First Nation in accordance with the Framework Agreement on First Nation Land Management and the Land Code of that First Nation.

Framework Agreement means the Framework Agreement on First Nation Land Management, signed by Her Majesty in right of Canada and 13 First Nations on February 12, 1996 — and signed by other First Nations after that date — as amended from time to time in accordance with its provisions.

Grantor means the entity (person, company, or government) that held title to the land at the time a Third Party Interest was permitted, thereby granting a specific right to the third party.

Indigenous Group means a collective of Indigenous People that holds or asserts Aboriginal or Treaty Rights.

Initiating First Nation means a First Nation who initiates or submits a Reserve Creation Proposal.

Joint Reserve means a Reserve that is set apart for the use and benefit of more than one First Nation.

Land Code means a code, approved by a First Nation, in accordance with the Framework Agreement on First Nation Land Management, that sets out the basic provisions regarding the exercise of the First Nation's rights and powers over its First Nation land.

Land Code First Nation means a First Nation that is operational under a Land Code.

Land Management Structure means, for the purposes of this Policy, a First Nation's established approach to land management through a Self-Government Agreement, the Framework Agreement on First Nation Land Management, or other arrangement with Canada that includes land management provisions, but does not include First Nations whose land is managed pursuant to the Indian Act.

Local Government means a city, town, village or other built-up area with municipal, regional district or other authority, and includes a rural or urban municipality, as defined in relevant provincial or territorial legislation.

Minister means the Minister with the authority to set lands apart as Reserve or create new Reserve lands.

National Tracking System means the National Additions to Reserve Tracking System (NATS) or any future successor tracking system.

Policy means the Setting Apart Lands as Reserve Policy.

Reserve means a Reserve as defined under the Indian Act.

Reserve Creation means the act of adding land to an existing Reserve or creating a new Reserve for an Initiating First Nation(s) by Ministerial Order.

Reserve Creation Proposal means the formal proposal by an Initiating First Nation to add land to an existing Reserve or to create a New Reserve by Ministerial Order.

Results-Based Approach means a structured and outcome-focused method that prioritizes the achievement of agreed-upon objectives through the development and execution of a comprehensive implementation plan to support the advancement of a Reserve Creation Proposal.

Self-Government Agreement means an agreement concluded by a First Nation with His Majesty the King in right of Canada respecting government by and for the First Nation.

Self-Governing First Nation means a First Nation with a Self-Government Agreement with Canada.

Surveyor General Branch means the Surveyor General Branch in Natural Resources Canada.

Third Party Interests means all existing encumbrances or charges, whether registered or unregistered that may affect lands proposed for Reserve Creation. This includes leases, licenses, permits, easements, rights-of-way, and any other third party rights.

Treaty Rights means rights set out in either a historic or modern treaty. These rights are recognized and affirmed by section 35 of the Constitution Act, 1982.

Annex B – Supporting Legislative, Regulatory and Policy Instruments

Legislative

  • The Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App roman numeral 2, No 5.
  • Indian Act (R.S.C., 1985, c. roman numeral 1-5)
  • Impact Assessment Act 2019 (IAA) S.C. 2019, c. 28, s. 1 and regulations replacing the Canadian Environmental Assessment Act 2012 (CEAA) Impact Assessment Act
  • Species at Risk Act, (2002)
  • Indian Lands Agreement (1986) Confirmation Act, 2010 (Statutes of Ontario)
  • Indian Lands Agreement (1986) Act, (1988)
  • Specific Claims Tribunal Act, (2008)
  • National Parks Act, (2000)
  • First Nation Fiscal Management Act, (2005)
  • First Nations Commercial and Industrial Development Act, (2005)
  • Canadian Environmental Protection Act, (1999)
  • The Civil Code in Quebec

Policy instruments

  • Treasury Board Secretariat (TBS) Directive on the Management of Real Property.
  • Canada's Additions to Reserve/Reserve Creation Policy Directives (2016), as administratively updated December 1, 2024, and read with 2025 Guidelines for Interim Policy Redesign Measures.
  • ISC-NRCAN's Memorandum of Understanding concerning Cooperation in the area of Land Survey-Related Activities on First Nation/Reserve Lands.
  • Memorandum of Agreement with British Columbia Respecting Legal Surveys of Highways over or through Canada Lands in British Columbia, 2025.
  • ISC's Land Management Manual
  • ISC's New Bands and Band Amalgamations Policy
  • ISC's Indian Lands Registration Manual
  • CIRNAC's Specific Claims Policy
  • Canada's Aboriginal Consultation and Accommodation Updated Guidelines for Federal Officials to Fulfill the Duty to Consult
  • First Nation Taxation Commission and Federation of Canadian Municipalities for information on First Nation/municipal tax and service agreements and models
  • Canadian Standards Association (CSA) standards.
  • Framework Accord between ISC and the Department of Natural Resources Canada (NRCan). Contact your regional Survey General Branch office at NRCan for a copy of the current agreement in effect or find the agreement at Interdepartmental and Intergovernmental Agreements | National standards for the survey of Canada Lands

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