Designation of First Nation Reserve Land for Oil and Gas
Designation of Existing Reserve Lands
When a First Nation wants to lease its reserve land, the Indian Act requires the land to be designated for leasing. A designation identifies an area of land for a certain use or purpose and for a certain period.
A designation needs to include these important points:
- Term (how long)
- Purpose (what the designation is for)
- Land description (legal land description - area of land)
- Any additional conditions set by the First Nation
Sections 37 through 41 of the Indian Act describe designations. A designation is conducted by referendum according to the Indian Referendum Regulations. The designation process is administered by the regional offices of Aboriginal Affairs and Northern Development Canada. The Governor in Council must accept the reserve designation through an order in council for it to become official.
A designation for oil and gas typically describes the purpose as oil and gas exploration and development, gives a term of perpetuity and includes all the land of the reserve.
Indian Oil and Gas Canada is responsible for issuing oil and gas agreements on designated reserve lands.
Pre-Reserve Designation of Land
First Nations in all three Prairie Provinces can conduct pre-reserve designations for oil and gas exploration and development on lands that have been selected for reserve under a claim settlement. The vast majority of claim settlements are either Treaty Land Entitlement (TLE) settlements or specific claim settlements.
A pre-reserve designation takes place before lands are granted reserve status. Authority for these designations comes from the Claim Settlements (Alberta and Saskatchewan) Implementation Act (CSIA) and the Addition of Lands to Reserves and Reserve Creation Act (S.C. 2018, c. 27, s. 675). Designations implemented under these Acts are accepted by the Minister of Indian Affairs and Northern Development by way of a Ministerial order to become official. The CSIA specifies that the Act empowers the Minister to set apart lands for reserve.
Where third party interests exist on the lands, replacement oil and gas agreements are issued by IOGC. With the pre-reserve designation in place, the agreements become active the moment the lands obtain reserve status.
Where there are no third party oil and gas interests, the Acts allow for agreements to be entered into prior to the lands gaining reserve status. When the lands gain reserve status, the agreements become active; however, no oil and gas activity is allowed under these agreements until the lands become reserve.
Agreements issued on these lands, whether replacement or new agreements, are issued under the Indian Oil and Gas Act and the Indian Oil and Gas Regulations, (SOR/2019-196).