Introduction and Summary
It is widely acknowledged that the development of Land Use Plans (LUPs) is one of the best ways of assuring successful and healthy communities; whether fitted within a broader Community Plan, or operating on its own, a LUP can provide the basis for the development of others plans such as Economic Development Plans, Infrastructure Plans and Environmental Management Plans. Plainly put, a LUP is a key tool for good governance over lands. And this is particularly key in communities where planning was historically mired in colonial processes lingering within the Indian Act (IA) and now, with the Framework Agreement (FA) ratified, enabled to undertake fully “community led” land use planning. A community’s Land Code (LC) under the FA provides the legal framework for a LUP to be enacted and enforced by the same community. As the FA evolves and as Operating Communities (OCs) undertake economic development within the lands they govern over, land use planning will become increasingly important in assuring community success.
Reasons for OCs to develop LUPs are varied, including the negotiations of Servicing Agreements with other jurisdictions, establishing successful economic development strategies, mitigating ad hoc development, planning and selecting lands within the Additions to Reserves (ATR) process, ensuring best use of available lands (including Treaty Land Entitlement (TLE) lands), preventing incompatible land uses, protecting cultural resources and traditional sites, and enabling financial impact analyses on different land use options. The pressure to develop LUPs is therefore intense within OCs.
The temptation to encourage the development of LUPs prior to the completion of LCs is enormous. While it might initially seem that developing a LUP prior to developing a LC will help jump-start a community’s land governance capacity, there are challenges in doing so (see Section 3 below). The long term success of LUPs developed prior to LC development and enactment remains unproven in terms of efficacy and effectiveness as they may, for example, require significant (and perhaps costly) reconciling with an enacted LC as soon as the same communities become operational. These adjustments, or the possibility of adjustments being required, may in turn discourage third party investors pondering development within the same communities.
The Resource Centre (RC) provides individual and customized assistance and advising in the realm of LUP to both OCs and communities in the process of developing their LCs. The RC’s LUP assistance provides the opportunity to support and strengthen the same communities in other realms, including, capacity building, mentoring, project planning, community engagement, community survey interpretation, technical reviews, and so on. At the same time, and within the LUP advising function, the RC provides assistance and advising on general land governance matters; this can range from skill-building through map and survey interpretation, to project management. Each OC is different, with varying capacity and staff expertise, unique sets of traditions, distinctive locational and resource advantages, and with individual aspirations and strategies; it stands to reason therefore, that each LUP related assistance strategy varies by community.
As funding for developing LUPs is increased, OCs will gradually want to undertake land use planning activities, whether a LUP is non-existent, or when an existing LUP is out of date (more than three to five years old). The support requirements are therefore increasing.
2. Background and Context
Planning under the Indian Act, Shifting Definitions and Assessment Perceptions
LUPs are primary tools for governing over lands. They are key components of community economic development footprints, they provide ways of ensuring that cultural values and traditional sites are protected, they can be used to ensure that environmental rules and areas are respected, they are valuable in the inventorying and managing natural resources, they are invaluable in developing infrastructure plans and capital plans, and they enable best use studies and in turn the determination of community priorities for lands. While taking into consideration community will and a variety of variables aside from land characteristics, and given appropriate amounts of time for the planning process to unfold, LUPs can also provide ways through which community buy-in on land matters can be obtained. For First Nation communities, land use planning during the first 80 years of the last century had been undertaken under the (IA). This means that, among the many very real challenges for the same communities, traditional time horizons used within the planning field have rarely been part of the plan; instead of seventy or more years used as a planning base, five or less years have been used. This has important consequences in terms of traditional use, community growth, economic development and corresponding infrastructural planning. At the same time, and related to the same issue, the planning cycle itself is usually subjected to fiscal year constraints; instead of embarking on multi-year planning exercises that span fiscal years, the process has been (and often continues to be) compressed into a few months to enable funds to be expended in time for fiscal year end.
Over the last years, many initiatives have been instigated to address some of the gaps in land use (and other) planning activities. In each case, however, there have been similar challenges. The challenges are not the result of ill-will; they persist simply due to the requirements legislated under the IA and fiscal year realities. At the same time, and linked to the development of the many planning initiatives, LUPs are often confused with Physical Development Plans (PDPs), Comprehensive Community Plans or Comprehensive Community Strategic Plans (CCPs or CCSPs), Infrastructure Plans, Subdivision Plans, and so on. Each of these has different purposes and over the years their meaning has become blurred; for this reason, many people, including consultants, consider PDPs, CCPs, CCSPs and others, as LUPs. This can lead to erroneous information provided in assessment questionnaires, wrong assumptions in terms of “community readiness”, improperly scoped LUP terms, and potentially unsuitable results (due to misinterpretations in what is actually meant by “LUP”). Exacerbating the challenges is the notion that few planners recognize the differences between planning under the IA and planning under the FA.
At present, as communities are assessed in terms of entry into the Framework Agreement and the corresponding development of their LCs, the existence of a LUP is considered a “plus”. If a community signals that it has a LUP in place, the interpretation is such that economic development has been at least partially plan and indeed, enabled. Aside from the fact that none of the existing LUPs are being assessed, there are several factors to consider. First, when a community indicates that it has a LUP, it is not known if it is a LUP, a PDP, or any other form of planning document. Second, the same document may very well be outdated. Quite often, LUPs have been developed and then shelved for several years before the community feels ready for its implementation. Over time, political realities, community will and development opportunities will have changed and the LUP becomes outdated and of limited use. As LUPs are dynamic documents, they should be re-assessed and updated regularly, probably every three to five years. Third, LUPs often do not include detailed implementation plans. This means that the community is left without a plan to put in place the processes required to actualize its LUP. Asking a community if it has a LUP may be of limited value for assessing readiness*.
* Related to the same question, if a community does signal that it has a LUP in place (rightly or wrongly), it falls off any list of potential funding assistance or pilot initiative for LUP work. Further, LUP “updating” is rarely considered as part of any funding assessment.
Related to the way LUPs are defined and therefore perceived is the question of what is truly expected from a LUP. Depending on the community, it is possible that internally, what is expected is any one or combination of several focus areas, including traditional use and cultural site identification, economic development planning, environmentally sensitive area management, natural resources inventorying, infrastructure planning, and so on. In other words, depending on the community’s needs, a LUP will mean different things. Similarly, a LUP will have different meanings to those who assess ‘readiness’ and in turn, any LUP funding applications. If the desired outcome is to provide ‘economic development impetus’, then one would have to link an LUP to a broader community economic development strategy. Without the latter, the LUP will be of limited use (if economic development is the goal). Clearly then, for any LUP to be effective in a given community, its terms of references must first be defined to suit the same community, including whatever combination of the above themes (and others) that the community might desire.
Acknowledging that each community is different and therefore has different land use planning definitions and aspirations, the RC has developed a strategy that has as its primary aim to assist and advise communities in community-specific planning strategies (Section 3 below).
3. Technical Concerns in Developing LUPs prior to LC Ratification
- Under a LC, laws, policies and regulations are developed and enacted pursuant to a completely different legal framework than the IA.
- A LUP enacted under the IA as a bylaw is not automatically compatible with the FA or a community’s LC in terms of becoming a law under the latter.
- It is difficult to finalize a LUP against a legal framework as established by a community’s LC when the LC is not yet complete. Similarly, it is difficult to imagine a LUP developed to operate in concert with land laws that have yet to be planned (let alone developed) under a LC.
- In any community, as third party developers and investors realize that a LUP bylaw may be changed once the LC is enacted (reconciled with the LC and transformed into a law), confusion and delays may result.
- In the developmental phase, FNs are developing their land codes which will end up being their “guidepost” for developing and enacting laws later in the operational phase. These guideposts often include principles such as limitations to granting and exercising new types of land interests/land rights (QC) not at all contemplated by the IA. The following are just a few laws and regulations that can affect the final LUP:
- The conditions (such as community votes) required in order to enact a LUP;
- The codifying of traditional types of land holdings that were extralegal under the IA;
- Time limits on financing interests;
- Environmental Management laws;
- Laws on surveys, setbacks, zoning;
- Laws on development and Development Cost Charges;
- Utility (and other) interests; and,
- A LUP developed under the IA makes assumptions about community growth and its limits. For example:
- A LUP under the IA considers the way infrastructure monies are allotted through programs; and,
- A LUP developed under a LC makes no such assumptions. It assumes best use scenarios, developer-pay scenarios, and relatively short permit development approval timelines. The result can be drastically different.
- Related to ‘vi’, a LUP developed under the IA makes assumptions on relatively short time lines. A LUP developed under the FA can have much longer time horizons – seven generations.
- Under a LC, community input and involvement is generally identified. This applies to the development of laws such as LUP. With a LUP developed under the IA, the same community rules do not apply. This will lead to community confusion.
- A LUP undertaken at the same time as a LC is potentially confusing for committee and community members.
If Planning Consultants who specialize in FN land planning do not know the outcome of the ratification vote of a community’s paramount land law, there is no alternative but to plan within IA confines. The tendency is therefore to continue to plan within standardized approaches and IA tenets in mind; a LUP designed pre-LC therefore has the potential to maintain the “reserve feel” in terms of infrastructure and best-use scenarios, all-the-while negating FN planning tenets and perspectives.
4. Resource Centre Planning Assistance
Once a FN requests LUP related assistance, the RC undertakes research on the lands of the community. While the RC does not undertake the development of LUPs per se, the primary tenet to the strategy is that any LUP must be community-specific and not generic. As each OC is different, with varying capacity and expertise of staff, unique sets of traditions, distinctive locational and resource advantages, and with individual aspirations and strategies, it stands to reason that each LUP related assistance strategy varies by community (see section 3a).
Further, and as noted above, LUP assistance provides the opportunity to support and strengthen the same communities in other realms, including, capacity building, mentoring, project planning, community engagement, community surveys, technical reviews, and so on. At the same time, and within the LUP advising function, the RC provides assistance and advising on general land governance matters; this can range from skill-building through map and survey interpretation, to project management. These strengthening activities occur at all stages of the LUP assistance strategy (see section 3b).
3a. RC LUP Assistance and Advising Activities
Primary RC LUP Assistance and Advising Activities therefore include the following:
i) Planning Orientation to staff: Depending on the community, workshops are held in order to explain planning concepts and options to the community’s lands staff. Sometimes this orientation extends to a separate session with the community’s Chief and Council.
ii) Planning Orientation to Lands Committee: This is related to Item #2. Depending on the community needs, workshops can be arranged for the Lands Committee. These workshops can range from land use planning in general, to more specific issues such as related policies and procedures.
iii) Preliminary LUP Advising: In essence, this step follows any initial workshop with the Lands Staff and or Lands Committee and or Chief and Council. With the Lands Staff, a LUP workplan specific to the community, can be developed.
iv) Strategic Advising to Chief and Council: In some cases, we advise on LUP development and sequencing.
v) Process Orientation to Community: When requested to do so, we work on a community LUP directly with community members, either through community meetings, or sometimes individually or by family.
vi) Planning Requirements Design: Given that each community is different, with different aspirations and circumstances, the RC works with Lands Staff to establish the specific requirements for its LUP. (In other words, not all LUPs should look the same…)
vii) Community Surveys: We work in developing LUP-related community surveys.
viii) Community Survey Analysis: When asked, and if needed, we analyze and present community survey results.
ix) Traditional Use Study and Analysis: Some community have done, are doing, or are planning Traditional Use Studies. These require dovetailing with old, existing or pondered LUPs. We work on strategies to do this.
x) LUP Economic Development Interface Advising: Some communities have existing or pondered economic development initiatives. When requested, we advise on how a LUP might impact existing or new developments.
xi) Zoning Plans: Zoning Plans are seen as a useful tool for some communities; for other communities, it is not. Depending on the community, the RC works with Land Committees on zoning definitions.
xii) Policy Development Assistance: When requested, we provide advice in land-related policy development.
xiii) Communications Advising: The RC provides assistance in communications planning throughout LUP processes.
xiv) Visioning Coaching: This is generally seen as one of the first steps in LUP processes. The RC, when requested, assists in the development of a community vision. In tandem with the entire process, the RC coaches and mentors Lands Staff.
xv) Calls for Proposals (for LUP): The RC assists and advises the community in terms of developing Calls for Proposals. Note that in many cases, outside consultants are very willing to do this, as well as providing input in funding applications. The latter is conflicting and the RC works as an independent advisor.
xvi) Proposal Assessments: When requested to do so, the RC advises communities in assessing LUP proposals.
xvii) LUP Ratification Assistance: The RC can assist in LUP community ratification votes.
LUP maintenance: Many communities have LUP that are over five years old. These require updating. The RC assist in this activity.
4b. RC LUP-related Assistance and Advising Activities:
LUP assistance provides the opportunity to support and strengthen the same communities in other realms. These include Capacity Building, Mentoring, Project Planning, Project Management, Community Engagement, Community Surveys, Technical Reviews, and Specific Skills Building such as map and survey interpretation, and other General Land Governance Matters.
5. Towards a Land Use Planning Framework for Operational Communities under the Framework Agreement
From several years of assisting OCs as they navigate through LUP processes, it seems clear that a combination that includes components from both traditional and western approaches, all-the-while incorporating FA tenets and specific LC commitments, constitutes best results for LUPs. More community involvement, including Elder input at all stages, for example, is preferred, leading to increased community engagement. Similarly, longer time horizons are desired, as is consideration for traditional use and traditional stewardship (figure 1). Community members expect that LC commitments form part of any LUP.
Figure 1 – Land Use Planning – Blended Approach
Some communities have in-house capacity; others have less. Where capacity does exist, it can be tempting to undertake a LUP without external advisors. Many components to the plan can indeed be undertaken within the community’s administration office. Engagement exercises, community surveys, first tier data compilation, GIS mapping and other activities can be undertaken and safe time and costs to the LUP. Other activities should be done by professional planners: A LUP design that is specific to the community’s needs and wants, for example, should be undertaken by someone with a broad view of the planning process. Similarly, technical analyses such as best use scenarios, land compatibility studies and economic development plans require expertise that specializes in those areas.
Successful lands governance recognizes that each community is distinct and its lands therefore require customized approaches to management. To be effective, lands governance must take into account the uniqueness of the community and incorporate sound land use and community planning principles, including the defining of clear objectives and a roadmap that leads to intended results, all-the-while including traditional components. To be efficient, land management must be done within a balanced approach that includes traditional and western approaches, in whatever combination the community is comfortable with. A successful approach must therefore take into account both the traditional ways of the community, and state-of-the art planning and governance techniques and tools.
What follows is a broad framework for land use plans within OCs.
5.1 Land Use Plan Framework (Checklist) for Lands Directors
Each community is different. Therefore each community’s Land Use Plan will be unique and will be planned, outlined and developed with the same community’s wants, needs and characteristics in mind. The Lands Governance Director should review the following framework outline and use it as a guide to help identify the components that the community desires.
LAND USE PLAN FRAMEWORK (CHECKLIST)
Assemble Land Use Planning Team
Develop Call for Proposals, Terms of Reference
Select Planning Consultant
Corresponds to LC
Correspond to LC
Balanced and Sustainable
Responsible, Responsive and Respectful
Relevant and Informed
Coordinated and Collaborative
Fair and Equitable
Transparent and Accountable
Well governed Land
Goals and Objectives:
Land Staff Goals and Objectives
Community Goals and Objectives
Council Goals and Objectives
Land Holder Goals and Objectives (where applicable)
Community Land Code
Implications of the Community LC on the LUP
Land Code Commitments
Land Code Commitments (ex.: some LCs may have blanket land use exclusions)
Specific to the Community (ex.: Land restrictions, locational advantages and disadvantages)
Land Code Related Policies:
Specific to the Community
Current Community Capacity
Land Code Commitments
Capacity Building Component to the LUP
Land Code Commitments
Community Engagement Strategy
Elder and Youth Involvement
Use of Aboriginal Traditional Knowledge (ATK)
Traditional Use Studies (TUS)
Information Gaps Identification
Inventories and Technical Assessments:
Areas and Shapes
Landscape / Topography / Drainage features
Ecological / Geological / Geotechnical features
Information Gaps Identification
Information Gaps Identification
Information Gaps Identification
GIS mapping and analysis
Information Gaps Identification
Existing Land Uses:
Existing Land Use Designations
Conflicting Designations Identification
Information Gaps Identification
Surveys and Survey needs:
Identification of Surveys and Survey needs
Existing Capital Plan:
Capital Implementation Status
Analysis of Existing Land, Resources and Uses
Analysis of Potential and Desired Land Uses
Analysis of Existing Economic Development initiatives
Conflicting Economic Development Identification
Information Gaps Identification
Identification and Analysis of Existing Lands Policies
Identification and Analysis of Neighboring Jurisdictions
Neighbouring Land Uses
v. The Plan
Traditional Use Considerations
Protected Areas Designation
Land Use Designations
Land Use Definitions
Land Use Plan interface with:
Environmental Management Plan
Economic Development Plan
Other Related Plans such as Housing
Land Related Policies
Economic Development Strategy
Land Code Commitments
Chief and Council BCR, or,
Community meeting vote, or,
Economic Development Planning
Without a LUP, a community misses out on one of the most useful tolls for governing over its lands. Strategic land management can be positively affected with a good LUP; guidelines reflecting a community’s wishes in terms of how it will utilize its lands and protect its resources (natural and traditional), both in the short term and in the longer term can be established and codified; and economic development plans can be enabled through a good LUP. The best way to assist FNs as they make their way through the process of becoming Operational and successfully governing over their lands is to make certain that implementation is such that each community’s land laws, regulations and procedures is as seamless as possible, flowing from the LC. A LUP is part of the tool kit.
While it might seem that time could be saved by undertaking the development of a LUP before a LC is enacted, the cost in financial and temporal terms to reconcile the two may indeed be significant. And while it is conceivable that a LUP developed under the IA is planned to be reconciled with the LC once the latter is enacted, the effects on third party investors who become aware of the possible changes to the LUP may not be negligible. The risk is that outside developers turn their investment gaze outwardly and perhaps more significantly, that the LUP and LC processes get muddled within the communities.
Key within Operating Community contexts, is the level of community involvement within planning exercises; this has been an underappreciated by planners. Typically, various players have in the past developed LUPs with minimal community input and within template-like models. The results have been less than adequate results – no sidewalks, no street lighting, no consideration for traditional activities or sites, and very little consideration for land-based economic development activity. With the powers enabled by the FA, communities have clear governance over their lands.
The RC’s LUP assistance and advising is multifaceted and has broad implications (broader than strictly “LUP advising”). It builds capacity at different community levels, directly affecting the implementation of plans and the overall implementation of Land Codes.
References for this chapter:
Daniel M. Millette. (2017). “The State of Indigenous Planning and Architecture in Canada”. In Journal of the Royal Architectural Institute of Canada. Volume 62. Number 5. P. 24.
Daniel M. Millette. (2014). “Incremental Planning: The Tsawwassen First Nation Experience”. In Journal of Aboriginal Economic development. Volume 9. Number 1. pp. 28 – 43.
Daniel M. Millette. (2011). “Land Use Planning on Aboriginal Lands – Towards a New Model for Planning on Reserve Lands”. In Canadian Journal of Urban Research. Volume 20. Number 2. pp. 20 – 35.