Sixteen types of Aboriginal interests in land that may be encountered by lawyers and notaries in British Columbia


From a Guest Lecture presented March 31, 2016 to BC Notary students in Ron Usher’s SFU 611 Real Property class in the Master of Arts in Applied Legal Studies (MA ALS) program at Simon Fraser University.

This article lists sixteen different types of aboriginal land interests, but lawyers and notaries will normally come into contact with only 2 or 3 of them. The interests that are frequently encountered are nested within a broad and complex system of indigenous land law. Transactions involving some of the aboriginal land interests are obscure, highly specialized, or even constitutionally off-limits to lawyers and Notaries!

The basic list:
1. Aboriginal title lands.
2. Land-based Aboriginal rights and treaty rights.
3. Reserves: The unallocated lands in an Indian Act reserve, section 18
4. Reserves: Band-owned houses under customary allotments
5. Reserves: “Buckshee leases” by the band or by individuals, section 28(1).
6. Reserves: Designated reserve land. Leases and subleases under section 53(1)(b).
7. Reserves: Certificates of possession, section 20
8. Reserves: Leases under section 58(3).
9. Reserves: Section 28(2) permits and other rights of temporary use.
10. Reserves: Absolute surrenders.
11. Reserves: The right of a non-Indian spouse to occupy the family home.
12. Land Codes under the First Nations Land Management Act.
13. Special legislation such as Sechelt Lands
14. Lands held pursuant to modern treaties.
15. Metis lands.
16. Severalty lands under Treaty 8.

First, a brief note on Canada’s constitution:

Canada was founded in 1763 under a constitution based on five principles:

1. sovereignty of the British Crown,
2. democracy,
3. the rule of law,
4. benefits for veterans, and
5. protection of Indian lands.

Protection of Indian lands is a central feature of one of the oldest written constitutions in the world, and it is still a fundamental part of Canadian law. In 1867 Canada was divided into provinces and became a federal state with exclusive federal legislative jurisdiction over Indian, Inuit and Metis matters, including exclusive federal legislative jurisdiction over aboriginal lands.

Second, a brief note on terminology:

“Indians”

That is the name given by the constitution to the aboriginal occupants of Canada.

Similar legal terms include Inuit, Metis, Aboriginal, First Nations, Indigenous, Native.

Since 1763 the word “Indian” has been a legal term, and the question: “What are the land rights of Indians?” has been a legal question.

1. Aboriginal title lands.

There is only one tract of aboriginal title land known to exist in British Columbia: about 2,000 square km in the Nemiah Valley and north of Chilko Lake which was declared to belong to the Tsilhqot’in people by the Supreme Court of Canada in 2014 . It is likely that there are many more areas of Crown land that are subject to aboriginal title within the province. The process for deciding if land is subject to aboriginal title is usually the British Columbia Treaty Process, or, as happened in Tsilhqot’in, by court decision. Lawyers and notaries are never involved in land transactions involving aboriginal title lands. Why? Because the principles outlined in the Royal Proclamation of 1763 apply with full force to those lands. Unless and until there is a surrender, as described in the Royal Proclamation, those lands are off limits to non-Indians. Internal land transactions are governed by the laws of the particular Aboriginal nation; lawyers and Notaries do not have the expertise to give advice about them.

2. Land-based Aboriginal rights and treaty rights.

Almost every part of British Columbia is subject to either aboriginal rights or treaty rights. Those rights are typically the rights to hunt, fish, trap and gather. There is no registry or public database in which the existence of those rights to a particular tract of land is recorded.
Fee simple lands are often subject to such rights, though the impact is obviously diminished when there are no longer any big game animals to hunt or any fur-bearing animals to trap.
Legal professionals should never advise their clients that the specific lands being conveyed are free of aboriginal or treaty rights. The fact that such rights have fallen into disuse does not mean that they do not exist. As a practical matter, for most residential and commercial purposes, the existence of those rights is not a serious concern to the non-Indian purchaser.

3. Indian Act reserves: The unallocated lands in a reserve. Sections 18 and 30

Indian Act
18 (1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.
This is the starting point for reserves. The Indian Act carries forward a policy for reserves that is almost identical to the policy set down by the Royal Proclamation of 1763. There are over 600 bands in Canada, with over 2,000 reserves, and the Indian Act governs most of them. Most reserves remain communally-held lands controlled by the Chief and Council of the band. It is trespass for a non-member of the band to be on a reserve:

Indian Act
30 A person who trespasses on a reserve is guilty of an offence and liable on summary conviction to a fine not exceeding fifty dollars or to imprisonment for a term not exceeding one month or to both.

Lawyers and notaries should never engage in a transaction concerning an interest in the ordinary unallocated lands in a reserve because any such dealing will almost always run afoul of the Indian Act.

4. Reserves: Band-owned houses under customary systems, known as “customary allotments”

Band members often have houses on reserve that are owned by the band. These houses may be held pursuant to long-settled expectations under customary aboriginal law unique to each band. There is no registration system outside the band for such rights of ownership. Houses are passed on from generation to generation pursuant to the laws and customs of the band. This is how most Indians acquire their houses on reserve in British Columbia. Lawyers and Notaries usually have no role in the internal transfers of ownership of customary allotments. Wills and estates dealing with such houses, and contracts for the purchase and sale of such houses, are seldom the subject of court proceedings and are almost never dealt with by lawyers and Notaries in B.C. Here is the reason:

Indian Act: Possession of Lands in Reserves
20 (1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band.
We will come back to certificates of possession below. For now, the question a lawyer or notary asks when a client wants to deal with ownership of a band member’s house on reserve is: “Is there a certificate of possession under section 20 of the Indian Act?” If the answer is “no” then the matter is almost never dealt with in the mainstream legal system.

5. Reserves: “Buckshee” leases by the band or by individuals, s. 28(1).

The Indian Act carries forward the policy of the Royal Proclamation of 1763 by prohibiting private leases for the use of reserves. Such rentals or leases are often called “buckshee”, which is an odd, informal word that hints at the taint of illegality of these arrangements. Lawyers and notaries frequently encounter such leases and are asked to enforce them, assign them, value them, or otherwise treat them as a form of property. For 253 years they have been illegal, and they are still illegal. Here is why:

Indian Act
28 (1) Subject to subsection (2), any deed, lease, contract, instrument, document or agreement of any kind, whether written or oral, by which a band or a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or to reside or otherwise exercise any rights on a reserve is void.

6. Designated reserve land. Leases and subleases under section 53(1)(b).

The most common type of transaction where lawyers and notaries may encounter interests on a reserve is where the land has been “designated” under the Indian Act. A designation is a conditional surrender.

That means that under the policy established by the Royal Proclamation, carried forward by the Indian Act, a public decision by the band membership has been made to release some of the reserve land for non-Indian settlement. The process of designation is formal and time-consuming, and beyond the scope of this writing. Once there is a designation, section 53(1)(b) of the Indian Act applies:

Indian Act
53 (1) The Minister or a person appointed by the Minister for the purpose may, in accordance with this Act and the terms of the absolute surrender or designation, as the case may be,
(a) manage or sell absolutely surrendered lands; or
(b) manage, lease or carry out any other transaction affecting designated lands.

Usually the Minister enters into a head lease with a corporation. That corporation is sometimes owned by the band. The corporation then becomes the landlord of a number of sub-leases. These sub-leases can be registered in the Surrendered and Designated Lands Register, in Ottawa. This is a registry system roughly similar to the British Columbia Land Title Registry. Mortgages can be created through assignments of sub-leases. This is a specialized field of practice for lawyers and notaries, but it is becoming increasingly common. For example, many of these transactions have taken place on the reserves of the Penticton, Campbell River, Kamloops, Okanagan and Musqueam First Nations, to name just a few. (But see also the section on Land Codes below)

7. Reserves: Certificates of possession under section 20.
Some bands have allocated reserve lands to individual members of the band.

Indian Act
20 . . .
(2) The Minister may issue to an Indian who is lawfully in possession of land in a reserve a certificate, to be called a Certificate of Possession, as evidence of his right to possession of the land described therein.

These allocations are very similar to fee simple ownership off reserve, with some very important limitations. The main limitation is that a certificate of possession cannot be sold to a non-member of the band. Upon death, the interest can pass by will or by intestacy, but only to a band member. Lawyers and notaries can assist in drafting such transfers, but again, this is a specialized field. There is a Registry in Ottawa for such interests, called the Reserve Land Register, but this is a different registry from the Surrendered and Designated Lands Register referred to above. Important: It does not have a guarantee of priority based on the time of registration. There is no guarantee that registration first in time creates a priority interest. The opinion a lawyer or notary can give, based on such a registration, is therefore severely limited.

8. Reserves: Leases under section 58(3).

Leases can also be created from Certificate of Possession lands under section 58(3) of the Indian Act.

Indian Act
58 (1) . . . . ,
(3) The Minister may lease for the benefit of any Indian, on application of that Indian for that purpose, the land of which the Indian is lawfully in possession without the land being designated.

Once such a lease has been created it functions similarly (but not identically) to a lease created under section 53(1)(b) referred to above. Lawyers and notaries frequently assist clients with sub-leases of such properties, but again, this is a specialized area, and the special situation applicable to each band must be considered.

9. Reserves: Section 28(2) permits and other rights of temporary use.
Several sections of the Indian Act allow for the creation of temporary use permits. The most common is section 28(2), frequently used for power lines, pipelines, and similar rights of way.
Indian Act
28 . . .
(2) The Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve.

These are not usually transferrable interests, and lawyers and notaries will seldom be involved in dealing with them. There is a great deal of complexity in each case and frequent litigation. Specialized advice should be obtained about them.

10. Reserves: Absolute surrenders.

The only way to remove reserve lands from federal jurisdiction and place them within the British Columbia land title system is by way of absolute surrender. In modern times this is never done, but there are a few archaic examples that occasionally show up. A historical land search or abstract may show that land was once part of a reserve, but was subject to a “surrender” by the band. It is very important to determine if this was an absolute or conditional surrender. If the latter, then this is now known as “designated” land and it is still under the Indian Act.

Indian Act
38 (1) A band may absolutely surrender to Her Majesty, conditionally or unconditionally, all of the rights and interests of the band and its members in all or part of a reserve.
(2) A band may, conditionally or unconditionally, designate, by way of a surrender to Her Majesty that is not absolute, any right or interest of the band and its members in all or part of a reserve, for the purpose of its being leased or a right or interest therein being granted.
39 (1) An absolute surrender is void unless
(a) it is made to Her Majesty;
(b) it is assented to by a majority of the electors of the band
(i) at a general meeting of the band called by the council of the band,
(ii) at a special meeting of the band called by the Minister for the purpose of considering a proposed absolute surrender, or
(iii) by a referendum as provided in the regulations; and
(c) it is accepted by the Governor in Council.
11. Reserves: The right of a non-Indian spouse to occupy the family home.
Legal professionals will frequently have a non-Indian client whose spouse is, or was, a band member, and during the marriage they lived on a reserve. Your client may have a right to occupy the family home under the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA). As of December 16, 2014 the “Provisional Federal Rules” came into force for most First Nations. This is one of the rare situations where a non-Indian has a right to live on a part of a reserve that has not been formally leased. The right to occupy the family home is an interest that cannot usually be sold, mortgaged or given to the kids in a will, but it might be taxed.
12. Land Codes under the First Nations Land Management Act.
Roughly one quarter of British Columbia’s First Nations have a Land Code. Most of the First Nations located in or near urban areas have a Land Code, and most land transactions on reserves in British Columbia are now subject to a Land Code. Before agreeing to assist a client regarding an on-reserve land transaction a lawyer or notary much check to see if the particular band has a Land Code, and if so, must take into account the provisions of the First Nations Land Management Act (FNLMA), and the particular Land Code itself, and the laws that have been enacted pursuant to the band’s Land Code. The FNLMA enables a First Nation to replace the land provisions of the Indian Act with the band’s own laws. There are no general rules. The prudent lawyer or notary will examine each reserve separately to ascertain the exact legal regime in force on those lands, before undertaking a land transaction on that reserve.

13. Special legislation such as Sechelt Lands

In a small number of cases there is special legislation which takes the reserves of the band completely outside the Indian Act. An example is the Sechelt Indian Band Self-Government Act, which creates a completely separate legal system for the Sechelt Band.

Sechelt Indian Government District

17 There is hereby recognized the Sechelt Indian Government District, which shall have jurisdiction over all Sechelt lands.
18 The District is a legal entity and has the capacity, rights, powers and privileges of a natural person and, without restricting the generality of the foregoing, may
(a) enter into contracts or agreements;
(b) acquire and hold property or any interest therein, and sell or otherwise dispose of that property or interest;

Lawyers and notaries work within this system.

There are a few other special statutes in Canada. Westbank First Nation, for example, has a similar statute, but it is different from Sechelt, so the rules in one system do not transfer immediately to another system. The land offices in such First Nations are usually very helpful to lawyers and notaries in this regard. But, as usual, it is not always a good idea for practitioners to take legal advice from government officials, and this is no exception.

14. Lands held under modern treaties.

Only a few of British Columbia’s First Nations have modern treaties. Tsawwassen is a notable example. In such cases the land transactions on reserve are governed primarily by the Treaty, which is a constitutional document, and which overrides the Indian Act and any other statute. Before agreeing to assist a client regarding an on-reserve land transaction for a First Nation with a modern treaty, a lawyer or notary must fully understand the treaty itself and the laws enacted pursuant to it.

15. Metis lands

Your Metis client just moved from Alberta and owns some land back home. Can you help your client sell it or deal with it? The Supreme Court of Canada confirmed in Daniels v. The Queen, 2016 SCC 12, that Metis are “Indians” within the meaning of section 91(24) – so they are subject to federal jurisdiction. But Metis lands are held collectively under an Alberta statute, the Metis Settlements Act, which reads a lot like the Indian Act. You are thinking: “Hey – isn’t that Alberta statute unconstitutional?” Wrong – it is valid, probably because it is an ameliorative measure under section 15(2) of the Charter of Rights and Freedoms, 1982. There is plenty of litigation about these unique lands. If you have nerves of steel you could buy lots of insurance and join the action – or maybe it would be more prudent to work with one of the small group of experts who specialize in this fascinating and complex sub-category of indigenous lands.

16. Severalty lands under Treaty 8.

Most legal professionals will never encounter the rare and valuable “severalty lands” created under Treaty 8. Less than .001% of British Columbia’s land area is held under this unusual tenure, which is found north of Prince George near Tumbler Ridge and Mackenzie. Severalty lands are always subject to a “proviso as to non-alienation” and cannot be sold, mortgaged or taxed. But there is no rule book, and they can only be properly understood through litigation . If you are a legal professional who has a once-in-a-lifetime encounter with severalty lands in your practice, like a hiker who stumbles across a rare white spirit bear: take a picture, back away slowly, and call an expert.

Obviously, this brief introduction is just a list, not an analysis. Lawyers and notaries may find this a useful checklist to orient themselves to the type of land or the type of interest they are dealing with. Practitioners should never be embarrassed that they don’t know this information – it is complicated, exotic, and has gone through major changes in the last ten years. There are reported cases of solicitor’s negligence where practitioners ventured into this field without knowing the whole story!

My thanks to Gary Campo, who read this over and offered suggestions. But the errors and omissions are entirely my own.