Reserve Land – Tenures Available to Local Governments – Part 2

In the Summer 2010 issue of Logo Law, I reviewed the forms of tenure available to local governments on Indian reserve lands that are subject to the land management provisions of the Indian Act. The purpose of that article was to outline the tenure options for local governments that wish to locate or expand works on reserve land. This article deals with tenure options on reserve in two other contexts, namely:

  • reserve lands governed by a Land Code adopted by the first nation pursuant to the First Nations Land Management Act (the “FNLMA”); and
  • reserve lands that have been allotted by band council under the Indian Act to individual members of the first nation.

Land Code Lands
When a first nation adopts a Land Code under the FNLMA, it is exempted from the application of a number of land management related provisions contained within the Indian Act, including the powers and requirements governing the grant of certain interests in reserve lands to non-Indians.

In my previous article, I reviewed the Indian Act provisions that authorize the grant of certain interests in non-Land Code reserve lands to non-Indians. As discussed therein, any form of tenure granted under the Indian Act requires the approval and the extensive involvement of Indian and Northern Affairs Canada (“INAC”) acting on behalf and for the benefit of the first nation. This process can be lengthy and terribly inefficient. Under a Land Code, any approvals of and procedures involving INAC are avoided; the applicant for tenure deals exclusively with the first nation in accordance with the applicable Land Code.

In addition to granting first nations further autonomy over the use of their lands, a Land Code is meant to provide a more efficient method of land management including applying for and granting interests in reserve lands. Nonetheless, as the FNMLA is in its relative infancy, there will no doubt be a number of bumps and bruises as parties come to grips with their rights and obligations under the Land Code provisions.

Each Land Code will establish the forms of tenure that a first nation may grant or not grant to a non-Indian. From the handful of Land Codes I have reviewed, the primary forms of tenure include licences, easements and leases. A Land Code will also appoint a land management committee to assist the first nation’s council in determining the appropriate tenure to be granted in the circumstances. Other provisions in a Land Code will include the following:

  • the lands that are subject to the Land Code (not all reserve lands will necessarily be subject to the Land Code);
  • the lawmaking powers of the first nation in respect of their lands, including zoning, land-use planning and creation, regulation and prohibition of interest and licences;
  • other lawmaking powers such as provision of local services and the imposition of user charges;
  • the manner which land management laws are adopted;
  • establishment of a first nation land registry system for the reserve showing the interests registered; and
  • the right of the first nation to expropriate improvements on lands and interests in lands on reserve and a requirement of fair compensation therefore.

Individually Possessed Reserve Lands
Quite often, a local government may require an interest or an additional interest (e.g. highway widening) over lands allotted to individual first nation members under section 20 of the Indian Act. An examination of the Indian Land Registry will show whether a Certificate of Possession has been issued to a first nation member who has been lawfully granted individual possession of certain lands on reserve.

These individuals are often referred to as “CP (or Certificate of Possession) holders” or “locatees”. These individuals are authorized to grant interests in their lands provided the appropriate consent is obtained from the Minister of INAC and the first nation council. The individual may grant a permit or lease under sections 28 or 53 of the Indian Act, in a manner similar to that for reserve land set aside for the benefit of the entire band (not just the individual). Please see my discussion in the Summer 2010 article for an explanation of these statutory provisions. There are some differences in INAC’s procedures for each, which should be ascertained in advance.

If a local government considers acquiring an interest in reserve land for the purposes of establishing or expanding works on reserve, the first steps, apart from obtaining consent from the first nation council, should be to enquire as to whether the first nation has adopted a Land Code under the FNLMA and whether the lands are subject to individual possession under section 20 of the Indian Act. If a Land Code applies, I recommend that a copy be obtained and sent to the local government’s lawyer for review and advice. If a Land Code has not been adopted, reference to the Indian Act provisions governing land management must be reviewed and considered. A review of INAC’s land management policies is also recommended.

Search for Conflicting Interests
Finally, regardless of the applicable land management regime (Land Code or Indian Act), a search of the appropriate land registry will assist in determining whether there are, or may be, conflicting interests registered over the subject lands. Please remember that the first nation or Indian land registries do not provide the certainty of the off-reserve land title registry system.