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16 Types of Aboriginal Interests in Land ABORIGINAL LAND INTERESTS Jack Woodward, QC 16 types of Aboriginal Interests in Land that May Be Encountered by Lawyers and Notaries in BC Photo credit: Union of British Columbia Indian Chiefs Columbia Indian of British Union credit: Photo From a Guest Lecture presented 7. Reserves: Certificates divided into provinces2 and became March 31, 2016, to BC Notary of Possession, Section 20 a federal state with exclusive federal students in Ron Usher’s SFU 611 Real 8. Reserves: Leases legislative jurisdiction over Indian, 3 4 Property class in the Master of Arts under Section 58(3). Inuit, and Métis matters, including in Applied Legal Studies (MA ALS) exclusive federal legislative jurisdiction program at Simon Fraser University. 9. Reserves: Section 28(2) over aboriginal lands. Permits and Other Rights his article lists 16 different of Temporary Use Second, a Brief Note on Terminology 10. Reserves: Absolute Surrender “Indians” is the name given by the types of aboriginal land constitution to the aboriginal occupants interests; Lawyers and 11. Reserves: The Right of of Canada. T a Non-Indian Spouse to Occupy BC Notaries will normally come the Family Home Similar legal terms include Inuit, Métis, Aboriginal, First Nations, into contact with only 2 or 3 12. Land Codes under the First Indigenous, Native. Nations Land Management Act of them. Since 1763 the word “Indian” has 13. Special Legislation been a legal term and the question, The interests frequently such as Sechelt Lands “What are the land rights of Indians?” encountered are nested within a broad 14. Lands Held pursuant has been a legal question. and complex system of indigenous to Modern Treaties land law. Transactions involving some 1. Aboriginal Title Lands of the aboriginal land interests are 15. Métis Lands There is only one tract of aboriginal obscure, highly specialized, or even 16. Severalty Lands under Treaty 8 title land known to exist in British constitutionally off-limits to lawyers Columbia: About 2000 square and Notaries! First, a brief note kilometres in the Nemiah Valley and on Canada’s Constitution The Basic List north of Chilko Lake, declared to Canada was founded in 17631 under a belong to the Tsilhqot’in people by the 1. Aboriginal Title Lands constitution based on five principles. Supreme Court of Canada in 20145. 2. Land-based Aboriginal Rights 1. Sovereignty of the British Crown It is likely there are many more areas and Treaty Rights of Crown land that are subject to 2. Democracy 3. Reserves: The Unallocated Lands aboriginal title within the province. 3. The rule of law in an Indian Act Reserve, Section 2 For the second time. In 1791 the “Province 18 4. Benefits for veterans of Quebec” was divided into Upper Canada 4. Reserves: Band-owned Houses 5. Protection of Indian lands and Lower Canada. In 1840 those two provinces were united into the “Province of under Customary Allotments Protection of Indian lands is a Canada.” In 1867 the Province of Canada 5. Reserves: “Buckshee Leases” central feature of one of the oldest was divided into Ontario and Quebec. by the Band or by Individuals, written constitutions in the world 3 Re. Eskimo Reference [1939] SCR 104. Section 28(1) and it is still a fundamental part of 6. Reserves: Designated Reserve Canadian law. In 1867 Canada was 4 Daniels v. The Queen, 2016 SCC 12. Land. Leases and Subleases 5 Tsilhqot’in Nation v. Canada and B.C. 2014 under Section 53(1)(B. 1 Royal Proclamation of October 7, 1763. SCC 44. Volume 25 Number 4 Winter 2016 The Scrivener | www.notaries.bc.ca/scrivener 65 3. Indian Act Reserves: Lawyers and Notaries usually have Almost every part of The Unallocated Lands in a Reserve. no role in the internal transfers of British Columbia is subject Sections 18 and 30 ownership of customary allotments. Wills and estates dealing with such to either aboriginal rights Indian Act houses, and contracts for the purchase or treaty rights. 18(1) Subject to this Act, reserves and sale of such houses, are seldom are held by Her Majesty for the use the subject of Court proceedings and and benefit of the respective bands are almost never dealt with by lawyers The process for deciding if land for which they were set apart, and and Notaries in BC. Here is the reason. is subject to aboriginal title is usually subject to this Act and to the terms Indian Act: Possession of Lands the British Columbia Treaty Process or, of any treaty or surrender, the as happened in Tsilhqot’in, by Court Governor in Council may determine in Reserves decision. Lawyers and Notaries are whether any purpose for which 20(1) No Indian is lawfully in never involved in land transactions lands in a reserve are used or possession of land in a reserve involving aboriginal title lands. are to be used is for the use and unless, with the approval of the Why? The principles outlined in benefit of the band. Minister, possession of the land has the Royal Proclamation of 1763 apply been allotted to him by the council That is the starting point for reserves. with full force to those lands. Unless of the band. The Indian Act carries forward a policy and until there is a surrender, as for reserves that is almost identical We will come back to certificates described in the Royal Proclamation, to the policy set down by the Royal of possession below. For now, the those lands are off limits to non- Proclamation of 1763. There are over question a lawyer or BC Notary asks Indians. Internal land transactions are 600 bands in Canada, with over 2000 when a client wants to deal with governed by the laws of the particular reserves, and the Indian Act governs ownership of a band member’s house aboriginal nation; lawyers and Notaries most of them. Most reserves remain on reserve is, “Is there a certificate do not have the expertise to give communally held lands controlled by of possession under section 20 of the advice about them. the Chief and Council of the band. It is Indian Act? ” If the answer is No, then 2. Land-based Aboriginal Rights trespass for a nonmember of the band the matter is almost never dealt with and Treaty Rights to be on a reserve. in the mainstream legal system. 5. Reserves: “Buckshee” Leases Almost every part of British Columbia Indian Act is subject to either aboriginal rights or by the Band or by Individuals, 30 A person who trespasses on a treaty rights. Those rights are typically Section 28(1). reserve is guilty of an offence and the rights to hunt, fish, trap, and gather. liable on summary conviction to The Indian Act carries forward the There is no registry or public database a fine not exceeding fifty dollars policy of the Royal Proclamation of in which the existence of those rights or to imprisonment for a term not 1763 by prohibiting private leases to a particular tract of land is recorded. exceeding one month or to both. for the use of reserves. Such rentals Fee simple lands are often subject or leases are often called buckshee, to such rights,6 although the impact Lawyers and BC Notaries an odd, informal word that hints at the is obviously diminished when there should never engage in a transaction taint of illegality of these arrangements. are no longer any big game animals to concerning an interest in the ordinary Lawyers and BC Notaries frequently hunt or any fur-bearing animals to trap. unallocated lands in a reserve because encounter such leases and are asked any such dealing will almost always to enforce them, assign them, value Legal professionals should never run afoul of the Indian Act. them, or otherwise treat them as a advise their clients that the specific form of property. lands being conveyed are free of 4. Reserves: Band-owned Houses aboriginal or treaty rights. The fact under Customary Systems, Known For 253 years they have been illegal that such rights have fallen into disuse as “Customary Allotments” and they are still illegal. Here is why. does not mean they do not exist. As a Band members often have houses Indian Act practical matter, for most residential on the reserve that are owned by 28(1) Subject to subsection and commercial purposes, the existence the band. The houses may be held (2), any deed, lease, contract, of those rights is not a serious concern pursuant to long-settled expectations instrument, document, or to the non-Indian purchaser. under customary aboriginal law unique agreement of any kind, whether to each band. There is no registration written or oral, by which a band 6 R. v. Bartleman, 12 DLR (4th) 73; 55 system outside the band for such rights or a member of a band purports BCLR 78; 13 CCC (3d) 488; [1984] 3 of ownership. Houses are passed from to permit a person other than a CNLR 114, is a B.C. Court of Appeal case generation to generation pursuant to member of that band to occupy that upheld a treaty right to hunt on some fee simple lands just north of Duncan. the laws and customs of the band. or use a reserve or to reside or There are dozens of similar examples and That is how most Indians acquire their otherwise exercise any rights on they cover virtually the whole province. houses on reserve in British Columbia. a reserve, is void. 66 The Society of Notaries Public of British Columbia Volume 25 Number 4 Winter 2016 6. Reserves: Designated Reserve Indian Act Land. Leases and Subleases The only way 58(1) .
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