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) . . . . , under Section 53(1)(b). to remove reserve lands (3) The Minister may lease for The most common type of transaction from federal jurisdiction the benefit of any Indian, on where lawyers and Notaries may application of that Indian for that encounter interests on a reserve is and place them within purpose, the land of which the where the land has been “designated” the British Columbia Indian is lawfully in possession under the Indian Act. A designation is land title system without the land being designated. a conditional surrender. is by way Once such a lease has been That means that under the created, it functions similarly (but not policy established by the Royal of absolute surrender. identically) to a lease created under Proclamation, carried forward by section 53(1)(b) referenced above. the Indian Act, a public decision 7. Reserves: Certificates of Lawyers and BC Notaries frequently by the band membership has been Possession under Section 20 assist clients with subleases of made to release some of the reserve such properties, but again, that is land for non-Indian settlement. The Some bands have allocated reserve a specialized area, and the special process of designation is formal and lands to individual members of the situation applicable to each band must time-consuming and beyond the band. be considered. scope of this writing. Once there is a Indian Act 9. Reserves: Section 28(2) designation, section 53(1)(b) of the 20 . . . Indian Act applies. Permits and Other Rights (2) The Minister may issue of Temporary Use Indian Act to an Indian who is lawfully in Several sections of the Indian Act 53(1) The Minister or a person possession of land in a reserve allow for the creation of temporary use appointed by the Minister for the a certificate, to be called a permits. The most common is section purpose may, in accordance with Certificate of Possession, as 28(2), frequently used for power lines, this Act and the terms of the evidence of his right to possession pipelines, and similar rights of way. absolute surrender or designation, of the land described therein. Indian Act as the case may be, Those allocations are very similar 28 . . . (a) manage or sell absolutely to fee simple ownership off reserve, surrendered lands; or with some very important limitations. (2) The Minister may by permit The main limitation is that a certificate in writing authorize any person for (b) manage, lease or carry out of possession cannot be sold to a a period not exceeding one year, any other transaction affecting nonmember of the band. Upon death, or with the consent of the council designated lands. the interest can pass by Will or by of the band for any longer period, Usually the Minister enters into a intestacy, but only to a band member. to occupy or use a reserve or to head lease with a corporation. That Lawyers and Notaries can assist in reside or otherwise exercise rights corporation is sometimes owned drafting such transfers but again, on a reserve. that is a specialized field. by the band. The corporation then They are not usually transferrable becomes the landlord of a number There is a Registry in Ottawa for interests and lawyers and Notaries of subleases that can be registered such interests, called the Reserve Land will seldom be involved in dealing in the Surrendered and Designated Register, but that is a different registry with them. There is a great deal of Lands Register in Ottawa. It is a from the Surrendered and Designated complexity in each case and frequent registry system roughly similar to the Lands Register referenced above. litigation. Specialized advice should be British Columbia Land Title Registry. Important: It does not have a obtained about them. Mortgages can be created through guarantee of priority based on the time assignments of subleases. 10. Reserves: Absolute Surrender of registration. There is no guarantee The only way to remove reserve lands This is a specialized field of that registration first in time creates a from federal jurisdiction and place practice for lawyers and Notaries, priority interest. The opinion a lawyer them within the British Columbia land but it is becoming increasingly or Notary can give, based on such a title system is by way of absolute common. For example, many of those registration, is therefore severely limited. transactions have taken place on the surrender. In modern times that is 8. Reserves: reserves of the Penticton, Campbell never done but there are a few archaic River, Kamloops, Okanagan, and Leases under Section 58(3) examples that occasionally show up. Musqueam First Nations, to name just Leases can also be created from A historical land search or abstract a few. (But see also the section on Certificate of Possession lands under may show that land was once part Land Codes below.) section 58(3) of the Indian Act. of a reserve, but was subject to a

Volume 25 Number 4 Winter 2016 The Scrivener | www.notaries.bc.ca/scrivener 67 “surrender” by the band. It is very completely separate legal system important to determine if that was The prudent lawyer for the Sechelt Band. an absolute or conditional surrender. or BC Notary will examine Sechelt Indian Government District If the latter, then it is now known as “designated” land and it is still under each reserve separately 17 There is hereby recognized the Indian Act. to ascertain the exact the Sechelt Indian Government District, which shall have Indian Act legal regime in force jurisdiction over all Sechelt lands. 38(1) A band may absolutely on those lands… surrender to Her Majesty, 18 The District is a legal entity conditionally or unconditionally, and has the capacity, rights, all of the rights and interests of force for most First Nations. That is powers and privileges of a natural the band and its members in all one of the rare situations where a non- person and, without restricting the or part of a reserve. Indian has a right to live on a part of generality of the foregoing, may a reserve that has not been formally (2) A band may, conditionally (a) enter into contracts or leased. The right to occupy the family or unconditionally, designate, agreements; home is an interest that cannot usually by way of a surrender to Her be sold, mortgaged, or given to the (b) acquire and hold property or Majesty that is not absolute, any kids in a Will, but it might be taxed. any interest therein, and sell right or interest of the band and or otherwise dispose of that its members in all or part of a 12. Land Codes under the First property or interest; reserve, for the purpose of its Nations Land Management Act being leased or a right or interest Lawyers and BC Notaries work Roughly one quarter of British within that system. therein being granted. Columbia’s First Nations have a Land 39(1) An absolute surrender is void Code. Most of the First Nations located There are a few other special unless in or near urban areas have a Land statutes in Canada. Westbank First Code, and most land transactions on Nation, for example, has a similar (a) it is made to Her Majesty; reserves in British Columbia are now statute, but it is different from (b) it is assented to by a majority subject to a Land Code. Sechelt, so the rules in one system do of the electors of the band not transfer immediately to another Before agreeing to assist a system. The land offices in such (i) at a general meeting client regarding an on-reserve land First Nations are usually very helpful of the band called by transaction, a lawyer or Notary must to lawyers and BC Notaries in that the council of the band, check to see if the particular band regard. But, as usual, it is not always (ii) at a special meeting has a Land Code and, if so, must a good idea for practitioners to take of the band called by take into account the provisions of legal advice from government officials the Minister for the the First Nations Land Management and this is no exception. purpose of considering Act (FNLMA) and the particular Land a proposed absolute Code itself and the laws that have 14. Lands Held surrender, or been enacted pursuant to the band’s under Modern Treaties Land Code. The FNLMA enables (iii) by a referendum Only a few of British Columbia’s a First Nation to replace the land First Nations have modern treaties. as provided in the provisions of the Indian Act with regulations; and Tsawwassen is a notable example. the band’s own laws. In such cases the land transactions (c) it is accepted by the Governor There are no general rules. on reserve are governed primarily by in Council. The prudent lawyer or BC Notary the Treaty, which is a constitutional 11. Reserves: The Right will examine each reserve separately document that overrides the Indian of a Non-Indian Spouse to ascertain the exact legal regime Act and any other statute. Before to Occupy The Family Home in force on those lands, before agreeing to assist a client regarding an undertaking a land transaction on-reserve land transaction for a First Legal professionals will frequently have on that reserve. Nation with a modern treaty, a lawyer a non-Indian client whose spouse is, or or BC Notary must fully understand was, a band member, and during the 13. Special Legislation the treaty itself and the laws enacted marriage the spouse lived on a reserve. such as Sechelt Lands pursuant to it. Your client may have a right to occupy In a small number of cases, there the family home under the Family is special legislation that takes the 15. Métis Lands Homes on Reserves and Matrimonial reserves of the band completely Your Métis client just moved from Interests or Rights Act (FHRMIRA). outside the Indian Act. An example Alberta and owns some land back As of December 16, 2014, the is the Sechelt Indian Band Self- home. Can you help your client sell it “Provisional Federal Rules” came into Government Act that creates a or deal with it?

68 The Society of Notaries Public of British Columbia Volume 25 Number 4 Winter 2016 The Supreme Court of Canada professional who has a once-in-a- confirmed in Daniels v. The Queen, Practitioners should never lifetime encounter with severalty lands 2016 SCC 12, that Métis are be embarrassed that they in your practice—like a hiker who “Indians” within the meaning of stumbles across a rare white spirit section 91(24), so they are subject don’t know this information; bear, take a picture, back away slowly, to federal jurisdiction. But Métis it is complicated, exotic, and and call an expert. lands are held collectively under an has gone through major Obviously, this brief introduction Alberta statute, the Métis Settlements changes in the last 10 years. is just a list, not an analysis. Lawyers Act, which reads a lot like the and BC Notaries may find this a useful Indian Act. checklist to orient themselves to the You are thinking, “Hey, isn’t that 16. Severalty Lands under Treaty 8 type of land or the type of interest with Alberta statute unconstitutional?” Most legal professionals will never which they are dealing. Wrong. It is valid, probably because encounter the rare and valuable Practitioners should never be it is an ameliorative measure under “severalty lands” created under Treaty embarrassed that they don’t know section 15(2) of the Charter of Rights 8.Less than .001 percent of British 7 this information; it is complicated, and Freedoms, 1982. There is Columbia’s land area is held under exotic, and has gone through major plenty of litigation about these this unusual tenure, which is found changes in the last 10 years. There are unique lands. If you have nerves of north of Prince George near Tumbler reported cases of solicitor’s negligence steel, you could buy lots of insurance Ridge and Mackenzie. Severalty lands where practitioners ventured into this and join the action or maybe it would are always subject to a “proviso as to field without knowing the whole story! be more prudent to work with one non-alienation” and cannot be sold, My thanks to Gary Campo, who read of the small group of experts that mortgaged, or taxed. specialize in this fascinating and this over and offered suggestions, but complex subcategory of indigenous But there is no rule book and the errors and omissions are entirely lands. they can only be properly understood my own. s through litigation.8 If you are a legal Jack Woodward, QC, focuses 7 Daniels v. The Queen, 2016 SCC 12, on aboriginal land-title law. at paragraph 51, and Peavine Métis 8 See, for example, Chingee v. Canada Settlement v. Alberta, 2011 SCC 37. (Attorney General), 2005 BCCA 446. [email protected]

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Volume 25 Number 4 Winter 2016 The Scrivener | www.notaries.bc.ca/scrivener 69 REGISTERING ABORIGINAL LANDS: PART 2

Jack Woodward, QC Ethan Krindle Statutory and Treaty Registration Systems

on Aboriginal Lands Chiefs Columbia Indian of British Union credit: Photo

These are the second and third parts of a four-part series discussing the types Forthcoming in the of Aboriginal lands and the several systems for registering interests Winter 2017 Edition on First Nations lands in Canada. of The Scrivener PART 1 PART 2 In This Issue PART 3 In This Issue PART 4 Sixteen types of Aboriginal interests Statutory and Which Aboriginal Land The Legal Effect in land that may be encountered by Treaty Registration Registry You Should be of Registration lawyers and Notaries in BC (published in Systems Using and How to Use in an Aboriginal The Scrivener, Winter 2016, page 65) on Aboriginal Lands Each Registry Land Registry

f the 16 different types of Aboriginal lands, most are never encountered by legal practitioners. Lawyers and BC Notaries are mainly interested in securing their clients’ property rights through registration of their interests. There are several different types of First Nations lands on which interests can be registered and several Odifferent registers where those interests can be recorded. Here is the “family tree” of registration systems for Aboriginal lands in Canada.

1 1 Not a statutory term Statutory Systems The “Indian Lands Registry” 2 Not a statutory term 3 Indian Act, s. 21 4 Indian Act, s. 55(1) 2 “Indian Lands Registry System” First Nations Land Registry Self-Governing First 5 Not a statutory term. INAC itself is 5 inconsistent in what it calls these System (FNLRS) Nations Land Register various entities. For example, at 7 Reserve Surrendered (SGFNLRS) https://www.aadnc-aandc.gc.ca/ Land and Designated eng/1100100034803/1100100034804 INAC refers to the “First Nations 3 4 6 8 Register Lands Register First Nation Land Register Westbank Lands Register Land Registry System” and the “Self-Governing First Nation Land Register,” but at http://services.aadnc- aandc.gc.ca/lLRS Public/Home/Notice. aspx it refers to the “First Nations Land Register System” and the 9 Treaty Systems Independent Systems Established by Treaty” “Self-Government First Nation Land Registry.” 6 First Nations Land Management Act, Nisga’a Tsawwassen Adopts Tla-amin Hybrid System: s. 25(1). 7 Not a statutory term 8 Westbank First Nation Nisga’a Land Tla’amin Land Law, and also registration Self‑Government Agreement, BC Land Title Act Title Act TNL 12/2016 of certain lands s. 96(b), which applies pursuant to the Westbank First Nation with the BC Land Self‑Government Act, s. 3(1). Title Office 9 Including laws of the treaty nations enacted pursuant to the treaties

Volume 26 Number 3 Fall 2017 The Scrivener | www.notaries.bc.ca/scrivener 57 Comparing First Nations Land Registers to the BC Torrens System The procedures involved Some First Nations In this series of articles, we frequently in registering an interest administer lands pursuant compare the compare the provincial on First Nations land may to self-government (Torrens) system with the First Nations land registration systems because vary considerably… agreements with the legal professionals are already familiar Federal Crown. with the use of the provincial land to opt out of certain provisions of the registration system. A provincial land Indian Act by passing its own Land register includes searchable records Code, thereby bringing it under the 3. Lands of Self-Governing that tell who holds title for each FNLMA instead. First Nations parcel of land, as well as any interests Reserve lands administered Some First Nations administer registered against that title. under the FNLMA will have different lands pursuant to self-government If the practitioner wishes to procedures for registering interests. agreements with the Federal Crown. transfer title or record a new interest, A list of First Nations currently In BC, the Sechelt Indian Band and he or she will typically operating under the FNLMA the Westbank First Nation have such (“operational”), as well as those agreements. • perform a pre-registration search working toward developing a Land of the state of the title, As with treaties, the details of Code (“developmental”), can be land management will vary with the • submit a registration package found at https://labrc.com/member- terms of the agreement; the legal to the registry, and communities/. practitioners will need to familiarize • conduct a postregistration search Unlike fee simple lands, title to themselves with the details of the to ensure the transfer or new reserve lands is held by the Federal agreement in question. For example, interest has been registered and Crown in trust for the band and does the agreement might give the First that no other competing interests not change hands in a transaction Nation law-making power over their have appeared in the intervening (unless the land in question is being Indian reserves or might convert those time. absolutely surrendered to the Crown, reserves to fee simple lands registered Registering interests on First which has not happened in modern within a provincial land registry. Nations lands, such as Indian Reserve times). Unlike the 100-year-old Torrens lands, is quite different. There are Instead, interests in reserve system, Aboriginal land registration a number of unique features and lands can be registered on particular systems are relatively new to the legal considerations of which a lawyer or parcels. Legal practitioners are most scene; there are ongoing growing a BC Notary should be aware. likely to encounter interests involving pains as those systems are brought on stream. There will be changes to those What Type of First Nations Land is it? “designated” reserve lands, which have been “conditionally surrendered” systems and there may be errors in The procedures involved in registering by the band so they can be leased. this article. an interest on First Nations land may vary considerably depending on what 2. Treaty Lands In the fourth and final article in this series, we will attempt to bring type of First Nations land it is. For When dealing with lands subject the reader up to date with recent example, the legal professional may to a treaty between the Crown and changes and fix any errors we have be dealing with reserve lands, treaty First Nations, especially a modern made. Please contact us if you find lands, or the lands of self-governing treaty, the legal practitioner will need a mistake. First Nations. to consult the terms of the treaty 1. Indian Reserve Lands in question to see how transactions NEXT ARTICLE IN THIS SERIES involving land are handled. Depending 1 Which Aboriginal Land Registry You If the land in question is on a reserve, on the terms of the treaty, the land the next question for the legal Should be Using and How to Use Each may also be subject to the laws of the Registry s practitioner is whether that reserve is First Nation. administered under the Indian Act or Jack Woodward, QC, focuses the First Nations Land Management on aboriginal land-title law. Act (FNLMA). By default, reserves are Unlike fee simple lands, administered under the Indian Act. title to reserve lands [email protected] A First Nation may, however, elect is held by the Federal Ethan Krindle is a lawyer and legal researcher specializing in environmental 1 Indian Act, s. 2(1) “reserve”: (a) means Crown in trust for the band a tract of land, the legal title to which and does not change hands and Aboriginal law. He works for Jack is vested in Her Majesty, that has been Woodward. set apart by Her Majesty for the use and in a transaction… benefit of a band (etc.). [email protected]

58 The Society of Notaries Public of British Columbia Volume 26 Number 3 Fall 2017 REGISTERING ABORIGINAL LANDS: PART 3

Jack Woodward, QC Ethan Krindle

Which Aboriginal Land Registry You Should be Using and How to Use Each Registry

f the 16 different members, as well as other Reserve lands are transactions. types of Aboriginal administered by Indigenous v The Surrendered and lands, most are and Northern Affairs Designated Lands Register O is established by section 55 never encountered by legal Canada… of the Indian Act. It records practitioners. particulars in connection comprised of several separate registry with any transaction affecting But when dealing with one of the types systems: absolutely surrendered or of interest that can be bought, sold, • The Indian Lands Registry System designated lands. or leased, the first step for lawyers (ILRS) consists of interests in and and BC Notaries who are attempting • The First Nations Land Registry documents related to interests in to secure their clients’ property rights System (FNLRS) records reserve lands administered under through registration of their interests instruments relating to Reserve the Indian Act. is to determine which registry is lands administered under the applicable. The ILRS consists of two separate FNLMA. The register within the registers. FNLRS is known as the First Which Register Do You Use? Nation Land Register, established v The Reserve Land Register After determining the type of land, pursuant to section 25(1) of the is established by section 21 the legal practitioner will want to FNLMA and the First Nations of the Indian Act. It records determine the appropriate registry Land Registry Regulations. Do not instruments respecting lands in which to register the instrument. confuse the “registry,” which is allotted to individual band The Indian Lands Registry an administrative office, with the “register” itself.2 Reserve lands are administered by Section 25(1) of the First Nations Land Management Act says, “The Minister shall Indigenous and Northern Affairs establish a register to be known as the First 2 Section 25(1) of the FNLMA requires the Canada (INAC) via the Indian Lands Nation Land Register.” The First Nations Minister to establish the “First Nation Registry, based out of Ottawa, ON, Land Registry Regulations define the Land Register” (no s), but the definition (the “Registry”).1 The Registry is “Register” to mean “[T]he First Nations of Register under section 1 of the First Land Register established by the Minister Nations Land Registry Regulations refers to under subsection 25(1) of the Act.” Clearly the First Nations Land Register (with an s). 1 Section 2 of the First Nations Land Registry the register does exist, but the authors have In the authors’ opinion, the statute should Regulations requires the location of the been unable to locate any clear evidence as take precedence over the regulation, so the Register to be in the National Capital Region. to when or how the Minister “established” it. correct name of the register has no s, and

Volume 26 Number 3 Fall 2017 The Scrivener | www.notaries.bc.ca/scrivener 59 • The Self-Governing First Nations as Category A and Category B that are not under Tswwassen’s Land Register (SGFNLR), lands), which are former reserve legal jurisdiction. established in accordance with and Crown lands over which the • The Maa-nulth First Nations the terms of First Nations self- Nisga’a Lisims Government does Final Agreement is an agreement government agreements, records not have jurisdiction. While the between the Crown and five documents that grant an interest Agreement authorizes the Nisga’a separate First Nations: Ohiaht, in self-governed First Nation Lisims Government to use the Toquaht, Uchucklesaht, Ucluelet lands. (More on this later.) provincial land title system, it and Kyuquot3 —all on the west All three registry systems can be has instead elected to set up its coast of Vancouver Island. accessed through a single website. own land title system under the The Agreement contains some http://services.aadnc-aandc.gc.ca/ Nisga’a Land Title Act. This land elements that are specific to each ILRS_Public/home/home.aspx title system applies to Nisga’a individual Nation but, broadly Lands, but not to Nisga’a Fee speaking, it gives each Nation Treaty Lands Simple Lands, which are part of fee simple ownership of former If dealing with treaty lands, the legal the provincial land title system. reserve and Crown lands as well professional will need to consult as law-making authority over its the terms of the treaty and possibly If dealing with treaty lands, lands, subject to the restrictions the First Nation’s constitution and on alienation set out in the laws, to determine the appropriate the legal professional will Agreement and in each Nation’s registry. Some treaties may provide need to consult the terms of laws. Each Nation may apply to for fee simple ownership of the treaty the treaty and possibly the have its lands registered in the BC lands, registered within the provincial Land Title Office. In practice, the land registry as with any other title First Nation’s constitution actual procedures and registries (although there will likely be some and laws, to determine used by each Nation may vary; additional restrictions on alienation the appropriate registry. for example, the Huu-ay-aht First found within the treaty itself). Nation established its own web- The treaty may also empower the based lands registry while some First Nation to pass laws concerning The Nisga’a Land Title Office can other signatory Nations may be the alienation of treaty lands or even be contacted through its website using the provincial system. They to establish the First Nation’s own at http://www.nisgaalandtitle.ca/. are mostly rural First Nations separate land register. The legal • The Tsawwassen First Nation without a great deal of commercial professional will wish to contact the Final Agreement grants fee simple development on their lands, so First Nation to inquire about what ownership of former reserve lands that is a very specialized area. register records interests in the land and certain other lands to the • The Tla’amin Final Agreement in question, what laws and procedures Tsawwassen First Nation (TFN). gives the Tla’amin Nation (near apply to registering an interest, etc. Some of those lands are subject Powell River, formerly known as There are presently four modern to restrictions on alienation as set Sliammon) fee simple ownership treaties in effect that give First out in the Agreement and TFN of former reserve and Crown land Nations powers over some or all their laws, such as the TFN Land Act. and gives the Nation law-making former reserve lands: The Nisga’a The Agreement authorizes the TFN authority over those lands. The Final Agreement, the Tsawwassen First to pass laws establishing their own Agreement also authorizes the Nation Final Agreement, the Maa-nulth land registry or to register lands Nation to use the provincial land First Nations Final Agreement, and the in the BC Land Title system. Thus title system or to establish its Tla’amin Final Agreement. far, transactions involving TFN own land title or land registry treaty lands are handled through system for lands not registered • The Nisga’a Final Agreement gives the BC Land Title Office. the Nisga’a Nation fee simple in the provincial system. At this ownership of “Nisga’a Lands,” Please also note: SC. 2008, c. time, the Nation appears to have which are core lands over which 32, s. 25: “As of the effective date adopted a hybrid system: The the Nisga’a Lisims Government of the Agreement, registrations Tla’amin Land Law, TNL 12/2016, has jurisdiction, and also “Nisga’a or records affecting Tsawwassen that provides for the registration Fee Simple Lands” (also known Lands that are registered or of certain lands with the BC Land recorded in a land registry under Title Office, while the Lands and the regulation contains a typo. However, the the Indian Act or the First Nations Interests File Registry Law, TLN “Registry” is different from the “Register” Land Management Act have no 15/2016, establishes a Tla’amin and the Regulations can call the Registry by effect.” The treaty also identifies whatever name they want; in this case they include the s throughout. To summarize, certain “Other Tsawwassen 3 These are the anglicized names. Most Register = “Nation” (no s); Lands,” which are lands that the of the Maa-Nulth First Nations have a Registry = “Nations” (with the s). Tsawwassen own in fee simple but preferred spelling that differs from this.

60 The Society of Notaries Public of British Columbia Volume 26 Number 3 Fall 2017 Lands Registry to maintain instruments for registration upon How to Register the Instrument records in relation to “Non-Titled request and maintaining and protecting Registering an Instrument in the ILRS Lands,” i.e., lands that are not records in relation to Westbank Lands, Detailed procedures for registering registered in the provincial system, among other things. A copy of the instruments in the Indian Land as well as some “Titled Lands” Register is kept at the Westbank Lands Registration System (ILRS) are set prescribed by regulation. Office. The Regulations are almost out in the Indian Lands Registration identical to the First Nations Land Manual (the “Manual”), published by Self-Governing First Nations Registry Regulations, with “Westbank the Registry. The following summary Both the Sechelt Indian Band and Land” in place of “First Nations Land.” the Westbank First Nation in BC have is based on the December 2014 self-governance powers, including version of the Manual. powers over land, granted by special Any instrument that What Instruments May be Registered legislation. Under the Sechelt Indian grants or claims a right Any instrument that grants or claims Band Self-Government Act, SC 1986 a right or interest in reserve land or c. 27, title to former reserve land has or interest in reserve transfers, encumbers, or affects Indian been transferred to the Band in fee land or transfers, reserve lands, designated lands, or simple; the Band has full power to encumbers, or affects surrendered lands, may be registered dispose of the land or any interest in the ILRS. in it, subject to the Band’s own Indian reserve lands, Who May Register an Instrument constitution. The Band is authorized designated lands, or (but not required) to use the provincial An instrument may be submitted land title system for registration of surrendered lands, may for registration by the person land transactions. Transactions not be registered in the ILRS. transferring, receiving, or claiming registered under the provincial system the right or interest (“the applicant”), are instead registered in the Reserve the applicant’s solicitor, or agent, Land Register under the Indian Act. Thus, like the FNLRS, the Registry an Indigenous and Northern Affairs Canada (INAC) employee, or a First The Westbank First Nation Self- records “document[s] that affect Nation. Government Act, SC 2004 c. 17, gives Westbank land” (section 10(1)), and full force of law to the Westbank First there is a priority scheme by date and The Application Package Nation Self-Government Agreement time of registration (subsections 28 A typical application package to signed October 3, 2003. Note that the to 30). Further, section 112.2 of the register an instrument in the ILRS Agreement is not considered to be a WFN Constitution states, “An interest would include the following. treaty. Under the Agreement, title to in Westbank Lands is not enforceable • The instrument itself. According Westbank First Nation Indian Reserves unless it is registered in the Westbank to the Manual, this must be the remains with the federal Crown, but Lands Register.” The website is http:// original document; a certified true the Westbank First Nation has all the www.wfn.ca/bitterroot/landsregistry. copy is not acceptable except in rights, powers, responsibilities, and htm?RD=1. certain specified circumstances, privileges of an owner of those lands, Title remains with the Crown such as a Court order. The and the lands are administered under pursuant to section 87 of the instrument must identify the Westbank’s own laws rather than the Westbank First Nation Self- parties and show their signatures, Indian Act. Transactions concerning Government Agreement (that has force the signatures of witnesses, the those lands are recorded in Westbank of law under section 3(1) of the Act). date of execution, a legal land Lands Register, a subregister of the Section 113.2 of the WFN Constitution description, and the nature of the SGFNLR accessible through the Indian prohibits cancellation or forfeiture of right or interest to be registered.4 Lands Registry website. interests in Westbank lands if it would The WFN Land Registry is adversely affect an interest in those Westbank lands held by a third party, 4 Submitting original documents: The administered by INAC pursuant to December 2014 Indian Lands Registration the Westbank First Nation Land or a claim against, or interest in, those Manual (the most recent version available Registry Regulations (SOR/2007- Westbank lands held by Westbank. online) states in Chapter 3 that an 232) under the Westbank First Nation Westbank Lands are also subject instrument submitted for registration must be the original instrument, not a Self-Government Act (S.C. 2004, to Westbank laws, particularly Part copy (with a few specific exceptions). This c. 17). Pursuant to section 99.2 of XI of the WFN Constitution (that Part relates to registration within the ILRS, the WFN Constitution, however, the is referred to elsewhere on the WFN not the FNLRS. The FNLRS will accept Westbank Lands Office is responsible website as the “Land Rules”) and the scanned documents for registration; for administering Westbank lands WFN Land Use Law No. 2007-01. that is specifically provided for in the Regulations which state, at section themselves, as well as receiving and Per section 32 of the Regulations, 10(1), that “Any person may apply for the reviewing instruments that purport to however, the Regulations prevail over registration or recording in the Register of affect Westbank Lands, forwarding Westbank Law in the event of conflict. a document that affects first nation land...

Volume 26 Number 3 Fall 2017 The Scrivener | www.notaries.bc.ca/scrivener 61 • Affidavit of witness: The witness You may then enter your identifying Once you have conducted your must not be a party to the information for the parcel and conduct pre-registration search, submit your instrument and must attest to your search. registration package to your regional execution by each executing party. Searching the website will pull up INAC office. The procedure for the post-registration search is the same • Two copies of the Application an abstract for the parcel in question, for Registration. The relevant showing a history of all instruments as for the pre-registration search and, application forms can be obtained that have ever been registered on again, we recommend requesting a from INAC, although the application that parcel. Note that this abstract certified copy of the parcel abstract. may also take the form of a covering is not “certified” by the registry; the Registering an Instrument letter as long as it includes all the authors recommend emailing INAC to in the FNLRS relevant information as set out specifically request a certified copy Section 25(2) of the First Nations Land in the Manual. of the abstract. The certified copy Management Act (FNLMA) requires comes with a cover page with a seal, • Legal land description: Some that the First Nation Land Register be transactions may require specific a statement that it is a certified true administered substantially in the same documentation for the legal land copy of the parcel abstract report, and manner as the Reserve Land Register description, such as an Official the registrar’s signature. Double-check established under the Indian Act. Thus, Plan. See the Manual for details. to ensure you have in fact received from the Registry’s perspective, the a certified copy; in our experience, procedure for registering an interest in Supporting documents: Depending • INAC sometimes mistakenly sends an the First Nations Land Registry System on the type of transaction being uncertified copy. (FNLRS) is likely similar to that for the registered, different supporting ILRS. documents (such as a supporting Practitioners should be aware, Band Council Resolution) may Practitioners should be however, that First Nations who be required. See the Manual administer their lands pursuant to the for details. aware, however, that First FNLMA will have adopted their own Recommended Procedure Nations who administer Land Code as part of the transition The authors recommend that the legal their lands pursuant to the process. This Land Code is a law professional adopts practices similar FNLMA will have adopted of the First Nation and may set out additional procedures, requirements, to those for registering an instrument their own Land Code as part in a provincial land registry, to wit, and fees for registering interests on conducting a pre-registration search, of the transition process. their reserve lands. then submitting the registration For example, the First Nation may package, then conducting a post- have established a two-step process registration search. Unfortunately, due to concerns in which the lawyer’s client fills out an application to the First Nation and then The ILRS can be searched online over potential conflicts with the federal Privacy Act, scans of the registered it is the First Nation that applies to the by going to http://services.aadnc- Registry to register the transaction. aandc.gc.ca/ILRS_Public/home/home. instruments and supporting documents are no longer accessible directly Practitioners should contact the First aspx. New users will need to create Nation they are dealing with to confirm an account before they can log in. through the ILRS website. Should you wish to see a particular document, the applicable procedures and obtain You will also need some identifying a copy of the relevant laws of the First information for the parcel, such as you will need to email your local INAC office and submit a request for it. Nation and review them carefully. a PIN number, before conducting your Unlike the ILRS, the First Nations pre-registration search. INAC will then contact the affected First Nation and request permission Land Registry Regulations specifically Once logged in, the user can to add you to a list of authorized users allow for electronic filing of an select from a number of different and, if approved, will then email you application package for registration in search systems (by instrument, by the relevant scans. Alternatively, INAC the FNLRS. The Regulations specify Evidence of Title, or by land parcel) might email the scans directly to the the scan must be a scan of an original and which of the registries they wish First Nation so the First Nation can document. to search (ILRS, FNLRS, or SGFNLRS). forward them on to you.5 be specifically requested from INAC due (c) electronically, in the manner set out to privacy concerns (despite the fact that in section 12.” Section 12 adds that the 5 The ILRS is not truly public: Arguably, the ILRS website “Acceptable Use Policy,” document may be submitted by filling out the whole point of a land registry is that which pops up and requires the users to an online registration application at the its contents should be accessible by click “Agree” before they can even access INAC website, then attaching a scan of anyone so that the state of title is known. the service, requires the users to agree to the original document in either PDF or .tif The ILRS online search engine now only the following: “Information registered in the format. It is unclear to the authors whether displays parcel abstract reports, however. system is public information. Participants the Indian Lands Registry now also accepts Scans of the registered documents are not agree to not enter private or confidential scans for the ILRS or only for the FNLRS. available through the website and must information in the system.”)

62 The Society of Notaries Public of British Columbia Volume 26 Number 3 Fall 2017 If conducting a pre- or post- directly from the website could be registration search of the FNLRS, relied upon as an accurate statement instead of contacting the local INAC of the contents of the register. office, the legal practitioner will A cautious practitioner will insist need to contact INAC Canada at Obtaining Certified Copies upon certified copies before giving RCN.Demande.de.document-NCR. from the FNLRS an opinion to a client. Document.Request@aadnc-aandc. Section 6 of the Regulations say, Registering an Instrument gc.ca to request certified abstracts “On request, the Registrar shall in Respect of Treaty Lands and/or copies of any registered provide a copy or certified copy of instruments or supporting documents.6 The procedure for registering an a document registered or recorded instrument in respect of treaty in the Register.” Similarly, section 7 6 INAC’s policy is to ask permission from the lands will depend on the terms of says, “On request, the Registrar shall First Nation that owns the parcel before the relevant treaty and may also be sharing the documents. It is unclear what issue a certificate indicating all the affected by the land laws of the First would happen if the First Nation denied interests registered—or, in Quebec, Nation. this permission or simply failed to answer. all the rights registered—and other Section 5 of the Regulations say, “Any documents recorded on the abstract of NEXT ARTICLE IN THIS SERIES person may, during the hours referred to a specified parcel of first nation land.” The Legal Effect of Registration in subsection 3(1), inspect at the First Based on the authors’ experience, In an Aboriginal Land Registry s Nations Land Registry the electronic image of any document that is registered it seems likely that INAC is not Jack Woodward, QC, focuses or recorded in the Register.” Furthermore, accustomed to receiving requests for on aboriginal land-title law. section 6 says that on request, the certification and may not have standard Registrar shall provide a copy or certified operating procedures in place for [email protected] copy of a document registered or recorded handling such requests, but they are in the Register. INAC’s current policy available if the practitioner is persistent. Ethan Krindle is a lawyer and legal would therefore appear to be in conflict researcher specializing in environmental The ILRS website does not say with their statutory obligations under and Aboriginal law. He works for Jack whether INAC “stands behind” the the Regulations, in addition to being Woodward. seemingly contrary to the fundamental parcel abstract reports accessible purpose of a land registry. online, i.e., whether a report printed [email protected]

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Volume 26 Number 3 Fall 2017 The Scrivener | www.notaries.bc.ca/scrivener 63 REGISTERING ABORIGINAL LANDS: PART 4

Jack Woodward, QC Ethan Krindle The Legal Effect of Registration in an

Aboriginal Land Registry Chiefs Columbia Indian of British Union credit: Photo

These is the fourth in a four-part series discussing the types of Aboriginal lands and the several systems for registering interests on First Nations lands in Canada.

PART 1 PART 2 PART 3 PART 4 Sixteen Types of Aboriginal Statutory and Which Aboriginal Land This Article Interests in Land that may Treaty Registration Systems Registry You Should be The Legal Effect be Encountered by Lawyers on Aboriginal Lands Using and How to Use of Registration and Notaries in BC Each Registry in an Aboriginal (Published in The Scrivener, (Published in The Scrivener, (Published in The Scrivener, Land Registry Winter 2016, page 65) Fall 2017, page 57) Fall 2017, page 59)

egal practitioners always Designated Lands Register, “is valid that any document registered in against an unregistered assignment the ILRS is legally valid or effective want to register the land or an assignment subsequently or that all documents affecting an interests of their clients registered.” That might appear interest in land have been submitted L to create a priority scheme similar for registration. That is a difference in a formal registry. to that found in, for example, the from the formal assurance given under BC Land Title system. The language the BC Land Title Act. The Manual, The complex and varied Aboriginal of the statute, however, refers only (which is not law, but government land registry systems raise the to “assignments”—and there is no policy), specifically states that important question of exactly what priority scheme in place for anything registration in the ILRS does not is the effect of registration. other than an “assignment.” guarantee title and places the onus on The purpose of this article is the parties to a transaction to search to assist the practitioner in giving an The complex and varied the records prior to submitting an opinion to a client about the security instrument for registration. Aboriginal land registry of his or her title, because such an Important: Two different kinds of leases opinion may be quite different from systems raise the important Leases on Indian Reserve lands can be the opinion that would be given with question of exactly what respect to an interest registered in created under section 53(1) or 58(3) 1 a provincial land title system. is the effect of registration. of the Indian Act. The practitioner must be aware of which type of Effects of Registering the Instrument Furthermore, it should be noted lease this is because there is a major Effects of Registration in the ILRS that the Reserve Land Register, difference between them. (Indian Lands Registry System) established pursuant to section 21 Under section 55(4) of the Indian of the Indian Act, does not include any statutory priority scheme whatsoever. 1 There are also historic leases under section Act, a transaction affecting absolutely 58(1)(c) but this section now appears to be surrendered or designated lands, once INAC (Indigenous and Northern moribund and the practitioner is not likely registered in the Surrendered and Affairs Canada) does not guarantee to encounter it.

56 The Society of Notaries Public of British Columbia Volume 26 Number 4 Winter 2017 • A lease under section 53(1) Effects of Registration in the FNLRS according to all the required formalities is a lease of designated land (First Nations Land Registry System) for its validity.” and will be registered in the Under section 25 of the FNLMA, And per section 29, “A registered Surrendered and Designated the First Nation Land Register is interest—or, in Quebec, a registered Lands Register. Accordingly, to be administered in the same right—affecting a parcel of first nation priority is granted against other fashion as the Reserve Land Register land is entitled to priority over an assignments of the lease based established under section 21 of the unregistered interest or right affecting on the time of registration. Indian Act, subject to any regulations the same parcel.” • A lease under section 58(3) is passed by the minister. Registration of an interest in the registered in the Reserve Land As noted above, the Reserve Land FNLRS does not guarantee title as it Register and no priority is created Register does not include a statutory would under the BC land title system. by registration at all. priority scheme. However, the First Effects of Registration under FNLTS The two types of leases may appear on Nations Land Registry Regulations (First Nations Land Title Systems) their face to be almost identical, so it is do include a priority scheme. Under imperative that the practitioner find out section 28(1) of the Regulations, Legal professionals dealing with which type it is. Once a First Nation “interests—or, in Quebec, rights— a land title system established and adopts a Land Code under the FNLMA registered under these Regulations administered under a First Nation’s (First Nations Land Management Act), that affect the same parcel of first own laws will, of course, need to this distinction should disappear (see nation land have priority according familiarize themselves with the “effect of registration in the FNLRS” to the time and date the documents specifics of that registry to determine below), although that is not a point were executed or, in Quebec, signed the effects of registration. For on which there has been any litigation example, the Tla’amin Lands Registry for guidance.2 arise is whether a document that did not assigns priority to registered interests have priority under the old Reserve Land according to the type of interest and Register because it was executed at a who holds it, with date of registration 2 The transition from the old Reserve Land later date than a subsequently registered acting as a secondary “tie-breaker” Register to the FNLMA and Regulations document suddenly gains priority when the may raise issues. The legal point that may FNLMA and Regulations begin to apply. between two otherwise equal interests.

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Volume 26 Number 4 Winter 2017 The Scrivener | www.notaries.bc.ca/scrivener 57 Summary Chart This is an emerging field of law; the authors acknowledge Some of the information presented in our four articles there may be gaps in this information and would be grateful is summarized in the following chart. to any readers who point out any errors or omissions.

Registration Priority according Legal Guarantee Type of land System Administration of deeds or to time of Authority or assurance? of titles registration 1. Ordinary fee BC land title Land Title Act Land Registries Title and all Land Title Act, section Usually no need for title simple land in BC system administered by subordinate 22: “at the time insurance, because of (For comparison) the Land Title and interests are of its registration, the Assurance Fund Survey Authority registered irrespective of the of BC. date of its execution” 2. Certificate of The Reserve Indian Act, INAC (see Manual Crown retains title, No priority based on No. (See Manual, Possession Land Register section 21 section 1.2.3) registration of time of registration. section 1.2.4—no lands “and other interests only guarantee of title) transactions respecting lands in a reserve”

3. “Any transaction The Indian Act, INAC (See Manual ILRS records Indian Act, section No. (See Manual section affecting Surrendered section 55 section 1.2.3.) transactions, 55(4) “An assignment 1.2.4—no guarantee absolutely and not titles. registered under of title) surrendered Designated this section is or designated Lands valid against an lands” Register unregistered assignment or an assignment subsequently registered.” 4. “First Nation First Nation FNLMA INAC Indian Lands Documents that Yes—Regs. ss 28-30. No guarantee. Title Land” under Land Registry section 25(1) Registry affect FN Land— “priority according to insurance should be FNLMA, when System and the First Regs. Section 10(1) the time and date.” purchased, if available. there is a Land (FNLRS) Nations Land Canada and First Code Registry Nations give indemnities Regulations to each other. Section 34 FNLMA 5. Westbank and Self- Sechelt and Sechelt: may Sechelt: BC title Sechelt: BC priority Sechelt: BC Assurance Sechelt Governing Westbank adopt BC Land registration system, pursuant Fund. First Nations self- title system. system. to agreement. Westbank: WFN Land Register government Westbank: Uses Westbank: Westbank: Same Constitution some (SGFNLR) statutes the SGFNLR via “Documents that system as FNLMA forfeitures, otherwise, the Indian Lands affect Westbank Regs similar to FNLMA Registry website. lands” like FNLMA 6. Treaty lands: Various treaty First Nation Varies; sometimes Some specialized Varies. For example, Varies—when BC Land Nisga’a, systems Laws treaty systems, “fee simple” Tla’amin law creates Title system is adopted, Tsawwassen, authorized sometimes BC interests created a unique hybrid the BC guarantee Maa-nulth, by the treaty Land Title system under the treaty. system. applies subject to the Tla’amin. (See itself, such as adopted by restrictions under the text of each the Nisga’a reference. treaty. treaty.) Land Title Act.

Jack Woodward, QC, Ethan Krindle is a lawyer and legal researcher s focuses on Aboriginal land-title law. specializing in environmental and Aboriginal law. He works for Jack Woodward. [email protected] [email protected]

58 The Society of Notaries Public of British Columbia Volume 26 Number 4 Winter 2017