There are three types of land ownership relating to First Nations in Canada:
› Reserve land
› Aboriginal title land
› Treaty land
Each of these models of land-holding is slightly different from each other and from the regular land that a non-Aboriginal would purchase in a standard real estate transaction.
Be sure you clearly understand what you are purchasing and have the right lawyer review it for you prior to making a firm commitment .
Reserve land is land set aside for Aboriginal peoples by the federal government. Reserves are found throughout Canada but are most common in Ontario and the western provinces. The federal government is entitled to make laws for the reserves, and uses the Indian Act for many governing purposes.
Reserve land is owned by the federal government for the use and benefit of the resident First Nation. The First Nation can often control many aspects of reserve life, such as liquor laws and some land use issues. Non-members of the First Nation cannot own land on the reserve, but may lease lots for the purpose of development.
Mobile home parks and some residential developments have been completed on reserves.
Aboriginal title is a type of land ownership that is determined by the courts. Aboriginal title consists of the right to own land on the basis of occupation at the time the Crown asserted sovereignty over the land.
There are restrictions on land held under Aboriginal title, the most important being the fact that it may not be sold privately. Aboriginal title may only be passed to the Crown through a treaty.
Once a treaty is signed with a First Nation, its Aboriginal title over the land no longer exists. In return, the First Nation typically retains a certain amount of treaty land over which it will have enhanced powers. Each treaty is different, so the amount of land and the powers involved may change according to circumstances.
In almost every treaty the First Nation will be able to control the use of its land, rather like a municipality. A non-member of the First Nation who wants to develop or purchase treaty land must consult the First Nation. Unlike reserve land, the federal government is not involved. Each First Nation will have substantial powers over its treaty land.
For instance, in the Nisga’a treaty, Nisga’a land will remain subject to the laws of the Nisga’a government even if the land is sold to a non-member of the Nisga’a Nation. In the Sechelt treaty, on the other hand, if the Sechelt band sells some of its land, it will no longer have any governing power over that land.
Leasing Reserve Land
Individual band members may acquire certificates of possession giving them legal interests in the reserve land which they occupy, but they cannot own the land outright. If a band wishes to develop reserve land, it must first obtain the approval of the Department of Indian Affairs and Northern Development (DIAND).
The land which is to be developed is partly surrendered to the Crown, which can then lease the land to a developer. The surrender must be approved by the band council and any other party with a legal interest in the land.
DIAND has a lengthy process which must be followed by bands seeking to designate reserve land. Once that process is completed, the developer, the band and the Crown can negotiate the lease. In most cases, the lessor is the federal Crown. However, in the case of the Musqueam and some other bands, DIAND has assigned its interest to the band. That means that the Musqueam have full control over their leases without the supervision of DIAND.
The lease between the developer and DIAND (or, in the Musqueam case, the band council) is called the “head lease”. DIAND (or the Musqueam council) is the “head lessor”. Generally,the head leases are for a term of 99 years. At the end of the lease term, the developer will not own the land.
Ownership of the land returns to the head lessor. Head leases are registered in the Indian Lands Registry. Once the head lease is registered, the developer can then negotiate sub-leases with people or companies who want to use the land.
These tenants are known as “sublessees”. Sub-leases between the developer and the tenants should also be registered, but this is not always the case.
Tip - Your realtor who is negotiating a purchase of a sub-lease should check to see if it is registered, as registration provides more legal protection under DIAND.
Written by Maggie Chandler, marketing Vancouver homes since 1981.