Authors: Saravan Veylan and Anna Schlagintweit
The B.C. government proposes to amend the law to allow First Nations to register and own land in their own name, without affecting treaty rights or legal status.
The provincial government’s website states that the proposed changes will enable First Nations to have the choice to register land interests in their own name or to register interests in the Land Title Office through alternative arrangements. In addition, the proposal will not impact the treaty rights or legal capabilities of any First Nation.
B.C. presently denies First Nations land ownership and registration
In B.C., all interests in land must be registered in the Land Title Office and an unregistered interest in land is generally not enforceable. To register an interest in land in the Land Title Office, an entity must have all the powers of a natural person.
Since the Indian Act, RSC, 1985, c. 1-5 (the “Act”) generally does not confer the full powers of a natural person on bands created under the Act, the majority of First Nations are presently unable to register and hold interests in real property in their own name in B.C. These First Nations can only register interests in land by establishing a corporation or other entity and registering in its name. This creates additional cost and administrative barriers for First Nations and can cause uncertainty in respect of land ownership and other rights. This may also act as a barrier to First Nations’ ability to access financing and participate in economic opportunities.
By contrast, First Nations with modern treaty final agreements and First Nations with self-government agreements are able to register interests in land in the Land Title Office in the province.
Changes to the current legal framework
The provincial government is exploring statutory amendments to eliminate barriers to land ownership for First Nations and to enable First Nations that are recognized as legal entities under federal law to register and hold interests in land in their own name, if they choose to do so.
The province’s materials indicate that, under the amendments, “First Nation” will be defined as “a body of First Nation persons recognized as a legal entity under Federal law” and “land” refers to fee simple land and other land interests.
Under the new regime, First Nations would be subject to the same requirements as companies and individuals that own interests in land. The legislative amendments will still permit a First Nation to register an interest in land in the Land Title Office through alternative arrangements, such as through a corporation or other entity.
The materials further provide that the proposal does not impact or take away current provisions that are applicable to modern treaty First Nations who have the capacity to hold land as part of a treaty.
Consultation and engagement
The province is seeking feedback from First Nations in B.C. on the proposed amendments, as well as from local governments and business organizations. The consultation period has begun and the province aims to introduce the legislative amendments to the Legislative Assembly in spring 2024.
If you represent a First Nation or another stakeholder and are interested in participating in the consultation process, contact the authors to connect with a member of our Vancouver-based Indigenous practice group. Our team has extensive experience advising Indigenous groups on matters related to real property and their rights.
MLT Aikins Indigenous practice group is here to assist Indigenous groups with matters such as treaty and Aboriginal rights negotiations and litigation, comprehensive and specific claims, and a wide variety of legislative, regulatory and other negotiations with federal, provincial and municipal governments.
Note: This article is of a general nature only and is not exhaustive of all possible regulatory requirements, legal rights, or remedies. Laws may change over time and should be interpreted only in the context of particular circumstances. These materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.