Set Apart by Her Majesty

A frank discussion of real property on reserve

Set Apart by Her Majesty

Anyone who practises in an area of law that may involve property on reserve has likely encountered the particular issues that arise on reserve lands. Here we discuss some common problems related to real property on reserve. We also discuss overarching problems that stem from imposing colonial legislation onto land governance models that have been in place for thousands of years.

The Indian Act is the principal legislation that Canada uses to administer and control Indian Status, First Nations governments, and the management of reserve lands. It also sets out federal obligations to First Nations peoples. The Indian Act has been amended several times, however its principle objectives remain the same to this day. That is, to advance the crown’s political objectives of alienating Indigenous peoples of their inherent political structures.

Under the Indian Act, many decisions about a Nation’s reserve lands require a final decision or approval from the federal government. Although more recent legislation like the First Nations Land Management Act significantly improves a Nation’s power to manage its reserve lands under a land code, it remains federal legislation that purports to delegate land management authority from Canada to the Nation. In addition, even where a Nation adopts a land code under the First Nations Land Management Act, often problems persist from the time when the Nations land was managed solely under the Indian Act.

Records related to reserve lands may be scarce, incomplete, or missing altogether. Unlike the provincial land title system, the federal Indian Land Registry System is essentially a notice board that does not guarantee title or the accuracy of documentation. This means expired and out-of-date information may remain in the system, and interests may not be accurately registered. A lack of certainty can result in disagreements concerning the boundaries of an individual’s lands or create disputes regarding traditional land holdings. This may also pose challenges for Nations trying to address infrastructure needs, and for third-parties working on reserve.

As Nations work to move beyond the rigid constraints of the Indian Act through self-governing agreements, modern Treaties, and adopting land codes, problems arising from the imposition of the Indian Act continue. Often it is left to Indigenous communities to remedy these problems with inadequate support from those who imposed the Indian Act in the first place.

As we move to dismantle colonial systems, it is important to avoid past mistakes. This means settlers must avoid trying to impose their assumptions about how lands should be governed. For example, one of the key structures for some Indigenous peoples, like the Wet’suwet’en, are the matrilineal and matrilocal clan system. The Indian Act was based on patrilineal and patrilocal system that displaced Indigenous women and therefore stripped them of their traditional sources of power, relationships, and resources. Negative impacts to traditional governance systems continue to this day and remain difficult to address.

Much work remains to be done to unravel problems stemming from the impacts of colonial legislation. It will be important that this work be led by Indigenous communities, with proper resources and support. For reconciliation to have meaning, it is crucial to recognize the inherent jurisdiction and rights First Nations have to govern their lands, and to support Indigenous communities to bring about the vision they have for their lands, free from the constraints of ill-suited legislation.