ARCHIVED - Lands and Housing
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Under the Indian Act, reserve lands are held collectively and are set aside for the use and benefit of a band. This differs from land holdings and housing in provincial/territorial jurisdictions, which are primarily based on individual ownership. However, on reserves, no individual ownership exists in the same way as off reserves.
The proposed Act is designed to apply as broadly as possible and takes into account individual and collective interests in lands and housing on reserves.
Approximately 50% of First Nations operate using the Indian Act land allotment system, by allotting lawful possession of lands to individual members.
The Indian Act sets out a unique system of individual interests or rights to reserve land. A band council allots reserve land to band members with approval from the Minister. The interests or rights of individuals who are allotted lands are registered in Aboriginal Affairs and Northern Development Canada's Indian Lands Registry and Certificates of Possession are issued. On reserves governed under the Indian Act, the closest thing to individual ownership of reserve land is an interest or right to property, which is evidenced by a Certificate of Possession.
Many First Nations do not subscribe to the provisions of the Indian Act or other applicable legislation such as the First Nations Land Management Act in allotting land to individuals. The approximately 50% of First Nations that do not follow the Indian Act requirements for allotting individual interests or rights to property have their own ways of determining where individual members will live. These methods are referred to as custom allotments. Each First Nation operating outside of the Indian Act for these purposes may have their own traditions, customs and rules for dealing with individuals with any interest or right to land on a reserve. This has implications for matrimonial real property interests or rights on reserves, as there are no individual legal interests or rights to the land in customary or traditional allotments presently recognized at law.
Housing on reserves varies among First Nations in policies, rules and customs. Housing may be divided into two broad categories, including "band-owned" housing, consisting of an estimated two-thirds to three-quarters of all housing on reserves, and "individually-owned" housing. Band-owned or individually-owned housing allocations may be applied in nearly any combination to the broad range of land holdings on reserves, whether individually-held (e.g. individual with a Certificate of Possession) or communal (First Nation social housing on general band lands).
Many First Nation families rent homes on reserves from their First Nation or from another First Nation member. The interests or rights of individuals renting on reserves are not as clear as those off reserves, nor are the regulatory powers of band councils that rent housing, because provincial tenancy statutes likely do not apply.
Individually-held housing on reserve lands usually means an individual band member has a right to the home. The band member may also have a right to the land on which the house is located.
HOW WILL THE PROPOSED ACT APPLY TO LANDS AND HOUSING?
The provisional federal rules of the proposed Act will provide a range of rights and protections to spouses and common-law partners on reserves that are similar to those available off reserves. The proposed Act identifies what interests are addressed, such as rights to possession under the Indian Act, interests recognized by land code or First Nation law under the First Nations Land Management Act (see Issue Paper 8) or self-government agreements (see Issue Paper 9). The Act will also apply to structures and housing on reserves where the band council recognizes or the courts find there is a matrimonial interest or right.
HOW WILL THE PROPOSED ACT APPLY TO CUSTOM ALLOTMENTS?
The provisional federal rules of the proposed Act will not apply to the lands that have been allotted according to custom. However, the Act will apply in respect of matrimonial interests or rights to structures on reserves recognized by agreement between spouses and First Nations or by the courts.
If the First Nation does not recognize the matrimonial interests or rights of the spouses or common-law partners in the family home or other structures, the spouses or partners can turn to a court for a determination of whether they hold a matrimonial interest or right to the family home or structure in question. In such a case, the First Nation is permitted to make representations to the court. If the court determines the spouses or common-law partners to have a matrimonial interest or right to the family home or other structure, the protection provided by the proposed Act will be available.
All rights and protections relating to the family home will apply to First Nation members living on custom allotted lands, when they can demonstrate a matrimonial interest or right to that home.
Rights and protections that will not apply to First Nations members living on custom allotted lands include:
1. Entitlement of each member spouse or common-law partner to an equal division of the value of the land;
2. Orders for transfer of the land between member spouses or common-law partners;
3. Entitlement of surviving spouses or common-law partners to division or equal share of the land's value.
The various land holdings and housing arrangements on reserves have been taken into account in developing the proposed Act. It is not possible for all off-reserve remedies to be replicated on reserves because of fundamental differences in land tenure on reserves.
The provisional federal rules of the proposed Act will not change the land tenure system on reserves, but will instead provide protections to spouses or common-law partners specific to the nature of their matrimonial real property interests and rights.
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