The Constitution Act of 1867 gives Parliament authority over "Indians and lands reserved for the Indians." The Indian Act, in place since 1876, was passed by Parliament under this authority and sets out the land management responsibilities of the Minister of Aboriginal Affairs and Northern Development for much of the reserve lands in Canada.
Aboriginal Affairs and Northern Development Canada (AANDC) provides land management services to more than 600 First Nations and covers more than 2,800 reserves with over 3 million hectares of reserve land across Canada. Land management generally includes activities related to the ownership, use and development of land for personal, community and economic purposes.
AANDC personnel carry out provisions of the Indian Act and work with First Nations to:
- Approve the allotment of reserve land to individuals
- Prepare transactions for reserve surrenders and designations
- Manage proposals for additions of land to reserves
- Review and approve transfers of land between band members
- Approve and enforce leases, licenses and permits on reserve lands
The substantial and growing land base of First Nations can be a key ingredient of economic development for some First Nations communities. The establishment of enterprises such as factories, mines or condominiums increases employment and business opportunities for the community.
Both on and off reserve, land management laws and regulations affect how these projects proceed. There are many requirements in the Indian Act that make development difficult and discourage private investment and business activity. In some cases, land available for economic development is limited because a prime site may be subject to an unresolved land claim or is in the process of being added to reserve.
AANDC continues to work with First Nations to change land management laws and regulations. These efforts aim to make it easier for First Nations to carry out economic development projects and have more control over their lands and resources. It is also important to provide First Nations with more tools for land management and planning.
The goal is "opportunity ready" First Nations: communities with stable, efficient and predictable investment climates where economic development projects can operate at the speed of business. Recent initiatives that work toward this goal include the First Nations Commercial and Industrial Act, the First Nations Land Management Act and the First Nations Oil and Gas and Moneys Management Act.
As identified in the Indian Act, reserve land is "a tract of land, the legal title to which is vested in Her Majesty, which has been set apart by Her Majesty for the use and benefit of a band". Reserve lands are different from other land in that:
- Legal title to reserve lands is held by the Crown rather than by individuals or organizations;
- First Nations have a recognized interest in reserve land that includes the right to exclusive use and occupation, inalienability and the communal nature of the interest;
- The land cannot be seized by legal process or be mortgaged or pledged to non-members of a First Nation; and
- The Minister must approve or grant most land transactions under the Indian Act.
Interest in Land
Collective First Nations Interest: A First Nation as a whole has the right to the use and benefit of reserve land. The collective interest of First Nations in reserve lands cannot be transferred to another entity except by following strict statutory provisions.
Interest of Individual First Nations Members: Under the Indian Act, individual members of a First Nation may be given allotments. An allotment is the right to use and occupy a parcel of reserve land. Allotments must be approved by the Band Council and the Minister. Once approved, the individual allotment holder has "lawful possession" of a parcel of land and may be issued a Certificate of Possession as evidence of their right. However, the legal title to the land remains with the Crown.
An individual may transfer his or her allotment to the band or another band member, may lease the allotment to a third party, and may leave the allotment to another band member in his or her will. All these transfers of individual allotments must be approved by the Minister. If the "lawful possession" holder ceases to be a band member, his or her allotment must be transferred to the band or another band member.
Some First Nations do not choose to allot lands to individual band members under the Indian Act. They prefer to allow the use of lands to particular families or individuals through a custom or traditional holding, sometimes referred to as "informal holdings." Some First Nations use a combination of Indian Act and custom or traditional systems.
Non-members of a First Nation cannot hold "lawful possession" of reserve lands. Under the Indian Act, non-members can obtain rights to use or occupy reserve land by entering into leases or acquiring permits or licenses. Leases, permits, and licences must be approved by the Band Council and the Minister and are issued by AANDC.
All allotments, leases, permits and licenses under the Indian Act are registered in the Indian Land Registry System.
For more information see the Lands Management Manual (Chapter 3) (PDF Version, 172 KB, 93 pages)
Designated lands are lands the members of a First Nation have agreed to lease for the purposes set out in the designation. Designated lands remain reserve lands. A designation is voted on by the members of a First Nation according to the rules of the Indian Referendum Regulations. The Minister, acting on the recommendation of the First Nation council, must accept the designation, through a Ministerial Order, for it to become official. As a result of an amendment to the Indian Act in 2012, the authority to accept designations is now with the Minister.
For more information on the amendments, see the Frequently Asked Questions – Amendments to the Land Designation Sections of the Indian Act and related regulations.
For more information on designations, see the Lands Management Manual (Chapter 5) (PDF Version, 133 KB, 47 pages) and the Interim Bulletin for Chapter 5 which provides guidance on the procedural changes that resulted from the Indian Act amendments.
The Minister issues leases to non-band members. Leases are issued on behalf of the First Nation or individuals holding Certificates of Possession, and must comply with all federal laws and First Nation by-laws.
The Minister may lease land in lawful possession of a band member to a third party. Such a lease is sometimes called a locatee lease. The Indian Act does not specifically provide for First Nation input into the issuance of locatee leases. However, the Department recognizes that First Nations have an important interest in the use and development of reserve lands, including those lands that have been allotted to members. The Department gives Band Councils an opportunity to express their views on all proposed locatee leases. For more information see the new Locatee Lease Policy and Directive.
A lease may be subleased to another party. Subleases must follow all of the terms of the original lease (known as the head lease) as well as comply with all federal laws and First Nation by-laws.
For more information see the Lands Management Manual (Chapter 7) (PDF Version, 295 KB, 130 pages).
Please note that Chapter 7 of the Land Management Manual is currently under review.
A permit is the right to use reserve lands in a limited, specific way for a defined period of time. For example, permits are issued for rights of way to run power lines, for agriculture, or to remove clay, sand, gravel or wild timber. While a lease grants exclusive possession of a parcel of land, a permit does not. More than one permit may be issued over the same parcel of land provided the uses are compatible. Permits are approved by the First Nation and issued by the Minister of Aboriginal Affairs and Northern Development.
For more information see the Lands Management Manual (Chapter 6) (PDF Version, 56 KB, 32 pages).
Additions to Reserve
Reserve creation is the process of setting apart land for the use and benefit of First Nations. There are two types of reserve creations:
- New Reserve – the granting of reserve status to land which is not within the area of an existing reserve community.
- Additions to Reserve (ATR) –the granting of reserve status to a parcel of land that is added to an existing reserve of a First Nation. For more information visit our page on additions to reserve.
Land Management Capacity and Responsibility
First Nations with the capacity and responsibility to manage their land are better positioned to attract economic opportunities onto reserves and to support sustainable development for members.
In 2009, through the Federal Framework for Aboriginal Economic Development, AANDC introduced the Reserve Land and Environment Management Program (RLEMP). The RLEMP enhances capacity in First Nations to manage their own lands and resources and to assume responsibility for Indian Act land management activities on behalf of the Minister of Aboriginal Affairs and Northern Development. For more information visit our page on land management capacity.
First Nations Land Management
The First Nation Land Management regime provides certain First Nations with powers to manage their reserve land and resources under their own land codes. The sections of the Indian Act dealing with land, resources and environment no longer apply to First Nations operating under their own land codes. For more information visit First Nations Land Management.
Commercial and Industrial Development
First Nations across Canada are increasingly interested in developing complex commercial and industrial development projects on reserve, such as factories, mines or condominiums. Canada and First Nations share the goal of ensuring such projects are well regulated to protect the environment, as well as health and safety. Yet federal laws do not fully regulate these type of projects on reserve lands.
The First Nations Commercial and Industrial Development Act (FNCIDA) allows the federal government to make regulations for complex commercial and industrial development projects on reserves. Federal regulations are only made under FNCIDA at the request of participating First Nations. The regulations are project-specific, developed in cooperation with the First Nation and the relevant province, and only apply to the particular reserve lands described in the project. For more information visit our page on FNCIDA.
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