Reserve lands were allotted to First Nations. The title and jurisdiction of these reserve lands was removed from First Nations through the first three mechanisms below and the last two formalized this transfer of title and jurisdiction:
As the Dominion of Canada was being formed a policy decision was made to prevent First Nations from having title to their lands. Subsequently, in 1839, an Upper Canada statute classified Indian lands as “Crown Lands”. In 1841, then Governor-General, Lord Sydenham (Charles Poulett Thomson), stated: “…He [the Indian] occupies valuable land, unprofitably to himself and injurious to the country. He gives infinite trouble to the Government and adds nothing either to the wealth, the industry, or the defense of the Province.” In 1850, an Act was passed that vested all Indian land and property located in Lower Canada in the Commissioner of Indian Lands.
The Constitution Act, 1867 allocates title to land between the provincial Crown and federal Crown. Section 109 of that Act allocated to each province all lands, mines, minerals, and royalties within its boundaries, subject to any interest other than the province. The Constitution Act also allocated all legislative powers to the two orders of government. The Federal powers are set out in section 91, and include “Indians and lands reserved for the Indians” (s. 91.24). The provincial powers are set out in section 92, and include natural resources (92(5)) and property and civil rights (s. 92(13)). The Constitution was amended in 1930 to extend section 109 land rights to the Prairie Provinces to provide clarity about land and resources. It was amended again in 1982 to entrench the Canadian Charter of Rights and Freedoms and to recognize and affirm “existing aboriginal and treaty rights of the aboriginal peoples of Canada” (s.35).
The Indian Act defines a reserve as: “a tract of land, the legal title to which is vested in Her Majesty… set apart by her Majesty for the use and benefit of a band.” This means the Crown holds the legal title to reserves. This created some confusion as the Provinces have the land and property rights under section 109 of the Constitution. As a result, it is not always clear if it is the provincial Crown or federal Crown that holds the title to reserve lands.
In BC, the federal Crown holds the legal title because Order in Council 1036 transferred the provincial title to reserves to the federal government. This did not happen in other provinces, which means that in some cases provinces may hold the title to reserves.
Provincial governments set up land title registries to register and record lands, and to record land transfers and property interests. All property interests are registered in the land title system and, if it is a Torrens system, registration guarantees the owner’s fee simple title. The provincial land title legislation also forms the foundation for other provincial legislation that forms the basis for property rights in the province. As an example, at least 50 pieces of legislation in BC are connected to the Land Title Act and the Land Title Registry. In contrast, the Indian Land Registry System (ILRS) is a mechanism to store interests in Indian Land. It does not guarantee or secure property rights and does not connect to other legislation except loosely to the Indian Act.