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Acts and Regulations SURVEYING IN FIRST NATION LANDS

This webinar covers land administration, survey requirements, and acts and regulations pertaining to First Nation reserves, surface rights, oil and gas rights, mining rights, and lands administered under First Nation Self-Government Agreements.

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Acts and Regulations SURVEYING IN FIRST NATION LANDS

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  1. Acts and RegulationsSURVEYING IN FIRST NATION LANDS

  2. Acts and RegulationsSURVEYING IN FIRST NATION LANDS What is covered in this Webinar? Land administration, survey requirements and acts and regulations pertaining thereto for: • First Nation Reserves • Surface Rights • Oil and Gas Rights • Mining Rights • Canada Lands, South of 60o, administered under First Nation Self-Government Agreements • First Nations Lands Management Act (FNLMA) • Other Lands Administered by Indigenous and Northern Affairs Canada (INAC) Note: Candidates for the Acts and Regulations Examination are required to have knowledge of certain section of several federal and territorial Acts and Regulations. Not all sections of these Acts and Regulations are covered in the webinars.

  3. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1 First Nation Reserves The term “reserve” is defined as “a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band.1 There are over 3,100 First Nation Reserves in Canada mainly in the provinces and 617 First Nations. There are only two in the territories, all in the Northwest Territories. 1. Indian Act, s.2.(1) “reserve’, s.18.(1).

  4. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.1 First Nation Reserves - Surface Rights Land Administration (1/2) • Under the Indian Act1 the Minister of Indigenous and Northern Affairs Canada (INAC) may authorize surveys of reserves and the preparation of plans and reports with respect thereto and divide the whole or any portion of a reserve into lots or other subdivisions. • Surface rights on Reserve lands are administered under the Indian Act by the Lands and Environmental Management Branch, INAC through its headquarters in Gatineau, Quebec and its regional offices and business centres. Contact information is available on the INAC website. • Many First Nations are assuming responsibility for Indian Act land management activities on behalf of the Minister of INAC through the Reserve Land and Environment Management Program (which enables First Nations to manage reserve land by the delegation of authority under sections 53 to 60 of the Indian Act) and through self-government agreements and the First Nations Land Management Act. 1. Indian Act, s.19

  5. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.1 First Nation Reserves - Surface Rights Land Administration (2/2) • The Indian Act provides for a land registration system.1 The Indian Lands Registry System (ILRS) contains land interest documents for Reserve lands, and is accessible online. Link: Indian Lands Registry The Indian Land Registration Manual describes the criteria and procedures for the registration of land interest documents in the Indian Lands Registry System (ILRS). Link: Indian Lands Registration Manual • Another useful manual is ANAC’s Land Management Manual which contains policies, procedures, and information needed to manage Reserve lands. Link: Land Management Manual Does the ILRS differ from a Land Titles System? Yes, although land interests registered in the ILRS refer to plans of survey, the plans are not registered in the ILR. They are recorded in the Canada Lands Survey Records. In a land titles system plans are registered in a land titles office and when they are, as part of the registration process, new titles are issued based on the new plan. 1. Indian Act, s.21

  6. The Indian Lands Registry System (ILRS) contains land interest documents for: • First Nations Reserve lands, ILRS • First Nations under Land Codes, FNLR • Self-Government First Nations, SGLR and is accessible online through 2 different portals: public and internal. • CLS’ can gain access to the internal system by phoning the service desk. • GeoEd has an excellent & free webinar on Indian Lands Registries – how to use and information on contacting the service desk to get access.

  7. Typical procedure for a Survey on a Reserve Typical procedure for a Survey on a First Nation Reserve • Obtain BCR authorization for you to enter the Reserve and perform the survey. • Request survey instructions through MyCLSS. The BCR, a sketch of the proposed survey, land status report and any relevant plans, documents or comments are submitted with the request. • After receipt of survey instructions contact the First Nation with date you will do the survey. • Show the completed survey to a council member, administration member or designated Band member. • Prepare draft plan. • Submit draft plan to the Band for approval in the form of a BCR or a letter from the Land Administrator. • Through MyCLSS submit signed plan, checklist, spatial file and the Band approval to the Surveyor General for checking and Plan number assignment.  • Notify your client of the registered plan details. NOTE - See the webinar “Roles and Responsibilities for the Survey of Canada Lands” for a more detailed outline.

  8. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.1 First Nation Reserves - Surface Rights New Reserves or Additions to Reserves • If the proposed Indian Reserve is provincial lands, the surveys will normally be carried out under provincial legislation in order to transfer the lands to Canada. If the plans are accepted by the Surveyor General Branch, they are recorded in the Canada Lands Surveys Records (CLSR). • If the plan meets official plan standards, it will be confirmed under Section 29 of the Canada Lands Surveys Act. Otherwise it will be approved under Section 31 of the Act.

  9. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.1 First Nation Reserves - Surface Rights Surrenders • Lands in a Reserve shall not be sold or title to them conveyed until they have been absolutely surrendered to Her Majesty.1 Surrenders must be assented to by a majority of First Nation members eligible to vote. • When surrenders occur, they are normally part of a claim settlement or a land exchange. • An explanatory plan is acceptable for the First Nation vote, however the actual land transaction requires an official survey plan. • First Nations are reluctant to absolutely surrender Reserve lands since they do not wish to lose their land base. In the past, whenever possible, surrenders were conditional. Only limited rights were surrendered or the surrender contained a condition that when the land was no longer needed it reverted to the First Nation.2 • Indian Act, s. 37.(1) • Indian Act, s. 38.(1)

  10. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.1 First Nation Reserves - Surface Rights Designations • The Indian Act was amended in the late 1980’s to include the designation provisions which lessened the need for surrenders. The Kamloops Amendment ensures that designated lands are still part of the Reserve and provides a simpler procedure. • A band may, conditionally or unconditionally, designate, by way of a surrender to Her Majesty that is not absolute, any right or interest of the band and its members in all or part of a reserve  for the purpose of its being leased or a right or interest therein being granted.1 • A designation is vote is less rigorous than a surrender vote, requiring that it be assented to only by a majority of the electors of the band voting at a referendum.2 • An explanatory plan may be used for a designation vote and depending on the nature of the interest granted may be acceptable for the land transaction. • Prior conditional surrenders of land are considered designations. • Indian Act, ss. 37.(2), 38.(2) • Indian Act, s. 39.1

  11. Parcel Survey for Designation Vote

  12. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.1 First Nation Reserves - Surface Rights Allotments • Allotment refers to the lawful possession of reserve land from the First Nation council under the Indian Act1; There are two main types of allotment issued to First Nations members under the Act • Certificate of Possession (C.P.) is documentary evidence of a First Nation member's lawful possession of reserve lands.1 It is the highest form of land holding available to an individual First Nation member but it is not equal to fee simple. • Certificate of Occupation is documentary evidence of a First Nation member's right to temporary use and occupation of reserve lands.2 A Certificate of Occupation may be issued when there are conditions to be fulfilled by the First Nation member before the Minister issues a Certificate of Possession. • Allotments require an administrative survey plan. • Sections 20.(2),(3) of the Indian Act. • Sections 20 (4),(5) and (6) of the Indian Act.

  13. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.1 First Nation Reserves - Surface Rights Leases, permits and the like • Land Descriptions are required for: • First Nation reserve lands set aside for “the general welfare of the First Nation” 1 • Commercial, residential and recreational developments leases.2 • Permits for utility services and for grazing or agricultural purposes.3 • Depending on the term and the nature of the interest, administrative plans, explanatory plans or textual descriptions may be used. See the 2015 Interdepartmental Letter of Agreement between Natural Resources Canada and AANDC. • Indian Act, s. 18.(2) • Indian Act, s. 53.(1) • Indian Act, s. 28.(2), 58(4).

  14. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.1 First Nation Reserves - Surface Rights 2015 Interdepartmental Letter of Agreement (1/2) • The type of survey and type of plan required for various land transactions are provided in Schedule A of the 2015 Interdepartmental Letter of Agreement between Natural Resources Canada and AANDC. Link: Interdepartmental Agreement re Land Transactions on Reserve Lands 2014

  15. Notes: • A Compiled Plan prepared under Section 2.7 of the National Standards is equivalent to a Plan of Survey prepared under Sections 2.3, 2.4, or 2.5 of the National Standards. • A parcel shown on a Plan of Survey may be used in place of an Explanatory Plan. • Surveys under this section, for parcels to be removed from Reserve Lands, will create a jurisdictional boundary once the lands are removed and therefore require an Official Plan under Section 29 of the CLSA. • This Plan is intended for Section 35 Indian Act transfers or equivalent. • This includes Section 20 Indian Act allotments, Section 24, 49 and 50 Indian Act transfers, Section 18(2) Welfare of the First Nation interests, and equivalent. • “Lease” includes a head-lease or a sub-lease. The terms of the lease include any renewal or extension provisions contained in the lease. • A lease, permit, or license for 10 years or less may be described by textual description if the Registry feels it is in the best interests of the First Nation, given the circumstances, to do so. Generally an Explanatory Plan is required. Land Administrators should be aware that textually described parcels do not appear on the SGB parcel mapping or eRIP CHART A Interdepartmental Letter of Agreement related to the COOPERATION IN THE AREA OF SURVEYS AND THE SPECIFICATIONS FOR DESCRIPTIONS OF LAND FOR TRANSACTIONS ON RESERVE LANDS.

  16. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.1 First Nation Reserves - Surface Rights 2015 Interdepartmental Letter of Agreement (2/2) As a General Rule in the Interdepartmental Agreement • Surveys of jurisdictional boundaries require plans confirmed under Section 29 of the Canada Lands Surveys Act. In the case of a First Nation Reserve, a jurisdictional boundary is the exterior boundary of the Reserve, including the boundary of a road through the Reserve vested in a province. • Surveys of internal Reserve parcels for which the interest is of an exclusive nature (e.g., for certificates of possession, certificates of occupation, or long-term leases) are generally carried out under Section 31 of the Canada Lands Surveys Act. A monumented survey is required, and the plan will be approved, not confirmed. • Internal Reserve parcels for short-term or limited rights, such as easements and permits, may be described using explanatory plans.

  17. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.2 First Nation Reserves - Oil and Gas Rights Land Administration • Oil and gas subsurface rights and the associated surface rights required for the exploitation of oil and gas on First Nation Reserves, designated lands, or surrendered lands are administered under the Indian Oil and Gas Regulations 1 by Indian Oil and Gas Canada through its offices in Calgary, Alberta. • The Indian Lands Registry System (ILRS) includes land interest documents for oil and gas rights for Reserve lands. Most oil production from First Nations Reserves is in Alberta and Saskatchewan Indian Oil and Gas 2013-2014 Annual Report. 1. Enabling Act is the Indian Oil and Gas Act

  18. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.2 First Nation Reserves - Oil and Gas Rights Survey Requirements (1/2) • Before commencing a survey on a First Nation Reserve for surface rights associated with oil and gas, it must be determined whether the surface rights are being transferred under the Indian Oil and Gas Regulations or the Indian Act. • The Indian Oil and Gas Regulations apply to surface rights for wellsites and other facilities related to drilling and production operations such as tanks, flow lines, and access roads where the facility services resource development within a First Nation Reserve. Surveys for surface rights under the Indian Oil and Gas Regulations are carried out in accordance with Chapter 10: Oil and Gas Surveys on First Nation Reserves, National Standards for the Survey of Canada Lands. • The Indian Act applies for rights granted for pipelines or other facilities that cross Reserves when the pipeline or facility does not service development on the Reserve itself.

  19. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.2 First Nation Reserves - Oil and Gas Rights Survey Requirements (2/2) • The Indian Oil and Gas Regulations provides the authority for the Surveyor General of Canada Lands to provide standards for survey plans required under the regulations and to review and record the plans in the Canada Lands Surveys Records.1 • Surveys under the Indian Oil and Gas Regulations2 are required: • for surface leases where an exclusive right to use or occupy the surface of the lands is required (e.g., for a wellsite); and • For easements or right of ways for access roads and for pipelines to transport oil and/or gas over Reserve lands. • Before a well can be drilled on Reserve lands, a wellsite survey is required to support an application to provincial authorities for a well licence. • Indian Oil and Gas Regulations, s. 40. (1) • Indian Oil and Gas Regulations, s.27.(1)(2)

  20. Plan of Survey of Well Site & Access Road

  21. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.3 First Nation Reserves - Mining Rights Land Administration • Mineral rights and the associated surface rights required for the exploitation of minerals on First Nation Reserves, designated lands, or surrendered lands are administered by the Lands and Environmental Management Branch, INAC . Except in the provinces of Quebec, Prince Edward Island, and British Columbia, the rights are issued in accordance with the Indian Mining Regulations.1 In Quebec and Prince Edward Island, no agreements with Canada were ever reached regarding the disposal of minerals on First Nation Reserves. In British Columbia, an agreement with Canada subjects minerals on First Nation Reserves to provincial control. • The Indian Lands Registry System (ILRS) includes land interest documents for mineral rights for Reserve lands. 1. Enabling Act is the Indian Act

  22. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.1.3 First Nation Reserves - Mining Rights Survey Requirements • Under the Indian Mining Regulations, INAC may require the applicant for a mineral lease to have the boundaries of such lands surveyed by a commissioned land surveyor acting under instructions from the Surveyor General of Canada.1 1. Indian Mining Regulations, s. 21

  23. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.2 Canada Lands, South of 60o, administered under First Nation Self-Government Agreements • The following Canada Lands located south of latitude 60o are administered under First Nation self-government agreements: • Category IA and Category IA-N lands as defined in the Cree-Naskapi (of Quebec) Act; 1 • Sechelt lands as defined in the Sechelt Indian Band Self-Government Act; 1 • Lands in the Kanesatake Mohawk interim land base as defined in the Kanesatake Interim Land Base Governance Act except the lands known as Doncaster Reserve No. 17; 1 and • Westbank First Nation lands as administered under the Westbank First Nation Self-Government Act (these lands remain First Nation Reserves). 1. Canada Lands Surveys Act, s. 24. (1) (a) (ii) (iii) (iv).

  24. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.2 Canada Lands, South of 60o, administered under First Nation Self-Government Agreements Land Administration • These four First Nations administer, manage, and control their lands. At least two (Cree-Naskapi and Westbank) have land registry regulations that specify survey requirements. Land interest documents registered or recorded in a First Nation’s land registry that has been established according to its specific self-government land management act are available in the Self-Governing First Nations Land Registry (SGFNLR) accessed through the online Indian Lands Registry System (ILRS).

  25. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.2 Canada Lands, South of 60o, administered under First Nation Self-Government Agreements Survey Requirements (1/2) 3. These four First Nations have opted to require surveys pursuant to the Canada Lands Surveys Act. 4. The survey requirements are generally similar to those for similar interests on First Nation Reserves. 5. Requirements for specific survey instructions for surveys on lands held under self-government agreements are the same as those for surveys on First Nation Reserves managed under the Indian Act except that authorization to carry out the survey is provided by the First Nation, not INAC.

  26. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.2 Canada Lands, South of 60o, administered under First Nation Self-Government Agreements Survey Requirements (2/2) 6. The Westbank First Nation Land Registry Regulations use the term “registration plan”. Registration plans have been discontinued. They are replaced by administrative plans or explanatory plans depending on the nature of the interest. Refer to Chart A of the 2014 Interdepartmental Letter of Agreement between Natural Resources Canada and AANDC. 1. Westbank First Nation Land Registry Regulation, ss.1,9.

  27. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.3 First Nations Lands Management Act • The 1999 First Nations Lands Management Act (FNLMA) ratified and brought into effect the Framework Agreement on First Nation Land Management. First Nations opting to come under the (FNLMA) adopt a land code that replaces the land management provisions of the Indian Act. • Reserve lands managed by a First Nation under a land code remain an Indian Reserve1 and continue to be Canada Lands as defined by the Canada Lands Surveys Act. 1. Framework Agreement on First Nation Land Management, 2002, s. 4.

  28. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.3 First Nations Lands Management Act Land Administration • A First Nation that opts to come under the FNLMA manages its Reserve lands under its land code. • The First Nations Land Registry Regulations1 provide for the operation of the First Nation Land Register and the registration of interests or rights in the registry. Land interest documents registered in the First Nation Land Registry are available in the First Nation Land Registration System (FNLRS) accessed through the online Indian Lands Registry System (ILRS). 3. A great source of information on FNMLA can be found on the First Nations Land Management Resource Centre website at www.labrc.com 1. First Nations Land Registry Regulationsis pursuant to subsection 25(3) of the First Nations Land Management Act.

  29. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.3 First Nations Lands Management Act Survey Requirements (1/2) • Canada Lands Surveyors working on FNLMA lands should consult the First Nation about its survey requirements and familiarize themselves with the First Nation’s land code. As of mid 2018, 80 First Nations have land codes1 and there are also 59 in the development stage. They mostly are in BC, Saskatchewan, Manitoba and Ontario and many others are in development stage. As of late 2013, three land codes stated that surveys may be made in accordance with the Canada Lands Surveys Act and four have a specific provision in their land codes stating that their councils may make laws regarding the conduct of surveys. There were no specific provisions for other First Nations having land codes under the FNLMA but it appears that the First Nations’ powers are broad enough to include making laws about surveys on those lands. 1. Indigenous and Northern Affairs Canada website

  30. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.3 First Nations Lands Management Act Survey Requirements (2/2) • Each First Nation under the FNLMA may have unique requirements regarding the conduct of surveys and land registration in there own registry. However, if the interests are to be registered in the First Nation Land Registry System (FNLRS), survey and plan types must comply with the First Nations Land Registry Regulations. • The requirements for surveys are generally the same as for surveys of First Nation Reserves managed under the Indian Act (see Chart A of the 2014 Interdepartmental Letter of Agreement between Natural Resources Canada and AANDC). Authorization to carry out a survey is provided by the First Nation, not Indigenous and Northern Affairs Canada. • The First Nations Land Registry Regulations use the term “registration plan.”1 Registration plans have been discontinued. They are replaced by administrative plans or explanatory plans depending on the nature of the interest. Refer to Chart A of the 2014 Interdepartmental Letter of Agreement between Natural Resources Canada and AANDC. 1. First Nations Land Registry Regulations, ss. 1,9,18.

  31. Acts and RegulationsSURVEYING IN FIRST NATION LANDS 2.4 Other Lands Administered by INAC • Federal real property (non Canada lands) may be administered by INAC for First Nation communities. These properties are not First Nation Reserve lands, designated lands, or surrendered lands. • Normally surveys of these lands are normally carried out under provincial legislation. • However under the Canada Lands Surveys Act,1 the Minister of Natural Resources Canada ‘‘may, if in his opinion a survey thereof under the management of the Surveyor General is required, cause a survey to be made of any lands belonging to Her Majesty in right of Canada or of which the Government of Canada has power to dispose….” 1. Canada Lands Surveys Act, s. 47.(1)

  32. End of Presentation Power Point Deck prepared by: Gordon Olsson, CLS, ALS (Hon Life) 2015-09-30 golsson@shaw.ca Updated by Marie C. Robidoux , CLS & Doug Dodge, BCLS, CLS 2018-07-12

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