Taking an Interest in Aboriginal Lands


1. Definitions


The Indian Act, 1876 (“Indian Act”) defines a reserve as “any tract or tracts of land set apart by treaty or otherwise for the use or benefit of or granted to a particular band of Indians, of which the legal title is in the Crown, but which is unsurrendered, and includes all the trees, wood, timber, soil, stone, mineral, metals, or other valuables thereon or therein.”1

2. Reserves are Unique

According to the Department of Indigenous and Northern Affairs Canada, reserves differ from other land in that:2

1. The Crown holds legal title to reserve lands;
2. Aboriginals have a recognized interest in reserve lands. They have the right to exclusive use and occupation;
3. Reserve lands cannot be mortgaged or pledged to non-Aboriginals; and
4. Most land transactions must be approved by the Minister as per the Indian Act.


3. Individual Interests in Reserve Lands

Although the Crown holds legal title to reserve lands, the Indian Act allows individual members of an Aboriginal band to be given an allotment, which is the right to use and occupy an area of reserve land.1 Approval must first be obtained from the Band Council and the Minister of Aboriginal Affairs and Northern Development (the “Minister”), after which an individual will be considered to have lawful possession of the parcel of land.2

Non-Aboriginal individuals are not allowed to hold lawful possession of reserve lands, although they may enter into leases or acquire permits or licenses to obtain rights to use or occupy reserve land. The Band Council and the Minister must approve the leases, permits and licenses.2

4. Obtaining a Lien or Charge on Real Property Located on Reserve Land

According to section 66 of the Indian Act, “no person shall take any security or otherwise obtain any lien or charge, whether by mortgage, judgement or otherwise, upon real or personal property of any Indian or non-treaty Indian within Canada, except on real or personal property subject to taxation.” Real or personal property is subject to taxation if the property is located outside the reserve.1

Section 66 also stipulates however, that “any person selling any article to an Indian or non-treaty Indian may, notwithstanding this section, take security on such article for any part of the price thereof which may be unpaid.”1

1. Parliament of Canada. Chap. 18 – An Act to amend and consolidate the laws respecting Indians [Internet]. 1876 [cited 2016 Aug 22]. Available from: http://www.aadnc-aandc.gc.ca/eng/1100100010252/1100100010254
2. Government of Canada, Department of Indigenous and Northern Affairs Canada. Land management [Internet]. 2013 [cited 2016 Aug 22]. Available from: https://www.aadnc-aandc.gc.ca/eng/1100100034737/1100100034738