Indian Reserves and First Nations Lands

First Nations have become an increasingly important player in watershed management in B.C.  They control significant amounts of land, either directly or through their traditional claims to territory, and the law as to their rights and powers continue to involve.  First Nations and other aboriginal groups can take the initiative in developing plans for the land under their control. 

For many of BC’s First Nations the western concept of ownership of land was not traditional.  In addition, the historical position of First Nations in Canadian law was that of a ward of the state, incapable of holding land on their own behalf. 

However, today there are at least three types of First Nations Lands that come close to ownership under Canadian law:

·         Indian Reservations

·         Aboriginal Title Lands and Traditional Use Lands

·         First Nations Private Lands

Indian Reservations

Under the Constitution Act, 1867, the federal government has powers over “Indians and Indian Lands”.  One of the early acts of government in B.C. (first the BC colonial government and then the federal government after 1871 when B.C. joined Canada) was to allocate reservations, or reserves, for First Nations.  Reservations were usually a main village site or other land important to the First Nation. 

In many cases reserve sizes were reduced by various governments (in some cases illegally) and other lands of importance to First Nations were never included in the reserves. 

Under the Indian Act First Nations became defined in terms of which reservation they lived on; a “band” is defined as the community of Indians that lives on a reserve, with a Chief and Council recognized as the government of a Band. 

Technically (and certainly historically) a reserve is federal land held in trust for the First Nation.  In practice, however, First Nations Governments have a level of control over their reserves approaching that of a communal ownership (subject to a level of federal government oversight). 

Several federal laws govern Reserve Lands.  These include:

·         Indian Act – Sets up the Government of the Band, and defines its powers;  the Indian Act is overseen by the federal government’s Indian and Northern Affairs Canada (INAC).

·         First Nations Land Management Act – An Act which allows First Nations and the Minister of Indian and Northern Affairs to negotiate an agreement giving the First Nation broader powers over land management on their reserve. 

·         Indian Oil & Gas Act and British Columbia Indian Reserves Mineral Resources Act – Two Acts which set rules for the exploitation of resources on Indian Reserves. 

·         Acts for individual First Nations – There are also a small number of special acts changing the powers of other First Nations governments.  These include the Nisga’a Final Agreement Act and the Sechelt Indian Band Self-Government Act.

Aboriginal Title Lands and Aboriginal Use Lands

When the British first arrived in British Columbia they acted as if the First Nations of the province did not have any real government or laws.  With a few notable exceptions, they asserted a claim over the land in the same way they would have done if it were uninhabited, ignoring the presence of First Nations except when they became inconvenient.

The First Nations, of course, objected when their land was taken away and they were forced onto reserves.  However, in the end their concerns were ignored, and a law passed preventing them from raising money to protest the injustice. 

But under British law, which Canada inherited, the customs and laws of an indigenous people continue to have legal effect until a government passes new laws.  Over the past few decades it has been established that neither the British Columbian or the Canadian governments have ever passed valid laws removing the rights of First Nations peoples to their land.  Indeed, the Constitution Act, 1982, now guarantees (subject to a limitation inferred by the judges) that such rights will not be interfered with. 

The exact rights held by a First Nation depend upon how the land in question was used and what role it played in the culture of the individual First Nation.  However, commonly held First Nations rights to land include:

·         Aboriginal Title – Land that is owned by the First Nation as a community.  It cannot be sold (except to the federal government), and cannot be destroyed, but otherwise the First Nation has the power to say what happens to and on that land. 

·         Aboriginal Use Rights – Even if a First Nation does not own land outright, its members may have the right to use the resources on a particular piece of land – whether that be a right to hunt, a right to gather certain plants, or a right to use it as a spiritual place. 

These types of lands will generally not be marked on a map.  The First Nations generally have their own idea of what areas are (or should) be covered by aboriginal title and rights, but government’s idea is often very different.  Since First Nations did not keep written ownership records, it’s hardly surprising that there’s some dispute.  The exact extent to which aboriginal title and use rights will be recognized by the courts has to be decided on a case by case basis (or resolved through negotiation between the First Nation and the federal and provincial governments). 

These concepts are discussed in more detail on the aboriginal rights page of the guide. 

One tool that may be useful on lands which have traditionally been used by a First Nation is the province’s Heritage Conservation Act.  The Heritage Conservation Act is designed to protect archeological sites, including culturally modified trees and other evidence of traditional use of natural resources. 

Private First Nations Lands

There is nothing stopping a First Nation from buying private land.  Also, the federal and provincial governments are currently negotiating treaties with many First Nations, and the expectation is that many of these treaties give the First Nation private lands. 

A First Nation that owns private land has the same rights and responsibilities that any private land owner does. 

Related Guide pages:

·         First Nations Self Government

·         Aboriginal Rights and Title

·         Aboriginal Planning Processes

For more information about Indian Reserves and First Nations Lands:

·         Indian and Northern Affairs Canada – The federal department responsible for the Indian Act.  

·         Union of BC Indian Chiefs (UBCIC)

·         Bill’s Aboriginal Links – A website of legal and non-legal links about aboriginal issues in Canada and the U.S.