The recognition of aboriginal title and its relationship with settler state land titles systems.
This paper is the first step in a larger project that considers two linked questions. The first question is whether it is possible to create space for Aboriginal title within settler state land titles systems. The second question is whether it is possible to preserve the integrity of indigenous conceptions of property within settler state land titles systems. We are concerned in this paper with only the first question. The premise of the project is that in at least some cases indigenous communities may want to take advantage of the settler state's land titles systems. One reason for doing so may be to facilitate economic development by community members or third parties by providing financial institutions with access to a familiar method for taking and recording security in Aboriginal title land. Our goal is not to make a case for registration. Instead, our project is the more limited one of assessing the objections that may be made to bringing Aboriginal title lands into the land titles system of the settler state, either from the perspective of the settler state or from the perspective of indigenous communities.
From the perspective of the settler state there has long been an assumption of profound incompatibility between its land titles systems and Aboriginal title. For example, some courts have held that an Aboriginal title cannot support a caveat in a Torrens land title system because an Aboriginal title exists outside the ambit of land titles statutes. (1) Furthermore, it seems to be widely assumed that Aboriginal title must first be converted to the fee simple of the common law before it can be registered. (2) It is possible that long-standing common law doctrines such as the doctrine of tenures, the doctrine of estates and the idea of the Crown's radical title make it all too difficult to contemplate how Aboriginal title can exist in the settler state land title system. (3)
From the perspective of indigenous communities, the concern that has been expressed is that in order for registration of Aboriginal title to occur within the land titles system of the settler state, something will be lost in the translation. It is thought that the settler state land title system will not, and cannot, capture the nuances of and relationships inherent in Aboriginal title. (4)
This paper addresses two sets of issues as part of our first broad question. The first set of issues examines how the Canadian state has recognized Aboriginal title to date. This line of inquiry focuses on the terms of modern land claim agreements, although the final section of the paper deals with the implications of a judicial declaration of Aboriginal title. At the time we presented this paper at The Law on the Edge Conference in July 2013 we had yet to see a decision of a Canadian court recognizing an Aboriginal title to a specific parcel of land or territory in a dispositive manner, (5) but as we were finalizing it for publication the Supreme Court of Canada rendered its decision in Tsilhqot'in and a unanimous Court granted a declaration of Aboriginal title in favour of the Tsilhqot'in Nation. (6)
The second set of issues examines how these various types of recognition deal with the relationship between Aboriginal title and the land titles systems of the settler state. Thus the inquiry at this stage is evidence-based. We want to know the terms on which the Canadian legal system has recognized Aboriginal title to date and we want to know to what extent and how that recognition has allowed Aboriginal title to occupy a space within the land titles systems.
We are interested in land titles systems rather than deeds registry systems because of the explicit role that the state plays in the former. The defining features of a land titles system (as opposed to a deed registry system) include a state-administered register of interests in land, a state guarantee of the indefeasibility of some of those registered interests, and an assurance fund or comparable provision for compensation. (7) Parties submit all documents that create or transfer interests in land to the land titles office. They rely on the state's certificate of title as evidence of all valid interests in the land described in the title. Once an interest is registered, its owner has an indefeasible title, guaranteed by the state and secure against all prior interests. (8) The state indemnifies those who are deprived of interests in land through the workings of the system and those who suffer loss through the state's administration of the system through an assurance fund. (9)
The land titles systems of western and northern Canada are versions of the Torrens land titles system devised by Sir Robert Torrens in South Australia in the mid-1800s. (10) These Torrens jurisdictions--the Yukon, Northwest Territories, Nunavut, British Columbia, (11) Alberta, Saskatchewan, and Manitoba--include jurisdictions where Aboriginal title has been recognized as part of modern land claim agreements. There are two different systems in Ontario: an older deed registry system, and a newer land titles system that is similar to the Torrens system. (12) Both New Brunswick and Nova Scotia have recently introduced land titles systems to replace their deed registry systems. (13) This paper is thus relevant to the recognition of Aboriginal title in all Canadian provinces except Quebec, Prince Edward Island, and Newfoundland and Labrador, as these three provinces have deed registry systems that do not create or confer rights in land. (14)
Part II of the paper offers a possible typology for thinking about the recognition of Aboriginal title and the interactions of a recognized title with land titles system of the settler state. We propose five different forms of "recognition" (15) that we have derived from current practice. These five forms of recognition are: (1) recognition through inclusion in settler state land titles systems, (2) recognition through inclusion in settler state land titles systems with modifications, (3) recognition through parallel land titles systems, (4) recognition by agreement, and (5) recognition by judicial declaration. For each type we identify the key characteristics of the form of recognition and then provide an example. In Part VII we offer some conclusions based on this examination, as well as an outline of further research required in order to complete our analysis of the two broad questions that interest us: whether it is possible to create space for Aboriginal title within settler state land titles systems, and whether it is possible to preserve the integrity of Aboriginal conceptions of property within settler state land titles systems.
II. RECOGNITION THROUGH INCLUSION IN SETTLER STATE LAND TITLES SYSTEMS
The first model that we have identified is the recognition of Aboriginal title through its inclusion within the property system of the settler state. (16) In Canada this model is typically effected by the terms of a modern land claim agreement. Examples include the Inuvialuit Final Agreement, the Nunavut Final Agreement, the Gwich'in Final Agreement, and the Sahtu Final Agreement. (17)
The "recognition through inclusion" model has four main characteristics: (1) surrender or extinguishment of Aboriginal property interests, (2) a description of the ownership interest of the indigenous party to the agreement using the property categories of the settler state, (3) surveys of lands, title to which is held by the indigenous party to the agreement, and registration of those surveyed lands within land titles office established by laws of general application, and (4) provisions that address the alienability of the indigenous title lands. We will say a few words about each of these characteristics using examples taken from the Nunavut Final Agreement.
A. THE SURRENDER OR EXTINGUISHMENT PROVISION
Modern land claim agreements that include surrender or extinguishment clauses are generally premised on a particular vision of certainty in which the title of both parties to the agreement--the Crown and the indigenous community--is to be clarified. (18) In the case of the Nunavut Final Agreement this approach is reflected in both the preamble to the agreement, (19) and the operative clauses, in particular, Part 7 of Article 2 headed "Certainty". The surrender clause provides in part that:
... Inuit hereby:
cede, release and surrender to Her Majesty The Queen in Right of Canada, all their aboriginal claims, rights, title and interests, if any, in and to lands and waters anywhere within Canada and adjacent offshore areas within the sovereignty or jurisdiction of Canada[.] (20)
The surrender thus extends to those lands that are later recognized in the agreement to be Inuit owned lands.
B. DESCRIPTION OF THE INDIGENOUS OWNERSHIP INTEREST
It is characteristic of this model that the agreement defines the indigenous property interest that is "clarified" as a result of the agreement entirely in terms of the property rules of the settler state. (21) This is true not only of the title that is recognized to reside with the indigenous community or some corporate agent of that community, but also in the conceptual apparatus and property language of the settler state which permeates the entire agreement. (22) Most of the agreements that fall within this grouping create two main form of indigenous title. One form of the title is defined in terms of both surface rights and subsurface rights. (23) A second and geographically more extensive form of the title is confined to surface rights. The relationship between the surface and subsurface title is informed by the default rules of the common law settler state in which the mineral estate dominates the surface estate with the implication that the mineral owner does not require the consent of the surface owner before exploiting the resource. (24) These ideas are all reflected in the Nunavut Final Agreement. The two forms of title are described as follows:
Inuit Owned Lands shall be held in either of the following forms:
(a) fee simple including the mines and minerals that may be found to exist within, upon or under such lands; or
(b) fee simple saving and excepting the mines and minerals that may be found to exist within, upon or under such lands, together with the right to work the same[.] (25)
The relationship between the surface estate and mineral estate is complex and several provisions of the agreement deal with this relationship in an effort to ameliorate the full implications of the default rules of the common law. For example, Parts 7 and 8 of Article 21 of the Nunavut Agreement contemplate a party with a mineral interest requiring either Inuit consent or an order of a surface rights tribunal before exercising rights to explore, develop, produce, or transport materials. Compensation must be paid to the Inuit owner based on a number of factors listed in the agreement, including not only market value and loss oi use, but also "the cultural attachment of Inuit to the land" and "the peculiar and special value of the land to Inuit". (26)
C. SURVEYS AND REGISTRATION
This group of agreements addresses the need for surveying indigenous lands that are titled to the indigenous community, as well as the registration of those interests within the land title system of the settler state. For example, section 19.3.4 of the Nunavut Agreement provides that:
The registrar shall record the fact of the vesting of title in the DIO (27) of the Inuit Owned Lands referred to in Section 19.3.1 as soon as possible after the date of ratification of the Agreement. (28)
This is sufficient to address the interim protection of the lands but it is not itself sufficient to bring the Inuit Owned Lands within the land titles system of the territory. This is accomplished by a series of clauses that provide for the preparation of map plans for all Inuit Owned Lands and in some cases formal legal surveys. (29) Once approved by both parties the map plans become the property descriptions of the Inuit Owned Lands, replacing the initial descriptions included in the agreement. And then, in section 19.8.5:
Upon delivery ... of any descriptive map plan for any parcel of Inuit Owned Lands that vests under Section 19.3.1 or Sub-section 19.4.1(a), the Minister shall deposit with the registrar a notification that the parcel of Inuit Owned Lands has been vested in the DIO and this notification shall be accepted by the registrar and dealt with in all respects, including the issuance of a certificate of title, as if it were letters patent in favour of the DIO, even if there is no plan of survey and regardless of the size of the parcel. (30)
This is sufficient for the lands in question to be brought within the Land Titles Act of Nunavut. (31)
D. RESTRICTIONS ON ALIENATION OF INDIGENOUS TITLE LANDS
These types of agreements typically impose some sort of restriction on the freedom of alienation of the indigenous title holder. For example, the Nunavut Final Agreement provides that title to Inuit Owned Lands "shall not be conveyed, transferred or otherwise disposed of" except to another Designated Inuit Association or to government. (32) The agreement goes on to provide that this prohibition "shall not be construed as preventing the grant of leases, licences or any other interest less than fee simple title". (33)
It is fairly evident that this form of "recognition" of indigenous property interests is entirely compatible with the registration of these titles within the land titles system of the settler state. In fact, in its relationships with the property system of the settler state, the indigenous property interest is effectively erased. It does not follow from this that the indigenous property interest is lost for all purposes. Indigenous norms may still play a role internally in determining who may be able to use particular lands or access particular resources. These issues are not dealt with in the agreement, nor are they dealt with on the face of the title documents. The principal accommodation that the land title system of the settler state makes is to allow certificates of title to issue to the indigenous party notwithstanding the absence of a survey and notwithstanding the size of the parcel. However, this result is achieved not by amending the land titles legislation but by according agreements such as the Nunavut Final Agreement the force of law. Once registered, the land title of the indigenous owner will in general be subject to all of the rules and provisions of the laws of general application, including, for example, the provisions of the land titles acts relating to the assurance fund. (34) The only qualifications on this general proposition arise from the terms of the land claims agreement itself. For example, one result of the restrictions on alienation contained in the Nunavut Final Agreement must be that the registrar has a duty not to register a transfer in registrable form that purports to transfer an estate in fee simple of Inuit Owned Lands from a Designated Inuit Association to a transferee who is not another Designated Inuit Association or another government. Furthermore it seems likely that, even if registered, the transferee could not take a good title. (35)
III. RECOGNITION THROUGH INCLUSION IN THE SETTLER STATE LAND TITLES SYSTEMS WITH MODIFICATIONS
The second model for the recognition of Aboriginal title continues indigenous property rights subject to some modification to allow the title to be included within the property system of the settler state. This model also expressly recognizes that the indigenous community may elect to create a parallel registration system rather than relying on the registry system of the settler state. The Nisga'a Final Agreement, Tsawwassen First Nation Final Agreement, Maa-Nulth First Nations Final Agreement, and Lheidli Final Agreement are examples of this second model in the modern Canadian land claim context. (36) All of these agreements relate to First Nations in British Columbia and, with the exception of the Nisga'a Final Agreement, these agreements are a product of the BC Treaty Process established by agreements between Canada, British Columbia, and the First Nations Summit in 1992. (37)
The "recognition through continuation and modification model" has four main characteristics: (1) the provision of certainty in relation to the land; (2) a description of the ownership interest of the indigenous party to the agreement using the property categories of the settler state, with modifications that blur the characteristics of those two property categories; (3) provisions for the registration of those lands within the land titles office established by laws of general application; and (4) provisions that modify the effect of registration. As was the case with the first model, we will say a few words about each of these characteristics, this time using examples taken from the Nisga'a Final Agreement.
A. CERTAINTY AND CONTINUATION OF RIGHTS
Unlike the first model, the second model of modern land claim agreements does not include a surrender or extinguishment clause. Rather, as the Parties make clear in the preamble to the Nisga'a Final Agreement, this type of agreement is "based on a new approach to mutual recognition and sharing, and to achieve this mutual recognition and sharing by agreeing on rights, rather than by the extinguishment of rights". (38) On the understanding that extinguishment clauses aim to attain certainty, this model obviates the need for them by instead weaving certainty as the central thread throughout the agreement, (39) thereby creating a "fabric of certainty." (40) In so doing, these agreements also provide for the continuation, with modification, of the rights recognized within the agreement.
The Nisga'a Final Agreement achieves certainty in several ways. First, the Preamble states that the intention of the parties is to "provide certainty with respect to ownership and use of lands and resources, and the relationship with laws, within the Nass Area". (41) In addition, the Nisga'a Final Agreement "exhaustively sets out the Nisga'a section 35 rights, the geographic extent of those rights, and the limitations to those rights" including "the aboriginal rights, including aboriginal title, as modified by [the] Agreement" together with the jurisdictions, authorities, and rights of Nisga'a Government. (42) The Parties agree not to challenge the validity of any provision of the Agreement. (43) Finally, "as a precaution," (44) the Nisga'a Final Agreement includes a release by the Nisga'a Nation of any Aboriginal right, including Aboriginal title, "that is other than, or different in attributes or geographical extent from" the rights set out in the Agreement. (45)
While a release of rights may, by itself, connote effective extinguishment, (46) the Nisga'a Final Agreement explicitly provides that "the aboriginal rights, including the aboriginal title, of the Nisga'a Nation, as they existed anywhere in Canada... including their attributes and geographic extent, are modified, and continue as modified, as set out in [the] Agreement." (47) Other agreements within this model make similar provision. (48) As a result, where Aboriginal rights are recognized in the Nisga'a Final Agreement, these rights are not released. This makes it clear that the pre-existing Aboriginal rights, including title, are continued, albeit in a modified form. (49) In so doing, the "Modified Aboriginal Rights Approach" (50) also makes clear that these rights are a continuation of pre-existing indigenous rights and do not in any way derive from the Crown. (51)
B. DESCRIPTION OF THE INDIGENOUS OWNERSHIP INTEREST
Despite the apparent continuation of Aboriginal title, the indigenous property interests in this model are "modified" so as to be defined in terms of the property rules of the settler state. This means, as with the first model, that the title held by the indigenous community is to a fee simple estate, and the property language of the settler state also permeates this model of agreement. (52) This model of agreement has two forms of indigenous title. The main form of title includes both surface and sub-surface ownership and is land over which the First Nation has law-making authority. (53) A second form of title may or may not include subsurface ownership and law-making authority. In the context of the Nisga'a Final Agreement, these two main forms of title are referred to as "Nisga'a Lands" (54) and "Nisga'a Fee Simple Lands" respectively. (55) In both of these categories of lands, the modification to title occurs through its translation into the language of the settler state. (56) In relation to Nisga'a Lands, the Nisga'a Final Agreement states that "the Nisga'a Nation owns Nisga'a Lands in fee simple, being the largest estate known in law." (57) As the name suggests, Nisga'a Fee Simple Lands are also held in fee simple. (58)
In this form of agreement, modifications also occur in the rights associated with Aboriginal title as conceptualized by the common law, (59) so as to allow for the alienation of fee simple estates to third parties without an initial surrender to or consent of the Crown. In this regard, the Nisga'a Final Agreement provides:
In accordance with this Agreement, the Nisga'a Constitution, and Nisga'a Law, the Nisga'a Nation may:
a) dispose of the whole of its estate in fee simple in any parcel of Nisga'a Lands to any person; and
b) from the whole of its estate in fee simple, or its interest, in any parcel of Nisga'a Lands, create, or dispose of any lesser estate or interest to any person ...
without the consent of Canada or British Columbia. (60)
However, such a disposition does not sever the First Nation's relationship with the land in this group of agreements because such lands remain Nisga'a Lands. (61) This provision ensures that the law making authority held by the Nisga'a over Nisga'a Lands is not diminished by disposition of parcels of these lands. Other agreements within this group contain provisions to similar effect.
One possible consequence of modifying indigenous titles to fit within the settler state's doctrine of estates is to invite the companion doctrine, the doctrine of tenure and, most particularly, the last real vestige of this doctrine, escheat. This group of agreements anticipates this problem explicitly by providing that the Crown must transfer any escheated land to the First Nation. (62) There are two important implications. First, the negotiators evidently recognized the risk that the use of common law terminology carries with it a certain amount of doctrinal baggage. Second, the negotiators resolved the issue pragmatically by simply agreeing to change the result that would ordinarily follow from applying the common law rules.
C. SURVEYS AND REGISTRATION
As with the first model of agreement, the continuation and modification agreements also provide for surveys of indigenous lands that are titled to the indigenous community. (63) However, these types of agreements differ as to whether registration of those interests within the land title systems of the settler state automatically follows from the survey of these lands. In some agreements within this model, such as the Tsawwassen First Nation Final Agreement, the interests of Tsawwassen First Nation in Tsawwassen Lands and Other Tsawwassen Lands are registered in the settler states Land Title Office on the effective date of the agreement. (64) Other agreements, such as the Nisga'a Final Agreement and the Lheidli T'enneh Final Agreement, require instead an application from the indigenous nation for the registration of title under the title system of the settler state. For example, under the Nisga'a Final Agreement, the Nisga'a Lands will be registered under the British Columbia Land Title Act (65) only on application of the Nisga'a Nation. (66) Unless such an application is made, the Land Title Act does not apply to any parcel of Nisga'a Land. (67) When such an application is made, the Nisga'a Nation must provide a Nisga'a Certificate, setting out all the subsisting reservations, conditions, etc., as well as any estates, interests or outstanding charges to which the estate in fee simple of the parcel is subject. (68) The Registrar must only register the title if satisfied that the Nisga'a Nation holds "a good safe and marketable title in fee simple" for the parcel of land and all estates, (69) the boundaries of the parcel are sufficiently defined, and all the estates, interests, or other charges or interests set out in the Nisga'a Certificate are registrable as charges under the Land Title Act. (70) However, the Registrar is entitled to rely on, and is not required to make any inquiries relating to the estates, interests, and charges certified in the Nisga'a Certificate provided by the Nisga'a Nation upon application for registration. (71)
D. MODIFIED EFFECT OF REGISTRATION
If indefeasible title is registered, the resulting protections may not be entirely compatible with those otherwise afforded the holder of an indefeasible title within the land titles system of the settler state. In the Nisga'a Final Agreement, for example, there are some significant differences. First, upon registration of indefeasible title to a parcel of Nisga'a land, a notation will be made on the title indicating that the parcel is Nisga'a Land and "may be subject to conditions, provisos, restrictions, exceptions and reservations in favour of the Nisga'a Nation". (72) Further, a person deprived of an estate or interest as the result of the issuance of an indefeasible title by the Registrar in reliance on a Nisga'a Certificate has no action, at law or in equity, for possession or recovery of the land against the Registrar, the Assurance Fund, or any other person unless certain exceptions relating to fraud, forgery, or the acquisition of title without value are available. (73) Following on from this provision, the British Columbia Land Title Act states:
The assurance fund or the minister as nominal defendant is not under any circumstances liable for compensation for loss, damage or deprivation
(g) if the loss, damage or deprivation arises out of a matter in respect of which the registrar is by any Act or law not required, either expressly or by necessary implication, to inquire [.] 74
Specific to the Nisga'a Final Agreement, the British Columbia Land Title Act further provides:
In addition to the limits of liability established under sections 294.6 and 303 [which limit liability of the access of compensation funds generally], neither the assurance fund under Part 19.1, nor the assurance fund under Part 20, nor the Land Title and Survey Authority nor the minister is, under any circumstances, liable for compensation for loss, damage or deprivation occasioned by an ultra vires or unlawful act of the Nisga'a Lisims Government or Nisga'a Village Government or by the improper use of the seal of either of them. (75)
These limitations on liability reflect the fact that the registered title to Nisga'a Land derives from the continuation of indigenous property interests, rather than by way of grant or patent of the settler state, together with self-governance arrangements that may impact the estate or interest held by the registered owner. While prepared to make room for these titles, the settler state is not prepared to guarantee title.
Whether indefeasible title is issued either automatically or on application of the indigenous nation, this second model also authorizes the indigenous nation to apply for the cancellation of the indefeasible title held under the settler state land title systems to a parcel of land over which they retain law-making authority. For example, the Nisga'a Final Agreement states that the Nisga'a Nation can apply for cancellation of indefeasible title for Nisga'a Land. (76) When such a cancellation occurs, the land title system of the settler state no longer applies. The ability to withdraw land from the settler state land title system in this way, together with the law-making ability to establish and operate a land registry system in respect of these lands, makes space for the creation of a parallel system.
IV. RECOGNITION THROUGH PARALLEL TITLE SYSTEMS
The third model identified involves the recognition of Aboriginal title through a parallel land title system, outside that established for property interests of the settler state. Parallel title systems exist for a variety of reasons. In some instances, the indigenous property interests are not defined in terms of the property rules of the settler state, and room has not been made for the registration of these interests within the settler state land title systems. When this occurs, parallel land registry systems have been used to fill the resulting legal space. In different ways, the Maori Land Court records in New Zealand, (77) the Aboriginal Affairs and Northern Development Canada land registries, (78) and the Metis Settlement Land Registry in Alberta (79) provide examples of this type of parallel system. Their existence can be explained in large part because they accommodate interests otherwise unknown to the settler state. For example, rather than following a recommendation that Metis settlement land parcels be registered in Alberta's Land Titles Act? (80) the Metis Settlements Act provides for the creation of a separate land registry. (81) Although this registry is operated by the government of Alberta, commentators explain the decision to create a separate land registry on that basis that the land title system of the settler state "does not accommodate the particular types of title and interest that are considered appropriate for the Metis communities." (82) In addition, the creation of a separate registry for Metis settlement lands allows for "local monitoring and control over the creation of interest in, and development of, settlement lands" as well as a means of "providing remedies consistent with the concept of collective ownership in the settlement area." (83)
In other instances, indigenous nations with law-making authority over their lands have elected to create a parallel system, despite the possibility of adopting the settler state title system. Many modern day land claim agreements, including the "continue and modify" model discussed in Part III, recognize the right of the indigenous nation to withdraw from the settler state title system and create their own parallel system. The Nisga'a Nation has made this election and its land title system offers a good example of this type of parallel system.
The parallel title systems model has three main features: (1) a description of the ownership interest of the indigenous community and that of individual community members, at least some of which do not fit within the property rules of the settler state; (2) a description of the nature of the interests that may be recorded or registered in the parallel system; and (3) a description of what guarantees are offered to interests that are registered. We will say a few words about each of these features, principally using the Metis Settlement Land Registry in Alberta and the Nisga'a system as examples.
A. DESCRIPTION OF THE INDIGENOUS OWNERSHIP INTEREST
There is a significant variation in the legal quality of the property interests held by the indigenous community, particularly those held by individual members, that are registrable within the parallel systems discussed here. Nevertheless, a common feature of most is that title is not defined exclusively in terms of the settler state's property rules.
In the case of Metis settlement lands, the overriding fee simple interest held by the Metis Settlement General Council for the benefit of members of the individual settlement groups is expressed in the language of the settler state. (84) However, unlike fee simple interests known to the settler state, the General Council's ability to alienate the fee simple interest in the settlement lands is restricted and the use of the fee simple estate as security is prohibited. (85) In addition, the Metis Settlements Act restricts the rights and interests that may be created in the settlement land to those created by Act, General Council Policy, or settlement by-laws. (86) The Metis Settlement General Council Land Policy, in turn, contemplates three distinct Metis interests in settlement lands which may be held by Settlement Councils and/or individual Settlement members: "Metis title," provisional Metis Title, (87) and allotments. (88) Metis title is the largest and most secure interest available to a settlement member in settlement lands. (89) The rights associated with Metis title are in some respects similar to those of a conditional fee simple, offering in particular an exclusive right to use and enjoy which is both inheritable and of potentially infinite duration. (90) The interest is conditional in the sense that several limitations and qualifications are placed on both acquisition and disposition to ensure the title is held by individual settlement members and that lesser interests, including security interests, are not created in the land without approval. (91) However, commentators suggest that Metis title is "more accurately perceived as a unique statutory interest" which is something less than a fee simple, not least because the single fee simple in the lands is held by the General Council and the language of fee simple is not used to describe this interest. (92)
The Nisga'a Land Title system applies to Nisga'a Lands, i.e., land over which the Nisga'a Nation has both fee simple ownership and jurisdiction under the terms of the Nisga'a Final Agreement. As discussed in Part III, these lands could be registered in the settler state's land titles system but the Nisga'a Lisims Government has instead chosen to exercise its law-making authority over this land, which includes the establishment of its own land titles system. In accordance with the Nisga'a Final Agreement, Nisga'a Lands are held by the Nisga'a Nation, and Nisga'a Villages, in fee simple--the modified form of their Aboriginal title that fits within the setter state's property rules. However, the Nisga'a land titles system allows individual citizens of the Nisga'a Nation to hold title in several ways. First, an "eligible recipient", as defined by the Nisga'a Nation Entitlement Act, 93 may be granted a "Nisga'a Nation entitlement". (94) Second, an "eligible recipient", as defined by the Nisga'a Village Entitlement Act, (95) may be granted a "Nisga'a Village entitlement". (96) Each of these entitlements may only be transferred to another "eligible recipient", as defined by the relevant act, or the particular Nisga'a Village. (97) Alternatively, it is possible for the registered holder of a Nisga'a Nation entitlement or a Nisga'a Village entitlement to be offered, or to request, that the entitlement be transitioned to a fee simple estate. (98)
B. THE NATURE OF THE INTERESTS THAT MAY BE REGISTERED
In addition to the distinct forms of land holding available to individual members of indigenous communities, the ability to alienate both collectively and individually held property interests may be restricted to ensure that ownership and control of the land remains with the indigenous nation. This restriction, in turn, affects the nature of the interests that may be registered within a parallel system.
The interest held by the Metis Settlement General Council, for example, may only be alienated with the consent of the Alberta Crown, the General Council, and a majority of the settlement members in the settlement where the parcel situated and settlement members from all the Metis settlements. (99) In keeping with this restriction, the ability to alienate and charge property interests held by individual members, and the corresponding right to register such interests, is often similarly restricted to transfers within the community. (100) The holder of Metis title, for example, may only create leases, licences, easements, and covenants over the parcel in favour of a third party if these interests do not extend beyond ten years or are approved by by-law. (101) These lesser interests are registrable in the Metis Settlement Land Registry. (102) Mortgages or charges over the land given as security are not registrable. Indeed, mortgages and charges are prohibited and rendered void by the Metis Settlement Land Protection Act. (103) Elowever, the Metis Settlement land registry allows for registration of "a charge against the interest of a non-member." (104)
The Nisga'a Land Title System was initially also intended to accomplish the objective of "[e]nsuring that Nisga'a Land is not alienated from Nisga'a ownership and control". (105) As such, the Nisga'a Land Title System originally made provision for Nisga'a citizens to hold a form of tenure unknown to the settlement state: the Nisga'a Village and Nisga'a Nation entitlements. As with the Metis Settlement Act, restrictions were placed on the transfer of these entitlements to ensure that they could only be transferred to eligible recipients. As a consequence, lending institutions, who were not eligible recipients, were reluctant to grant mortgages on the security of a Nisga'a Village or Nisga'a Nation entitlement as they could not foreclose in the event of a default. (106) These challenges led to a revision of the original objective and the Nisga'a Land Titles System, to allow holders of these entitlements, through the provisions in the Nisga'a Landholding Transition Act, to transition them to an estate in fee simple, which then enables the holder to transfer or mortgage the fee simple estate without restriction. (107)
As a result, the Nisga'a Land Title Act requires the registrar to maintain a register, known as the "fee simple register" for "all indefeasible titles for land the fee simple ownership of which has been required to be registered under ... the Nisga'a Landholding Transition Act" (108) and a "restricted register" for all other indefeasible titles. (109) Within the restricted register, charges against Nisga'a Village and Nisga'a Nation entitlements, including mortgages, easements, leases, and restrictive covenants, can be registered. The fee simple register provides for the registration of estates in fee simple held by individual Nisga'a citizens through the Nisga'a Landholding Transition Act, against which easements, leases, life estates, mortgages of the fee simple estate, mortgages of a lease, restrictive covenant, and, notably, transfers can be registered. (110)
In this way, the Nisga'a land title system makes space for types of individually held land holdings that both fit--in the form of fee simple estates-and do not fit--in the form of Nisga'a Village and Nisga'a Nation entitlements--within the settler state land titles system.
C. NATURE OF THE SECURITY OFFERED TO REGISTERED INTEREST HOLDERS
Like the land titles systems of the settler state, the parallel land registration systems are designed to record and prioritize interests in land, simplify proof of ownership, provide a mechanism for efficient and secure dispositions of interests in land, and, in the event an interest holder suffers a loss through the operation of the register, provide compensation.
The Metis Settlement Land registration system provides for both the recording and registration of interests. (111) Recording has the effect of according priority in relation to other recorded interests. (112) Registration, on the other hand, even if unauthorized, confers both priority, (113) and ownership as long as the interest is qualified for registration in accordance with the regulation, the registered owner has the legal capacity to own the interest, and, in the case of Metis title, provisional Metis title, or allotment, the owner at the time of registration is the Metis settlement or a member of the settlement. (114) However, registration does not provide the indefeasible title of the settler state land registration systems, at least not immediately, because if these preconditions are not met the registration is void. (115) In the case of void transactions, unless a third party acquires the interest, (116) the registration must be revised. (117) In a number of other situations specified in the Act, including registration obtained through the registered owners fraud, the register must also be revised. (118) Registration otherwise provides security of title not only for fee simple interests but also for those interest in land unique to Metis lands settlement land. A person who sustains a loss, or is deprived of an interest in land through the operation of the settlement lands registration system, has access to compensation through an assurance fund. (119)
The Nisga'a Land Title System adopts a Torrens system approach to title registration, or at least the partial Torrens system approach adopted by the settler state land titles system in British Columbia, (120) by mimicking the wording of the British Columbia Land Title Act to provide for both indefeasible title and a Nisga'a Lisims Government guaranteed assurance fund.
Section 17(1), the central indefeasibility provision in the Nisga'a Land Title Act, which notably focuses on the estate in fee simple, provides as follows:
An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Nisga'a Nation and all other persons, that the person named in the title as registered owner is entitled to the estate in fee simple to the parcel of land described in the title, subject to [several exceptions, including fraud or forgery on the part of the registered owner]. (121)
The assurance fund, established and maintained by the Director of Finance of the Nisga'a Lisims Government, is available, more broadly, to a person:
(a) who is deprived of an estate in fee simple to or charge on land
(i) because of the conclusiveness of the register, in circumstances in which, if this Act had not been passed, the claimant would have been entitled to recover the land from the present owner, and
(ii) in consequence of fraud or a wrongful act in respect of the registration of a person other than the claimant as owner of the land, and
(b) who is barred by this Act or by any other Nisga'a Lisims enactment, or otherwise precluded from bringing an action
(i) for possession, or any other remedy for the recovery of land, or
(ii) for rectification of the register,
may, subject to subsections (2) and (3), proceed in court for the recovery of damages against the person by whose fraud or wrongful act the claimant has been deprived of the land. (122)
Both the Metis and Nisga'a parallel land titles systems offer examples of systems that extend protection and security of title to property interests that are both known to the settler state and those unique to the indigenous community within one legislative framework.
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|Title Annotation:||I. Introduction through IV. Recognition Through Parallel Title Systems C. Nature of the Security Offered to Registered Interest Holders, p. 829-862; Canada; Law on the Edge|
|Author:||Bankes, Nigel; Mascher, Sharon; Hamilton, Jonnette Watson|
|Publication:||University of British Columbia Law Review|
|Date:||Oct 1, 2014|
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