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Chapter C5 ver. 1

SURVEYS OF INDIAN LANDS

Table of Contents

Effective Date

This Chapter is effective January 1, 1997. It was originally published as Chapter C5 of the Third Edition of the Manual of Instructions for the Survey of Canada Lands.

Chapter Sections

General

  1. The provisions of this Chapter apply to:
    1. Reserves, Designated Lands, and Surrendered Lands as defined in section 2 of the Indian Act;
    2. federal real property under the administration of the Minister of Indian Affairs and Northern Development and used to carry out the Inuit and Indian Affairs Program, hereinafter referred to as "Departmental Lands"; and
    3. lands covered by land claim settlement legislation such as the Sechelt Indian Band Self-Government Act and the Cree-Naskapi (of Quebec) Act.

Administration of Surface Rights

2. Surface rights on Reserves, Designated Lands, Surrendered Lands and Departmental Lands are administered by the Lands, Revenues and Trusts Branch of the federal Department of Indian and Northern Affairs (DIAND) through its headquarters office in Hull, Quebec, and nine regional offices located as follows:

Office
Atlantic
Québec
Ontario
Manitoba
Saskatchewan
Alberta
British Columbia
Northwest Territories
Yukon
Location
Amherst, N.S.
Québec, Que.
Toronto, Ont.
Winnipeg, Man.
Regina, Sask.
Edmonton, Alta.
Vancouver, B.C.
Yellowknife, NWT
Whitehorse, YT
  1. In each regional office, land matters are the responsibility of the Director, Lands, Revenues and Trusts.
  2. DIAND maintains an Indian Lands Registry to record all interests acquired or granted under the Indian Act, including interests in lands identified in subparagraph 1( b) above. Interests held by individual Indian band members under tribal custom are usually not recorded in this registry.
  3. Surveyors or other interested parties may access information in the Indian Lands Registry through the Registrar of Indian Lands in Hull, Quebec. Most of the information is also available in the regional offices mentioned above.
  4. Surface rights on lands covered by land claim settlement legislation may be administered by the band or a native organization which has the title to the land.
  5. For lands covered by land claim settlement legislation, interests may be registered in the Indian Lands Registry, a provincial land registration system or a land registration system established by the legislation.
  6. Information on the lands managed under the Cree-Naskapi (of Quebec) Act can be found in the central land registry office and local land registry offices established pursuant to the Cree Naskapi Land Registry Regulations. The central land registry office is located in the Quebec regional office.

Administration of Subsurface Rights

  1. Subsurface rights relating to the development of oil and gas on Reserves and the associated surface rights required for this development are issued and administered by Indian Oil and Gas Canada, Department of Indian Affairs and Northern Development, located in Calgary, Alberta. The rights are issued in accordance with the Indian Oil and Gas Regulations, 1995.
  2. Surrendered mineral rights on Reserves, other than those in British Columbia, are administered by DIAND in accordance with the Indian Mining Regulations.
  3. In British Columbia, the administration and disposition of mineral rights are subject to the laws of the province in accordance with the agreement confirmed by the British Columbia Indian Reserves Mineral Resources Act (Canada).

Creation and Alienation

Reserves
  1. Nowadays, a Reserve is created when the federal government sets aside, by order-in-council, lands vested in Her Majesty in right of Canada as a Reserve for the use and benefit of an Indian Band. In the past, Reserves were created by various other methods, such as grants, treaties and legislation.
  2. Within provincial jurisdictions, lands which are to become a Reserve are surveyed in accordance with provincial legislation. Standards for the survey of Canada Lands should be followed insofar as possible, providing provincial authorities agree and there is no conflict with provincial legislation or survey standards. If the survey is managed by the Surveyor General of Canada Lands, the plan should be approved by the Surveyor General and DIAND.
  3. The Surveyor General, when requested by DIAND, manages legal surveys of lands which are to become a Reserve.
  4. Reserves, or parts of Reserves, may be alienated for public purposes with the consent of the Governor in Council, under section 35 of the Indian Act.
  5. Reserves, or parts of Reserves, may be surrendered or interests may be designated under section 38 of the Indian Act.
  6. Where lands in a Reserve are to be alienated, they shall be surveyed in accordance with the Canada Lands Surveys Act and, if applicable, conform with additional survey requirements outlined in agreements between the Surveyor General and provincial authorities.
Surrendered Lands
  1. By a surrender process pursuant to subsection 38( 1) of the Indian Act, an Indian Band may surrender absolutely all its rights in land to the federal government (absolute surrenders are not made in the provinces of Quebec and Prince Edward Island because of the reversionary interest which the province retains). As provided for in the Indian Act, the proposed surrender is voted on by the band and, if assented to, the federal government accepts the surrender by order-in-council and disposes of the lands in accordance with the terms of the surrender.
  2. Surrendered Lands may be:
    1. retained as Canada Lands in which case they are administered by DIAND;
    2. transferred to another federal government department by ministerial letter;
    3. transferred to a provincial government by order-in-council; or
    4. transferred to a private individual or company by issue of letters patent.
Designated Lands

20. Pursuant to subsection 38( 2) of the Indian Act, an Indian Band may designate, by way of a surrender that is not absolute, any right or interest in its land to the federal government. The proposed surrender is voted on by the Band and if assented to, the federal government accepts the surrender by order-in-council and disposes of the right or interest in the lands in accordance with the terms of the surrender.

Departmental Lands

21. Departmental Lands are acquired by purchase from a private individual or company, transfer from a provincial government by order-in-council or transfer of administration from another federal government department. The alienation of these lands is made in accordance with the Federal Real Property Act. Departmental Lands are alienated to a private individual or company by letters patent or a grant, to a provincial government by transfer of administration accepted by order-in-council, or to another federal government department by transfer of administration.

Settlement Lands
  1. Legislation resulting in an Indian Band obtaining title or control of their land normally results from land claim settlement and/ or self-government negotiations. These lands are hereinafter referred to as Settlement Lands.
  2. Conditions for the alienation of Settlement Lands are provided in the enabling legislation.
  3. Settlement Lands may be set aside as Canada Lands where the legal title is vested in the Indian Band or a native organization. Lands covered by settlement legislation and defined as Canada Lands include:
    1. Sechelt lands under the Sechelt Indian Band Self-Government Act;
    2. Category IA and IA-N land under the Cree-Naskapi (of Quebec) Act; and
    3. settlement lands as defined in the Yukon First Nations Self-Government Act.

Legal Surveys

General
  1. Surveys of Indian Lands may be made to define the boundaries of:
    1. federal jurisdiction;
    2. an allotment of land to individual Indian band members;
    3. a lease, permit, or other limited interest;
    4. a parcel to accommodate a requirement of DIAND;
    5. a parcel of land to be alienated; or
    6. to re-establish or restore boundaries, or to correct errors in previous surveys.
  2. Surveys of Reserves, Designated Lands, Surrendered Lands, and the Settlement Lands identified in paragraph 24, are made under the authority of the Canada Lands Surveys Act. Specific survey instructions are required.
  3. Surveys of Departmental Lands are normally carried out under provincial legislation. However, under subsection 47( 1) of the Canada Lands Surveys Act, the Minister of Natural Resources may cause a survey of such lands to be made in accordance with the Act.
  4. The type of survey or plan to be used for each type of interest or disposition, with the exception of plans for oil and gas rights, is outlined in an Interdepartmental Agreement effective December 1, 1993. A copy of this Agreement, between the Surveyor General of Canada Lands, Department of Energy, Mines and Resources (now Natural Resources), and the Director, Lands Directorate and the Registrar of Indian Lands, Department of Indian Affairs and Northern Development, is contained in Part B of this manual.
  5. In addition to the requirements of Chapter C1, paragraph 17, when a surveyor requests specific survey instructions for a survey on Indian Lands, a copy of the Band Council Resolution requesting or authorizing the survey and granting permission from the band to enter the lands to carry out the survey must also be supplied. Some bands have delegated responsibility for authorizing legal surveys to a specific band official in which case written authorization from that official is required in lieu of the Band Council Resolution.
  6. The Band Council Resolution or other authorization should contain:
    1. permission to do the survey;
    2. permission to enter the Indian Lands;
    3. a description of the lands to be surveyed; and
    4. the nature of the transaction for which the survey is intended.
  7. The surveyor shall inform the Indian Band prior to and upon entering the Indian Lands to conduct a survey.
  8. At the completion of the field work, the surveyor shall show on the ground those boundaries surveyed to the Band representative identified in the specific survey instructions.
  9. General requirements and procedures for processing and distributing plans are given in Chapter C1, Returns of Surveys.
Oil and Gas
  1. Before commencing a survey for oil and gas rights, pipeline, or other facility on a Reserve, the surveyor must determine whether the surface rights are being disposed of under the Indian Oil and Gas Regulations, 1995 or the Indian Act.
  2. In general the Indian Oil and Gas Regulations, 1995 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 in a Reserve. Surveys for surface rights disposed of under these Regulations are carried out in accordance with the provisions of Chapter D6.
  3. If a pipeline or other facility crosses a Reserve, Designated Lands, Surrendered Lands, or any of the Settlement Lands identified in paragraph 24, and that pipeline or facility does not service development on those lands, then rights are granted under the Indian Act and specific survey instructions are required.
Mineral Rights

37. A survey of a lease for mineral rights may be required under the Indian Mining Regulations. Specific survey instructions are required for legal surveys of mineral rights.