Authored by: Jessica Proudfoot and Riley Brennan (articled student)

The Government of British Columbia has passed legislative amendments which will enable First Nations, for the first time ever, to register their off-reserve interests at the provincial Land Title Office (the “LTO”) in their own name. The Land Title and Property Law Amendment Act, 2024[1], comes into force on May 21, 2024.

In BC, all ownership of, and interests in, private land must be registered at the LTO to be enforceable.[2] To register an interest in land with the LTO, parties (e.g., corporations) must fall within the definition of legal “persons” who can be registered owners under the Land Title Act and the Property Law Act.[3] However, the legal capacity of First Nation governments has remained an uncertainty for decades because a “band” is not a “person” as defined for the purposes of certain legislation.[4] The only legal definition of the term “band” is laid out in subsection 2(1) of the Indian Act where a band is defined as a “body of Indians” and is not granted the full powers of a legal personhood.[5]

As a result, most BC First Nations have been unable to register and hold interests in real property in their own name (subject to isolated exceptions through treaties[6] or specific federal legislation). Instead First Nations have had to clear administrative hurdles, like setting up corporations, societies, bare trusts, etc. to buy and hold their fee simple (or leasehold) land interests. This adds unnecessary cost to the transaction and ongoing administrative complexities.

In a long-overdue effort to remove these barriers, the amendments:

  • define “First Nation” in both the Land Title Act and Property Law Act;
  • confirm that First Nations have the power and capacity of a natural person to acquire, hold, and dispose of land in BC;
  • confirm that an individual who is responsible for or in control of a First Nation is still liable for acts of the First Nation that are beyond the powers of the First Nation; and
  • confirm the administrative requirements that apply to First Nations registering their interests at the LTO.[7]

Current arrangements used by First Nations are still an option but are no longer a requirement. First Nations will now have a choice on how to register their land, a choice that is long overdue.

BC has said that the amendments are intended to support the Province’s commitments to reconciliation by:

  • advancing the Declaration Act Action Plan commitment 4.25 (Work with Indigenous Peoples to build more on and off-reserve housing and pursue new federal contributions);
  • supporting the Truth and Reconciliation Commission Call to Action No. 45, which calls upon the federal government to reconcile Aboriginal and Crown constitutional and legal orders to ensure Aboriginal people are full partners in confederation; and
  • supporting the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, including Articles 3, 4, 5, 18 and 26 (2).[8]

For more information, check out BC’s March 2024 “What We Heard” report, which reflects the feedback the government received from their consultations with First Nations, Modern Treaty Nations, the federal government, local governments, and industry and business organizations, during the development of the legislative amendments.

Key Takeaways

Effective May 21, 2024, First Nations can acquire and register their fee simple (and leasehold) land interests at the LTO without having to set up corporations, societies, bare trusts, etc. to do so.

First Nations who presently hold land in trust, or through societies, corporations etc., may elect to:

  • continue to hold the land as-is, or
  • transfer the land to the First Nation.

If you have questions about the Land Title and Property Law Amendment Act or if you considering transitioning the way your First Nation holds land, we can help.

[1] Bill 13, Land Title and Property Law Amendment Act, 5th Sess, 42nd Parl, 2024, (assented to 25 April 2024).

[2] See e.g. Land Title Act, RSBC 1996, c 250 at ss 20, 23 and 25.

[3] Land Title Act, supra note 2 at ss 1, 23; Interpretation Act, [RSBC 1996], c 238 at s 29 (“person” includes a corporation, partnership or party, and the personal or other legal representatives of a person to whom the context can apply according to law).

[4] West Moberley First Nations v British Columbia, 2007 BCSC 1324 at para 54-55.

[5] Indian Act, RSC,1985, c 1-5.

[6] See e.g., Nisga’a Final Agreement, 27 April 1999, online: Government of British Columbia <www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/agreements/nisga_final_agreement_pdf.pdf> (federal and BC governments acknowledged that the Nisga’a Nation has fee simple ownership over its traditional territory).

[7] Bill 13, supra note 1 at s 1-2.

[8] British Columbia, “New legislation will eliminate discriminatory barriers for First Nations” (2 April 2024), online: <news.gov.bc.ca/releases/2024IRR0013-000460>.