Indian Lands Registration Manual

1.1.1 Purpose of the Manual

The Indian Lands Registration Manual describes the procedures for preparing, submitting and registering documents in the Indian Lands Registry System (ILRS) in accordance with policy requirements developed in support of Indian Act land management provisions.

This manual also provides descriptions of the common instruments that are registered in the ILRS.

This manual is intended to provide information relating to general practices only and should not form the basis for legal advice of any kind.

1.1.2 New Releases of the Manual

The manual will be updated from time to time as a result of changes in business and legal requirements, policy, and/or feedback from users.

1.2.1 Indian Lands Registry System Mandate

The Indian Act, which governs all dealings with respect to Indian lands for those First Nations operating under the land management provisions of the Indian Act, requires the establishment of two registries.

The Reserve Lands Register (established by Section 21) records instruments respecting lands which are allotted to individual band members under Section 20 of the Indian Act (Lawful Possessors) as well as other transactions relating to those individual land holdings.

Indian Act, section 21 states:

"21, There shall be kept in the Department a register, to be known as the Reserve Land Register, in which shall be entered particulars relating to Certificates of Possession and Certificates of Occupation and other transactions respecting lands in a reserve."

The Surrendered and Designated Lands Register (established by Section 55 of the Indian Act) records particulars in connection with any transaction affecting lands which are wholly possessed by a Band and absolutely surrendered or designated under the Indian Act.

Indian Act, section 55 states, in part:

"55 (1) There shall be maintained in the Department a register, to be known as the Surrendered and Designated Lands Register, in which shall be entered particulars in connection with any transaction affecting absolutely surrendered or designated lands."

The ILRS records information concerning interests accepted for registration against reserve lands. The land register provides a list of transactions that affect a parcel of reserve land and the reserve as a whole, as well as the nature of the transaction and scope of the interest.

1.2.2 Purpose of the ILRS

In summary, the purpose of the ILRS is:

1. to fulfill the statutory requirements of the Indian Act,
2. to record interests approved and submitted for registration on reserve lands, designated and surrendered lands, and
3. to provide safekeeping of original instruments submitted for registration.

The basic functions of the Registry System are three-fold:

1. to provide access to the public of encumbrances registered against a reserve or a particular piece of reserve land;
2. to show the historical record of registered interests in reserve land; and
3. to display encumbrances that affect reserve land.

1.2.3 The Indian Lands Registry System

In general, the ILRS is guided by a set of interacting procedures designed to govern the registration of rights or interests, claims of interest, or notices of claims of interest in reserve land. The ILRS is a repository of documentation and does not purport to guarantee title or accuracy of documentation filed therein, nor give priority to any interests with the exception of Section 55(4) of the Indian Act which provides that: "An assignment registered under this section is valid against an unregistered assignment or an assignment subsequently registered."

A First Nation may submit an application for registration and associated documents to the applicable Indigenous and Northern Affairs Canada (INAC) Regional Offices for registration and retention.

Documents registered in the ILRS before December 1, 2012 are retained at HQ, documents registered after December 1, 2012 are retained in the applicable INAC Regional Offices.

Title searches can be conducted by accessing the Public Site.

1.4.1 Privacy Act Statement

INAC only collects personal information required to administer or respond to First Nation on reserve land transfer and registration requirements. Collection and use of personal information is authorized by sections 21 – 55 of the Indian Act. Personal information for the registration of land instrument documents is collected, stored, shared and/or disposed of in accordance with Privacy and Library and Archives legislation. INAC has implemented measures to protect personal information contained within land registry records.

Departmental program officials will use personal information as described in INAC Personal Information Banks "Indian Lands Registry", INAC PPU 090,
and "Monitoring and Compliance of Reserve Land Instruments", INAC PPU 096.

Any questions or comments regarding the administration of the Privacy Act at Indigenous and Northern Affairs Canada may be directed to our Access to Information and Privacy Coordinator by e-mail or by calling (819) 997-8277 or by writing to:

ATIP Coordinator
Access to Information and Privacy Coordinator
Indigenous and Northern Affairs Canada
10 Wellington, 18th Floor
Les Terrasses de la Chaudière
Gatineau, Ontario
K1A 0H4

1.4.2 Passwords – Best Practices

Do not share any of your passwords under any circumstances.

Do not write down your passwords.

Use strong passwords (minimum of 8 characters; minimum of 1 alphanumerical, 1 lowercase and 1 uppercase letter).

Lock your workstation when you leave your desk.

Change default passwords when first receiving any IT application credentials.

Change your password when your account password has been reset.

Change your passwords every 90 days. Do not use the same password for multiple accounts.

If you suspect your password has been compromised, change it immediately and notify the service desk.

1.4.3 Protecting and Handling Information – Best Practices

1. Land Registry documents are to be considered Protected B until they have had a privacy review completed. If no sensitive information is contained within them, the classification can be lowered to "Unclassified".
2. Ensure all materials, reports, documents, papers, etc. are marked with the appropriate security classification.
3. Labels should be added to the top, right-hand corner of the document.
4. If a co-worker or client enters your office when working with a Protected B document immediately turn over the document or cover it so the information cannot be read.
5. When finished with a Protected B document ensure that it is stored in a secure, locked cabinet.
6. Print out Protected B documents only when necessary. If a printout is not required, work on the document in an electronic format.
7. When a printed Protected B document is no longer required, ensure that it is shredded in an RCMP approved type III shredder. Do not place the document in the recycle bin or trash can.
8. When sending an electronic copy of a Protected B document through mail, ensure the document is encrypted, e.g., if the document is sent via mail on a USB key, ensure the key is, at a minimum, password protected. When possible use encrypted USB keys when sending the information. Place the key in a double sealed envelope and ensure that both a tracking number and signature are required for the package.
9. When sending an electronic copy of a Protected B document through email, ensure the email is encrypted.

1.6.1 Reserve General Abstract

The Reserve General Abstract consists of instruments relating to the reserve as a whole, i.e. establishment of reserve, additions to reserve, surrenders/designations, Orders in Council and Band Council Resolutions for setting aside land for the general welfare of the community under Section 18(2) of the Indian Act.

With the exception of Reserves created pursuant to claims implementation legislation, a contemporary addition to Reserve or new Reserve is set apart for the use and benefit of a Band pursuant to the royal prerogative manifest by an Order-in-Council of the Privy Council (OCPC). An OCPC is also used to accept a surrender of, or to expropriate reserve lands. An OCPC can only be modified or cancelled by another OCPC.

Pursuant to claims implementation legislation, a Ministerial Order is used to set apart a new Reserve or an addition to a Reserve.

Easements (Sec 35) are authorized by an Order-in-Council, while designations can only be accepted by a Ministerial Order.

1.6.2 Parcel Abstract

The Parcel Abstract lists instruments relating to individual lots/parcels of reserve land. Every parcel/lot with a registered interest has a parcel identification number or PIN that is unique to that parcel. When a lot or parcel is subdivided, a new PIN is given to the newly created lots when a transaction is submitted for registration. A Parcel Abstract Report identifies encumbrances registered against a parcel/lot.

3.2.1 Application Form

An application must be completed and submitted with the instrument to the appropriate INAC Regional Office.

When the application is initiated in the ILRS, a registration number is assigned and this number is used throughout the registration process. Applicants must provide their e-mail address in the communication section of the ILRS in order to receive notification of the registration.

3.2.2 Re-Submission of a Previously Returned Instrument

All returned instruments are to be re-submitted using the same registration number.

3.2.3 Application Form Contents

The Application for Registration form is available online. The application must contain the following information, exactly as it appears on the instrument submitted for registration.

1. The name(s) of the parties to the instrument.
2. The instrument type (e.g., Permit, Lease, Transfer).
3. The instrument date, e.g., the date of execution (signing) of the instrument.
4. The purpose of the instrument is required when the Instrument type is a Permit, Lease, Sub-lease or Sub-Sub-lease.
5. The legal land description.
6. The province in which the reserve is located.
7. The reserve name and number (e.g., Kamloops 2, Chapleau 74A, Blue Quills First Nation).
8. The remarks section is used to capture a variety of information. For instance, the purpose of the document can be added in this section if the description of purpose is lengthy; if reference should be made to other instruments, indicate the instrument name and registration number.
9. A list of the supporting documentation to the instrument, e.g., Band Council Resolution, Appointment of Administrator, Approval of Will.
10. The applicant's name, phone number, e-mail.

4.3.1 Execution of Instrument for Persons with Reading Challenges

Where an instrument is signed by a person who may have challenges reading or writing the instrument (by reason of physical disability, illiteracy, or lack of understanding of the English or French language), a statement to this effect must appear on the instrument. The Affidavit of Execution form (page 2), section Execution by Mark, must be completed as described in Affidavit for Persons with Reading Challenges.

4.3.2 Execution under Power of Attorney

An instrument submitted for registration and signed by an agent under a power of attorney must meet the following requirements:

1. The instrument must be accompanied by one of the following documents:
   1. the original power of attorney; or
   2. a copy of the original power of attorney certified by the person who has custody of the original.
2. The agent under a power of attorney must execute the instrument on behalf of the principal by signing his/her own name and by indicating the name of the principal on the instrument.
3. The execution of a power of attorney must be witnessed in the same manner as required in Proof of Execution – Affidavit of Execution and the Proof of Execution (signing) of a power of attorney shall be proven by a statutory declaration of the agent.

4.3.3 Revocation of Power of Attorney

A power of attorney filed in the ILRS may be revoked by registering a Revocation.

6.1.1 All Plans

As of November 1, 2005, all survey plans are issued a unique number when registered in the Canada Lands Survey Records. In addition to technical differences, the title block and the signature block distinguish plan types.

6.1.2 Official Plan

An Official Plan refers to a survey plan which is confirmed pursuant to Section 29 of the Canada Lands Surveys Act (CLSA). As a general rule, Official Plans are used for the survey of jurisdictional boundaries of Reserve lands or parcels which create a jurisdictional boundary once a land transaction is complete.

6.1.3 Administrative Plan

An Administrative Plan refers to a survey plan which is approved pursuant to Section 31 of the Canada Lands Surveys Act. As a general rule, Administrative Plans are used for all new internal subdivisions or other surveys related to internal interests in Reserve Lands.

6.1.4 Registration Plan

A Registration Plan is a type of Administrative Plan. It is a graphic description of the boundaries of land prepared from information contained in existing documents, field notes of survey, controlled aerial photographs or maps and from information found in land transaction documents, and approved by the Surveyor General pursuant to Section 31 of the Canada Lands Surveys Act.

Regional Surveyor (RS) Plans are the predecessors to Registration Plans. RS Plans were approved by Regional Surveyors pursuant to Section 31 of the Canada Lands Surveys Act. Prior to November 1, 2005, there were seven RS Plans (RSA-Alberta, RSATL-Atlantic, RSBC-British Columbia, RSM-Manitoba, RSO-Ontario, RSQ-Quebec & RSS-Saskatchewan).

Whereas plan numbers issued for Registration Plans have an "R" at the end, plan numbers issued for RS plans do not have an "R" at the end of the number.

• Example of a legal description based on a registration plan:
  Lot 91-1 RSBC 3359R
• Example of a legal description based on an RS Plan:
  Lot 10-1 RSBC 1701

As of November 1, 2005, all survey plans are issued a unique number when registered in the Canada Lands Survey Records. In addition to technical differences, the title block and the signature block distinguish plan types.

6.1.5 Plan of Survey

A Plan of Survey is a plan prepared from a full field survey with official survey monuments placed to reference all corners of the parcels or boundary.

6.1.6 Compiled Plan

A Compiled Plan is a plan prepared entirely from information found on plans and field notes recorded in the Canada Lands Surveys Records (CLSR), and is not based upon any new field survey.

6.1.7 Explanatory Plan

An Explanatory Plan is a plan prepared from information found on plans and field notes recorded in the Canada Lands Survey Records (CLSR), and is not based upon any new field survey. An Explanatory Plan may show new boundaries for proposed non-exclusive use interests such as for permit areas, access right of ways, and for designation votes.

6.1.8 Plan of Building Unit(s)

A Plan of Building Unit is a plan prepared to show separate units within a constructed building.

6.1.9 Plan of Air Space Parcel(s)

A Plan of Air Space Parcel is a plan prepared to show parcels with an upper and lower vertical limit and may be used for exclusive use interests and non-exclusive use interests.

6.1.10 Textual Description

A Textual Description is a metes and bounds description of Reserve lands, or any other description of Reserve lands that does not refer exclusively to one or more complete parcels on a Registration Plan or Official Plan. A textual description must meet the following requirements:

1. The description must clearly and unambiguously identify the land subject to the interest.
2. If the land subject to the interest is the whole of, or a portion of a lot shown on an existing plan, then the description must refer to the plan and lot.
3. The dimensions of the parcel of land must be mentioned in the text or be clearly shown on an attached sketch.
4. Any sketch accompanying a textual description should preferably not exceed a maximum size of 27.94 cm x 43.18 cm (11" x 17").
   • Example of a Textual Description: Portion of the lands outlined in black on the Plan of Survey No. 3063R and attached hereto as Schedule "A"

6.4.1 Boundary Surveys or Disposing of Land

The legal land descriptions contained in the instrument for boundary surveys or for disposing of land must be shown on an Official Plan where an instrument purports either:

1. to define the exterior (jurisdictional) boundaries of an Indian reserve; or
2. to dispose of Surrendered land.

6.4.2 Legal Land Description for an Easement or Taking of Lands

When an instrument purports to take lands or to grant an Easement over Reserve or designated land under Section 35 of the Indian Act, the legal land descriptions contained in the instrument must be based on an Official Plan.

6.4.3 Legal Land Description: Surrender Vote

The legal land description for surrendered lands has specific requirements:

1. Reserve land that will be the subject of a vote for Surrender must be shown on a Registration Plan, Explanatory Plan, or Plan of Survey.
2. An Order in Council accepting the Surrender must use the same legal land description as the one used in the Surrender instrument.
3. An Official Plan must be completed prior to the disposition of surrendered land.

6.4.4 Legal Land Description: Designation Vote

The legal land description for lands subject to a designation vote has specific requirements:

1. Reserve land that will be the subject of a designation vote must be shown on a Registration Plan, Explanatory Plan, Plan of Survey or Compiled Plan of Survey.
2. The associated Ministerial Order must use the same legal land description as the one used in the designation instrument.

6.4.5 Legal Land Description for Permit to Utilities

Where the instrument is a blanket Permit which grants an interest in land to a utility company for the purpose of providing service to a First Nation or members of a First Nation on a Reserve, the applicable INAC Regional Office may accept an instrument for registration based on a textual description.

6.4.6 Legal Land Description: Long-Term Interest and/or Lawful Possession

The legal land descriptions contained in an instrument granting a long-term interest and/or lawful possession must be based on a Registration Plan with field survey, a Plan of Survey or Compiled Plan of Survey where an instrument purports one of the following:

1. To Lease or otherwise grant a right or interest in Designated or Surrendered land for a term more than 10 years.
2. To Lease or otherwise grant an interest, other than lawful possession, in reserve land for a term more than 10 years.
3. To take Reserve land under Section 18(2) of the Indian Act, for the general welfare of a First Nation.

The term of the instrument includes all provisions for renewal or extension of the right or interest.

6.4.7 Legal Land Description: Transfer, Administrative Transfer

A whole parcel of Reserve land or the whole of an interest in Reserve land being transferred by an Administrative Transfer should be shown on a Registration Plan, Plan of Survey or Compiled Plan of Survey. If the existing legal land description is based on a location sketch (LS), a metes and bounds description, or a Cardex description, a NETI (No Evidence of Title Issued) is issued in lieu of a Certificate of Possession (CP).

6.4.8 Remainders

The term "remainder" is used for the remaining part of a parcel (called the parent parcel) after a portion of land has been surveyed and has its own legal description identified on a new plan.

The requirement to survey and provide a new parcel designator for all Remainders has been eliminated except in certain cases where:

1. The parent parcel being subdivided is not shown on a recorded plan of survey which is based upon a full field survey;
2. The subdivision of a parcel creates two disjointed or unconnected remainder parcels and these remainder parcels define an interest recorded in the Registry;
3. Due to the complexity of the parcel description or the potential for conflict or conflicting claims, the Registry has placed a note on the Parcel Abstract for the parcel being subdivided indicating "Any further subdivision of the parcel will require the entire parcel to be surveyed leaving no remainder parcels."
4. Where the remainder parcel is created by the survey of a road or other right-of-way intended as an Exclusive Use Parcel, which severs a portion of the parent parcel.

Remainder parcels should be described in the Registry as the original lot, save and except a new subdivided lot. Each remainder parcel will be mapped as a unique polygon with a unique parcel PIN by NRCan. Since there is no new parcel designation, the remaining land would be attributed as a ‘remainder'. A valid legal description of the remainder would be Lot 1 on Plan X save and except Lot 2 on Plan Y where Lot 2 is the newly severed parcel.

6.4.9 Legal Land Description: Lease or Granting Right or Interest

The legal land descriptions contained in the instrument must be based on a Registration Plan, Plan of Survey, Compiled Plan of Survey or Plan of Building Unit when it either:

• grants a right or interest in a building unit with interest in land, or building unit only, for a term more than ten years; or
• grants a right or interest, other than lawful possession, in reserve land, building unit with interest in land, or building unit only, for a term more than ten years.

The term of the instrument includes all provisions for renewal or extension of the right or interest.

6.4.10 Legal Land Description: Short-Term Interests

The legal land descriptions contained in an instrument with short-term interests may be a textual description or Explanatory Plan where it either:

1. grants an interest in Designated or Surrendered land or building unit only for a term of ten years or less; or
2. grants an interest, other than lawful possession, in reserve land or building unit, only for a term of ten years or less.

The term of the instrument includes all provisions for renewal or extension of the right or interest.

8.2.1 Court Orders

Copies of court orders and notices of court orders (with the exception of confidentiality orders made under Section 19 in emergency protection order situations) must be sent (by the applicant) to the Minister. If the provisional federal rules apply to the First Nations listed in 1, 2, and 3, then any court orders made under the federal rules must be sent by the applicant directly to the relevant First Nation council.The provisional federal rules apply to First Nations:

1. listed on the Schedule of the First Nations Land Management Act;
2. self-governing with the power to manage its reserve lands; or
3. the Kanesatake Mohawk interim land base.

Although the Family Homes on Reserves and Matrimonial Interests or Rights Act, does not require orders to be registered, once an order has been provided, a Registration Officer will register the orderon the appropriate parcel.

When a court order to transfer land is received, a Transfer of a Right to Possession of Reserve Land by Court Order form must be completed in order to affect the transfer.

8.2.2 Notice of Community-Specific Legislation

Section 10 of the Family Homes on Reserves and Matrimonial Interests or Rights Act requires the First Nation to inform the Minister that they have adopted community-specific matrimonial real property legislation and that the First Nation provides copies of the approved laws to the Minister.

8.2.3 Transfers/Administrative Transfers, Leases, Permits & Assignments

Section 15(1) of the Family Homes on Reserves and Matrimonial Interests or Rights Act establishes that, subject to the Indian Act, a spouse or common-law partner who hold an interest or right in or to the family home must not dispose of or encumber that interest or right during the conjugal relationship without the free and informed consent in writing of the other spouse or common-law partner whether or not that person is a First Nation member or an Indian.

It is therefore necessary to obtain the necessary forms when processing the following transactions:

• Leases pursuant to s. 58 of the Indian Act
• Assignments pursuant to s. 58 and s. 53(1)(b) of the Indian Act
• Transfers pursuant to s. 24 and Administrative Transfers pursuant to s. 49 of the Indian Act
• Permits pursuant to s. 28(2) (Lawful Possessor) of the Indian Act
• Sub-Leases requiring Ministerial approval
• Mortgages requiring Ministerial approval

For corporations: Only corporations with a sole owner/operator are required to submit the Assessment of Matrimonial Real Property and Statutory Declaration form.

8.3.1 Assessment of Matrimonial Real Property and Statutory Declaration Form

Land officers must obtain a completed Assessment of Matrimonial Real Property and Statutory Declaration form from individuals, and corporations that are solely owned by individuals, wanting to effect real property transactions. The purpose of the form is to establish whether an interest in, or to, the family home is affected by the proposed transaction, and whether the free and informed consent has been given by the other spouse or common-law partner to proceed with the land transaction.

For corporations: Only corporations with a sole owner/operator are required to submit the Assessment of Matrimonial Real Property and Statutory Declaration form.

8.3.2 Statutory Declaration of Spouse or Common-Law Partner Form

Where a spouse or common-law partner has an interest in the family home, it will be necessary for the Minister to consider whether or not the consent has been given by the other spouse or common-law partner to proceed with the transaction which affects the family home. The Statutory Declaration of Spouse or Common-Law Partner form is used to show that consent has been obtained.

8.3.3 Transfer of Right to possession of reserve land by court order under Family Homes on Reserves and Matrimonial Interests or Rights Act

When a court order to transfer land is received, a Transfer of a Right to possession of reserve land by court order under Family Homes on Reserves and Matrimonial Interests or Rights Act form can be completed by the Land Officer, who will then register the transfer in the Indian Lands Registry System (see registration requirements for Court Orders). If the court documents are hand delivered, the requestor can complete the transfer form.

8.3.4 Statutory Declaration of Executor of a Will or an Administrator of an Estate Form

In instances where a spouse or common-law partner may have an interest in the estate of their deceased partner, consent or acknowledgement by an Executor of a Will or Administrator of an Estate may be required using the Statutory Declaration of Executor of a Will or an Administrator of an Estate form. This consent form requires the Executor of Will or Administrator of Estate to declare that they will observe provisions of the Indian Act or Family Homes on Reserves and Matrimonial Interests or Rights Act in carrying out their duties.

A certified true copy of the Death certificate must be on file with Indigenous and Northern Affairs Canada. An Executor or Administrator appointed by a court must ensure that a certified true copy is submitted with this application if not previously recorded in the Indian Lands Registry System.

This form must be completed by the Executor or Administrator wanting to distribute the estate of a deceased individual who died after December 15, 2014 and held an interest on reserve, in order to demonstrate compliance with s. 38(1) of the Family Homes on Reserves and Matrimonial Interests or Rights Act. Pursuant to s. 38(1), an Executor of a Will or an Administrator of an estate must not proceed with the distribution of the estate until one of the following occurs:

1. the survivor consents in writing to the proposed distribution;
2. the period of 10 months referred to in subsection 36(1) and any extended period the court may have granted under subsection 36(2) have expired and no application has been made under subsection 36(1) within those periods; or
3. an application made under subsection 36(1) is disposed of.

8.3.5 Statutory Declaration of Executor of a Will or Administrator of an Estate and Surviving Spouse or Common-Law Partner Form

When the Executor of a Will or Administrator of an Estate is also the surviving spouse or common-law partner, the Statutory Declaration of Executor of a Will or Administrator of an Estate and Surviving Spouse or Common-Law Partner form must be completed. If there is a second survivor, he or she must complete the Statutory Declaration of the Surviving Spouse or Common-Law Partner form as well. For clarity, in some cases there may be a spouse (e.g., the couple remain legally married but are separated) and also a common-law partner. In that case, where spousal consent is required, both the spouse and the common-law partner are to submit statutory declarations.

A certified true copy of the Death certificate must be on file with Indigenous and Northern Affairs Canada. An Executor or Administrator appointed by a court must ensure that a certified true copy is submitted with this application.

This form must be completed by the Executor or Administrator wanting to distribute the estate of a deceased individual who died after December 15, 2014 and held an interest on reserve, in order to demonstrate compliance with s. 38(1) of the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA). Pursuant to s. 38(1) of the act, an Executor of a Will or an Administrator of an estate must not proceed with the distribution of the estate until one of the following occurs:

1. the survivor consents in writing to the proposed distribution;
2. the period of 10 months referred to in subsection 36(1) and any extended period the court may have granted under subsection 36(2) have expired and no application has been made under subsection 36(1) within those periods; or
3. an application made under subsection 36(1) is disposed of.

8.3.6 Statutory Declaration of the Surviving Spouse or Common-Law Partner Form

In certain circumstance the Executor of a Will or Administrator of an Estate will seek consent from the surviving spouse, the surviving common-law partner(s), or both as required. For clarity, in some cases, there may be a spouse (e.g., the couple remain legally married but are separated) and also a common-law partner(s). In that case, the form Statutory Declaration of the Surviving Spouse or Common-Law Partner must be completed by the spouse and the common-law partner(s).

8.3.7 Matrimonial Real Property Forms:

• Assessment of Matrimonial Real Property and Statutory Declaration. form
• Statutory Declaration of Spouse or Common-Law Partner form.
• Transfer of a right to possession of reserve land by court order form.
• Statutory Declaration of Executor of a Will or an Administrator of an Estate form.
• Statutory Declaration of Executor of a Will or Administrator of an Estate who is also the Surviving Spouse or Common-Law Partner form.
• Statutory Declaration of the Surviving Spouse or Common-Law Partner form.

9.1.1 Joint Tenancy

Joint Tenancy is a form of lawful possession of reserve land in which two or more band members jointly hold equal undivided shares in the whole of a parcel of reserve land.

The distinguishing feature of an interest held in Joint Tenancy is that, upon the death of one Joint Tenant the deceased's interest in the land passes to the surviving Joint Tenant(s) by the right of survivorship.

9.1.2 Joint Tenancy Is Not Applicable in Quebec

Except for those joint tenancies already in existence, all parcels of land in the province of Quebec, excluding Akwesasne, are held in Tenancy in Common.

9.1.3 Tenancy in Common

Tenancy in Common is a form of lawful possession of reserve land in which two or more Band members, or one or more Band members and the Band itself, hold reserve land in equal or unequal undivided shares. Unlike Joint Tenancy, Tenancy in Common has no right of survivorship. Therefore, upon the death of one of the tenants in common, the deceased's interest in the land passes to the deceased's estate or heirs.

Review the Matrimonial Real Property (MRP) forms, especially the helpful hints, to determine if any of the MRP forms are required. See the chapter on Family Homes on Reserves and Matrimonial Interests or Rights Act. Links to the appropriate forms are included in the chapter.

9.1.4 Creation of a Joint Tenancy or a Tenancy in Common

The manner in which two or more Band members hold lawful possession of reserve land must be decided at the time they acquire the interest in the land. The manner of possession should be shown on the instrument, and/or the Band members should execute an agreement specifying the form of tenancy.

This agreement shall be made using the form "Joint Tenancy Agreement" or the form "tenancy in common agreement".

The form "Joint Tenancy Agreement" for Joint Tenancy can be signed by all Joint Tenants and witnessed. An affidavit of witness is not required.

The form "Tenancy in Common Agreement" for Tenancy in Common may be signed by all new (as opposed to pre‑existing) Tenants in Common, optionally.

9.1.5 Lawful Possession Default

If the Band members do not indicate on a Transfer and there is no agreement signed as to the manner in which they want to hold the property at the time the lawful possession of reserve land is acquired (e.g., silent on the instrument), the interest will be recorded as being held as Tenants in Common. The Land Registrar encourages the practice of executing the form "Tenancy in Common Agreement", and attaching it to each Transfer instrument (except Quebec Transfer instruments, but within Quebec excluding Akwesasne Transfer instruments).

9.1.6 Issuance of Certificate of Possession or Occupation

When Joint Tenancy exists, the same number will be issued on the Certificates of Possession (CP) or Certificates of Occupation (CO). Each joint tenant receives an original certificate.

When Tenancy in Common exists, a separate CP number, CO number, or OKA Letter (for Kanesatake Lands in Quebec) will be issued for each lawful possessor outlining his/her respective undivided fractional interest. There are as many certificate numbers as there are lawful possessors.

9.1.7 Severance of Joint Tenancy

Joint Tenancy can be severed (e.g., changed to an interest held in Tenancy in Common) at any time in any of the following ways:

1. A Joint Tenant may transfer in writing his/her interest to any other Band member or to the Band itself without being required to obtain the consent of the other Joint Tenant(s). Their undivided interest must be shown on the Transfer document or the statement that they are transferring all their interest in the land. A Joint Tenant may not transfer his/her interest to him/herself in order to sever a Joint Tenancy, as this is contrary to Section 24 of the Indian Act.

2. All Joint Tenants may enter into a written agreement to hold the interests as Tenancy in Common.
3. All Joint Tenants may enter into a written agreement to partition their interest (divide the parcel of land into smaller parcels of land and each take one or more of the smaller parcels) and sever the Joint Tenancy. This agreement would require approval pursuant to Section 24 of the Indian Act.

9.1.8 Subdivision of a Parcel Held in Joint Tenancy

When Joint Tenants subdivide their parcel of land and all the Joint Tenants transfer a portion of the original parcel to the Band or another Band member, the Joint Tenancy in regard to the subdivided parcel(s) that they retain will not be severed, but rather they will continue to hold the retained parcel(s) as Joint Tenants.

9.1.9 Subdivision of Parcels Held as Tenants In Common

Severance, which is applicable to a Joint Tenancy situation, is not applicable to a Tenancy in Common situation. Tenants in Common may enter into a written agreement to partition their interest (divide the parcel of land into smaller parcels of land and each take possession one or more of the smaller parcels) and dissolve the Tenancy in Common.

9.1.10 Death of a Joint Tenant

In cases of joint tenancy, the following procedure applies: Upon the receipt of an application for transfer with attached certified true copy of a death certificate or funeral director certificate, the surviving joint tenant is entitled to the land by right of survivorship. An Affidavit of Execution must accompany the Application for the Transfer of Joint Tenancy by Survivorship form. Ministerial Consent is required when evidence of title is to be issued to the surviving joint tenant(s). If there are multiple surviving joint tenants it is acceptable for one tenant to complete the Application for Transfer of a Joint Tenancy by Survivorship form. If the deceased is in possession of more than one parcel of land, the application must list all the land to be transferred.

A new CP or CO may be issued to the surviving Joint Tenant(s), without the provision of a death certificate, where the death of a Band member can be confirmed by reference to Band membership records.

9.1.11 Death of a Tenant in Common – CP Land

If an interest is held as Tenants in Common, the recording of the death certificate does not change the previously registered interest. If the deceased is in possession of more than one lot, one Transfer by Personal Representative can be submitted by the Administrator or Executor of the Estate with a listing of the legal description of each of the individual's lots that are to be transferred.

If the deceased was living on reserve, the deceased's estate must be dealt with by the Regional Office, Estates Unit. An Administrative Transfer is required that includes an Appointment of Administrator or an Approval of Will.

If the deceased was living off reserve, then a Court approves an Administrator or Executor, and the Executor or Administrator must submit a Transfer by Personal Representative along with a court certified copy of the Probate documents.

Matrimonial Real Property

Review the Matrimonial Real Property (MRP) forms, especially the helpful hints, to determine if MRP forms are required. See the chapter on Family Homes on Reserves and Matrimonial Interests or Rights Act. Links to the appropriate forms are included in the chapter.

Tenants in Common

If the Admin Transfer is transferring from an Estate to more than one individual and the form of tenancy is silent, they hold the interest as tenants in common.

Joint Tenants – Death of One Tenant

If land was held in lawful possession as joint tenancy the Application for the Transfer of Joint Tenancy by Survivorship is used and must include a certified true copy of the death certificate or funeral director's certificate. If a certified death certificate is not included the date of death must be verified by the Lands Registration Officer through the Indian Registration System (IRS). If there are multiple surviving joint tenants each will receive an equal interest in the land held by the deceased.

Joint Tenants – Death of Both Joint Tenants

If both tenants die the administrator or executor of the "surviving" tenant (i.e. last to die) completes an Application for the Transfer of Joint Tenancy by Survivorship to transfer the parcel to the estate of the "surviving" tenant.

Wills

If attached, the Will is to be retained on file by the Regional Estates Unit. The ILR will no longer accept Wills as supporting documentation. If Admin Transfer reflects "Will attached" it is acceptable for registration purposes that the Will is not attached.

Individual resides off reserve

The Will of the lawful possessor must be probated through a Court. The Admin Transfer must also be approved by a delegated Ministerial Representative, under section 49 of the Indian Act. The Minister's representative does not have the authority to approve the Will or appoint an administrator.

Individual resides on reserve

The Section 49 Admin Transfer must be approved by a delegated ministerial representative and must be accompanied by a certified true copy of the Appointment of Administrator/Approval of Will and Appointment of Executor (etc.). An administrator can also be appointed by the department or the Court. An executor must be named in the Approval of Will.

Discharge of Caveat for Kahnawake Indian Reserve

A Discharge of a Caveat discharges a previously registered Caveat.

The Right to Deposit a Notice

An individual may deposit a Notice with the applicable INAC Regional Office. The individual depositing the Notice must be claiming a right or interest related to reserve, designated or surrendered land, by virtue of one of the following reasons:

1. An unregistered instrument that is not acceptable for immediate registration.
2. The operation of law (e.g., a Court Order).
3. Other evidence of a claim to an interest in a parcel or reserve, Designated, or Surrendered land.

Form and Content of a Notice

The Notice may be in a form and must contain the following information:

1. The full legal name of the person claiming the right or interest.
2. The address of the person, or their representative, claiming the right or interest.
3. The nature of the right or interest claimed.
4. The grounds for the claim.
5. The description of the parcel or reserve, designated or surrendered lands.

Effect of Depositing a Notice

The registration of a Notice shall not delay, restrict nor prevent the registration of subsequent instruments affecting the same parcel of reserve, designated or surrendered land.
Upon the registration of a Notice in the Indian Lands Registry System, the Registrar is not responsible for notifying the person(s) affected by the claim, but rather, as noted in Due Diligence Responsibility, it is the responsibility of the parties to a transaction to satisfy themselves as to the status of the relevant parcel prior to submitting an instrument for registration.

Deposit of a Response to a Notice

A person against whose interest a Notice is registered may register a "Response to a Notice".

Withdrawal of a Notice

The person claiming the right or interest may at any time withdraw the Notice by registering a "Withdrawal of a Notice".

Execution under Power of Attorney

To be registrable in the ILRS, an instrument signed under a Power of Attorney must:

1. be accompanied by one of the following documents:
   1. the original Power of Attorney; or
   2. a copy of the original Power of Attorney certified by the person who has custody of the original.
2. be executed on behalf of the principal by the person holding the Power of Attorney in his/her own name and must indicate the name of the principal on the instrument.

Revocation of Power of Attorney

A revocation of a Power of Attorney is registered in the IRLS by using Instrument Code 024 – Revocation.

Access Agreement Documents

In cases where there is no access (road allowance, street or lane) shown on a plan, the following will be accepted in relation to the lawful possession of reserve land:

1. When there is access over land held by lawful possessors, a witnessed Right of Way Agreement is required providing for access in perpetuity, signed by all adjoining interest holders over whose land the access is being provided agreeing to the access, and its approximate location described textually along with a sketch showing the access marked in bold based on the current plan(s) defining the adjoining interests.

2. When access is over Band land, a Band Council Resolution (BCR) agreeing to the access and giving its approximate location is required except where it is identified as a road.
3. Subject to Preparation of the Instrument, when new parcels are being created by the subdivision of an "existing land-locked parcel" (e.g., a parcel which was land-locked prior to January 1, 1989), all new parcels must have access to the point of entry of the original land-locked parcel, and a witnessed agreement signed by each Band member who holds an interest in any of the new parcels must be provided accepting lawful possession under these conditions. (See Acceptance Agreement For Lawful Possession Of Land-Locked Parcel.)
4. A new allotment or subdivided interest – Where access is through the reserve boundary or over a body of water, a witnessed agreement is required, signed by all affected Band members accepting lawful possession under these conditions.
5. Islands do not require an access agreement.

10.1.1 Section 53(1) Lease

Pursuant to Section 53(1) of the Indian Act land may be leased for any purpose that is specified in the designation document. The term of the lease cannot last longer than the term of the designation. This is the only type of lease that requires a designation.

10.1.2 Section 58(1)(b) Lease

Pursuant to Section 58(1)(b) the Minister may lease Reserve land in lawful possession of an Indian for:

• agricultural/grazing purposes; or
• for any purpose that is beneficial to the lawful possessor (locatee). Lawful Possessor consent must be provided.

10.1.3 Section 58(1)(c) Lease

Pursuant to Section 58(1) of the Indian Act the Minister may grant, for the benefit of the Band for whom the land was set apart, a lease for agricultural or grazing purposes.

10.1.4 Section 58(3) Lease

Pursuant to Section 58(3) of the Indian Act the Minister may lease for the benefit of any Indian, on application, Reserve land that is in lawful possession of the lawful possessor. Lawful possessor consent must be provided.

Court Order – Matrimonial Real Property

The provisional federal legislation enables provincial courts to issue various orders in support of The Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA). FHRMIRA does not require orders to be registered, however, once provided, officers need to register accordingly.

When a court is ordering the transfer of the property (Section 31) of the FHRMIRA, an application and a Transfer of a right to possession of reserve land by court order must be completed by the land officer or applicant.

All hard copies of Notices and Orders must be maintained by the Corporate Information Management Directorate at Indigenous and Northern Affairs Canada. Ensure that a file number and protected level are written on each document before providing to:

Attn: Manon Robitaille, Records Office, INAC
Room 1435, 10 Wellington Street, Gatineau, QC K1A 0H4

Please refer to the list of naming conventions and file number and security designations.

The Right to Deposit a Notice

An individual may deposit a Notice with the applicable Regional Office. The person depositing the Notice must be claiming a right or interest related to reserve, designated or surrendered landsland, by virtue of one of the following reasons:

1. An unregistered instrument that is not acceptable for immediate registration.
2. The operation of law (e.g., a Court Order).
3. Other evidence of a claim to an interest in reserve, Designated, or Surrendered land.

Form and Content of a Notice

The Notice may be in a form and must contain the following information:

1. The full legal name of the person claiming the right or interest.
2. The address of the person, or their representative, claiming the right or interest.
3. The nature of the right or interest claimed.
4. The grounds for the claim.
5. The description of the parcel of reserve Designated or Surrendered land.

Effect of Depositing a Notice

The registration of a Notice shall not delay, restrict nor prevent the registration of subsequent instruments affecting the same parcel of reserve, designated or surrendered land provided that the instruments meet registration requirements.

Upon the registration of a Notice in the Indian Lands Registry System, the Registrar is not responsible for notifying the person(s) affected by the claim, but rather, as noted in Due Diligence Responsibility, it is the responsibility of the parties to a transaction to satisfy themselves as to the status of the relevant parcel prior to submitting an instrument for registration.

Deposit of a Response to a Notice

A person against whose interest a Notice is registered may register a "Response to a Notice".

Withdrawal of a Notice

The person claiming the right or interest may at any time withdraw the Notice by registering a "Withdrawal of a Notice".

Execution under Power of Attorney

To be registrable in the ILRS, an instrument signed under a Power of Attorney must:

1. be accompanied by one of the following documents:
   1. the original Power of Attorney; or
   2. a copy of the original Power of Attorney certified by the person who has custody of the original.
2. be executed on behalf of the principal by the person holding the Power of Attorney in his/her own name and must indicate the name of the principal on the instrument.

Revocation of Power of Attorney

A revocation of a Power of Attorney is registered in the IRLS by using Instrument Code 024 – Revocation.

11.7.1 Addendum – Instrument Code 001

An Addendum is used when adding an additional clause to the original document. Original parties must consent/approve of the change. A BCR should accompany the Addendum.

11.7.2 Amendment – Instrument Code 057

11.7.3 Assignment – Instrument Code 003

The ability to assign a subsection 28(2) permit must be considered on a case by case basis taking into consideration the circumstances and nature of the interest being granted.

Refer to the Land Management Manual.

11.7.4 Band Council Resolution (BCR) – Instrument Code 004

A BCR can be used to authorize an extension of a permit.

11.7.5 Cancellation – Instrument Code 005

A Cancellation is used to cancel a previously registered permit and requires Ministerial Approval (Regional Offices).

11.7.6 Modification – Instrument Code 209

A Modification modifies a registered permit.

11.7.7 Name Change – Instrument Code - 079

On application, a name change is registered to reflect a change of name of a Permittee (company or individual) holding a registered interest in reserve lands. Proof of the name change such as a certificate of name change or a certificate of amalgamation must accompany the application. In this situation, a certified true copy is acceptable.

11.7.8 Notice – Instrument Code 075

A Notice is a document that when registered in the Indian Lands Registry System, reflects the existence of a claim or interest, whether legally valid or not, against a parcel or reserve, designated or surrendered land.

A Notice which has not been withdrawn expires three (3) years after the date upon which it was registered.

11.7.9 Oil and Gas Permit Notice – Instrument Code 116

This instrument is evidence of a claim made against a sub-surface oil and gas interest. This document has a term and a purpose.

11.7.10 Relinquishment – Instrument Code 022

A Relinquishment is registered when an individual is renouncing their interest in a permit.