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Overcoming obstacles to on-reserve project development – Indigenous Law Insights March 2022 (webinar)

Author(s): Richard J. King, Isabelle Crew

Mar 29, 2022

The uncertainty of the legal status of an Indian “band” poses challenges for developers looking to lease land or make some form of property arrangement on a reserve. As part of Osler’s monthly Indigenous Law Insights webinar series, Richard King, partner, Regulatory, Indigenous and Environmental Group, and Isabelle Crew, associate, Litigation;  Environmental, Indigenous and Land Group, discuss ways to address this challenge.

Although the precise legal status of an Indian band is not perfectly clear, the contemporary view of the courts is to recognize that bands and their councils have legal capacity in a wide range of situations. To ensure that a contract entered into with a First Nation constitutes a legally valid, binding set of obligations, the First Nation should be exercising this contract right pursuant to the consent of a majority of band councillors present at a meeting of the council convened on a timely basis.

The Indian Act provides for both “permits” and “designations” for the purpose of tenure on reserve lands. A permit can be used when a band is willing to allow third-party access to reserve lands for a fixed period of time, such as for the building of a pipeline. A supporting band council resolution is required for the permit to be issued. A designation is more permanent in nature and conveys certain limited rights or interest in a reserve land. Consent of a majority of electors of a band is required in a referendum, and designated lands are then leased.

The First Nations Land Management Act allows First Nations to assume responsibility for managing their reserve land according to a framework agreement between the band and the federal government. The First Nation establishes a land code that sets out the rules with regard to reserve land management, including zoning, environmental assessment, managing natural resources, and expropriation requirements.

View the March 2022 webinar