Federal Security Interests Research Study and Report 2000

APPENDIX F

Summary of legislative and regulatory provisions relating to indians and lands reserved to indians

Indian Act, R.S.C. 1985, c. I-5, s. 21, s. 55, s. 64(1)(h) and 89.

Paragraph 64(1)(h) empowers the Minister to authorize the making of loans to members of the band from the capital moneys of the band for the purpose of promoting the welfare of the band.; Such loans must not exceed one-half of the total value of the chattels owned by the borrower and the land with respect to which he holds or is eligible to receive a Certificate of Possession.; According to this provision, the Minister is entitled to charge interest and take security for such a loan.

Subsection 89(1) states that the real and personal property of an Indian or a band situated on a reserve “is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band”.; Subsections 89(1.1) and 89(2) provide two exceptions to this general rule:; leasehold interests in designated lands and agreements whereby the right of property or right of possession thereto remains wholly or in part in the seller.

Section 55 of the Act establishes a land registration system, the “Surrendered and Designated Lands Register”, whereby the registration of any “instrument that grants or claims a right, interest or charge in, or transfers, encumbers or affects Indian reserve, designated or surrendered lands” is effected. As well, section 21 of the Act establishes a “Reserve Register” by which certificates of possession or allotments to individual natives are registered.

Section 28 provides that any attempt to permit an individual, other than a band member to occupy or use a reserve land or to exercise any rights on that reserve land (by deed, lease, contract, document or agreement) is void.; Section 28(2) permits the Minister to grant an exception (for a period of one year) for a non-band individual to occupy or use reserve land, or to exercise any interest in the reserve land.

Section 58(3) provides that the Minister may lease for the benefit of any Indian (on the Indian’s application), the land of which the Indian is lawfully in possession.

First Nations Land Management Act, S.C. 1999, Ch. 24, s. 20(1)(a)(b), and 25(3).

The relevant paragraphs of this Act permit the development of a comprehensive First Nations land code by each of the signatory First Nations.; Paragraphs 20(1)(a) and (b) grant the First Nations power to enact laws in relation to interests in and licenses of first nation land.; Paragraph 25 of the Act enables the Governor in Council to create a First Nations Land Register system, similar to that created under the Indian Act.

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