Leasing First Nations Lands from a Locatee

Indian and Northern Affairs Canada (“INAC”) is the arm of the federal government responsible for managing leasing of First Nations lands.  INAC has an extensive process before a lease can be approved and registered in the Indian Lands Registry.  The steps listed in this Article can be conducted concurrently with the negotiation of the terms of the lease.  The “Locatee” is the Band member who has a right of occupation in the land to be leased, usually by a Certificate of Possession.  The “Proponent” is the person seeking to lease the land.

The process in this article does not apply to the lands of the Westbank First Nation or other Bands which have their own Land Code.

1.    Application to INAC
When:  Initial Step
Who:  The Locatee
The Locatee applies to INAC to lease the lands.  The application requires that the Locatee provide information about the Proponent and the general nature of the plans for the type of use for which the lands will be developed. 

2.    Band Approval of Lease if greater than 49 years
When:  Before lease finalized and approved by INAC
Who:  The Locatee
A lease can be made for a term of up to 49 year without having to obtain approval from the Band.  However, any lease between 49 years and 99 years must be approved by the Band.  Leases with terms of longer than 99 years will not be approved by INAC.
 

3.    Survey
When:  Before lease finalized and approved by INAC
Who:  The Proponent
A survey is required if the land to be leased is part of a larger parcel or if boundary changes are necessary. The survey will show the exact area of the lands to be leased, and must be completed by a registered Canada Lands Surveyor.  A survey is also required for any permit areas relating to access to the lands if the lands do not have direct access to a public highway.  The surveyor must contact the Department of Natural Resources at the federal government to obtain survey instructions.  A Band Council Resolution is required to allow a surveyor to survey the Lands and any permit areas.  A new survey is not required if there is a Canada Lands Survey already registered in the Indian Lands Registry and there will be no changes to the boundaries of the parcel to be leased.
 

4.    Appraisal
When:  Before lease finalized and approved by INAC
Who:  The Proponent
The appraisal will show the value of the lands, assessed as the reasonable highest and best use of the land based on surrounding on and off reserve lands and market conditions.  The lands are evaluated as if the zoning is in place for the Proponent’s intended use.  INAC may require that the appraisal consider two approaches to value.  Appraisals are also required for any permit areas.
 

5.    Environmental Assessment
When:  Before lease finalized and approved by INAC and before review of technical plans
Who:  The Proponent
An environmental impact assessment for the proposed use must be conducted.  The environmental consultant must contact the Band for input into the assessment.  INAC provides general terms of reference which must be followed by the environmental consultant.  This environmental assessment provides a baseline of the environmental condition of the lands prior to leasing, and will also consider the impact of any proposed development.
 

6.    Highway Access and Servicing, if required
When:  Before lease finalized and approved by INAC and before review of technical plans
Who:  The Proponent
If adjustments need to be made to access a highway to accommodate the development, then consent must be obtained from the British Columbia Ministry of Transportation and Infrastructure.  The Proponent will need to make arrangements for water, sewer, electricity, gas, fire and any other applicable services which are not already sufficiently provided for at the site.  These steps would not be required if there is no new development or change in use.
 

7.    Design Approval, if required
When:  Before lease finalized and approved by INAC
Who:  The Proponent
The Proponent must submit a conceptual engineering study and conceptual drawing to INAC for approval.  Band input may also be required.  This would not apply if no new development is taking place.

Upon completion of these steps and negotiation of the lease, the lease can be signed by the parties and registered in the Indian Lands Registry.  The Proponent can begin the construction phase of the project once the lease is registered.  In my next article, I will review the legal documents which are typically prepared in connection with a development on First Nations lands. 
Andrea East is a business lawyer at Pushor Mitchell LLP practicing in the area of First Nations Law.  You can reach Andrea at 250-869-1245 if you would like help in preparing or negotiating a lease of First Nations land.