Buckshee Leases of First Nations Land : Tenants Beware
“Buckshee lease” is a colloquial term for a lease entered into between a member of an Indian Band or the Band itself and an individual, first nations or not, where the lease has not been formally approved by the Department of Indian and Northern Affairs in accordance the Indian Act. Buckshee leases tend to appear on reserves where the Band does not have land management powers under the Indian Act.
Buckshee leases are quite commonly seen in informal leasing arrangements, such as campgrounds, recreational properties and the like, but are also used for primary residences. As an example, the Okanagan Indian Band estimates that there are 1500 or more Buckshee Leases on its reserve worth an estimated $375 million.
A recent decision of the British Columbia Supreme Court confirmed that Buckshee leases are unenforceable. In that case, an individual Band member entered into a Rental Agreement with the Band for a housing unit on reserve land. The Rental Agreement was not approved by the Ministry. The Rental Agreement included a probationary period of 2 years, with immediate eviction if there was damage or disturbance. The Band also had a policy for “Rent to Own” and the individual believed that he was making payments towards the purchase of his rental unit. The individual was disruptive, and the Band ultimately ended up evicting him from the rental unit after conducting investigations and holding a hearing.
The British Columbia Supreme Court found that the Rental Agreement was not enforceable against the Band and the individual had no right to the rental unit. Buckshee leases are contrary to the Indian Act. The court held that for the member to have an enforceable right, the member must hold either a certificate of possession or a lease granted in compliance with the Indian Act. If the Ministry approval is missing, then the tenant cannot enforce the lease against the Band. The Court held that the individual was trespassing and ordered that the Band had a right to vacant possession.
For a lease between a Band or Band member and a non-aboriginal, on other than Westbank First Nation land, the lease must be granted by the Crown through the Department of Indian and Northern Affairs, and must be registered in the Indian Land Registry to be enforceable. The Westbank First Nation has land management powers, and somewhat different rules apply.
If you hold a lease which you know is a Buckshee lease, you do not have a right to possession of the property against the Band or Band member. Your lease is subject to the continued goodwill of the Band or Band member, and if you end up in a dispute you will not have many rights. You should be very wary before investing in improvements. Further, Buckshee leases are not eligible for mortgages.
On the other hand, if you are dealing with a developer of residential housing, the leases will likely have the necessary approvals in order. When you make your purchase, this is one of the things your lawyer will be checking for you.
If you think you might have a Buckshee lease, but aren’t sure, you should bring a copy of your lease to your lawyer for review. Your lawyer can determine whether the lease is properly approved and give you advice on your options. Your lawyer can also help you if you know you have a Buckshee lease and have questions about your rights and responsibilities or wish to convert the Buckshee lease into an enforceable lease.
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 reviewing your lease arrangements.