Flooding, First Nations Land and Unregistered Leases
The recent flooding throughout the Province of British Columbia and specifically the Okanagan region creates unique problems for First Nation Bands and their members. Flooding can have a significant impact on lands located adjacent to lakes and rivers. As the waters recede, there may be health and environmental issues, such as flooded septic fields, that will need to be addressed.
Provincial laws and regulations that are intended to regulate environmental and health related issues that arise from flooding, such as British Columbia’s Environmental Management Act, do not apply on reserves as reserves are federal lands. Section 91(24) of the Constitution Act, 1867, states that the Federal Government has legislative authority over “Indians and Lands reserved for Indians. Unfortunately, the federal laws and regulations are often inadequate to ensure that the Tenant pays for the health and environmental damage. For example, there is no analogous federal legislation to the Environmental Management Act. As a result, First Nation Bands and their members must rely on the contractual provisions outlined in their leases, band council by-laws and the limited protections outlined federal acts and regulations such as the Indian Act, the Canadian Environmental Assessment Act, the Canadian Environmental Protection Act, 1999, and the Fisheries Act.
On reserves where there are no land management powers, many of the lease agreements are known as unregistered leases. Unregistered leases are informal leasing arrangements that have not been formally approved by Indigenous and Northern Affairs Canada. These leases do not provide the tenant with enforceable property rights, and landlords have limited options for enforcing tenant obligations. Despite the enforceability issues, these leases are common. For example, the Okanagan Indian Band estimates that over 1,500 leases exist on their lands.
An important question arises: Who is responsible for addressing the environmental and health related issues on lands where these leases exist? While many landlords believe their tenants would be responsible in such a situation, this may not be the case. Since these leases are often unenforceable, a landlord can be exposed to significant liability where environmental and health related issues arise on the lands subject to this type of lease. This underscores the importance of enforceable and comprehensive lease agreements between landlords and tenants on reserve. If you have questions regarding the enforceability of a unregistered lease or if you would like to convert it into an enforceable lease, it is recommended that you speak to a lawyer.