Definitions and interpretation

366   (1) In this Part:

"band" means a body of Indians that,

(a) under an Act of Canada, is established as a legal entity with the capacity of a natural person and is the successor to a band as defined in the Indian Act (Canada), and

(b) has been prescribed by the Lieutenant Governor in Council to be a designated band for the purpose of applying the Torrens system to Indian land;

"council" means the governing body of a band;

"Indian land" means land reserved for the Indians within the meaning of section 91 (24) of the Constitution Acts, 1867 to 1982;

"patent" means an instrument, not being a statute or regulation of Canada, by which the Crown in Right of Canada grants to a band an estate in fee simple in Indian land or confirms that an estate in fee simple in Indian land is vested in a band, and, for the purposes of this definition, the reference to the Crown in Right of Canada must be read as including a reference to any officer of the Department of Indian and Northern Affairs or its statutory predecessor, in whose name a title in fee simple to Indian land is registered under this Act;

"Torrens system" means this Act and all other enactments and laws of British Columbia that, from time to time, relate to the registration of title to, rights in, claims against and estates and interests in land whether legal or equitable, and the creation, conveyancing, transmission, inheritance, devolution and enforcement of them.

(2) In this Part, a reference to a certificate of encumbrances is a reference to a certificate prepared by a public officer of Canada in a form satisfactory to the registrar, and certifying to the satisfaction of the registrar that

(a) as of the date of the certificate the subsisting estates and interests described in it represent all of the rights, claims, estates and interests to which the fee simple estate in the land described in the certificate is subject and that no other rights, claims, estates or interests exist,

(b) if the Indian land is sought to be registered under section 370, all rights, claims, estates and interests then registered under this Act have priority over any other rights, claims, estates and interests in land described in the certificate,

(c) a plan of the land described in the application is attached to it, and

(d) with respect to each subsisting estate or interest, the plan identifies the areas affected by them.

(3) The plan referred to in subsection (2) (c) must be based on a survey that complies with this Act, rules made under section 385 (5) and any standards set by the Surveyor General for a survey plan intended for deposit under this Act.

Filing of patent

367   (1) A patent may, subject to this section, be filed in the proper land title office.

(2) The patent must not be filed unless and until the following have occurred:

(a) Canada has, by enactment,

(i) conferred on the band or its council the power to make laws authorizing the registration, in accordance with the Torrens system, of estates or interests in Indian land of the band, and for that purpose to make laws applying the Torrens system to that land, and

(ii) disapplied, in respect of the Indian land of the band that is or becomes registered under this Act, provisions of Acts of Canada that the Lieutenant Governor in Council, by regulation, specifies to be incompatible with the Torrens system;

(b) the band or its council, pursuant to the constitution of the band, has enacted a law in a form prescribed by the Lieutenant Governor in Council

(i) applying the Torrens system to the Indian land of the band that is or becomes registered under this Act, and

(ii) providing that, on the enactment by the band or its council of a further law authorizing an application for registration of an indefeasible title under this Act to Indian land of the band, the application may be made in respect of the Indian land described in that further law;

(c) the patent or a copy certified by the Clerk of the Privy Council for Canada to be a true copy of the patent, together with the certificate and plan referred to in paragraph (d) (ii), are transmitted by Canada directly to the proper land title office for filing, and they have been filed in that office under subsection (3);

(d) the patent is accompanied by

(i) a certificate of a public officer of Canada in a form satisfactory to the registrar and certifying to the satisfaction of the registrar that the land described in the patent represents all of the land transferred in fee simple to the band under the enactment that directed the patent to be issued, and

(ii) a plan of the land described in the patent based on a survey, that complies with this Act and the rules made under section 385 (5), on which a certificate of a public officer of Canada has been endorsed certifying, to the satisfaction of the registrar, that the land shown in the plan represents all of the land described in the patent;

(e) the patent preserves, excepts and reserves to and for the benefit of

(i) the Province, and

(ii) persons duly authorized by the Province

all rights, estates and interests held by, or reserved to, or arising in favour of, or exercisable by

(iii) the Province, or

(iv) persons duly authorized by the Province

in respect of the lands described in the patent, including all such rights, estates and interests that are held, reserved, or exercisable or that arise under or because of the following:

(v) the order of the Lieutenant Governor in Council, approved on July 29, 1938 (order in council 1036/38) as modified by the order of the Lieutenant Governor in Council, approved on May 13, 1969 (order in council 1555/69);

(vi) the order of the Governor General of Canada in Council, approved on February 3, 1930 (P.C. 208) and the memorandum of agreement entered into between the Government of the Dominion of Canada and the Government of British Columbia, set out in the Schedule to the Constitution Act, 1930;

(vii) any other federal or provincial order in council, enactment or instrument issued before the issue of the patent;

(f) the band named in the patent as transferee has been prescribed by the Lieutenant Governor in Council as a designated band for the purpose of applying the Torrens system to Indian land;

(g) the Lieutenant Governor in Council is satisfied, on the report of the minister, that the requirements of paragraphs (a) to (f) have been met, and the Lieutenant Governor in Council has consented to the filing of the patent.

(3) The consent of the Lieutenant Governor in Council under subsection (2) (g) is proof to the registrar that the requirements of subsection (2) have been met, and the registrar must, on the giving of that consent, file the patent and the certificate and plan referred to in subsection (2) (d) that accompanies the patent and must make a note of the filing in the records in the manner required by the director.

(4) The filing of a patent under this section does not, of itself, constitute registration of an indefeasible title to the fee simple estate created or confirmed by the patent, but the filing is sufficient proof to the registrar that the band to which the patent granted the land has established a good, safeholding and marketable title, subject only to

(a) in the case of land, the title to which is not registered under this Act at the time of filing, such other rights, estates and interests as are described in a certificate of encumbrances filed in support of an application under section 368 and that become registered under this Act, or

(b) in the case of land, the title to which is registered under this Act at the time of filing, such other rights, estates and interests as are entered, noted or endorsed on the register or are subsequently described in a certificate of encumbrances and that become registered under this Act, and

(c) in either case, such other rights, estates and interests as are referred to in subsection (2) (e) or section 23 (2) (a).

Application for registration of Indian land — general

368   (1) If a patent grants or confirms Indian land in fee simple to a band, the band may apply to be registered as owner of an indefeasible title in fee simple to all or part of the land, subject to the estates and interests in the land described in the certificate of encumbrances.

(2) An application under this section must not be received by the registrar unless

(a) it is accompanied by a copy of a law of the band or its council authorizing the application that is in the form prescribed by the Lieutenant Governor in Council and is certified by a person designated as the authorized signatory of the band,

(b) it is accompanied by a certificate of encumbrances in respect of the land affected by the application, and

(c) a patent granting or confirming the Indian land in fee simple to the band has been filed under section 367.

(3) The registrar may waive the requirement under section 366 (2) (c) for a plan if the application relates to land already described by a plan on deposit in the land title office at the time of the application and the registrar is of the opinion that no further plan or description of the land is necessary for the purpose of registering an indefeasible title to it.

(4) In addition to the instruments referred to in this section, the registrar may require such further evidence as the registrar considers necessary to determine priorities among the subsisting estates and interests and the areas of the land affected by them.

(5) Subject to section 370 (4), an estate or interest that

(a) subsists at the time of an application under section 369 or 370, and

(b) is not described in the certificate of encumbrances filed in support of the application

must not be registered.

(6) Subsection (5) must not be construed as preventing or requiring the registration of rights of the Province referred to in section 23 (2) (a) or section 367 (2) (e), but those rights are valid and enforceable whether or not they are registered under this Act.

(7) The registrar must not register a title claimed by the band in an application to which section 369 or 370 applies if the certificate of encumbrances filed in support of the application is dated earlier than the date the application is made, until the applicant files a further certificate of encumbrances dated no earlier than the date the application is made.

(8) To the extent necessary to give effect to the application, the registrar may dispense with a requirement under section 156 (1) or (2).

Where application affects unregistered Indian land

369   (1) If an application under section 368 relates to Indian land the title to which, at the time of the application, has not been registered under this Act, the registrar must, subject to this section, register the title claimed by the band.

(2) If, on examination of the application, the registrar is of the opinion that an estate or interest referred to in the certificate of encumbrances

(a) affects other unregistered land not included in the application, or

(b) cannot, immediately on registration of the title claimed, be registered in compliance with section 73,

the registrar may defer consideration of the application until the applicant applies to register any further instruments that the registrar considers necessary to register the estate and interest as a charge in compliance with section 73.

(3) If the registrar considers that an application to which this section applies raises a question of priorities, the registrar may, on notice to the applicant and to any other person the registrar deems necessary, defer registration of the title and the charge until the question has been resolved

(a) by the court,

(b) by agreement among the persons affected, or

(c) in any other manner satisfactory to the registrar.

(4) In the circumstances described in subsection (2), the registrar may cancel the application and give notice of its cancellation to the applicant.

(5) If the certificate of encumbrances filed in support of the application describes a subsisting estate or interest to which the fee simple estate in the land described in the application is or may be subject, the registrar must, on receipt of the application, file a caveat against it and, until the caveat is cancelled or expires, the title applied for or any estate or interest in the land must not be registered.

(6) The registrar may, after the caveat is filed, order the applicant to serve, on each owner of an estate or interest described in the certificate of encumbrances, a notice of the application under section 368, and the notice must

(a) contain a description of the land,

(b) state that the owner may, subject to this Act, apply for registration of the estate or interest as a charge, and

(c) be accompanied by a true copy of this section and of the certificate of encumbrances,

and unless the applicant has, before the expiration of the caveat, filed proof, satisfactory to the registrar, of the date on which the notice was personally served or, if the registrar has ordered another method of service, that the notice was served in accordance with that other method, the registrar must cancel the application.

(7) The owner of an estate or interest described in the certificate of encumbrances may, despite the caveat, apply for registration of the estate or interest as a charge.

(8) The registrar must cancel a caveat filed under subsection (5) if, in respect of each and every subsisting estate and interest described in the certificate of encumbrances that gave rise to the caveat, one of the following events has occurred:

(a) an application to register it as a charge has been made by the owner of it and the registrar considers that the charge may be properly registered;

(b) a public officer of Canada duly authorized to do so has delivered to the registrar a certificate signed by the public officer stating that the estate or interest described in the certificate of encumbrances and identified in the certificate no longer affects the land;

(c) a person to whom a notice respecting a particular estate or interest has been given has delivered to the registrar a surrender or quit claim of the person's estate or interest that is sufficient to extinguish it.

(9) A caveat filed under this section by the registrar expires, unless it has been earlier cancelled under subsection (8), on the later of the following dates:

(a) the date that is 180 days after the date the caveat was filed;

(b) the date that is 180 days after the date when a notice referred to in subsection (6) has in accordance with that subsection been served on all the persons on whom the notice was directed to be served.

(10) An estate or interest described in the certificate of encumbrances must not be registered as a charge

(a) if the description of the land affected by the instrument creating the charge is not, in the opinion of the registrar, sufficient to identify the land in the records,

(b) in contravention of section 73,

(c) if an indefeasible title to the whole of the land affected by the charge is not then registered, or

(d) if the estate or interest is otherwise not capable of registration.

(11) The priority of an estate or interest referred to in subsection (5) in respect of which registration has been applied for before the cancellation or expiration of the caveat filed under this section must, subject to a contrary intention appearing from the instrument creating the estate or interest, be according to the date of execution of that instrument and not according to the date and time of the application for registration of it as a charge.

(12) Section 28 applies in respect of an estate or interest referred to in subsection (5) in respect of which application for registration has not been made before the expiration of the caveat filed under this section.

If application affects registered Indian land

370   (1) If an application under section 368 relates to Indian land, the title to which is, at the time of the application, already registered under this Act, the registrar must, subject to this section, cancel the previously registered title and register a new title in the name of the band.

(2) The registrar must not register the title claimed in the application unless the registrar is satisfied that the land described in the patent includes all of the land covered by the previously registered title and the certificate of encumbrances filed in support of the application satisfies the requirements of section 366 (2) (b).

(3) If, in the opinion of the registrar, an application to which this section applies is affected by an estate or interest described in the certificate of encumbrances that is not then entered, noted or endorsed in the register,

(a) section 369 (5) to (10) applies with respect to that estate or interest, and

(b) on registration of the estate or interest, its priority must be determined in accordance with section 28.

(4) An interest or estate that is entered, noted or endorsed on the previously registered title at the time of the application under section 368 is not affected by the absence of any reference to it in the patent or certificate of encumbrances or, where there is a reference to it, by any inconsistency between that reference and the register.

(5) This section does not operate to permit a subdivision of the land covered by the previously registered title otherwise than in compliance with this Act.

(6) The registrar must not register any dealings in Indian land that, on the coming into force of this section, is already registered under this Act, until a new title to that land is registered under subsection (1).

(7) Subsection (6) does not

(a) apply to a dealing by the owner of an estate or interest that is registered as a charge on the previously registered title, or

(b) operate to prevent the registration of a judgment, claim of lien under the Builders Lien Act, caveat, certificate of pending litigation or other involuntary charge.

Other laws not to affect Torrens system

371   (1) For the purpose of applying the Torrens system to Indian land the registrar is not under any duty to take notice of, act on, inquire into or give effect to any enactment of Canada or to any law of a band or its council that

(a) relates to the registration of title to, rights in, claims against or estates or interests in land, whether legal or equitable, or the creation, conveyancing, transmission, inheritance, devolution or enforcement of them,

(b) creates a trust or fiduciary duty in the band to hold land for the use and benefit of itself and its members, or

(c) expressly or by necessary implication requires the registrar to perform a duty or exercise a power that the registrar would not otherwise be required to perform or exercise with respect to the land if it were not Indian land.

(2) Nothing in subsection (1) is to be construed or operates to prevent

(a) the exercise by the Province or by persons duly authorized by the Province, or

(b) effect being given to,

any right, estate or interest referred to in section 367 (2) (e).

(3) An estate or interest in land claimed or asserted by any person claiming to be the beneficial owner of land under a trust or fiduciary duty referred to in subsection (1) (b) must not be registered under this Act.

(4) If a band or its council

(a) amends all or part of a law required by section 367 (2) (b) or 368 (2) (a) without first receiving the written approval of the minister, or

(b) repeals all or part of a law referred to in paragraph (a),

the registrar must

(c) lodge a caveat against all indefeasible titles to Indian land of that band,

(d) not register any other instruments affecting the Indian land of that band, and

(e) not accept any application to register any other instrument affecting the Indian land of that band,

and any application affecting the Indian land of that band that is then pending is void.

Execution of instruments

372   (1) For the purpose of applying the Torrens system to Indian land and to dealings in other land of a band to which section 373.1 applies, an instrument executed by or on behalf of a band or its council is conclusively deemed to be properly executed if

(a) the seal of the band or its council is affixed to the instrument in the presence of a person described as an authorized signatory, and

(b) execution is proved in the same manner as is provided in section 46, in cases of execution by a corporation.

(2) An instrument executed and proved in compliance with subsection (1) constitutes conclusive proof to the registrar that the requirements of the constitution of the band and laws of the band or its council relating to the execution of the instrument and the disposition contemplated by it have been fulfilled.

(3) If an instrument executed by or on behalf of a band is presented for registration under this Act, the registrar need not act on, inquire into or give effect to the constitution of the band or to any law of the band or its council, or make any inquiry into the capacity of either of them or make any other inquiry into whether or not

(a) the constitution of the band or any law of the band or its council is in force,

(b) the transaction contemplated by the instrument was duly authorized in accordance with the constitution of the band or the laws of the band or its council,

(c) all rules and procedures established by the band or its council respecting the disposition of an estate or interest in land have been complied with, or

(d) the band subsists as a legal entity.

Liability limited

373   In addition to the limits of liability established under sections 294.6 and 303, neither the assurance fund under Part 19.1, nor the assurance fund under Part 20, nor the Land Title and Survey Authority nor the minister is, under any circumstances, liable for compensation for loss, damage or deprivation

(a) occasioned to or suffered by a person entitled to an estate or interest in Indian land that subsisted at the time an application under section 368 is made, as a result of the operation of this Part,

(b) occasioned to or suffered by Canada, a band, a member of the band or any other person under a trust or fiduciary duty affecting Indian land existing at the time Indian land is conveyed by the Crown or because of a breach of that trust or fiduciary duty,

(c) occasioned by an ultra vires or unlawful act of the band or its council, by any lack of capacity on the part of the band or its council to hold or dispose of land, or by the improper use of the seal of either of them, or

(d) occasioned by or suffered in consequence of an amendment or repeal of all or part of a law referred to in section 367 (2) (b), 368 (2) (a) or 373.1 (1) unless the amendment or repeal has been approved by the minister in writing.

Not in force. Repealed.

373.1   [Not in force. Repealed 2006-33-1.]