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LAND TITLE ACT – Continued
[RSBC 1996] CHAPTER 250

Part 24 – Registration of Title to Indian Lands

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 and regulations of the surveyor general or 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 by or 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 regulations of the Surveyor General and this Act 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 Attorney General, 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 Attorney General, 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 section 303, neither the assurance fund nor the Attorney General 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 Attorney General in writing.

Part 24.1 - Nisga'a Lands and Categories A and B Lands

Division 1 - Treatment of Nisga'a Lands and Institutions

Effect of indefeasible title to Nisga'a Lands

373.2 (1) An indefeasible title to a parcel of Nisga'a Lands, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following:

(a) the subsisting conditions, provisos, restrictions, exceptions and reservations, including royalties, set out in the Nisga'a certificate that relates to that parcel;

(b) a charge, tax, rate or assessment of the Nisga'a Nation at the date of the application for registration imposed or made a lien or that may after that date be imposed or made a lien on the parcel of land;

(c) a charge, rate or assessment of a Nisga'a Village at the date of the application for registration imposed or that may after that date be imposed on the parcel of land, or which had before that date been imposed for local improvements or otherwise and that was not then due and payable;

(d) a right of expropriation under a Nisga'a law.

(2) The matters to which an indefeasible title to a parcel of Nisga'a Lands is subject under subsection (1) are in addition to any other matters to which that title is subject under section 23 (2), as that section applies to that parcel under the Nisga'a Final Agreement.

Assignment of distinguishing letter by registrar

373.21 If a letter is assigned or an indefeasible title is registered under section 66 in respect of a parcel of Nisga'a Lands, the duty of the registrar under section 66 (5) to advise the taxing authority includes the duty to advise the Nisga'a Lisims Government.

Requirements as to subdivision in respect of Nisga'a Lands

373.22 (1) In applying section 75 (1) (c) or (d) to Nisga'a Lands, the reference to "rural area" must be read as a reference to Nisga'a Lands other than Nisga'a Village Lands.

(2) The approving officer, in considering the sufficiency of a highway shown on a plan with respect to Nisga'a Lands, has the same duty to consider the matters set out in section 75 (3) as the approving officer has under that section with respect to other lands.

Controlled access highways

373.23 Section 80 (b) does not apply to Nisga'a Lands.

Tender of plan for examination and approval

373.3 (1) Section 83 does not apply to Nisga'a Lands.

(2) A subdivision plan in respect of a parcel of Nisga'a Lands must be tendered for examination and approval by the approving officer as follows:

(a) if the land affected is within Nisga'a Lands, other than Nisga'a Village Lands, to the chief administrative officer of the Nisga'a Lisims Government;

(b) if the land affected is within Nisga'a Village Lands, to the chief administrative officer of the applicable Nisga'a Village Government.

(3) The subdivision plan must be accompanied by the following:

(a) the applicable fees established under Nisga'a law;

(b) a certificate

(i) that all taxes assessed on the subdivided land have been paid, and

(ii) if local improvement taxes, rates or assessments are payable by installments, that all installments owing at the date of the certificate have been paid;

(c) if the approving officer considers that there is reason to anticipate that the land may be resubdivided and requires this information, a sketch showing that the parcels into which the land is subdivided can conveniently be further subdivided into smaller parcels;

(d) if the approving officer requires this information, profiles of every new highway shown on the plan and such necessary topographical details as may indicate engineering problems to be dealt with in opening up the highways, including environmental impact or planning studies.

Matters to be considered by approving officer on application for approval

373.31 (1) The approving officer may refuse to approve a subdivision plan in respect of a parcel of Nisga'a Lands if the cost to the Nisga'a Nation or the applicable Nisga'a Village of providing public utilities or other works or services would be excessive.

(2) The matters for which the approving officer may refuse to approve a subdivision plan in respect of a parcel of Nisga'a Lands under subsection (1) are in addition to any other matters for which the approving officer may refuse approval under section 86 (1) (c), as that section applies to that parcel under the Nisga'a Final Agreement.

Matters to be considered in respect of land within Nisga'a Lands

373.32 (1) Section 87 does not apply to Nisga'a Lands.

(2) Without limiting section 85 (3), in considering an application for subdivision approval in respect of a parcel of Nisga'a Lands, the approving officer may refuse to approve the subdivision if the approving officer considers that the subdivision does not conform to Nisga'a law.

Acceptable descriptions of land

373.33 (1) The registrar may, in respect of a parcel of Nisga'a Lands, accept a description referred to in section 99 (1) (a) or a plan referred to in section 99 (1) (b) if the parcel

(a) is being transferred to the Nisga'a Nation or a Nisga'a Village for highway purposes, or

(b) is being transferred, leased or donated for public purposes to the Nisga'a Nation or to a Nisga'a Village.

(2) The cases in which the registrar may accept the description or plan referred to in subsection (1) are in addition to the cases in which the registrar may accept the description or plan under section 99 (1), as that section applies to a parcel of Nisga'a Lands under the Nisga'a Final Agreement.

Dedication by reference or explanatory plan

373.4 (1) The Nisga'a Nation or a Nisga'a Village has the same power to deposit a reference plan as the Crown has under section 102.

(2) The reference plan or explanatory plan need not be signed under section 102 (3) but must be signed by the approving officer appointed under section 77.3.

(3) The deposit of the plan by the registrar operates as a dedication by the Nisga'a Nation or the applicable Nisga'a Village to the public of the land shown on the plan as a highway.

(4) Section 102 (2) and (5) applies to the deposit of a plan under this section.

Dedication and vesting

373.41 (1) Section 107 (1) does not apply in respect of a parcel of Nisga'a Lands.

(2) Despite subsection (1), the deposit of a subdivision, reference or explanatory plan showing a portion of Nisga'a Lands as covered by water and as lying immediately adjacent to a lake, river, stream or other body of water not within land covered by the plan, and designated on the plan to be returned to the government, operates in the manner set out in section 107 (1) (c) to (e).

(3) The deposit of a subdivision, reference or explanatory plan showing a portion of Nisga'a Lands as a highway, park or public square, that is not designated on the plan to be of a private nature, operates

(a) as an immediate and conclusive dedication by the owner to the public of that portion of the land shown as a highway, park or public square for the purpose indicated on or to be inferred from the words or markings on the plan,

(b) to vest in the Nisga'a Nation or the applicable Nisga'a Village, subject to any Nisga'a law, title to the highway, park or public square, except any mineral resources, as defined in the Nisga'a Final Agreement, that are registered in the name of a person other than the owner, and

(c) to extinguish the owner's common law property, if any, in that portion of Nisga'a Lands.

Designation of plans in respect of submerged lands

373.42 Section 108 (1) applies to Nisga'a Lands only if the land designated on the plan referred to in that section is submerged lands within the meaning of the Nisga'a Final Agreement.

Amendment of deposited plan in certain cases

373.43 The registrar has the same powers and duties in respect of a portion of a parcel of Nisga'a Lands shown on a plan of subdivision as having been acquired by the Nisga'a Nation or a Nisga'a Village for, or as having been dedicated as, a highway, park or public square as the registrar has under section 110 in respect of land so acquired by, or dedicated to, the government or a municipality.

Deposit of statutory right of way plan

373.44 (1) Section 115 (1) and (2) does not apply to Nisga'a Lands.

(2) The Nisga'a Nation or a Nisga'a Village may apply to the registrar to deposit a statutory right of way plan in respect of land acquired for a highway, and the registrar, if satisfied that the application and plan are in order, must assign to the plan a serial deposit number.

(3) Concurrently with or following the deposit of the statutory right of way plan, the chief administrative officer of the Nisga'a Nation or the Nisga'a Village may file with the registrar a certificate in the prescribed form certifying that all or part of the land in the statutory right of way plan has been established as a highway and the title vested in the Nisga'a Nation or the Nisga'a Village in compliance with Nisga'a law.

(4) Section 115 (3) to (5) applies to the deposit of a statutory right of way plan under this section.

(5) If there is a statutory right of way through unsurveyed Nisga'a Lands owned by the Nisga'a Nation or a Nisga'a Village, it is acceptable to the registrar if a sufficient number of angular and linear measurements are shown on the statutory right of way plan to define the limits of the land affected by the statutory right of way.

Nisga'a law to be filed if closing road or public square

373.5 (1) A law made by the Nisga'a Lisims Government for closing a Nisga'a road or public square that is not within Nisga'a Village Lands must be filed in the land title office.

(2) A law made by a Nisga'a Village Government for closing a Nisga'a road or public square that is within Nisga'a Village Lands must be filed in the land title office.

(3) In the case of the closing of a Nisga'a road or public square by the Nisga'a Lisims Government or a Nisga'a Village Government, the registrar may accept a reference plan, or an explanatory plan, or a description by apt descriptive words.

Definitions for applying Part 8

373.51 The following definitions are for the purposes of applying Part 8 to Nisga'a Lands:

"local authority" means

(a) in relation to Nisga'a Lands other than Nisga'a Village Lands, the Nisga'a Lisims Government, and

(b) in relation to Nisga'a Village Lands, the applicable Nisga'a Village Government;

"municipality" means Nisga'a Village Lands;

"regional district" means Nisga'a Lands other than Nisga'a Village Lands.

Cancellation of plans

373.52 (1) In applying section 124 in respect of Nisga'a Lands

(a) the reference to applicable subdivision and zoning bylaws in section 124 (1) (b) (i) must be read as a reference to the applicable Nisga'a laws relating to subdivision and zoning,

(b) the petitioner must file the report required under section 124 (2) only if any part of the public area affected by the petition is a secondary provincial road as defined in the Nisga'a Final Agreement, and

(c) the petitioner must request a report under section 124 (3) (b) only if any part of the public area affected by the petition is a secondary provincial road as defined in the Nisga'a Final Agreement.

(2) In applying section 125 (2) in respect of a plan of Nisga'a Lands, the petitioner referred to in that section

(a) must serve a copy of the petition and a notice of the hearing on,

(i) if the land affected by the petition is Nisga'a Lands, other than Nisga'a Village Lands, the chief administrative officer of the Nisga'a Lisims Government, and

(ii) if the land affected by the petition is Nisga'a Village Lands, the chief administrative officer of the applicable Nisga'a Village Government,

(b) need not comply with section 125 (2) (c) and (d) unless the petition relates to a secondary provincial road, as defined in the Nisga'a Final Agreement, and

(c) need not comply with section 125 (2) (e).

(3) The requirement to serve under subsection (2) of this section is in addition to any other requirement under section 125 (2) as that section applies under the Nisga'a Final Agreement.

(4) In applying section 126 (b) in respect of a plan of Nisga'a Lands, the petitioner referred to in that section must post the petition and any other documents, for 4 consecutive weeks before the date set for hearing, at one or more of the following places:

(a) if the land affected by the petition is Nisga'a Lands other than Nisga'a Village Lands, the principal administration building of the Nisga'a Lisims Government on Nisga'a Lands;

(b) if the land affected by the petition is Nisga'a Village Lands, the principal administration building of the applicable Nisga'a Village Government on Nisga'a Village Lands.

(5) Section 131 (1) (c) and (e) does not apply to Nisga'a Lands.

(6) In applying section 133 to Nisga'a Lands

(a) the Nisga'a Nation has the same power to oppose the cancellation or alteration of the boundaries of all or part of a public area that is a Nisga'a road as the Minister of Transportation and Highways has in respect of all or part of a public area that is an arterial highway, and

(b) the Minister of Transportation and Highways may oppose the cancellation or alteration of boundaries of all or part of a public area, only if that public area is a secondary provincial road as defined in the Nisga'a Final Agreement and is an arterial highway.

(7) In applying section 137 to Nisga'a Lands, the registrar has the same power under section 137 (1) (a) to cancel the lines dividing 2 or more contiguous parcels owned by the Nisga'a Nation or a Nisga'a Village as the registrar has in respect of 2 or more parcels owned by the Crown.

Air space

373.53 (1) Section 142 does not apply in respect of Nisga'a Lands.

(2) If the title to all or part of a highway is vested solely in the Nisga'a Nation or a Nisga'a Village, the chief administrative officer of the Nisga'a Nation or Nisga'a Village, as the case may be, may apply to register the title to all or part of the highway in the Nisga'a Nation or Nisga'a Village, and, on registration, the Nisga'a Nation or Nisga'a Village may create air space parcels and deal with them in accordance with this Act.

(3) If the title to all or part of a highway is vested solely in the Nisga'a Nation or a Nisga'a Village, the Nisga'a Lisims Government or the Nisga'a Village Government, as the case may be, may, by Nisga'a law, authorize an application to be made for the registration of the Nisga'a Nation's or Nisga'a Village's title to all or part of the highway and, on registration, the Nisga'a Nation or Nisga'a Village may create air space parcels and deal with them under this Act.

(4) For the purpose of this section, an indefeasible title may be registered for all or part of a highway.

Rights of owner of surface

373.6 Section 179 (2) does not apply in respect of Nisga'a Lands.

Registration of debt owing to Nisga'a Nation or Nisga'a Village

373.61 There may be registered, in the same manner as a charge is registered, a debt owing to the Nisga'a Nation or a Nisga'a Village against the land of a debtor to either of them, but no debt owing to either of them affects the land of the debtor unless it is registered.

Statutory right of way

373.62 A person has the same power to create a statutory right of way in respect of Nisga'a Lands under section 218 in favour of

(a) the Nisga'a Nation as the person has in respect of the Crown under section 218 (1) (a),

(b) a Nisga'a Corporation as the person has in respect of a Crown corporation under section 218 (1) (a), and

(c) a Nisga'a Village as the person has in respect of a municipality under section 218 (1) (b).

Registration of covenant as to use and alienation

373.63 A covenant in respect of a parcel of Nisga'a Lands may be created, enforced and registered under section 219 in favour of the Nisga'a Nation, a Nisga'a Village or a Nisga'a Corporation to the same extent that a covenant may be created, enforced and registered under that section in favour of the Crown.

Registration of land vested under Nisga'a law

373.64 (1) If land the title to which is registered becomes vested in the Nisga'a Nation or a Nisga'a Village under Nisga'a law otherwise than as a result of tax sale proceedings, the registrar,

(a) on application by the chief administrative officer of the Nisga'a Lisims Government or the applicable Nisga'a Village Government, and

(b) on the production of a certificate of vesting signed by the chief administrative officer and describing the land,

must register an indefeasible title to that land in the name of the Nisga'a Nation or applicable Nisga'a Village, and cancel any existing indefeasible title to the land, or effect registration by way of charge in the name of the Nisga'a Nation or applicable Nisga'a Village.

(2) Section 278 applies to the registration of land under this section.

Notice of tax sale or redemption of tax sale land

373.7 (1) The collector or other proper officer of the Nisga'a Lisims Government or a Nisga'a Village Government, as the case may be, has the same duty to file a notice with the registrar

(a) in respect of a parcel of Nisga'a Lands sold for taxes under a Nisga'a law as the collector or other proper officer of a taxing authority has in respect of other land under section 272 (1), and

(b) in respect of a parcel of Nisga'a Lands sold for taxes or subject to forfeiture under a Nisga'a law as the collector or other proper officer of a taxing authority has in respect of other land under section 273 (1).

(2) Section 272 (2) and (3) applies in respect of a notice required under subsection (1) (a) of this section and section 273 (2) and (3) applies in respect of a notice required under subsection (1) (b) of this section.

Effect of registration of title derived from tax sale

373.71 In applying section 276 (1) in respect of Nisga'a Lands, the purging and disencumbering of the land under section 276 (1) (a) and (b) does not result in a purging and disencumbering of the rights specified in section 373.2 (1) (a), (b) and (d).

Power of registrar to lodge caveat

373.72 If, in the opinion of the registrar, a person empowered to administer a Nisga'a law has produced satisfactory evidence of a contravention of that law and a prohibition is considered necessary to prevent improper dealing in a parcel of Nisga'a Lands covered by an indefeasible title, the registrar has the power to lodge a caveat under section 285 to prohibit dealing with that land.

Division 2 - First Registration of Title to Nisga'a Lands

Plan required with application for first registration

373.73 (1) An application under paragraph 5 of the Land Title Chapter of the Nisga'a Final Agreement must be accompanied by a plan of the land affected by the application that

(a) is based on a survey prepared by a British Columbia land surveyor or, if the survey is conducted before the date on which the Nisga'a Final Agreement takes effect, on a survey prepared by a Canada land surveyor,

(b) complies with the General Survey Instruction Regulation, B.C. Reg. 33/96, and

(c) is signed by the Surveyor General.

(2) If the plan meets the requirements of subsection (1) (a) and (b), the Surveyor General must sign the plan.

(3) The signature of the Surveyor General on a plan referred to in subsection (1) constitutes conclusive evidence to the registrar that

(a) the land shown on the plan forms part of Nisga'a Lands,

(b) no part of the land described in the plan is submerged land other than a part that is, by appropriate labels and boundary outlines, designated as submerged lands, and

(c) the plan does not conflict with any other plan on deposit in the land title office.

(4) An indefeasible title to a fee simple estate in any portion of Nisga'a Lands does not include submerged land whether or not the submerged land is shown on a plan referred to in subsection (1) and every indefeasible title to a portion of Nisga'a Lands must be construed accordingly.

Conclusive evidence of good safe holding and marketable title

373.8 A Nisga'a certificate constitutes conclusive evidence to the registrar that the person named in the certificate as the owner of the land described in the certificate is entitled to a good safe holding and marketable title in fee simple in respect of that land.

Additions to Nisga'a Lands

373.81 (1) If land is to be added to Nisga'a Lands under paragraph 9 or 11 of the Lands Chapter of the Nisga'a Final Agreement and, at the time of the addition, an indefeasible title to the land to be added is registered under this Act, the minister responsible for aboriginal affairs must file a certificate in the land title office in respect of the land to be added.

(2) A certificate referred to in subsection (1) must

(a) contain a description of the land sufficient for the registrar to identify it in the records, and

(b) state that the land has been added to Nisga'a Lands in accordance with the Nisga'a Final Agreement.

(3) On receiving a certificate under this section, the registrar must endorse a notation in the proper register stating that the land forms part of Nisga'a Lands and may be subject to conditions, provisos, restrictions, exceptions and reservations, including royalties, in favour of the Nisga'a Nation.

(4) A certificate filed under this section is conclusive evidence to the registrar that the addition was made in accordance with the Nisga'a Final Agreement.

Execution of instruments in respect of Nisga'a Lands

373.82 (1) For the purpose of applying the Torrens system, as defined in Part 24, to Nisga'a Lands, an instrument executed by or on behalf of the Nisga'a Nation or a Nisga'a Village is conclusively deemed to be properly executed if

(a) the seal of the Nisga'a Nation or applicable Nisga'a Village 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 evidence to the registrar that the requirements of Nisga'a law 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 the Nisga'a Nation or a Nisga'a Village is presented for registration under this Act, the registrar need not act on, inquire into or give effect to Nisga'a law or make any inquiry into the capacity of either of them or make any other inquiry into whether or not

(a) any Nisga'a law is in force,

(b) the transaction contemplated by the instrument was duly authorized in accordance with Nisga'a law,

(c) all rules and procedures established by the Nisga'a Lisims Government or Nisga'a Village Government respecting the disposition of an estate or interest in land have been complied with, or

(d) the Nisga'a Nation or Nisga'a Village subsists as a legal entity.

(4) In addition to the limits of liability established under section 303, neither the assurance fund nor the Attorney General is, under any circumstances, liable for compensation for loss, damage or deprivation occasioned by an ultra vires or unlawful act of the Nisga'a Lisims Government or Nisga'a Village Government or by the improper use of the seal of either of them.

Division 3 - Registration of Categories A and B Lands

Requirements for first registration of Categories A & B Lands

373.9 (1) An application for the registration of an indefeasible title to all or any portion of Category A Lands or Category B Lands must be accompanied by

(a) a plan of the land affected by the application, which plan meets the requirements of subsection (2), and

(b) a certificate of the minister responsible for aboriginal affairs that meets the requirements of subsection (3).

(2) The plan referred to in subsection (1) (a) must

(a) be based on a survey prepared by a British Columbia land surveyor,

(b) comply with the General Survey Instruction Regulation, B.C. Reg. 33/96, and

(c) be signed by the Surveyor General.

(3) The certificate referred to in subsection (1) (b) must

(a) state that the land shown on the plan referred to in subsection (1) (a) forms part of Category A Lands or Category B Lands,

(b) set out the conditions, provisos, restrictions, exceptions and reservations, including royalties, to which the land is subject, and

(c) state that the plan does not conflict with any other plan on deposit in the land title office.

(4) A certificate that meets the requirements of subsection (3) constitutes conclusive evidence to the registrar of the matters set out in the certificate.

(5) On receiving a plan and certificate under this section, the registrar must endorse a notation in the proper register stating that the land may be subject to conditions, provisos, restrictions, exceptions and reservations, including royalties, in favour of the Nisga'a Nation.

(6) An indefeasible title to a fee simple estate in any portion of Category A Lands or Category B Lands does not, unless the certificate referred to in subsection (3) provides otherwise, include submerged land and every indefeasible title to a portion of Category A Lands or Category B Lands must be construed accordingly.

Effect of indefeasible title to Categories A & B Lands

373.91 (1) An indefeasible title to a parcel of Category A Lands or Category B Lands, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title subject to the subsisting conditions, provisos, restrictions, exceptions and reservations, including royalties, set out in the certificate referred to in section 373.9 that relates to that parcel.

(2) The matters to which an indefeasible title to a parcel of Category A Lands or Category B Lands is subject under subsection (1) are in addition to any other matters to which that title is subject under section 23 (2), as that section applies to that parcel under the Nisga'a Final Agreement.

(3) Section 23 (4) does not apply in respect of Category A Lands and Category B Lands.

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