Indian land

Indian reserve lands are subject to federal jurisdiction only and are therefore not lienable. The following authority, while not dealing with liens specifically, confirms that provincial legislation does not apply on reserve lands:
 
It seems to me that the first thing that must be determined here is whether the lands in question here are "lands reserved for the Indians" within the meaning of that expression appearing in sec. 91(24) of the B.N.A. Act, 1867. 
 
If the answer to that question is in the affirmative, then one must ask whether there is any room for provincial and municipal legislation which purports to regulate how land shall be used and what types of buildings may or may not be erected on the land.  The zoning bylaws of the municipality do spell out very explicitly the manner in which the land can and cannot be used, and the same may be said of the regulations under the Health Act of the province. 
 
In my view, the zoning regulations passed by the municipality, and the regulations passed under the Health Act, are directed to the use of the land.  It follows, I think that if these lands are "lands reserved for the Indians" within the meaning of that expression as found in s. 91(24) of the B.N.A. Act, 1867, that provincial or municipal legislation purporting to regulate the use of these "lands reserved for the Indians" is an unwarranted invasion of the exclusive legislative jurisdiction of Parliament to legislate with respect to "lands reserved for the Indians". 
 
(Corporation of Surrey v. Peace Arch Enterprises Ltd., (1970), 74 W.W.R. 380 (B.C.C.A.) cited in Chief Stanley Thomas v. R., 1998 CanLII 6557 at para. 46 (B.C.S.C.)).
 
And further:
 
[A] provincial law, albeit one of general application, will be constitutionally inapplicable if it is characterized as one concerning "Lands reserved for the Indians" which, of course, includes Indian reserves.
(Chief Stanley Thomas v. R., 1998 CanLII 6557 at para. 47 (B.C.S.C.))
 
 
In Western Industrial Contractors Ltd. v. Sarcee Developments Ltd. (1979), 98 D.L.R. (3d) 424 (Alta. C.A.) lands that had been reserved for the Sarcee Indian Band were surrendered to the Crown on the condition that they were leased to Sarcee Developments Ltd. for a term of 75 years. The Court held that as Sarcee Developments Ltd. was not an “Indian” within the meaning of the Indian Act, R.S., 1985, c. I-5, its leasehold interest was subject to the provincial builders lien legislation:
 
When the provisions of the Builders’ Lien Act are placed alongside those of the Indian Act, therefore, the question is whether the provincial legislation can be in any way construed as affecting or purporting to place a charge on the reversionary interest which, being held for the benefit of the Sarcee Band, must be considered as Indian lands within the meaning of s. 91(24) of the British North America Act, or whether it only purports to place a charge on the tenants or lessees’ interest, i.e., Sarcee Developments’ interest. If the latter, then, Sarcee Developments not being an Indian within the Indian Act, and not being Indian lands of itself, can be considered as subject to provincial legislation.
(Western Industrial Contractors Ltd. v. Sarcee Developments Ltd. (1979), 98 D.L.R. (3d) 424 at 440 (Alta. C.A.)).
 
An important factor in the case was that Sarcee Developments Ltd. was an entity created for the development of commercial, agricultural, housing and recreational interests (all matters that fall within exclusive provincial jurisdiction over “property and civil rights”) within the area of the leasehold interest i.e. the activities under the lease did not relate to the “indianness” of the land and so the lien legislation would not impair an activity within federal government jurisdiction. 

 

 

 

Need help with a builders lien issue? Click here for our recommended lawyer.