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Glossary of Aboriginal Legal terms

A

aboriginal child: a child who is registered under the Indian Act, who has a biological parent who is registered under the Indian Act, who is a Nisga'a child, who is under 12 years of age and has a parent who is of aboriginal ancestry and considers himself or herself to be aboriginal, or who is 12 years of age or over, of aboriginal ancestry and considers himself or herself to be aboriginal (Child, Family and Community Service Act, R.S.B.C. 1996, c. 46).

Aboriginal Peoples: Aboriginal Peoples are defined in S. 35(2) of the Constitution Act, 1982 as being the "Indian, Inuit and Métis peoples of Canada." The Constitution Act does not further define these terms to any great extent. While the Inuit and Métis are considered to be Aboriginal Peoples, they do not fall within the definition of an Indian under the Indian Act, and as a result do not receive many of the benefits granted to Indians under the Indian Act, R.S.C. 1985, c. I-5.

abstract: a summary in sequence of the documents, facts and events evidencing or affecting the nature of a person's title or interest in a given tract of land (Indian Lands Registration Manual (Ottawa: Indian Lands Registry, 1998) ("ILRM").

access: the way or means to approach, to enter and to leave a privately owned tract of land from a public way without trespassing on other privately owned property (ILRM).

B

band: a body of Indians (a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951, (b) for whose use and benefit in common, moneys are held by Her Majesty, or (c) declared by the Governor in Council to be a band for the purposes of the Indian Act. (Indian Act, R.S.C. 1985, c. I-5, s. 2.)

C

certificate of occupation: documentary evidence of a First Nation member's right to temporary possession of lands described therein under the terms of the Indian Act, which may be replaced by a certificate of possession subject to the fulfilment of certain conditions. (ILRM.)

certificate of possession: documentary evidence of a First Nation member's right to lawful possession of land described therein, under the terms of the Indian Act. (ILRM.)

common-law partner: in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year. (Indian Act, R.S.B.C. 1985, c. I-5, s. 2.)

consideration: the price or subject matter which induces a contract: may be in money, commodity exchange or a transfer of personal effects. Ninety per cent of transfers of Indian lands have "love and affection" for consideration. (ILRM.)

culturally modified trees: Culturally modified trees are trees that have been altered by aboriginal peoples as part of their traditional use, and have cultural and historical significance. (Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture, 2002 SCC 31.)

custom allotment: an individual right to possess and use a portion of the reserve in accordance with band customs, granted by a band council by way of a resolution. A custom allotment is not a legal interest under the Indian Act, however many bands will allow heirs of an estate to apply to have a custom allotment allocated amongst the estate's heirs.

D

designation: the process under which a band, conditionally or unconditionally, designates, by way of a surrender to Her Majesty that is not absolute, any right or interest of the band and its members in all or part of a reserve, for the purpose of its being leased or a right or interest therein being granted. (Indian Act, s. 38 (2).)

designated lands: a tract of land or any interest therein the legal title to which remains vested in Her Majesty and in which the band for whose use and benefit it was set apart as a reserve has, otherwise than absolutely, released or surrendered its rights or interests, whether before or after the coming into force of the Indian Act definition. (Indian Act, s. 2.) Refers to reserve land which a First Nation Council has not allotted to a First Nation member and has been designated for leasing purposes. (Indian Lands Registry.)

E

easement: a non-possessing interest held by one person in land of another whereby the first person is accorded partial use of such land for a specific purpose. An easement restricts but does not abridge the rights of the fee owner to the use and enjoyment of his land. (ILRM.)

encumbrance: an interest or right in real property which diminishes the value of the fee, but does not prevent conveyance of the fee by the owner. Includes mortgages, taxes, judgments, restrictions, easements, and reservations. (ILRM.)

F

First Nation: an Indian band, or an Indian community functioning as a band but not having official band status. (The term First Nations does not include Inuit or Métis.) (The Canadian Oxford Dictionary, 1998, s.v. "First Nation".)

I

Indian: a person who pursuant to the Indian Act is registered as an Indian or is entitled to be registered as an Indian. (See s. 6 of the Indian Act for those persons who are entitled to be registered.)

Indian band: the basic administrative body of a group of Indians under the Indian Act. s. 2(1) of the Indian Act, an Indian band is defined as being a body of Indians:

(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951,
(b) for whose use and benefit in common, moneys are held by Her Majesty, or
(c) declared by the Governor in Council to be a band for the purposes of this Act.

Indian district: an incorporation of band members that becomes a legal entity with the capacity of a natural person under the Indian Self-Government Enabling Act, now R.S.B.C. 1996, c. 219.

J

joint tenancy: the holding of property by two or more persons in such a manner that upon the death of one joint owner, the survivor, or survivors take the entire property. To be distinguished from tenancy in common. (ILRM.)

L

lawful possession land: land that a First Nation Council has legally allotted under sec. 20 (1) of the Indian Act to a First Nation member, and is usually evidenced by a Certificate of Possession number on the parcel abstract. This land is also known as "locatee" or "allotted" land. (Indian Lands Registry.)

locatee: the band member entitled to the use and occupation of a parcel of reserve land duly allotted to him (also known as lawful possessor). (ILRM.)

N

NETI (no evidence of title issued): a term used by the Indian Land Registry to refer to a situation wherein the locatee, when abstracted as having title, does have lawful possession of the subject property, but the transaction granting possession was administratively deficient or the locatee receiving the interest was deceased or immediately transferring the right of possession to another band member, therefore a certificate of possession was not issued. (ILRM.)

Notice: a document that, when deposited with the Indian Lands Registry, reflects the existence of a claim or interest, whether legally valid or not, against a parcel of reserve, designated or surrendered land. (ILRM.)

R

reserve: (a) means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band, and (b) except in subsection 18(2), section 20 to 25, 28, 36 to 38, 42, 44, 46, 48 to 51, 58 to 60 (of the Indian Act) and the regulations made under any of those provisions, includes designated lands. (Indian Act, s. 2.)

S

special reserve: lands that have been set apart for the use and benefit of a band and legal title thereto is not vested in the Crown. The Indian Act applies as though the lands were a reserve within the meaning of the Act. (Indian Act, s.36.)

surrender: the process under which a band releases its interest in reserve lands to the federal Crown, either unconditionally or conditionally (e.g., for a term of years). (Indian Act, ss. 38–40.)

survivor: in relation to a deceased individual, means his or her surviving spouse or common-law partner. (Indian Act, R.S.B.C. 1985, c. I-5, s. 2.)

T

tenancy in common: the holding of property by two or more persons each of whom has an undivided interest which, upon his death, passes to his heirs and not to the survivor or survivors. (ILRM.)