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Vol. 141, No. 17 — April 28, 2007
Westbank First Nation Land Registry Regulations
Statutory authority
Westbank First Nation Self-Government Act
Sponsoring department
Department of Indian Affairs and Northern Development
REGULATORY IMPACT
ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Description
In October 2003, the Westbank First Nation and the Government of Canada signed the Westbank First Nation Self-Government Agreement (the Agreement). Among other things, this Agreement describes, at section 96, Westbank First Nation's jurisdiction to establish a lands registry for Westbank lands. This Agreement was brought into effect by the Westbank First Nation Self-Government Act (S.C. 2004, c. 17), which received Royal Assent on May 6, 2004, and came into force April 1, 2005.
Westbank First Nation was one of the original 14 signatories to the Framework Agreement on the First Nations Land Management under the First Nations Land Management Act (FNLMA) prior to the effective date of their Agreement. Subsection 58(a) of the Agreement indicates that, upon the effective date, the Framework Agreement and the FNLMA shall no longer apply to Westbank First Nation. The Self-Governing First Nations Land Registry system, a sub-component of the Indian Lands Registry system, was established for the registration of interests in Westbank lands pursuant to paragraph 96(b)(i) of the Agreement.
Over the past year, the First Nations Land Registry Regulations have been developed for the FNLMA. If approved, these new regulations would provide clarity and direction for the registration of interests on First Nations lands and allow for a land registry system that assigns priorities to interests in Westbank First Nation's lands as they are registered. It would also permit instruments to be submitted online to the land registry. These features are currently not available under the Self-Governing First Nations Land Registry system under which Westbank is now operating. Westbank has written to the Department of Indian Affairs and Northern Development (DIAND) asking Canada to adopt new regulations for Westbank First Nation modelled on the proposed First Nations Land Registry Regulations.
The Minister of Indian Affairs and Northern Development is recommending that the Governor in Council enact the Westbank First Nation Land Registry Regulations. The Westbank First Nation Land Registry Regulations have been developed by the Minister in collaboration with representatives of Westbank First Nation in accordance with paragraph 96(b)(ii) of the Agreement. The Westbank First Nation Land Registry Regulations for Westbank First Nation are modelled on the proposed First Nations Land Registry Regulations. The Westbank First Nation Land Registry Regulations set out the process to be followed when registering or recording documents that affect that First Nation's lands. They also provide for a system of priorities in relation to instruments that grant an interest or licence in that First Nation's land. For example, it specifies the requirements for registration and land descriptions, identifies the duties performed by the Registrar and outlines the effect of priority registration. The Land Registry created by these Regulations will be located in the National Capital Region and the system will be accessible to First Nations, law firms, the general public and DIAND.
Alternatives
Canada could refuse to enter into an agreement with Westbank First Nation to modify its land registration system. The result of this decision would be that the land registration system for Westbank First Nation would remain as it is now—i.e. based on the Indian Act register system. Westbank First Nation has, however, indicated that they believe that the features provided for in the new regulations, modelled on the First Nations Land Registry Regulations, better reflect its government's land management objectives. Westbank First Nation officials were involved in the development of the First Nations Land Registry Regulations (as Westbank First Nation operated under that Act until its Agreement came into effect) and feel the proposed regulations are an important step in the evolution of First Nations land registration and an important component in the implementation of their self-government aspirations.
Benefits and costs
Westbank First Nation currently register their interests in lands under the Self-Governing First Nations Land Registry, which is administered by Canada, in the same manner as the land registry created under the Indian Act. This Registry does not allow for on-line registration, nor assign priorities to interests registered. The Westbank First Nation Land Registry Regulations provide for on-line registration and assign priorities to interests in Westbank First Nation lands as they are registered. This new and improved registry system should expedite the registration process for land registrations and it is expected that such a regulated registry system will provide greater certainty and security of tenure to lenders and title insurance companies, which will potentially increase lending to investors on Westbank lands. The increased security of tenure will also reduce the risk of lending to investors, and subsequently reduce the cost of conducting business on Westbank First Nation lands.
Improvement in the investment climate on Westbank First Nation lands resulting from the implementation of these Regulations is also expected to have a positive impact in increased employment in the community. Employment opportunities will arise from increased land transactions and jobs associated with economic activities on the lands. As a result, socio-economic development of Westbank First Nation is expected to increase.
Because the land registry regulations have not yet gone into effect, there is no empirical data from which one can quantify the benefits of the proposed Regulations for Westbank First Nation.
The Westbank First Nation Land Registry Regulations will be cost neutral for Westbank First Nation and the public. It was, however, necessary to modernize and tailor the Self-Governing First Nations Land Registry system to meet the requirements of the Regulations. Examples of this modernization are the clauses in the Regulations relating to electronic submission of documents and the effects of assigning priorities to interests as they are registered. The cost to implement the system was approximately $3,000. Incremental costs required to manage the registry are estimated at $15,000 annually and will be assumed through existing DIAND resources.
Consultation
A working group was established to develop these Regulations. This group consisted of representatives of Westbank First Nation, officials from the Department of Justice, and DIAND. The working group agreed to model the Westbank First Nation Land Registry Regulations on the First Nations Land Registry Regulations. During the drafting, the working group's comments were incorporated in the Regulations and all members of the working group supported the Regulations.
A lands seminar was held on May 16, 2006, at Westbank and provided a detailed review of the proposed Westbank First Nation Land Registry Regulations. The Regulations were supported by all key stakeholder groups.
To support the implementation of this new system, training will be provided to Westbank First Nation and other interested stakeholders during 2007.
This statement is pre-published in the Canada Gazette, Part I, to provide an opportunity to interested parties and the general public to comment for a period of 30 days.
Compliance and enforcement
The Westbank First Nation Land Registry Regulations do not contain explicit compliance and enforcement provisions. However, compliance with the Regulations will be enforced by DIAND's Indian Lands Registry Office.
Contact
Mr. Denis Gros-Louis, Acting Director of Lands Operations and Registration, Department of Indian Affairs and Northern Development, Les Terrasses de la Chaudière, 10 Wellington Street, Gatineau, Quebec K1A 0H4, 819-997-9939 (telephone), 819-994-1667 (fax), GrosLouisD@ainc-inac.gc.ca (email).
PROPOSED REGULATORY TEXT
Notice is hereby given that the Governor in Council, pursuant to section 13 of the Westbank First Nation Self-Government Act (see footnote a), proposes to make the annexed Westbank First Nation Land Registry Regulations.
Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice and be addressed to Mr. Denis Gros-Louis, A/Director, Lands Operations and Registration, Department of Indian Affairs and Northern Development, 10 Wellington Street, Room 17H, Gatineau, Quebec K1A 0H4.
Ottawa, April 26, 2007
MARY O'NEILL
Assistant Clerk of the Privy Council
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WESTBANK FIRST NATION LAND
REGISTRY REGULATIONS |
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INTERPRETATION
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| Definitions |
1. The following definitions apply in these
Regulations. |
"applicant"
« demandeur » |
"applicant" means a person who submits an application for registration or recording. |
"general abstract"
« répertoire général » |
"general abstract", in respect of a reserve, means
an electronic abstract of registered interests and recorded documents that affect all lands on the reserve. |
"Land Registry"
« bureau d'enregistrement » |
"Land Registry" means the office referred to in section 2. |
"official plan"
« plan officiel » |
"official plan" means a graphical description of boundaries of land prepared from field notes of
a survey confirmed under section 29 of the Canada Lands Surveys Act. |
"parcel abstract"
« répertoire de lot » |
"parcel abstract" means an electronic abstract of registered interests and recorded documents that affect an individual parcel of Westbank lands. |
"Register"
« registre »
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"Register" means the Westbank Lands Register.
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"Registrar"
« registraire » |
"Registrar" means the officer in the Department of Indian Affairs and Northern Development responsible for the management of the Land Registry. |
"registration plan"
« plan d'enregistrement » |
"registration plan" means a graphical description of the boundaries of land prepared by the Surveyor General under section 31 of the Canada Lands Surveys Act. |
"textual description"
« description textuelle » |
"textual description" means a metes and bounds description of Westbank lands, or any other description of Westbank lands that does not refer exclusively to one or more complete parcels on a registration plan or official plan. |
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OPERATION OF REGISTRY
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| Registry location |
2. The Register shall be maintained in the Land Registry in an office located in the National Capital Region and operated as part of the Self-Governing First Nations Land Registry. |
| Office hours |
3. (1) The Land Registry shall be open to the public from Monday to Friday, except on holidays, from 8:30 a.m. to 4:00 p.m. EST or EDST, as
applicable. |
| Electronic registration or recording |
(2) Despite subsection (1), a document may be transmitted for registration or recording in accordance with section 12 at any time. |
| Limitation on activities |
4. Neither the Registrar nor any employee of the Land Registry shall express an opinion about any interest or licence in Westbank land, including whether
(a) a document submitted for registration or recording is validly made; or
(b) a document has been registered, as opposed to having been recorded. |
| Examination of Register |
5. Any person may, during the hours referred to in subsection 3(1), inspect at the Land Registry the electronic image of any document that is registered or recorded in the Register. |
| Copies |
6. On request, the Registrar shall provide a copy or certified copy of a document registered or recorded in the Register. |
| Registrar's certificate |
7. On request, the Registrar shall issue a certificate indicating all the interests registered and other documents recorded on the abstract of a specified parcel of Westbank land. |
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ABSTRACTS
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| Abstracts |
8. The following abstracts shall be included in the Register:
(a) for each reserve of the Westbank First Nation, a general abstract; and
(b) for each parcel of Westbank land, a parcel abstract. |
| Restriction |
9. The Registrar shall not create a parcel abstract unless the parcel abstract refers exclusively to a lot described on an official plan or registration plan. |
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APPLICATION TO REGISTER OR
RECORD DOCUMENTS
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| Application to register or record |
10. (1) Any person may apply for the registration or recording in the Register of a document that affects Westbank land
(a) by mail, by submitting the document and a completed application for registration or recording to the Registrar; or
(b) electronically, in the manner set out in section 12. |
| Information |
(2) An application for registration or recording shall contain the following information in relation to the document submitted for registration or recording:
(a) the names of all parties to the document;
(b) the name and address of the person who completed the application;
(c) the type of document;
(d) if applicable, the date of execution of the document or, if there is more than one execution date, the most recent execution date;
(e) the province where the Westbank land is
located;
(f) the name of the Westbank First Nation, the name of the reserve and the lot number, if any, associated with the land;
(g) the land description;
(h) a list of any supporting documents accompanying the document submitted for registration or recording; and
(i) if two or more documents that are to be registered or recorded are submitted together by mail, directions regarding the order to be respected in registering or recording each document relative to each other. |
| Submission by mail |
11. A document to be registered or recorded and a completed application for registration or recording may be submitted by mail to the Registrar at
Registrar
Westbank First Nations Land Registry
10 Wellington Street
Gatineau, Quebec
K1A 0H4 |
| Electronic transmission |
12. (1) A document to be registered or recorded may be submitted electronically to the Registrar
(a) by completing an application for registration or recording online at the Registry Internet website at www.ainc-inac.gc.ca; and
(b) attaching the document as an electronic file in a form referred to in subsection (2). |
| File format |
(2) A document transmitted electronically to the Registrar must be in the form of one or more
images contained in a single file, scanned from
the original document at a resolution of at least
200 dpi, in Adobe Acrobat (.pdf) format or tagged image file (.tif) format. |
| Fax transmissions |
13. Documents may not be transmitted for registration or recording by fax. |
| Tracking number |
14. (1) On receipt of an application and document that were transmitted electronically in accordance with section 12, the Registrar shall transmit to the applicant by e-mail an acknowledgment of receipt and a tracking number. |
| Tracking number |
(2) On receipt of an application and document that were submitted for registration or recording by mail, the Registrar shall mail an acknowledgment of receipt and a tracking number to the applicant. |
| Original document |
15. The following documents may be submitted for registration or recording instead of an original document:
(a) a copy of a judgment or court order, certified by the court;
(b) a copy of a document registered in a provincial registry or land titles system, certified by the appropriate provincial registrar;
(c) a copy of a death certificate, marriage certificate, name change certificate, power of attorney, will, approval or probate of will or appointment of administrator, certified by the person who has custody of the original;
(d) a copy of a certificate of amalgamation or change of name of a corporation, certified by the agency responsible for recording the amalgamation or change of name;
(e) a copy of an order in council, certified by the Clerk of the Privy Council;
(f) a copy of a ministerial order; and
(g) a copy of a document issued by the Westbank First Nation, certified by the person who has custody of the original. |
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GROUNDS FOR REFUSING
REGISTRATION OR RECORDING
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| Formal requirements |
16. The Registrar shall not register or record a document if
(a) it is not dated;
(b) it is not legible;
(c) it does not identify each party to the
document;
(d) the information contained in the application for registration or recording conflicts with the information contained in the document; or
(e) the land description does not meet the requirements of subsection 17(1) or section 18 or 19. |
| Survey requirements |
17. (1) No document that purports to
(a) grant an interest or licence in Westbank land for a term of 10 or more years, other than an interest or licence granted to a member of the Westbank First Nation,
(b) grant strata title, condominium interest, or any similar interest,
(c) allocate or transfer lawful possession of Westbank land to a member, or
(d) expropriate an interest in Westbank land for a community purpose under section 105 of the Agreement,
shall be registered or recorded unless the land description contained in the document consists exclusively of a reference to one or more complete parcels on a registration plan or official plan. |
| Renewal or extension |
(2) The term of a document referred to in paragraph (1)(a) includes the period of any right of renewal or extension of the document. |
| Exception |
(3) Subsection (1) does not apply to easements. |
| Requirements for land descriptions |
18. If a document purports to
(a) exchange Westbank land for land that is to become Westbank land in accordance with sections 92 to 95 of the Agreement, or
(b) define the exterior boundaries of Westbank land,
the Registrar shall not register or record the document unless the land description in the document is derived from an official plan or registration plan. |
| Utilities |
19. The Registrar shall not register or record a document that contains a textual description unless the document grants an interest in unencumbered land, or a licence to a utility company in respect of unencumbered land, for the purpose of providing service to the residents of a reserve. |
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REGISTRATION OR
RECORDING OF DOCUMENTS
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| Order of registration or recording |
20. (1) Subject to section 21, the Registrar shall register or record each document submitted for registration or recording that accords with the requirements of these Regulations in the order that it is received by the Land Registry. |
| Time of registration or recording |
(2) A document is considered to have been registered or recorded
(a) if the document was transmitted electronically, at the time indicated on the electronic acknowledgment of receipt; and
(b) if the document was sent by mail, at the time of receipt stamped on the document by the
Registrar. |
| Multiple submissions |
21. If two or more documents affecting the same parcel of Westbank land are submitted for registration or recording at the same time by the same person and the documents meet the requirements of these Regulations for registration or recording, the Registrar shall register or record them in the order indicated on the applications for registration or recording. |
| Registry information |
22. (1) If a document submitted for registration or recording meets the requirements of these Regulations, the Registrar shall record the following information in the appropriate abstract:
(a) the names of all parties to the document;
(b) the type of document;
(c) the Westbank land affected;
(d) if applicable, the date of execution of the document or, if there is more than one execution date, the most recent execution date;
(e) the tracking number assigned to the document at the time of receipt; and
(f) the date and time of registration or recording. |
| General abstract |
(2) If a document submitted for registration or recording affects a reserve of the Westbank First Nation as a whole, the Registrar shall register or record in the general abstract for the reserve the information required under subsection (1). |
| Parcel abstract |
(3) If a document submitted for registration or recording affects a particular parcel of Westbank land, the Registrar shall register or record in the parcel abstract for that parcel the information required under subsection (1). |
| Notification |
23. On the registration or recording of a document referred to in section 15, the Registrar shall notify the Westbank First Nation of the registration or recording without delay. |
| Registration or recording refused |
24. If a document submitted for registration or recording does not meet the requirements of these Regulations, the Registrar shall return to the applicant the application for registration or recording and all supporting documents accompanying it, and provide written reasons for the refusal to register or record the document. |
| Electronic storage |
25. The Registrar shall store in electronic form every document registered or recorded under these Regulations. |
| Return of registered document |
26. After a document that was submitted to the Registrar in paper form has been registered or recorded, the Registrar shall return the original document to the applicant. |
| Errors in registration or recording |
27. If the Registrar becomes aware of an omission or error in the registration or recording of a document, the Registrar shall immediately make the necessary corrections, add a notation to the Register identifying the corrections and notify all persons who may be adversely affected by the
corrections. |
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EFFECT OF REGISTRATION
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| Priority |
28. (1) Subject to section 31, interests registered under these Regulations that affect the same parcel of Westbank land have priority according to the time and date of their registration and not according to the time and date of their execution. |
No priority
to licences
and other documents |
(2) For greater certainty, subsection (1) does not apply to a document that does not grant an interest in Westbank land. |
| Unregistered interests |
29. A registered interest affecting a parcel of Westbank land is entitled to priority over an unregistered interest affecting the same parcel of Westbank land. |
| Revolving mortgages |
30. A registered mortgage has priority over a subsequently registered interest that affects the same parcel of Westbank land, to the extent of the money actually advanced under the mortgage, to a maximum of the amount secured by the mortgage, even if all or part of the money was advanced after the registration of the subsequently registered interest, unless the mortgagee has actual notice of the registration of the subsequently registered interest before making the advance. |
| Deferred priority |
31. (1) The holder of a registered interest, or a person applying to register an interest, may apply to record a postponement agreement that gives priority over the registered interest to a specified interest that was, or is to be, subsequently registered. |
| Priority on recording |
(2) On the recording of a postponement agreement, priority shall be accorded to the interests referred to in the agreement in the manner provided for in the agreement. |
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CONFLICTS
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| Regulations paramount |
32. In the event of a conflict between these Regulations and any Westbank law, these Regulations prevail to the extent of the conflict. |
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PRIORITIES
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| Prior registered interest |
33. (1) An interest that was registered in the
Register before the day on which these Regulations come into force has priority over an interest registered under these Regulations on or after that day. |
| No relative priorities |
(2) Subsection (1) shall not be interpreted to confer a priority on one interest that was registered in the Register before the day on which these Regulations come into force over any other interest that was also registered in the Register before that day. |
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COMING INTO FORCE
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| Coming into force date |
34. These Regulations come into force on the day on which they are registered. |
[17-1-o]
Footnote a
S.C. 2004, c. 17
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