Canada Designation Land Lease (3-CAN-c)
Bands may designate unallotted reserve land for specific purposes, which the Department may then lease to third parties in accordance with the designation through a Lease on Designated Lands. A lease is a contract that grants exclusive possession of reserve land for a specified period of time for authorized uses. Indian Act, R.S.C. 1985, c. l-5, s. 53(1)(b); Indigenous and Northern Affairs Canada Land Management Manual, Directive 7-2, s. 4. Pursuant to the Indian Act, reserve land may not be leased until it has been designated. Crown Indigenous Relations and Northern Development Canada – Land Development Webpage; Indian Act, R.S.C. 1985, c. l-5, s. 37, 38, 53(1). To designate land, members of the First Nation must vote according to the Indian Referendum Regulations with all related documents provided by the Department in order to make an informed decision. A simple majority vote is necessary. Once passed by Band Council Resolution the designation is then submitted to the Minister of Crown-Indigenous Relations and Northern Affairs Canada for acceptance. Only a Band may initiate designation proceedings. Indigenous and Northern Affairs Canada Land Management Manual, Directive 5-4.
Designation Land Lease Process
3-CAN-c.1 – Contact Appropriate Band Council and/or the Department of Crown-Indigenous Relations and Northern Affairs Canada (Department)
A developer should contact the appropriate Band Council and/or Department for more information regarding the process for obtaining a Lease on Designated Lands.
3-CAN-c.2 – Application for Use of Land Within an Indian Reserve
The developer must submit an Application for Use of Land within an Indian Reserve (Application) to the Department to obtain a Lease on Designated Lands. The Application must include all information necessary for the Department to successfully draft the lease. The Application is available on the Department’s website. Department of Crown-Indigenous Relations and Northern Development Canada – Forms-Economic Development Webpage.
Along with the Application, the developer must provide the following:
- A corporate certificate of good standing (if applicable);
- A credit investigation, if the lessee (developer) is an individual;
- An identification document, if the lessee (developer) is an individual;
- A development proposal (if applicable);
- Appropriate plans or a survey of the land;
- An Environmental Assessment in accordance with the Canada – Environmental Assessment Act, S.C. 2012, c. 19 conducted at the expense of the developer; and,
- Any other documents requested by the Department or relevant to the proposed lease.
3-CAN-c.3 to 3-CAN-c.4 – Review Application Materials for Completeness
The Department reviews the Application materials for administrative and technical completeness.
3-CAN-c.5 to 3-CAN-c.6 – Review Application Materials for Approval
The Department reviews the Application to determine whether the terms of the proposed lease is in compliance with the terms of the Designation. The lease must strictly comply with the terms of the designation document or the Department will reject the Application. As part of its review, the Department:
- Verifies the status of the land and complete a Land Status Report;
- Verifies the legal description of the land;
- Conducts a credit investigation at the expense of the developer;
- Conducts a corporate status check at the developer’s expense (if applicable); and,
- Conducts a survey of the land at the expense of the developer (if applicable).
3-CAN-c.7 to 3-CAN-c.8 – Negotiate Lease on Designated Lands
If the Department accepts the Application, the Department and developer will negotiate key elements of the lease. Other elements must be included and cannot be negotiated. The key elements of a lease that must be included are:
- A provision designating the lessor as Her Majesty the Queen;
- A provision designating the developer as the lessee or tenant;
- A legal description of the land or premises being leased; and
The key elements that may be negotiated are:
- The proposed use of the land and the specific development or activity planned;
- The proposed term of the lease;
- The amount and terms of rent payment; and
- Any other terms deemed necessary by the Department.
3-CAN-c.9 to 3-CAN-c.10 – Draft the Lease on Designated Lands
After the terms are agreed upon, the Department drafts a standard Lease on Designated Lands incorporating the negotiated terms and provides a copy of the lease to the developer and First Nation. Indigenous and Northern Affairs Canada Land Management Manual, Directive 7-2, s. 4.
In addition to the negotiated terms, a lease should include the following recitals, or introductory provisions, which appear before the main body of the lease:
- A statement saying that the leased lands are reserve lands or designated lands, which have been set apart for the use and benefit of the First Nation;
- The number and date of the BCR approving the lease;
- The date of the designation and the date and number of the Order-in-Council accepting the designation;
- The Indian Land Registry Number of the designation Ministerial Order, if available;
- The expiration date of the designation; and,
- The section of the Indian Act, R.S.C. 1985, c. l-5, s. 37, 38, 53(1) or regulations which authorizes the Designation Lease.
3-CAN-c.11 to 3-CAN-c.12 – Review Lease on Designated Lands for Approval
The Department conducts a thorough review of the lease to ensure it is in compliance with the designation as well as any other applicable laws or regulations to determine if any further studies or assessments must be concluded prior to execution of the lease. Indigenous and Northern Affairs Canada Land Management Manual, Directive 7-4, Annex A.
3-CAN-c.13 to 3-CAN-c.14 – Execute Lease on Designated Lands
After the lease is approved, the Department and the developer must execute the lease. The following steps must occur in order to properly execute the lease:
- The Band must consent to the lease (as evidenced by the BCR);
- The developer (Lessee) must sign the lease; and
- The Minister’s delegated authority must execute and sign the lease.
3-CAN-c.15 – Register Lease on Designated Lands
After the lease is executed, the Department registers the lease and supporting documentation in the Indian Lands Registry.
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Department of Crown-Indigenous Relations and Northern Affairs Canada
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