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In This Volume

  • 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 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 this Act and the rules made under section 385(5), 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 minister, 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).

1979-219-367; 1988-41-1, effective December 23, 1988 (B.C. Reg. 487/88); 2003-66-35; 2004-21-64; 2007-14-201, effective December 1, 2007 (B.C. Reg. 354/2007).

REGULATIONS AND FORMS

Incompatibility Regulation: Section 367(2)(a)(ii)

The Lieutenant Governor in Council has specified incompatible provisions of Acts of Canada in B.C. Reg. 488/88, Incompatibility Regulation, which is reproduced at “Appendix 1: Land Title Act—Incompatibility Regulation, B.C. Reg. 488/88, O.C. 2282/88” in this chapter.

Prescribed Form of Law: Section 367(2)(b)

The Lieutenant Governor in Council has prescribed a form of law to be enacted by a band in B.C. Reg. 490/88, Torrens System Application Regulation, which is reproduced at “Appendix 3: Land Title Act—Torrens System Application Regulation, B.C. Reg. 490/88, O.C. 2283/88” in this chapter.

Designation of Band: Section 367(2)(f)

See B.C. Reg. 489/88, Sechelt Indian Band Designation Regulation, reproduced at “Appendix 2: Land Title Act—Sechelt Indian Band Designation Regulation, B.C. Reg. 489/88, O.C. 2283/88” in this chapter, for an example of a designation of a band by the Lieutenant Governor in Council for the purpose of applying the Torrens system to Indian land.

Application and Consent to Filing of Patent: s. 367(2)(g)

See Order in Council No. 753/90, reproduced at “Appendix 4: Order in Council No. 753/90” in this chapter, for an example of consent to the filing of a patent.

Submissions

On the Form 17 Charge, Notation or Filing, select Nature of Interest, Reservation s. 367(2)(e) LTA, and attach an image of the patent as defined in s. 366 of the Act or a copy certified by the Clerk of the Privy Council of Canada referred to in s. 367 of the Act.