369 Where Application Affects Unregistered Indian Land

• 369 (1) If an application under section 368 relates to Indian land the title to which, at the time of the application, has not been registered under this Act, the registrar must, subject to this section, register the title claimed by the band.
• (2) If, on examination of the application, the registrar is of the opinion that an estate or interest referred to in the certificate of encumbrances

• (a) affects other unregistered land not included in the application, or
• (b) cannot, immediately on registration of the title claimed, be registered in compliance with section 73, the registrar may defer consideration of the application until the applicant applies to register any further instruments that the registrar considers necessary to register the estate and interest as a charge in compliance with section 73.

• (3) If the registrar considers that an application to which this section applies raises a question of priorities, the registrar may, on notice to the applicant and to any other person the registrar deems necessary, defer registration of the title and the charge until the question has been resolved

• (a) by the court,
• (b) by agreement among the persons affected, or
• (c) in any other manner satisfactory to the registrar.

• (4) In the circumstances described in subsection (2), the registrar may cancel the application and give notice of its cancellation to the applicant.
• (5) If the certificate of encumbrances filed in support of the application describes a subsisting estate or interest to which the fee simple estate in the land described in the application is or may be subject, the registrar must, on receipt of the application, file a caveat against it and, until the caveat is cancelled or expires, the title applied for or any estate or interest in the land must not be registered.
• (6) The registrar may, after the caveat is filed, order the applicant to serve, on each owner of an estate or interest described in the certificate of encumbrances, a notice of the application under section 368, and the notice must

• (a) contain a description of the land,
• (b) state that the owner may, subject to this Act, apply for registration of the estate or interest as a charge, and
• (c) be accompanied by a true copy of this section and of the certificate of encumbrances,

• and unless the applicant has, before the expiration of the caveat, filed proof, satisfactory to the registrar, of the date on which the notice was personally served or, if the registrar has ordered another method of service, that the notice was served in accordance with that other method, the registrar must cancel the application.
• (7) The owner of an estate or interest described in the certificate of encumbrances may, despite the caveat, apply for registration of the estate or interest as a charge.
• (8) The registrar must cancel a caveat filed under subsection (5) if, in respect of each and every subsisting estate and interest described in the certificate of encumbrances that gave rise to the caveat, one of the following events has occurred:

• (a) an application to register it as a charge has been made by the owner of it and the registrar considers that the charge may be properly registered;
• (b) a public officer of Canada duly authorized to do so has delivered to the registrar a certificate signed by the public officer stating that the estate or interest described in the certificate of encumbrances and identified in the certificate no longer affects the land;
• (c) a person to whom a notice respecting a particular estate or interest has been given has delivered to the registrar a surrender or quit claim of the person’s estate or interest that is sufficient to extinguish it.

• (9) A caveat filed under this section by the registrar expires, unless it has been earlier cancelled under subsection (8), on the later of the following dates:

• (a) the date that is 180 days after the date the caveat was filed;
• (b) the date that is 180 days after the date when a notice referred to in subsection (6) has in accordance with that subsection been served on all the persons on whom the notice was directed to be served.

• (10) An estate or interest described in the certificate of encumbrances must not be registered as a charge

• (a) if the description of the land affected by the instrument creating the charge is not, in the opinion of the registrar, sufficient to identify the land in the records,
• (b) in contravention of section 73,
• (c) if an indefeasible title to the whole of the land affected by the charge is not then registered, or
• (d) if the estate or interest is otherwise not capable of registration.

• (11) The priority of an estate or interest referred to in subsection (5) in respect of which registration has been applied for before the cancellation or expiration of the caveat filed under this section must, subject to a contrary intention appearing from the instrument creating the estate or interest, be according to the date of execution of that instrument and not according to the date and time of the application for registration of it as a charge.
• (12) Section 28 applies in respect of an estate or interest referred to in subsection (5) in respect of which application for registration has not been made before the expiration of the caveat filed under this section.

1979-219-369; 1988-41-1, effective December 23, 1988 (B.C. Reg. 487/88).