Nisga’a Land Title System: Successes, Challenges and the Future

INTRODUCTION

The Nisga’a Land Title Office (NLTO) was established on May 11, 2000, and is a pivotal component of the Nisga’a Nations’ self-governance. It provides a framework for registering and managing land ownership in Nisga’a territory. This paper explores the system’s background, its implementation over 24 years, its successes, and the challenges it faces moving forward. Drawing from both historical assessment and contemporary analysis, this paper evaluates the potential future directions for the Nisga’a Land Title System.

HISTORICAL BACKGROUND OF THE NISGA’A LAND TITLE OFFICE

Understanding the background that created the Nisga’a land title system is essential for examining it.

The Nisga’a people are an Indigenous group that has lived in the Nass Valley in northwestern British Columbia for at least ten thousand years. In the Eurocentric view of the new world, James Cook’s ships “discovered” British Columbia in 1778. As the word of this discovery spread, hundreds of settlers relocated to the province. This mass migration gradually reduced the Nisga’a’s landholding, and the land that had sustained them for many millennia was taken from them without consultation or compensation.

When the British first came to Canada in the 1800s, they entered treaties with many Indigenous societies. The British believed that these treaties would extinguish any legal rights that these groups had to their land. While many of these treaties were signed across Canada, the British did not enter into a treaty with the Nisga’a Nation.

For over 114 years, the Nisga’a fought for recognition of their legal rights to the land they had always used and occupied. In 1968, the Nisga’a Tribal Council initiated litigation in the British Columbia Court regarding their land—this case became known as the Calder case.

In the Calder case, the Supreme Court of Canada unanimously recognized the “possible” existence of Indigenous rights to its land and resources. This decision prompted the federal government to develop a new policy to address Indigenous land claims, and Canada began negotiations with the Nisga’a Tribal Council. On August 4, 1998, the Government of Canada, the Government of British Columbia, and the Nisga’a Tribal Council concluded negotiations and initiated the Nisga’a Final Agreement (NFA), which had an effective date of May 11, 2000.

The Nisga’a Land Title System was introduced in 2000 as part of the implementation of the NFA. The requirement in the NFA to grant entitlements to all Nisga’a citizens precluded the possibility of making use of the British Columbia Land Title Office (BCLTO) to record entitlements to land. At that time, it was not possible to register a restricted interest of this kind in the BC Land Title Office.

The initial Nisga’a Land Title Act (2000) established a modified Torrens title system that incorporated the essential elements of a Torrens system but did not permit fee simple titles to transfer.

The Torrens-based land title system was chosen because it was felt that this form of title system would secure Nisga’a lands and promote long-term economic development. It was also felt that having a land title system that was harmonious with the British

Columbia land title system would make it more straightforward for external lawyers and financial institutions to work with. Most importantly, the framework clarifies ownership and makes it easier for landholders to secure financing, which is a significant challenge for many Indigenous communities.

The implementation of the NFA on May 11, 2000, granted all the land in the four Nisga’a villages, Gitlaxt’aamiks, Laxgalts’ap, Gitwinksihlkw, and Gingolx, to the respective Village governments in fee simple. Individual Nisga’a citizens were granted an interest in land called an ‘entitlement’, which is a right to occupy the parcel and ownership of the improvements on it. Entitlements could only be transferred to eligible recipients, as defined in the Nisga’a Village Entitlement Act and Nisga’a Nation Entitlement Act.

ORIGINAL RATIONALE FOR INDEPENDENT TORRENS SYSTEM

The pre-effective Date decision to establish an independent Torrens title system for the Nisga’a Nation was made for multiple reasons.

First, the NFA required the Nisga’a Nation to replace every Certificate of Possession (CP) granted under the Indian Act with an interest in land substantially the same as a CP. At that time, the British Columbia Land Title Office did not have the legislated ability to register an interest in land that had the same restrictions as a CP, so the NFA’s requirements precluded the possibility of using the BCLTO.

Also, there was no relationship of trust between the Nisga’a Nation and the Province of British Columbia at that time. After spending 114 years regaining control and ownership of their land, there was, understandably, no appetite expressed by the elected representatives or citizens to hand over record keeping for any part of that land to the Province of British Columbia. Even though there would be no effect at all on the Nisga’a Nation’s jurisdiction over its lands, there was simply no desire to move in this direction.

The decision to establish a Torrens title system, as opposed to a deeds registry system like that managed by the federal government for Indian reserves, was also taken early on. There was a view that the land title system should be the one that would best support the value of land and be most likely to be supported by the financial community in the long run. The essential elements of a Torrens system – guaranteed title, definition by legal survey and unique parcel identification – provide that support. It is more complex to manage a Torrens system. It requires a level of professionalism and administrative precision that can be difficult to sustain, but it does maximize the value and legal security of title to land.

Other Nisga’a enactments supported the Nisga’a Land Title Act (2000) to create a simplified but secure and credible system for recording interests in registered Nisga’a Lands. The entire suite of land title legislation was comprised of:

• Nisga’a Land Title Act (2000)
• Nisga’a Village Entitlement Act,
• Nisga’a Nation Entitlement Act,
• Nisga’a Land Act,
• Nisga’a Government Act,
• Nisga’a Interpretation Act and,
• Nisga’a Effective Date Procedures Act

SPECIAL SURVEYS

The legal surveys of Nisga’a villages obtained from the Government of Canada in 2000 were not adequate for a Torrens title system. In retrospect, this should not have been surprising.

Each Nisga’a Village was, before the implementation of the NFA on May 11, 2000, an Indian Reserve administered under the Government of Canada through the Indian Act. On Indian Reserves, there is sometimes little relationship between the legal survey and the way that the community is organized geographically. The survey record can be complex, outdated, and not representative of the way land is occupied.  In many communities, the original surveys were undertaken a very long time ago and established a rectangular grid, irrespective of the ways that people occupy the land.

The Nisga’a land title system, like many Torrens systems, includes special survey provisions. The special survey provisions were included in the Nisga’a Land Title Act (2000) specifically to deal with this situation. Under these provisions, which include a legislative requirement for compliance with a strict set of procedures that ensure public review and comment, the Executive of Nisga’a Lisims Government was able to order the Registrar to survey to correct these historical issues.

Through this section of the Act, property lines can be amended without the permission of the holder of the fee simple interest or a charge. For this reason, the legislative process is complex. It contains numerous checks and balances intended to ensure that old or inaccurate surveys can be corrected with the least possible infringement on individual rights. There is also a mechanism under the Act to award compensation if required.

Over 900 parcels of land were re-surveyed.

2007 – 2014 NISGA’A TRANSITION TO FEE SIMPLE TITLE

In 2007, the Nisga’a Nation, through its legislative body Wilp Si’Ayuukhl Nisga’a (WSN) embarked on a process of revising its land title legislation to accommodate unrestricted fee simple title to registered Nisga’a Land.

Although all the components of the fee simple land title system were not completed until 2014, the revised Nisga’a Land Title Act (NLTA) was enacted in 2012, permitting unrestricted title to lands in the Fee Simple Register. The Fee Simple Register is now in its 12th year of operation and permits both Nisga’a and non-Nisga’a to own these fee simple properties.

HISTORICAL INTENTION WITH RESPECT TO FEE SIMPLE LAND REGISTRATION

It is challenging to analyze past intentions. They are, inevitably, seen through the lens of subsequent events. We have evidence, however, for the longer-term intention of the NLTO registry, which was different from what the registry evolved into.

In October of 2007, after the first of multiple rounds of community input and discussion about various models of land title reform, the Executive of Nisga’a Lisims Government enacted the following resolution (2007/218):

MOVED THAT the Nisga’a Lisims Government Executive authorize the Director of Lands and Resources to work with legal counsel to start the process of amending the relevant Nisga’a legislation dealing with land to:

1. Provide individual Nisga’a landholders with ownership of fee simple estates registered in the Nisga’a Land Title system with unrestricted transferability; and
2. Provide individual Nisga’a landholders with the further option that these fee simple estates may be registered with the provincial land title system,

With the further understanding that individual Nisga’a land holders will have the option of maintaining their current Nisga’a Village Entitlements or Nisga’a Nation Entitlements.

All of the subsequent tasks – ongoing community engagement, legislative drafting, software development, administrative system development, professional education, staff training and land use planning – were focused on the first of the two recommendations in the above resolution. The second, with its direction to move towards the provincial land title system, has not yet been pursued.

ACCOMPLISHMENTS

Administrative Competence

The establishment of an independent Torrens title system for a legal jurisdiction as small as the Nisga’a Nation represents a significant accomplishment in and of itself. This was a complex, multi-year process that required ongoing focus and dedication from both elected officials and staff at all levels.

The process can be summarized as follows:

• Community engagement
• Legislative drafting and enactment
• Land use planning law development
• software development
• establishment of assurance fund
• administrative process design and implementation
• expropriation legislation
• negotiation with financial Institutions
• community education and support
• professional education
• staff training

CONTEMPORARY RESULTS

The results of this effort, 24 years later, are credible. The Nisga’a Land Title system has a solid administrative and legal framework that clearly supports the value of land, as evidenced by strong assessed values6 for registered Nisga’a Lands. These parcels have secure titles backed by a legislated guarantee against fraud or error.

The registry has an international reputation as a best practice model for Indigenous governments. The International Registrars of Title Council has singled it out as exemplary. Indigenous and non-Indigenous governments from all over the world seek information about the system and how it operates.

However, the credibility of the system locally is much more critical than its international reputation. The security of title offered by the Nisga’a Land Title system allows financial institutions to consider lending against the title to registered Nisga’a Lands, which could become a strong economic driver in the future.

That security, in turn, depends upon the firm belief that the system itself is credible, robust, and reliable. Reputation is essential, and any perceived flaw or defect in the process can significantly affect the system’s value and, therefore, the value of Nisga’a Lands.

CHALLENGES

Despite its successes, the Nisga’a Land Title system faces challenges that will be difficult, if not impossible, to overcome.

When the system was established 24 years ago, no one could have known what the real issues would be that stood in the way of unqualified long-term success. Early on, some had concerns that establishing a Torrens title system that supported unrestricted fee simple title would lead to a loss of land. This has yet to be the case. Also, there was a belief from outside parties that an indigenous government would need more capacity to manage such a complex and legally rigorous system in the long term. This has also not been the case.

The real challenges have been very different, and they unexpectedly make the system’s long-term sustainability difficult, if not impossible.

PARTICIPATION BY EXTERNAL PROFESSIONAL AGENCIES

Currently, two banks and one credit union offer mortgage products in the Nisga’a fee simple register. The banks (the Royal Bank of Canada and Toronto Dominion Bank) participate because it is part of their other business relationships with the Nisga’a Nation, not necessarily because they feel there is an independently justifiable business case.

Interest rates charged for mortgages registered against land in the Nisga’a Land Title office are high, making mortgages expensive.

The remainder of the chartered banks have chosen not to participate because there is not sufficient business to justify the money spent on legal analysis of the Nisga’a Land Title Act or the effort required to draft standard mortgage terms that are in a form that is registerable in the Nisga’a Land Title Office (NLTO). It is safe to say that even if all 915 titles in the Nisga’a system were converted to fee simple (rather than the current 95 titles), there would still be insufficient incentive for most financial institutions to participate.

There is currently no law firm that can provide legal services regarding land titles to citizens or even about drafting a mortgage for registration on Nisga’a property. Despite our ongoing attempts to engage the law profession more widely, there is, again, simply no business case for doing the research required to advise clients in this area.

Notaries, land surveyors, real estate professionals, and others face the same obstacles. There is not likely ever to be a significant enough demand to warrant learning Nisga’a law.

This has a highly limiting effect on Nisga’a citizens wishing to engage legal support for land title transactions. They often cannot access professional advice based on Nisga’a legislation, and this is not likely to change.

CLIENT SUPPORT

Section 3(3)b of the Nisga’a Land Title Act states:

This means that although staff can tell applicants what the legislation says, they cannot help them decide what to do. This is more important than was initially understood. So few legal or professional practitioners understand Nisga’a legislation, and there is often no decision-making support whatsoever for people who need to decide what to do about their interests in Nisga’a Land. They are susceptible to bad advice from unqualified people.

This lack of decision-making support is made worse by the fact that land title legislation is, for most Nisga’a citizens, a complete departure from the rules that pertained to their interests in land under the Indian Act.

Matters related to land titles are usually complex. Community education and application support can only go so far. For people who do not have experience in land ownership in a contemporary legislative structure, making land ownership decisions without credible advice can be dangerous.

STAFFING

The administrative positions in the NLTO require long periods of training. This is to be expected for a Torrens system, which is, by definition, legislatively and administratively complex to administer. The fact that the Nisga’a Nation guarantees the title means that each transaction needs to be entirely accurate. There is no room for error.

Even the most junior positions require at least a year of training to be useful to the land title program. The Office Manager role takes closer to five years to learn.

The fact that there are only 900 titles in the system means that there is not the volume of activity to support a large staff. This also means, however, that there is no redundancy

in the numbers of staff that would allow sick leaves, elective leaves or other absences without jeopardizing the ability to keep the office open.

This problem is exacerbated by two factors: first, there is a legislative requirement to keep regular office hours, and second, only staff that have been appointed by a letter from the CEO can undertake the business of the NLTO.

These requirements have good reasons. They clearly support the integrity of the titles registered in the NLTO by ensuring that only qualified people work in the office. They also ensure that the office is available to clients with time-sensitive registration activities.

Although casual workers can answer the telephone, receive documents, or manage routine office tasks like copying or perhaps filing, they cannot undertake work. They cannot assist clients with application processes related to the registration of titles and charges. The CEO cannot reasonably appoint a casual worker as staff of the NLTO without creating an unmanageable liability for the Nisga’a Nation.

These factors create an unresolvable conundrum: the size of the office cannot support enough full-time, qualified staff to ensure its smooth operation and adherence to its legislated requirement to be open to the public. The legal requirements of the job make it impossible to staff the office with temporary workers when full-time staff are unavoidably absent.

SOFTWARE SUPPORT

The Nisga’a Land Title system requires sophisticated software support for its digital registry, particularly now that it includes unrestricted fee simple title to land and all the potential registration variables associated with a Torrens system. This is a very specialized area and is not a product that we can develop internally.

Establishing and maintaining this system has been an ongoing difficulty since the inception of the system in 2000.

Provincial and national land title systems generally build their systems with the largest and best-established software designers. These systems’ development costs run into millions of dollars, and ongoing support and maintenance are similarly expensive. This means that the usual developers for this kind of sophisticated software are not available to the Nisga’a Nation.

Over the years, we have been able to build good relationships with small independent software companies that can work with us. Our software, although not as functionally automated as other systems, has always worked well for us.

What has yet to work as well is that we have had to work within the ever-changing and unstable world of the Information Technology industry. This industry is made up of small, independent companies that routinely change hands, close, declare bankruptcy, or amalgamate with larger companies. Each time this happens, it threatens the integrity of our software and, therefore, our land title system.

Since 2000, the instability of this industry has required us to work with seven different software design companies for the design and management of our system and navigate multiple corporate reorganizations and closures. We just recently implemented new land title software created by our seventh software company. Our previous software had become outdated, and there were structural changes in our previous software provider.

The time and energy it has taken to maintain the integrity of our system through these changes have been immense. This will not change, and ultimately, it may become impossible to manage.

COST

The Nisga’a Land Title system is expensive. The current program’s cost, including staffing, professional contract assistance, and general office expenses, now approaches $550,000 yearly. This amount does not include legal support, which is budgeted separately and not reflected in the NLTO budget.

Income is minimal. The decision to exclude Nisga’a Villages and the Nisga’a Nation from the requirement to pay fees, along with the decision to provide searches of titles and some transactions to Nisga’a citizens at no cost, results in NLTO income that usually is less than $2000.

Land title systems in other jurisdictions are usually highly profitable and can provide much of their fee revenue for other government purposes. This is not the case for the Nisga’a Nation, and not only because of the lack of income from fees. The fact that our clients are, for the most part, unable to access external professional assistance with their applications means that applications are tendered an average of three times before they are in a registerable form. Each incomplete application requires staff, contract, and often legal time to process. This will not get any less expensive overtime under the current system.

SUCCESS AND SUSTAINABILITY FOR THE FUTURE

An objective analysis of the Nisga’a Land Title Office program inevitably leads to the conclusion that it may not ultimately be sustainable. It has structural constraints that are not resolvable without completely rethinking the land title program and the ways its objectives can be met.

The purpose of a land title system is to ensure safe and marketable title to land. The Nisga’a Land Title system has done this for over twenty years, but it has become increasingly difficult. It will not become easier over time because:

• The Nisga’a Land Title system is unlikely to get widespread support from the financial community. There is not a business case to justify it.
• Land title clients can get assistance with land title processes, but no one can assist them in understanding the effect of land title transactions. They have

almost no access to legal advice for land title matters, which are often complex.

• It is not possible to ensure that the office can be adequately and professionally staffed.
• Appropriate and skilled software support cannot be guaranteed.
• The cost of the program is difficult to justify.

In short, the program may not be successful in its current form. Sustainable ways of ensuring the safe and marketable title to registered Nisga’a Lands need to be considered.

OPTIONS FOR THE FUTURE

If the general premise that there needs to be structural change is accepted, it makes sense to look at options for change. Three possible options could be considered:

1. Continue to manage an independent system
2. Use the existing British Columbia Land Title system
3. Approach the British Columbia Land Title and Survey Authority consider managing a separate system

Each of these options is considered below:

Option 1: Continue to Manage an Independent System

Resolving most of the challenges in this document would be necessary to continue managing an independent system.

Some, such as convincing banks and legal practitioners to support NLTO transactions without a profitable business model, are not within the Nisga’a Lisims Government’s control, but others are.

Some steps could be taken to support Nisga’a citizens trying to use the system. It would be possible to train people to help with applications and other title processes. There have been some steps in this direction. Still, they have not been particularly successful, mainly because land title transactions can be highly complex and often need legal support, not just administrative support. Advising without complete knowledge is dangerous. There are currently Nisga’a citizens who do this, but from the perspective of the NLTO staff, the advice is often misguided and inaccurate.

 It would be possible for the Nisga’a Nation to provide legal support to land title applicants generally, in the same way that now happens for people managing transactions related to estates. Still, it would be expensive, and it would be very difficult to find a legal practitioner to take on this task.

It would also be possible to support a Nisga’a citizen’s becoming a Notary Public. This would allow them to witness signatures and give them the kind of education that would make it more likely that they would be able to provide accurate advice. This would take several years, but it is entirely possible.

The issue of adequate staffing is more challenging to resolve. There will never be enough work in the NLTO to justify more staff, but without more trained staff, we cannot guarantee that we can maintain our office hours or adequately support clients. Casual staff cannot engage in activities related to land title transactions without creating a legal risk to the register, so we will never do more than ‘keep the office open.’ And even casual staff are not reliably available because they, understandably, move on to more permanent employment as soon as they can.

The NLTO is continually looking for ways to resolve this problem. Using existing NLG employees as casuals would help to maintain office hours but cannot resolve the issue of too few people with adequate training to ensure we can serve our clients in a timely way.

Software support will also continue to be challenging to manage. Accurate, well- supported and reliable software is essential to our registry. It is the digital record, not the paper record, that establishes the title, and it needs to be 100% reliable no matter what. The difficulty in dealing with small software providers is not the accuracy of the system; it is the instability of the industry. To have the kind of stability that is offered by the provincial or territorial systems, it would be necessary to engage a large, corporately stable software firm. The cost would be millions of dollars.

One possibility that has been suggested is to partner with other First Nations in a shared system that is still independent of the provincial land title system. This sounds like a good idea in theory, but in practice, it is not workable. There have been two attempts in Canada to do this, one by the First Nations Tax Commission and one by some of the members of the Council of Yukon First Nations, and some believe that neither of these attempts were successful, despite expert legal advice and technical support.

To continue to operate an independent system with confidence, In the future, the Nisga’a Nation would need to be willing to fund the system at a much higher level than its current, very generous $500,000 – $550,000 per year.

The advantages of this option are that the Nisga’a Nation would continue to own its system, and the Nisga’a Land Title Office would continue to be situated in the Nass Valley. These are significant advantages that need to be weighed against the cost and difficulty involved.

Option 2: Use the existing British Columbia Land Title system

The administrative problems that the Nisga’a Land Title system faces would, for the most part, not exist if the Nisga’a Nation used the British Columbia land title system.

All major banks and credit unions already use the system to provide mortgage funds for interests registered in the BCLTO. Conveyancing professionals (lawyers, notaries, etc.) are intimately familiar with the system and can support clients without needing to learn a new legislative regime. Once titles were migrated, using the system would be free to the Nisga’a Nation.

Applicants would still need support to use the system, but that support would be readily available. Where legal advice was required, any lawyer or notary could give it, not just the very few experienced in the Nisga’a system.

Current land title staffing issues would cease to exist, but there would not necessarily be a need to terminate existing Nisga’a Land Title Office staff. These valuable, highly trained staff members, with their understanding of both the needs of Nisga’a citizens and the principles of a Torrens title system, would be released from their legislated prohibitions about giving advice and could offer practical hands-on assistance to Nisga’a clients using the BC system.

Separate Nisga’a Nation software would no longer be required, and the cost of the Land Title program would be either eliminated or (if support was desired for Nisga’a users of the British Columbia system) substantially reduced.

By all measures, the use of the BC Land Title system would maximize the security and value of Nisga’a Lands.

The Nisga’a Executive’s original intention was to move towards using the BCLTO. In fact, since the inception of the Nisga’a Land Title system, all documents and plans registered have been of a standard that would be acceptable in the BCLTO, just in case there was a desire to use that system in the future.

Also, the BC legislative prohibitions that made it impossible to register restricted interests in the BC system no longer exist. The BC legislation was amended for this purpose when the first of the First Nations that completed treaties under the BC Treaty Commission process registered their lands.

A related benefit to the Nisga’a Nation would be to simplify the process of sharing property assessment information, which in the BC context is provided directly from the BCLTO to the BC Assessment in accordance with the British Columbia Land Title Act. The current process of providing information to BC Assessment is expensive, time- consuming and difficult for Village governments and other Nisga’a entities to manage.8

That does not mean, however, that it would be easy to move Nisga’a titles into the British Columbia land title registry. There are administrative and legislative hurdles that would make it a complex and time-consuming exercise. It would be reasonable to expect the process to take approximately five years of work with the BCLTO and others to develop the necessary protocols, make any required Nisga’a legislative changes, and migrate titles.

It is also not easy to assess the importance of the intangible benefits of maintaining a separate land title system for the Nisga’a Nation. It was evident in years past that it was a source of pride and satisfaction. The previous Registrar was encouraged to share information about it locally, nationally and internationally, which was instrumental in establishing its reputation as a best practice model. In current years, however, there has been less support for the system by elected officials, which makes it more challenging to sustain the integrity of the system with external audiences, most notably the financial and professional bodies that need to support it to be successful.

Option 3: Approach the British Columbia Land Title and Survey Authority and consider to managing a separate system

One of BCLTO’s corporate objectives is expanding its business and pursuing the design and management of other registries in addition to its own. The BCLTO also has a corporate focus on working with First Nations, both those involved in the BC Treaty Commission process and others.

The BCLTO Board pursued the option of a separate system managed for the Nisga’a Nation in 2022. Although there was interest and support at the staff level, the Board ultimately decided not to support such a system. No clear reasons were given. Notwithstanding this unwillingness, there continues to be the possibility of the Nisga’a land being brought into the BC registry through Chapter 4 of the NFA, which that upon the BCLTO Registrar receiving an application from the Nisga’a Nation for registration of indefeasible title to a parcel of Nisga’a lands, the Registrar will register that parcel in the BCLTO registry.

CONCLUSION

Historical, political, and cultural considerations cannot be addressed in a paper like this. However, after 114 years of the Nisga’a Nation fighting for their independence, it seems unlikely that the land registry will be transferred to the BC Land Title system. Regardless, any discussion about this transition needs to be well-informed to balance cultural, economic, and legal issues may be required.

The original decision by the Nisga’a nation to move to a fee-simple title system took multiple rounds of community engagement and careful consideration by the Nisga’a Nation’s elected bodies. The same kind of consideration would be required to determine the best course for the Nisga’a Land Title system in the future to guarantee the long-term success of the world’s first indigenous-based Torrens land registry.

It appears that the most beneficial path, both in terms of title security and land value support, would be for the Nisga’a Land Title system to work towards registering all Nisga’a titles in the BC Land Title system. This is also consistent with the Executive’s resolution when the decision was made to create an unrestricted fee simple title on Nisga’a Lands.

The Nisga’a citizens and the land title community will watch the future evolution of the Nisga’a Land Title system. It remains to be seen what the nation’s future course of action will be.