Many people are not familiar with the real scope and actions of Section 35 of the Indian Act. Section 35 of the Indian Act allows the provincial or territorial government to take land away from the reserves for “public purposes.” These could include rights of way for power, gas and telephone transmission lines, railroads, highways and other methods of transportation as well as irrigation ditches. The original purpose is to provide a single right of way to the utility that needs a way through the reserve lands to get a continuous parcel for their use. In the case of the Osoyoos Indian Band, the irrigation ditch delivered water from an off-reserve source to an off-reserve point of delivery. For the most part, the land was expropriated from the reserve land base and no longer is included in the Indian Reserve. Often, these rights of way go all the way through the reserve, thereby cutting the land base into pieces. As well, rights of way that go through privately owned land are included in the right of way, and no longer belong to the people who “owned” the rest of the land. Sometimes, the provisions of the right of way are conditional so if it is no longer required for that particular purpose it reverts back to the reserve land base.
Of course, compensation was often paid to the Band, and if the Band goes back to these original agreements, they might be surprised to find that the Band wanted additional conditions placed on the original taking of the land. These could include additional land being bought and added to the reserve land base or could just be money. The Osoyoos Indian Band was promised additional land in addition to money. The additional land was never purchased and added to the reserve, but the money was received.
When Section 35 has been used, the land was often to a third party, whether it be the power, gas or telephone company, the railroad, or the provincial or territorial government in the case of highways. When this has happened, the land is gone forever from the reserve land base and can no longer be returned. The basic understanding that exists on this subject is that if a parcel of land has been “taken” from the reserve land base as a result of action under Section 35, it is no longer accessible to the Band in any fashion.
The recent Supreme Court of Canada decision, Osoyoos Indian Band v. Town of Oliver, now allows an Indian Band to tax these rights of way under certain conditions. It would appear that certain parts of Section 35 and a conditional granting of the right of way may now mean that even though the third party may “own” the land, they may only “own” the surface of the land for the purposes of their right of way. What is called the “underlying title” may remain with the reserve land base in such a way that a Band now has the right of taxation. The Band may be able to tax the right of way based on land use and the value of what exists on the surface in the way of improvements.
It is very important to look at each of these rights of way that go through the reserve and that have been given to third parties. As in the case with the Osoyoos Indian Band, the use of the right of way was only for an irrigation ditch, which meant that perhaps at some point in the future, the right of way may no longer be needed for that particular purpose. It also meant that by this definition, and how the right of way was originally “taken” from the reserve land base in the early 1900s, the Osoyoos Indian Band now can tax the right of way owned by the province.
In order to uncover the reality of this new scope of taxation authority, each Band has the obligation to understand the real meaning of Section 35 of the Indian Act. It also means that the Band must understand what that means to each and every right of way going through the reserve that has been “taken” in the past.
As a result of the Osoyoos Indian Band v. Town of Oliver decision, a whole new potential source of income can be accessible to the Band. A Band which enjoys taxation authority and has various rights of way going through their reserve as a result of Section 35 action should seriously look at their ability to now tax these lands for additional income.
By Joseph R. Linkevic