Adverse Possession and Reserve Land

First Nations with reserves administered under the Indian Act and band members who hold possessory interests within those reserves should be aware of the potential application and impact of adverse possession on reserve land.

Foglers recently researched the issue of whether a band member could claim another band member's allotted land within a reserve on the basis of exclusive possession. While it is well established that adverse possession does not apply to common land, it appears that a member's allotted interest in reserve land could be impacted by adverse possession by another member.

The Law of Adverse Possession

Under the English common law, an owner of land has the right to recover possession from an unauthorised occupant through a legal action known as ejectment. However, if the lawful owner fails to take action to recover the land for a sufficiently long period of time, the courts may refuse to grant an ejectment order where it would be inequitable to do so. This is the principle of adverse possession, and it is currently applicable in some, but not all, parts of Canada.1

The legal right of the occupant under adverse possession is a shield against removal – it is not title. The occupant does not have the rights of an owner, but merely the right to continue in occupation. However, provincial legislatures in the provinces in which adverse possession applies have enacted limitations statutes which prescribe the minimum length of the period of continuous occupation for the defence of adverse possession to be successful, and legislation which enables the occupant to convert protection from ejectment into actual title to the occupied land.