On June 5, 2013, the British Columbia Court of Appeal released its judgment in Sechelt Indian Band v. British Columbia (Manufactured Home Park Tenancy Act, Dispute Resolution Officer), 2013 BCCA 262. This case is important to self governing First Nations that are concerned about whether provincial laws apply to the management and possession of their lands. The Court of Appeal determined that the provincial Manufactured Home Park Tenancy Act has no application on the Sechelt Indian Band’s lands as they are lands reserved for Indians (the same as reserve lands under the Indian Act). On September 3, 2013, the province of British Columbia filed an application for leave to appeal the Court of Appeal’s decision to the Supreme Court of Canada.
Background
The Sechelt Indian Band (“Sechelt”) has been self-governing since 1986 – Sechelt now holds its former reserve lands in fee simple. The Sechelt Indian Band Self-Government Act[1] states that “Sechelt lands are lands reserved for the Indians within the meaning of [section 91(24)] … of the Constitution Act, 1867.”
Sechelt leases part of its lands to a mobile home park. In British Columbia, mobile (manufactured) home parks are governed by the Manufactured Home Park Tenancy Act, under which the Residential Tenancy Board (“RTB”) has the power to consider and attempt to resolve disputes between the landlords and tenants of these parks. It is important to note that under the British Columbia Administrative Tribunals Act,[2] certain provincial tribunals including the RTB, do not have jurisdiction to consider constitutional questions.
When Sechelt sent notices to the tenants of the park that Sechelt wanted to substantially increase their rents, the tenants filed a complaint under the Manufactured Home Park Tenancy Act and a Dispute Resolution Officer (“DRO”) was assigned to hear the case. Sechelt disputed the complaint arguing that the DRO had no jurisdiction to hear the matter because it involved a constitutional question – the issue before the DRO was about “control and possession of Indian lands” – and the provincial laws could not apply to the mobile home park on Sechelt’s lands. The DRO determined she had the jurisdiction to adjudicate the dispute and ruled that the proposed rent increases were ineffective.
On judicial review to the British Columbia Supreme Court, the judge characterized the issue between Sechelt and the tenants as one concerning money, not Indian lands, and agreed that the DRO had jurisdiction to hear the dispute and apply the provisions of the Manufactured Home Park Tenancy Act because it is a provincial law of general application.
BC Court of Appeal Decision
The Court of Appeal characterized this appeal as “a question about jurisdiction involving the constitutional division of powers between the federal and provincial governments, sometimes termed inter-jurisdictional immunity, as well as the doctrine of paramountcy.”
Sechelt argued that its lands are subject to federal laws (by virtue of s. 91(24) of the Constitution and s. 31 of the Sechelt Indian Band Self-Government Act) and provincial legislation dealing with land should not apply to the dispute. Sechelt argued that inter-jurisdictional immunity applied because the provincial Manufactured Home Park Tenancy Act impairs its ability to control and manage its lands.
In contrast, the Attorney General and the tenants argued that it was not evident that the “absence of full control” by Sechelt over rental matters would impair its ability to utilize their lands for the benefit of Sechelt’s members and, further, that Sechelt could not satisfy the onus to demonstrate that the provisions of the Manufactured Home Park Tenancy Act frustrate the federal legislative regime applicable to the land. They said that because Sechelt’s lands now have fee simple status, the lands are not “reserve lands” and provincial laws of general application, such as the Manufactured Home Park Tenancy Act, are applicable to the tenancy agreements between Sechelt and the tenants. The tenants and the Attorney General relied on section 88 of the Indian Act, which provides that provincial laws of general application apply to and in respect of Indians in the province except to the extent those laws are inconsistent with the Indian Act.
The Court of Appeal disagreed with the tenants and the Attorney General, finding that s. 31 of the Sechelt Indian Band Self-Government Act “can only have been intended to preserve the character of the Sechelt Lands as reserve lands subject to federal jurisdiction” and that the lands continued, as they were before self-government, as lands reserved for Indians under s. 91(24) of the Constitution. The Court of Appeal determined that while there was a monetary aspect to the case, the essence of the case concerned the management and possession of Sechelt’s lands, which is a core element of federal jurisdiction under s. 91(24). The Court of Appeal concluded that the provincial legislation interfered with the federal subject matter, which was not permissible, and declared that the Manufactured Home Park Tenancy Act is constitutionally inapplicable to any landlord and tenant relationship created by lease on Sechelt’s lands.
[1] S.C. 1986, c. 27, s. 31.
[2] S.B.C. 2004, c. 45, s. 44.