The Second Opinion: First Nations Lands held in Fee Simple remain immune from Provincial Regulation

The British Columbia Court of Appeal has just released Sechelt Indian Band v. British Columbia, 2013 BCCA 262.  The decision addresses constitutional jurisdiction over real property owned outright by a First Nation pursuant to modern self-government legislation.  The Court concluded that, in the circumstances of this case, the provincial regime governing landlord-tenant disputes was constitutionally inapplicable to leases of such land.

The background to the dispute is crucial.  In 1986, by way of the Sechelt Indian Band Self-Government Act, the federal Crown had granted self-government powers to the British Columbia First Nation.  As a result of this legislation, the First Nation's lands were no longer held by the federal government as reserve lands, but were instead transferred to the Band to be held by it in fee simple.  Despite this change in status, the lands remained "reserved for the Indians" pursuant to s. 31 of that Act:

     For greater certainty, Sechelt lands are lands reserved for the Indians within the meaning of Class 24 of section 91 of the Constitution Act, 1867.

Sections of the First Nation's lands had been leased for many years to long-term residents of a mobile home park.   A controversy arose between the Band (qua landlord) and the tenants regarding a proposed rental increase.

After efforts to resolve the dispute failed, the tenants commenced a proceeding before a Dispute Resolution Officer of the provincial Residential Tenancies Board.  The First Nation argued that the provincial regime was inapplicable to its lands, owing to the doctrines of interjurisdictional immunity and/or paramountcy.  These arguments were rejected by both the Dispute Resolution Officer and the Trial Judge.

However, a unanimous Court of Appeal reversed these decisions, finding that the language of s. 31 (quoted above) confirmed that the lands held by the Band in fee simple retained their "reserve character" and that the intrusion of provincial regulation affecting possession of those lands was therefore improper:

     [32]        ...If s. 31 of the Act was not contained in the legislation, the submissions of the respondents would have greater force. As the legislation stands, I interpret s. 31 as evincing a clear intention to preserve the Indian land status of these lands. Thus, the lands continue, as they were before the Self-Government Act, as Lands reserved for the Indians pursuant to s. 91(24) of the Constitution Act. ....


[51]        While I can agree with Silverman J. that there is a monetary aspect to the present case, I consider the essence of the case (and the dispute) concerns the subject matter of the management and possession of the Sechelt Lands. I have earlier observed that I consider the terms of s. 31 of the Self-Government Act must have been intended to, and did, provide that such lands shall be considered Lands reserved for the Indians pursuant to s. 91(24) of the Constitution Act. This is a core element of federal jurisdiction under s. 91(24) of the Constitution Act, 1867. It is a matter that lies at the core of Indianness. Interference on this subject by a provincial enactment is not permissible.

Thus, in circumstances where land held by First Nations in fee simple explicitly retains its character as "Indian land," provincial regulation of such land will be presumptively inapplicable.

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions.  The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.

Constitutional law; First Nations; Aboriginal; Real Property; Landlord and Tenant; lease of reserve lands



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