Sechelt Indian Band v. Yuen (Dispute Resolution Officer), Supreme Court of British Columbia, Vancouver Registry No. S112734 (Silverman J.) 27 July 2012

The B.C. Supreme Court dismissed a judicial review application brought by the Sechelt Indian Band in relation to decisions made by a Dispute Resolution Officer (DRO) of the Residential Tenancy Branch. The dispute related to a rent increase for lessees of a manufactured home park on Sechelt land. The DRO rejected the argument of the Band that the provincial Manufactured Home Park Tenancy Act (MHPTA) did not apply to Sechelt lands due to the doctrine of interjurisdictional immunity, or that the MHPTA was inoperative due to the doctrine of paramountcy. The DRO also held that the rent increase was contrary to the MHPTA. The B.C. Supreme Court agreed that the MHPTA applied to the dispute since this dispute was about “money”, not “lands”, and therefore within provincial jurisdiction. The Sechelt lands are not federal enclaves immune from provincial laws. The Court also held that the decision of the DRO on the merits of the case was not patently unreasonable.

The underlying dispute involves lands used as a manufactured home park that are leased by the Band. The lands had formerly been reserve lands under the Indian Act, but were transferred to the Sechelt Indian Band in 1986 pursuant to the Sechelt Indian Band Self-Government Act (“Sechelt Act”). A written lease agreement exists between the Band and the tenants. In September 2007, the Band notified the tenants that it intended to increase the rent from $6,435 to $23,625. The tenants applied to the Residential Tenancy Branch.

The Band argued that the Residential Tenancy Branch did not have jurisdiction to hear the matter as it involves “lands reserved for the Indians” within the meaning of section 91(24) of the Constitution Act, 1867. The Sechelt Act explicitly provides that the “Sechelt lands” transferred by Canada to the Band in fee simple remained “lands reserved for the Indians” within the meaning of s. 91(24). The Band argued that provincial laws of general application cannot apply to the use and occupation of Indian lands due to the doctrine of interjurisdictional immunity, and cannot apply due to the wording of section 88 of the Indian Act. Section 38 of the Sechelt Act provides for the application of BC laws but, like s. 88 of the Indian Act, omits any reference to “lands”.

The Band also argued that its constitution supports the proposition that BC law cannot apply to the use and occupation of lands. When read together with the Sechelt Act, there is a “complete code” for the management and control of Sechelt lands. The Sechelt constitution allows Band council to make laws in relation to access to, and residence on, Sechelt lands. It was noted that no such laws had been made.

The Sechelt argued that the use and occupation of Indian lands goes to the core of “Indianness”, and provincial laws therefore cannot apply. As a self-governing Band, the ability to manage and control lands is at the core of the Sechelts’ status and rights.

The Band further argued that the Residential Tenancy Branch’s own guidelines support their argument, as they provide that a tenancy agreement is “an interest in land”, and BC legislation does not apply to Indian lands.

In an interim decision made on 26 January 2011, the DRO rejected the Band’s arguments about jurisdiction. She held that the Residential Tenancy Branch had jurisdiction over the matter. The MHPTA did not directly impact the Band’s statutory rights, or deprive the Band of its ultimate and independent control over the lands. On 25 February 2011, she made a final decision in which she held that the purported rent increase was contrary to the MHPTA and of no force or effect.

The Band sought judicial review of the DRO’s decisions. The Court dismissed preliminary arguments made by the tenants about procedure. The judicial review proceeding was not barred due to a failure to exhaust all internal review procedures. The decision on jurisdiction can be the subject of judicial review, as it was subsumed by, and is part of the final decision. The Court also rejected any argument that a review of the January 2011 decision was commenced outside the 60-day limitation period.

The DRO’s decision on jurisdiction was reviewed on the standard of correctness. Silverman J. held that he agreed with the Band that, if this dispute concerned the use and occupation of Indian lands, then the judicial review application must succeed. However, he disagreed with the Band’s characterization of the issues in dispute. He stated:

While the land is, of course, one factor in the mix of things to be considered, I agree with the [Residential Tenancy Branch] that what is at the heart of this dispute between the parties is a contract that has very little to do with the use and occupation of Indian Lands, or indeed of any lands.
 
The land in question here is affected only incidentally and in a very minor way, if at all. This dispute is not about land, it is about money. It is about a rent increase.

The Court was satisfied that the January 2011 decision on jurisdiction was correct. Silverman J. held that the MHPTA and the Residential Tenancy Act did not affect or regulate the use and occupation of Indian lands. The landlords retained decision-making authority with respect to use and occupancy. The provincial legislation did not change that, or impair that authority. The provincial legislation only becomes applicable when the owner decides to create a manufactured home park and lease the land to tenants.

Section 92(13) of the Constitution Act, 1867 reserves issues of “property and civil rights” for the Province. The right to receive rent is a personal property right, and a chose in action, and falls within s. 92(13). Lands reserved for Indians are not “federal enclaves” that are isolated from provincial law.

The provisions in the MHPTA concerning rent increases do not impair a vital part of the management and operation of Sechelt lands. There was no evidence that these provisions would impair the Band’s use of the land. There is no operational conflict with federal legislation that would give rise to the doctrine of paramountcy. In particular, there is no conflict between the provincial MHPTA and the Sechelt Act.

The Court also adopted the arguments of counsel for the Attorney General of British Columbia, who represented the Residential Tenancy Branch at the hearing, in regards to the relevance of provincial laws to the Band’s law-making powers. If the Sechelt passed their own laws, there is a requirement that matters such as due process be “at least equivalent” to BC laws. This requirement would extend to rent increase restrictions. The Band has not passed any laws, and cannot use “a self-created vacuum” to circumvent the restrictions on its own law-making authority. The requirement for equivalency also demonstrates that Parliament did not intend that the Sechelt Act would isolate the Band from the effects of provincial legislation. They play a role in defining the limits of Sechelt laws.

The Court held that the Residential Tenancy Branch’s policy guidelines are “only guidelines”, and the DRO was aware of them.

With regard to the February 2011 decision on the merits of the rent increase, the standard of patent unreasonableness applied. The Court was not persuaded that the DRO’s decision was patently unreasonable. One issue related to a comment by the DRO that the Band is “like other landlords in the province”. The Band argued that it was wrong to compare it, as a unique creature of the Sechelt Act, with other landlords or municipalities. The Court held that such issues related to the jurisdiction decision, and could not lead to a finding of patent unreasonableness.

The application for judicial review was therefore dismissed. A 2-day appeal of this order was heard on 2-3 April 2013 before the BC Court of Appeal.

The Reasons for Judgment of Mr. Justice Silverman are currently unreported. We thank Joel Oliphant of the Ministry of Justice for providing us with a copy.

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver
604-604-4029
skerwin@blg.com

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law