The Supreme Court of Canada dismissed a leave application filed by a statutory decision-maker in regards to the 2013 order of the B.C. Court of Appeal (2013 BCCA 262).

The case concerns whether a British Columbia statute, the Manufactured Home Park Tenancy Act, S.B.C. 2002, c. 77, can apply to tenancies concerning mobile homes situate in lands covered by the Sechelt Indian Band Self-Government Act, S.C. 1986, c. 27 and owned by the Band. In October 2010, tenants applied to the Residential Tenancy Board in regards to a rent increase. The Sechelt Indian Band took the position that the Board had no constitutional jurisdiction to hear the dispute as it concerned “lands reserved for the Indians” under s 91(24) of the Constitution Act, 1867.

In July 2012, the Supreme Court of British Columbia dismissed the Band’s application on the basis that the dispute concerned “money”, not lands. The decision of Mr. Justice Silverman was summarized in our e-Newsletter of 12 April 2013.

In June 2013, the British Columbia Court of Appeal reversed this decision, and granted the declaration sought by the Band that the MHPTA is constitutionally inapplicable to any landlord and tenant relationship created by lease on the Sechelt lands: 2013 BCCA 262. The Court of Appeal held that “the essence of the case (and the dispute) concerns the subject matter of the management and possession of the Sechelt Lands”, and that falls within 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”. Hall J.A. held that whether the doctrine of interjurisdictional immunity or paramountcy is applied, the result is the same: the provisions of the MHPTA should be found to be inapplicable.

A summary of the case found on the Court’s website was as follows:

Constitutional law — Interjurisdictional immunity — Federal paramountcy — Property — Leases — Whether provincial act regulating landlord-tenant relationships with respect to manufactured homes applies to manufactured homes situated on former reserve lands that have since been transferred to a self-governing Band — Whether Court of Appeal erred in holding that Act was constitutionally inapplicable to those lands — Whether Court of Appeal erred in its application of constitutional law principles — Manufactured Home Park Tenancy Act, S.B.C. 2002, c. 77.

In 1986, the enactment of the Sechelt Indian Band Self-Government Act, S.C. 1986, c. 27 removed the Sechelt Indian Band from governance under the Indian Act, R.S.C. 1985, c. I-5 . By virtue of that Act, the reserve lands of the Band were transferred to it in fee simple.

In 2007, the Band sought to significantly increase the yearly rent to be paid by tenants of a manufactured home park situated on land owned by it. These proposed rent increases exceeded the limits provided for under the Manufactured Home Park Tenancy Act, S.B.C. 2002, c. 77 (the “MHPTA.). One of the tenants challenged the proposed increase before the provincial Residential Tenancy Board (the “RTB”), empowered under the MHPTA to consider and attempt to resolve disputes between landlords and tenants of manufactured home parks.

The Band took the position that the RTB had no constitutional jurisdiction to hear this dispute as it concerned “Lands reserved for the Indians”, a matter of federal jurisdiction. The Dispute Resolution Officer of the RTB ruled that she did possess constitutional competence to adjudicate the dispute. She held that the proposed rent increases were ineffective. The Band filed an application for judicial review of that decision.

The Supreme Court of Canada dismissed the leave application with costs.

http://scc-csc.lexum.com/scc-csc/news/en/item/4730/index.do

http://www.canlii.org/en/ca/scc-l/doc/2014/2014canlii62242/2014canlii62242.html

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law