The Territorial Court of Yukon made an order allowing the Kluane First Nation (KFN) to regain possession of residential property within its settlement lands. The Court rejected an argument that the Yukon Landlord and Tenant Act was constitutionally inapplicable to this dispute.

The properties at issue are located in the community of Burwash Landing, on the settlement land of the KFN. Such lands were transferred from Canada to the KFN subsequent to a Land Claims Agreement and a Self-Government Agreement in 2003.

Two KFN members, the respondents Johnson and Sheldon, applied for housing in the late 2000s and obtained possession of residential dwellings in Burwash Landing. There was no formal agreement between the respondents and the KFN. The dwellings were constructed through mortgage loans obtained by the KFN. The respondents paid for utilities, but the KFN paid for insurance and the CMHC mortgages.

As a result of criminal proceedings, the respondents Johnson and Sheldon are currently prohibited from residing in Burwash Landing. The KFN subsequently applied for an order pursuant to the Landlord and Tenant Act to regain possession of the premises.

The respondents relied upon cases such as Sechelt Indian Band v. British Columbia , 2013 BCCA 262 for the proposition that the Yukon statute is inapplicable. The Court held that, in contrast to the self-government agreement in the Sechelt case, the KFN Final Agreement states that settlement land shall be deemed not to be a reserve or "lands reserved for Indians" within the meaning of s. 91(24) of the Constitution Act, 1867. There was no intention to preserve the "Indian land status" of the KFN lands, and the land is not subject to exclusive federal jurisdiction.

The Court further held that there are no KFN laws that displace the operation of the Yukon statute. Section 13.5.3 of the Self-Government Agreement provides that a Yukon law of general application shall be inoperative for any matter for which provision is made in a law enacted by the KFN. Section 13.5.5 provides that, in order to enact a law that will impact upon a law of general application, there must be consultation between the KFN and Yukon. There was no KFN law that impacted the operation of the Landlord and Tenant Act. The KFN's rental housing policy cannot be elevated to the status of a law.

The Court found that a "tenancy at will" existed between the KFN and the respondents. There was evidence that the respondents wanted to become home owners, but they took no steps to pursue such an arrangement. The Court, however, disagreed with the submission of the KFN that the respondents had abandoned or vacated their homes pursuant to section 97 of the Act. There must be a conscious decision made by the tenant to leave the premises and not return. In this case, the respondents were subject to a condition arising from their criminal convictions not to live in the community. It is therefore disingenuous to suggest that they abandoned the premises.

The Court held that the respondents were entitled to a notice period of 90 days. Such notice period has now expired, and the tenancies were terminated as of June 1, 2015. The KFN was therefore granted possession of the premises pursuant to section 96 of the Act. The respondents were at liberty to pursue remedies for recovery of their deposits, or for monies spent on improvements to the properties.

http://www.courts.gov.bc.ca/jdb-txt/SC/15/13/2015BCSC1302.htm

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law