• McCaleb v. Rose, 2017 BCCA 36, British Columbia Court of Appeal (Frankel, Tysoe, and Dickson JJ.A.), 7 September 2017
  • October 11, 2017 | Author: Scott Kerwin
  • Law Firm: Borden Ladner Gervais LLP - Vancouver Office
  • The British Columbia Court of Appeal affirmed that the provincial Manufactured Home Park Tenancy Act is constitutionally inapplicable to disputes relating to Indian reserve land. The Court of Appeal held that its 2013 decision on this point was not implicitly overruled by the Tsilhqot’in Nation decision.

    The underlying dispute relates to a trailer park located on Kamloops Indian Reserve No. 1. The respondent landlord, who is the holder of the certificate of possession for the land, served a notice to end the tenancy in 2015, due to a breach of the tenancy agreement, and then commenced an action in the Supreme Court of British Columbia for vacant possession. The appellant tenant took the position that the Court does not have jurisdiction to deal with the matter, and that any dispute must be resolved through the process under the Manufactured Home Park Tenancy Act, S.B.C. 2002, c. 77 ("MHPTA"). The trial judge disagreed, and held that the matter was governed by the decision in Sechelt Indian Band v. British Columbia (Manufactured Home Park Tenancy Act, Dispute Resolution Officer), 2013 BCCA 262, in which it was held that the MHPTA was constitutionally inapplicable to a tenancy agreement in respect of lands which were to be considered the equivalent of lands reserved for Indians pursuant to s. 91(24) of the Constitution Act, 1867. In the Sechelt Indian Band case, the Court cited a number of authorities dealing with the inapplicability of provincial legislation to reserve lands and federal undertakings, including Derrickson v. Derrickson, [1986] 1 S.C.R. 285.

    The appellant argued that Sechelt Indian Band had been implicitly overruled by Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, and the Supreme Court of Canada’s discussion about the application of provincial forest legislation to Aboriginal title lands. The Supreme Court of Canada stated in Tsilhqot’in that provincial laws of general application apply to lands held under Aboriginal title subject to constitutional limitations, such as the Sparrow justification test for any infringement of s. 35 rights. The SCC also noted (at para. 103) that:

    a province’s power to regulate lands under Aboriginal title may in some situations also be limited by the federal power over “Indians, and Lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867.

    In this case, the appellant argued that the trial judge should have conducted a Sparrow analysis, and found that the MHPTA did not unjustifiably infringe any section 35 rights.

    The trial judge noted that the Attorney General of British Columbia had written a letter taking the position that the MHPTA was not applicable to the dispute. Counsel for the Attorney General also appeared on this appeal and took the same position.

    The Court of Appeal agreed with the trial judge and the AGBC that the MHPTA is not applicable to this dispute, and rejected the argument that its earlier decision in Sechelt Indian Band had been overruled. The Tsilhqot’in decision dealt with Aboriginal title lands, not lands reserved for Indians within the meaning of s. 91(24). Tysoe J.A. held:

    … the Supreme Court of Canada cannot be taken to have overruled an established line of authorities involving s. 91(24), including Derrickson, when making comments in obiter dicta on another topic and without mentioning the authorities. The approach to be taken under s. 35 in preserving existing Aboriginal and treaty rights is different from the division of powers analysis required in respect of lands reserved for Indians within the meaning of s. 91(24). If the submissions of the appellant were correct, it would not have been necessary for the Supreme Court of Canada to have mentioned the constitutional limit of s. 91(24) in para. 103 quoted above.

    The Court of Appeal held that other passages in Tsilhqot’in Nation do not support the proposition that the Sechelt Indian Band case was implicitly overruled. The SCC made a distinction between section 35 rights and considerations of how the doctrine of interjurisdictional immunity applies to s. 91(24). Issues relating to a conflict between federal and provincial levels government involved the doctrines of paramountcy and interjurisdictional immunity. The Court of Appeal held that recent cases from elsewhere in Canada, such as the Saskatchewan Court of Appeal decision in Peter Ballantyne Cree Nation and the Quebec Court of Appeal decision in Rice, do not assist the appellant because those cases dealt with the infringement of Aboriginal or treaty rights, not an issue of division of powers.

    The Court of Appeal therefore concluded that Sechelt Indian Band remained a binding decision of the court, and dismissed the appeal.