Indigenous (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-17
CLNP Page ID:	1907
Page Categories:	Indigenous, Landlord & Tenant (Residential)‎
Citation:	Indigenous (LTB), CLNP 1907, <6s>, retrieved on 2024-05-17
Editor:	MKent
Last Updated:	2022/04/18

SWL-34123-12 (Re), 2012 CanLII 46606 (ON LTB)

2. The rental unit is a cottage located on land that is part of the Walpole Island Indian Reserve No. 46. The Landlord is the Tenant’s uncle.

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4. Before the tenancy began, the rental unit formed part of two estates that were administered as one under the Indian Act by an officer of the Department of Indian Affairs (later Indian and Northern Affairs Canada and now called Aboriginal Affairs and Northern Development Canada). The estate beneficiaries were comprised of Band member heirs and non-member heirs. In or around 1989, the two non-member heirs accepted an offer to quit claim their interests in the property in favour of the Band member heirs. The Landlord holds an interest in the rental unit by virtue of being an estate beneficiary and a Walpole Island Band member; he is one of the Band member heirs who were supposed to hold the land assets of the estate as tenants in common, in equal shares.

5. Because the rental unit is located on reserve lands, the Indian Act applies. In addition, the Tenant filed an Agreement of Heirs document, which she obtained from a family member, containing provisions requiring the estate to obtain Band Council consent about the rental of the property, renewals and assignments, and in the event the heirs could not agree about rentals, the standard Walpole Island Reserve rental rates for the year would apply.

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8. One may argue, however, that the Residential Tenancies Act, 2006 (the ‘Act’), as a law of general application, could apply to reserve lands pursuant to section 88 of the Indian Act, which provides:

88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal and Statistical Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts.

9. The effect of section 88 of the Indian Act was explained in Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), where the Chief Justice wrote:

Provincial laws which would otherwise not apply to Indians proprio vigore [of their own force], however, are allowed to do so by s. 88 of the Indian Act, which incorporates by reference provincial laws of general application…which cannot apply to Indians and Indian lands because they touch on the Indianness at the core of s. 91(24). For example, a provincial law which regulated hunting may very well touch upon this core. Although such a law would not apply to aboriginal people proprio vigore, it would still apply through s. 88 of the Indian Act, being a law of general application. Such laws are enacted to conserve game and for the safety of all.

10. However, on a motion to determine a preliminary question of law in Morin et al. v. Her Majesty the Queen, 2000 CanLII 15539 (FC), the Federal Court of Canada held that the Tenant Protection Act, 1997, which is the previous Ontario residential tenancy statute, did not apply to leases between Her Majesty the Queen in right of Canada and non-Band-member tenants, because the leased land in question was reserve land held by the Crown for the benefit of the Nipissing Indian Band. The Court held that since the Indian Act contains provisions determining how reserve land is to be used, and governing the leasing of Indian land to a non-Band member and the surrender of Indian lands to the Crown for the purpose of leasing, the subject-matter in question was already addressed by the Indian Act and therefore, the Tenant Protection Act did not apply. An appeal of the decision on the preliminary question of law in Morin ended up being dismissed as an abuse of process.

11. With respect to the current case, the Indian Act addresses how reserve land is to be used and the descent (inheritance) of property including entitlement to occupation or possession of reserve land by devise or descent. The estate in question was being administered by federal government officials under the Indian Act and as part of that administration, the estate was required to obtain the consent of the Band Council with respect to any property rental, renewals and assignments, and in the event the heirs could not agree about rentals, the standard Walpole Island Reserve rental rates for the year would apply. It seems to me, based on the evidence provided at the hearing, that management of a tenancy at the rental unit is meant to be an effort between the Band member heirs, the Walpole Island Band Council and Aboriginal Affairs and Northern Development Canada. For these reasons, I find that the Indian Act addresses the subject-matter of this application, being any tenancy or rental of the rental unit. The Board does not have jurisdiction to consider the Landlord’s application.