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ABORIGINAL LANDS - Types - Reserve lands - Constitutional issues - Federal v. provincial jurisdiction - Practice and procedure - Appeals

Monday, September 25, 2017 @ 8:45 AM  


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Appeal by a tenant from an order granting the landlord possession of a trailer pad. The landlord held a certificate of possession in respect of certain trailer park lands leased from the federal government. The tenant was a party to a tenancy agreement with respect to a lot within the landlord's trailer park. The tenant was served with a notice to end the tenancy following a breach of the agreement, but failed to deliver vacant possession. The landlord commenced an action for an order for possession. The tenant submitted the Court lacked jurisdiction on the basis the matter was governed by the Manufactured Home Park Tenancy Act (MHPTA), providing for resolution of the dispute by a director under the MHPTA. The Court dismissed the tenant's Rule 9-7 application on the basis of the Court of Appeal's ruling in Sechelt, holding that the MHPTA was constitutionally inapplicable to Indian reserve lands. The tenant appealed. At issue was whether the ruling in Sechelt was implicitly overruled by the Supreme Court of Canada's Tsilhqot’in decision.

HELD: Appeal dismissed. The Court's ruling in Tsilhqot’in dealt with lands held under Aboriginal title rather than lands reserved for Indians within the meaning of s. 91(24) of the Constitution Act, 1867. The approach to the preservation of s. 35 Aboriginal and Treaty rights was distinct from the division of powers analysis required for issues related to Indian reserve lands. In Tsilhqot’in, the Court did not endeavor to change the analytical framework for cases, such as the predicate case, involving issues arising from the division of powers between federal and provincial levels of government. Sechelt remained a binding decision and was determinative of the issue. The MHPTA was constitutionally inapplicable to the parties' tenancy agreement.

McCaleb (c.o.b. Silver Sage Trailer Park) v. Rose, [2017] B.C.J. No. 1811, British Columbia Court of Appeal, S.D. Frankel, D.F. Tysoe and G. Dickson JJ.A., September 7, 2017. Digest No. TLD-Sept252017003