The British Columbia Court of Appeal has just released Sechelt Indian Band v. British Columbia,
2013 BCCA 262. The decision addresses constitutional
jurisdiction over real property owned outright by a First Nation
pursuant to modern self-government legislation. The
Court concluded that, in the circumstances of this case, the
provincial regime governing landlord-tenant disputes was
constitutionally inapplicable to leases of such land.
The background to the dispute is crucial. In 1986, by way
of the Sechelt Indian Band Self-Government
Act, the federal Crown had granted self-government powers
to the British Columbia First Nation. As a result of this
legislation, the First Nation's lands were no longer held
by the federal government as reserve lands, but were instead
transferred to the Band to be held by it in fee simple.
Despite this change in status, the lands remained "reserved
for the Indians" pursuant to s. 31 of that Act:
For greater certainty, Sechelt lands
are lands reserved for the Indians within the meaning of Class 24
of section 91 of the Constitution Act, 1867.
Sections of the First Nation's lands had been leased for
many years to long-term residents of a mobile home
park. A controversy arose between the Band
(qua landlord) and the tenants regarding a proposed rental
After efforts to resolve the dispute failed, the tenants
commenced a proceeding before a Dispute Resolution Officer of
the provincial Residential Tenancies Board. The First
Nation argued that the provincial regime was inapplicable to its
lands, owing to the doctrines of interjurisdictional immunity
and/or paramountcy. These arguments were rejected by both the
Dispute Resolution Officer and the Trial Judge.
However, a unanimous Court of Appeal reversed these decisions,
finding that the language of s. 31 (quoted above) confirmed that
the lands held by the Band in fee simple retained
their "reserve character" and that the intrusion of
provincial regulation affecting possession of those lands was
 ...If s. 31 of the
Act was not contained in the legislation, the submissions of the
respondents would have greater force. As the legislation stands, I
interpret s. 31 as evincing a clear intention to preserve the
Indian land status of these lands. Thus, the lands continue, as
they were before theSelf-Government Act, as
Lands reserved for the Indians pursuant to s. 91(24) of the
Constitution Act. ....
 While I can agree
with Silverman J. that there is a monetary aspect to the present
case, I consider the
essence of the case (and the dispute) concerns the subject matter
of the management and possession of the Sechelt Lands. I
have earlier observed that I consider the terms of s. 31 of the
Self-Government Act must have been intended to, and did,
provide that such lands shall be considered Lands reserved for the
Indians pursuant to s. 91(24) of the Constitution Act.
This is 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
Thus, in circumstances where land held by First Nations in fee
simple explicitly retains its character as "Indian
land," provincial regulation of such land will be
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