Tenants on First Nations land face complex legal landscape
Credit to Author: Randy Shore| Date: Fri, 08 Nov 2019 01:09:39 +0000
Tenants of a 6,000-unit rental housing project proposed for Kits Point in Vancouver will be protected under either the provincial Residential Tenancy Act or something very much like it, according to a Squamish First Nation councillor.
“We could set up our own system, with its own regulations and bylaws similar to the Act, but slightly different,” said Khelsilem, who goes by one name. “Some First Nations have opted to do that. But given the scale of the proposed development we might opt to bring the RTA into force on those reserve lands for that project.”
Provincial residential tenancy law often has little or no force on First Nations reserve lands.
Squamish Nation Council will decide what system to adopt in partnership with its development partner, Westbank, after the project is put to a referendum of the Nation’s members. But for now they are leaning toward using the existing provincial apparatus rather than creating and staffing a parallel system.
“If we were to develop our own system it would be quite onerous, expensive and time-consuming,” he said. “And if tenants are having issues, we want them to enjoy the same rights and privileges as everybody else.”
Off-reserve lands that have been purchased for residential and commercial projects by First Nations-owned MST Development are subject to the provincial Act, which includes dispute resolution through the Residential Tenancy Branch.
Artist renderings of the 6,000-unit Senakw development proposed for Squamish First Nation lands in Kitsilano adjacent to the Burrard Bridge.
MST is a partnership of the Squamish, Tsleil-Waututh and Musqueam First Nations, with about $2 billion in real estate assets in Metro Vancouver.
Protections for renters on First Nations land vary dramatically and the provincial Residential Tenancy Act may only apply in monetary disputes or not apply at all.
Reserve lands are held by the federal government, so provincial law generally does not apply, according to the provincial Indigenous Relations Ministry. Lands owned by a treaty First Nation are “subject to the provincial laws of general application,” but those nations may also have law-making powers and could opt to create their own tenancy laws, the ministry said.
The self-governing Westbank First Nation has its own residential premises law, which sets rules for rent increases and includes an in-house arbitration process to resolve disputes.
When entering a lease or rental agreement with a First Nation landlord, you need to ask specific questions about what rules apply and what mechanisms are in place to deal with disputes, experts say.
“It varies nation by nation and if the band is not a land code or self-governing nation, then the B.C. residential tenancy law does not apply on reserve,” said Berry Hykin, a lawyer who specializes in First Nations law. “If they are a land code or self-governing nation, they may have created something similar to the Act.”
Land code First Nations — those with legal control over the management of their reserve lands — are increasingly moving toward enacting their own residential tenancy laws, she said. “Those laws are enforceable as federal laws.”
“Typically, they try to create similar protections to what exists off-reserve, but they tend to be geared more toward protecting the First Nation and its membership and the collective interest in the underlying land,” she said