“Knock knock, who’s there?” New developments in residential tenancies on First Nations reserve lands

On May 4, the province of BC issued Order-in-Council No. 283,¹ which gives approval to the BC Minister of Indigenous Relations and Reconciliation to enter into a tripartite agreement with Squamish Nation and Canada to make regulations to govern residential tenancies on Squamish reserve lands (the Draft Agreement).

Residential tenancy law on reserve lands

The question of which laws govern landlord-tenant relationships on First Nations lands is complex. The answer depends on case-specific factors such as the type of land at issue, the existence of any laws passed by the First Nation to govern residential tenancies, the subject matter of the underlying landlord-tenant dispute, and the identities of the landlord and tenant. As a result, residential tenancies on First Nations lands in BC may be subject to:

• the provincial Residential Tenancy Act;
• the Indian Act;
• bylaws enacted by a First Nation;
• Land Code enacted under the First Nations Land Management Act; 
• self-government legislation;
• common law principles; or
• contractual arrangements entered into by the parties.  

In some cases, there may be a gap in the governing framework, such as where the Residential Tenancy Act does not apply, but there is no equivalent federal statute that covers the same area.  

In this instance, the Draft Agreement is made under the First Nations Commercial and Industrial Development Act² (FNCIDA), which allows First Nations to request that Canada issue regulations that apply to specified commercial or industrial projects on reserve.³ FNCIDA has only been used five times since it came into force in 2005. The Draft Agreement is the first time FNCIDA has been extended beyond commercial and industrial projects to housing projects on reserve.  

Draft Agreement with Squamish Nation

The Draft Agreement provides certainty on the legislative scheme that will apply to certain residential housing projects on Squamish Nation reserve lands. Under the Draft Agreement:    

• Residential tenancies on “Project Lands” (which are listed in Schedule A of the Draft Agreement), will be regulated “in substantially a manner as if the Project Lands were provincial fee simple lands.” This language suggests that the Squamish Nation Residential Tenancy Regulations, which are still under development, will be substantially similar to the existing residential tenancy scheme created by the Residential Tenancy Act.
• The “Project Lands” listed include portions of four Squamish Nation reserves, including: 
  • Kitsilano Indian Reserve No. 6, which is located in Vancouver, where the proposed Sen̓áḵw development⁴ is located;
  • Capilano Indian Reserve No. 5, which is located on the north shore of Burrard Inlet, near the north end of the Lions Gate Bridge, where the Chenḵw em̓út affordable rental housing project for Squamish Nation members is located; and 
  • Seaichem Indian Reserve No. 16, located in Squamish, where the Eskékxwi7ch tl’a Sp’ákw’us Place affordable housing project is located.
• “Provincial Officials” to be specified in the Regulations may administer and enforce the Regulations, at the same level as if off reserve.
• BC Residential Tenancy Branch staff, including dispute resolution arbitrators, will receive cultural safety and/or cultural awareness training.
• There will be opportunities to settle disputes using alternate dispute resolution processes, which have not yet been developed.

The Regulations, once enacted, are expected to provide a comprehensive framework that will govern landlord-tenant issues in these residential housing projects located on reserve, and serve as a potential model going forward for future housing projects.