The Second Opinion: First Nations Lands Held In Fee Simple Remain Immune From Provincial Regulation

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: