Article Origin
Volume
Issue
Year
Page 5
Dear Tuma:
Is the Residential Tenancy Act applicable on First Nations communities? There are now many people in many of our communities living in rental units and a lot of times these units are substandard and are not maintained by the landlords. What recourse would a tenant have for such things as unfair eviction, a poorly maintained unit, unsafe living conditions, not receiving their damage deposit back, a unit that has failed health inspection, etc.? Can the band council adopt the provincial tenancy act or pass their own bylaws? Can the social assistance department enforce any guidelines on landlords for tenants on social assistance?
Living Precariously
Dear Living:
No, provincial residential tenancy acts do not apply on reserves. The case of N.S. v. Millbrook dealt with this issue. These provincial acts regulate and control the landlord-tenant relationship on the basis of property or land rights. This conflicts with s. 91(24) of the Constitution Act (a federal act) that gives the federal government exclusive authority to pass laws for "Indians and Lands reserved for Indians." The Millbrook case was appealed and the Nova Scotia court of appeal did not consider the argument that only the federal government can legislate in regards to "Indians and Lands reserved for Indians." Instead it found that the tenant, who was a non-Aboriginal, had no permit to occupy reserve land contrary to s.28 of the Indian Act and ruled that the occupancy was unlawful.
It is generally accepted that the Residential Tenancy Act does not apply on reserves. This leaves a huge void and abuses can and do happen. If a tenant feels he was unfairly dealt with, the tenant has very little or no recourse. The federal government is the only entity that can legislate in this area and to date, it has not done so. Small Claims courts can be used to recover damage deposits or rent. A band can develop a tenancy code with a tenancy board, pass a bylaw and enforce it.
The social assistance department can also create a payment policy that can address some tenancy issues, such as eviction notices, damage deposit refunds, requirements that units pass health and safety inspections, etc.
Dear Tuma:
If an Aboriginal person's income is tax exempt due to the Indian Act, is there any protection through the Indian Act from the garnishment for the purposes of child support, if the other party is non-status? And/or, can a status Indian's tax exempt income be protected from being adjusted to a higher amount for child support calculation purposes?
Ordered to Pay
Dear Ordered:
Section 87 of the Indian Act exempts the personal property of an Indian from taxation and section 89 states that personal property of an Indian cannot be seized or garnished to satisfy debts or orders if it doesn't benefit another Indian or a band. Income is classified as personal property and it is exempt from garnishment if the order does not benefit another Indian or a band.
If one of the parents is non-status and is supposed to receive child support then it may not be garnished. Remember that child support is a right of the child and not of the parent. If the child is a registered Indian then the courts may be receptive to an argument that the garnishment is really for the benefit of the child and not that of the parent.
Section 19 of the Federal Child Support Guidelines provides discretion to the court to impute a higher income if the declared income is tax exempt.
The judge has discretion to use another amount other than the table amounts in cases where hardship would occur or that the payer has other children that he or she is equally responsible for.
Dear Tuma:
My husband wants me to give him my bank card and my PIN number so he can take some money out. I'm afraid to do this 'cause he might double it up on the VLTs. Can he use my card? Will the bank give him the money?
VLT Widow
Dear VLT:
If you give anyone your bank card and your PIN number then you will be held resposible for any transactions that may occur. You probably signed a contract or an agreement with the bank when you received or applied for the bank card. This contract or agreement says how the card was to be used and that you were not to give the card or your PIN number to anyone. Should you give your husband the card and the PIN number, the bank can and will hold you responsible for any charges or withdrawals made by your husband.
Dear Tuma:
I have been working for the band for a number of years and am planning to retire soon. I just received a statement from the Canada Pension Plan and my pension will only be a few dollars. I thought that I would have good pension when I retire. What happened?
Can't Afford to Retire
Dear Can't Afford:
All status Indians that worked prior to 1988 were unable to contribute to the Canada Pension Plan (CPP) because you needed to have what was called pension able earnings (for the most part also called taxable earnings). Since 1988, the CPP has been changed to allow employers on reserves to opt into the CPP program and a status Indian can now opt into the pension plan. As a result of a court case called Bear v. Canada, status Indians had the choice to make retroactive payments into the CPP program for the years between 1966 and 1988, thus increasing the CPP pension they will receive upon retirement. As of the writing of this column, this case has been overturned on appeal, thus the law is that status Indians cannot make retroactive payments into the CPP program. I am not sure if the parties will appeal to the Supreme Court, but I would hope so. Stay tuned and I will keep you informed of what happens.
This column is not intended to provide legal analysis or opinion of your situation. Rather this column is meant to stimulate discussion and create awareness of various situations in which you should contact a lawyer. If you have a question you would like to see addressed, please email me at: tyoung@patttersonpalmer.ca. Tuma Young is lawyer with the law firm of Patterson
Palmer in Truro, N.S., www.pattersonpalmer.ca
- 2737 views