Membertou Band v. Paul, 2021 NSSC 286

SUPREME COURT OF Nova Scotia Citation: Membertou Band v. Paul , 2021 NSSC 286 Date: 20210910 Docket: Syd. No. 501610 Registry: Sydney Between: The Membertou Band Applicant v. Ashley Lena Paul Respondent Judge: The Honourable Justice Patrick J. Murray Heard: June 24, 2021, in Sydney, Nova Scotia Written Decision: September 10, 2021 Counsel: Liam Gillis for The Membertou Band David Iannetti for Ms.

Paul By the Court: Introduction [ 1 ] The Applicant, The Membertou Band, (Membertou) is applying for an order to evict Ashley Lena Paul from the premises located at 18 Maliktuk Court in Membertou, Nova Scotia, and for an order for vacant possession of those premises. (See Notice of Application filed November 3, 2020) [ 2 ] The grounds for the order contained in the Application are as follows: • The Respondent resides at 18 Maliktuk Court in Membertou, Nova Scotia. The premises are leased to the Respondent by the Applicant. • On September 15, 2020, the Membertou Band Council passed a resolution evicting Ms.

Paul from the premises located at 18 Maliktuk Court for violating the terms and conditions of the lease agreement. • On September 16, 2020, the Membertou Band Council effected service on Ms.

Paul of a letter communicating its decision and a Notice to Vacate the Premises immediately. • On October 27, 2020, the Membertou Band Council passed a resolution directing legal counsel to commence an application in the Nova Scotia Supreme Court against Ashley Paul, seeking an order for vacant possession for 18 Maliktuk Court in Membertou, Nova Scotia. • As of the date of the Notice of Application in Chambers, the Respondent has not vacated the premises located at 18 Maliktuk Court in Membertou, Nova Scotia. [ 3 ] The Respondent, Ms.

Paul, filed a Notice of Contest wherein she admits to certain facts, but denies the remainder of the grounds set out by Membertou. [ 4 ] Specifically, the Respondent says the application should be dismissed because: 1. That she (Ms. Paul) has not be given an opportunity to have a fair hearing before the full Membertou Band Board. 2. That she (Ms. Paul) has not had the opportunity to experience procedural fairness. Analysis

[ 5 ] The affidavit evidence presented in this matter is as follows: 1) Chief Terry Paul sworn on October 27, 2020 and filed on November 3, 2020. 2) Ashley Paul sworn on March1, 2021 and filed on March 1, 2021. 3) The supplementary affidavit of Ashley Paul sworn on June 23, 2021 was ruled inadmissible at the June 24, 2021 hearing. [ 6 ] From a review of the evidence and the affidavits filed, I am satisfied the following material facts have been established. 1) The Respondent, Ms. Paul, was only able to return to her residence from a previous ban of her and Mr.

Paul issue by Membertou May 18, 2019, on the condition that she sign a new lease with the Membertou Band, which she did on May 1, 2020. (See affidavit of Chief Terry Paul at paragraph 16, Exhibit “J”) 2) Prior to her return to 18 Maliktuk Court, it was made expressly clear to her in writing, that the lease contained a provision that individuals (including Mr. Jonathan Paul), who were banned from the Membertou Lands were not permitted to reside with her or be on the premises rented to her. (See Affidavit of Chief Paul at paragraph 16, Exhibit “I”) 3) The Respondent, Ms.

Paul, was further advised that permitting such individuals on the leased premises would constitute a breach of the lease, upon which it would be terminated immediately by the Band. (See Chief Paul’s affidavit, Exhibit “I”) 4) Clear evidence has been presented that the Respondent’s husband, Jonathan Paul, was at Ms. Paul’s residence on September 8, 2020. (See paragraphs 19 - 21 of Chief Terry Paul’s affidavit, Exhibits “L”& “M”) 5) The Membertou Band, have in the past given both Ms. Paul and her husband Mr.

Paul, opportunities to return to Membertou based on family considerations (their children’s school) and compassionate grounds (ill health of Ms. Paul’s mother), prior to making the decision to evict Ms. Paul, under the terms of the lease which she signed on May 1, 2020. (See Affidavit of Chief Terry Paul at paragraphs 10, 15 ) 6) The relevant provisions of the May 1, 2020 lease state: 5. Tenant’s Covenants

h) The Tenant will abide by the Membertou Land Code, Housing Policy, housing rules, regulations and by-laws made by Membertou. A list of housing rule is hereto affixed as

Schedule A, and these rules may be amended from time to time in the sole discretion of Membertou, all of which are incorporated by reference into this Agreement. Membertou Housing – Housing Rules 3. Should Membertou ban an individual from Membertou’s lands, the Tenant shall not allow, permit or invite the banished individual on or to the Premises. [ 7 ] The lease further provides with respect to the remedy sought by the Band, as follows: 7.

Default If the Tenant b. fails to perform or observe any of her covenants, or does anything contrary to the terms of this Agreement, Membertou may declare the tenancy ended, and thereupon the tenancy and the Tenant’s rights shall absolutely cease, without re-entry or any other act or legal proceedings, and Membertou or its agent may re-enter the premises or any part of it, and thereafter have, posses and enjoy it as if this Agreement had not been made. [ 8 ] The lease further provides with respect to the Housing Policy: 8. Application of the Housing Policy

e) By signing this Agreement, the tenant agrees that he/she will attend a “Know Housing Policies” Workshop, within six (6) months of signing this lease agreement. [ 9 ] In addition I accept the following evidence contained in Chief Paul’s affidavit, which affidavit was largely uncontradicted at the hearing of the application. 22. On September 15, 2020, the Membertou Band Council passed a resolution evicting Ms. Paul from the premises located at 18 Maliktuk Court for violating the terms and conditions of the Lease Agreement, attached as Exhibit “N”. 23.

On September 18, 2020,the Membertou Band Council effected service on Ms. Paul of a letter communicating its decision and a Notice to Vacate the Premises immediately. Attached as Exhibit “O” is a copy of those documents and the Affidavit of Service. 24. Ms. Paul has refused to leave the premises and remains in possession. [ 10 ] In terms of Ms. Paul’s refusal to vacate, her counsel has submitted the case of Campbell v. Cowichan Band of Indians (Council) , (1988) 23 F.T.R. 43 (TD) . The main point in this case concerned natural justice and the duty of fairness.

[ 11 ] In Campbell , the Band Council allotted two lots of land to which the applicant, Campbell, claimed title. The Federal Court of Canada, trial division, allowed the application and quashed the Council’s decision on the ground that Campbell was denied procedural fairness. [ 12 ] The Court concluded that the Council did not act fairly toward the person claiming to be grieved, concluding that the applicant was denied the right to a fair hearing. On the facts, the Court stated the fundamental rule of fairness was violated in that the applicant “did not have any notice, much less sufficient notice”.

Decision [ 13 ] Given the above findings, it is the Court’s ruling that the Membertou Band has established that it is entitled to the Order sought on this application. [ 14 ] The Court has considered the allegations made by Ms. Paul in her affidavit filed March 1, 2021, that she and her husband have been discriminated against, their right of association infringed and that the process followed by the Band Council was unconstitutional in that it did not provide Mr.

Paul an opportunity to “say his side of the story”. [ 15 ] In rendering this decision, I have been mindful of the need to consider and apply “charter values” to the entire matter involving Ms. Paul and her family. This decision was not lightly taken, nor do I think the Band Council approached this matter in an unfair or inconsiderate fashion. I find they were respectful of Ms. Paul’s position. [ 16 ] I would note that

section 30.1 of the Membertou Land Code, which was adopted prior to the eviction notice being served upon Ms. Paul states: 30.1 The following persons have a right to reside on Membertou lands; (

c) lessees and permittees, in accordance with the provisions of the granting instrument. [ 17 ] There is a long history between the Band and Mr. and Ms. Paul dating back to 2008. I am not going to review or detail that history, except to say it was clearly spelled out in the affidavit of Chief Terry Paul, who was cross-examined at the hearing, in some detail. [ 18 ] Here, I would also mention that the letter to Ms.

Paul from the Council dated April 15, 2020 stated: Additionally, I feel it is necessary to confirm to you in writing that the banishment order currently in place for Jonathan Lindsay Paul has been renewed and continues to remain in full force and effect. Mr. Paul is not to enter the boundaries of the Membertou Reserve for any reason whatsoever. [ 19 ] The Court has referred to earlier opportunities the Band previously provided to the Respondent, during a difficult and acrimonious time. Ms. Paul did not appeal the most recent eviction. [ 20 ] Ms.

Paul’s counsel raised the issue of jurisdiction at the hearing, and whether this Court had jurisdiction to hear this application. [ 21 ] In the leading case of Kwikwetlen Indian Band v.

Cunningham , 2009 BCSC 1032 , the Court held that “the jurisdiction to address issues involving reserve lands is not limited to Federal Court.” As stated in paragraph 21, “for this court to decline to assume jurisdiction, in my view, would effectively deny a whole group of citizens reasonable access, including geographical convenience, to the Canadian justice system which exists for the resolution of disputes for all of its citizens. …” I concur. [ 22 ] In this case Membertou has made previous attempts, with notice, to enforce its Resolution to evict Ms.

Paul and came to this Court seeking relief for that very purpose. In the result, I conclude that this Court has jurisdiction to hear this Application. [ 23 ] In Kwikwetlen , the Court also held that the sufficiency of the grounds for eviction was an issue that was best left to the Band Council. I concur, this matter is also best left to the Membertou Band Council, in accordance with the provisions of their housing policy. [ 24 ] It is my respectful view, that the Band Council has been patient and thorough in its investigations carried out throughout this process. (See Chief Terry Paul’s Affidavit) [ 25 ]

Section 3.4 states that the new Land Code adopted by Membertou Band (on March 12, 2019) shall be interpreted in accordance with the principles expressly contained in its pre-amble, which pre-amble includes with the following paragraph: AND WHEREAS Membertou, as an aspect of its unextinguished right to self-determination and its unextinguished and inherent right of self-governance, has jurisdiction to create rules for the resolution of issues on Membertou lands, waters and resources, rather than having its lands, waters and their resources managed on its behalf under the Indian Act or any other statute; [ 26 ] It is abundantly clear that the Band has a responsibility to all of its citizens and authority to create rules to administer its land, under the right of self governance. [ 27 ] I conclude that

section 30 of the Indian Act , R.S. , c. 1-6, s.1, is no longer applicable to these circumstances, by virtue of

section 38 of the Frist Nations Management Act , S.C. 1999, c. 4, which provisions are attached as Appendix “A”. This legislation authorizes acceptance of the Land Code adopted by Membertou in March, 2019. [ 28 ] Notwithstanding the adoption of the Land Code, Membertou states it is not necessary for it to rely on the provisions of the Code because this is a straight forward tenancy matter. The Court would tend to agree with this, but finds that the existence of the right of self governance provides further support that this matter should be dealt with in accordance to the provisions of the lease between the

parties. [ 29 ] The order requested by the Applicant is hereby granted. Murray, J. Appendix “A” S. 30 of the Indian Act Penalty for trespass 30 A person who trespasses on a reserve is guilty of an offence and liable on

summary conviction to a fine not exceeding fifty dollars or to imprisonment for a term not exceeding one month or to both. R.S., c. I-6, s. 30 S. 38(1) of the First Nations Land Management Act Indian Act 38(1) On the coming into force of the land code of a First Nation, the following cease to apply to Fist Nation, First Nation members and Fist Nation land: (

a) Section 18 to 20, 22 to 28, 30 to 35, 37 to 41 and 49, subsection 5)(4) and sections 53 to 60, 66, 69, 71 and 93 of the Indian Act;