Squamish Nation Residential Tenancy Regulations: SOR/2023-135

Canada Gazette, Part II, Volume 157, Number 14

Registration
SOR/2023-135 June 19, 2023

FIRST NATIONS COMMERCIAL AND INDUSTRIAL DEVELOPMENT ACT

P.C. 2023-582 June 16, 2023

Whereas, in accordance with paragraph 5(1)(a) of the First Nations Commercial and Industrial Development Act footnote a, the Minister of Indigenous Services has received a resolution from the council of the Squamish Nation requesting that the Minister recommend to the Governor in Council the making of the annexed Regulations;

Whereas the purpose of the annexed Regulations is to ensure that the laws set out in Schedule 2 to the annexed Regulations apply as federal law to the project lands, within the limits of federal constitutional authority;

Whereas, in accordance with paragraph 3(2)(b) of that Act, the annexed Regulations confer on the Minister of Indigenous Services the legislative power that the Governor in Council considers necessary to effectively regulate the commercial or industrial undertakings that are located on the reserve lands described in the annexed Regulations;

Whereas the annexed Regulations specify provincial officials by whom, and provincial bodies by which, powers may be exercised or duties are to be performed;

And whereas, in accordance with paragraph 5(1)(b) of that Act, an agreement has been concluded between the Minister of Indigenous Services, the Province of British Columbia and the council of the Squamish Nation for the administration and enforcement of the annexed Regulations by those provincial officials and provincial bodies;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Indigenous Services makes the annexed Squamish Nation Residential Tenancy Regulations under sections 3footnote b and 4 of the First Nations Commercial and Industrial Development Act footnote a.

Squamish Nation Residential Tenancy Regulations

Interpretation

Definitions

1 (1) The following definitions apply in these Regulations.

First Nation,
in relation to lands described in column 2 of Schedule 1, means the First Nation named in column 1 of that Schedule. (Première Nation)
incorporated laws
means the statutes and regulations of British Columbia, or the portions of them, that are set out in Schedule 2, as amended from time to time and as adapted by sections 11 to 31. (texte législatif incorporé)
project lands,
in relation to a First Nation named in column 1 of Schedule 1, means the reserve lands described in column 2 of that Schedule. (terres du projet)
provincial body
has the same meaning as in section 1 of the FNCIDA Implementation Act, S.B.C. 2012, c. 21. (organisme provincial)
provincial official
has the same meaning as in section 1 of the FNCIDA Implementation Act, S.B.C. 2012, c. 21. (fonctionnaire provincial)

Expanded meaning of undertaking

(2) For the purposes of the First Nations Commercial and Industrial Development Act, the meaning of the expression “commercial or industrial undertaking” is enlarged to include a manufactured home park and a residential tenancy development.

British Columbia Interpretation Act

2 The incorporated laws are to be interpreted in accordance with the British Columbia Interpretation Act, R.S.B.C. 1996, c. 238, as amended from time to time, and, for that purpose, references to “enactment” in that Act are to be read to include the incorporated laws.

Adaptations

3 For greater certainty, the adaptations in sections 11 to 31 are to be interpreted to be part of the incorporated laws to which they apply.

Purpose

Purpose

4 The purpose of these Regulations is to implement with respect to the project lands a legal regime that is harmonized with the legal regime of British Columbia that governs the landlord and tenant relationship in relation to manufactured home parks and residential tenancy developments.

Application of Incorporated Laws

Power to fix date of application

5 Subject to sections 6 and 9, the Minister must, by order, fix and set out in column 3 of Schedule 1, the date on which the incorporated laws begin to apply to project lands listed in column 2 of that Schedule.

Restriction — incorporated laws in force

6 (1) A provision of an incorporated law applies only if the provision of the law of British Columbia that it incorporates is in force.

Restriction — limits of authority

(2) For greater certainty, an incorporated law applies only to the extent that it is within the limits of federal constitutional authority.

Offences and penalties

7 If contravention of a law of British Columbia that is incorporated in these Regulations is an offence under the laws of British Columbia, contravention of the incorporated law is also an offence and is subject to the same penalties as under the laws of British Columbia.

Incorporation of procedural matters

8 (1) Unless otherwise provided and subject to any adaptations set out in sections 11 to 31, the following are to conform to the laws of British Columbia, whether or not those laws have been set out in Schedule 2:

Related powers

(2) For the purposes of subsection (1), a person, provincial official or provincial body that has a power, duty or function under a law of British Columbia is a person, provincial official or provincial body specified to have the same power, duty or function in respect of any actions taken under that subsection.

Notice

Notice to leaseholders and Indians in lawful possession

9 (1) Before the Minister makes an order under section 5 with respect to any project lands, the council of the First Nation must

No invalidity or cause of action

(2) An order made by the Minister under section 5 is not invalid by reason only of the failure of a leaseholder or Indian referred to in paragraph (1)(a) to receive notice under subsection (1) and no cause of action exists against His Majesty in right of Canada, the Minister, His Majesty in right of British Columbia, any provincial official, any provincial body, the First Nation or the council of the First Nation from such a failure.

Definition of Indian

(3) In this section, Indian has the same meaning as in subsection 2(1) of the Indian Act.

Notation on the register

10 Once the incorporated laws apply to the project lands, the officer in the Department of Indigenous Services responsible for the management of the register in which those project lands are registered must place a notation on the register indicating that the incorporated laws apply to those project lands.

General Adaptations to Incorporated Laws

Statutes and regulations of British Columbia

11 Unless otherwise indicated, the statutes and regulations referred to in sections 16 to 31 are statutes and regulations of British Columbia.

Reference to “person”

12 A reference to a “person” in an incorporated law is to be read to include a First Nation.

Interpretation of incorporated laws

13 (1) Incorporated laws are to be read without reference to any of the following:

Appointment to a position

(2) Despite paragraph (1)(b), a person who is appointed to a position under an incorporated law is considered to have been appointed to the same position for the purposes of these Regulations for as long as that person remains in that position under the law of British Columbia.

Specified persons, officials and bodies

(3) For greater certainty, a person, provincial official or provincial body that has a power, duty or function under an incorporated law or a law of British Columbia referred to in subsection 8(1) that is not set out in Schedule 2, is a person specified to have the same power, duty or function under these Regulations, subject to the adaptations set out in sections 16 to 31.

Reference to incorporated law

(4) For greater certainty, if a law is adapted by these Regulations, a reference to that law in an incorporated law, or in any notice, form, instrument or other document issued under an incorporated law, is to be read as a reference to that law as adapted by these Regulations.

Exclusion

14 A provision of an incorporated law that imposes an obligation, liability or penalty on a landlord, owner, occupier, public authority, public body or unspecified person or entity does not apply to His Majesty in right of Canada or federal ministers or officials.

Power to seize, remove or compel production of documents

15 A power to seize or remove a document or record or to compel the production of a document or record under an incorporated law does not include a power to seize or remove a document or record that is in the possession of the federal government or to compel the production by the federal government of a document or record.

Adaptations to Incorporated Laws

Emergency Program Act

Adaptation to section 10.1

16 Section 10.1 of the Emergency Program Act is adapted by adding the following after subsection (8):

(9) For the purposes of the Canadian federal Regulations entitled Squamish Nation Residential Tenancy Regulations, the Lieutenant Governor in Council may make a regulation under subsection (1) or (2) only in respect of tenancies under the Manufactured Home Park Tenancy Act and the Residential Tenancy Act.

Manufactured Home Park Tenancy Act

Adaptation adding section 12.1

17 The Manufactured Home Park Tenancy Act is adapted by adding the following after section 12:

Notice

12.1 The landlord of a manufactured home site that exists on the day on which, under the Canadian federal Regulations entitled Squamish Nation Residential Tenancy Regulations, the incorporated laws apply to the project lands where the manufactured home site is situated must, within 15 days after that day, provide written notice to the tenant of the following:

Adaptation to subsection 13(1)

18 (1) Subsection 13(1) of the Act is to be read as follows:

13 (1) A landlord must prepare in writing every tenancy agreement entered into on or after the day on which, under the Canadian federal Regulations entitled Squamish Nation Residential Tenancy Regulations, the incorporated laws apply to the project lands where the manufactured home site is situated.

Adaptation to subsection 13(2)

(2) Subsection 13(2) of that Act is adapted by adding the following after paragraph (g):

Adaptation to subsection 37(1)

19 Subsection 37(1) of the Act is adapted by adding the following after paragraph (g):

Adaptation adding section 37.1

20 The Act is adapted by adding the following after section 37:

End of term notification

37.1 If His Majesty is the lessor of the landlord’s leasehold interest in the manufactured home site, the landlord must, at least two years and again at least six months before the end date, provide written notice to the tenant

Adaptation to paragraph 40(1)(j)

21 Paragraph 40(1)(j) of the Act is to be read as follows:

(j) the manufactured home site must be vacated to comply with an order of a federal, British Columbia or First Nation government authority;

Manufactured Home Park Tenancy Regulation

Adaptation to subsection 32(1) — definition of local government levies

22 (1) The definition local government levies in subsection 32(1) of the Manufactured Home Park Tenancy Regulation is to be read without reference to “and” at the end of paragraph (a), with reference to “and” at the end of paragraph (b) and with reference to the following after paragraph (b):

(c) fees paid to a First Nation for similar purposes to those for which fees may be payable under section 194 of the Community Charter;

Adaptation to subsection 32(1) — definition of utility fees

(2) The definition utility fees in subsection 32(1) of the Regulation is adapted by adding the following after paragraph (d):

(e) a First Nation.

Residential Tenancy Act

Reference to “January 1, 2004”

23 A reference to “January 1, 2004” in the Residential Tenancy Act is to be read as a reference to “the date on which, under the Canadian federal Regulations entitled Squamish Nation Residential Tenancy Regulations, the incorporated laws apply to the project lands where the rental unit is situated”.

Adaptation adding section 12.1

24 The Act is adapted by adding the following after section 12:

Notice

12.1 The landlord of a rental unit that exists on the day on which, under the Canadian federal Regulations entitled Squamish Nation Residential Tenancy Regulations, the incorporated laws apply to the project lands where the rental unit is situated must, within 15 days after that day, provide written notice to the tenant of the following:

Adaptation to subsection 13(2)

25 Subsection 13(2) of the Act is adapted by adding the following after paragraph (f):

Adaptation to subsection 44(1)

26 Subsection 44(1) of the Act is adapted by adding the following after paragraph (g):

Adaptation adding section 44.1

27 The Act is adapted by adding the following after section 44:

End of term notification

44.1 If His Majesty is the lessor of the landlord’s leasehold interest in the rental unit, the landlord must, at least two years and again at least six months before the end date, provide written notice to the tenant

Adaptation to paragraph 47(1)(k)

28 Paragraph 47(1)(k) of the Act is to be read as follows:

(k) the rental unit must be vacated to comply with an order of a federal, British Columbia or First Nation government authority;

Residential Tenancy Regulation

Adaptation to paragraph 1(2)(b)

29 Paragraph 1(2)(b) of the Residential Tenancy Regulation is to be read as follows:

Adaptation to paragraph 2(g)

30 (1) The portion of paragraph 2(g) of the Regulation before subparagraph (i) is to be read as follows:

Adaptation to subparagraph 2(g)(iv)

(2) Subparagraph 2(g)(iv) of the Regulation is to be read as follows:

Adaptation to paragraph 2(h)

(3) Paragraph 2(h) of the Regulation is to be read as follows:

Adaptation to paragraph 39(c)

31 Paragraph 39(c) of the Regulation is to be read as follows:

Amendments to Schedule 1

Amendment by Minister

32 The Minister may, at the request of the council of the First Nation named in column 1 of Schedule 1, amend by order column 2 of that Schedule to add or delete project lands or to modify the description of project lands.

Coming into Force

Registration

33 These Regulations come into force on the day on which they are registered.

SCHEDULE 1

(Subsection 1(1) and sections 5 and 32)

First Nations and Project Lands
Item

Column 1

First Nation

Column 2

Project Lands

Column 3

Date on which the incorporated laws apply
1 Squamish Province of British Columbia, Seaichem Indian Reserve No. 16, Lot 6, as shown on Plan of Survey No. 99312 deposited in the Canada Lands Survey Records at Ottawa, Ontario  
2 Squamish Province of British Columbia, Capilano Indian Reserve No. 5, Lot 395, as shown on Plan of Survey No. 109581 deposited in the Canada Lands Survey Records at Ottawa, Ontario  
3 Squamish Province of British Columbia, Capilano Indian Reserve No. 5, Lot 357, as shown on Plan of Survey No. 98248 deposited in the Canada Lands Survey Records at Ottawa, Ontario  
4 Squamish Province of British Columbia, Kitsilano Indian Reserve No. 6, Lots 1, 2 and 3, as shown on Plan of Survey No. 95942 deposited in the Canada Lands Survey Records at Ottawa, Ontario  

SCHEDULE 2

(Subsections 1(1) and 8(1), paragraph 13(1)(c) and subsection 13(3))

Incorporated Laws
Item

Column 1

Incorporated Law
1 Emergency Program Act, R.S.B.C. 1996, c. 111, except sections 2 to 8, 10, 11 to 25 and 28
2 Manufactured Home Park Tenancy Act, S.B.C. 2002, c. 77
3 Manufactured Home Park Tenancy Regulation, B.C. Reg. 481/2003
4 Residential Tenancy Act, S.B.C. 2002, c. 78
5 Residential Tenancy Regulation, B.C. Reg. 477/2003

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Reserve lands are set apart for the use and benefit of First Nations, with section 91(24) of the Constitution Act, 1867 establishing Canada’s jurisdiction over these lands. The federal government does not have residential tenancy regulations that apply to reserve land. In practice, First Nation Councils manage housing for their members on reserve, while Indigenous Services Canada (ISC) issues Indian Act third-party leases to non-members, with neither approach offering residential tenancy protections or dispute resolution procedures. Off reserve, the rights and responsibilities of landlords and tenants are governed by comprehensive provincial regulations; however, these do not apply to federally regulated reserve lands. The result is a significant regulatory gap between how residential tenancy is managed on and off reserve.

This regulatory gap is problematic because it is unclear what protections would be offered to landlords and tenants on reserve. While some informal dispute resolution mechanisms may currently be used, they are not standardized and do not provide certainty and enforceability. The only recourse available is the courts, which is expensive and time-consuming. This uncertainty can discourage investment in large projects and hinder economic development on reserve lands. One tool to overcome the regulatory gaps is the First Nations Commercial and Industrial Development Act (FNCIDA) which, at the request of a First Nation, enables the federal government to incorporate by reference provincial regulations and apply them to specific parcels of reserve land to facilitate economic development projects.

The Squamish Nation has requested that residential tenancy regulations be developed under the First Nations Commercial and Industrial Development Act to facilitate a range of housing projects on their reserve lands. The Squamish Nation holds reserve lands located in and around major urban centres in British Columbia. The demand for housing in this area is high and rental rates are amongst the highest in Canada. For the Squamish Nation, this represents an economic opportunity to provide market-based rentals to non-members and generates significant ongoing revenue for their community. There has also been increased demand by Squamish Nation members to live on reserve as the nearby off-reserve housing options become increasingly unaffordable. The Squamish Nation reserve lands represent some of the few remaining underutilized areas for new housing stock. These units can be made available to both Indigenous and non-Indigenous populations who wish to live closer to their work, amenities and services, and for Squamish Nation members who wish to live closer to their ancestral home. The Squamish Nation’s current plans include the development of member-only residences (Hiy̓ám̓ Housing) as well as a flagship multi-tower residential complex (Sen̓áḵw) available for members and non-members. The absence of residential tenancy regulations is a barrier to moving forward with large-scale housing projects, such as Sen̓áḵw, as it creates uncertainty for investors, landlords and tenants. Sen̓áḵw is an important economic development project as it is projected to provide billions of dollars in downstream benefits to Squamish Nation members.

The Squamish Nation Residential Tenancy Regulations (the Regulations) will operate seamlessly with the off-reserve provincial system, providing familiarity and certainty to all parties. The Regulations incorporate by reference British Columbia’s Residential Tenancy Act and Manufactured Home Park Tenancy Act, which govern key elements of residential tenancies, including allowable rent increases, maintenance of the properties, and notice provisions for a range of landlord-tenant activities. A tripartite agreement was concluded on June 1, 2023, between Canada, the Squamish Nation and the Province of British Columbia describing how the Regulations are to be implemented.

Background

First Nations Commercial and Industrial Development Act

In 2006, the FNCIDA came into force to address regulatory gaps between on- and off-reserve economic activities. FNCIDA enables the Governor in Council to establish a regulatory regime for a specific project at the request of the Council of a First Nation, on specific parcels of reserve land, by replicating (through incorporation by reference) relevant provincial laws and regulations.

In this way, projects under FNCIDA are required to meet the same standards as those that apply in the rest of the province in which the First Nation reserve land is located. The process is designed to provide a familiar regulatory environment to potential project investors, operators, and as with the Regulations, to landlords and tenants, as the rules and practices will be consistent. By establishing an on-reserve regulatory environment that is consistent with the province’s off-reserve environment, regulations created under FNCIDA remove a potential barrier and open up many opportunities for economic development projects that will generate prosperity for First Nations.

New tenancy projects on Squamish Nation reserve lands

The Squamish Nation holds a number of reserves located in and around major urban centres, representing an underutilized area for new housing stock for Indigenous and non-Indigenous populations. In 2019, the Squamish Nation informed ISC of their plans to respond to the lack of affordable housing within Metro Vancouver with several housing development projects on reserve for members and non-members of the Squamish Nation. A Band Council Resolution in March 2021 formalized their request for regulations to be developed under FNCIDA to support the projects to address housing affordability issues and establish homes for the Squamish Nation.

The Squamish Nation’s strategic plan for housing development is two-fold. First, to provide housing in ancestral and high-demand areas to its own members and other vulnerable Indigenous peoples who are being priced out of the region. Second, to leverage the land and housing that will be developed as an economic development project to generate long-term income for the community by renting units at market rates to non-members. Revenue generated by market-rate rental housing for non-members will allow the Squamish Nation to support other community projects, including affordable housing for its own members, leading to greater economic independence and social well-being for the community.

The Hiy̓ám̓ residential housing venture consists of three new affordable medium density on-reserve housing project sites in West Vancouver and the District of Squamish in British Columbia. The sites are set to be developed and managed by the Hiy̓ám̓ Housing Society, which is responsible for leading not-for-profit projects for purpose-built, equitable and diverse housing options designed to accommodate the Squamish Nation’s needs. The 177 units generated from these three sites will be provided to Squamish Nation members most at risk of experiencing housing insecurity and are in close proximity to services offered by the Squamish Nation.

The Sen̓áḵw project is a joint venture between the Squamish Nation and Westbank Projects Corporation to construct 11 new towers on Kitsilano Reserve No. 6 in downtown Vancouver. The project is anticipated to add 6 000 new residential units built in four phases over 15 to 20 years. The majority of the residential units will be available at market rate for non-members, with a mix of affordable housing for Squamish Nation members, and non-members, including other Indigenous people. Once underway, the project is anticipated to generate billions of dollars in economic benefits, with hundreds of jobs created in design, construction and operations.

Objective

The objectives of the Regulations are to

These changes are expected to facilitate the development of housing on specified Squamish Nation lands at a time when more housing is desperately needed.

Description

Most residential tenancies in British Columbia fall under the Residential Tenancy Act. The Manufactured Home Park Tenancy Act contains many of the same provisions as the Residential Tenancy Act but applies to many sites rented to a person for the purpose of placing their manufactured home, which can include trailers and residential vehicles. The Regulations incorporate by reference key statutes from British Columbia’s regulatory regime applicable to similar residential tenancies on provincial lands: the Residential Tenancy Act, the Manufactured Home Park Tenancy Act and associated regulations. The Emergency Program Act, which describes the process and circumstances when the Province of British Columbia declares a state of emergency, has been incorporated, but only in relation to the landlord-tenant relationship (such as was seen during the COVID pandemic). Minor technical adaptations were made to address the fact that the project is taking place on specified reserve land (the Hiy̓ám̓ and Sen̓áḵw project sites) identified by the Squamish Nation in the Regulations.

British Columbia’s provincial Residential Tenancy Branch provides a formal dispute resolution process in respect of any rights and obligations under the provincial regulatory regime or any rights and obligations under a tenancy agreement. This encourages compliance with the legislation and agreements and is intended to provide simple, speedy and inexpensive recourse to landlords and tenants in relation to issues such as security deposits, rent increases and evictions. As set out in section 5(1)(b) of FNCIDA, a tripartite agreement has been concluded between Canada, the Squamish Nation and the Province of British Columbia, which describes how the Regulations are to be implemented.

The Regulations incorporate by reference the following key elements from the Residential Tenancy Act and Manufactured Home Park Tenancy Act.

Requirements for tenancy agreements

The Regulations require that tenancy agreements include standard terms designed to protect both the landlord and tenant, while also ensuring each party meets specified obligations and responsibilities.

Condition inspections

The Regulations require that a condition inspection must be completed by the landlord and the tenant upon the tenant taking possession and vacating the rental unit to document the condition of the unit. There are specifications on the scheduling of the inspection and the format and details of the inspection report that are to be provided to the tenant following the inspection.

Rent increases

The Regulations include the circumstances, notice provisions and the amount and frequency at which rent increases may occur.

Abandonment of personal property

The Regulations include information on when a landlord may consider that a tenant has abandoned personal property and the landlord’s obligations in such circumstances. Obligations include storing personal property, a written inventory of the property, and a written record of disposal of property.

Notice provisions

The Regulations specify the manner and associated notice periods in which documents are to be given to parties for the purposes of providing adequate notice. The Regulations include specific rules and notice requirements for a broad range of matters that arise in a landlord and tenant context, including but not limited to subletting of the unit or entering the dwelling for inspection or repair.

Dispute resolution

The Regulations enable a dispute resolution mechanism to offer landlords and tenants the same method of resolving disputes as they would have off reserve through the Residential Tenancy Branch. Separately, optional culturally appropriate supports will be provided to Indigenous tenants. The intent is to ensure Indigenous tenants who are unfamiliar with the dispute resolution service will receive assistance.

The Regulations also provide the Squamish Nation with a process to request that the Regulations be applied to future residential projects on their reserve land.

Regulatory development

Consultation

The Regulations apply to the Hiy̓ám̓ and Sen̓áḵw housing projects. As required under FNCIDA, the Squamish Nation passed a Band Council Resolution requesting that the Minister of Indigenous Services recommend the Governor in Council make these Regulations.

Canada, British Columbia and the Squamish Nation were all involved in the planning, negotiation and drafting of the tripartite agreement and the Regulations. On December 10, 2019, Squamish Nation community members voted in a referendum approving the Sen̓áḵw project. A further community vote approving three new Hiy̓ám̓ Housing Society’s housing sites was held on July 28, 2021. Surrounding communities have been consulted for all active projects as required under the federal Impact Assessment Act.

Other First Nations were not specifically consulted as the Regulations are only applicable to the Squamish Nation project lands that are listed in the Regulations. Should another First Nation in British Columbia wish to use the Regulations in the future, an amendment through the Governor in Council process could be considered, with further consultation to be undertaken at that time.

Modern treaty obligations and Indigenous engagement and consultation

Regulations pursuant to FNCIDA are made at the request of interested First Nations. These Regulations are the result of a request made by the Squamish Nation to develop regulations that align with the Province of British Columbia’s residential tenancy regulatory regime.

It has been determined that there are no potential modern treaty implications. The Squamish Nation is not a modern treaty or self-government partner. This project does not trigger the Crown’s duty to consult as the Regulations apply only to housing projects that are entirely within existing Squamish Nation reserve lands. Therefore, no Indigenous groups, other than the Squamish Nation, have been engaged in developing the Regulations.

Instrument choice

One option considered was to develop residential tenancy rules via contract law by incorporating language into the project leases that would replicate provincial residential tenancy rules. This approach was not advanced, as the replication of rules into leases would not provide a sufficiently efficient and cost-effective method for parties to enforce their rights or adequate authority to the Residential Tenancy Branch. Furthermore, there would not be a mechanism to continually update the rules within the leases as changes to the provincial regulatory regime unfold. This would create the potential for differing sets of rules applying to these on-reserve project lands compared to similar projects off reserve. For these reasons, this option was not pursued.

The development of residential tenancy regulations under FNCIDA was identified as the preferred option. The partnership approach under FNCIDA provides legal certainty that rules and regulations pertaining to residential tenancy are in place and enforced, via a tripartite agreement, in the same manner on and off reserve. Furthermore, through the tripartite agreement, a management committee between the Province of British Columbia, Canada and the Squamish Nation will ensure consultation occurs as updates to the provincial regulations or federal regulations are pursued. The management committee will also review any optional dispute resolution approach for Indigenous tenants and provide recommendations for changes if needed.

Regulatory analysis

Benefits and costs

Baseline

There are no residential tenancy protections on reserve. Under the Indian Act, member housing is managed by each First Nation. The Squamish Nation’s member waitlist for housing is currently 30 years.

Non-member tenancies on reserve lands are managed under third-party leases issued by ISC under the Indian Act. There are few on-reserve housing options for non-members. The lease terms and conditions carry provisions for rights and responsibilities of tenants that are similar in some ways to provincial tenancy agreements but they do not provide residential tenancy protections. For example, in the event of non-payment of rent, the default provisions are applied and the tenancy is terminated, whereas under the provincial legislation, a tenant has five days after receiving a notice to end tenancy for non-payment of rent to address arrears and continue the tenancy. Having automatic default can be problematic in an area experiencing housing affordability issues.

Additionally, third-party leases under the Indian Act do not have an alternative dispute resolution mechanism. The only recourse is to go to court. The costs of enforcing leases in court can be high. The scale and density of the projects being pursued by the Squamish Nation for members and non-members require a more cost-effective and efficient dispute resolution system. Extrapolating the number of anticipated dispute applications per year from each project multiplied by approximately $11,000 per dispute case referred to the courts for Hiy̓ám̓ will be approximately $185,000 per year, while Sen̓áḵw will be $2.376 million per year.

While it is possible that these housing development projects could be undertaken in the baseline, the lack of rules in place would have raised the cost of financing and likely decreased the number of potential tenants. This increased risk presented in the baseline may have resulted in the project not advancing. The Regulations significantly reduce these projected costs by providing access to the existing provincial Residential Tenancy Branch’s dispute resolution process.

Incremental impact from the Regulations
Requirement Baseline — Indian Act Effect of the Regulations Incremental impact
Security/ Pet deposit Deposits are not collected. Landlords under the Residential Tenancy Act may request a security deposit and/or pet deposit up to half-a-month’s rent each. The landlord must return both deposits to the tenant no later than 15 days from the date the tenancy ends or the date the landlord receives the tenant’s forwarding address, whichever is later. Unless the landlord makes an application claiming against the deposits, or the tenant agrees in writing that the landlord may retain (part of) the deposit. The Regulations are likely to result in no change in the costs of compliance for this requirement. In instances where deposits are not returned it may increase the cost of compliance.
Condition inspections A full environmental site inspection must be paid for by the lessee (tenant) prior to and immediately following the term of the lease (approximately $2000 to $5000 per report). Prior to and immediately following tenancy under the Residential Tenancy Act, the landlord and tenant must participate in an inspection of the condition of the unit. If the tenant fails to participate in either one of those inspections the right to deposit return is extinguished. Should the landlord fail to provide at least two potential inspection times, or fail to provide an inspection report, they forfeit their right to make a claim against the tenant’s deposits. The Regulations are likely to result in lower costs of compliance for this requirement.
Rekeying locks This provision is not addressed in Indian Act leases. The tenant may request that the landlord rekey the rental unit. The landlord must bear the associated costs of the rekeying. The Regulations are likely to result in higher costs of compliance for this requirement.
Abandonment of personal property This provision is not specifically addressed in Indian Act leases. However, in practice, documentation of items left behind by a lessee would be captured in a report generated pursuant to an end of term environmental site assessment required under the Indian Act. Generally, the landlord must keep the property in a safe and secure manner for a period of not less than 60 days and keep a written inventory. If the tenant claims the personal property at any time before it is disposed of, the landlord is entitled to seek reimbursement for reasonable costs incurred. Particulars of the disposition of the property must be kept for two years following the date of disposition. The Regulations do not change the costs of compliance for this requirement.
Tenant insurance Lessees are required to have a comprehensive insurance regime. Failure to comply results in termination of the lease. Not required. Landlords may request that tenants carry renter’s insurance for personal property which may include some liability insurance for the unit. The Regulations are likely to result in lower costs of compliance for this requirement.
Giving and serving documents This provision is not addressed in Indian Act leases. Notice requirements are specified in a broad range of interactions between landlords and tenants. This includes but is not limited to termination of tenancy; rent rate changes; collection against a security or pet deposit; subletting a unit. While not explicitly stated in Indian Act leases, giving documents takes place as a matter of business practice. The Regulations do not impose incremental burden through this requirement.
End of fixed term tenancy Responsibilities of the lessor and lessee are specified; notice requirements are specified. Responsibilities of landlords and tenants are specified, and notice requirements are specified. The Regulations do not change the costs of compliance for this requirement.
Rental rates and payments Under the Indian Act, third-party leases may be issued to non-members. Rents are calculated based on current market rates, and tenants are sometimes required to pay the entire term’s rent upfront, or annually. When the term is finished, rents are adjusted based on current market rates. Tenants are required to pay rent as specified in the tenancy agreement, which typically is on a monthly basis. Rent rate increases are subject to restrictions. For the projects referenced, tenants have the option to remain in the unit on a month-to-month basis. The Regulations are likely to result in lower costs of compliance for this requirement.

Though there are some cost implications for landlords and tenants with the Regulations, the costs are less than those incurred through Indian Act leases. To use Indian Act leases for these projects would have put a tremendous burden on ISC staff to negotiate and administer leases, as well as the courts to handle disputes. In addition, tenants might have been responsible for expensive, complicated and onerous technical reports not necessary for rental units. The current Indian Act third-party lease system does not provide regulatory certainty and would not have been appropriate for the proposed high-density residential units.

Costs to the Government of Canada

The costs of administering the Regulations are minimal. It is not anticipated that the general administration and enforcement of the Regulations will have direct cost implications to the federal government except for the cost for the Indigenous only dispute resolution mechanisms.

Canada has agreed to provide funding for a culturally safe dispute resolution option for Indigenous tenants on the project lands. The total expenses arising for the first five years from the date of the enactment of the regulations are approximately $446,086footnote 1. Costs will be revisited every five years.

Projected costs for five-year period (based on current market salaries)
Position Year 1 (2023) Year 2 Year 3 Year 4 Year 5 Totals
Mediator $39,719 $37,121 $34,693 $64,846 table 4 note a $60,604 table 4 note a $236,983
Navigator $35,047 $32,754 $30,611 $57,217 table 4 note a $53,474 table 4 note a $209,103
Totals $74,766 $69,875 $65,304 $122,063 table 4 note a $114,078 table 4 note a $446,086

Table 4 note(s)

Table 4 note a

Note that Year 1 through Year 3 estimates only 0.5 FTEs due to the lower number of housing units expected to be ready for occupancy during this time. Year 4 and 5 are 1.0 FTE estimates.

Return to table 4 note a referrer
Costs to British Columbia

In the event there is a dispute between a landlord and tenant, costs may be incurred to have the dispute adjudicated by the British Columbia’s provincial Residential Tenancy Branch. The Residential Tenancy Branch estimates that approximately 3% of renter households submit a dispute resulting in approximately 21 000 applications per year. Over the lifespan of the Squamish Nation’s two proposed projects, there will be an additional 6 177 rental units in the Metro Vancouver area. The increased burden to the Residential Tenancy Branch will not be significant, representing approximately an additional 194 disputes annually or less than a 1% increase.

Benefits

The Regulations provide regulatory certainty and facilitate multiple residential projects proposed by the Squamish Nation on reserve land that will provide much-needed housing in Metro Vancouver for both Indigenous and non-Indigenous people. The Regulations will decrease the costs and the risks of the projects relative to the baseline. The enactment of the regulations supports the development of an additional 6 177 rental units in the Metro Vancouver area. During phases 1 & 2 of Sen̓áḵw development, 20% of the total units (equalling 600 homes) will be leased at affordable rates and 125 of those affordable units will be reserved specifically for Squamish Nation members. All of the proposed 177 units for the Hiy̓ám̓ project, along with 250 units of the completed Sen̓áḵw project, will be available at affordable rates and will be for Squamish Nation members.

The Regulations support the Sen̓áḵw project, which will provide a long-term sustainable revenue stream for the Squamish Nation allowing them to pursue other socio-economic initiatives. The Sen̓áḵw project will also generate hundreds of jobs and entrepreneurial opportunities in design, construction, and operations for the Squamish Nation, as well as for the surrounding community.

Small business lens

The small business lens does not apply as there are no associated impacts on businesses.

One-for-one rule

The one-for-one rule does not apply as there are no associated impacts on businesses.

Regulatory cooperation and alignment

The Regulations incorporate by reference the provincial residential tenancy regime, which creates regulatory symmetry between governments and increases regulatory compatibility between residential tenancies on and off reserve. Regulatory cooperation is exemplified through the tripartite agreement, which sets out a shared administrative framework.

Multiple ministries within the Province of British Columbia have been involved in the development of the Regulations and the tripartite agreement. A management committee, comprised of the Squamish Nation, the Province of British Columbia and Canada, is established through this agreement to ensure efficient implementation of the Regulations and to address any issues that may arise, including potential changes needed to the Regulations.

No inconsistencies or interference with activities of other federal departments have been identified. Canada Mortgage and Housing Corporation (CMHC) has provided significant funding support to the Sen̓áḵw project under the Rental Construction Financing Initiative for low-cost loans to developers. This funding was provided to the partnership formed between the Squamish Nation and Westbank Projects Corporation. CMHC has also provided funding support to the Hiy̓ám̓ residential tenancy projects for low-income individuals under the Rapid Housing Initiative.

The Regulations support the development of the Sen̓áḵw project for which the Squamish Nation has negotiated and concluded a servicing agreement with the City of Vancouver and engaged in positive discussions with Metro Vancouver, Translink, Vancouver School Board and Vancouver Parks Board, all of whom support the project.

The Regulations align with articles 21 and 23 of the United Nations Declaration on the Rights of Indigenous Peoples. Article 21 states that “Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions,” including housing. Article 23 states that “Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development” and this includes housing.

The Regulations also support Canada’s commitment to the United Nations Sustainable Development Goals, specifically Goals 3 and 11. Goal 3 – Good health and well-being “to ensure healthy lives and promote well-being.” Goal 11 – Sustainable cities and communities “to make cities and human settlements inclusive, safe, resilient and sustainable.”

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment was not required. The Regulations did not require a strategic environmental assessment.

Gender-based analysis plus

The Squamish Nation is one of British Columbia’s largest First Nations, with approximately 4 400 members, the majority of whom live off reserve due to limited on-reserve housing in urban and central Vancouver. There are affordability issues for living off reserve, and there are currently 1 000 people on the Squamish Nation waiting list for on-reserve housing. According to a release on September 21, 2022, by Statistics Canada, in 2021 Indigenous people were almost twice as likely to live in crowded housing compared with non-Indigenous people (17.1% versus 9.4%).

Housing units under the Hiy̓ám̓ project will be intended for Squamish Nation members and specifically for groups of people facing the most barriers to safe and affordable housing, including those with disabilities, those who may need support with addictions, youth and students, people experiencing or at risk of homelessness, women and their children, 2SLGBTQI+ (Two-Spirited) and elders.

While the Sen̓áḵw project does not target specific groups within the Squamish Nation, it will provide more affordable housing to members, which will benefit those with lower to moderate income.

Implementation, compliance and enforcement, and service standards

The Squamish Nation Residential Tenancy Regulations come into force on the day on which they are registered.

The Regulations replicate the existing provincial off-reserve dispute resolution mechanism for landlords and tenants of these on-reserve housing projects. For Indigenous residents, culturally safe supports will be made available on an optional basis.

The Regulations, in conjunction with the provisions of British Columbia’s FNCIDA Implementation Act, give provincial officials the authority to administer and enforce the regulatory regime. Under the tripartite agreement associated with the Regulations, a management committee composed of representatives of the Government of Canada, the Province of British Columbia and the Squamish Nation will monitor performance, address potential issues and propose changes as required.

Contact

Jessica Wong
Acting Director
Research, Policy and Legislative Initiatives
Economic Policy Development Branch
Lands and Economic Development Sector
Telephone: 416‑999‑5681
Email: jessica.wong2@sac-isc.gc.ca