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from Pat via nativeamericanlaw list
Supreme Court to consider native land dispute
http://www.canoe.ca/NationalTicker/CANOE-wire.Musqueam-Dispute.html
December 9, 1999 

VANCOUVER (CP) -- A dispute over millions of dollars in back rent owed 
to an Indian band by non-native residents living on their reserve will 
be heard by the Supreme Court of Canada. 

  The high court granted both sides leave to appeal Thursday in the 
dispute that had escalated to the point where leaseholders faced 
eviction. 

  Despite the court's decision, the lawyer for the band said eviction 
proceedings are still possible unless the leaseholders agree to pay a 
minimum $10,000 in yearly rent. 

  The granting of the appeal by the country's top court sends a clear 
message that the case is of national importance, said Kerry-Lynne 
Findlay, a spokeswoman for the leaseholders. 

  "That's because there are literally tens of thousands of non-native 
leaseholders on native land in Canada," she said. 

  The leaseholders are contesting a Federal Court of Appeal decision that 
raised their rents from as little as $400 per year to as much as 
$28,000. 

  The leaseholders say that's too much. 

  However, the band is also appealing the decision, saying the appeal 
court wrongly deducted the cost of services such as road maintenance, 
water, street lights and other services. 

  Without the deduction, the band argues the rents should be up to 
$36,000 per year, said lawyer Lewis Harvey. 

  The 74 tenants own the upscale houses they live in, but the land the 
houses are built on belongs to the Crown as part of the Musqueam reserve 
near the University of British Columbia campus. 

  A 1997 Federal Court order set new land rents at $10,000 a year but the 
Musqueam appealed. The Federal Court of Appeal ruling in December 1998 
boosted the rents to as mush as $28,000, depending on the appraised 
value of the land. 

  Findlay claimed the Department of Indian Affairs misrepresented the 
nature of the leases. 

  The department also failed to properly administer the leases and 
wrongly transferred management of the land to the Musqueam in 1980 and 
taxing authority in 1990, she Findlay. 

  "The conduct of the band and the government has been such that there 
are fundamental breaches of the leases and they should be responsible 
for our total economic losses," she said. 

  Leaseholders fear the $37 million equity in their homes may evaporate. 
  The leaseholders sued the Musqueam band and the federal government in 
late October. A separate writ filed in the British Columbia Supreme 
Court by the leaseholders claims they collectively owe about $6 million 
in outstanding lease payments. 

  Band lawyer Harvey said the tenants have refused to pay any rent at all 
for a year and that's causing hardship for the band. 

  "It's unfathomable that they would refuse to pay the rent," he said. 
  Harvey said the band wants the leaseholders to pay the $10,000 included 
in the original court decision. If they continue to refuse, eviction 
proceedings will start. 

  "Hopefully, that won't be necessary. Hopefully there will be some 
sanity that takes hold and the tenants realize that it's not 
particularly reasonable to be living on this property knowing that you 
have an obligation to pay rent and are not paying rent." 

  Gail Sparrow, a member of the band council, said the Musqueam should 
have resolved the issue without court interference to maintain a 
harmonious relationship with the leaseholders. 

  "The band has failed to realize that there are tenants living on the 
land and whether they're natives or non-natives, they need to be treated 
equitably," Sparrow said. 

  "If the decision goes in favour of the leaseholders, it's going to set 
a precedent across Canada regarding land that's leased from first 
nations, and that means the band has shot itself in the foot," she said. 
  "We lost the war, we lost the battle, and there's the loss of revenue," 
said Sparrow, who was the Musqueam band chief for two years until 1998. 
  Harvey agreed the relationship between the leaseholders and the band 
couldn't get worse. 

  The dispute between the Musqueam and the leaseholders has been going on 
for about nine years since the band took over property taxation. 

  The 99-year leases, signed in 1965, were calculated on property values 
at the time and weren't revised for 30 years. But the leases said the 
Musqueam could later charge market value. 

  Last July, the federal government appointed a mediator to try to 
resolve the disagreement, but Findlay said the band did not participate 
in the process. 

  "We signed on under the process, the government signed on, but the band 
refused," she said. 
   
Copyright  1999, Canoe Limited Partnership. All rights reserved. 


Reprinted under the Fair Use http://www4.law.cornell.edu/uscode/17/107.html doctrine 
of international copyright law.
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