Woman can keep home on reserve even though she is not a band member: judge

File Photo: “The totality of the circumstances dictates that the only fair outcome is to grant an order for exclusive occupation.”
(Photo by Perry Bellegarde/Twitter)

HALIFAX — A Nova Scotia judge says the widow of a former First Nations chief can stay in their family home on reserve land even though she is not a member of the band or a status Indian.

Marlene Toney’s occupancy became an issue for the Annapolis Valley First Nation because, under the Indian Act, reserve lands are held by the federal Crown in trust for the exclusive benefit of First Nation bands.

As well, the band pointed out in court there are 25 band members on a waiting list for housing.

Justice Gregory Warner of the Supreme Court of Nova Scotia, in a decision released Thursday, concluded Toney can stay in the home west of Kentville, N.S., mainly because a 2013 federal statute recognizes the equality rights of spouses in such situations, regardless of gender, race or ethnic origin.

Warner said the Family Homes on Reserves and Matrimonial Interests or Rights Act was introduced to fill a legislative gap with respect to property rights between spouses living on reserves when they separate or one of them dies.

“Clearly, when Parliament passed the (act) and recognized the matrimonial status of both partners, irrespective of whether both were First Nation members or Indians, it was an intentional modification to … the Indian Act,” Warner wrote in his decision.

The home in question was built in 1979 for former chief Lawrence Toney and his first wife with a $23,000 federal grant.

Reserve lands are not owned by individuals, but rather by the band as a whole. However, the band can vote to grant individuals so-called Certificates of Possession.

Lawrence Toney obtained such a certificate in 1998.

His second wife, Marlene Toney, has lived in the home since 1986.

Over the 30 years that the couple occupied the home, they spent over $140,000 of their own money on permanent improvements.

Lawrence Toney, who was chief of the First Nation in the 1990s, died in July 2016.

The only substantial asset in his estate was the
1,600-square-foot home and the Certificate of Possession for the
land on which it sits.

In his will, Lawrence left his entire estate, including the certificate, to his second wife.

Marlene Toney, now 56, was an active member of the reserve community for many years until her multiple sclerosis became too severe.

Today, she lives alone in the house, and her only income is $775 a month from a disability pension and her husband’s Canada Pension Plan.

More importantly, she is not eligible to obtain the Certificate of Possession because she is not a member of the Annapolis Valley First Nation.

She told the court that if she is forced out of the home, she has no other place to live and will seek social assistance.

The judge noted that her occupancy of the “immaculate, well-maintained” home would not be an issue for the First Nation if she was a band member.

Still, Warner considered that the 291-member First Nation is facing a growing demand for housing on its land.

Katrina Toney, Lawrence Toney’s youngest daughter from his first marriage, filed an affidavit stating that she has been on the waiting list for housing on the reserve for almost 20 years.

But Warner decided Marlene Toney should be able to stay in the house indefinitely.

“The applicant is 56. She has no other place to live and is physically not well, with her needs being provided for within the community and in the family home she has occupied for 32 years,” his decision says.

“The totality of the circumstances dictates that the only fair outcome is to grant an order for exclusive occupation.”