Woman wins right to stay on reserve

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.