T-2652-85
Roy Anthony Roberts, C. Aubrey Roberts and
John Henderson, suing on their own behalf and on
behalf of all other members of the Wewayakum
Indian Band, also known as the Campbell River
Indian Band (Plaintiffs)
v.
The Queen, Ralph Dick, Daniel Billy, Elmer Dick,
Stephen Assu and James D. Wilson sued on their
own behalf and on behalf of all other members of
the Wewayakai Indian Band, also known as the
Cape Mudge Indian Band (Defendants)
INDEXED AS: ROBERTS v. CANADA
Trial Division, Joyal J.—Vancouver, April 30;
Ottawa, July 21, 1986.
Federal Court jurisdiction — Trial Division — Application
to dismiss action in trespass against Indian Band for want of
jurisdiction — Supreme Court of Canada decisions resulting
in jurisdictional limitations on Federal Court and multiplica
tion of proceedings — More recent Supreme Court and Feder
al Court decisions attempting to redress imbalance between
constitutional requirements and proper adjudication of issues
— Where Federal Court having statutory jurisdiction and
claim based on valid, existing federal law, Court should have
jurisdiction to dispose of all issues between parties — Federal
Court Act, s. 17(1) supporting jurisdiction over whole cause of
action when more than two parties, if facts and circumstances
"intimately intertwined", notwithstanding impingement on
provincial law — Indian Act governing rights to occupation
and possession — Cause of action (trespass) not created by
federal law, but rights and obligations of parties determined to
material extent by federal law — Joinder of defendant Band
vital to determination of issue — Application dismissed —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 17 —
Indian Act, R.S.C. 1970, c. I-6, ss. 2(1),(2), 18(1), 20(1),(2),
(4),(5), 21, 30, 31(1),(3), 37, 39(1), 55(1), 58(1) — Federal
Court Rules, C.R.C., c. 663.
Constitutional law — Distribution of powers — Constitu
tional doctrine that federal legislation under appropriate head
of valid legislative authority may impinge on provincial legis
lative fields, provided pith and substance rule respected,
applied to judicial competency — Constitution Act, 1867, s.
101 providing authority to establish courts for better adminis
tration of laws of Canada may be exercised "notwithstanding
anything in this Act" — If Federal Court having statutory
jurisdiction and claim based on valid federal legislation,
Court, by necessary implication, having jurisdiction to dispose
of all issues between parties — Constitution Act, 1867, 30 &
31 Vict., c. 3 (U.K.) (R.S.C. 1970, Appendix II, No. 5J (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the
Constitution Act, 1982, Item 1), ss. 91, 101.
Native peoples — Lands — Reserve ceded to another Band
in 1888 — Whether possession unlawful — Action against
Indian Band for trespass on Reserve within Federal Court
jurisdiction — Indian Act governing rights to use and benefit
of Reserve lands — Impinging on provincial law of trespass
permissible if issue, in pith and substance, necessary incident
of valid federal law — Rights and obligations to material
extent determined by federal law — Indian Act, R.S.C. 1970,
c. 1-6, ss. 2(1),(2), 18(1), 20(1),(2),(4),(5), 21, 30, 31(1),(3), 37,
39(1), 55(1), 58(1).
The plaintiff Indian Band took action against the Crown,
seeking a declaration that a Reserve belonged to it. The land
had been ceded to another Band in 1888 but the plaintiff's
argument is that the Crown had breached its fiduciary duty in
respect of lands reserved for Indians. The plaintiff additionally
seeks, as against the Cape Mudge Indian Band, a permanent
injunction restraining its members from trespassing on the
disputed lands. That Band moves for an order to dismiss the
action as against it for want of jurisdiction.
Held, the application should be dismissed.
As a result of the Supreme Court of Canada's decisions in
the Quebec North Shore Paper Co. and McNamara Construc
tion (Western) Ltd. cases, the Federal Court's jurisdiction is
subject to a three-fold test: (1) does the statute creating the
Court give it jurisdiction? (2) is the claim in relation to existing
federal law? (3) is the federal law itself within the legislative
competence of Parliament? This jurisdictional test has led to
practical problems, notably the striking out of a third party
notice for lack of jurisdiction: R. v. Thomas Fuller Construc
tion Co. (1958), Ltd. et al. The implications of the Federal
Court's limited jurisdiction included: the multiplication of pro
ceedings, increased costs and difficulties related to limitation
periods. Since these cases, there have been some successful
attempts to redress the balance between constitutional limita
tions and the proper adjudication of issues. In the Rhine and
Prytula cases, although the Crown's claims were based on
contractual undertakings, the relevant federal legislation was
found to govern every aspect of the relationship between the
parties. Laskin C.J. stated that "contract" or "tort" cannot be
invariably attributed to sole provincial legislative regulation or
be deemed to be, as common law, solely matters of provincial
law. These decisions may indicate that the Supreme Court is
willing to move towards a position similar to that in Bensol
Customs Brokers where it was held that it should be sufficient
if rights and obligations of the parties are determined to some
material extent by federal law. The cause of action need not be
created by federal law so long as it is affected by it. In
Marshall v. The Queen, Reed J. relied on the wording "cases
where relief is claimed against the Crown" in subsection 17(1)
of the Federal Court Act to find that jurisdiction was conferred
over the whole case where the claims are so intertwined that
findings of fact with respect to one defendant are intimately
bound up with those that would have to be made with respect to
the other.
From a practical point of view, if a litigant must by a
legislative imperative seek redress from the federal Crown in
the Federal Court to the exclusion of all other courts, such
redress should include all matters essential to a final determina
tion. A split in the case creates an excessive burden on the
litigant, provokes two separate actions over the same issues of
fact and might result in conflicting decisions. Although such
consequential matters might come within the fields of provin
cial legislation, constitutional doctrine has long established that
federal legislation under an appropriate head of federal legisla
tive authority may impinge upon a legislative field exclusively
reserved for the provinces, but the terms and conditions of such
legislation are no less valid for it, so long as the pith and
substance rule is respected. The same constitutional doctrine
could be applied when dealing with judicial competency. The
establishment of the Federal Court is presumed to be for the
better administration of justice. The principles laid down in
McNamara and in Fuller lead to a veritable impasse which
cries out for solution. What might be considered in an effort to
mitigate the Fuller results is that if the statutory jurisdiction of
the Federal Court is beyond doubt, and the existing federal law
on which a claim is founded is valid legislation, the Court
would by necessary implication have jurisdiction to finally
dispose of all issues between the parties. This does not open
wide the door to create universal and unassailable competency
in the Federal Court simply by instituting an action in it. It
suggests that an enquiry may be made as to the particular facts
and circumstances when more than two parties are involved,
and if these be "intimately intertwined", subsection 17(1) of
the Federal Court Act supports jurisdiction over the whole
cause of action. If the complex of issues and of the facts cries
out for common trial and ultimate final resolution, it would not
matter if an issue impinges upon provincial law, so long as it is
in pith and substance a necessary incidence of a valid federal
law and of the relative position of the parties with respect to it.
The right to the use and benefit of a reserve must be
determined by referring to the Indian Act. The claim is based
on trespass. In order to prove that trespass has occurred, it is
necessary to establish who is entitled to possession of the land.
The cause of action is not created by federal law. However, the
rights and obligations of the parties must be determined to a
material extent by federal law as is required by the Bensol test.
The right to possess a reserve can only be determined by
reference to the Indian Act. The result is thus similar to that in
Marshall where the findings of fact with respect to one defen
dant are intimately bound up with those that would have to be
made with respect to the other. The real and substantive issue
must be examined. The rights of both Bands are found in the
Indian Act. It is the Crown which has allocated Reserve No.
12, and it is against the Crown that primary relief is sought.
The joining of the defendant Band is proper to make sure that
all sides of the issue may be brought before the Court in such a
manner as would better serve all of the conflicting interests of
the real parties to the dispute and the more expeditious process
of their resolution. It is vital that the defendant Band partici
pate in the trial.
CASES JUDICIALLY CONSIDERED
APPLIED:
Bensol Customs Brokers Ltd. v. Air Canada, [1979] 2
F.C. 575 (C.A.); Marshall v. The Queen, [1986] 1 F.C.
437 (T.D.); Little Chief v. Canada (Attorney General),
judgment dated June 11, 1986, Federal Court, Trial
Division, T-2102-85, not yet reported; Joe et al. person
ally and on behalf of the Conne River Indian Band and
Micmac Indian Community of Conne River v. Canada,
Government of (1983), 49 N.R. 198 (F.C.A.); Joe et al.
v. Findlay (1978), 87 D.L.R. (3d) 239 (B.C.S.C.).
CONSIDERED:
Quebec North Shore Paper Co. et al. v. Canadian Pacific
Ltd. et al., [1977] 2 S.C.R. 1054; (1976), 71 D.L.R. (3d)
111; McNamara Construction (Western) Ltd. et al. v.
The Queen, [1977] 2 S.C.R. 654; R. v. Thomas Fuller
Construction Co. (1958) Ltd. et al., [1980] 1 S.C.R. 695;
(1979), 106 D.L.R. (3d) 193; Rhine v. The Queen;
Prytula v. The Queen, [1980] 2 S.C.R. 442.
REFERRED TO:
Pacific Western Airlines Ltd. v. R., [1979] 2 F.C. 476
(T.D.); Lubicon Lake Band (The) v. R., [1981] 2 F.C.
317 (T.D.); Guerin et al. v. The Queen et al., [1984] 2
S.C.R. 335; Stephens' Estate v. Minister of National
Revenue, Wilkie, Morrison, Smith, Stratham (Deputy
Sheriff County of Oxford), Constable Ross and David-
son (1982), 40 N.R. 620 (F.C.A.).
COUNSEL:
A. G. Henderson, Lewis F. Harvey and A.
Fung for plaintiffs.
Leonard Cohen for defendant the Queen.
John D. McAlpine, Q. C. and David Paterson
for all other defendants.
SOLICITORS:
Davis & Company, Vancouver, for plaintiffs.
Deputy Attorney General of Canada for
defendant the Queen.
McAlpine & Hordo, Vancouver, for all other
defendants.
The following are the reasons for order ren
dered in English by
JOYAL J.: The application before me which was
the subject of stimulating debate in Vancouver on
April 30, 1986, raises again the issue of the Feder
al Court's jurisdiction in what has been termed its
somewhat confused state.
The basic conflict is over the right of possession
of an Indian Band over a particular reserve of
Indian lands. The plaintiffs are members of the
Wewayakum Indian Band, also known as the
Campbell River Indian Band. On December 2,
1985, the plaintiffs, which we shall call the plain
tiff Band, took action against the federal Crown
before this Court for a declaration that Indian
Reserve No. 12 belonged to it. Reserve No. 12 had
been ceded to another Indian Band back in 1888
and according to the plaintiff, this possession par
autrui was unlawful, illegal, and in breach of the
fiduciary duty which reposed on the federal Crown
when dealing with lands reserved for Indians.
To the plaintiff's claim against the Crown for a
declaration that Reserve No. 12 rightfully belongs
to it and for ancillary relief for damages, was
joined a claim against members of the Wewayakai
Indian Band otherwise known as the Cape Mudge
Indian Band, the actual occupiers of Reserve No.
12. The prayer for relief against this Band, which
we shall call the defendant Band, was for a perma
nent injunction restraining its members from tres
passing on Reserve No. 12.
In response to the plaintiff Band's statement of
claim, the federal Crown on February 28, 1986
filed its statement of defence. On March 11, 1986,
the defendant Band applied for an order pursuant
to the Rules of this Court [Federal Court Rules,
C.R.C., c. 663] to have the action against it dis-
missed for want of jurisdiction in the Federal
Court to grant the relief sought.
There is no doubt as to the Federal Court's
jurisdiction to deal with lands reserved for Indians.
In that respect, the plaintiff Band's action against
the federal Crown is taken in the proper Court.
The issue, however, is whether or not the Federal
Court has jurisdiction to deal with the claim of
trespass against the defendant Band.
,The problem here is that the Federal Court is a
statutory court without inherent jurisdiction. From
time to time, there have been imposed limits on its
assumed jurisdiction. From time to time, its wings
have been clipped, as it were, and it has often
found itself unable to decide the real issues be
tween the parties on the grounds that the enquiry
had perforce to enter into a field where the inher
ent jurisdiction of provincial superior courts
prevailed.
If such a principle of paramountcy governs, the
corollary principle is that the Federal Court's
jurisdiction must be founded not only in the feder
al statute which created it (see Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10) but in Parlia
ment's competency under section 101 of the Con
stitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II No. 5] (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1)] to create it
and to define the limits of its jurisdiction.
The landmark cases where the Federal Court's
jurisdiction was put to the test were Quebec North
Shore Paper Co. et al. v. Canadian Pacific Ltd. et
al., [1977] 2 S.C.R. 1054; (1976), 71 D.L.R. (3d)
111, and McNamara Construction (Western) Ltd.
et al. v. The Queen, [1977] 2 S.C.R. 654. In this
latter case, the Supreme Court of Canada held
that Parliament's constitutional authority to estab
lish courts for the better administration of the laws
of Canada was limited to claims founded on some
existing federal law. Jurisdiction could not be
asserted simply on the grounds that the claim
came within the fields of federal legislative compe
tency under section 91 of the Constitution Act,
1867, but must be founded on existing federal law
properly passed and enacted.
This meant that the Federal Court's jurisdiction
was subject to a three-fold test, namely does the
statute creating the Federal Court give it jurisdic
tion, secondly, is the claim in relation to existing
federal law and finally, is the federal law itself
within the legislative competence of Parliament.
Since that decision, numerous have been the
instances when the Federal Court's jurisdiction in
claims involving the federal Crown failed to meet
that test. This had especially acute results where a
claim for or against the Crown involved third
parties. Such was the problem in R. v. Thomas
Fuller Construction Co. (1958) Ltd. et al., [ 1980]
1 S.C.R. 695; (1979), 106 D.L.R. (3d) 193.
It was in that case that the Crown, in defending
an action taken against it by its contractor, sought
to bring in another contractor, Fuller, as a third
party claiming against Fuller an indemnity for any
damages which it might have to pay to the plain
tiff contractor. The Crown's third party notice was
struck out on the basis that it was not founded on
federal law and that the Federal Court lacked the
jurisdiction to deal with it.
The bifurcation of the Federal Court's jurisdic
tion in this respect produced both real and
apprehended consequences and created for the
parties faced with a claim for or against the feder
al Crown an adjudication dilemma of some dimen
sion. It opened the door to the multiplication of
proceedings, to the running out of limitation peri
ods and to the accumulation of excessive costs. It
meant that the realities of a particular situation
could become submerged in juridical abstractions
where the parties, whom after all our Court system
is supposed to serve, were stone-walled in their
endeavours to have their dispute judicially settled.
The whole mix of the Federal Court Act, of
existing federal legislation and of constitutional
limitations to the Parliament's authority to create
courts was such as to invite some pretty critical
comments. Professor P. W. Hogg cast a jaundiced
eye on the situation in a Canadian Bar Review
article in 1977 (see "Constitutional Law—Limits
of Federal Court Jurisdiction—Is there a Federal
Common Law?" (1977), 55 Can. Bar Rev. 550). A
more massive critical analysis was launched by
Professor J. M. Evans in "Federal Jurisdiction—A
Lamentable Situation" (1981), 59 Can. Bar Rev.
124 who adopted the words used by Collier J. in
Pacific Western Airlines Ltd. v. R., [1979] 2 F.C.
476 (T.D.) describing the situation as "lament-
able".
Of further interest are the comments of Mart-
land J. in his dissenting opinion in the Fuller case.
Faced with the situation that an action and third
party proceedings, i.e. an action by McNamara
against the Crown and third party proceedings by
the Crown against Fuller, are separate proceed
ings, His Lordship stated that the interrelationship
of those proceedings could not be ignored. He
further stated, at pages 706 S.C.R.; 200-201
D.L.R.:
I am reinforced in this conclusion by a consideration of the
rather startling consequence which would result from the other
view. Suits against the Crown have to be brought in the Federal
Court which, under s. 17(1) and (2) of the Federal Court Act,
has exclusive jurisdiction in such matters. If the Crown cannot
take third party proceedings in the Federal Court, where the
claim against it is based on negligence, it would mean that the
whole issue would have to be retried in another court. In
Ontario, at least, where a Crown claim for contribution was
based on the Ontario Negligence Act, in the light of the Cohen
v. McCord case, this could not be done and the Crown would be
without a remedy.
Mr. Justice Martland also took comfort in the
final observation by the late Chief Justice Laskin
in the McNamara case (op. cit., at page 664)
when he said:
I would, however, observe that if there had been jurisdiction in
the Federal Court there could be some likelihood of proceed
ings for contribution or indemnity being similarly competent, at
least between the parties, in so far as the supporting federal law
embraced the issues arising therein.
Since the landmark cases quoted above, there
appears to have been some successful attempts to
redress the balance, as it were, in an effort to cope
with both constitutional limitations on the one
hand and the essential requirements for a proper
adjudication of issues on the other. In Rhine v.
The Queen and Prytula v. The Queen, [1980] 2
S.C.R. 442, it was held that although the Crown's
claims were based on contractual undertakings,
the relevant federal legislation in these cases, the
Prairie Grain Advance Payments Act, R.S.C.
1970, c. P-18, and the Canada Student Loans Act,
R.S.C. 1970, c. S-17, governed every aspect of the
relationship between the parties and therefore the
claims for relief were sought under applicable and
existing federal law. Laskin C.J. for the Court
stated, at page 447:
It should hardly be necessary to add that "contract" or other
legal institutions, such as "tort" cannot be invariably attributed
to sole provincial legislative regulation or be deemed to be, as
common law, solely matters of provincial law.
Professor Evans suggests, in his article to which
I have already referred, that these two decisions
may indicate that the Supreme Court of Canada is
willing to move towards a position similar to that
adopted by Le Damn J. in Bensol Customs Brokers
Ltd. v. Air Canada, [1979] 2 F.C. 575 (C.A.)
when he stated, at page 583:
It should be sufficient in my opinion if the rights and obliga
tions of the parties are to be determined to some material
extent by federal law. It should not be necessary that the cause
of action be one that is created by federal law so long as it is
one affected by it.
Of more recent vintage is the case of Marshall
v. The Queen, [1986] 1 F.C. 437 (T.D.). This is a
decision of my colleague, Madame Justice Reed,
dated November 19, 1985 (T-1085-85) and con
cerns an action by the plaintiff against her employ
er, the federal Crown, and her union, the Public
Service Alliance of Canada, following her loss of
employment. The allegation against the union was
that the union had colluded with the employer in
denying her rights or in committing wrongful
actions.
The union applied to have the pleadings against
it struck out on the grounds that it was an action
under the provincial law of tort and that the
Federal Court lacked jurisdiction.
In denying the application, Madame Justice
Reed found that, as a matter of statutory interpre
tation, the Federal Court Act did confer jurisdic
tion over the dispute. Her reasoning [at pages
447-449] was as follows:
The question, then, is whether subsection 17(1) confers
jurisdiction on the Federal Court so as to allow a plaintiff to
sue both the Crown and a subject in that Court when the cause
of action against both of them is one that is as intertwined as is
the case here .... On a plain reading of the section, such
jurisdiction would appear to have been intended since the grant
given is over "cases where relief is claimed against the Crown".
The jurisdiction is not merely over "claims against the Crown",
as a narrower interpretation would seem to require.
That Parliament intended the broader scope not only would
seem to follow from the literal wording of the section but it is
also a reasonable inference from the fact that certain claims
against the federal Crown are to be brought exclusively in the
Federal Court. It seems unlikely that Parliament would have
intended to disadvantage persons, in the position of the plain
tiff, by requiring them to split a unified cause of action and
bring part of it in the Federal Court and part in the superior
courts of the provinces. The effect of such an intention would
be to subject a plaintiff, in a position similar to the plaintiff in
this case, to different and possibly contradictory findings in
different courts, and to place jurisdictional and cost impedi
ments in the path of such persons if they sue the federal Crown.
I do not think that such was the intention of Parliament. While
there is no doubt that the jurisdiction of statutory courts are
strictly interpreted in that they are not courts of inherent
jurisdiction, it is well to remember that section 11 of the
Interpretation Act, R.S.C. 1970, c. I-23 requires that all federal
statutes be interpreted with such a construction as best to
ensure the attainment of their purpose. This would seem to
require that subsection 17(1) be interpreted as conferring on
the Federal Court jurisdiction over the whole case, in a situa
tion such as the present, where the plaintiff's claim is against
both the employer (the Crown), and the Union (the P.S.A.).
In the present case the claim against the Crown (employer) and
the Public Service Alliance (Union) are so intertwined that
findings of fact with respect to one defendant are intimately
bound up with those that would have to be made with respect to
the other.
Madame Justice Reed goes on to say [at page
448]:
Also, I would note that the scope which in my view subsec
tion 17(1) bears would not accord the Federal Court any
jurisdiction over cases between subject and subject, solely on
the ground that a federal claim might potentially be present but
is not being pursued. Without a claim being made directly
against the Crown there would be no foundation for Federal
Court jurisdiction, exclusive or concurrent, pursuant to subsec
tion 17(1). But when such a claim against the federal Crown is
made, in my view, subsection 17(1) is broadly enough drafted
to allow a co-defendant, in a case such as the present, to be
sued along with the Crown.
It is obvious from a purely practical point of
view that if a litigant must by a legislative impera
tive seek redress from the federal Crown in the
Federal Court to the exclusion of all other courts,
such redress should include all matters which are
essential to its final determination. A split in the
case creates an excessive burden on the litigant,
provokes two separate actions over the very same
issues of fact and worse, might conceivably result
in conflicting decisions. It is conceded that such
consequential matters might be categorized as
coming within the fields of provincial legislation
and thereby beyond the Federal Court's competen
cy. Yet, I suggest that this phenomenon is not new
in dealing with jurisdictional issues in a federal
state. Constitutional doctrine has long established
that federal legislation under an appropriate head
of federal legislative authority may very well
impinge upon a legislative field exclusively
reserved for the provinces but the terms and condi
tions of such legislation are no less valid for it, so
long as the pith and substance rule is respected.
Common sense alone has dictated that didactic
categories in defining legislative jurisdictions
should be no bar to Parliament's authority, and
indeed duty, to enact laws some of the provisions
of which might under one aspect be entrenching on
provincial jurisdiction and under another aspect,
might be deemed necessary or essential for such
laws to achieve their remedial purposes.
A proposition could then be made: if constitu
tional doctrine be necessarily applied when dealing
with fields of legislative competency, could not
that same constitutional doctrine be applied when
dealing with judicial competency? In my respect
ful view, the establishment of the Federal Court is
presumed to be for the better administration of
justice in Canada and not for its impediment. No
one would contest that the principles laid down in
the McNamara case and more so in the Fuller
case if logically and meticulously applied lead to a
veritable impasse which cries loudly for solution.
I should note here that the constitutional au
thority in section 101 of the Constitution Act,
1867 to establish courts for the better administra
tion of the laws of Canada may be exercised
"notwithstanding anything in this Act". That
phrase must mean something. We should all agree
with the reasoning of the late Mr. Justice Pigeon
in the Fuller case or for that matter of the late
Chief Justice Laskin in the McNamara case that
the phrase would not enable Parliament to abolish
superior courts or to attribute to section 101 courts
such wide fields of exclusive jurisdiction as would
effectively render superior courts obsolete. In that
respect, one should have no quarrel with the gener
al principle laid down in McNamara that a claim
before the Federal Court must be founded on
existing federal law and not on the fields of juris
diction set out in section 91 of the Constitution
Act, 1867. What might be considered in an effort
to mitigate the Fuller results is some middle
ground where if the statutory jurisdiction of the
Federal Court is beyond doubt and the existing
federal law on which a claim is founded is valid
legislation, the Court would by necessary implica
tion have jurisdiction to achieve the ends of justice
and the final disposition of all issues between the
parties.
As an example, I would not see where there
should be any real impediment in an action framed
in tort against the Crown under the Crown Liabil
ity Act [R.S.C. 1970, c. C-38] for the plaintiff to
sue a second defendant and for the Crown as well
to bring in any other party which it claims is the
party to which the liability in tort really attaches.
This appears to me to be the common sense view
adopted by Madame Justice Reed in the Marshall
case. It does not open wide the door to create
universal and unassailable competency in the Fed
eral Court simply by instituting an action in it. It
suggests that an enquiry may be made as to the
particular facts and circumstances when more
than two parties are involved, and if these be so
"intimately intertwined", subsection 17(1) of the
Federal Court Act supports jurisdiction over the
whole cause of action.
The reasoning in the Marshall case has not been
appealed. This might have encouraged Reed J. to
take a more recent stab at the issues in the case of
Little Chief v. Canada (Attorney General), judg
ment dated June 11, 1986, Federal Court, Trial
Division, T-2102-85, when specifically dealing
with Indian Bands and the Indian Act, Her Lady
ship asserted the Federal Court's jurisdiction
against the defendant member of an Indian Band.
She avoided the decision in Lubicon Lake Band
(The) v. R., [1981] 2 F.C. 317 (T.D.), on the basis
that the factual situations before her as in the
Marshall case, were so intertwined that the Feder
al Court could effectively and properly deal with
all issues.
In this light, it might be fair to observe that a
more pragmatic or individual approach to the Fed
eral Court's jurisdiction to deal with more than
one issue is preferable to the application of juridi
cal abstractions. If the complex of issues and of the
facts of a case is such as to cry out for common
trial and ultimate final resolution, it would matter
not if in some aspect, an issue bearing upon a
party impinges upon provincial law, so long as in
its pith and substance, the issue is a necessary
incidence or consequence of a valid federal law
and of the relative position of the parties with
respect to it.
In the case before me, the federal law which
must be considered is the Indian Act [R.S.C. 1970,
c. I-61. The relevant provisions read:
2. (1) In this Act
"band" means a body of Indians
(a) for whose use and benefit in common, lands, the legal
title to which is vested in Her Majesty, have been set apart
"Minister" means the Minister of Indian Affairs and Northern
Development;
"reserve" means a tract of land, the legal title to which is
vested in Her Majesty, that has been set apart by Her
Majesty for the use and benefit of a band;
"surrendered lands" means a reserve or part of a reserve or any
interest therein, the legal title to which remains vested in Her
Majesty, that has been released or surrendered by the band
for whose use and benefit it was set apart.
(2) The expression "band" with reference to a reserve or
surrendered lands means the band for whose use and benefit
the reserve or the surrendered lands were set apart.
18. (1) Subject to this Act, reserves are held by Her Majesty
for the use and benefit of the respective bands for which they
were set apart ...
20. (1) No Indian is lawfully in possession of land in a
reserve unless, with the approval of the Minister, possession of
the land has been allotted to him by the council of the band.
(2) The Minister may issue to an Indian who is lawfully in
possession of land in a reserve a certificate, to be called a
Certificate of Possession, as evidence of his right to possession
of the land described therein.
(4) Where possession of land in a reserve has been allotted to
an Indian by the council of the band, the Minister may, in his
discretion, withhold his approval and may authorize the Indian
to occupy the land temporarily and may prescribe the condi
tions as to use and settlement that are to be fulfilled by the
Indian before the Minister approves of the allotment.
(5) Where the Minister withholds approval pursuant to
subsection (4), he shall issue a Certificate of Occupation to the
Indian, and the Certificate entitles the Indian, or those claim
ing possession by devise or descent, to occupy the land in
respect of which it is issued for a period of two years from the
date thereof.
21. There shall be kept in the Department a register, to be
known as the Reserve Land Register, in which shall be entered
particulars relating to Certificates of Possession and Certifi
cates of Occupation and other transactions respecting lands in a
reserve.
30. A person who trespasses on a reserve is guilty of an
offence and is liable on summary conviction to a fine not
exceeding fifty dollars or to imprisonment for a term not
exceeding one month, or to both.
31. (1) Without prejudice to section 30, where an Indian or
a band alleges that persons other than Indians are or have been
(a) unlawfully in occupation or possession of,
(b) claiming adversely the right to occupation or possession
of, or
(c) trespassing upon
a reserve or part of a reserve, the Attorney General of Canada
may exhibit an Information in the Federal Court of Canada
claiming, on behalf of the Indian or the band, the relief or
remedy sought.
(3) Nothing in this section shall be construed to impair,
abridge or otherwise affect any right or remedy that, but for
this section, would be available to Her Majesty or to an Indian
or a band.
37. Except where this Act otherwise provides, lands in a
reserve shall not be sold, alienated, leased or otherwise disposed
of until they have been surrendered to Her Majesty by the band
for whose use and benefit in common the reserve was set apart.
39. (1) A surrender is void unless
(a) it is made to Her Majesty,
(b) it is assented to by a majority of the electors of the band
(i) at a general meeting of the band called by the council
of the band,
(ii) at a special meeting of the band called by the Minister
for the purpose of considering a proposed surrender, or
(iii) by a referendum as provided in the regulations, and
(c) it is accepted by the Governor in Council.
55. (1) There shall be kept in the Department a register, to
be known as the Surrendered Lands Register, in which shall be
entered particulars in connection with any ... disposition of
surrendered lands by the Minister or any assignment thereof.
58. (1) Where land in a reserve is uncultivated or unused, the
Minister may, with the consent of the council of the band, [take
certain steps in connection with the land]...
The parties agree that the land in question is a
reserve as defined above. The legal title to reserves
is held by the federal Crown, and the land is set
apart for the use and benefit of a particular band.
That band's interest in the land is a right which
can be alienated only upon surrender to the Crown
(Guerin et al. v. The Queen et al., [1984] 2 S.C.R.
335, at pages 376 and 382). The right to the use
and benefit of a reserve must, therefore, be deter
mined by referring to the Indian Act.
The claim against the defendant Band is based
on trespass. Trespass is "a wrong or tort inflicted
upon the person entitled to the possession of the
land that consisted in the defendant entering on
the plaintiff's land without lawful authority" (The
Canadian Law Dictionary, Law and Business Pub
lications (Canada) Inc., Don Mills, Ontario, 1980,
at page 385). Therefore, in order to prove that
trespass has occurred, it is necessary to establish
who is entitled to possession of the land.
The cause of action is not one created by federal
law. However, the rights and obligations of the
parties must be determined to a material extent by
federal law as is required by the Bensol test. As
indicated above, the right to possess a reserve can
only be determined by reference to the Indian Act.
The result, therefore, is very similar to that found
in Marshall v. The Queen, supra, [at page 449]
where the "findings of fact with respect to one
defendant are intimately bound up with those that
would have to be made with respect to the other".
The decision of the Federal Court of Appeal in
Joe et al. personally and on behalf of the Conne
River Indian Band and Micmac Indian Commu
nity of Conne River v. Canada, Government of
(1983), 49 N.R. 198, may serve as a useful analo
gy. The action by the plaintiffs was for a declara
tion declaring certain lands belonging to the Prov
ince of Newfoundland as belonging to the federal
Crown for Indian reserves purposes. The Court
struck out that claim on the grounds that [at page
199] "the main and primary effect of such a
declaration would be ... to affect the property
rights of the Province of Newfoundland", an issue
which could not be within the competence of the
Federal Court.
Such a pith and substance approach is indicative
that in the determination of the Federal Court's
jurisdiction in the matter before me, regard must
be had to the real and substantive issue of a claim
for possession of reserve lands which the Crown
has allocated illegally to someone else. As far as
the defendant Band's occupation of the reserve
lands is concerned, the right to continual occupa-
tion is founded on the Indian Act. Similarly, the
right to possession as alleged by the plaintiff Band
is concomitant to its right to evict the occupiers
and both rights are founded on the Indian Act.
I will concede that the cases cited by counsel,
Stephens' Estate v. Minister of National Revenue,
Wilkie, Morrison, Smith, Stratham (Deputy She
riff County of Oxford), Constable Ross and
Davidson (1982), 40 N.R. 620 (F.C.A.) and the
other cases where the jurisdiction of provincial
courts to adjudicate upon issues of trespass over
Indian lands has been unsuccessfully challenged,
raise some clouds over the validity of my own
conclusions. I take some comfort in that respect
from the comment of Berger J. in the case of Joe
et al. v. Findlay (1978), 87 D.L.R. (3d) 239
(B.C.S.C.) where, at page 243, he stated that even
if it were necessary to join the [federal] Crown as
a plaintiff or as a defendant, it would not affect
the jurisdiction of the Supreme Court of British
Columbia. Such a joinder, said His Lordship,
"would simply be for the purpose of having all
parties before this Court and avoiding a multiplici
ty of proceedings." It would not, he concluded,
constitute a claim against the Crown within the
meaning of subsection 17 (1) of the Federal Court
Act. I view the situation before me as the converse
of that facing Mr. Justice Berger. The plaintiff
before him was the Indian Band suing for eject-
ment of a member of that Band for wrongful
occupation of a portion of the Reserve lands, the
federal Crown having at that stage no interest in
the issue and perhaps not very much to contribute
to its resolution. In the case before me, it is the
Crown which has allocated Reserve No. 12 to the
defendant Band and it is against the Crown that
primary relief is sought. The joining of the defen
dant Band is, in my view, a proper initiative to
take to make amply sure that all sides of the issue,
and some of them not necessarily limited to the
application of statutory or contract techniques of
interpretation, may be brought before this Court
in such a manner as would better serve all of the
conflicting interests of the real parties to the dis
pute and the more expeditious process of their
resolution.
I should add a further observation in respect of
the dynamic situation created by the action of the
plaintiff against the Crown and against the
defendant Indian Band. No one would deny, not
even the applicant's able counsel, that it would be
fit and proper to have the defendant Indian Band
as a party to the action. The interests of its
members are deeply involved. It is a classic situa
tion where if a court should give to the one, it
takes away from the other. From the state of the
pleadings to date, it is obvious that the plaintiff
has put together an elaborate, if not to say, mas
sive case in support of its claim to rightful posses
sion of Reserve No. 12, involving historical, con
tractual and bureaucratic elements of great
complexity. The members of the defendant Indian
Band have been the dramatis personae in this
story no less than the plaintiff Indian Band and its
members and Her Majesty the Queen and her
servants. It is not only advisable that they partici
pate in the eventual trial but I think it is fair to say
that it is vital that they do so.
I must therefore deny the defendant Indian
Band's motion.
On another issue, the defendant Band's counsel
informed the Court that the elaborate research
undertaken by the plaintiff Band to launch its suit
had caught the defendant Band unprepared. The
Court in such circumstances should adopt a gener
ous policy in allowing time for the defendant Band
to prepare its statement of defence in a measure
consonant with the elaborate and complex case it
has to meet. In denying the defendant Band's
motion to strike, I should concurrently allow it a
period of 70 days from the date of this order to file
its defence.
Costs in the cause.
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