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T-2803-74
The Pas Merchants Ltd. (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Bastin D.J.—Winnipeg, Septem- ber 5 and 9, 1974.
Jurisdiction—Application to strike out statement of claim on ground of no cause of action—Indian reserve lands— Crown erecting shopping centre—Exemption of business from regulatory and taxing powers of province—No status in plaintiff to raise this issue—No interest of plaintiff in addi tional matters raised—Statement of claim struck out— Indian Treaty No. 5—Indian Act R.S.C. 1970, c. I-6, s. 18(2)—British North America Act, s. 92.
The defendant Crown proposed to finance construction of a shopping centre on an Indian reserve. The plaintiff com pany, in opposition to the project, claimed that existing shopping facilities in the district were adequate; that erec tion of the centre was not in the public interest; and that it was in breach of Indian Treaty No. 5 and of the Indian Act. The defendant applied to strike out the statement of claim.
Held, granting the application, the question of public interest was for the executive to decide; the Indian Treaty conferred no rights except upon the parties to it; section 18(2) of the Indian Act gave the Minister authority to use reserve land, with the consent of the band council, for any purpose beneficial to the band. No claim for damages was made. A legal issue, not pleaded, was whether the power to legislate for Indian Affairs entitled the Government of Canada to use lands reserved for Indians to carry on a commercial venture, which lands are exempt from the regulatory and taxing powers of the province under section 92 of the British North America Act. However, the plaintiff had no interest in the matter and no status to sue. The statement of claim was struck out, without prejudice to an action by persons who could claim to be adversely affected by the project.
APPLICATION. COUNSEL:
Donald MacIver for plaintiff.
S. Froomkin and B. Meroneck for defendant.
SOLICITORS:
Udow, MacIver & Associates, Winnipeg, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment delivered in English by
BASTIN D.J.: This is an application to strike out the statement of claim on the ground that it discloses no cause of action. For the purpose of such a motion the allegations in the statement of claim are assumed to be true. Briefly these are that the defendant has announced its intention to finance the construction of a shopping centre on the Indian Reserve at The Pas and has offered to lease space in the shopping centre to a number of businesses. The plaintiff alleges that the existing shopping facilities at The Pas are adequate and that its construction would not be in the public interest. The plaintiff also sub mits that Treaty No. 5 between the Government of Canada and certain Saulteaux and Swampy Cree Indians concluded in 1875 restricts the use of such reserve land to farming and that reserve land may not be sold, alienated, leased or other wise disposed of until they have been surren dered to the Crown by the Indian band.
The plaintiff, which is a Manitoba corporation whose officers and shareholders are alleged to be residents and businessmen of the town of The Pas, seeks declarations by the Court that the alleged actions of the defendant in promot ing and financing the construction of a shopping centre on lands forming part of the Indian Reserve are contrary to Treaty No. 5; that they are contrary to the provisions of the Indian Act and that they are contrary to the public interest.
In my opinion the action of the defendant in creating a shopping centre on this Indian Reserve does raise a legal issue but not one of
those set out in the statement of claim. These can readily be disposed of.
With respect to Treaty No. 5, this was an agreement between the Canadian Government and the Indian tribes in question. On the princi ple of privity such an agreement confers no rights and imposes no obligations arising under it on any person not a party to it. It follows that its interpretation and performance concern only the parties to it and the plaintiff has no status to enforce its provisions.
With respect to the Indian Act this was passed to carry out the obligations of the Canadian Government toward the original inhabitants of the country. It is not a public Act for the benefit of all citizens and gives no rights to Canadian citizens other than Indians. Since this Act gave no private right to the plaintiff, was not passed for its protection and establishes no public right, it follows that the plaintiff cannot maintain an action with respect to a departure from its provisions. I should add that section 18(2) of the Indian Act gives the Minis ter of Indian and Northern Affairs the authority to use land in a reserve with the consent of the council of the band for any purpose for the general welfare of the band. This, presumably, is considered the authority for such a proposal.
With respect to the claim that the actions of the defendant in relation to the shopping centre are contrary to the public interest, this is a matter of executive discretion which the Court has no power to review.
The statement of claim has another shortcom ing in that the plaintiff is not alleged to be threatened with any damage by the actions of the defendant and in fact it is impossible to see how such a corporation could be affected in any way by the construction of the shopping centre. No doubt merchants carrying on business at The Pas may be harmed by this development but the fact that they are shareholders of the
plaintiff cannot affect the interest of this corporation.
The legal issue which is raised by the actions of the defendant is whether the Canadian Gov ernment, under its power to legislate with respect to "Indians" contained in the British North America Act, has the right to use lands reserved for the use of Indians to carry on a commercial venture such as a shopping centre exempt from the regulatory and taxing powers granted by section 92 to the Province of Manitoba. In a motion such as this the Court has power to permit a plaintiff to cure a defect in the statement of claim by an amendment but in this case this is not possible because the plaintiff has no interest in the matter and no status to sue. The issue might be raised in a class action brought by a plaintiff or plaintiffs who could claim to be adversely affected by such a development. Whether this issue could be raised successfully is, of course, another question. Under the circumstances I direct that the statement of claim be struck out with costs. The persons who were represented by the nomi nal plaintiff in this statement of claim are at liberty to bring another action if so advised.
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