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T-6148-79
Marcel Fiche, Robert Machatis, John N. A. Jan- vier, Nora Machatis, Walter Loth, Francis Scanie, and Amable Scanie, for, and on behalf of themselves personally, and for and on behalf of the Cold Lake Band Indian Council and the members of the Cold Lake Band No. 149 and 149(A) and 149(B) and the Cold Lake Band No. 149, 149(A) and 149(B) (Applicants)
v.
Cold Lake Transmission Limited and World Wide Energy Company Ltd. (Respondents)
Trial Division, Primrose D.J.—Edmonton, Decem- ber 24 and 28, 1979.
Jurisdiction — Indians — Application for injunction restraining defendants from entering on a Cold Lake Indian Reserve for construction of a pipeline — Whether Federal Court has jurisdiction to entertain action — Indian Oil and Gas Act, S.C. 1974-75-76, c. 15 — Indian Oil and Gas Regulations, SOR/77-330 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 17, 18.
This is an application by the plaintiffs for an injunction restraining the defendants from entering on the premises of a Cold Lake Indian Reserve. The defendants began construction of a pipeline across the Reserve and made application to the appropriate authorities within the Department of Indian Affairs and Northern Development for a right of way across the Reserve but at the time of commencement of construction no right of way had been granted. The defendants made a conditional appearance for the purpose of objecting to the jurisdiction of the Court on the ground that a question of right of way over land in the Province of Alberta falls within the jurisdiction of the Provincial courts and there is no jurisdiction in the Federal Court Act to maintain an action in this Court. The plaintiffs submit that there is possession of the lands in the Crown when the Crown has absolute authority to do something as in the present case to grant a right of way pursuant to the Regulations under the Indian Oil and Gas Act which the Indians and the Band do not have jurisdiction to do themselves and that the Federal Court acquires jurisdiction under section 17 of the Federal Court Act.
Held, the application is dismissed. There is no federal law giving right to a cause of action. Under the Indian Oil and Gas Regulations the only procedure outlined is as to the acquisition of surface rights. Before using the surface or exercising any rights relating thereto an application for a surface contract approved by the Manager is required, which was not obtained as yet. The plain meaning must be applied to the word "posses- sion" which connotes occupation and the persons occupying the lands within the meaning of that word are the Indian plaintiffs and the Band—not the Crown. Since this Court is a statutory Court and its jurisdiction must be found in the Federal Court Act, it does not have the jurisdiction in this case to grant the application for an injunction.
Sunday v. St. Lawrence Seaway Authority [1977] 2 F.C. 3, followed. Alda Enterprises Ltd. v. The Queen [1978] 2 F.C. 106, followed. The Queen v. Rhine [1979] 2 F.C. 651, distinguished.
APPLICATION. COUNSEL:
R. F. Roddick and C. Wood for applicants.
S. D. Hillier and G. W. Sharek for respondents.
SOLICITORS:
Lefsrud, Cunningham, Patrick & Roddick,
Edmonton, for applicants.
Field, Owen, Edmonton, for respondents.
The following are the reasons for judgment rendered in English by
PRIMROSE D.J.: This is an application by the plaintiffs for an injunction restraining the defend ants from excavating in, entering on or otherwise trespassing upon a Cold Lake Indian Reserve. The defendants make a preliminary objection to the jurisdiction of this Court for the purpose of the motion and made a conditional appearance for the defendants.
The material consists of affidavits filed on behalf of the plaintiffs. It discloses that the individual plaintiffs are members of the Cold Lake Band No. 149 and 149(A) and 149(B) and they sue on behalf of themselves and on behalf of the Cold Lake Band Indian Council and members of the Band. The Band is a body of Indians, for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart in northeastern Alberta, which I will call the "Reserve".
In the month of December 1979 the defendants commenced construction of a pipeline across the Cold Lake Indian Reserve and for that purpose entered the Reserve and did certain preliminary work. The Court was informed that at this date there has been a shutdown of operations and it is urgent that an early decision be made on the application for the injunction. The statement of claim sets out that notwithstanding the repeated instructions from the Chief and Councillors of the Band to cease construction of the pipeline and to
leave the Reserve, the defendants continued to remain on it and they continued construction of the pipeline.
The procedure for entry into Indian Reserves is laid down in the Indian Oil and Gas Act, S.C. 1974-75-76, c. 15 and the Indian Oil and Gas Regulations, P.C. 1977-1057 [SOR/77-330] dated the 22nd of April 1977. Section 28 of the said Regulations provides:
28. (1) Every person who requires surface rights on Indian lands incidental to the exploitation of oil or gas, other than as provided for in section 5, shall, before using the surface or exercising any rights relating thereto, complete in a form approved by the Manager, an application for a surface contract for the rights so required.
(2) Notwithstanding subsection (1), with the permission of the Band Council concerned and the person in lawful possession of the land in respect of which surface rights are required, a person may enter upon that land for the purpose of site testing, locating proposed facilities or surveying or for any other pur pose necessary for the completion of his application under subsection (1).
(3) A person making an application under subsection (1) shall
(a) deliver to the Band Council concerned, the Manager, the person in lawful possession and the district office of the Department, a copy of the application and a paper print of the survey plan prepared in accordance with section 32;
(b) negotiate with the Band Council concerned and the person in lawful possession, the consideration to be paid to compensate for damage, severance, inconvenience, disturb ance and rental, if applicable, and any special conditions required by the applicant, Band Council concerned or person in lawful possession; and
(c) upon approval of the application by the Band Council concerned and the person in lawful possession, deliver to the Manager
(i) the consideration payable for the surface rights,
(ii) four copies of the application indicating the approval by the applicant, the Band Council concerned and the person in lawful possession, and
(iii) a sensitized polyester base film copy and six paper prints of the survey plan prepared in accordance with section 32.
(4) Upon receipt of the material referred to in paragraph (3)(c), the Manager shall, if he is satisfied that the material is complete, that the applicant requires the surface rights contract in order to carry out his rights under a permit or lease, and that the surface rights contract would not be detrimental to the interests of the Band concerned, grant the surface rights con tract to the applicant in such form as the Manager may approve.
(5) The term of a surface rights contract shall be for such period or periods of time as are, in the opinion of the Manager, necessary to allow for the extraction, transportation and treat ment of the oil or gas for which the surface rights are required.
The affidavit of Ed Moore of Calgary, Alberta Minerals Manager, as designated by the Indian Oil and Gas Act and the Regulations mentioned, discloses that an application was received Decem- ber 14, 1979 from the defendant Cold Lake Trans mission Ltd. for a right of way across the Cold Lake Indian Reserve No. 149 and that the applica tion has been referred to the appropriate authori ties within the Department of Indian Affairs and Northern Development and the Surveyor General of Canada. It further states that no right of way has been granted as of the 19th of December 1979 and that the normal time for processing such an application is approximately six weeks.
The defendants say that a question of right of way over land in the Province of Alberta falls within the jurisdiction of the Provincial courts, and that there is no jurisdiction in the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 to maintain an action in this Court. In examining the provi sions of the Federal Court Act section 18 provides:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi tion, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceed ing for relief in the nature of relief contemplated by para graph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
The defendants refer to Sunday v. St. Lawrence Seaway Authority [1977] 2 F.C. 3. At page 9 the Court held:
As to section 17 of the Federal Court Act, counsel for the plaintiffs contends that as long as the federal Crown is a defendant, this suffices to give the Court jurisdiction, regard less of the identity or character of the other defendants. In my view, the contention is wrong. The fact that a defendant has been joined with other defendants who are properly before the Court does not operate as to give the Court jurisdiction over him. I agree with the comments of Collier J. in the case of Anglophoto Limited v. The «Ikaros» ([1973] F.C. 483), to which Heald J. referred with approval in the case of Desbiens v. The Queen ([1974] 2 F.C. 20), where he said [at page 498]:
Again at page 11:
It is clear that this Court is a statutory Court and its jurisdiction with respect to a specific suit must be found in the
Federal Court Act or in some other statute or law meant to confer jurisdiction. I do not think any of the statutory provi sions I was referred to or any others which I am aware of authorize this Court to entertain or hear the claim advanced in this suit against Ontario Hydro. (See also: Union Oil Co. of Canada Ltd. v. The Queen [1976] 1 F.C. 74.)
The defendants also rely on Mathias v. Findlay [1978] 4 W.W.R. 653. In that action the plaintiffs were the Chief and the Band Council members of an Indian Band suing in a representative capacity for possession of reserve land occupied by the defendants. The plaintiffs prayed for an interim injunction restraining the defendants from residing on the land and they claimed that as the reserve land was owned by the Crown, only the Federal Court had jurisdiction. Berger J. granted the interim injunction and held that possession of the land was in the Band and not in the Crown and therefore the Band could sue in the Provincial Supreme Court. In the present case the same situation prevails i.e. the lands are in the name of Her Majesty but the defendants say possession is in the Band and therefore the Federal Court does not have jurisdiction.
In Alda Enterprises Ltd. v. The Queen [1978] 2 F.C. 106, at page 109 Collier J. held:
The defendants took the position there was no jurisdiction in the Federal Court to hear the claim of the Crown. The Supreme Court of Canada sustained that position. The Court referred to and amplified its earlier reasoning in Quebec North Shore Paper Co. v. Canadian Pacific Ltd. ([1977] 2 S.C.R. 1054)*: for this Court to have jurisdiction it is a prerequisite:
... there be existing and applicable federal law which can be invoked to support any proceedings before it. It is not enough that the Parliament of Canada have legislative jurisdiction in respect of some matter which is the subject of litigation in the Federal Court. (McNamara, page 658.) [Emphasis added.]
The Court found there was no existing federal law on which the plaintiff there could found its claim. The action was dismissed.
* See the following where the Quebec North Shore principle has been applied: Blanchette v. C.N.R. [1977] 2 F.C. 431; McGregor v. The Queen [1977] 2 F.C. 520; The Queen v. Canadian Vickers Ltd. unreported, T-1453-74—reasons June 22, 1977); Skaarup Shipping Corp. v. Hawker Industries Ltd. (T-1648-77---reasons September 26, 1977).
After reviewing the authorities the learned Judge held the test in determining the question of juris diction is whether the Federal Court would have jurisdiction if the claim advanced against the defendant in question stood alone and were not joined in an action against other defendants over whom there is properly jurisdiction, and held that the Federal Court had no jurisdiction.
The plaintiffs argue that there is possession in the Crown when the Crown has absolute authority to do something as in the present case to grant a right of way pursuant to the Regulations under the Indian Oil and Gas Act, which obviously the Indi- ans or the Band do not have jurisdiction to do themselves, and that the Federal Court acquires jurisdiction under section 17 of the Federal Court Act and that if the Indians have any rights of possession at least the Minister would perhaps have joint possession with them. However, the defendants point out that in that event the Minis ter should have been added as a plaintiff which, of course, has not been done.
The defendants rely on The Queen v. Rhine [1979] 2 F.C. 651 where the authorities are reviewed on the question of jurisdiction. That was a case where the Trial Division held that the Federal Court had no jurisdiction to entertain the action under section 17 of the Federal Court Act because the action was not based on existing feder al law. However, the Court held that the advances made through the respondent which were in issue, were made under the Prairie Grain Advance Pay ments Act, R.S.C. 1970, c. P-18, which advances he had neglected to repay. At page 658 Heald J. held:
I cannot agree with the view of the learned Trial Judge that the borrower's liability flows from his contractual promise to repay. As I understand the learned Trial Judge, it is his view that the liability to repay is imposed by the undertaking whereas, in my opinion, the liability to repay and the method of repayment is imposed by the statute and Regulations, and not by any
contractual promise. Further support for this view is, I believe, to be found in section 14 of the Act which provides that: "Where a producer is in default, all proceedings against him to enforce his undertaking may be taken in the name of the Board or in the name of Her Majesty." Likewise I do not accept the view of the learned Trial Judge that the appellant's claim is completely analogous to the Crown's claim on the surety bond in McNamara (supra), which opinion seems to be based on his belief that the Act does not "prescribe anything as to the law governing the enforcement of the undertaking." [Page 364.] In my opinion, the Act does indeed prescribe, with precision, the law governing the enforcement of the undertaking. In addition to the sections of the Act and Regulations described supra, there is subsection 13(1) of the Act which sets out the circum stances in which a borrower is deemed to be in default. That subsection reads as follows:
The Court held that the method of repayment was created by statute, the promise to pay was created by statute, and the default itself was created by statute and the right to recover, and that the whole cause of action was a creature of the statute and Regulations and that it clearly came within the jurisdiction of the Federal Court. That case is distinguishable from the circumstances in the present application. However, the plaintiffs say that the subject matter in this application comes under federal jurisdiction and certainly the lands are in the name of Her Majesty and that therefore there is a responsibility on the Minister under the Indian Act, R.S.C. 1970, c. I-6 to do certain things which are provided for in the Regulations referred to earlier, and that therefore this is similar to a situation in Rhine.
I distinguish the Rhine case because there the cause of action was specifically created pursuant to the statute and Regulations, being federal, and the whole procedure was laid out, whereas under the Indian Oil and Gas Regulations here the only procedure outlined is as to the acquisition of the surface rights. It is clear that before using the surface or exercising any rights relating thereto an application for a surface contract approved by the Manager is required, which was not, or has not been done as yet. Does that say that the Crown is therefore in possession of the lands? Or are the Indians in possession? In my view one must apply the plain meaning to the word "possession" which connotes occupation, and the persons occupying the lands within the meaning of that word are the Indian plaintiffs and the Band.
I have therefore concluded because this Court is a statutory Court and its jurisdiction must be found in the Federal Court Act, the Court does not have jurisdiction and the application for the injunction is therefore dismissed with costs and the statement of claim will be struck out.
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