A-585-86
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) (Respondents)
v.
The Queen and Ralph Dick, Daniel Billy, Elmer
Dick, Stephen Assu and James D. Wilson, sued on
their own behalf and on behalf of all other mem
bers of the Wewayakai Indian Band, also known
as the Cape Mudge Indian Band (Defendants)
(Appellants)
INDEXED AS: ROBERTS v. CANADA
Court of Appeal, Urie, Hugessen and MacGuigan
JJ.—Vancouver, January 12; Ottawa, March 2,
1987.
Federal Court jurisdiction — Trial Division — Dispute
between Indian bands as to possession of reserve lands —
Applying criteria laid down in ITO—International Terminal
Operators Ltd. v. Miida Electronics Inc. et al., [19861 1 S.C.R.
752, Federal Court having jurisdiction — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 17(1),(3)(c) — Exchequer
Court Act, R.S.C. 1970, c. E- II, s. 24 (rep. by R.S.C. 1970
(2nd Supp.), c. 10, s. 64).
Constitutional law — Distribution of powers — Right to
possession of Indian reserve lands within exclusive federal
legislative power under Constitution Act, s. 91(24) — Indian
Act and law of aboriginal title both "existing federal law", and
"laws of Canada" within Constitution Act, s. 101 — Constitu
tion 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. Il
(U.K.), Schedule to the Constitution Act, 1982, Item 1), ss.
91(24), 101 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 17(1),(3)(c).
Native peoples — Lands — Dispute between Indian bands
as to possession of reserve lands — Action properly before
Federal Court — Indian Act and law of aboriginal title
applicable existing federal laws and "laws of Canada" within
Constitution Act, s. 101 — Action to determine dispute where
Crown under obligation object of conflicting claims, within
Federal Court Act, s. 17(3)(c) — Indian Act, R.S.C. 1970, c.
1-6, s. 18 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 17(1),(3)(c).
The respondent band alleges that the federal Crown wrong
fully denied it, since 1888, the use and occupation of reserve
lands, giving possession thereof, instead, to the appellant band.
The respondent seeks a declaration, an accounting and dam
ages as against the Crown, and a declaration and an injunction
as against the appellant. In the Trial Division, the defendant
band moved to have the action dismissed as against it for want
of jurisdiction. This is an appeal from the Trial Judge's denial
of that motion.
Held, the appeal should be dismissed.
Per Hugessen J.: In ITO—International Terminal Operators
Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752,
McIntyre J., for the majority, formulated the essential require
ments to support a finding of jurisdiction in the Federal Court.
A. There must be an existing body of federal law which is
essential to the disposition of the case and which nourishes the
statutory grant of jurisdiction. In this case, the federal law is
the Indian Act, which deals with and provides for the right to
possession of reserve lands, and the law of aboriginal title. B.
The law on which the case is based must be "a law of Canada"
within the meaning of section 101 of the Constitution Act,
1867. Both the Indian Act and the law of aboriginal title are
such "laws of Canada". C. There must be a statutory grant of
jurisdiction by the federal Parliament. It is preferable to leave
to another day the question of whether jurisdiction in this case
can be found in subsection 170) of the Federal Court Act
which provides that the Trial Division has original jurisdiction
in all cases where relief is claimed against the Crown. Jurisdic
tion lies in paragraph 17(3)(c) of the Act, which is not limited
to matters of interpleader. This case meets the requirements of
17(3)(c) since this is a proceeding to determine a dispute where
the Crown is under an obligation (to hold the reserve land for
the use and benefit of the band for which it was originally set
apart) in respect of which there are conflicting claims.
Per Urie J.: The jurisdiction in this case arises clearly from
paragraph 17(3)(c). The applicability of subsection 17(1)
should be left for another case where the issue is confronted
directly or where there may not be any other jurisdictional
foundation.
Per MacGuigan J.: The requisite statutory grant of jurisdic
tion can be found in subsection 170) as well as in paragraph
17(3)(c). Reed J.'s analysis of subsection 170) jurisdiction in
Marshall v. The Queen, [1986] 1 F.C. 437 (T.D.) should be
adopted. Subsection 17(1) is broadly enough drafted to allow a
co-defendant to be sued along with the Crown where the claim
against the Crown and the co-defendant are so intertwined that
findings of facts with respect to one defendant are intimately
bound up with those that would have to be made with respect to
the other.
CASES JUDICIALLY CONSIDERED
APPLIED:
ITO—International Terminal Operators Ltd. v. Miida
Electronics Inc. et al., [1986] 1 S.C.R. 752; Derrickson v.
Derrickson, [1986] 1 S.C.R. 285.
DOUBTED:
Marshall v. The Queen, [1986] 1 F.C. 437 (T.D.); Little
Chief v. Canada (Attorney General), order dated June 11,
1986, Federal Court, Trial Division, T-2102-85, not yet
reported.
REFERRED TO:
Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335;
Sunday v. St. Lawrence Seaway Authority, [1977] 2 F.C.
3 (T.D.); Lubicon Lake Band (The) v. R., [1981] 2 F.C.
317 (T.D.), affirmed by [1981] 13 D.L.R. (4th) 159
(F.C.A.).
COUNSEL:
John D. McAlpine, Q.C. and David R. Pater-
son for defendants (appellants).
Irwin G. Nathanson, Q.C. and Anna K. Fung
for plaintiffs (respondents).
No one appearing for Her Majesty the Queen.
SOLICITORS:
McAlpine & Hordo, Vancouver, for defend
ants (appellants).
Davis & Company, Vancouver, for plaintiffs
(respondents).
Deputy Attorney General of Canada for Her
Majesty the Queen.
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of both of my brothers
Hugessen and MacGuigan JJ. I am entirely in
agreement with both that the Federal Court juris
diction in this case arises clearly from paragraph
17(3)(c) of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10]. I would prefer to base my
concurrence solely on that view so that I propose
to concur only with the reasons of Hugessen J. and
leave for another day the resolution of the appar
ent differences of opinion in the Trial Division
[[1987] 1 F.C. 155] as to the applicability of
subsection 17 (1) of the Act in circumstances such
as prevail in this case. This is not to say that I
agree or disagree with MacGuigan J.'s view as to a
probable source of jurisdiction being subsection
17(1). On the facts of this case, as I see them, it is
unnecessary to decide that difficult issue so that
the preferable course, it seems to me, is to leave
the matter open to be decided in a case where the
issue is confronted directly or where there may not
be any other jurisdictional foundation.
I agree, too, with the disposition of the appeal
proposed by Hugessen J.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This appeal raises yet again the
question of the limits of this Court's jurisdiction.
The plaintiffs sue as representing the Campbell
River Indian Band. They allege that, beginning in
the year 1888 and ever since, the Federal Crown
has wrongfully denied to the Campbell River Band
the use and occupation of a piece of land known as
Reserve No. 12. Instead, they say, the Crown
wrongfully gave Reserve No. 12 to the second
defendants, who are sued as representing another
band, known as Cape Mudge Indian Band. The
land in dispute is an Indian reserve title to which
vests in the Federal Crown but the use and benefit
of which should be with the plaintiff band rather
than the defendant band. As against the Crown,
the action seeks a declaration, an accounting and
damages; as against the defendant band, it seeks a
declaration and an injunction.' The defendant
band has moved that the action be dismissed as
against it for want of jurisdiction. That motion was
denied by Joyal J. in the Trial Division, whence
the present appeal.
' I have somewhat simplified the terms of the prayer for
relief, without, I trust, changing anything of substance.
Notwithstanding the quantities of judicial ink
that have been expended on the question of this
court's jurisdiction, I am relieved of a detailed
study of all the jurisprudence by the most recent
decision of the Supreme Court on the matter in
ITO—International Terminal Operators Ltd. v.
Miida Electronics Inc. et al., [1986] 1 S.C.R. 752.
In that case, McIntyre J., speaking for the majori
ty, gave what, I may say with respect, was a clear
and helpful synthesis of the state of the law. He
said [at page 766]:
The general extent of the jurisdiction of the Federal Court has
been the subject of much judicial consideration in recent years.
In Quebec North Shore Paper Co. v. Canadian Pacific Ltd.,
[1977] 2 S.C.R. 1054, and in McNamara Construction (West-
ern) Ltd. v. The Queen, [1977] 2 S.C.R. 654, the essential
requirements to support a finding of jurisdiction in the Federal
Court were established. They are:
1. There must be a statutory grant of jurisdiction by the
federal Parliament.
2. There must be an existing body of federal law which is
essential to the disposition of the case and which nourishes
the statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of
Canada" as the phrase is used in s. 101 of the Constitution
Act, 1867.
What I find particularly useful about this
approach to the problem is that it separates ques
tions relating to the statutory grant upon which
any claim of jurisdiction of this Court must rest
from questions relating to the law which the Court
is called upon to apply and questions of constitu
tional competence. Such separation, in its turn,
permits a clearer and more rational analysis of the
issues in each case.
In the present appeal, there would not appear to
me to be any great problem raised by the second
and third of McIntyre J.'s requirements. The case
relates to the possession of Indian reserve lands. As
was stated by Chouinard J., speaking for the Court
in Derrickson v. Derrickson, [1986] 1 S.C.R. 285
[at page 296]:
The right to possession of lands on an Indian reserve is mani
festly of the very essence of the federal exclusive legislative
power under s. 91(24) of the Constitution Act, 1867. It follows
that provincial legislation cannot apply to the right of posses
sion of Indian reserve lands.
Not only is federal law essential to the disposi
tion of the present case; it is difficult to think of
any other law that might be applicable.
The federal law essential to the disposition of
the present case has two sources.
In the first place, there is, of course, the Indian
Act. 2 While the right to possession of reserve lands
is not created by that Act, it is provided for and
dealt with therein and there can be no doubt that
the provisions of the Act and its predecessors will
be essential elements of the ultimate decision on
the merits.
The second source of applicable federal law is
the underlying aboriginal title which, on the plead-
ings, must vest in either the plaintiff band or the
defendant band. In the case of Guerin et al. v. The
Queen et al., [1984] 2 S.C.R. 335, that title was
variously described as a "unique" or "sui generis"
interest (per Dickson J. [as he then was], at page
383) and as a "historic reality" (per Wilson J., at
page 349). As further stated by Dickson J. at page
379, the Indians' interest in their lands:
is a pre-existing legal right not created by Royal Proclamation,
by s. 18(1) of the Indian Act, or by any other executive order or
legislative provision.
In the light of subsection 91(24) of the Constitu
tion 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 Consti
tution Act, 1982, Item 1)], and of the Derrickson
decision, supra, it cannot be seriously argued that
the law of aboriginal title is today anything other
than existing federal law.
With respect to the third criterion, it would
equally seem to me to be beyond question that
both the Indian Act and the law of aboriginal title
are "Laws of Canada" as that phrase is used in
section 101 of the Constitution Act.
The real problem raised by the present appeal
has to do with McIntyre J.'s first requirement,
namely, that there be a statutory grant of jurisdic-
2 R.S.C. 1970, c. 1-6.
tion to the Federal Court. It is, of course, trite that
this Court, as a creature of statute, can have no
jurisdiction beyond what statute specifically
confers.
Joyal J., in the Trial Division, found the neces
sary statutory jurisdiction in the words of subsec
tion 17(1) of the Federal Court Act, 3 the appli
cable part of which reads as follows:
17. (1) The Trial Division has original jurisdiction in all
cases where relief is claimed against the Crown ....
In this respect he followed two earlier decisions of
Reed J., in Marshall v. The Queen, [ 1986] 1 F.C.
437 (T.D.) and Little Chief v. Canada (Attorney
General) (Court file T-2102-85, order of June 11,
1986). He found that the claims of the plaintiff
band against the Crown and against the defendant
band were so "intertwined" with one another as to
make it appropriate for jurisdiction over the
defendant band to follow jurisdiction over the
Crown.
I confess that this approach gives me some
difficulty It is, of course, perfectly true that on a
literal reading the words of subsection 17(1) lend
themselves to the interpretation that, once relief is
claimed against the Crown, the whole case falls
within the jurisdiction of the Federal Court even
though it may include claims for the same or other
relief against one or more other defendants which
would not otherwise be cognizable in this Court.
That, however, is not an interpretation which has
hitherto found favour. (See Sunday v. St. Law-
rence Seaway Authority, [1977] 2 F.C. 3 (T.D.);
Lubicon Lake Band (The) v. R., [1981] 2 F.C. 317
(T.D.), affirmed by [1981] 13 D.L.R. (4th) 159
(F.C.A.)).
While I concede that the decision here under
appeal and the two prior decisions of Reed J.
mentioned above, by their requirement that the
claim against the non-Crown defendant should be
"intertwined" with the claim against the Crown,
assert a rather more subtle position than the one I
have just stated, it remains that subsection 17(1)
purports to grant an exclusive jurisdiction; I have
3 R.S.C. 1970 (2nd Supp.), c. 10.
difficulty accepting a proposition that would make
so fundamental a question, which must be deter
mined at the time of the institution of suit, depend
ent upon so uncertain a base.
Since I have, in any event, concluded that there
is another statutory grant appropriate to sustain
the Court's jurisdiction in this case, I would prefer
to leave the question of subsection 17(1) to
another day and to say no more on the matter.
The provision which appears to me to give juris
diction to this Court in the particular circum
stances of the present case is paragraph 17(3)(c)
of the Federal Court Act, which grants exclusive
jurisdiction over:
17. (3) .. .
(c) proceedings to determine disputes where the Crown is or
may be under an obligation, in respect of which there are or
may be conflicting claims.
This paragraph of the Federal Court Act is new
legislation. It has no clear textual predecessor in
the Exchequer Court Act. 4 It is clearly intended to
cover, and does cover, the same area as the previ
ous jurisdiction in interpleader granted by section
24 of the Exchequer Court Act:
24. The Court has jurisdiction, upon application of the
Attorney General of Canada, to entertain suits for relief by way
of interpleader in all cases where the Crown or any officer or
servant of the Crown as such is under - liability for any debt,
money, goods or chattels for or in respect of which the Attorney
General expects that the Crown or its officer or servant will be
sued or proceeded against by two or more persons making
adverse claims thereto, and where Her Majesty's High Court of
Justice in England could, on the 30th day of September 1891,
grant such relief to any person applying therefor in like
circumstances.
The grant contained in paragraph 17(3)(c), how
ever, is far broader than that of the former juris
diction in interpleader. Interpleader as a proceed
ing was limited to the case of the stakeholder or
other person in possession of or liable for property
in which he had no interest but to which others
asserted competing claims. It was fundamental
that the person seeking interpleader not be a party
4 R.S.C. 1970, c. E-11 (rep. by R.S.C. 1970 (2nd Supp.), c.
10, s. 64).
to the dispute or have colluded or sided with either
claimant. Proceedings in interpleader were, of
course, as the wording of section 24 of the Ex
chequer Court Act makes clear, instituted at the
instance of the stakeholder. Clearly the present
proceedings are not interpleader proceedings since:
1. The Crown is far more than a mere stake-
holder. It has, and whatever the outcome will
retain, legal title to the reserve lands in dispute. 5
2. The Crown has taken sides in the dispute and
is not neutral. By its original action in 1888 and by
its statement of defence filed in the present case, it
has asserted and reiterated that beneficial interest
in Reserve No. 12 properly vests in the defendant
band.
3. The proceedings have not been taken at the
instance of the Crown but of the plaintiff band; the
Crown appears only as a defendant.
As I have indicated, however, it is my view that
paragraph 17(3)(c) is not limited to matters of
interpleader. If it were, it would have been a
simple matter to have said so. Instead, Parliament
chose to adopt a text which, while no doubt broad
enough to cover interpleader, covers other cases
where there are competing claims to an obligation
owed by the federal Crown. While it may be
doubtful that such other cases will be very numer
ous, especially since they must meet the second
and third requirements enumerated by
5 I the span of time encompassed by the plaintiff band's
claim, the Crown's legal title is of relatively recent date. At the
time of the alleged wrongful allocation of reserve No. 12 to the
defendant band, title to the land vested in the provincial Crown.
Notwithstanding that article 13 of the Terms of Union of 1871
[British Columbia Terms of Union, R.S.C. 1970, Appendix II,
No. 10 (as am. by Canada Act 1982, 1982, c. 11 (U.K.),
Schedule to the Constitution Act, 1982, Item 4)] required the
transfer of title to reserve lands from the provincial to the
federal government, such transfer did not, in fact, take place
until 1938. (See P.C. 208/1930 (Canada) and O.I.C. 1036/
1938 (B.C.), reproduced in Indians and the Law II, The
Continuing Legal Education Society of British Columbia,
January 26, 1985).
McIntyre J. above, it is my view that the present
action is one of them.
Paragraph 17(3)(c) requires:
1. A proceeding
2. to determine a dispute
3. where the Crown is under an obligation
4. in respect of which there are conflicting
claims.
There can be no doubt that the present action
constitutes a proceeding.
There can equally be no doubt that there is a
dispute. The plaintiff band claims possession of,
and aboriginal title to, Reserve No. 12 which the
Crown has given to the defendant band.
The Crown is under an obligation in the dispute.
That obligation, arising from the law of aboriginal
title and recognized in section 18 of the Indian
Act, is to hold Reserve No. 12 for the use and
benefit of the band for which it was originally set
apart.
Finally, there are conflicting claims in respect of
the Crown's obligation. That there may be such
conflicting claims was clear enough at the time of
the filing of the original statement of claim. Since
then the defendant band has filed its statement of
defence which asserts unequivocally that Reserve
No. 12:
is and has been since its creation set aside for the exclusive use
and benefit of the Defendant Band.
I conclude accordingly that the present action is
properly within the jurisdiction of this Court. I
may say that, like the Trial Judge, I find some
comfort in this conclusion. Clearly the action as
framed is primarily directed against the Crown,
whose wrongdoing, it is alleged, lies at the very
foundation of the plaintiff band's claim. That
action must be taken in this Court. Equally clear
ly, however, the defendant band has a vital interest
in the outcome. If the plaintiff band is successful,
the defendant band will find themselves in the
position of squatters upon land to which they have
neither legal nor beneficial title. While the Crown,
by its statement of defence, has made it clear that
it proposes to support the defendant band, the
latter is surely the most competent and most
appropriate body to defend itself.
I would dismiss the appeal with costs.
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: I agree entirely with the view
of my colleague, Mr. Justice Hugessen, that the
provisions of paragraph 17(3)(c) of the Federal
Court Act constitute a statutory grant appropriate
to sustain the Court's jurisdiction in this case.
However, I do not share his doubts as to the
appropriateness of subsection 17 (1) of the Act for
the same purpose, and I would, in fact, adopt the
following analysis of that subsection by Reed J. in
Marshall v. The Queen, [ 1986] 1 F.C. 437, at
pages 447-449:
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 (eg: with respect to the alleged collusion). 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 inter
pretation 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 plaintiffs claim is against
both the employer (the Crown), and the Union (the P.S.A.).
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.
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.
In this case, for the reasons set forth by Mr.
Justice Hugessen in his analysis of the facts in
relation to paragraph 17(3)(e), the competing
claims of the two bands to Reserve No. 12 are
intertwined not only with respect to each other,
but also in each case with respect to the Crown.
I would therefore rest the requisite statutory
grant for jurisdiction upon subsection 17(1) as well
as upon paragraph 17(3)(c).
In all other respects I concur with the reasons of
Mr. Justice Hugessen and, of course, with his
disposition of the appeal.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.