FEDERAL COURT JURISDICTION |
Trial Division |
Blood Band v. Canada
T-312-99, T-340-99
2001 FCT 1067, Hargrave P.
27/9/01
18 pp.
Motion by defendant province of Alberta to strike out relevant portions of statements of claims as relating to it and to be removed as defendant--Actions involving claims to riparian rights and to lands in southern Alberta--Action as pleaded substantially against federal Crown--Relief sought against both federal Crown and province of Alberta--Plaintiffs seeking to justify action against province of Alberta in this Court--Federal Court without jurisdiction to grant relief sought against province of Alberta--Motion allowed--Application of three-part test for Federal Court jurisdiction set out in ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752--Applying concept of strict construction (see Lubicon Lake Band v. The Queen, [1981] 2 F.C. 317 (T.D.)), no statutory grant of jurisdiction under Federal Court Act, s. 17(1) (claims against Crown) as "Crown" therein referring to Her Majesty in right of Canada, and relief against persons other than federal Crown simply not in contemplation of test: Varnam v. Canada (Minister of National Health and Welfare), [1988] 2 F.C. 454 (C.A.)--Federal Court Act, s. 17(4) providing that Trial Division has concurrent original jurisdiction over disputes where Crown may be under obligation in respect of which may be conflicting claims--Plaintiffs arguing federal Crown may be under obligation to them and that plaintiffs and Alberta have conflicting claims to lands and resources both in Treaty 7 territory and on Blood Indian Reserve, being subject-matter of riparian action--Plaintiffs relying upon Roberts v. Canada, [1989] 1 S.C.R. 322, decision involving dispute between two Indian First Nations over land at Campbell River, B.C.--Roberts distinguished as no conflicting claims raised anywhere in pleadings herein--No obligation owed to two or more rival claimants--No common obligation, as there was in Roberts, in order to provide underpinning for application of that provision--To extend Federal Court Act, s. 17(4) to grant jurisdiction in situation where no two conflicting claims would be to distort purpose of s. 17(4) far beyond interpleader type of situation and indeed, far beyond that envisioned by any reasonable extension of S.C.C. approach in Roberts--As to whether Crown in right of Alberta ought to be treated as person, even if Federal Court Act, s. 17(2) were held to cover claims between subject and subject, by no stretch of imagination could Crown in right of Alberta be considered as "subject" of Crown in right of Canada: Lubicon Lake Band, supra--Alberta Proceedings Against the Crown Act does not give Federal Court jurisdiction--Federal Court Act, s. 19 and Alberta Judicature Act, s. 28 not applicable as no dispute between governments herein--Furthermore, Federal Court Act may only be invoked by Canada or by province and not by private citizen: Fairford First Nation v. Canada (Attorney General), [1995] 3 F.C. 165 (T.D.)--Federal Court Act, R.S.C., 1985, c. F-7, s. 17 (as am. by S.C. 1990, c. 8, s. 3)--Judicature Act, R.S.A. 1980, c. J-1, s. 28--Proceedings Against the Crown Act, R.S.A. 1980, c. P-18.