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.
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.