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T-2048-80
The Lubicon Lake Band, a body of Indians recog nized under the Indian Act, of Little Buffalo Lake, Alberta, Chief Bernard Ominayak, Billy Joe Laboucan, Larry Ominayak, and Edward Labou- can, suing personally and on behalf of all the members of the Lubicon Lake Band and of the Cree Community of Little Buffalo Lake (Plain- tiffs)
v.
The Queen in right of Canada, The Queen in right of the Province of Alberta, Petro-Canada, Petro- Canada Exploration Inc., Imperial Oil Limited, Esso Resources Canada Limited, Shell Canada Limited, Shell Canada Resources Limited, Uno- Tex Petroleum Corporation, Union Oil Company of Canada Limited, Amoco Canada Petroleum Company Ltd., Numac Oil & Gas Ltd. (Defend- ants)
Trial Division, Addy J.—Edmonton, November 12 and 13; Ottawa, November 19, 1980.
Jurisdiction — Crown — Action involving land claims and aboriginal rights — Applications by defendants for dismissal of action against them for want of jurisdiction — Three categories of applicants: (1) oil companies, (2) Province of Alberta and (3) Petro-Canada — The Queen in right of Canada not an applicant — Whether s. 17(2) of the Federal Court Act includes an action by a subject against a defendant other than Crown in right of Canada — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 17, 19, 23, 25 — Petro-Canada Act, S.C. 1974-75-76, c. 61, ss. 6, 14 — Interpretation Act, R.S.C. 1970, c. 1-23, s. 16 — The Judica ture Act, R.S.A. 1970, c. 193.
Applications were made by all of the defendants, except The Queen in right of Canada, for dismissal for want of jurisdiction of the action against them involving various land claims and aboriginal rights. The applicants, classified in three categories, are (1) the oil companies together with Petro-Canada Explora tion Inc., a federal letters patent company and wholly-owned subsidiary of Petro-Canada, (2) the Province of Alberta and (3) Petro-Canada, a corporation wholly owned by the Crown in right of Canada. The question is whether section 17(2) of the Federal Court Act includes an action by subject against a defendant other than the Crown in right of Canada.
Held, the applications are allowed and the action is dismissed as against the applicants. (1) With respect to the oil companies, there exists no legislation whatsoever under which certain rights may be enforced against them in the Federal Court of Canada. Neither section 17(1) nor section 17(2) of the Federal
Court Act is of any assistance to the plaintiffs. Section 17(1) refers to the party, namely, the Crown against whom a claim may be made. As for the second type of claim referred to in section 17(2), i.e. a claim which "arises out of a contract entered into by or on behalf of the Crown" it cannot justify a claim between subject and subject. Firstly, where a statutory court is concerned, all provisions as to jurisdiction must be strictly interpreted in favour of limiting same. Secondly, it is clear from the Act as a whole that Parliament intended that provision to apply only where the Court is involved as such. It would be nothing short of ludicrous to find that this Court, by section 17(2), is given exclusive original jurisdiction in claims between subject and subject in cases where a claim somehow arises out of a contract in which the Crown was involved. (2) The statements regarding section 17(2) relating to the oil companies apply equally to the Province of Alberta. The word "Crown" in the Federal Court Act is specifically restricted by section 2 to the Crown in right of Canada. The Crown in right of Alberta is not mentioned in section 17(2) of the Act and therefore is not bound by that enactment. (3) Finally, any judgment obtained against the Crown in right of Canada is enforceable without Petro-Canada being sued. As an agent of Her Majesty, Petro-Canada has no legal or equitable interest to defend. Moreover, it is not an "officer" or "servant" of the Crown and cannot be sued as such under section 17(4) of the Federal Court Act. Should the plaintiffs wish to sue Petro- Canada, they may do so before the Court of Queen's Bench of Alberta.
Sunday v. St. Lawrence Seaway Authority [1977] 2 F.C. 3, referred to. Pacific Western Airlines Ltd. v. The Queen in right of Canada [1979] 2 F.C. 476, [1980] 1 F.C. 86, referred to. Lees v. The Queen [1974] 1 F.C. 605, referred to. Baker Lake (Hamlet) v. Minister of Indian Affairs and Northern Development [1980] 1 F.C. 518, distinguished.
APPLICATIONS. COUNSEL:
J. O'Reilly and W. Grodinsky for plaintiffs. No one for The Queen in right of Canada.
H. L. Irving, Q.C., B. J. Larbalestier, W. Henkel, Q.C. and N. Steed for The Queen in right of the Province of Alberta.
C. Johnston and D. Pettigrew for Petro- Canada and Petro - Canada Exploration Inc.
J. M. Robertson, Q.C., and R. A. Coad for Imperial Oil Limited, Esso Resources Canada Limited, Shell Canada Limited, Shell Canada Resources Limited, Uno-Tex Petroleum Cor poration, Union Oil Company of Canada
Limited, Amoco Canada Petroleum Company Ltd. and Numac Oil & Gas Ltd.
SOLICITORS:
O'Reilly & Grodinsky, Montreal, for plain tiffs.
Parlee, Irving, Henning, Mustard & Rodney, Edmonton, for The Queen in right of Alberta.
Johnston & Buchan, Ottawa, for Petro- Canada and Petro-Canada Exploration Inc. Fenerty, Robertson, Fraser & Hatch, Cal- gary, for Imperial Oil Limited, Esso Resources Canada Limited, Shell Canada Limited, Shell Canada Resources Limited, Uno-Tex Petroleum Corporation, Union Oil Company of Canada Limited, Amoco Canada Petroleum Company Ltd. and Numac Oil & Gas Ltd.
The following are the reasons for order ren dered in English by
ADDY J.: The statement of claim issued in this action involves various land claims and aboriginal rights and claims on behalf of treaty and non- treaty Indians as well as Metis pertaining to reserves, lands not yet set aside as reserves but surveyed or designated for future reserves as well as other non-designated lands encompassing large areas within the Province of Alberta, allegedly comprised within the lands covered by a treaty signed on the 21st of June 1899, and known as Treaty No. 8.
Applications were made before me by all defendants except the first named, Her Majesty the Queen in right of Canada, for dismissal of the action against them for want of jurisdiction. The applications, three in number, were all heard at the same time.
At the close of argument, at the time of the hearing, I ordered that the applications be allowed and that the action be dismissed as against the applicants. Oral reasons were given at the time but I also stated that I would issue a written summary of the reasons.
The applications might best be dealt with by classifying the applicants in three categories. The
first one includes the eight independent oil compa nies together with Petro-Canada Exploration Inc., which is an ordinary federal letters patent com pany but which happens to be a wholly-owned subsidiary of Petro-Canada. The next category would include the Province of Alberta only and the final category, Petro-Canada, which is a corpora tion wholly owned by the Crown in right of Canada and incorporated by special Act of Canada, the Petro-Canada Act'. The first-men tioned defendants-applicants will be referred to as the oil companies and will be considered first.
In addition to the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, counsel for the plaintiffs, both in their written brief and in their oral presen tation at the hearing, referred to several statutes, laws, treaties and regulations such as Treaty No. 8 above referred to, section 91(24) of The British North America Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5], The British North America Act, 1930, 20-21 Geo. V, c. 26 (U.K.) [R.S.C. 1970, Appendix II, No. 25]; the Indian Act 2 ; The Alberta Natural Resources Act 3 ; the Imperial Order in Council 4 ; the Indian Oil and Gas Act 5 ; the Northern Pipeline Act 6 and several Dominion Land Acts. There appears to be abso lutely nothing in this legislation which even pur ports to render the defendant oil companies amen able before the Federal Court of Canada for the enforcement of any of the rights, duties or obliga tions created by those laws.
In so far as the Federal Court Act itself is concerned, I was referred to several sections which obviously have no application. It is clear that section 19 applies only to disputes between a prov ince and the Federal Government or between two or more provinces. It can be of no help whatsoever to the plaintiffs. Section 25 does not apply as the Court of Queen's Bench of Alberta clearly has
S.C. 1974-75-76, c. 61, assented to 30th of July 1975.
2 R.S.C. 1970, c. 1-6.
3 S.C. 1930, c. 3.
4 June 23, 1870, respecting the admission of Rupert's Land and the North-Western Territory into the Union [R.S.C. 1970, Appendix 11, No. 9].
5 S.C. 1974-75-76, c. 15.
6 S.C. 1977-78, c. 20.
jurisdiction in any claim against these defendants. In this regard I agree fully with what my brother Marceau J. stated at pages 9 and 11 in the case of Sunday v. The St. Lawrence Seaway Authority' regarding sections 17 and 25 of the Federal Court Act and the limited extent of the jurisdiction of this Court. I do not agree with counsel for the plaintiffs that, because of the decision in The Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development', the matter is still open. The mere fact that a judge does not find it necessary or appropriate at the time, to deal with a point of law which has been raised in order to dispose of the issues before him, does not mean that the point of law is an open one in the sense that it has not previously been settled. In any event, in view of the reasons given in dealing with the counterclaim in The Hamlet of Baker Lake case, it appears that the defendants in the main action remained there because they were allowed to do so by request and pursuant to an agreement between the parties in accordance with the provi sions of section 17(3) of the Federal Court Act. This is obviously not applicable here.
The issue eventually narrows down to the ques tion of whether section 17(2) of the Federal Court Act can be taken to include an action by a subject against a defendant other than the Crown in right of Canada. I do not hesitate to find that it cannot. I agree with Mr. Robertson, speaking on behalf of the eight independent oil companies, when he states that although there might be appropriate subject-matter, according to appropriate and con stitutionally valid federal legislation (and I make no specific finding on this) pursuant to which the applicants might claim certain rights, as alleged in the declaration, there exists no legislation whatso ever under which any such remedies may be enforced against his clients in the Federal Court of Canada and that neither section 17(1) nor section 17(2) nor any other part of the Federal Court Act is of any assistance to the plaintiffs. Section 17(1) merely refers to the party, namely, the Crown against whom a claim may be made and remains
[1977] 2 F.C. 3.
8 [I980] 1 F.C. 518.
silent as to the nature of the claims which may be made. Section 17(2) on the other hand, mentions both matters. It is the only part of the Federal Court Act where an argument may even begin to be made by the plaintiffs in support of their claim. There is but one defendant, the Crown, named in the first and the third parts of that subsection, that is, regarding lands in the possession of the Crown and claims against the Crown for injurious affec tion. The second type of claim refers to one which "arises out of a contract entered into by or on behalf of the Crown". The plaintiffs argued that this would justify a claim between subject and subject. I completely disagree: in the first place because, where a statutory court is concerned, all provisions as to jurisdiction must be strictly inter preted in favour of limiting same and, secondly, and more importantly, because, in reading the provision itself, where it is situated in the subsec tion and immediately following subsection (1), it seems obvious that Parliament intended that provi sion to apply only where the Crown is involved as such and not to claims between subject and sub ject. The Act as a whole makes this clear. In sections 23 and 25 where claims between subject and subject are provided for, it is so stated in clear language. Although I make no finding on the point it might well be decided that this part of subsec tion (2) only refers to question of claims where the Crown is a defendant because subsection (2) itself seems to deal generally and exclusively with claims against the Crown and also because subsection (4) of section 17 provides for cases where the Crown is the plaintiff. In the latter case, there is a concur rent original jurisdiction as opposed to exclusive original jurisdiction under section 17(2). Finally, altogether apart from the constitutional problems involved regarding property and civil rights, it would be nothing short of ludicrous to find that this Court by section 17(2) is given exclusive original jurisdiction in claims between subject and subject in cases where a claim somehow arises out of a contract in which the Crown was involved.
Dealing with the position of the Province of Alberta, as a defendant, what has been said regarding section 17(2) relating to the oil compa nies applies equally to it. The word "Crown" in the Federal Court Act is specifically restricted by section 2 to the Crown in right of Canada. Fur thermore, even if it should be held that the provi sions of section 16 of the Interpretation Act 9 , whereby it is declared that Her Majesty's rights or prerogatives are not affected by any enactment unless specifically mentioned or referred to there in, apply exclusively to Her Majesty in right of Canada, I find that the common law rule under which that immunity from general enactment is maintained, applies to the Crown in right of every province. (Refer Pacific Western Airlines Ltd. v. The Queen in right of Canada 10 .) Alberta would enjoy that immunity in so far as any enactment by the Parliament of Canada is concerned. The Crown in right of Alberta is not mentioned in section 17(2) and, therefore, is not bound by that enactment. Even if section 17(2) were held to cover claims between "subject and subject," by no stretch of the imagination could the Crown in right of Alberta be considered as a "subject" of the Crown in right of Canada.
No purpose will be served in dealing with some of the constitutional problems raised and argued in extenso before me. The question of whether the Parliament of Canada has the constitutional power to enact certain legislation which would bind the Crown in right of Alberta, or bind any other entity for that matter, does not really arise and need not be considered by the Court where in fact Parlia ment has not attempted to do so.
I turn next to the application of Petro-Canada. This Corporation was created by special Act of Parliament, supra. Pursuant to section 5, all of its common share capital must be subscribed to by the designated Minister and paid for from the Con solidated Revenue Fund as required by the Corpo ration and approved by the Minister of Finance. The shares are not transferable. Pursuant to sec tion 14(1), the Corporation is for all purposes of the Act an agent of Her Majesty and its powers
9 R.S.C. 1970, c. 1-23.
10 [1979] 2 F.C. 476.
may be exercised only in that capacity. The con tracts of the Corporation may be entered into either in its own name or in the name of Her Majesty (section 14(2)). All property acquired by the Corporation is the property of Her Majesty. (See section 14(3).)
Petro-Canada, although clearly an agent of Her Majesty, is not an "officer" or "servant" of the Crown and cannot be sued as such under section 17(4) of the Federal Court Act (see Lees v. The Queen" and King v. The Queen 12 ).
Whatever rights and interests Petro-Canada might have acquired or purported to acquire, pur suant to the objects of the Corporation laid down in section 6 of its Act of incorporation, in the lands in issue, were undoubtedly acquired exclusively for and on behalf of Her Majesty. The Act makes it mandatory. Where an agent holds property entire ly and exclusively for and on behalf of a principal and, therefore, has no beneficial or legal interest in it, that property is not in any way the property of the agent and, when the principal is sued by a third party for a declaratory interest in the prop erty, the agent must not be joined as the agent as such has no legal or equitable interest to defend. Any judgment obtained against the Crown in right of Canada concerning the lands in question would be fully and completely enforceable without Petro- Canada being sued. Finally, section 14(4) of the Petro-Canada Act reads as follows:
14....
(4) Actions, suits or other legal proceedings in respect of any right or obligation acquired or incurred by the Corporation on behalf of Her Majesty, whether in its name or in the name of Her Majesty, may be brought or taken by or against the Corporation in any court that would have jurisdiction if the Corporation were not an agent of Her Majesty.
It seems abundantly clear that should the plain tiffs wish to sue Petro-Canada in respect of any such right or obligation acquired by the latter for Her Majesty they may do so before the Court having jurisdiction over the land in Alberta which,
" [1974] 1 F.C. at p. 610.
'2 Unreported judgment dated the 17th of November 1971, Court No. T-2573-71, especially at pp. 3, 4, 5 and 20 of the reasons for judgment filed.
by virtue of The Judicature Act" of that Province is the Court of Queen's Bench. It is equally clear that the same Court possesses jurisdiction over all of the issues raised against all of the other appli cants in the motions before me.
As to the argument regarding what counsel for the plaintiffs have termed the "ancillary" jurisdic tion of this Court on the basis of convenience, the Court of Appeal recently put this matter to rest in Pacific Western Airlines Ltd. v. The Queen in right of Canada 14 .
The present action may therefore be maintained only against Her Majesty in right of Canada as defendant.
The plaintiffs are not, as argued by their coun sel, being deprived of any of their rights: if they wish to pursue their action against the Crown in right of Canada in this Court they may do so and they may also as against the other parties seek whatever other relief they wish from the Court of Queen's Bench in Alberta. This would entail two actions but it is one of the disadvantages which one must put up with where there is a dual system of government and courts with separate areas of jurisdiction.
As I have stated at the outset, the motions are allowed and the action dismissed as against the applicants. As suggested by the latter, they will be entitled to costs of both the action and the motions only if requested.
13 R.S.A. 1970, c. 193.
14 [1980] 1 F.C. 86 at pp. 87-89.
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