Paul v. Kingsclear Indian Band
T-2078-96
Lutfy J.
28/5/97
7 pp.
Native peoples-Reserve lands-Motion to stay action on ground of lack of jurisdiction-Plaintiff, native, and defendant Paul, non-native, married in September 1980-Both on band list of defendant band-In July 1986, pursuant to Indian Act, s. 20, couple obtained certificate of possession as joint tenants of piece of land on Kingsclear Indian Reserve-Couple separated in August 1992 and divorced in 1995-Defendant Paul has been living in family residence with another person since 1993-Plaintiff seeking compensation for improvements made by him to land, injunction preventing continued occupation of residence on land by ex-wife, damages-Defendants chief and council of Kingsclear Indian Band, Kingsclear Indian Band and Mrs. Paul challenge jurisdiction of Court-Defendant Crown not challenging jurisdiction-Motion dismissed-Test for jurisdiction in ITO-International Terminal Operators v. Miida Electronics et al., [1986] 1 S.C.R. 752 applied: statutory grant of jurisdiction, existing body of federal law essential to disposition of case and nourishing statutory grant of jurisdiction, law of Canada within meaning of Constitution Act, 1867, s. 101-Statutory grant of jurisdiction in Federal Court Act, s. 17(4) (cases where competing claims to obligation owed by federal Crown)-Provision requiring (a) proceeding; (b) to determine dispute; (c) where Crown is or may be under obligation; (d) in respect of which are or may be conflicting claims-Here, as action proceeding to determine dispute in relation to compensation allegedly owed plaintiff for improvements on land subject of certificate of possession, first two requirements met-Plaintiff relying on Indian Act, s. 23 and alleging Crown's breach of fiduciary obligation by acquiescing to physical exclusion to family residence and inability to obtain financial compensation-Accordingly, third and fourth requirements for s. 17(4) met-Provision properly constituting statutory grant of jurisdiction-Provisions of Indian Act, common law of aboriginal title underlying fiduciary obligations of Crown and Constitution Act, 1867, s. 91(24) together meet second and third criteria of ITO-International Terminal Operators Ltd. test-Jurisdiction in Court to entertain plaintiff's action-Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C., 1985. Appendix II, No. 5], ss. 91(24), 101-Federal Court Act, R.S.C., c. F-7, s. 17(4) (as am. by S.C. 1990, c. 8, s. 3)-Indian Act, R.S.C., 1985, c. I-5, ss. 20, 23.