T-2803-74
The Pas Merchants Ltd. (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Bastin D.J.—Winnipeg, Septem-
ber 5 and 9, 1974.
Jurisdiction—Application to strike out statement of claim
on ground of no cause of action—Indian reserve lands—
Crown erecting shopping centre—Exemption of business
from regulatory and taxing powers of province—No status in
plaintiff to raise this issue—No interest of plaintiff in addi
tional matters raised—Statement of claim struck out—
Indian Treaty No. 5—Indian Act R.S.C. 1970, c. I-6, s.
18(2)—British North America Act, s. 92.
The defendant Crown proposed to finance construction of
a shopping centre on an Indian reserve. The plaintiff com
pany, in opposition to the project, claimed that existing
shopping facilities in the district were adequate; that erec
tion of the centre was not in the public interest; and that it
was in breach of Indian Treaty No. 5 and of the Indian Act.
The defendant applied to strike out the statement of claim.
Held, granting the application, the question of public
interest was for the executive to decide; the Indian Treaty
conferred no rights except upon the parties to it; section
18(2) of the Indian Act gave the Minister authority to use
reserve land, with the consent of the band council, for any
purpose beneficial to the band. No claim for damages was
made. A legal issue, not pleaded, was whether the power to
legislate for Indian Affairs entitled the Government of
Canada to use lands reserved for Indians to carry on a
commercial venture, which lands are exempt from the
regulatory and taxing powers of the province under section
92 of the British North America Act. However, the plaintiff
had no interest in the matter and no status to sue. The
statement of claim was struck out, without prejudice to an
action by persons who could claim to be adversely affected
by the project.
APPLICATION.
COUNSEL:
Donald MacIver for plaintiff.
S. Froomkin and B. Meroneck for
defendant.
SOLICITORS:
Udow, MacIver & Associates, Winnipeg,
for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
delivered in English by
BASTIN D.J.: This is an application to strike
out the statement of claim on the ground that it
discloses no cause of action. For the purpose of
such a motion the allegations in the statement of
claim are assumed to be true. Briefly these are
that the defendant has announced its intention
to finance the construction of a shopping centre
on the Indian Reserve at The Pas and has
offered to lease space in the shopping centre to
a number of businesses. The plaintiff alleges
that the existing shopping facilities at The Pas
are adequate and that its construction would not
be in the public interest. The plaintiff also sub
mits that Treaty No. 5 between the Government
of Canada and certain Saulteaux and Swampy
Cree Indians concluded in 1875 restricts the use
of such reserve land to farming and that reserve
land may not be sold, alienated, leased or other
wise disposed of until they have been surren
dered to the Crown by the Indian band.
The plaintiff, which is a Manitoba corporation
whose officers and shareholders are alleged to
be residents and businessmen of the town of
The Pas, seeks declarations by the Court that
the alleged actions of the defendant in promot
ing and financing the construction of a shopping
centre on lands forming part of the Indian
Reserve are contrary to Treaty No. 5; that they
are contrary to the provisions of the Indian Act
and that they are contrary to the public interest.
In my opinion the action of the defendant in
creating a shopping centre on this Indian
Reserve does raise a legal issue but not one of
those set out in the statement of claim. These
can readily be disposed of.
With respect to Treaty No. 5, this was an
agreement between the Canadian Government
and the Indian tribes in question. On the princi
ple of privity such an agreement confers no
rights and imposes no obligations arising under
it on any person not a party to it. It follows that
its interpretation and performance concern only
the parties to it and the plaintiff has no status to
enforce its provisions.
With respect to the Indian Act this was
passed to carry out the obligations of the
Canadian Government toward the original
inhabitants of the country. It is not a public Act
for the benefit of all citizens and gives no rights
to Canadian citizens other than Indians. Since
this Act gave no private right to the plaintiff,
was not passed for its protection and establishes
no public right, it follows that the plaintiff
cannot maintain an action with respect to a
departure from its provisions. I should add that
section 18(2) of the Indian Act gives the Minis
ter of Indian and Northern Affairs the authority
to use land in a reserve with the consent of the
council of the band for any purpose for the
general welfare of the band. This, presumably,
is considered the authority for such a proposal.
With respect to the claim that the actions of
the defendant in relation to the shopping centre
are contrary to the public interest, this is a
matter of executive discretion which the Court
has no power to review.
The statement of claim has another shortcom
ing in that the plaintiff is not alleged to be
threatened with any damage by the actions of
the defendant and in fact it is impossible to see
how such a corporation could be affected in any
way by the construction of the shopping centre.
No doubt merchants carrying on business at
The Pas may be harmed by this development
but the fact that they are shareholders of the
plaintiff cannot affect the interest of this
corporation.
The legal issue which is raised by the actions
of the defendant is whether the Canadian Gov
ernment, under its power to legislate with
respect to "Indians" contained in the British
North America Act, has the right to use lands
reserved for the use of Indians to carry on a
commercial venture such as a shopping centre
exempt from the regulatory and taxing powers
granted by section 92 to the Province of
Manitoba. In a motion such as this the Court
has power to permit a plaintiff to cure a defect
in the statement of claim by an amendment but
in this case this is not possible because the
plaintiff has no interest in the matter and no
status to sue. The issue might be raised in a
class action brought by a plaintiff or plaintiffs
who could claim to be adversely affected by
such a development. Whether this issue could
be raised successfully is, of course, another
question. Under the circumstances I direct that
the statement of claim be struck out with costs.
The persons who were represented by the nomi
nal plaintiff in this statement of claim are at
liberty to bring another action if so advised.
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.