T-3727-78
Palm Dairies Limited (Plaintiff)
v.
The Queen in right of Canada, Attorney General
of Canada, Minister of Indian Affairs and North
ern Development, Registrar of Indian Lands of the
Department of Indian Affairs and Northern De
velopment and Sarcee Developments Ltd.
(Defendants)
Trial Division, Primrose D.J.—Calgary, Septem-
ber 12; Edmonton, September 27, 1978.
Practice — Application for mandamus and for order that
builders' lien and lis pendens be registered by Registrar of
Indian Lands, and counter-application to strike out — Indian
lands — Debt due plaintiff on construction contract for work
done on lands on Indian reserve surrendered to Crown and
leased to firm — Application for registration denied by pro
vincial Land Titles Office and by Registrar of Indian Lands in
Ottawa — Whether or not order should issue and a writ of
mandamus be granted that the Registrar of Indian Lands
register the builders' lien and lis pendens — Whether or not an
order should be granted to defendants striking out statement
of claim — Indian Act, R.S.C. 1970, c. I-6, ss. 29, 37, 55, 88
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 17,
18 — The Builders' Lien Act, R.S.A. 1970, c. 35, ss. 25, 26 —
Federal Court Rule 419(1)(a).
Plaintiff, and its predecessor in interest, constructed a water
distribution system, a sewage collection system and a sewage
lagoon on lands on an Indian reserve that had been surrendered
to the Crown, and leased by the Minister to Sarcee Develop
ments Ltd. for seventy-five years. The land is unpatented
Crown land. It is claimed that defendant Sarcee Developments
Ltd. owes plaintiff $2,096,438.85. After the provincial officials
refused to register the documents plaintiff sent to the Registrar
in Ottawa a builders' lien, for registration under section 55 of
the Indian Act, pursuant to The Builders' Lien Act (Alberta)
and a certificate of lis pendens claiming a lien upon the estate
of Sarcee Developments Ltd. The builders' lien purports to
attach the leasehold interest but not the land itself. Although
the Registrar of Indian Affairs informed plaintiff that it was
not possible to register the lien because Indian lands were not
subject to seizure under the legal process, plaintiff maintains
that the lien should be filed or accepted. Plaintiff seeks an order
that a builders' lien and a certificate of lis pendens be regis
tered in the Surrendered Land Registry and an interim and
permanent order that the effective date of registration be on a
suggested date. Further, plaintiff requests an interim and per
manent writ of mandamus directing the Registrar of Indian
Lands to register the builders' lien and the certificate of lis
pendens. Defendants, other than Sarcee Developments Ltd.
seek an order striking out the statement of claim as against
those defendants.
Held, the statement of claim is struck out and the action is
dismissed. The lands continue to be reserved for the Indians
within the meaning of The British North America Act, 1867
and exclusive legislative jurisdiction remains in the Parliament
of Canada, so that provincial legislation which might lay down
rules as to how these lands are to be used is inapplicable. A
builders' lien is a document which may be filed in the Land
Titles Office pursuant to The Builders' Lien Act (Alberta) but
the Registrar under the Indian Act cannot be directed to
register a lien in the Federal Registry when there is no specific
authority for any such registration. There is no au
thority to grant the relief asked for in the pleadings. Further
more, Sarcee Developments Ltd. is not a proper party to the
action under sections 17 and 18 of the Federal Court Act. The
plaintiff, however, may have a remedy in another jurisdiction.
Corporation of Surrey v. Peace Arch Enterprises Ltd.
(1970) 74 W.W.R. 380, applied. Rossi v. The Queen
[1974] 1 F.C. 531, applied. McNamara Construction
(Western) Ltd. v. The Queen [1977] 2 S.C.R. 654, applied.
Quebec North Shore Paper Co. v. Canadian Pacific Ltd.
[1977] 2 , S.C.R. 1054, applied. Union Drilling and De
velopment Co. Ltd. v. Capital Oil & Natural Gas Co. Ltd.
[1931] 2 W.W.R. 507, distinguished. Stanolind Oil & Gas
Co. v. Rempel Construction Ltd. [1959] S.C.R. 592, dis
tinguished. Re Sun Life Assce Co. v. Widmer (1916) 9
W.W.R. 961, distinguished. C.P.R. v. District Registrar of
Dauphin Land Titles Office (1956) 4 D.L.R. (2d) 518,
distinguished.
APPLICATION.
COUNSEL:
W. D. Goodfellow for plaintiff.
I. G. Whitehall, Q.C. and B. J. Delong for
defendants the Queen in right of Canada,
Attorney General of Canada, Minister of
Indian Affairs and Northern Development,
Registrar of Indian Lands of the Department
of Indian Affairs and Northern Development.
D. P. McGuire for defendant Sarcee Develop
ments Ltd.
SOLICITORS:
Goodfellow MacKenzie, Calgary, for plain
tiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
PRIMROSE D.J.: This is a motion dated August
16, 1978 on behalf of the plaintiff for an order that
a builders' lien and a certificate of lis pendens be
registered in the Surrendered Land Registry,
which is a registry in Ottawa in the Department of
Indian Affairs and Northern Development, pursu
ant to section 55(1) of the Indian Act, R.S.C.
1970, c. I-6, which reads:
55. (1) There shall be kept in the Department a register, to
be known as the Surrendered Lands Register, in which shall be
entered particulars in connection with any lease or other dispo
sition of surrendered lands by the Minister or any assignment
thereof.
(2) A conditional assignment shall not be registered.
(3) Registration of an assignment may be refused until proof
of its execution has been furnished.
(4) An assignment registered under this section is valid
against an unregistered assignment or an assignment subse
quently registered.
and for an interim and permanent order that the
effective date of registration of the builders' lien
shall be December 16, 1977. In addition, an
interim and permanent writ of mandamus is
requested directing the Registrar of Indian Lands
to register the builders' lien and certificate of lis
pendens, and an order that the date of registration
of the said items be the date of the said builders'
lien and the certificate of lis pendens were received
by the Registrar of Indian Lands.
A motion was filed on the 6th day of September
1978 on behalf of the defendants other than
Sarcee Developments Ltd. which I agreed to hear
along with the plaintiff's motion, for an order
pursuant to Rule 419(1)(a), striking out the state
ment of claim in the action as against those
defendants. The two matters were heard together.
The dispute relates to land in an Indian reserva
tion of the Sarcee Band of Indians, southwest of
the City of Calgary. Lands in a reserve cannot be
sold, alienated, leased or otherwise disposed of
until they have been surrendered to Her Majesty
by the band of whose use and benefit in common
the reserve was set apart, under section 37 of the
Indian Act. Surrendered lands may be leased in
accordance with section 53(1) of the Indian Act,
and pursuant to this provision with the consent of
the Band a lease of the land in question was
entered into between the Minister and Sarcee De
velopments Ltd. for a period of seventy-five years,
for a project to be known as Redwood Meadows,
to run from the 6th of September A.D. 1974 to the
5th of September A.D. 2049. Apparently the
Indian Band receives benefits from the lease pur
suant to the development agreement. Palm Dairies
Limited and its predecessor in interest Western
Industrial Contractors Ltd. pursuant to contract
constructed a water distribution system, a sewage
collection system on the lands in question and a
sewage lagoon, the contract being entered into in
June 1976 for the sum of $1,271,245.38. Addition
al services were provided so that by 1976 a total of
$3,314,505.16 was expended. The defendant
Sarcee Developments Ltd. paid $1,218,066.31 on
the account and it is claimed there is a balance of
$2,096,438.85.
The land is unpatented Crown land. The plain
tiff sent to the Registrar in Ottawa for registration
under section 55(1) of the Indian Act a builders'
lien pursuant to The Builders' Lien Act of Alberta,
R.S.A. 1970, c. 35, and a certificate of lis pendens
claiming a lien upon the estate of Sarcee Develop
ments Ltd. pursuant to its lease instrument No.
41168 dated September 6, 1974 for seventy-five
years as aforesaid on the land in question, being lot
6 plan 57814 CLSR. It is to be noted that this
builders' lien purports to attach the leasehold in
terest of Sarcee Developments Ltd. but not the
land itself.
The plaintiff presented the builders' lien and
certificate of lis pendens to the Registrar of the
Land Titles Office in Calgary for registration, but
the Registrar declined to register the said lien,
which under normal circumstances would be regis
tered pursuant to section 25 of The Builders' Lien
Act.
The plaintiff alleges that it is entitled to have its
builders' lien registered and that it should have
been forwarded by the Registrar of the Land
Titles Office to the Registrar in Ottawa for regis-
tration pursuant to section 26(4) of The Builders'
Lien Act which provides:
26. ...
(4) The Registrar shall, in accordance with The Land Titles
Act, register the lien as an encumbrance against the estate or
interest in the land affected, or if the land affected has not been
registered under The Land Titles Act and subsection (5) does
not apply thereto, he shall make a record of the lien in a book
or such other manner as he considers advisable.
The plaintiff's solicitor wrote to the Registrar of
Indian Affairs by letter of January 13, 1978 and
was informed that it was not possible to register
the builders' lien. He pointed out to the plaintiffs
solicitor that pursuant to section 29 of the Indian
Act, Indian lands are not subject to seizure under
legal process, although one might wonder if filing
a builders' lien would constitute seizure under
legal process. The plaintiff takes the position that
the lien should be filed, or accepted in the surren
dered lands register pursuant to section 55 of the
Indian Act and relies on authorities which appear
to give a Registrar discretion or even a duty in
certain circumstances. In Union Drilling and De
velopment Company Limited v. Capital Oil &
Natural Gas Company Limited [1931] 2 W.W.R.
507 it was held that a mechanics' lien which does
not require to be registered with the Minister of
Mines and Minerals under section 48 of The
Mechanics' Lien Act can be properly registered
under section 19 of the Act with the Registrar of
the Land Titles Office even though it relates to
unpatented lands.
In Stanolind Oil & Gas Company v. Rempel
Construction Limited [1959] S.C.R. 592 the
Supreme Court of Canada approved of the deci
sion in the Union Drilling case (supra) and it was
held that under The Mechanics' Lien Act, in
Alberta, liens could properly be registered with the
Registrar at the Land Titles Office. In that case,
where the liens should properly be filed was in
issue and the Act provided that a claim for lien on
mines and minerals could be filed with the Minis
ter in certain circumstances. The Court held that
they were properly filed with the Registrar of the
Land Titles Office against the land.
In Re Sun Life Assurance Co. v. Widmer
(1916) 9 W.W.R. 961 an application was made
under the provisions of The Land Titles Act
(Alberta) to the Registrar for directions for the
sale of mortgaged land. The Registrar required the
furnishing of certain material, which the mort
gagee contended he had no right to call for and
there was a reference to the Court as to whether
the Registrar was within his right. It was held that
one of the duties of the Registrar was to fix, or at
least he was entitled to require, the production of
certain affidavits, and a statement of the amount
due under the mortgage, and a reserve bid form
etc. and the Court held that it was the right and
duty of the Registrar to fix the reserve bid and
settle the conditions of sale. By analogy the plain
tiff contends that pursuant to section 55 of the
Indian Act the Registrar should have some discre
tion and should register a builders' lien such as is
tendered here.
Reference was also made to C.P.R. v. District
Registrar of Dauphin Land Titles Office (1956) 4
D.L.R. (2d) 518. The headnote reads:
A Registrar of Land Titles under the Real Property Act,
R.S.M. 1954, c. 220, has a duty, not a discretion, to file a
caveat which is proper in form. He may not refuse on the basis
that he believes the claim asserted to be invalid. That is a
question for the Courts after and not before the filing of the
caveat which is merely notice of a claim which may or may not
be valid and which operates simply as a warning to those who
might deal with the property. A caveat is used for the protec
tion of alleged as well as proved interests and creates no new
rights but only protects existing ones. A proper remedy in case
of refusal by the Registrar is mandamus as the alternative
procedure under the Act is neither as convenient, beneficial or
effective as mandamus.
Here, as in the C.P.R. case, the plaintiff is
applying for mandamus to compel the registration
of the builders' lien. In Bejko v. Robson [1934] 2
W.W.R. 366 it was held the District Registrar has
no jurisdiction to decide whether any particular
piece of land or any portion of it, whether in area
or in value, is or is not exempt from judgments
under the Manitoba Exemptions Act. He would
have no authority for instance to enter upon an
inquiry whether in a given case a mechanics' lien
existed. He could not adjudicate upon claims to
exemptions.
I distinguish these cases in that in each decision
mentioned there is authority given to a Registrar
under a statute, to register a document. He is only
an administrative official and not in a position to
make judicial decisions as to whether or not a
document is valid and may be registered. Here, the
difficulty is to find in the Indian Act a provision
that makes valid the registration of the builders'
lien proposed to be filed, and the plaintiff's dif
ficulty is to bring itself within the provisions of
section 55(1) of the Act aforesaid.
The plaintiff submits that the Court has a right
to correct an error if the Registrar has failed in his
legislative duty as was the case in Re Land Titles
Act: Bank of Hamilton v. McAllister (1912) 3
W.W.R. 141; also Re Land Titles Act and in re
Continental Explosives Ltd. (1964) 49 W.W.R.
762, Lawrie v. Rathbun (1877) 38 U.C.Q.B. 255;
also Peter Leitch Construction Ltd. v. Aquativity
Ltd. [1971] 2 O.R. 666. This was a case where a
local Master of Titles refused to register a claim
for a mechanics' lien against the title of unpatent-
ed Crown land but did allow registration of a
"caution against first registration" in lieu thereof.
This case refers to a number of Alberta cases
dealing with The Mechanics' Lien Act and the
possibility of registering mechanics' liens against
unpatented land and was held that the mechanics'
lien was properly filed, as of the date taken to the
Land Titles Office.
The plaintiff relies on Cardinal v. Attorney
General of Alberta [1974] S.C.R. 695; (1974) 40
D.L.R. (3d) 553, where an Indian while on an
Indian reserve sold a piece of moose meat, and was
charged under The Wildlife Act of Alberta with
trafficking in big game. The question arose as to
the validity of this legislation. It was held by
Martland J. [vide headnote 40 D.L.R. (3d) "at p.
554]:
Although s. 91(24) of the British North America Act, 1867
gives exclusive legislative authority to the federal Parliament to
legislate in relation to Indians and lands reserved for Indians,
thereby preventing a Province from enacting laws in relation
thereto, the effect of s. 91(24) is not to create enclaves within a
Province within the boundaries of which provincial legislation
of general application, and which is otherwise valid, can have
no application. Consequently, s. 37 of the Wildlife Act, as it is
of general application and does not relate to the Indians, qua
Indians, is not ultra vires the Province.
The plaintiff's argument is that The Builders' Lien
Act in Alberta is for the purpose of protecting
builders' lien generally and should apply although
the lands where the work was done or the material
furnished happens to be under the Indian Act of
Canada. The plaintiff says that it is liening only
the leasehold interest of his client and therefore
does not impinge on any provision in the Indian
Act and that the Registrar should have registered
it.
Counsel for the defendants dealing with the
applicability of provincial laws to Indians take the
position that section 88 of the Indian Act relates
only to Indians and not to lands. Section 88 reads
as follows:
88. Subject to the terms of any treaty and any other Act of
the Parliament of Canada, all laws of general application from
time to time in force in any province are applicable to and in
respect of Indians in the province, . except to the extent that
such laws are inconsistent with this Act or any order, rule,
regulation or by-law made thereunder, and except to the extent
that such laws make provision for any matter for which provi
sion is made by or under this Act.
This section does make provincial laws applicable
to Indians, which was the position taken by Mart-
land J. in the Cardinal case, but the section does
not purport to deal with the situation where Indian
lands are in question. The Crown says even if the
Province can legislate in regard to lands The Land
Titles Act is applicable, and of course the Regis
trar of the Land Titles Office declined to register
the builders' lien when it was submitted to him.
The Crown also takes the position that section
29 of the Indian Act which reads as follows:
29. Reserve lands are not subject to seizure under legal
process.
precludes the filing of the builders' lien in any
event. In this respect the plaintiff urges that any
interest attached under The Builders' Lien Act
does not attach "reserve lands" or the interest of
the Sarcee Band of Indians, but attaches to the
leasehold interest of Sarcee Developments Ltd.
The plaintiff has a number of authorities:
Macklem and Bristow, Mechanics' Liens in Canada (Third
Edition) at page 31 states:
Where the tenant has requested the work done or ma
terials furnished his interest is nonetheless subject to a lien
even if the landlord may 15e exempt from the operation of
The Mechanics' Lien Act. For example, the tenant of a
Government Railway is still subject to the provisions of the
Act. Therefore, where material was supplied to build a grain
elevator which was situated on land leased from the C.N.R.,
it was held that the elevator was lienable only insofar as the
leasehold interest was concerned, notwithstanding the
C.N.R. was the owner of the land: Manitoba Bridge etc.
Works Ltd. v. Gillespie (1914), 7 Sask. L.R. 208 (C.A.).
Provincial Municipal Assessor v. Rural Municipality of Har-
rison [1971] 3 W.W.R. 735 (Man. Q.B.).
The Calgary and Edmonton Land Company v. Attorney-Gen
eral of the Province of Alberta (1911) 45 S.C.R. 170 at 179,
185 and 191.
City of Montreal v. Attorney-General for Canada [1923] A.C.
136 (P.C.).
Bennett and White (Calgary) Limited v. Municipal District of
Sugar City [1951] 3 W.W.R. (N.S.) 111 (P.C.).
The North West Lumber Co. Ltd. v. Municipal District of
Lockerbie No. 580 [ 1926] S.C.R. 155.
Phillips v.. The Corporation of the City of Sault Ste. Marie
[1954] S.C.R. 404.
Sammartino v. Attorney-General of British Columbia (1972)
22 D.L.R. (3d) 194 (B.C.C.A.).
Mintuck v. Valley River Band No. 63A (1978) 83 D.L.R. (3d)
324 (Man. Q.B.).
The defendants take the position that to the
extent the plaintiff is endeavouring to enforce a
provincial law, the Federal Court has no jurisdic
tion to deal with it. I will deal with this argument
later in the case.
The defendants point out that there is no lien
apart from statute see McLean & Associates Ltd.
v. Leth (1949) 4 D.L.R. 282. A mechanics' lien is
a creation of statute and is founded in rem, and
any declaration of lien pursuant to it attaches to
the property, but if it is defective the Court has no
jurisdiction to validate it. The defendants submit
that although the land in question was leased, it
remains Indian land, and refer to the relative
sections namely section 18 dealing with reserves;
section 37 which prohibits sales, leases etc. of the
land until they have been surrendered to Her
Majesty by the band for whose use and benefit in
common the reserve was set apart; section 38
which permits a band to surrender any right or
interest of the band and its members in the
reserve; section 41 dealing with the effect of sur
render, and finally section 53 which authorizes the
Minister or a person appointed by him for the
purpose to manage, sell, lease or otherwise dispose
of surrendered lands in accordance with the Act
and the terms of the surrender. In Corporation of
Surrey v. Peace Arch Enterprises Ltd. (1970) 74
W.W.R. 380, it was held [vide headnote at page
380]:
Where an Indian Band "surrendered" in trust to the Crown
lands which formed part of their reserve, for the purpose of
leasing them to the appellants, it was held that the "surren-
der" was not final and complete, but merely conditional, and
that the lands in question did not thereby cease to be "set
apart by Her Majesty for the use and benefit of a band"; it
followed that the lands continued to be "lands reserved for
the Indians" within the meaning of sec. 91(24) of the B.N.A.
Act, 1867, that exclusive legislative jurisdiction over the
lands remained in the Parliament of Canada, and that the
appellants as developers thereof were not subject to munic
ipal bylaws or regulations made under the provincial Health
Act, RSBC, 1960, ch. 170; St. Ann's Island Shooting &
Fishing Club Ltd. v. Reg. [1950] SCR 211, at 219, [1950] 2
DLR 225, affirming [1949] 2 DLR 17, 18 Can Abr (2nd)
2759; St. Catherine's Milling & Lbr. Co. v. Reg. (1888) 14
App Cas 46, at 56, 58 LJPC 54, 4 Cart 107, affirming
(1887) 13 SCR 577, 7 Can Abr (2nd) 164 applied.
I accept the argument that the lands continue to
be reserved for the Indians within the meaning of
The British North America Act, 1867, and exclu
sive legislative jurisdiction remains in the Parlia
ment of Canada, so that provincial legislation
which might lay down rules as to how these lands
are to be used is inapplicable. See also Gauthier v.
The King (1918) 56 S.C.R. 176.
The defendants emphasize that the Indian Act
relates to Indians, whereas the lien sought is
against the interest of Sarcee Developments Ltd. a
body corporate; that the Indian Act must be strict
ly interpreted and section 2(1) of the Act provides:
2. (1) ...
"Indian" means a person who pursuant to this Act is registered
as an Indian or is entitled to be registered as an Indian;
and therefore any claim against the interest of
Sarcee Developments Ltd. does not qualify for
filing. Attorney General of Canada v. Lavell
[1974] S.C.R. 1349 at 1367.
The defendants also submit that assuming The
Builders' Lien Act might be available for the
leasehold interest alleged, mandamus is not avail
able against the federal officials.
In Rossi v. The Queen [1974] 1 F.C. 531 an
inmate of a penitentiary sought mandamus against
the Crown to show cause why the Court should not
order them to furnish him with papers and infor
mation pertaining to warrants outstanding against
the inmate in the hands of authorities in the states
of Florida and Connecticut in the U.S.A. It was
held mandamus does not lie against the Crown. It
does lie against the Crown officers named as
representing the Crown, "to secure the perform
ance of a public duty, in the performance of which
the applicant has a sufficient legal interest." The
Registrar of Indian lands of the Department of
Indian Affairs and Northern Development is an
officer of the Crown but one must point to some
statutory or other duty compelling him to do what
is demanded i.e. here to file a builders' lien. The
Crown's argument is that section 55 of the Indian
Act does not encompass any builders' lien and this
is a compelling argument. A builders' lien is a
document which may be filed in the Land Titles
Office pursuant to the provisions of The Builders'
Lien Act but can the Registrar under the Indian
Act somehow be directed to register a lien in the
federal Registry when there is no specific au
thority for any such registration? The answer must
be in the negative.
The constitutional limitations under section 101
of The British North America Act, 1867, to the
exercise of jurisdiction by the Federal Court have
also to be considered and were dealt with in
McNamara Construction (Western) Limited v.
The Queen [1977] 2 S.C.R. 654, and in Quebec
North Shore Paper Company v. Canadian Pacific
Limited [ 1977] 2 S.C.R. 1054. In the McNamara
case the Court held:
Held: The appeal should be allowed.
It is a prerequisite under s. 101 of the B.N.A. Act to the
exercise of jurisdiction by the Federal Court that there be
existing and applicable federal law which can be invoked to
support the proceedings before it. The common law rule that
the Crown may sue in any Court having jurisdiction in the
particular matter developed in unitary England, has no unlimit
ed application to federal Canada where legislative and execu
tive powers are divided between central and provincial levels of
legislature and government and where there is a constitutional
limitation on the power of Parliament to establish Courts. As
there was neither a statutory nor a common law basis for the
Crown's suit the Federal Court did not have jurisdiction in
respect of the contract claims asserted by the Crown. It was not
the Crown's liability that was involved but that of the other
party to a bilateral contract.
Applying these authorities to the claim here for
the builders' lien and for mandamus I find there is
no authority to grant the relief asked for in the
pleadings. I further find that Sarcee Developments
Ltd. is not a proper party to this action under
section 17 or section 18 of the Federal Court Act.
However, the plaintiff may have a remedy in
another jurisdiction, and it was drawn to the atten
tion of the Court that an action was commenced in
the Supreme Court of Alberta Judicial District of
Calgary entitled Western Industrial Contractors
Ltd. v. Sarcee Developments Ltd. in which an
appeal is pending before the Appellate Division of
the Supreme Court of Alberta. As noted the plain
tiff is the successor to Western Industrial Contrac
tors Ltd: and is claiming relief including a judg
ment for the amount alleged to be owing under the
contracts between the parties, so that the plaintiff
may well have its remedy in the form of a judg
ment and other relief, but for the reasons above
stated, no order for mandamus or the right to file
a builders' lien as requested in this action.
The statement of claim is struck out and the
action is dismissed with costs.
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.