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.
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.