Date: 19991201
Docket: T-3007-93
BETWEEN:
CHIEF ABEL BOSUM, Chief of the Oujé-Bougoumou
Cree Nation, acting on his own behalf and on behalf
of all the other members of the Oujé-Bougoumou
Cree Nation, of Oujé-Bougoumou, Québec
- and -
SAM BOSUM, KENNY MIANSCUM, LISA ST-PIERRE,
LOUISE NEEPOSH, FREDDY BOSUM and BELLA MIANSCUM,
Councillors of the Oujé-Bougoumou Cree Nation, all of
Oujé-Bougoumou, Québec
- and -
THE OUJÉ-BOUGOUMOU CREE NATION, the
collectivity of Crees recognized as the Oujé-Bougoumou Cree
Nation and as the Oujé-Bougoumou Traditional
Cree Band, of Oujé-Bougoumou, Québec
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Parliament Buildings, Ottawa, Ontario
Defendant
REASONS FOR ORDER
(Delivered orally from the Bench at Montréal
on Wednesday, November 24, 1999)
HUGESSEN J.:
| [1] This is a motion made by the Attorney General of Québec who is not presently a party to these proceedings for leave to intervene in the proceedings and, having intervened, to have them dismissed for want of jurisdiction. Both aspects of the motion were pleaded together although there was no serious opposition to the request for leave to intervene and that leave will be granted, including the right to appeal this or any other subsequent order that may be entered in these proceedings. |
| [2] The question of jurisdiction has been the subject of a good deal more discussion before the Court today but at the end of the day as a result of those discussions, counsel for the Attorney General of Québec asked that I not pronounce myself on the specific question of the Court"s jurisdiction and that I leave it in abeyance for another day. I am prepared to accede to that request but it is necessary that I say something about the nature of the action and in doing so, I will necessarily be saying some things about the Court"s jurisdiction but I want to make it plain that I will make no finding on jurisdiction and that what I have to say is by way an obiter dictum and is only said for the purpose of making clear why I reach the disposition which I do reach. |
| [3] The plaintiffs are Indian persons living in the Northern part of this province. They claim to be a First Nation. They were not parties to the agreement entered into between the Governments of Canada and Québec and other aboriginal persons living in Northern Québec, an Agreement commonly known as the James Bay Agreement. They assert aboriginal rights and aboriginal title and other rights to parts of the land areas which were covered by the James Bay Agreement and by the complementary pieces of federal and provincial legislation which brought that Agreement into force. They claim relief in this action against the federal Crown only. |
| [4] There is in my mind no doubt whatsoever that large parts of that relief impact, to say no more than that, very heavily upon the rights and powers of the provincial Crown. To put it very shortly, the position taken by the plaintiffs is that the federal Crown has breached its fiduciary and other obligations towards them by permitting, allowing or suffering the provincial Crown and its agencies and other persons acting with its leave or authority to do certain things on the lands over which they claim rights. They also claim that certain pieces of provincial legislation are void or at least inapplicable to them because of their rights claimed in this action. |
| [5] I set out below, because I understand that that thumbnail description of the plaintiffs" claim cannot do it justice, paragraphs 24 through 40 inclusive of their Statement of claim in this action. |
| 24. Her Majesty the Queen in Right of Québec has purported to grant and has purportedly granted to third parties various authorizations, permits, licences and contracts in respect to Oujé-Bougoumou Lands and the natural resources thereof. |
| 25. Moreover, pursuant to such purported authorizations, permits, leases and contracts, works have been carried out and natural resources extracted from Oujé-Bougoumou Lands and revenues and taxes have been received by Defendant Her Majesty the Queen in Right of Canada, by Her Majesty the Queen in Right of Québec and by third parties in consequence thereof. |
| 26. Pursuant to the purported authorizations, permits, leases and contracts, Oujé-Bougoumou Lands have been subjected to extensive clear cutting and lumbering, a substantial portion of the forestry resources has been removed from Oujé-Bougoumou Lands, several mines have been opened and have operated on Oujé-Bougoumou Lands and substantial mineral resources have been extracted from Oujé-Bougoumou Lands. |
| 27. The forestry resources so removed have a value of over one billion dollars and the mineral resources extracted have a value of approximately three billion dollars. |
| 28. The said works and exploitation of natural resources have severely interfered with and caused extensive prejudice to Plaintiffs and their rights, have seriously compromised the livelihood, way of life and traditional use of the land of Plaintiffs and caused substantial damage to the environment and the natural resources of Oujé-Bougoumou Lands, particularly the wildlife on which Plaintiffs depend and future works and exploitation will cause further irreparable prejudice to Plaintiffs and their rights, continue to affect adversely their rights and impede their traditional way of life and cause further damage to the environment and to the natural resources on which Plaintiffs depends. |
| 29. The said purported authorizations, leases, permits and contracts and the granting and exercising of alleged rights thereunder are unconstitutional, illegal, null and of no effect or alternatively are subject to the rights, authority, jurisdiction and control of Plaintiffs. |
| 30. Plaintiffs have received no benefits, no revenues or monies of any kind from the forestry or mineral resources taken from Oujé-Bougoumou Lands and have not consented to the extraction and use of any resources by Her Majesty the Queen in Right of Québec or those purportedly acting under Her authority in regard to Oujé-Bougoumou Lands. Plaintiffs have therefore suffered damages as a direct result of such purported authorizations, permits, leases and contracts of Her Majesty the Queen in Right of Québec and works carried out and natural resources extracted pursuant thereto in the hundreds of millions of dollars. |
| 31. Neither the Legislature nor the Government of Québec has the ownership, jurisdiction, authority or control over the natural resources in Oujé-Bougoumou Lands. |
| 32. At all relevant times, a trust or fiduciary relationship existed between the Plaintiffs, as the beneficiaries thereof, and Defendant Her Majesty the Queen in Right of Canada, as trustee or fiduciary, with respect to Oujé-Bougoumou Lands, including the natural resources thereof and any royalties, payments and revenues therefrom. |
| 33. At all relevant times, Defendant Her Majesty the Queen in Right of Canada owed Plaintiffs and their ancestors trust, fiduciary or equitable obligations with respect to Oujé-Bougoumou Lands, including the natural resources thereof, and with respect to all rights of Plaintiffs therein, which obligations are legally enforceable. |
| 34. The trust, fiduciary or equitable obligations of Defendant Her Majesty the Queen in Right of Canada in favour of Plaintiffs has at all relevant times comprised the preservation and protection of the Indian title, existing aboriginal rights and personal and usefructuary rights of Plaintiffs in Oujé-Bougoumou Lands, including the preservation and protection of Plaintiffs" rights in respect to the natural resources thereof. |
| 35. Moreover, Her Majesty the Queen in Right of canada has at all relevant times been under trust, fiduciary or equitable obligations and duties to ensure respect for and the implementation of the said rights of Plaintiffs as against Her Majesty the Queen in Right of Québec and all third parties. |
| 36. Furthermore, at all relevant times under the constitution of Canada and federal law, including statutory and common law, Defendant Her Majesty the Queen in Right of Canada has been under a trust and fiduciary duty in respect to the Plaintiffs" said rights, has owed as well an equitable obligation to Plaintiffs in respect to their said rights and has also been guardian of Plaintiffs" Indian interest and charged with the preservation and protection of such interest. |
| 37. At all relevant times, Defendant Her Majesty the Queen in Right of Canada has also been under a trust, fiduciary or equitable obligation to Plaintiffs in respect to the dealing in any manner with any rights or interests of Plaintiffs in land and in the natural resources and Defendant has been legally obliged throughout to adhere to the strict standards of conduct or a trustee or fiduciary respecting such rights of Plaintiffs and Oujé-Bougoumou Lands, including the natural resources thereof. |
| 38. Defendant Her Majesty the Queen in Right of Canada at all relevant times has breached Her trust and fiduciary and equitable obligations to Plaintiffs in respect to Plaintiffs" rights and in respect to Oujé-Bougoumou Lands, including the natural resources thereof. |
| 39. Defendant Her Majesty the Queen in Right of Canada has specifically breached Her trust, fiduciary or equitable obligations in respect to the purported authorizations, permits, leases and contracts, works, extraction of resources and activities and operations described in paragraphs 24 to 30 of the present Statement of Claim. |
| 40. At all relevant times, Defendant Her Majesty the Queen in Right of Canada has failed and omitted to protect and to preserve the said rights of Plaintiffs in respect toOujé-Bougoumou Lands, including the natural resources thereof, and has faield and omitted to prevent the invasion of, interference with and breach of the rights of Plaintiffs in regard to the matters described in paragraphs 24 to 30 of this Statement of Claim. |
| [1] The prayer for relief seeks a series of declarations. It also seeks damages and an account. I have said that I will not, in the present circumstances, make any decision on the question of jurisdiction but it is at the very least clear that some parts of what the plaintiffs seek is arguably not within the jurisdiction of this Court. I point for example to paragraph 3 of the prayer for relief: |
| 3. A declaration that the Indian title and rights of Plaintiffs are constitutionally protected, take precedence over and condition, and are a burden and encumbrance upon, any right or claim of Defendant Her Majesty the Queen in Right of Canada or Her Majesty the Queen in Right of Québec in, on, under and over Oujé-Bougoumou Lands, including the natural resources thereof; |
| [2] I also note the decision of the Court of Appeal, confirmed by the Supreme Court of Canada, in the case of Joe1 where Mr. Justice Pratte, speaking for the Court, said: |
| In the part of the statement of claim that is here in issue, the respondents seeks, in effect, a declaration that they have an interest in lands belonging to the Province of Newfoundland. Such a declaration, if it were made, would clearly have an indirect effect on the appellant who, as a consequence of the declaration, would have to assume certain responsibilities and exercise certain powers in respect of those lands. However, the main and primary effect of such a declaration would be, in my opinion, to affect the property rights of the Province of Newfoundland. For that reason, I consider that the declaration sought by the respondents is, in truth, a declaration against the Province of Newfoundland which could not be made in an action directed against the appellant. Moreover, as section 17 of the Federal Court Act [R.S.C. 1970 (2nd Supp.) c. 10] does not give the Court jurisdiction to grant relief against a Province, the relief sought by the respondents could not be granted by the Court even if the Province of Newfoundland were a defendant in this action. |
| [3] There is, however, also no doubt that much of what the plaintiffs" claim is unquestionably within this Court"s jurisdiction. Claims for relief against the federal Crown are prima facie a part of this Court"s jurisdiction and that jurisdiction should in my view, especially when dealing with aboriginal matters, be constructed liberally. |
| [4] What sets this case apart from other cases and makes the disposition which I propose making appropriate where it would otherwise be inappropriate, is that the plaintiffs, at exactly the same time that they launched these proceedings in this Court, launched similar proceedings in the Superior Court of Québec against the provincial Crown. Those proceedings, while they are of course different from these, rely upon the same factual matrix as does the present action. The Attorney General of Canada is not a party to those proceedings. There is however no doubt since the amendments to the Federal Court Act that the Attorney General of Canada could be a party to those proceedings. I put the question squarely during the hearing of this motion to counsel for the Attorney General of Canada and he agreed with me that, with the possible exception of paragraph 9 of the prayer for relief, that is the paragraph relating to the request for an accounting, all the allegations of the statement of claim and all the paragraphs of the prayer for relief could properly be brought before the Superior Court and that the latter Court would have full jurisdiction to deal with it. For what it is worth, I may say that I do not share counsel for the Attorney General"s reservation about the prayer for relief in paragraph 9 but that perhaps is of no great importance for it is clearly a very ancillary and secondary part of what the plaintiffs are seeking. |
| [5] I make no reproach to the plaintiffs for having sued on essentially the same causes of action in two different courts. At the time when this action was instituted, the unhappy situation which had prevail prior to the amendments to the Federal Court Act which required litigants to proceed in two courts where they had a claim against the federal Crown and against other defendants still existed. That situation has now changed and we are now getting accustomed to the concurrent jurisdiction of this Court and the provincial superior courts in actions against the federal Crown. I do not reproach the plaintiffs for having sued in two courts but I do not promise that that would be the case if the actions were being brought today. |
| [6] I think that now that the jurisdiction of the provincial superior courts has been clearly recognized, it would come very close to being an abuse of the process of the Court for a plaintiff so to split his action as to have it brought in two courts of equally competent jurisdiction. It is more than simply a matter of abuse, there is a serious danger, of course, of there being contradictory or conflicting judgments and, at the very least, there is a serious risk of embarrassment to one or the other court by the fact that essentially the same questions of facts and law are being determined by a judge of coordinate jurisdiction in another place. |
| [7] The solution which I propose flows as it seems to me directly from rule 3 of the Federal Court Rules, 19982 and section 50(1) of the Federal Court Act3. That section gives to the Court a discretionary power to stay proceedings. It specifically mentions as one of the circumstances in which such a stay may be granted where parallel proceedings are pending in another court. That is very close to our situation here. Clearly the proceedings in the Superior Court are not exactly parallel to these because the Attorney General of Canada is not a defendant therein and the prayers for relief are not identical. But there is a very close similarity between them. Section 50 equally leaves it open to the Court to exercise its discretion where the interest of justice requires an order of stay. |
| [8] That is what I propose to do. A stay however is not a dismissal and particularly is it not so in this case? Plaintiffs" counsel has suggested to me that there might be some questions of prescription. He was unable to persuade me that it was a clear question and I am not sure that I even understood exactly what period of prescription he thought might be invoked against him. But certainly it would be unjust if at the end of the day the plaintiffs were to find themselves out of court on a whole or a part of their claim because of prescription. There may be some other considerations which would make it desirable for this Court to revive the present proceedings and indeed it is precisely because there may be such situation in the future that counsel for the Attorney General of Quebec at the conclusion of these proceedings asked me to refrain from pronouncing myself in any definitive way on the issue of jurisdiction. |
| [9] So in the upshot, an order will go granting leave to the Attorney General of Québec to intervene in the present proceedings, to participate therein with the right of appeal as he may be advised. An order will further go staying the present proceedings until further order with leave to any party to these proceedings to apply. |
| [10] This is not a case for costs. |
"James K. Hugessen"
Judge
Ottawa, Ontario
December 1st, 1999
__________________
1 The Queen in Right of Canada v. Chief William Joe et al, [1984] 1 C.N.L R. 96.
2
| Rule 3. These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits. |
Règle 3. Les présentes règles sont interprétées et appliquées de façon à permettre d"apporter une solution au litige qui soit juste et la plus expéditive et économique possible. |
3
| Section 50. (1) Stay of proceedings - The Court may, in its discretion, stay proceedings in any cause or matter, (a) on the ground that the claim is being proceeded with in another court or jurisdiction; or (b) where for any other reason it is in the interest of justice that the proceedings be stayed. |
Article 50. (1) Suspension d"instance - La Cour a le pouvoir discrétionnaire de suspendre les procédures dans toute affaire: (a) au motif que la demande est en instance devant un autre tribunal;
(b) lorsque, pour quelque autres raisons, l"intérêt de la justice l"exige. |