Musqueam Indian Band v. Canada (Governor in Council), 2004 FC 1564

Date: 20041105

Docket: T-1832-02

Citation: 2004 FC 1564

Ottawa, Ontario, this 5^th day of November, 2004

Present:           THE HONOURABLE MR. JUSTICE PHELAN

BETWEEN:

MUSQUEAM INDIAN BAND

Applicant

and

GOVERNOR IN COUNCIL OF CANADA,

TREASURY BOARD OF CANADA and THE HONOURABLE

ROBERT THIBAULT, MINISTER OF FISHERIES AND OCEANS

                                                                                                                                      Respondents

CITY OF RICHMOND

Intervener

Docket: T-2287-03

BETWEEN:

MUSQUEAM INDIAN BAND

Applicant

and

GOVERNOR IN COUNCIL OF CANADA, TREASURY BOARD OF CANADA,

THE HONOURABLE ROBERT THIBAULT, MINISTER OF FISHERIES AND OCEANS, CANADA LANDS COMPANY LIMITED, CANADA LANDS COMPANY CLC LIMITED, CITY OF RICHMOND, ATTORNEY GENERAL OF BRITISH COLUMBIA and MINISTER OF INDIAN AND NORTHERN AFFAIRS

Respondents

                                                        REASONS FOR ORDER

Overview

[1]                These reasons deal with a number of motions brought as part of the case management of these two matters. The motions can be summarized as follows:

a)         A motion by the Musqueam Indian Band (the "Band") to amend its Notice of Application. Objection is taken to the motion, in part, because it is said to raise issues as to treaty negotiations and the involvement of the provincial Crown in this litigation.

b)          A motion by the Band to consolidate the two Court files or to have them heard together.

c)          A motion by the Canada Lands Company Limited and the Canada Lands Company CLC Limited (the "CLC Respondents") to be struck out as respondents and other related relief, on the grounds that they are not a federal board, commission or other tribunal and therefore not subject to this Court's jurisdiction.

d)          A motion by the Attorney General of British Columbia ("BC") to be struck as a respondent in these proceedings, and, alternative relief on the grounds (amongst others) that, as a provincial Crown, it is not subject to this Court's jurisdiction.

Background

[2]                The Band commenced an application for judicial review in November 2002 under Court File No. T-1832-02 in respect of the authorization and decision by the Governor in Council, the Treasury Board and the Honourable Robert Thibault, Minister of Fisheries and Oceans (the "Federal Respondents") to dispose of a portion of land in the City of Richmond known as the "Garden City Lands".

[3]                In that first application, the Band alleged that in making the decision and granting the authorization, the Federal Respondents failed to consult the Band in good faith concerning the disposition of the Garden City Lands or to make reasonable accommodation of the Band's interests in that property. The relief sought includes a declaration that there has been a failure to consult and accommodate, mandamus compelling consultation and accommodation and an injunction prohibiting the disposition of the property.

[4]                The Band commenced a second application for judicial review in late 2003 in respect of a decision by the Minister to transfer the Garden City Lands to Canada Lands Company Limited.    The relief sought included an order quashing the decision to transfer.

[5]                The Band also sought and obtained an interlocutory injunction restraining the Federal Respondents from transferring the Garden City Lands. That order is under appeal.

[6]                The parties have now brought the various motions described in paragraph 1.

Re: Motion to Amend Notice of Application - Court File No. T-2287-03

[7]                The Band has made application to amend its Notice of Application in several respects including a claim for new remedies, a plea that the Federal Respondents have fettered their discretion in refusing to withhold the Garden City Lands from sale or disposition, a plea that the Band's legitimate expectations have been breached and the addition of certain facts upon which the judicial review is based.

[8]                The most contentious amendments on which there was general opposition are paragraphs 9 and 10 of the relief requested. These amendments read:

9.              a declaration that, in light of special circumstances of this case, the Federal Respondents' duty to negotiate in good faith, and to consult with Musqueam with regard to the "Garden City" property, includes the obligation to immediately consult with Musqueam and address the development of an interim measures agreement or a land protection agreement between British Columbia, Canada and Musqueam at least with respect to the protection of the "Garden City" property;

10.           a declaration that the Federal Respondents' obligation to negotiate in good faith and to consult with and accommodate Musqueam with respect to the "Garden City" property includes the obligation to consult and seek to accommodate Musqueam even after this litigation was commenced;

[9]                The Federal Respondents object to paragraphs 9 and 10 on the grounds that:

-            those paragraphs seek declarations which are not sustainable in law because the relief seeks to dictate the federal government's position in treaty negotiations, the declarations would serve little purpose since the Province of British Columbia is not a party against whom relief is sought and there is no pleading to suggest that the federal government has not and will not consult following the commencement of litigation;

-            the paragraphs seek judicial review of the federal government's treaty negotiations; and

-            the Federal Respondents would be prejudiced because they would have to reveal their negotiating plans and strategies in order to defend against this application.

[10]            BC had similar objections to the paragraphs on the grounds that:

-            they raise issues related to treaty negotiations;

-            the relief is in reality relief against the province;

-            to allow the amendment is inconsistent with judicial comity and economy; and,

-            because of the tripartite treaty process, any pronouncement of the obligations of the Crown should be made by a provincial superior court.

BC has also raised the issue of this Court's jurisdiction in its own motion to be struck as a respondent.

[11]            The objections of these respondents deal much more with the merits of the judicial review than with whether an amendment should be permitted. It must be borne in mind that this application is at its earliest stage. The respondents' arguments in some aspects presuppose facts which are not yet in evidence. In fact, the respondents have put in no evidence on the merits. It is premature to conclude how this case will evolve and what positions and arguments the parties may ultimately take or advance.

[12]            The respondents express grave concern that paragraphs 9 and 10 open up to discovery and cross-examination, the whole of the treaty negotiations with the Musqueam. Even assuming that this is a valid ground of objection to this motion, (a determination which I have not made) the two paragraphs make no reference to the treaty negotiations. The reference in other paragraphs eg. 7, 8, is to treaty interests. On its face and until there is other evidence, the Court cannot assume that the treaty negotiations as opposed to treaty interests is an issue or that the case will evolve into an examination of the on-going treaty negotiation process.

[13]            These respondents are anticipating issues, problems of proof and procedural difficulties on too thin a record and too early in the litigation process. This Court has the jurisdiction and the powers necessary to ensure that the litigation stays within jurisdictional boundaries and to effectively deal with issues of prejudice and of proof. The Band's fundamental claim is against the decision of a "federal board, commission or tribunal" and a matter that is within the exclusive jurisdiction of the Court.

[14]            The issue in this motion is not the merits of the judicial review or the possible problems which may be encountered along the way to a hearing; the issue is whether the Band's motion complies with Rule 75(1), which reads:

[15]            The principle in respect of amendments was laid down by the Federal Court of Appeal in Canderel Ltd v. Canada, [1994] 1 F.C. 3 at p. 6. Amendments should be allowed at any stage for the purpose of determining the real questions in controversy so long as any prejudice resulting can be compensated by costs, and, the amendment would serve the interests of justice.

[16]            The Court of Appeal, in considering the issue of the interests of justice, adopted Bowman TCJ's statement in Continental Bank Leasing Corporation et al v. the Queen (1993), 93 DTC 298 (T.C.C.) at p 302, which concludes:

"Ultimately it boils down to a consideration of simple fairness, common sense and the interest that the courts have that justice be done"

[17]            Applying the above principles to this motion, the amendment deals with the real issue in this case. The prejudice to the various respondents arising from an amendment at this stage is negligible because the amendments come so early in the process, before the respondents have submitted any materials or evidence.

[18]            It would be unfair to cut off the applicant from a claim for relief so early in the litigation. It makes good sense to let in the full extent of the claim and to deal with the issues on their merits and with any problems in the conduct of the case at the appropriate juncture.

[19]            It is in the interest of justice that all of the potential claims, whatever their merits, be disclosed early and fully. This amendment will serve that purpose.

[20]            Therefore the amendment will be allowed.

Re: Motion to Consolidate

[21]            The Band seeks to either consolidate these two judicial reviews or to have them heard together. The objection to this motion is principally that the first application has been made moot by the second application for judicial review.

[22]            It is evident that the Band is concerned that, by abandoning the first application, it may be subject to some procedural issues when it seeks to incorporate into the second application all of the facts and issues raised in the first.

[23]            Counsel for the Government of Canada may be correct when he argues that nothing can be ordered in respect of the first application and that all the issues will be resolved in the second. At this stage the Court is inclined to agree, however, it is not completely clear what positions the various respondents will take and no evidence in defence of their positions has been submitted.

[24]            Until the direction of this litigation is clearer, it is preferable to maintain both applications in existence. The issue of consolidation can be reviewed at a later stage. The parties can file their Court documents using the two styles of cause and can treat the evidence and submissions as applicable to both court files.

[25]            Whatever the results may be of a further consideration of consolidation of these cases, the two applications, if still in existence, should be heard together, unless there arises some new circumstance which makes such a procedure inappropriate.

Re: Motion to Strike - CLC Respondents

[26]            The CLC Respondents move for an order which would effectively remove them from the two judicial reviews. The CLC Respondents consist of Canada Lands Company CLC Limited ("CLCL"), the parent company, and its subsidiary, Canada Lands Company Limited ("CLC").

[27]            These Respondents say that CLCL, originally Public Works Lands Company Limited, is a Crown corporation which acts as a holding company for its active subsidiary CLC. CLCL has virtually no assets or corporate resources. It is a self-financing commercial federal Crown corporation whose mandate is to ensure the commercially oriented, orderly disposition of surplus real properties and the holding of certain properties, all for the benefit of the Government of Canada. CLCL is an agent of the federal Crown.

[28]            CLC is an active real estate company, said to act much as a private-sector real estate company at arm's length from the federal Crown, and is not a Crown agent. It carries out the mandate of CLCL to dispose of or to hold certain properties for the benefit of the federal government.

[29]            CLC is a potential purchaser of the Garden City Lands and the decision of the Treasury Board, which is under attack in this litigation, is to transfer that land to CLC. To date, CLC has not actually purchased any legal interest and does not hold any title in the land.

[30]            The CLC Respondents object to being parties to this litigation on the grounds that they are not a "federal board, commission or other tribunal" and, therefore, this Court's powers under subsection 18(1) and section 18.1 of the Federal Court Act do not give jurisdiction to the Court to make an order against them.

[31]            The CLC Respondents have put forward, as part of their argument, evidence of their corporate structure, general operations and like material, all with the aim of establishing that they do not fall into the definition in S. 2 of the Federal Court Act. In effect, they argue that they are like some other federally-owned corporations, such as the CBC (see Thomas W. Wilcox v. Canadian Broadcasting Corporation, [1980_] 1 F.C. 326 (T.D)) and the Farm Credit Corporation (see Cairns v. Farm Credit Corporation, [1992] 2 F.C. 115 (T.D.)) and are not like a port authority (see Halterm Limited v. Halifax Port Authority, (2000), 184 F.T.R. 16 (T.D.), which exercises powers pursuant to a federal statue.

[32]            While these respondents have many characteristics of a private corporation, there are aspects of its organization and mandate that have a significant government component. The parent company is a Crown agent; the subsidiary acts as agent for the parent or on its behalf. Both respondents have the same policies and these policies are in line with government policies. CLCL, as parent company, reports to Parliament through a Minister and complies with federal Crown objectives. The sources of both respondents' mandates are the federal Crown.

[33]            At this early stage of the litigation, the precise relationship with the other federal Crown parties and the nature and scope of the respective dealings with each is unknown or unproven.

[34]            It is sufficient to say that there is an arguable case in respect of the Band's contention that each of the CLC Respondents is a "federal board, commission or other tribunal".

[35]            The CLC Respondents wish to strike out the judicial review as against them. The legal principle applicable to this type of motion is set forth inDavid Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.) holding that this type of motion will only be granted when the judicial review is "bereft of any possibility of success". That principle is applicable to both the basis for the judicial review and to the parties who may be named, assuming other compliance with the Court's Rules.    

[36]            The Band's claim against the CLC Respondents and most particularly their position that they are a federal board, commission or tribunal is, at this stage, not "bereft of any possibility of success".

[37]            Even if the CLC Respondents were not such a board, commission or tribunal, Rule 303 requires that the CLC Respondents be named as parties because each is evidently a "person ... directly affected by the order sought in the application". The requested relief would end the transfer of the Garden City Lands to CLC and the resulting benefits to each of these respondents of the subsequent sale to a third party.

[38]            It is not necessary for a named respondent to also be a federal board, commission or other tribunal in order for them to be properly before this Court. The fact of not being a board will have an impact on the relief which may be issued and the parties against whom such relief may be granted, but it does not render such parties outside this Court's jurisdiction.

[39]            The applicable principle is found in Tetzlaff v. Canada (Minister of the Environment), [1992] 2 F.C. 215 (C.A.) at p. 226 - 227 which held that section 18 creates jurisdiction over subject matter not persons.

"Section 18 does not create jurisdiction over persons at all but rather over subject-matter. That subject-matter is the decisions of federal boards, commissions or other tribunals. Frequently the persons constituting such board, commission or tribunal are not necessarily, or even properly, parties to the proceedings before the Court"

(See also: Friends of the Oldman River Society v. Canada (Minister of the Environment) [1993] 2 F.C. 651 (C.A.) at 656.)

[40]            The CLC Respondents, either directly or indirectly, are the parties to benefit from the decision to transfer the Garden City Lands. If the transaction were to be completed, they would also be beneficiaries of it. As such the CLC Respondents are persons directly affected by the decision which is the subject of this judicial review. They are a proper party and their motion must be dismissed.

Re: Motion to Strike - Attorney General of British Columbia

[41]            BC's motion to strike covers removing BC from the litigation totally, and/or striking or amending paragraph 8 of the "application particulars" and paragraphs 3 and 4 of the "grounds" to reflect that these paragraphs do not apply to BC.

[42]            The relevant paragraphs read as follows:

8. An order of mandamus compelling the Respondents and each of them to consult with Musqueam in good faith concerning the use and disposition of the "Garden City" property and to make workable accommodations of Musqueam's aboriginal and treaty interests.

...

3. Each of the Respondents is constitutionally obligated to ensure that full disclosure is made to Musqueam and that they are consulted in good faith regarding any possible disposition of the "Garden City" property, and to ensure that workable accommodations of Musqueam's aboriginal title interests in the property are made, before any such disposition is made.

4. The Respondents have breached their fiduciary and constitutional obligations to Musqueam in respect to the disposition or proposed disposition of the "Garden City" property.   

[43]            BC has also raised the issue of its continuing status if the proposed amendments to the notice of application are allowed. As the Court understands BC's position, it is that if the amendments are not allowed, it wishes to be struck from the application but, if the amendments are allowed, it wished to remain in the litigation.

[44]            BC's position is that this Court does not have jurisdiction over it and cannot make any order compelling BC to do anything. BC also argues that the Court cannot permit allegations to be made about persons over whom it has no jurisdiction. BC further states that because there is related litigation in the British Columbia Supreme Court, that court is better situated to deal with land protection obligations in tri-partite treaty negotiations.

[45]            Bearing in mind the test for striking a judicial review application, as discussed in respect to the CLC Respondents' motion, BC's argument with respect to paragraph 8 is compelling. This Court has no jurisdiction to issue mandamus against BC as requested. (See Union Oil Company v. Canada and British Columbia, [1976] 1 F.C. 74 (C.A.) at paragraph 3; affirmed at SCC (1976) 72 D.L.R. (3d) 81 at 82)

[46]            The Band has made it clear that it does not intend to seek such relief against BC. However, given the disposition of this motion, it will not be necessary to amend this paragraph.

[47]            The issues in this judicial review directly call into question the federal Crown's decision to transfer the Garden City Lands. As such it is a matter which is subject to the exclusive jurisdiction of this Court; it is not a matter which can be decided by a provincial superior court.

[48]            A party, in its pleadings, is not restricted to stating only those facts or matters over which a court has jurisdiction so long as those facts or matters are potentially relevant to the ultimate disposition, which is within the court's jurisdiction.

[49]            This motion can be more appropriately dealt with by reference to the principles applicable to the CLC Respondents' motion to strike. In this instance, BC is not directly affected by the decision made by the federal Crown. As such, it is not a properly named respondent and its motion to be struck as a party should be granted.

[50]            Given the nature of this application, the concerns expressed by BC (whether the paragraph 9 amendment was permitted or not), BC may well have an interest in this litigation. The Federal Court Rules contemplate dealing with interests which arise from specific litigation (as distinguished from persons directly affected by a decision) by making provisions for intervener status under Rule 109. Further, provincial attorneys general may seek intervener status under Rule 110.

[51]            Therefore, while the motion to strike is granted, it is without prejudice to BC's right to seek intervener status under such Federal Court Rule as it may think applicable.

Conclusion

[52]            The parties had alluded to the existence of discussions regarding this litigation and the transfer of the land. There has been no change in the status of this litigation since the date of hearing these motions. It is time for these proceedings to proceed. A further case managment conference to deal with scheduling and related issues will be convened in the near future.

[53]            For these reasons an order will issue that:

a.          The Motion of the Musqueam Indian Band to amend the Notice of Application in Court File No. T-2287-03 is granted;

b.          The Motion to consolidate Court Files Nos. T-1832-02 and T-2287-03 is dismissed without prejudice to have the matter reconsidered at a later date by either the case management judge or the judge hearing the applications; the motion that the files be heard together is granted unless otherwise ordered.

c.          The Motion of Canada Lands Company Limited and Canada Lands Company CLC Limited is dismissed;

d.          The Motion of the Attorney General of British Columbia is granted as regards to ceasing to be a respondent in Court File No. T-2287-03 without prejudice to the Attorney General's right to apply for intervener status in both Court files.

e.          Costs shall be in the cause.

                                                                                                   Judge                     

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1832-02

STYLE OF CAUSE: Musqueam Indian Band v Governor In Council of           Canada

PLACE OF HEARING:                                 Vancouver, British Columbia

DATE OF HEARING:                                   June 28, 2004

REASONS FOR ORDER :                          Phelan, J.

DATED:                     November 5, 2004

APPEARANCES:

Ms. Mario Morellato                                         FOR APPLICANT

Mr. Rob Whittaker                                           FOR RESPONDENT

Federal Crown

Mr. Simon Margolis                                           FOR RESPONDENT

Mr. Chris Wilson                                               Canada Lands Company Ltd. And Canada Lands Company CLC Ltd.

Mr. Paul Yearwood                                           FOR RESPONDENT Attorney General of British Columbia

Mr. Reece Harding                                            FOR INTERVENER City of Richmond

SOLICITORS OF RECORD:

Blake Cassels                                                    FOR APPLICANT

Vancouver, BC

Dept. Of Justice                                                 FOR RESPONDENT

Vancouver, BC                                                 Federal Crown

Bull Housser                                                      FOR RESPONDENT Canada

Vancouver, BC                                                 Lands Company Ltd. And Canada Lands Company CLC Ltd.

AG of BC Legal Services                                              FOR RESPONDENT AG of BC

Victoria, BC

Lidstone, Young, Anderson                                           FOR INTERVENER City of

Vancouver, BC                                                 Richmond

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-2287-03

STYLE OF CAUSE: Musqueam Indian Band v Governor In Council of           Canada

PLACE OF HEARING:                                 Vancouver, British Columbia

DATE OF HEARING:                                   June 28, 2004

REASONS FOR ORDER :                          Phelan, J.

DATED:                     November 5, 2004

APPEARANCES:

Ms. Mario Morellato                                         FOR APPLICANT

Mr. Rob Whittaker                                           FOR RESPONDENT

Federal Crown

Mr. Simon Margolis                                           FOR RESPONDENT

Mr. Chris Wilson                                               Canada Lands Company Ltd. And Canada Lands Company CLC Ltd.

Mr. Paul Yearwood                                           FOR RESPONDENT Attorney General of British Columbia

Mr. Reece Harding                                            FOR INTERVENER City of Richmond

SOLICITORS OF RECORD:

Blake Cassels                                                    FOR APPLICANT

Vancouver, BC

Dept. Of Justice                                                 FOR RESPONDENT

Vancouver, BC                                                 Federal Crown

Bull Housser                                                      FOR RESPONDENT Canada

Vancouver, BC                                                  Lands Company Ltd. And Canada Lands Company CLC Ltd.

AG of BC Legal Services                                              FOR RESPONDENT AG of BC

Victoria, BC

Lidstone, Young, Anderson                                           FOR INTERVENER City of

Vancouver, BC                                                 Richmond