Batchewana First Nation of Ojibways v. Corbiere, docket T-1234-98

Date: 20001211

Docket: T-1234-98

BETWEEN:

ANGELA NEVEAU, CHIEF OF THE BATCHEWANA FIRST NATION OF OJIBWAYS ON BEHALF OF HERSELF AND ALL OTHER MEMBERS OF THE BATCHEWANA FIRST NATION OF OJIBWAYS, SAVE AND EXCEPT JOHN M. CORBIERE AND ALICE CORBIERE

     Applicants

     - and -

JOHN M. CORBIERE, GARY CORBIERE, DARLENE CORBIERE,

JOSEPH CORBIERE AND THE MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA

     Respondents

     REASONS FOR ORDER AND ORDER

DAWSON J.

[1]      On November 28, 1984, the Chief of what was then called the Batchewana Band of Indians obtained a judgment on behalf of the Band against the respondent John M. Corbiere ("Mr. Corbiere"). The judgment was in the amount of $3,795.24, plus interest and costs. This application is brought as part of an effort to obtain satisfaction of that judgment. At the risk of over-simplification, in substance the applicants seek to set aside a transaction by which Mr. Corbiere divested himself of an interest in land, or seek a declaration that the transaction is subject to the interest of the Band.

[2]      I have concluded that this Court lacks jurisdiction to grant the relief requested. These are my reasons for dismissing the application.

THE FACTS

[3]      The material facts are neither difficult nor disputed and may be summarized as follows.

[4]      At all material times Mr. Corbiere was in possession of two parcels of vacant land located on the Batchewana Reserve ("subject lands"). The parcels are legally described as:

·      the whole of Subdivision 2, Parcel B, Rankin Location Indian Reserve No. 15D, in the Province of Ontario, shown on Sketch of Record LS 2544, Canada Lands Surveys Records, Ottawa.

·      the whole of Lot 29, Block J, Rankin Location Indian Reserve No. 15D, shown on Plan F3615, Canada Lands Surveys Records, Ottawa.

[5]      Mr. Corbiere's right to possession of the subject lands was evidenced by a Certificate of Possession and a Notice of Entitlement issued respectively under section 20 of the Indian Act, R.S.C. 1985, c. I-5 as amended, ("Indian Act") and its predecessor section.

[6]      The plaintiffs in the original action were described as Garnet Boyer, Chief of the Batchewana Band of Indians on behalf of himself and all other members of the Batchewana Band of Indians except John M. Corbiere and Alice Corbiere, who were the defendants in the action. Alice Corbiere was at the time married to John M. Corbiere. After the judgment was obtained against Mr. and Mrs. Corbiere in the Ontario District Court, on September 24, 1987 the plaintiffs in that action obtained a writ of seizure and sale directing the sheriff to seize and sell the real and personal property owned by Mr. Corbiere. The writ was subsequently renewed.

[7]      Mr. Corbiere made an assignment in bankruptcy on August 21, 1989. The Band's judgment was disclosed on Mr. Corbiere's statement of affairs, as was a matrimonial home situated on the Batchewana Reserve. The subject lands were not expressly referenced, but Mr. Corbiere's interest in the subject lands was known to the Band which had been in litigation with Mr. Corbiere over the subject lands. The Band's then lawyer also corresponded with Mr. Corbiere's Trustee in Bankruptcy about the Band's right to pursue remedies against the subject lands.

[8]      On February 22, 1990, Mr. Corbiere obtained an absolute discharge from his bankruptcy. The Band did not oppose the discharge.

[9]      In the affidavit sworn in support of this application by the applicants' Band administrator it was said that the balance of the monies owed by Mr. Corbiere in respect of the judgment, with interest and costs, less a payment in the amount of $459.41 received from the Trustee in Bankruptcy, was $26,899.80 as of March 31, 1998.

[10]      On July 10, 1997, Indian and Northern Affairs Canada received a Transfer of Land and a request that all of Mr. Corbiere's estate and interest in the subject properties be transferred to his three children as tenants in common. Those three children are all respondents to this proceeding.

[11]      On July 17, 1997, the applicants' Band administrator advised the Department of Indian Affairs and Northern Development ("DIAND") representatives in a telephone conversation that the Band was seeking legal advice on taking back the subject lands in satisfaction of an outstanding debt.

[12]      There followed communication between DIAND and the parties.

[13]      The renewed writ of seizure and sale was registered against the subject lands with the Indian Land Registry office at DIAND headquarters on November 26, 1997.

[14]      The significant communication between the parties and DIAND during this period may be summarized by stating that DIAND advised the Band that a Court order would be necessary before the subject lands could be transferred to the Band. Counsel for the Band initially advised that he would move in the Ontario Court for directions as to the sheriff's authority to seize the lands. He later advised that he would be moving for directions in this Court. From December of 1997 to February of 1998, DIAND communicated with the applicants' counsel about the Band's intentions and the intended legal proceedings.

[15]      On February 25, 1998, counsel for DIAND wrote to the applicants' counsel advising that DIAND would refrain from approving Mr. Corbiere's request for transfer for at least the next month, but that DIAND had assured Mr. Corbiere that at the expiration of that period his application would be re-visited.

[16]      Court proceedings were not commenced in February or March of 1998.

[17]      On March 27, 1998, DIAND notified Mr. Corbiere and the applicants' counsel that the transfers had been approved pursuant to section 24 of the Indian Act.

[18]      Certificates of Possession dated April 17, 1998 were issued to Mr. Corbiere's children in respect of the subject lands.

[19]      This proceeding was commenced on June 16, 1998.

The Relief Sought in this Application

[20]      The Notice of Application seeks the following substantive relief:

(a)      a Declaration that the lands known as the whole of Lot 29, Block J as shown on Plan of Record F3615 Indian Affairs Survey Records Ottawa on Rankin Location Indian Reserve #15 D and Parcel B-1 RSO Plan 336, Rankin Indian Reserve 15 D are forfeited to the Batchewana First Nation of Ojibways;

(b)      an Order in the nature of Mandamus ordering that the Minister of Indian and Northern Affairs Canada be directed to issue Certificates of Possession with respect to the whole of Lot 29, Block J as shown on Plan of Record F3615 Indian Affairs Survey Records Ottawa on Rankin Location Indian Reserve #15 D and Parcel B-1 RSO Plan 336, Rankin Indian Reserve 15 D in favour of the Batchewana First Nation of Ojibways (hereafter referred to as the subject lands);

(c)      a Declaration that the transfer by the respondent John M. Corbiere to the respondents Gary Corbiere, Darlene Corbiere and Joseph Corbiere is subject to and subordinate to the interest and claim of the applicant to the subject lands;

(d)      an Order preventing the transfer of Certificates of Possession with respect to the subject lands other than in accordance with an Order of this Court.

[21]      It was unequivocally stated by counsel for the applicants at the oral hearing of this matter that the present application is not an application for judicial review. This submission is consistent with the fact that the Notice of Application does not comply with Rule 301(c) of the Federal Court Rules, 1998. Rule 301(c) deals with the contents of applications where an application is brought for judicial review.

[22]      What this application fundamentally puts into issue is the dispute between the applicant First Nation and Mr. Corbiere as to his continuing obligation under the judgment which members of the Band obtained in 1984. Thus, in the applicants' Memorandum of Fact and Law the issues raised by this application are stated to be:

(a)      Does the respondent John M. Corbiere still owe the Band the monies owing under the earlier mentioned Judgments and if so, the amount of monies owing?

(b)      Has the Judgment been extinguished or released by John Corbiere's assignment into bankruptcy and subsequent discharge?

(c)      The effect of Section 178(1)(e) of The Bankruptcy Act, Chapter B-3, 1985.

(d)      The effect of the respondent John M. Corbiere failing to disclose to the trustee in bankruptcy and declare on his Statement of Affairs his interest in the two subject properties at the time of his making his Assignment into Bankruptcy.

(e)      The relationship and reconciliation of Section 29 and Section 89(1) of The Indian Act.

(f)      How an Indian or Band proceeds under Section 89 of The Indian Act to attach or seize or execute against another Indian who has real property situated on a Reserve.

(g)      The effect of a transfer of a Certificate of Possession by one Indian to another for no or inadequate consideration when the transferee has advance notice of a prior interest to the real property.

THE PRELIMINARY ISSUE OF JURISDICTION

[23]      This Court exercises a statutory jurisdiction, without inherent jurisdiction. Therefore, the preliminary issue which must be addressed is whether the Court has jurisdiction to determine the issues raised and to grant the relief sought by the applicants.

ANALYSIS

[24]      The applicants assert that this Court has jurisdiction over this proceeding pursuant to section 17 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, and specifically point to paragraph 2(a) and subsection 4 of section 17. In material part, section 17 of the Federal Court Act, provides:

17. (1) Except as otherwise provided in this Act or any other Act of Parliament, the Trial Division has concurrent original jurisdiction in all cases where relief is claimed against the Crown. (2) Without restricting the generality of subsection (1), the Trial Division has concurrent original jurisdiction, except as otherwise provided, in all cases in which (a) the land, goods or money of any person is in the possession of the Crown; ... (4) The Trial Division has concurrent original jurisdiction to hear and determine proceedings to determine disputes where the Crown is or may be under an obligation, in respect of which there are or may be conflicting claims.

17. (1) Sauf disposition contraire de la présente loi ou de toute autre loi fédérale, la Section de première instance a compétence concurrente, en première instance, dans les cas de demande de réparation contre la Couronne. (2) La Section de première instance a notamment compétence concurrente en première instance, sauf disposition contraire, dans les cas de demande motivés par_: a) la possession par la Couronne de terres, biens ou sommes d'argent appartenant à autrui; ... (4) La Section de première instance a compétence concurrente, en première instance, dans les procédures visant à régler les différends mettant en cause la Couronne à propos d'une obligation réelle ou éventuelle pouvant faire l'objet de demandes contradictoires.

[25]      The difficulty with the applicants' submission is that subsections 17(1) and 17(2) confer jurisdiction upon the Federal Court in respect of actions against the Crown. The present proceeding is neither an action, nor is it brought against Her Majesty in right of Canada. The Federal Court Act in subsection 2(1) defines "Crown" to mean Her Majesty in right of Canada.

[26]      To the extent that specific reliance is placed upon paragraph 2(a) of section 17 of the Federal Court Act, the subject lands are not in the possession of the Crown as required for the paragraph to be applicable (see: Powless v. Sandy (1995), 95 F.T.R. 57 (F.C.T.D.)).

[27]      With respect to subsection 17(4) of the Federal Court Act, this proceeding is not in the nature of an interpleader action which is generally the nature of proceedings contemplated by subsection 17(4). However, Roberts v. Canada, [1989] 1 S.C.R. 322 is authority for the principle that a fact situation may fall within subsection 17(4), notwithstanding that the matter is not in the nature of an interpleader proceeding.

[28]      In Roberts, supra, two Bands each claimed the right to the use and occupation of a specific reserve. The Crown was found to owe a direct obligation arising from the nature of aboriginal title, and from the obligation owed by the Crown in respect of lands held for Indians, whereby the Crown was obliged to hold the land for the use and benefit of one of the Bands. The conflicting claims were thus in respect of the Crown's obligation so as to bring the proceedings within what is now subsection 17(4).

[29]      Here, I find that the conflicting claims are not in respect of the Crown's direct obligation, but rather are in respect of the extent, if any, of the applicants' right to enforce a judgment against the respondents. The Crown is not a party to the proceeding. While, pursuant to section 21 of the Indian Act, DIAND is obliged to keep the Reserve Land Register in which is to be kept particulars relating to Certificates of Possession, the applicants have failed to persuade me that this record-keeping obligation is such as to bring this application within subsection 17(4) of the Federal Court Act, and hence within the jurisdiction of this Court.

[30]      Similarly, while under section 20 of the Indian Act, the Minister is required to approve the granting of possession of land to an Indian by the council of a Band, I have not been satisfied that this triggers a direct obligation on the part of Her Majesty within subsection 17(4) of the Federal Court Act. Rather, as discussed below, this is in the nature of an administrative decision of a federal board, commission or other tribunal.

[31]      I will next consider specifically each substantive head of relief sought by the applicants. The headings set out below relate to the heads of relief sought by the applicants as set out in paragraph [20] above.

(a) A declaration that the subject lands are forfeited to the applicants

(c) A declaration that the transfer of the subject lands to Mr. Corbiere's children is subject to the applicants' claims

[32]      In ITO Int. Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, the Supreme Court reiterated that the three essential requirements to support a finding of jurisdiction in the Federal Court are:

i.      There must be a statutory grant of jurisdiction by the federal Parliament;

ii.      There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and

iii.      The law on which the case is based must be a "law of Canada" as the phrase is used in section 101 of the Constitution Act, 1867.

[33]      Other than section 17 of the Federal Court Act, dealt with above, the applicants have not identified any Act of Parliament which grants to this Court jurisdiction to determine the issues raised by the applicants, nor have the applicants pointed to an existing body of federal law which nourishes any grant of jurisdiction.

[34]      While the right to execute against reserve land appears to be governed by section 29 of the Indian Act, before the mechanics of execution are addressed the applicants must establish that monies are owed by Mr. Corbiere under a valid and subsisting judgment. This in turn requires a determination of whether the applicants' judgment is one which falls within paragraph 178(1)(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended ("Bankruptcy and Insolvency Act"). While that Act is legislation of the federal Parliament, pursuant to subsection 183(1) of the Bankruptcy and Insolvency Act, original, auxiliary and ancillary jurisdiction in bankruptcy and in other proceedings authorized by the Act are vested in the provincial courts. In the normal course, a judgment creditor who has obtained the judgment prior to the debtor's bankruptcy may, after the bankruptcy's discharge, apply in the civil courts for a declaration that the claim falls within paragraph 178(1)(e) of the Bankruptcy and Insolvency Act.

[35]      Here, the applicants seek to enforce a writ of seizure and sale issued by the courts of Ontario. In Ontario, where a question arises in relation to the measures to be taken by a sheriff in carrying out a writ of execution, a motion for directions may be made under Rule 60.17 of the Ontario Rules of Civil Procedure.

[36]      In Mintuck v. Valley River Band No 63A, [1977] 2 W.W.R. 309 (Man. C.A.), the Manitoba Court of Appeal held that an action by a Band member alleging wrongful interference with his rights under a lease of land located on a reserve was properly brought before the court of the province and was not a matter within the exclusive jurisdiction of the Federal Court.

[37]      The legislative provisions referred to above and the Mintuck case make it clear, I believe, that the dispute as to the applicants' right to the subject lands was one properly within the jurisdiction of the courts of Ontario. The jurisdiction of this Court to rule on the respective rights of the applicants and the individual respondents has not been established.

(b) An order in the nature of mandamus ordering the Minister of Indian and Northern Affairs to issue a Certificate of Possession with respect to the subject lands to the applicants

[38]      At the commencement of the hearing, counsel for the applicants advised that the claim to mandamus was withdrawn and instead the applicants sought, pursuant to subsection 22(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 as amended, a declaration that the applicants were entitled to receive such certificates.

[39]      I am satisfied that the respondent Minister is, when issuing a Certificate of Possession under subsection 20(2) of the Indian Act, making an administrative decision or exercising a discretionary power so that when making that administrative decision the Minister acts as a federal board, commission or other tribunal within the meaning of section 18.1 of the Federal Court Act. See: [1982] 1 S.C.R. 609">Fee v. Bradshaw, [1982] 1 S.C.R. 609.

[40]      Section 18.1 of the Federal Court Act is clear that in that circumstance any declaratory relief sought against the respondent Minister can only be brought on an application for judicial review made under section 18.1 of the Federal Court Act. The present proceeding is not, as conceded by the applicants, an application for judicial review, nor was this application commenced within the time specified under subsection 18.1(2) of the Federal Court Act for the bringing of such applications.

[41]      There is therefore no jurisdiction in this application for the granting of declaratory relief against the Minister.

(d) An order preventing the transfer of the Certificates of Possession

[42]      As noted above, the Certificates of Possession have been transferred into the names of Mr. Corbiere's children. It was therefore conceded by the applicants that this issue is now moot.

CONCLUSION

[43]      For these reasons, I have concluded that there is no jurisdiction in the Court to grant any of the substantive remedies sought by the applicants.

[44]      Two further matters must be addressed. They are an appeal from an order of the learned Prothonotary, Mr. Giles, dismissing a motion brought by Darlene Corbiere for an order deleting reference to her mother, Alice Corbiere, in the style of cause, and the issue of costs.

The appeal from the prothonotary's order

[45]      In November of 1999, the respondent Darlene Corbiere moved pursuant to Rule 369 of the Federal Court Rules, 1998, for an order amending the style of cause to remove the name of her mother, Alice Corbiere, on the ground that while Rule 67(3) requires the style of cause to name each applicant and respondent, her mother was neither and was no longer a member of the applicant First Nation. Reliance was also placed on the fact that Alice Corbiere was suffering personal embarrassment as a result of being so named.

[46]      The learned Prothonotary Mr. Giles dismissed the motion, stating that:

[5]      The action seeks relief for all who were members of the Band when the first action was brought save for the two [Alice and John M. Corbiere]. There is a possibility if the wife was no longer excluded, she as a member of the Band at the time the original action was brought would be entitled to share in any recovery as being a member at that time, although not now a member. I will not therefore amend the style of cause to exclude the wife's name from the description of the Plaintiffs.

[47]      Darlene Corbiere appeals from that decision asserting that the prothonotary erred in referring to the proceeding as an action, erred in stating that Alice Corbiere was a member of the Band "when the proceedings started", erred in concluding that if not excluded Alice Corbiere "would be entitled to share in any recovery" and erred in stating that the "action seeks relief for all who were members of the Band when the first action was brought save for the two".

[48]      The standard of review on an appeal from a prothonotary is well settled. Unless they raise a question vital to the final issue, discretionary orders of a prothonotary should not be disturbed on appeal unless they are based upon a wrong principle or a misapprehension of the facts. I do not find that the prothonotary either erred in principle or misunderstood the facts.

[49]      While Alice Corbiere is not a party to this proceeding, Rule 114(1) of the Federal Court Rules, 1998 contemplates that representative proceedings may be brought by one or more persons representing some or all persons who have the same interest in the proceeding. There is therefore no error in principle in my view in referring to persons who are not parties to a proceeding in the style of cause for the purpose of describing properly the class of persons represented.

[50]      As for the errors alleged, the first is simply not material and is at best a technical slip. The second in my view is not an error but a correct reference to the fact that Alice Corbiere was a member of the Band when the initial claim was brought. As for the other alleged errors, the prothonotary stated only that there was a possibility that if Alice Corbiere was no longer excluded she as a member of the Band at the time the original action was brought would be entitled to share in any recovery. For the purpose of the motion before him I cannot conclude that this is such an error in principle as could vitiate the decision.

[51]      In consequence, the appeal from the order of the prothonotary is dismissed with costs payable by Darlene Corbiere to the applicants in the amount of $500.00 in any event of the cause.

COSTS

[52]      I have concluded that the application should be dismissed, and that costs should be assessed against the applicants. The factor I consider to be of prime significance in considering costs is the extent that the respondents unnecessarily separated their defence to the application.

[53]      At the hearing of this matter Mr. Corbiere was represented by his son, Gary Corbiere, a lawyer. Gary Corbiere also acted on his own behalf. The memorandum of fact and argument filed on behalf of those two respondents dealt with the issue of whether reserve land is as a matter of law subject to seizure under legal process, although it did reference and rely upon the memorandum of fact and law of the co-respondent, Darlene Corbiere. The oral argument canvassed in detail issues other than the jurisdictional issue.

[54]      Darlene Corbiere appeared through counsel at the hearing. The memorandum of fact and law filed on her behalf, raised squarely the issue of the Court's jurisdiction. The oral argument made by counsel was centrally directed to the issue of jurisdiction.

[55]      Joseph Corbiere also appeared through counsel at the hearing. The record filed on his behalf was filed at the hearing with leave. It contained no affidavit material and was brief. The legal issues raised were confined to the effect of sections 178 and 180 of the Bankruptcy and Insolvency Act. In oral argument, counsel in largest part adopted the submissions of counsel for the other individual respondents.

[56]      The respondent Minister filed no responding record, but did appear through counsel at the hearing. In his oral submission counsel for the Minister did not seek costs.

[57]      Bearing these facts in mind, I have concluded that the applicants should pay the following costs:

a)      The respondents John M. Corbiere and Gary Corbiere are entitled to one set of costs of this proceeding to be assessed in accordance with Column II of Tariff B of the Federal Court Rules, 1998;

b)      The respondent Darlene Corbiere is entitled to her costs assessed in accordance with Column III of Tariff B of the Federal Court Rules, 1998; and

c)      The respondent Joseph Corbiere is entitled to his costs of the appearance before me and the preparation for that hearing assessed in accordance with Column II of Tariff B of the Federal Court Rules, 1998.

ORDER

[58]      IT IS HEREBY ORDERED AND ADJUDGED THAT:

1.      The appeal of the respondent Darlene Corbiere from the order of Associate Senior Prothonotary Giles is dismissed.

2.      The application is dismissed.

3.      The respondent Darlene Corbiere shall pay to the applicants the costs of the appeal of the prothonotary's order to the applicants, fixed in the amount of $500.00, in any event of the cause.

4.      The applicants shall pay the costs of this application to the respondents as follows:

a)      The respondents John M. Corbiere and Gary Corbiere are entitled to one set of costs of this proceeding to be assessed in accordance with Column II of Tariff B of the Federal Court Rules, 1998;

b)      The respondent Darlene Corbiere is entitled to her costs assessed in accordance with Column III of Tariff B of the Federal Court Rules, 1998; and

c)      The respondent Joseph Corbiere is entitled to his costs of the appearance before me and the preparation for that hearing assessed in accordance with Column II of Tariff B of the Federal Court Rules, 1998.

"Eleanor R. Dawson"

     Judge

Ottawa, Ontario

December 11, 2000