Date: 19980130
Docket: T-491-97
BETWEEN:
BRITISH COLUMBIA NATIVE WOMEN'S SOCIETY
TERESSA NAHANEE and JANE GOTTFRIEDSON
Plaintiffs / Respondents
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
SQUAMISH NATION, in its capacity as party to the
Framework Agreement on First Nations Land Management,
and on behalf of ALL OTHER FIRST NATION PARTIES to the
said Framework Agreement on First Nations Land Management
Applicants
REASONS FOR ORDER
WETSTON J.
[1] By motion, dated 24 July 1997, the applicants, Squamish Nation, have requested to be joined as defendants in an action between the British Columbia Native Women's Society, Teressa Nahanee and Jane Gottfriedson ("the plaintiffs"), and Her Majesty the Queen ("the defendant"), under Rule 1716(2)(b) of the Federal Court Rules. The applicants also amended the notice of motion in order to strike certain paragraphs of the statement of claim provided they were successful in being joined as defendants. However, for reasons that I provided during the hearing, I decided that it was inappropriate to consider the motion to strike at this time.
[2] In their statement of claim, dated 19 March 1997, the plaintiffs have alleged that the defendant has breached her fiduciary obligations to all Indians, within the meaning of the Indian Act, including the plaintiffs Nahanee and Gottfriedson. It is alleged that the defendants did so by failing to change the land title system governed under the Act in order to provide for a process that protects married Indian women who live on reserves with regard to the division and occupancy of the matrimonial home should their marriages end.
[3] The plaintiffs have also claimed that the defendant"s failure to provide for such protection in the Act violates section 15(1) of the Canadian Charter of Rights and Freedoms. Moreover, it is alleged that the failure to provide such protection contributes to circumstances whereby the rights of married Indian women on reserves are violated under s. 7 of the Charter by the inconsistent decisions of provincial trial courts concerning matrimonial disputes. Further, the plaintiffs have claimed that the defendant has both breached her fiduciary duties, and violated s. 15(1) of the Charter, by negotiating, and taking steps to implement, the Framework Agreement on First Nations Land Management (the "Agreement"), between herself and certain First Nations, without including matrimonial property protection for married Indian women on reserves. The Agreement is intended to establish a framework whereby management of reserve lands can be devolved by the federal government to First Nations, upon their development of a satisfactory land code.
[4] The applicants argue that they should be joined as defendants in the plaintiffs" action against Her Majesty, as their rights and interests, as signatories to the Agreement , will be directly affected by the outcome of the action. They argue that, so long as the Court has jurisdiction to hear the matter, it is within its discretion, pursuant to Rule 1716(b), to determine whether to add a party as defendant. It is submitted that the Court has jurisdiction to review this matter under s. 17(4) of the Federal Court Act, and as such, should exercise its discretion under Rule 1716(b) to add the applicants as defendants. It should do so because the outcome of the action could affect the applicants' rights with respect to the Agreement, and their presence before the Court is necessary to ensure that all matters in dispute in the action, particularly with respect to the declaratory relief sought by the plaintiffs concerning the Agreement, may be effectively and completely adjudicated upon.
[5] The applicants also contend that the Court may, of its own accord, determine that it does not have jurisdiction to entertain the plaintiffs" action against the defendant, or certain portions thereof, regardless of whether the applicants are added as defendants. It is argued that the plaintiffs do not have standing to pursue their claims, and that their claims with respect to the Agreement are both premature and speculative.
[6] In order for the applicants to be added as defendants to this action, they must demonstrate that a cause of action exists between them and the plaintiffs that falls within the jurisdiction of this Court. In other words, in order to determine whether a party should be added to an existing action, the Court should consider whether any of the claims advanced against the existing defendant could stand alone as against the proposed defendant, being properly within the Court"s jurisdiction to review. If none of the existing claims can stand alone as against the proposed party, the proposed party cannot be added to the action: Desbiens v. The Queen, [1974] 2 F.C. 20 (F.C.T.D.) at 23; Waterside Cargo Cooperative v. National Harbours Board (1979), 107 D.L.R. (3d) 576 (F.C.T.D.); & Dene Nation v. The Queen, [1983] 1 F.C. 146 (F.C.T.D.) at 148, 150.
[7] This approach should not be construed, as the applicants contend, as an "additional test" to be used to determine whether a party should be added in joinder cases. Rather, this analysis merely answers the first part of the three-part test to determine whether the Federal Court has jurisdiction to hear a matter, enunciated by the Supreme Court of Canada in Miida Electronics Inc.v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752 at 766, that there must be a statutory grant of jurisdiction by the Parliament of Canada: Powderface v. Baptiste (1996), 118 F.T.R. 258; Westerlee Development Ltd. v. Canada (1996), 116 F.T.R. 57 (Proth.). The two other requirements are that 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 that the law upon which the case is to be based must be a "law of Canada" as that phrase is used in s. 101 of the Constitution Act, 1867.
[8] In consideration of motions for joinder of parties, determination of whether there is a statutory grant of jurisdiction by the Parliament of Canada requires the Court to consider whether a claim exists between the proposed parties, and, if so, upon what statutory grant that claim can be based.
[9] As between the plaintiffs and applicants, it is my opinion that no claim has been identified upon which an action could be based between them. There is no dispute as to land between the parties, as there was in Paul v. Kingsclear Indian Band (T-2078-96, 28 May 1997, F.C.T.D.) or Jones Estate v. Louis (T-1687-93, 23 February 1996, F.C.T.D.), nor has there been a suggestion that the applicants have acted as agents of the defendant: Cooper v. Tsartlip Indian Band (Council) (1994), 88 F.T.R. 21; reversed on another point at (1996), 199 N.R. 126 (F.C.A.). The plaintiffs" claims are made strictly against Her Majesty. While the applicants clearly have a substantial interest in the claims, there is nothing upon which to found an action between them.
[10] The applicants submit that s. 17(4) of the Federal Court Act provides this Court with jurisdiction to add them as defendants to the action, under Rule 1716(b). They say that if each of the requirements of the provision are satisfied, the Court has jurisdiction to hear and determine the matter with respect to all of the defendants involved (whether existing or proposed). Those requirements are that there be (1) a proceeding, (2) to determine a dispute, (3) where the Crown is or may be under an obligation, (4) in respect of which there are or may be conflicting claims: Roberts v. Canada, [1989] 1 S.C.R. 322. It is submitted that it need not be determined whether an action could stand alone as between the plaintiff and proposed defendant.
[11] I cannot accept applicants" argument. Section 17(4) of the Act provides the Court with concurrent original jurisdiction to determine disputes where the Crown is or may be under an obligation, in respect of which there are, or may be, conflicting claims. Examples of such cases are interpleader proceedings (governed under Rule 604 of the Federal Court Rules ), or cases where an action exists between two parties in respect of which the Crown holds property: Roberts, supra, Paul, supra & Jones Estate, supra. This is not such a case. There is no identifiable claim as between the plaintiffs and applicants. With no identifiable claim, there can be no "proceeding" upon which to apply the Roberts analysis: Powderface, supra at 266-267.
[12] The applicants have also argued that this Court may, of its own accord, determine whether the plaintiffs have standing to bring, and the Court has jurisdiction to hear, their action against the defendant. Generally, as a creature of statute, the Court may only act under the authority provided it under the Federal Court Act or Rules, or another statute: Roberts, supra & Union Oil Co. of Can. Inc. v. The Queen, [1974] 2 F.C. 452 (T.D.); affirmed [1976] 1 F.C. 74 (C.A.); affirmed (1975), 72 D.L.R. (3d) 82n (S.C.C.).
[13] If the Court does have an inherent jurisdiction to strike down a statement of claim, or a portion thereof, I am of the opinion that this would not be an appropriate case in which to exercise it. Given my decision not to add the applicants as parties, I do not believe it is appropriate for this Court to entertain an argument regarding the standing of a party to bring this action as against the Crown. It is for the defendant to make such an argument, and Counsel for the defendant made no representations whatsoever on this motion.
[14] The issue of addition of the applicants to the action, as intervenors, was raised during the hearing. However, the applicants clearly indicated that they did not wish to be added as intervenors. Moreover, they contended that the Court could not order that they be added as intervenors without their consent: Chitty v. C.R.T.C., [1978] 1 F.C. 830 (T.D.) at 834-835.
[15] Accordingly, the motion is dismissed. The plaintiffs/respondents shall have their costs of this motion.
"Howard I. Wetston"
Judge
Toronto, Ontario
January 30, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-491-97
| STYLE OF CAUSE: BRITISH COLUMBIA NATIVE WOMEN'S SOCIETY, TERESSA NAHANEE and JANE GOTTFRIEDSON |
- and -
- and -
| SQUAMISH NATION, in its capacity as party to the Framework Agreement on First Nations Land Management, and on behalf of ALL OTHER FIRST NATION PARTIES to the said Framework Agreement on First Nations Land Management |
DATE OF HEARING: DECEMBER 4, 1997
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
REASONS FOR JUDGMENT BY: WETSTON, J.
DATED: JANUARY 30, 1998
APPEARANCES: Ms. Barbara Findlay
For the Plaintiffs/Respondents
Ms. Darlene Prosser
Ms. Heather Frankson
For the Defendant
Mr. William B. Henderson
For the Applicants
Mr. Harry Slade
| _) Agents for Service on the Applicants |
- 2 -
SOLICITORS OF RECORD:
Ms. Barbara Findlay
Dahl Findlay Connors & Evans
620 - 1033 Davie Street
| (_) Vancouver, British Columbia |
For the Plaintiffs/Respondents
Ms. Darlene Prosser
Ms. Heather Frankson
Department of Justice
Vancouver Regional Office
Suite 900
840 Howe Street
Vancouver, British Columbia
V6Z 2S9
For the Defendant
Mr. William B. Henderson
Barrister & Solicitor
Suite 2010
88 Bloor Street East
Toronto, Ontario
M4W 3G9
For the Applicants
Mr. Harry Slade
Ratcliff & Company
Barristers and Solicitors
500 - 221 West Esplanade
North Vancouver, British Columbia
V7M 3J3
Agents for Service on the Applicants
FEDERAL COURT OF CANADA
Date: 19980130
Docket: T-491-97
BETWEEN:
| BRITISH COLUMBIA NATIVE WOMEN'S SOCIETY, TERESSA NAHANEE and JANE GOTTFRIEDSON |
Plaintiffs/Respondents
- and -
Defendant
- and -
| SQUAMISH NATION, in its capacity as party to the Framework Agreement on First Nations Land Management, and on behalf of ALL OTHER FIRST NATION PARTIES to the said Framework Agreement on First Nations Land Management |
Applicants
REASONS FOR ORDER
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