In some kind of bizarro reverse world, Kyle Beauvais recently argued that Quebec provincial law, rather than federal law, should apply in a dispute directly concerning Kahnawake Mohawk reserve land. Beauvais asserted that there “is a complete and utter absence of federal law governing the dispute” and that the Quebec Civil Code should apply.
Yikes. Talk about inviting the fox into the chicken coop. The Federal Court of Canada rejected his argument. Here’s the decision.
9 To found jurisdiction in the Federal Court over a particular cause of action or claim to relief there must exist (a) a statutory grant of jurisdiction by Parliament; (b) an existing body of federal law essential to the disposition of the case; and (c) the law must be a law of Canada: see ITO — International Terminal Operators Ltd. v Miida Electronics Inc., [1986] 1 SCR 752, 28 DLR (4th) 641at p 766.
10 This motion cannot succeed because it is not plain and obvious that the Court lacks jurisdiction to hear and resolve the Plaintiff’s claim. There are central aspects to the Plaintiff’s allegations which may well turn on the application of federal law and, in particular, the Indian Act. The clearest support for this comes from the decision by Justice Andrew MacKay in Jones Estate v Louis et al (1996), 108 FTR 81, 3 CNLR 85. Jones was a case involving competing claims to possession of land on the Okanagan Indian Reserve based on a purported transfer agreement between the parties. Justice MacKay noted that the Indian Act “establishes the legislative framework relating to interests in lands on a reserve” (see para 6) including matters of transfer and possession (see para 8). He also noted the effect of s 24 of the Indian Act, which vests in the Minister the absolute authority to approve a land transfer between members of a band. According to Justice MacKay, in the absence of ministerial approval of a transfer no private agreement or deed of transfer between band members had any legal effect. This led Justice MacKay to conclude that until the Minister gave approval for a transfer, a party was free to withdraw from the arrangement at any time. Justice MacKay went on to address the specific issue of the Federal Court’s jurisdiction over the dispute. He held that the Federal Court had concurrent jurisdiction under ss 17(4) of the Federal Courts Act, RS, 1985, c F-7 to deal with a matter “where the Crown may be under an obligation, in respect of which there are or may be conflicting claims” [emphasis added to quote]. The obligation of the Minister under s 24 of the Indian Act to consider the approval of a land transfer was sufficient to ground this Court’s jurisdiction.
11 In my view the decision in Jones, above, is indistinguishable from the circumstances of this case. Section 24 of the Indian Act could also be determinative of the outcome of this case, whatever the nature or details of the arrangement between the parties may have been. It is not my role on a motion to strike to decide if Justice MacKay was correct in finding as he did. It is sufficient that the decision in that case raises an arguable case in favour of this Court’s jurisdiction (ie. it is not plain and obvious that the Court lacks jurisdiction) and clearly it does.
12 In Rhine v Canada, [1980] 2 SCR 442, 116 DLR (3d) 385, the Court recognized that the enforcement of an ordinary contractual obligation may still fall within the jurisdiction of the Federal Court provided that there is valid federal law which governs the transaction. In that case, it was necessary to resort to the underlying federal statute in order to enforce what was essentially a borrowing agreement; this was found sufficient to underpin the jurisdiction of the Federal Court. The same type of statutory framework exists here under the Indian Act as the legislation deals with the federal Crown’s authority to control the use and possession of reserve lands. Section 21 of the Indian Act provides for the establishment of a Reserve Land Register and s 24 recognizes the possibility of transfer of possessory interests in reserve lands subject to the Minister’s approval. In the face of these provisions and having regard to the holding of the Supreme Court of Canada in Derrickson v Derrickson, [1986] 1 SCR 285, 26 DLR (4th) 175 that “the right to possession of lands on an Indian reserve is manifestly of the very essence of the federal exclusive legislative power” it is arguable that provincial law does not apply to disputes of this kind. It seems to me that band custom and federal common law (including Aboriginal title) are the more likely sources for the principles to be applied to this dispute than is the Civil Code of Quebec: see Roberts v Canada, [1989] 1 SCR 322, 25 FTR 161. In any event, the incidental application of provincial law to a matter that must be determined primarily by federal law is not a bar to this Court’s jurisdiction: see ITO — International Terminal Operators Ltd. v Miida Electronics Inc., above, at p 781.
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