Devil's Gap Cottagers (1982) Ltd. v. Rat Portage Indian Band et al., (2008) 331 F.T.R. 87 (FC)

• Judge: Dawson, J.
• Court: Federal Court (Canada)
• Case Date: May 07, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 331 F.T.R. 87 (FC);2008 FC 812

Devil's Gap Cottagers v. Rat Portage  Band (2008), 331 F.T.R. 87 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. JL.003

Devil's Gap Cottagers (1982) Ltd. (applicant) v. The Chief and Council of the Rat Portage Band No. 38B, Also known as the Wauzhushk Onigum Nation and the Said Rat Portage Band No. 38B and The Minister of Indian Affairs and Northern Development (respondents)

(T-1985-07; 2008 FC 812)

Indexed As: Devil's Gap Cottagers (1982) Ltd. v. Rat Portage Indian Band et al.

Federal Court

Dawson, J.

June 27, 2008.

Summary:

The applicant was a corporation whose 33 shareholders each owned a cottage located on a parcel of land that formed part of the reserve lands of the respondent First Nation. The parcel of land was leased to the applicant on January 4, 1988, by the Minister of Indian Affairs and Northern Development. The lease was entered into with the consent of the First Nation. An agreement was allegedly reached in 1997 with the First Nation to extend the term of the lease to December 31, 2020. The applicant asserted that, notwithstanding this agreement, the First Nation advised in 2007 that it did not want to extend or enter into a new lease with the applicant (impugned decision). The applicant sought judicial review, seeking a) a declaration that the refusal of the First Nation to extend the lease was a breach of a pre-existing contractual obligation owed to the applicant to extend the term of the lease to December 31, 2020; b) a declaration that the impugned decision was contrary to the law; c) an order of certiorari quashing the impugned decision; and d) an order of mandamus requiring the First Nation to honour the pre-existing contractual obligation and to request the Minister to extend the term of the lease to December 31, 2020.

The Federal Court dismissed the application.

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Federal Court - Decision of federal boards, commissions or tribunals (incl. ministers) - The applicant was a corporation whose 33 shareholders each owned a cottage located on a parcel of land that formed part of the reserve lands of the respondent First Nation - The parcel of land was leased to the applicant on January 4, 1988, by the Minister of Indian Affairs and Northern Development - The lease was entered into with the consent of the First Nation - In 1997, the applicant allegedly reached an agreement with the First Nation to extend the term of the lease to December 31, 2020 - The applicant asserted that, notwithstanding this agreement, the First Nation advised in 2007 that it did not want to extend or enter into a new lease with the applicant (impugned decision) - The applicant sought judicial review - The Federal Court dismissed the application - The First Nation was not acting as a federal board, commission or other tribunal when it made the impugned decision - No grant had been made to the First Nation under s. 60 of the Indian Act - It followed that a decision not to extend a lease did not fall within any aspect of the control or management of reserve lands dealt with in the Act - The applicant had pointed to no statutory power exercised by the First Nation in making the impugned decision - Indeed, the applicant framed the dispute to be "a breach of a pre-existing contractual obligation" owed to them - Further, given that nature of the First Nation's interest in the reserve lands, and the reservation of rights in Treaty No. 3, the decision to refuse to proceed with a lease extension agreement was not an exercise of any power conferred under the Act or any other Act of Parliament - Accordingly, the court did not have the jurisdiction to deal with an application for judicial review - See paragraphs 28 to 68.

Cases Noticed:

Morgan (J.G.) Development Corp. v. Canada (Minister of Public Works) et al., [1992] 3 F.C. 783; 58 F.T.R. 16 (T.D.), refd to. [para. 26].

Peace Hills Trust Co. v. Saulteaux First Nation - see Peace Hills Trust Co. v. Moccasin et al.

Peace Hills Trust Co. v. Moccasin et al. (2005), 281 F.T.R. 201; 2005 FC 1364, refd to. [para. 26].

Aeric Inc. v. Canada Post Corp. (Chairman), [1985] 1 F.C. 127; 56 N.R. 289 (F.C.A.), refd to. [para. 27].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 30].

DRL Vacations Ltd. v. Halifax Port Authority, [2006] 3 F.C.R. 516; 274 F.T.R. 293; 2005 FC 860, folld. [para. 31].

Gestion Complexe Cousineau (1989) Inc. v. Canada (Ministre des Travaux publics et Services gouvernementaux), [1995] 2 F.C. 694; 184 N.R. 260 (F.C.A.), refd to. [para. 33].

Wilcox v. Canadian Broadcasting Corp., [1980] 1 F.C. 326 (T.D.), refd to. [para. 33].

Jackson v. Canada (Attorney General) (1997), 141 F.T.R. 1 (T.D.), affd. (2000), 261 N.R. 100 (F.C.A.), refd to. [para. 33].

Sparvier v. Cowessess Indian Band No. 73, [1993] 3 F.C. 142; 63 F.T.R. 242 (T.D.), refd to. [para. 35].

Ermineskin v. Ermineskin Indian Band Council (1995), 96 F.T.R. 181 (T.D.), refd to. [para. 36].

Wood Mountain First Nation No. 160 v. Canada (Attorney General) et al. [2006] F.T.R. Uned. 764; 55 Admin. L.R.(4th) 293; 2006 FC 1297, refd to. [para. 37].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 44].

Gitga'at Development Corp. et al. v. Hill et al. (2007), 238 B.C.A.C. 205; 393 W.A.C. 205; 66 B.C.L.R.(4th) 349; 2007 BCCA 158, refd to. [para. 46].

McCabe v. Canada (Attorney General), [2001] 3 F.C. 430; 204 F.T.R. 49 (T.D.), dist. [para. 49].

687764 Alberta Ltd. et al. v. Canada (Minister of Health) (1999), 166 F.T.R. 87 (T.D.), dist. [para. 49].

Goodtrack v. Lethbridge et al. (2003), 242 Sask.R. 45 (Q.B.), refd to. [para. 56].

Williston v. Canada (Minister of Indian Affairs and Northern Development) et al. (2005), 274 F.T.R. 260; 2005 FC 829, dist. [para. 65].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), refd to. [para. 72].

Apotex Inc. v. Canada (Attorney General) - see Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc.

Mazhero v. Industrial Relations Board (Can.) et al. (2002), 292 N.R. 187; 2002 FCA 295, refd to. [para. 79].

Authors and Works Noticed:

Blackstone, William, Commentaries on the Laws of England, vol. 3, p. 23 [para. 1, footnote 1].

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2007 Looseleaf Update), §§ 1:1200 [para. 70]; 1:2252 [para. 71]; 1:2257 [para. 29]; 7:2320 [para. 48].

Wade, Henry William Rawson, and Forsythe, Christopher F., Administrative Law (9th Ed. 2004), p. 621 [para. 74].

Woodward, Jack, Native Law (1994) (Looseleaf), pp. 7, §§ 690; 700 [para. 58]; 259 [para. 40].

Counsel:

William G. Haight, for the applicant;

William J. Major, for the respondents, Chief and Council of the Rat Portage Band No. 38B et al.;

Paul Anderson, for the respondent, Minister of Indian Affairs and Northern Development.

Solicitors of Record:

Duboff Edwards Haight & Schachter, Winnipeg, Manitoba, for the applicant;

Keshen & Major, Kenora, Ontario, for the respondents;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on May 7, 2008, and supplementary written submissions were received on May 12 and 14, 2008, by Dawson, J., of the Federal Court, who delivered the following judgment, at Ottawa, Ontario, on June 27, 2008.