Canadian Pacific Ltd. v. Matsqui Indian Band

Canadian Pacific Ltd. v. Matsqui Indian Band
Collection
Supreme Court Judgments
Date
1995-01-26
Report
[1995] 1 SCR 3
Case number
23643
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Federal Court of Appeal
Subjects
Aboriginal law
Administrative law
Notes
SCC Case Information: 23643
Decision Content
Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3
Matsqui Indian Band and Matsqui Indian
Band Council Appellants
v.
Canadian Pacific Limited and
Unitel Communications Inc. Respondents
and
Indian Taxation Advisory Board Intervener
and between
Siska Indian Band and Siska Indian Band Council,
Kanaka Bar Indian Band and Kanaka Bar Indian Band Council,
Nicomen Indian Band and Nicomen Indian Band Council,
Shuswap Indian Band and Shuswap Indian Band Council,
Skuppah Indian Band and Skuppah Indian Band Council and
Spuzzum Indian Band and Spuzzum Indian Band Council Appellants
v.
Canadian Pacific Limited Respondent
and
Indian Taxation Advisory Board Intervener
Indexed as: Canadian Pacific Ltd. v. Matsqui Indian Band
File No.: 23643.
1994: October 11; 1995: January 26.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the federal court of appeal
Administrative law ‑‑ Tribunals ‑‑ Adequacy of tribunal ‑‑ Issue of jurisdiction ‑‑ Tribunals set up by First Nations bands to consider issue of assessment for lands located within reserve ‑‑ Appeal process culminating with review by courts ‑‑ Tribunal members without fixed salary and security of tenure ‑‑ Claim that land not within reserve ‑‑ Whether consideration of issue compelled to follow alternative appeal route or whether courts can grant immediate judicial review ‑‑ Whether tribunals meeting criteria of independent judiciary ‑‑ Indian Act, R.S.C., 1985, c. I‑5, s. 83(1) , (3) ‑‑ Federal Court Act, R.S.C., 1985, c. F‑7, ss. 18 , 18.3(1) , 18.5 , 24(1) .
Aboriginal law ‑‑ Tribunals set up by First Nations bands to consider issue of assessment for lands located within reserve ‑‑ Appeal process culminating with review by courts ‑‑ Tribunal members without fixed salary and security of tenure ‑‑ Claim that land not within reserve ‑‑ Whether consideration of issue compelled to follow alternative appeal route or whether courts can grant immediate judicial review ‑‑ Whether tribunals meeting criteria of independent judiciary.
Amendments to the Indian Act enabled First Nations bands to pass their own by‑laws for the levying of taxes against real property on reserve lands. The appellant bands each developed taxation and assessment by‑laws which were implemented following the Minister's approval. The Matsqui Band's assessment by‑law provided for the appointment of Courts of Revision to hear appeals from the assessments, the appointment of an Assessment Review Committee to hear appeals from the decisions of the Courts of Revision and, finally, an appeal on questions of law to the Federal Court, Trial Division from the decisions of the Assessment Review Committee. The other bands provided for a single hearing before a Board of Review, with an appeal to the Federal Court, Trial Division. All the by‑laws provided that members of the appeal tribunals could be paid, but did not mandate that they indeed be paid, and gave no tenure of office so that members might not be appointed to sit on future assessment appeals. Members of the bands could be appointed to the tribunals.
The appeals were heard concurrently at all levels and turned on essentially identical facts. Each appellant sent the respondent, Canadian Pacific Limited ("CP"), a notice of assessment in respect of the land forming its rail line which ran through the reserves. The Matsqui Band also sent a notice of assessment to the respondent, Unitel Communications Inc., which laid fibre optic cables on the CP land.
The respondents commenced an application for judicial review in the Federal Court, Trial Division, requesting that the assessments be set aside. CP claimed that its land could not be taxed by the appellant bands because it possessed fee simple in the rail line and the rail line therefore formed no part of the reserve lands. The appellants brought a motion to strike the respondents' application for judicial review on the grounds that: (a) the application was directed against a decision which could not be the subject of judicial review because of an eventual right of appeal to the Federal Court, Trial Division or, alternatively; (b) the assessment by‑laws provided for an adequate alternative remedy ‑‑ an eventual right of appeal to the Federal Court, Trial Division. The motions judge accepted the second of these arguments and struck out the respondents' application for judicial review. The Federal Court of Appeal allowed an appeal from this decision, set it aside and dismissed the appellants' motion to strike. At issue was whether the motions judge properly exercised his discretion to strike the respondents' application for judicial review, thereby requiring them to pursue their jurisdictional challenge through the appeal procedures established by the appellant bands. The determination of whether or not the land was "in the reserve" was not at issue.
Held (L'Heureux-Dubé, Sopinka, Gonthier and Iacobucci JJ. dissenting): The appeal should be dismissed.
Adequacy of the Appeal Tribunals and the Exercise of Discretion on Judicial Review
Per Lamer C.J. and L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: Administrative tribunals can examine the boundaries of their jurisdiction although their decisions in this regard lack the force of res judicata. Their determinations are reviewable on a correctness standard and will generally be afforded little deference. Here, the jurisdiction of the appeal tribunals includes both the classification of taxable property and the valuation of that property, as the words "assessment"/"évaluation" used in s. 83(3) of the Indian Act refer to the entire process undertaken by tax assessors. A purposive analysis favours this "process approach". Parliament clearly intended the bands to assume control over the assessment process on the reserves, since the entire scheme would be pointless if assessors were unable to engage in the preliminary determination of whether land should be classified as taxable and thereby placed on the taxation rolls.
The Federal Court, Trial Division and the appeal tribunals established under s. 83(3) of the Indian Act have concurrent jurisdiction to hear and decide the question of whether the respondents' land is "in the reserve". In keeping with the traditionally discretionary nature of judicial review, judges of the Federal Court, Trial Division have discretion in determining whether judicial review should be undertaken. In determining whether to undertake judicial review rather than requiring an applicant to proceed through a statutory appeal procedure, courts should consider: the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision‑making and remedial capacities). The category of factors should not be closed, as it is for courts in particular circumstances to isolate and balance the factors that are relevant.
The adequacy of the statutory appeal procedures created by the bands, and not simply the adequacy of the appeal tribunals, had to be considered because the bands had provided for appeals from the tribunals to the Federal Court, Trial Division. Certain factors are relevant only to the appeal tribunals (i.e., the expertise of members, or allegations of bias) or to the appeal to the Federal Court, Trial Division (i.e., whether this appeal is intra vires the bands). In applying the adequate alternative remedy principle, all these factors must be considered in order to assess the overall statutory scheme.
It was not an error for the motions judge to consider the policy underlying the scheme in determining how to exercise his discretion to undertake judicial review. He could reasonably conclude that, since the scheme was part of the policy promoting Aboriginal self-government, allowing the respondents to circumvent the appeal procedures would be detrimental to the overall scheme.
The bands have jurisdiction to create by‑laws with appeals to the Federal Court, Trial Division. Section 18.5 of the Federal Court Act does not set down conditions for the creation of statutory appeals from decisions of federal tribunals; it only limits the judicial review powers of the Federal Court, Trial Division where a statutory right of appeal exists. Section 24(1) provides that the Trial Division has exclusive original jurisdiction to hear and determine all appeals that, under any Act of Parliament, may be taken to the court. The appeal procedures here fell squarely within this section because they were authorized "under" s. 83(3) of the Indian Act .
Parliament intended the bands to have considerable scope for creating appeal procedures through their by‑laws, with the caveat that such procedures would be "subject to the approval of the Minister" (s. 83(1) ). The Minister approved all of the by‑laws at issue, clearly believing that the power to create appeals to the Federal Court, Trial Division was intra vires the bands. The courts should not narrow the scope of possible appeal procedures available to the bands.
The question to be determined was whether the appeal tribunals here were adequate fora; it was not necessary to consider whether they were better fora than the courts. They allowed for a wide‑ranging inquiry into all of the evidence and were considered by Parliament to be equipped to deal with complex issues that might come before them. Section 18.3(1) of the Federal Court Act allows an appeal tribunal to seek the guidance of the courts if it encounters legal, procedural or other issues which it cannot resolve.
It was reasonable for the motions judge to consider the following factors in exercising this discretion: (1) the tribunals were adequate for purposes of conducting a far-reaching and extensive inquiry at first instance; (2), the statutory appeal procedure provided an appeal from the tribunals to the Federal Court, Trial Division where a decision could be taken with the force of res judicata; and (3), the policy of promoting the development of Aboriginal governmental institutions favoured resolving the dispute within the statutory appeal procedures.
Per La Forest J.: The Federal Court, Trial Division and the appeal tribunals established under s. 83(3) of the Indian Act have concurrent jurisdiction to address the question whether the respondents' land is "in the reserve". The motions judge, however, did not exercise his discretion properly in deciding that the band appeal tribunal system constitutes an adequate alternative remedy in this context. Determining whether the respondents' land is "in the reserve" is a jurisdictional question that brings into play discrete and technical legal issues falling outside the specific expertise of the band appeal tribunals. It is ultimately a matter for the judiciary. The band appeal procedure is not an adequate remedy since any decision by a band appeal tribunal regarding this question will lack the force of res judicata and will be reviewable by the Federal Court, Trial Division on a standard of correctness. The respondents should be allowed the opportunity to have this jurisdictional question determined with the force of res judicata by the Federal Court at the outset without being compelled to proceed through a lengthy, and possibly needless, band appeal process.
Per McLachlin and Major JJ.: The adequate alternative remedies principle does not apply to a jurisdictional issue. Here, the assessment review board has jurisdiction to determine all questions relating to the valuation of land "within the reserve" but has no jurisdiction to determine whether a parcel of land is "within the reserve". Deciding whether land is "within the reserve" or not requires consideration of a variety of factors, such as real property law, survey results, and treaty interpretations, in which the board has no expertise and over which there is no evidence that Parliament had any intention to grant the board jurisdiction.
The board here would be deciding upon its jurisdiction when deciding whether or not the land was "within the reserve" as opposed to acting within its jurisdiction. A court, on an application for judicial review on this issue, could apply the standard of correctness. Where the fundamental issue of lack of jurisdiction is raised as the only issue, the respondent should not be compelled to proceed needlessly to the appeal tribunal because it is not an adequate alternative remedy in that it cannot determine the question. Rather, a party can either have the tribunal consider the jurisdictional matter (but this option is not mandatory) or have recourse directly to court on the jurisdictional matter.
Institutional Impartiality
Per Lamer C.J. and L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: Impartiality refers to the state of mind or attitude of the decison-maker whereas independence involves both the individual independence of members of the tribunal and the institutional independence of the tribunal. Institutional impartiality and institutional independence were both at issue here. With respect to impartiality, if no reasonable apprehension of bias arises in the mind of a fully informed person in a substantial number of cases, allegations of an apprehension of bias cannot be brought on an institutional level but must be dealt with on a case‑by‑case basis. This determination must be made having regard for a number of factors including, but not limited to, the potential for conflict between the interests of tribunal members and those of the parties who appear before them.
No apprehension of bias arose from want of structural impartiality. It is appropriate to have band members sit on appeal tribunals to reflect community interests. A pecuniary interest that members of a tribunal might be alleged to have, such as an interest in increasing taxes to maximize band revenue, is far too attenuated and remote to give rise to a reasonable apprehension of bias at a structural level. No personal and distinct interest in money raised exists on the part of tribunal members, and any potential for conflict between the interests of members of the tribunal and those of parties appearing before them was speculative at this stage. Any allegations of bias which might arise should be dealt with on a case‑by‑case basis.
Institutional Independence
Per L'Heureux-Dubé, Sopinka, Gonthier and Iacobucci JJ.: The reasons of Lamer C.J. were agreed with on all issues, except the issue of lack of institutional independence, as a ground for finding the motions judge erred in exercising his discretion to refuse judicial review.
First, the issue of bias was not properly raised at first instance. Second, appellate courts must defer to the exercise of the motion judge's discretion to strike out unless the conclusion is unreasonable or has been reached on the basis of irrelevant or erroneous considerations, a wrong principle or as a result of insufficient or no weight having been given to a relevant consideration. The discretion to exercise judicial review is not being assessed de novo in this Court. The motions judge here did not err in declining to consider the question of reasonable apprehension of lack of institutional independence at this stage.
The essential conditions of institutional independence in the judicial context need not be applied with the same strictness in the case of administrative tribunals. Conditions of institutional independence must take into account their operational context. This context includes that the band taxation scheme was part of a nascent attempt to foster Aboriginal self‑government. This contextual consideration applies to assessing whether the bias issue was premature and extends to the entire exercise of judicial discretion. Furthermore, before concluding that the by‑laws in question deprive the band taxation tribunals of institutional independence, they should be interpreted in the context of the fullest knowledge of how they are applied in practice. The reasonable person, before making a determination of whether or not he or she would have a reasonable apprehension of bias, should have the benefit of knowing how the tribunal operates in actual practice. Case law has tended to consider the institutional bias question after the tribunal has been appointed and/or actually rendered judgment. It is not safe to form final conclusions as to the workings of this institution on the wording of the by-laws alone. Knowledge of the operational reality of these missing elements may very well provide a significantly richer context for objective consideration of this institution and its relationships.
Per Lamer C.J. and Cory J.: Allegations of bias arising from the want of institutional independence cannot be avoided by simply deferring to the exercise of discretion by the motions judge. A lack of sufficient institutional independence in the bands' tribunals is a relevant factor which must be taken into account in determining whether the respondents should be required to pursue their jurisdictional challenge before those tribunals. Although the larger context of Aboriginal self-government informs the determination of whether the statutory appeal procedures established by the appellants constitute an adequate alternative remedy, this context is not relevant to the question of whether the bands' tribunals give rise to a reasonable apprehension of bias at an institutional level. Principles of natural justice apply to the bands' tribunals and are not diluted by a federal policy of promoting Aboriginal self-government.
Judicial independence is a long standing principle of our constitutional law which is also part of the rules of natural justice even in the absence of constitutional protection. Natural justice requires that a party be heard by a tribunal that not only is independent but also appears to be so. The principles for judicial independence accordingly apply in the case of an administrative tribunal functioning as an adjudicative body. A strict application of the principles for judicial independence is, however, not always warranted. Therefore, while administrative tribunals are subject to these principles, the test for institutional independence must be applied in light of the functions being performed by the particular tribunal at issue. The requisite level of institutional independence (i.e., security of tenure, financial security and administrative control) depends on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office. Cases dealing with the security of the person require a high level of independence and warrant a stricter application of the applicable principles. Here, the bands' administrative tribunals are adjudicating disputes about property taxes and a more flexible approach is clearly warranted.
Even given a flexible application of the principles for judicial independence, a reasonable and right‑minded person, viewing the whole procedure in the assessment by‑laws, would have a reasonable apprehension that members of the appeal tribunals are not sufficiently independent. Three factors lead to this conclusion: (1) the complete absence of financial security for members of the tribunals; (2) the complete absence of security of tenure (in the case of Siska), or ambiguous and therefore inadequate security of tenure (in the case of Matsqui); and (3) the fact that the tribunals, whose members are appointed by the Band Chiefs and Councils, are being asked to adjudicate a dispute pitting the interests of the bands against outside interests. Effectively, the tribunal members must determine the interests of the very people, the bands, to whom they owe their appointments. These three factors in combination lead to the conclusion that the tribunals lack sufficient independence in this case; any one factor in isolation would not necessarily lead to the same conclusion.
Although the allegations of an absence of institutional impartiality were premature, the allegations surrounding institutional independence were not. The two concepts are quite distinct. It is mere speculation to suggest that members of the tribunals will lack impartiality, since it is impossible to know in advance of an actual hearing what these members think. In assessing the institutional independence of the appeal tribunals, however, the inquiry focuses on an objective assessment of the legal structure of the tribunals, of which the by‑laws are conclusive evidence. The by-laws merely afford the Band Chiefs and Councils the discretion to provide institutional independence. It is inappropriate to leave issues of tribunal independence to the discretion of those who appoint tribunals.
Cases Cited
By Lamer C.J.
Applied: R. v. Lippé, [1991] 2 S.C.R. 114; considered: Abel Skiver Farm Corp. v. Town of Ste-Foy, [1983] 1 S.C.R. 403; Terrasses Zarolega Inc. v. Régie des installations olympiques, [1981] 1 S.C.R. 94; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Généreux, [1992] 1 S.C.R. 259; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; referred to: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; MacBain v. Lederman, [1985] 1 F.C. 856; Sethi v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 552; Mohammad v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 363; IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282.
By Major J.
Considered: Abel Skiver Farm Corp. v. Town of Ste‑Foy, [1983] 1 S.C.R. 403; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49; referred to: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230.
By Sopinka J. (dissenting)
Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Charles Osenton & Co. v. Johnston, [1942] A.C. 130; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Valente v. The Queen, [1985] 2 S.C.R. 673; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; R. v. Lippé, [1991] 2 S.C.R. 114; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Alex Couture Inc. v. Canada (Attorney-General) (1991), 83 D.L.R. (4th) 577, leave to appeal refused, [1992] 2 S.C.R. v; MacBain v. Lederman, [1985] 1 F.C. 856; Mohammad v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 363.
Statutes and Regulations Cited
Assessment Act, R.S.B.C. 1979, c. 21.
Assessment Act, R.S.N. 1990, c. A‑18.
Assessment Act, R.S.N.B. 1973, c. A‑14.
Assessment Act, R.S.N.S. 1989, c. 23.
Assessment Appeal Board Act, R.S.A. 1980, c. A‑46.
Assessment By‑law [Siska By-law], ss. 40(1), (2), (3), (4), 41(1)(a), (b), (c), (d), (e), (4), 45(1)(a), (b), (c), (d).
Assessment Review Board Act, R.S.O. 1990, c. A.32.
Canadian Charter of Rights and Freedoms, s. 11 (d).
Federal Court Act, R.S.C., 1985, c. F‑7 [am. 1990, c. 8], ss. 18(1) (a), (b), 18.1(1) , (3) (a), (b), (4) (a), 18.3(1) , 18.4(1) , (2) , 18.5 , 24(1) , (2) , 26(1) .
Indian Act, R.S.C., 1985, c. I‑5 [am. c. 17 (4th Supp.)], ss. 2(1) (a), 83(1) (a), (2) , (3) , (4) , (5) , (6) .
Interpretation Act, R.S.C. 1985, c. I‑21, s. 2(1) (a), (b).
Island Regulatory and Appeals Commission Act, S.P.E.I. 1991, c. 18.
Municipal Board Act, S.S. 1988‑89, c. M‑23.2.
Municipal Taxation Act, S.Q. 1979, c. 72.
Property Assessment By-law [Matsqui By‑law], ss. 27 (A), (B), (C), (D), 32 (A)(1), (2), (3), (4), (G), (J), 35 (A)(1), (2), (3), (4), (B), (C), 49 (A), Schedule 10.
Authors Cited
Canada. Indian and Northern Affairs. Indian Taxation Advisory Board. Introduction to Real Property Taxation on Reserve. Ottawa: Minister of Supply and Services Canada, 1990.
APPEAL from a judgment of the Federal Court of Appeal, [1993] 2 F.C. 641, 153 N.R. 307, [1994] 1 C.N.L.R. 66, allowing an appeal from a judgment of Joyal J., [1993] 1 F.C. 74, 58 F.T.R. 23, striking out an application for judicial review. Appeal dismissed, L'Heureux-Dubé, Sopinka, Gonthier and Iacobucci JJ. dissenting.
Arthur Pape and Alisa Noda, for the appellants Matsqui Indian Band and Matsqui Indian Band Council.
John L. Finlay and Fiona C. M. Anderson, for the appellants Siska Indian Band and Siska Indian Band Council, Kanaka Bar Indian Band and Kanaka Bar Indian Band Council, Nicomen Indian Band and Nicomen Indian Band Council, Shuswap Indian Band and Shuswap Indian Band Council, Skuppah Indian Band and Skuppah Indian Band Council, Spuzzum Indian Band and Spuzzum Indian Band Council.
Norman D. Mullins, Q.C., and W. A. S. Macfarlane, for the respondents.
Leslie J. Pinder, for the intervener.
The judgment of Lamer C.J. and Cory J. was delivered by
//Lamer C.J.//
Lamer C.J. --
I. Factual Background
1 In 1988, amendments to the Indian Act, R.S.C., 1985, c. I-5 , as amended by R.S.C. 1985, c. 17 (4th Supp.), came into force which enable Indian bands to establish their own by-laws for the levying of taxes against real property on their reserve lands. These amendments came about after extensive consultations and negotiations between the federal and provincial governments, and representatives of Aboriginal peoples.
2 The appellants are Indian bands with reserves in British Columbia. Their cases have been heard concurrently at all levels and turn on essentially identical facts. In 1992, pursuant to the new tax assessment provisions of the Indian Act , the appellants each developed taxation and assessment by-laws which were implemented following the approval of the Minister of Indian Affairs and Northern Development. The appellant Matsqui Band's assessment by-law provides for the assessment of all real property within the reserve, the preparation of an assessment roll, the giving to all persons concerned of notices of assessment, the appointment of Courts of Revision to hear appeals from the assessments, the appointment of an Assessment Review Committee to hear appeals from the decisions of the Courts of Revision and, finally, an appeal on a question of law to the Federal Court, Trial Division from the decisions of the Assessment Review Committee. The by-laws of the other appellant bands provide for a single hearing before a Board of Review, with an appeal to the Federal Court, Trial Division.
3 Pursuant to those assessment by-laws, notices were sent by each of the appellants to the first respondent, Canadian Pacific Limited ("CP"), in respect of a strip of land running through the reserves over which CP had laid railway tracks. The appellant Matsqui Band also sent a notice of assessment to the second respondent, Unitel Communications Inc. ("Unitel"), which has laid fibreoptic cables on the CP land.
4 The respondents commenced a judicial review application in the Federal Court, Trial Division, requesting that the assessments be set aside. CP and Unitel argued that under s. 83(1) of the Indian Act , the Indian bands have authority to tax only land which is "in the reserve". The application was supported by affidavit evidence that the land in question is vested in CP, which had acquired it from the Crown in right of Canada by letters patent issued on August 25, 1891, and had registered it in the New Westminster Land Title Office on August 27, 1891. According to the respondents, land owned by CP is not within the reserves of the appellants, since the Indian Act defines a "reserve" as "a tract of land, the legal title to which is vested in Her Majesty". CP therefore claimed that its land cannot be taxed by the appellant bands.
5 The appellants brought a motion asking that the respondents' application for judicial review be struck out on two grounds, namely that:
(a) the application was directed against a decision which, pursuant to s. 18.5 of the Federal Court Act, R.S.C., 1985, c. F-7 , as am. by S.C. 1990, c. 8, s. 5, could not be the subject of judicial review since the assessment by-laws expressly provided for a right of appeal to the Federal Court, Trial Division or, in the alternative;
(b) the Court should decline to grant the discretionary remedies applied for because the assessment by-laws provide for an adequate alternative remedy, namely, a right of appeal to an appeal tribunal and, eventually, to the Federal Court, Trial Division.
6 Joyal J. of the Federal Court, Trial Division, [1993] 1 F.C. 74, accepted the second of these arguments and granted the appellants' motion, striking out the application of the respondents for judicial review.
7 The respondents appealed to the Federal Court of Appeal, [1993] 2 F.C. 641, which allowed the appeal, set aside the decision of the Trial Division and dismissed the appellants' motion to strike.
II. Relevant Statutory Provisions
Indian Act, R.S.C., 1985, c. I-5
2. (1) In this Act,
. . .
"reserve"
(a) means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band. . . .
83. (1) Without prejudice to the powers conferred by section 81, the council of a band may, subject to the approval of the Minister, make by-laws for any or all of the following purposes, namely,
(a) subject to subsections (2) and (3), taxation for local purposes of land, or interests in land, in the reserve, including rights to occupy, possess or use land in the reserve;
. . .
(2) An expenditure made out of moneys raised pursuant to subsection (1) must be so made under the authority of a by-law of the council of the band.
(3) A by-law made under paragraph (1)(a) must provide an appeal procedure in respect of assessments made for the purposes of taxation under that paragraph.
(4) The Minister may approve the whole or a part only of a by-law made under subsection (1).
(5) The Governor in Council may make regulations respecting the exercise of the by-law making powers of bands under this section.
(6) A by-law made under this section remains in force only to the extent that it is consistent with the regulations made under subsection (5).
Interpretation Act, R.S.C., 1985, c. I-21
2. (1) In this Act,
. . .
"regulation" includes an order, regulation, rule, rule of court, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by- law, resolution or other instrument issued, made or established
(a) in the execution of a power conferred by or under the authority of an Act, or
(b) by or under the authority of the Governor in Council;
Federal Court Act, R.S.C., 1985, c. F-7
18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal....
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
. . .
(3) On an application for judicial review, the Trial Division may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction. . . .
18.4 (1) Subject to subsection (2), an application or reference to the Trial Division under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.
(2) The Trial Division may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.
18.5 Notwithstanding sections 18 and 18.1, where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision or order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.
24. (1) Except as otherwise provided in this Act or any other Act of Parliament, the Trial Division has exclusive original jurisdiction to hear and determine all appeals that under any Act of Parliament may be taken to the Court.
(2) The Rules may transfer original jurisdiction to hear and determine a particular class of appeal from the Trial Division to the Court of Appeal.
26. (1) The Trial Division has original jurisdiction in respect of any matter, not allocated specifically to the Court of Appeal, in respect of which jurisdiction has been conferred by any Act of Parliament on the Federal Court, whether referred to as such or as the Exchequer Court of Canada.
III. Decisions Below
A. Federal Court, Trial Division, [1993] 1 F.C. 74 (Joyal J.)
8 Joyal J. first reviewed the case law dealing with the availability of judicial review. He noted that these decisions confirmed the jurisdiction of a superior court to hear a case by way of judicial review when a fundamental issue of validity or excess of jurisdiction is raised. After briefly outlining the history of judicial review, he stated at pp. 86-87:
The basic characteristic, however, of judicial review providing an exceptional or extraordinary remedy must necessarily be maintained. It can only be maintained when no other effective recourse is open to a litigant. Absent any statutory bar to jurisdiction . . . the relief which a court may grant by way of judicial review remains essentially discretionary. On such an application, a court must view all the circumstances of the case and decide if any other recourse or remedy is available. Such a recourse is . . . usually by way of an appeal. As stated by Culliton J.A., in Wilfong, Re Cathcart v. Lowery (1962), 32 D.L.R. (2d) 477 (Sask. C.A.), the practice is to decline jurisdiction where there is a right of appeal, except under special circumstances.
9 Joyal J. decided to exercise his discretion to refuse to hear the respondents' application for judicial review because the appeal procedures established by the bands were adequate for resolving the respondents' challenge. He relied on the following four factors:
(1) The legislative scheme and the band by-laws reflect extremely important policy issues. Intensive discussions took place between public authorities in British Columbia, the federal authorities at Ottawa, and the Indian bands concerned, in order to set up an elaborate system of assessment and taxation. The provincial and federal authorities have clothed the respective Indian band councils with the mantle of legitimacy in running their own system of taxation. Therefore, it would not be in the public interest and it would not favour public policy to allow CP and Unitel to bypass the appeal provisions in the by-laws.
(2) The issue of whether or not lands are "in the reserve" for the purposes of tax assessment falls within the terms of reference of the appeal procedures.
(3) The appeal tribunals established by the Indian bands are a better forum in which to receive all the evidence relevant to the issue of whether CP's land is "in the reserve". Applications for judicial review are heard summarily and are therefore more limited. Generally, the field of enquiry of an appeal court and the remedies available to it are more extensive than those available pursuant to judicial review.
(4) An appeal to the Federal Court, Trial Division, is available from any decision of the appeal tribunals.
10 In the result, Joyal J. struck out the respondents' application.
11 He declined to consider the argument of the respondents that the provisions permitting band members to sit on the assessment appeal tribunals produced a reasonable apprehension of bias. Joyal J. held that, as there was no evidence before him as to the composition of the panels, such an argument was premature.
B. Federal Court of Appeal, [1993] 2 F.C. 641
(Pratte J.A., Decary and Robertson JJ.A. Concurring)
12 Pratte J.A. first considered the argument of the appellants that, as the by-law provided for a right of appeal to the Federal Court, judicial review was barred by s. 18.5 of the Federal Court Act (this argument was not advanced by the appellants in this Court). In deciding that there was no merit in this submission, Pratte J.A. further concluded at p. 647 that it was ultra vires the bands to create an appeal to the Federal Court, Trial Division:
The Federal Court is a statutory Court. It was created by the Federal Court Act and its jurisdiction is defined by that Act and other statutes. A by-law or regulation adopted pursuant to the Indian Act cannot extend the Court's jurisdiction beyond the limits set by Parliament unless there be a statutory provision authorizing the adoption of such a by-law. It is common ground that the respondents' authority to adopt the Assessment By-law and provide for appeals from assessments is derived solely from section 83 of the Indian Act . That section requires an assessment by-law to provide "an appeal procedure in respect of assessments". However, it does not confer on band councils, either expressly or by implication, the power to extend the jurisdiction of the Federal Court or other statutory courts by creating a right of appeal to those courts. . . . It follows that this part of the Matsqui Indian Band Assessment By-law, Amendment 1-1992, which creates a right of appeal to the Federal Court, is ultra vires and, for that reason, cannot be invoked to preclude the judicial review of an assessment under section 18.1 (as enacted idem) of the Federal Court Act .
13 In allowing the respondents' appeal, Pratte J.A. pointed to several errors committed by Joyal J. First, Joyal J. failed to take into account that the determination as to whether the CP land had been wr