RE PAULETTE ET AL. AND REGISTRAR OF LAND TITLES

(1973), 39 D.L.R. (3d) 45 (also reported: [1973] 6 W.W.R.97)

Northwest Territories Supreme Court, Morrow J., 14 June 1973

(Appealed to Northwest Territories Court of Appeal, infra p.342)

the Federal Court of Canada that has jurisdiction to consider the mat- ters raised in the reference. The history of legislation governing both land and the Courts shows that, while on the one hand matters involving land in the possession of the Crown were to be tried in the Exchequer Court, and later the Federal Court, at the same time, legislation respect- ing jurisdiction over "civil matters in which the title to real estate is in question" was consistently vested in the "court" or "judge" authorized in the Territories to adjudicate thereon. Consequently, considering the his- torical pattern according to which jurisdiction over questions of title to real estate has been vested in a Territorial Court, the Land Titles Act should be read as binding on the Crown and as affecting such rights and perogatives as the Crown might enjoy under the Federal Court Act, 1970-71-72 (Can.), c. 1 (now R.S.C. 1970, c. 10 (2nd Supp.)). However, while the "territorial" Court has jurisdiction, the only question which may be decided is the nature of the aboriginal rights claimed and whether they may form the basis for a caveat. Any consequential action for compensation that may flow from a finding that the interest is regis- trable would be in the nature of a claim against the Crown properly brought in the Federal Court.

[Re Gaar Scott Co. and Giguere (1909), 12 W.L.R. 245; Calder et al. v. A.-G. B.C. (1973) 34 D.L.R. (3d) 145, [l973] 4 W.W.R. 1 [affg 13 D.L.R. (3d) 64, 74 W.W.R. 481; affg 8 D.L.R. (3d) 59, 71 W.W.R. 81]; Re Land Titles Act, 1894, and C.P.R. Co. (1899), 4 Terr. L.R. 227; Re Babbitt and Boileau (1907), 6 W.L.R. 261; Re Riddock and Chadwick's Contract (1907), 6 W.L.R. 360; Tavender v. Edwards (1908), 8 W.L.R. 308; Esquimalt & Nanaimo R. Co. v. Wilson (1919), 50 D.L.R. 371, [1920] A.C. 358; Dyson v. Attorney-General, [1911] 1 K.B. 410; A.-G. Ont. et al. v. McLean Gold Mines, Ltd., [1926] 4 D.L.R. 213, [1927] A.C.185, [1926] 3 W.W.R. 193, refd to]

REFERENCE under s. 154 (1), (b) of the Land Titles Act (Can.), of certain questions as to the legal validity of a caveat presented for registration.

C. G. Sutton, G. Price and Dr. A. R. Thompson, for cavea- tors.

T. B. Marsh and I. G. Whitehall, for the Department of Justice, Government of Canada.

J. R. Slaven, for the Government of Northwest Territories.

MORROW, J.:--This matter came on before me initially on April 3, 1973, as a result of a reference under s. 154 (1) (b) of the Land Titles Act, R.S.C. 1970, c. L-4. At that time counsel for the Crown in the right of the federal Government referred to the matter as being a reference under the above section and in respect to a purported caveat document presented for regis- tration by certain persons representing themselves to be act- ing on behalf of the Indians of this region. The purported caveat was presented for registration under s. 132 of the Land Titles Act and its obvious object was to protect an interest in an area comprising some 400,000 square miles of land located

mainly in the western portion of the Northwest Territories and based on a claim for aboriginal rights.

Later in this judgment I will discuss the provisions of the Land Titles Act, the caveat, and other statutes in detail but I feel that a short recital of the history of the events which have taken place since April 3rd should first be set forth because of the course the litigation appears to be taking and because of what I consider to be an unwarranted attack by the Executive of the Canadian Government upon the integrity and indepen- dence of the Supreme Court of the Northwest Territories as the constitutional superior Court of this territory.

In this recital it will be seen that after hearing argument on such matters as jurisdiction and the right to file a caveat against unpatented lands I chose to reserve judgment on these issues and directed that the inquiry as outlined in the refer- ence to me under s. 154(1) (b) should be proceeded with. I was prompted by several considerations which I considered to be important. These were:

(a) In arguing the preliminary issues referred to above counsel were asking me to make certain applications of law based on factual assumptions not yet clearly before me as evidence;

(b) It was apparent that the proponents supporting the caveat were worried about the possibility of certain of their witnesses, elderly Indians who had been present during treaty negotiations, dying before their testimony could be preserved;

(c) It was apparent to anyone who lived in the Territories such as myself that the effect of the purported caveat, even though not filed as yet, was having an adverse effect psychologically on both the native population and on the business interests and mining and petroleum and gas industries developing their respec- tive interests in this area. It seemed to me that if the whole issue was heard first, and this was arranged for in July, all matters could then be adjudicated upon at one time, and then in the event of an appeal the higher appeal Courts would be dealing with one judgment, and so avoid a series of procedural disputes and interim appeals with the period of litigation becoming unduly prolonged.

(d) And finally so long as it was handled in this fashion I would re- tain sufficient control over the purported caveat to permit me to except urgent title problems from the effect of the purported caveat by granting special orders on application.

Counsel for the Crown in the right of the federal Govern- ment, however, has, apparently on instructions from his client, the Executive branch of the Government of Canada, launched two proceedings in an attempt to attack this Court.

One is by an appeal to the Court of Appeal of the Northwest Territories from an interim order which I gave on April 3,

1973. This is a perfectly proper step to take. In fact I am surprised the Crown has been so slow in appealing as an ap- peal could have been made in April and would in the natural course have been heard by now.

The second proceeding, however, is an application to the Federal Court of Canada for a writ of prohibition, in an at- tempt to prevent me continuing the present proceedings. To me this represents a policy decision by the Government which can only be interpreted as an affront to my Court and to me as the Judge of that Court. By virtue of the Judicature Ordi- nance, 1970 (N.W.T.) (3rd Sess.), c. 5, the Court, of which I am the sole appointee, namely, the Supreme Court of the Northwest Territories is charged with the "administration of the laws for the time being in force within the Territories". One of these laws is the Land Titles Act which will be referred to later. The application to the Federal Court, which has been filed and which has been timed to be just four days before I am to resume my hearings, presents a most unusual constitu- tional problem.

I find myself in the position today of being subjected not to the discipline of the Court of Appeal of the Northwest Terri- tories, which discipline I respect and am constitutionally bound to adhere to, but rather to the purported discipline and control, for this is what a prohibition writ proposes, of a Judge or Court of equal rank to me, paid the same salaries under the Judges Act, R.S.C. 1970, c. J-1, and appointed under the same section of the British North America Act, 1867, namely, s. 101. To all intents and purposes each of us are fed- eral Judges but whereas I am charged with the administration of laws in force in the Territories he or his Court is charged generally with cases where relief is claimed against the Crown. It should be remembered here that the present pro- ceedings were initiated by the Government and brought on first in my Court.

I am certain that this is the first time in the history of Cana- dian jurisprudence, the first time since Confederation, when one superior Court Judge has been placed under attack by another superior Court Judge of equal status. To me, this is such a breach of what I choose to call constitutional etiquette that I feel I must yield to the pressure I feel being put on me by the Government so as to at least give my interim judgment now, rather than later, which would have been better practice. I am moved to do this, against my normal inclination which would be to not back down, because I feel it is my consti- tutional duty to let the people within my jurisdiction and their

Parliament know what is happening and so that they will have their Judge's side of the sorry story.

By having the Federal Court appear in Yellowknife not only does this executive act threaten the very integrity and in- dependence of this Court, but by the same token it runs the risk of throwing a cloud on the reputation of the Federal Court, which is manned by respected and able Judges, in that the Government by insisting on these proceedings being heard may give the public the impression that the Federal Court can be made to jump whenever asked to by the federal Govern- ment.

It should be observed that the independence of Judges was first won by the Parliament of Britain in 1701 by the Act of Settlement, 1701, 12 & 13 Wm. III, c. 2. This principle of safeguarding the independence of the Judges and Courts has become ingrained in the English constitution and through it has become incorporated as part of Canada's constitution.

No trial Judge, such as myself, has any right to complain if his judgment is contested in the normal way by appeal or ap- peals. This is the constitutional way. I suppose it can be said that if a Judge of the Federal Court can hear applications for such things as writs of prohibition against me then there is nothing to prevent a similar application being made to me for relief against a Federal Court Judge. This surely must not be the way the jurisprudence in this country is to now develop. It seems to me that if I can be entrusted to adjudicate on cases involving the liberty of the subjects of the Territories permit- ting me to put them in jail I should be capable of adjudicating on questions involving their property, unless of course prop- erty including land is placed on a higher plane.

The federal Government is undoubtedly anxious about these proceedings, having such a substantial property interest in the lands involved, and is consequently entitled to a full hearing and a fair hearing. But then so do the caveators, who inciden- tally as Indians are the responsibility of this same Govern- ment under s. 91(24) of the British North America Act, 1867.

A few years ago, Lord Denning, serving as Master of the Rolls, one of the highest judicial offices in England, stated: "It is the role of the courts to be vigilant in protecting the right of individuals against the misuses of authority."

I would be derelict of my duty if I did not rise to this challenge.

For the purpose of brevity I shall hereafter refer to the fed- eral Government or the Crown in the right of Canada as the "Crown", the Government of the Northwest Territories as the

"Territorial Government" and the Indians proposing the caveat as the "caveators".

On April 3rd the Crown counsel was not ready to proceed with the inquiry so the matter was adjourned, eventually to come up for argument on May 15th and 16th. Counsel for the caveators requested protection for his clients' interests, what- ever they may be, as a condition of the adjournment.

The condition was as follows:

3) THAT as from the hour of ten o'clock in the forenoon, April 3, 1973, the Registrar is restrained from accepting for registration or filing any instrument with respect to the land purported to be af- fected by the caveat herein unless the person presenting such in- strument for registration or filing executes a covenant consenting to and preserving whatever priority such caveat may have over such instrument.

Between April 3rd and May 15th three municipalities and one individual applied for relief from the above condition and in each case after hearing evidence the condition was re- moved, in three cases upon deposit of money in Court in lieu of damages should the caveat be found to be registrable.

At the hearing on May 15th and 16th several legal ar- guments were propounded by counsel for both the caveators and the Crown. Counsel for the Territorial Government al- though present took no active part in the argument. I shall now list these arguments and then proceed to discuss each one in detail.

I. POSITION OF THE CAVEATORS

1. Aboriginal rights is an interest in land for which a caveat may be lodged. 2. The caveators have a clear basis in law for aboriginal rights.

3. The sole question in respect of the caveat is whether there has been a surrender of aboriginal rights and if so to what extent.

4. The burden of proof is on the Crown to show other- wise.

5. The caveat should be registered until these issues are resolved.

II. POSITION OF THE CROWN

1. This Court has no jurisdiction to enter into the merits where the Crown is affected:

(a) The effect of the Land Titles Act is that this Court should order the caveat to be filed and then this Court is functus.

(b) If the Land Titles Act does contemplate that the merits of the claim by the caveators should be gone into then it should be resolved in the Federal Court of Canada.

(c) The caveators would require a fiat to sue for their rights in the Supreme Court of the Northwest Ter- ritories.

2. The Land Titles Act has no application to lands for which no certificate of title has been issued or where no application to register under the Act has been made.

The present judgment is restricted to the arguments put forth by the Crown, the remaining issues having been left for the continued hearing.

1. This Court has no jurisdiction to enter into the merits where the Crown is affected (a) The effect of the Land Titles Act is that this Court should order the caveat to be filed and then this Court is functus

The caveat document is in the normal caveat form, is en- titled "caveat" and is addressed to the Registrar, Land Titles Office, Yellowknife, Northwest Territories. It begins: "Take Notice that we Chief Francois Paulette (Fort Smith)", and then follows a list of 15 additional names, all chiefs of their respective communities located variously throughout the area proposed to be covered by the caveat, including Snowdrift to the east, Aklavik to the north and Ford Liard to the west. The caveat then continues by describing them as

residents of the Northwest Territories claiming an interest on behalf of ourselves and as representatives of all the Indian people and Indian bands of the Northwest Territories by virtue of Abori- ginal Rights in all land in that tract of land in the Northwest Terri- tories within the limits of the land described in Treaties 8 and 11 of 1899 and 1921, respectively, with adhesions of 1900 and 1922, be- tween Her Most Gracious Majesty Queen Victoria and His Most Gracious Majesty King George V, respectively, and the Indian inhabitants of the land described in the said Treaties . . .

Next follows a description of the land encompassed in the claim for caveat but with all lands for which certificates of title in fee simple have been issued excepted. It will be seen at the outset that no attempt is made to attach land to which title has already issued. The document then closes with the phrase: "Forbid the registration of any transfer affecting such land or the granting of a certificate of title thereto except subject to the claim set forth." Finally appear the signatures of each

Indian followed by a map showing the area claimed, and af- fidavits of execution.

Upon presentation of the above document to him for regis- tration, the Registrar, apparently acting upon the advice from Ottawa, submitted the matter to me on April 3, 1973, as a ref- erence under s. 154(1) of the Land Titles Act. The reference which is short should be quoted in full:

Yellowknife, Northwest Territories 3rd April, 1973

In the matter of the registration of a Caveat by Chief Francois Paulette et al to forbid the registration of any transfer affecting certain lands in the Northwest Territories.

The Registrar under the provisions of the Land Titles Act, subsec- tion 154 (1) hereby refers the following matter to the Judge, to wit:

A question has arisen as to the legal validity, and the extent right and interest of the persons making application, to forbid the regis- tration of any transfer, and whether the Registrar has a duty con- ferred or imposed upon him, by the Land Titles Act, to lodge such a document, and enter same in the day book.

The parties interested, so far as the Registrar knows or has been informed are:

C. Gerald Sutton, Box 2521, Yellowknife, N.W.T.
The Commissioner of the Northwest Territories
Her Majesty the Queen in the Right of Canada

"Gordon R. Carter"
_________________
Registrar

154(1) The registrar may,

(a) whenever a question arises with regard to the performance of any duty, or the exercise of any function by this Act conferred or imposed upon him;

(b) whenever in the exercise of any duty of a registrar, a ques- tion arises as to the true construction or legal validity or effect of any instrument, or as to the persons entitled, or as to the extent or nature of the estate, right or interest, power or authority of any person or class of persons;

(c) whenever a question arises as to the mode in which any entry or memorandum ought to be made in the day-book, or register, or upon any certificate of title or duplicate thereof; and

(d) whenever a question arises as to any doubtful or uncertain right or interest stated, or claimed to be dealt with by a registrar;
refer the question in Form AA to the judge.
(2) The judge may, when a question mentioned in subsection (1) is referred to him, allow any of the parties interested to appear

before him and summon any other of such persons to appear and show cause in relation thereto either personally or by counsel, attor- ney-at-law, or advocate.

(3) The judge, having regard to the persons appearing before him, whether summoned or not, shall decide the question or direct any proceedings to be instituted for that purpose, and direct the particular form of entry or memorandum to be made as under the circumstances appears to be just.

As I understand the argument put forth by counsel for the Crown under this hearing, the basis for filing a caveat is founded in s. 132 of the Land Titles Act and by virtue of s. 134 the Registrar is under the mandatory duty to file the docu- ment. That because he did not file it here then I should direct him to now file it, without any questions as to its validity being asked as it were. These two sections are quoted below:

132. Any person claiming to be interested in any land under any will, settlement or trust deed, or under any instrument of transfer or transmission, or under an execution, where the execution creditor seeks to affect land in which the execution debtor is interested beneficially but the title to which is registered in the name of some other person, or otherwise, may lodge a caveat with the registrar to the effect that no registration of any transfer or other instrument affecting the said land shall be made, and that no certificate of title therefor shall be granted, until such caveat has been withdrawn or has lapsed as hereinafter provided, unless such instrument or certif- icate of title is expressed to be subject to the claim of the caveator as stated in such caveat.

134(1) Upon the receipt of a caveat, the registrar shall enter the caveat in the day-book, and shall make a memorandum thereof upon the certificate of title of the land affected by such caveat and shall forthwith send a notice of the caveat through the post office or to the person against whose title the caveat has been lodged.

(2) In the case of a caveat before registration of a title under this Act the registrar shall on receipt thereof enter the caveat in the day-book.

It is further suggested here that once the caveat is regis- tered any person claiming the land affected by the caveat, in this case it would more than likely be the Crown but it could be any corporation or individual holding the land under lease or agreement, might then "call upon the caveator to attend before a judge to show cause why the caveat should not be withdrawn"; all as set forth in s. 136 which states:

136. The owner or other person claiming such land may, by sum- mons, call upon the caveator to attend before a judge to show cause why the caveat should not be withdrawn; and the judge may, upon proof that such last-mentioned person has been summoned, and upon such evidence as the judge requires, make such order in the premises to the said judge seems fit.

I agree with counsel for the Crown that the Registrar could have followed the above procedure and registered the caveat which of course would have had immediate and direct effect on the entire area claimed.

By s. 154(1) (b), quoted above, the Registrar may refer any question to the Judge whenever "a question arises as to the true construction or legal validity or effect of any instrument, or as to the persons entitled, or as to the extent or nature of the estate, right or interest".

It seems clear to me, therefore, that the Registrar had full authority to do what he did in bringing forward the reference. Indeed, when one considers counsel's argument here, it must have been equally clear to the Registrar that he could file and let the Crown proceed to challenge the filing as provided by s. 136. This would have put the matter right back before the Court just as it is now but with the caveat actually filed and affecting titles. It would also be equally clear that this was not an ordinary caveat in any sense of the word. Surely this is ex- actly the type of situation that Parliament must have had in mind when it enacted s. 154 and the Registrar showed the common sense one would expect of him in so making the refer- ence.

Again it is equally clear to me that I could now direct the caveat to be registered with the same effect that in a few days the matter would be back again.

I cannot agree with counsel that the caveat should be directed to be filed without first deciding the question or ques- tions raised in the reference.

It was next submitted that if the issues were to be settled then they should be settled by reference to the Supreme Court not in Chambers or not by a person sitting as a persona desig- nata as counsel implied I might be though he did not take a firm stand here. His argument was that as a condition prece- dent the caveat must be filed, there must be a notice to take action, and then it goes to the Supreme Court as a triable issue. He placed reliance on Re Gaar Scott Co. and Giguere (1909), 12 W.L.R. 245, which decided that on the language of the Land Titles Act as it was then worded, while giving the Judge a very wide discretion, did not confer upon him the powers of the Supreme Court to decide upon legal or equitable rights between the parties. The Court here appears to be discussing language similar to that found in s. 99(5) of the Land Titles Act, 1894 (Can.), c. 28. This language is:

99(5) The owner or other person claiming the land may, by sum- mons, call upon the caveator to attend before a judge to show cause

why the caveat should not be withdrawn; and the said judge may, upon proof that such last-mentioned person has been summoned, and upon such evidence as the judge requires, make such order in the premises, either ex parte or otherwise, as to the said judge seems fit.

It is interesting to now look at s. 154 of the present Act. By s-s. (2) the Judge may allow any of the interested parties to appear, may of his own volition summon any other persons to appear and show cause, and then by s-s. (3) when the persons are before him he "shall decide the question or direct any pro- ceedings to be instituted for that purpose". Unlike the language discussed in the case cited above the present language is peremptory and requires the Judge to decide the question or direct proceedings as he shall see fit. I think that this is what I am required to do under this section and it is exactly what I have done to date. I quote from p. 2 of the notes of the pro- ceedings before me on May 16th.

Accordingly I do not propose to make any ruling or adjudication at this point. These proceedings will be continued now, and I propose reserving on all points raised today until the participants have in- troduced by way of evidence or argument their respective positions in respect to the full issues as set forth and suggested by the Regis- trar's reference to me, namely, and I quote, "the legal validity and extent, right and interest, of the persons making application."

This continuation of a hearing by me is of course without prejudice to any of the participants. I am reserving on all points ac- cordingly.

I fail to see how the issue could be made any clearer and my direction is, in my opinion, exactly within the purport of the above section.

Counsel for the Crown conceded that a claim as set forth in the caveat, namely, a claim of aboriginal rights is a claim for an interest in land or title and referred to the recent unre- ported decision of Calder et al. v. A.-G. B.C. [since reported 34 D.L.R. (3d) 145, [1973] 4 W.W.R. 1 (S.C.C.); affirming 13 D.L.R. (3d) 64, 74 W.W.R. 481; affirming 8 D.L.R. (3d) 59, 71 W.W.R. 81].

The following cases have been examined carefully under this heading: Re Land Titles Act, 1894, and C.P.R. Co. (1899), 4 Terr. L.R. 227; Re Babbitt and Boileau (1907), 6 W.L.R. 261; Re Riddock and Chadwick's Contract (1907), 6 W.L.R. 360; Tavender v. Edwards (1908), 8 W.L.R. 308, and Thom's Canadian Torrens System, 1st ed. (1912), and have all been very helpful in illustrating what the practice has been over the years and how the Court has not hesitated to go into the merits.

(b) If the Land Titles Act does contemplate that the merits of the claim by the caveators should be gone into then it should be resolved in the Federal Court of Canada

As I understand it, the position of the Crown is that the Crown holds some form of title in the lands purporting to be covered by the proposed caveat so the caveat is against Crown lands and against the Queen. I should observe here that the fact that I have no evidence of anything before me other than a proposed caveat, which of course as already mentioned, was one of the reasons prompting me to take the course in these proceedings that I took.

For the purpose of this argument, however, I will approach the problem on the basis that the greater part of the area we are concerned with is claimed to be Crown lands by either the Crown in the right of Canada or by the Territorial Govern- ment.

Counsel next argues that the common law of England as of July 15, 1870, applies in the Northwest Territories: Northwest Territories Act, R.S.C. 1970, c. N-22, s. 18(1), and therefore, applies to Crown lands. That at common law the Crown could only be sued by petition of right. He made refer- ence to the reasoning set forth in three cases: Esquimalt & Nanaimo R. Co. v. Wilson (1919), 50 D.L.R. 371, [1920] A.C. 358; Dyson v. Attorney-General, [1911] 1 K.B. 410, and A.-G Ont. et al. v. McLean Gold Mines, Ltd., [1926] 4 D.L.R. 213, [1927] A.C. 185, [1926] 3 W.W.R. 193. Reference was made as well to the Calder case referred to above.

From this position counsel next argues that the common law has not been changed and that under s. 16 of the Interpre- tation Act, R.S.C. 1970, c. I-23, no enactment affects Her Majesty or her rights "except only as therein mentioned or referred to".

At this point the Crown's position is that if the merits are to be considered then I would in substance be hearing a claim against Her Majesty. It is here that reliance is placed by coun- sel on the provisions of the Federal Court Act, 1970-71-72 (Can.), c. 1 [now R.S.C. 1970, c. 10 (2nd Supp.)], and partic- ularly on ss. 17 (1) and 48 (1) .

In opposition to this counsel for the caveators argue that the Land Titles Act is the governing statute and its language provides the exception referred to both in s. 16 of the In- terpretation Act and s. 17(1) of the Federal Court Act. Coun- sel here also argues that the claim put forward by the cavea- tors refers to lands arising out of the transference of the territories from the Governor and Company of Adventurers

of England trading into Hudson's Bay to Canada pursuant to Imperial Order in Council dated June 23, 1870, and that by virtue of Schedule "A" to that order the "claims of the Indian tribes to compensation required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines", and that this comes within the exception to the general rule with respect to having to proceed by petition of right.

It is important to review the history of the legislation which has governed both land and the Courts down through the years in the Northwest Territories. It should of course be ob- served at the start here that in its original form the Northwest Territories included much more of Canada than it now does, for example, the Yukon, Alberta, Saskatchewan and northern portions of Manitoba, Ontario and Quebec.

On June 2, 1886, the Territories Real Property Act, 1886 (Can.), c.26, was assented to. This statute became effective January 1, 1887, and its preamble sets forth, was to "give cer- tainty to the title to estates in land in the Territories" and also to render dealings in land "more simple and less expensive". The expression "Territories" included the then District of Keewatin as well as "all other Territories of Canada" (s. 3). In the same section "Court" is defined to mean and include "any court authorized to adjudicate in the Territories in civil matters in which the title to real estate is in question", and "Court of Appeal" meant and "includes the Court of Appeal herein constituted". Also "The expression 'Judge' means and includes any official authorized in the Territories to ad- judicate in civil matters in which the title to real estate is in question". Throughout this statute many references are made to "Court" or "Judge" without any further qualification. Sec- tion 138 is interesting in that it provides for appeals from the judgment of the Court or Judge to a Court of appeal made up of the "several stipendiary magistrates . . . sitting to- gether".

At the time the above statute came into force legally trained magistrates had been provided for by the North-West Territories Act, 1880 (Can.), c. 25, s. 74, and had civil juris- diction in more important cases. In 1886, the same year as the above land statute, by "An Act further to amend the law respecting the North-West Territories", 1886 (Can.), c. 25, a Supreme Court was set up for the first time and its first members were the stipendiary magistrates of the Territories with "the powers and authorities as by the law of England

are incident to a superior court of civil and criminal juris- diction [as of July 15, 1870]" [s. 14]. By s. 30 the powers formerly exercised by stipendiary magistrates were vested in them as the new Judges. This remained the Court system until 1905 when the emergence of Alberta and Saskatchewan left the remainder of the Territories back with the old system of stipendiary magistrates: Northwest Territories Act, R.S.C. 1906, c. 62, see in particular ss. 32 and 33.

For a complete legislative history of the Courts of the Northwest Territories, see my judgment in Royal Bank of Canada v. Scott; Com'r of Northwest Territories, Garnishee (1971), 20 D.L.R. (3d) 728, [1971] 4 W.W.R. 491, commenc- ing at p. 733.

The Land Titles Act, 1894, was passed to consolidate and amend the Acts respecting land in the Territories. In the defi- nition section, s. 2, " 'Judge' means an official authorized in the Territories to adjudicate in civil matters in which the title to real estate is in question". This statute carries forward pretty much the same sections relating to the powers and functions of the Judge as are found in the previous statute.

In the Land Titles Act, R.S.C. 1906, c. 110, "court" is now enlarged by the addition of the phrase "and includes in the Northwest Territories any stipendiary magistrate appointed by the Governor in Council under the authority of the Northwest Territories Act": s. 2 (20) . "Judge" remains un- changed. The above change was undoubtedly dictated by the changes in the constitution of the Courts of the Northwest Territories mentioned above.

The above terminology was carried forward in the R.S.C. 1927, c. 118, and R.S.C. 1952, c. 162. Finally, the present stat- ute is back using the terminology found as far back as 1886, the reference to stipendiary magistrate having been dropped undoubtedly as a result of the establishment of the new Terri- torial Court of the Northwest Territories: Northwest Terri- tories Act, R.S.C. 1952, c. 331, s. 20. By s. 23(1) of this Act the new Court is given civil and criminal jurisdiction through- out the territories and by s-s. (2) it was given and permitted to "exercise in civil cases all the powers, duties and functions that were, immediately prior to the commencement of this Act, vested in stipendiary magistrates . . .".

The Territorial Court was continued in the Judicature Ordi- nance when the administration of justice except for certain reservations respecting the position and functions of the At- torney-General was transferred to the Territorial Govern- ment: "An Act to amend the Yukon Act, the Northwest Terri-

tories Act, and the Territorial Lands Act", 1969-70 (Can.), c. 69.

During the above long development of the law relating to land titles and Courts in respect to the Northwest Territories the powers of the Exchequer Court of Canada (the precursor to the present Federal Court of Canada) were consistently set forth in language similar to s. 17 of the Exchequer Court Act, R.S.C. 1970, c. E-11, which was to the effect that it had exclusive original jurisdiction "in all cases in which the land, goods or money of the subject are in the possession of the Crown".

The above outline sets forth the position as it stood gener- ally from the time when Canada acquired what became known as the Northwest Territories up to the present date, except that by recently enacting the Federal Court Act the juris- diction formerly exercised by the Exchequer Court was in ef- fect assumed by the new Court: s. 17 which is quoted below:

17(1) The Trial Division has original jurisdiction in all cases where relief is claimed against the Crown and, except where other wise provided, the Trial Division has exclusive original jurisdiction in all such cases.

(2) Without restricting the generality of subsection (1), the Trial Division has exclusive original jurisdiction, except where other- wise provided, in all cases in which the land, goods or money of any person are in the possession of the Crown or in which the claim arises out of a contract entered into by or on behalf of the Crown and in all cases in which there is a claim against the Crown for in- jurious affection.

(3) The Trial Division has exclusive original jurisdiction to hear and determine the following matters:

(a) the amount to be paid where the Crown and any person have agreed in writing that the Crown or that person shall pay an amount to be determined by

(i) the Federal Court,

(ii) the Trial Division, or

(iii) the Exchequer Court of Canada;

(b) any question of law, fact, or mixed law and fact that the Crown and any person have agreed in writing shall be deter- mined by

(i) the Federal Court,

(ii) the Trial Division, or

(iii) the Exchequer Court of Canada; and

(c) 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.

(4) The Trial Division has concurrent original jurisdiction

---

(60)     RE PAULETTE     303

---

(a) in proceedings of a civil nature in which the Crown or the Attorney General of Canada claims relief; and

(b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of his duties as an officer or servant of the Crown.

(5) The Trial Division has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad sub- jiciendum, writ of certiorari, writ of prohibition or writ of man- damus, in relation to any member of the Canadian Forces serving outside Canada.

It will be seen that throughout this whole period while the Parliament of Canada on the one hand protected the Crown's privilege with respect to cases involving "land, goods or money of the subject . . . in the possession of the Crown" it at the same time consistently maintained under the Land Titles Act the power of the Court, or Judge in the Territories in respect to questions which might require interpretation. This may have been prompted by the same wish to "render dealings with land more simple and less expensive" as was set forth in the preamble to the first statute of 1886 or it may have been out of regard to the reasonableness of having whichever Court was functioning in the Territories, readily available, and with first-hand experience with the land system. It is to be remem- bered that in this case the Land Titles Act is a federal not a provincial or territorial statute and so stands equally with other federal legislation.

Section 16 of the Interpretation Act states:

16. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, ex- cept only as therein referred to.

I cannot read this parallel series of legislation without concluding that the Land Titles Act, and its provisions refer- ring to "Court" and "Judge", is to be read as an exception and is to be used as separate and distinct.

This exception and the jurisdiction given the "Court" and "Judge" must however be regarded as limited in scope. That is the power cannot be extended beyond the specific wording of the relevant sections in the Land Titles Act. With respect to the present case it is my opinion that while I should decide the question before me I must go no further than to ascertain what the aboriginal rights that are being claimed are and whether they may form the basis upon which a caveat may be filed and included here of course would be the effect of the June 23, 1870 Order in Council if any.

Once this is ascertained then my function would be over. If

the decision should be unfavourable to the caveators then that is the end of it. If the decision should be favourable then the caveat would be filed as a good and proper caveat.

What profit the caveators may gain, how they recover their aboriginal rights, how they obtain the compensation they may be entitled to if entitled at all, is all of course in the nature of a claim against the Crown and should presumably be prosecu- ted in the Federal Court.

I see the position here as no different to a reference with respect to a mortgage document which may or may not be in proper form or truly a mortgage. This Court on reference can decide the issues of form, whether it is truly a mortgage and whether registrable, but the enforcement of rights under the terms of the mortgage is left to another Court.

I am further reassured in the position which I have taken here by the language of s. 17(4) (b) of the Federal Court Act, set forth above, wherein there appears to be clear recognition of parallel or dual jurisdiction in respect to proceedings which may concern servants of the Crown as surely the Registrar under the Land Titles Act must be.

(c) The caveators would require a fiat to sue for their rights in the Supreme Court of the Northwest Territories

In my opinion, the caveators are not suing the Crown or anybody in the present proceedings. My remarks under (b) above cover this point as well.

2. The Land Titles Act has no application to lands for which no certificate of title has been issued or where no applica- tion to register under the Act has been made

It is submitted on behalf of the Crown under this heading that the Land Titles Act cannot have any application to lands for which neither a certificate of title has issued nor an application to have his title registered has been made: s. 54 (1).

In this connection it is argued that title in the Northwest Territories vis-á-vis the Land Titles Act must be one of three types:

(a) Crown grants prior to 1887 for which no application to register has yet been made;

(b) land to which Crown grants have been issued and where application has been made under s. 54(1) and a certifacte of title has already issued, and

(c) ungranted Crown lands for which no certificate of title has issued.

Before the conclusion of argument as a result of a query from me Crown counsel conceded that there was a fourth pos- sible type of title, namely, a transfer or notification in respect of territorial lands. In this instance ss. 3 [am. R.S.C. 1970, c. 48 (1st. Supp.), s. 24] and 5 of the Territorial Lands Act, R.S.C. 1970, c. T-6, should be read. By s. 5(3) the issue of a notification has the same effect as a grant of land made by letters patent under the Great Seal.

Before examining the argument under this heading, I should observe that again I find myself being asked to make a ruling in favour of the Crown without any evidence before me as to whether any grants may be outstanding, whether any applications have been submitted, or whether any notifica- tions under the Territorial Lands Act are presently pending. Crown counsel concedes that to the extent that there may be some of these instruments outstanding that they would be sub- ject to the proposed caveat. I can take notice from the four applications already made to me to except certain lands from the effect of my order of April 3rd, as mentioned above, that there are or have been at least four such notifications. It seems to me that further evidence would be desirable here.

While I have been prompted by the course of events to give my reasons now with respect to jurisdiction I do not think I should go further until I have the evidence.

To sum up my conclusions in these proceedings to date I have determined and directed:

1. That it would be wrong to file the caveat without first deciding the question or questions raised in the reference.

2. That the issue or issues by the provisions of the Land Titles Act are required to be tried by me in my present ca- pacity.

3. That in my present capacity, it is I, and not the Federal Court, that has jurisdiction to try the issue or issues but that I am not to go any further than to ascertain the na- ture of the aboriginal rights claimed and the rights claimed under the Order in Council and whether they may form the basis upon which a caveat can be filed.

4. That depending on what evidence may come before me, I should decide whether a caveat may be filed to protect whatever may be found to be the above claim.

5. That if the caveat should be filed, how the caveators real- ize on it or enforce it to the extent of obtaining compensa- tion is properly a claim against the Crown and should be brought in the form of proceedings in the Federal Court.

6. That my judgment remain reserved in respect to the remaining points of argument.

Accordingly, as counsel have already been advised, these proceedings on the issue set forth in the reference shall be proceeded with at Yellowknife at 10 :00 a.m. on Monday, July 9, 1973.

Order accordingly.