Francis v. Pictou Landing First Nation

Francis v. Pictou Landing First Nation Court Court of Appeal Date 1999-03-25 Citation 1999 NSCA 64 Docket CA 149362 Judge/Registrar/Adjudicator Freeman, Gerald B. (Honourable Justice) (CA); Chipman, David (Honourable Justice); Flinn, Edward J. (Honourable Justice) Document Type Decision Relations Library Sheet - Francis v. Pictou Landing First Nation - 1999 NSCA 64 - 1999-03-25 - Library Sheet Decision Content Date: 19990325 Docket: CA 149362 NOVA SCOTIA COURT OF APPEAL Cite as: Francis v. Pictou Landing First Nation, 1999 NSCA 64 Chipman, Freeman and Flinn, JJ.A. BETWEEN: ) ) RAYMOND FRANCIS and ) Brian J. Hebert DENNIS FRANCIS ) for the Appellants ) Appellants ) ) - and - ) ) CHIEF AND COUNCIL OF THE ) N. M. Scaravelli, Q.C. PICTOU LANDING FIRST NATION ) for the Respondents ) Respondents ) ) ) ) Appeal Heard: ) March 25, 1999 ) ) ) Judgment Delivered: ) March 25, 1999 THE COURT: The motion to dismiss the appeal is dismissed with costs in the cause as per oral reasons for judgment of Chipman, J.A.; Freeman and Flinn, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by: CHIPMAN, J.A.: [1] This is an application by the respondents for an order dismissing this appeal on the ground that no appeal lies to this Court from the award of an arbitrator. [2] An action was commenced by Members of the Pictou Landing Micmac against Her Majesty the Queen in Right of Canada in 1986 arising out of loss or damage suffered by them by reason of discharge from an Effluent Treatment System at Boat Harbour, Pictou County in 1965 to treat the effluent from Scott Maritimes Pulp and Paper Mill at Abercrombie Point, Pictou County. The parties settled the action, and a Settlement Agreement (the Agreement) was signed by the parties on July 8 and July 20, 1993. [3] Under the terms of the Agreement, Her Majesty agreed to pay the total sum of $35,000,000 to the Pictou Landing Micmac. The Agreement provides for the breakdown of payment of the funds to eligible Members of the Pictou Landing Micmac, including the creation of a Continuing Compensation Account against which any Member could file a claim for compensation for loss or damage arising out of the operation of the Effluent Treatment System. Claims were to be filed within two years after the date of the Agreement. Pursuant to a Trust Agreement signed by the parties on the same date as the Agreement, the Continuing Compensation Account will eventually expire upon the termination of the Trust. At that time, the remaining capital is to be distributed for the benefit of all eligible Members of Pictou Landing Micmac in equal shares. [4] The appellants filed a claim against the Continuing Compensation Account with the Chief and Council within the prescribed time period. Under the terms of the Agreement, there were two ways in which claims could be resolved. [5] If the Chief and Council appointed a Tribunal, the Tribunal would resolve the claim. A decision of the Tribunal could be appealed within 30 days to an Arbitrator who would hear the appeal in accordance with s. 11.2 of the Agreement. By s. 11.2 of the Agreement it was provided that the award of the Arbitrator was final, subject to appeal within 30 days to this Court, but only with respect to a point of law or jurisdiction. [6] If the Chief and Council did not appoint a Tribunal, the claimant could submit the matter for dispute for resolution by an Arbitrator in accordance with s. 11.2 of the Agreement. In this case, the Chief and Council did not appoint a Tribunal, and the matter was submitted to Lorne O. MacDougall, Q.C. who, following hearings on May 27, 28 and June 11, 1998, filed his award on July 8, 1998. The appellants appealed to this Court by notice dated August 6, 1998 pursuant to s. 11.2.15 of the Agreement. [7] This Court is a statutory court deriving its jurisdiction from the Judicature Act, R.S.N.S. 1989, c. 20. No appeal lies here except where authorized by statute. Section 38 of the Act, so far as material, provides: 38 (1) Except where it is otherwise provided by any enactment, an appeal lies to the Court of Appeal from any decision, verdict, judgment or order of the Supreme Court or a judge thereof, whether in court or in chambers. (2) The Court of Appeal also has jurisdiction as provided by any Act of the Parliament of Canada or of the Legislature. [8] On March 6, 1995, the Parliament of Canada enacted the Pictou Landing Indian Band Agreement Act, which referred to the Agreement and by s. 4 thereof provided: 4. Claims by members of the Pictou Landing Indian Band arising from the adverse effects referred to in section 13 of the agreement may only be made against the continuing compensation account, and in accordance with the procedure, referred to in that section. [9] The procedure for resolving claims referred to in s. 13 of the Agreement is, by that section, referred to as “... the procedure established in Section 5 of this Agreement for adjudicating such claims ...”. [10] Section 5 of the Agreement is a lengthy provision setting out the manner in which monies in the Continuing Compensation Account will be dealt with. Provision is made for claims by Members of the Band, and by s. 5.6.2, “All such claims are to be dealt with in accordance with the procedure for administering compensation claims set out in subsection 5.7 of this Section”. [11] Section 5.7.1 is a general paragraph which relates to any claim filed under s. 5.6.1 of the Agreement: 5.7.1 SUBMISSION All claims for compensation under paragraph 5.6.1 of this Section are deemed to be a submission to arbitration under The Arbitration Act (Nova Scotia), which Act shall govern except where it conflicts with any term of this subsection 5.7. [12] Section 5.7 provides for the two ways in which claims may be dealt with; the first by a Tribunal appointed by the Chief and Council and the second, by direct arbitration. [13] As to the first procedure, s. 5.7.13 provides for appeals from a decision of the Tribunal to “the Arbitrator” in the following terms: 5.7.13 APPEAL The decision of the Tribunal may be appealed, within thirty (30) days of such decision, by the claimant, any interested Member identified on the record, or Chief and Council, to the Arbitrator, who shall hear the appeal in accordance with subsection 11.2 of this Agreement. [14] The direct arbitration route is provided for in s. 5.7.5 which reads: 5.7.5 NO APPOINTMENT If no Tribunal is appointed by Chief and Council within the time limits required, the claimant may submit the matter for dispute resolution in accordance with subsection 11.2 of this Agreement. [15] Section 11 of the Agreement contains detailed provisions with respect to the arbitration process either by way of an appeal from a decision of the Tribunal or as a direct resolution process in the first instance. Section 11.2.15 provides: 11.2.15 APPEAL The award of the Arbitrator is final, subject to appeal, within thirty (30) days of the party’s receipt of the award, to the Court of Appeal of Nova Scotia, but only with respect to a point of law or jurisdiction. [16] The respondents submit that there is no specific provision in the Pictou Landing Indian Band Agreement Act that confers jurisdiction on this Court to hear an appeal from the arbitrator. The respondents also make the point that s. 4 of that Act refers to the procedure referred to in s. 13 of the Agreement which in turn refers to the s. 5 procedure for the adjudication of claims by a Tribunal, and not the s. 11 procedure for adjudication of claims by an arbitrator in the first instance. [17] We do not agree with the position taken by the respondents. The Agreement which contains the specific provision for an appeal to this Court cannot, by itself, confer jurisdiction upon us to hear it. However, the Agreement was followed by an Act of the Parliament of Canada which specifically provided that claims by Members of the Band may be made against the Continuing Compensation Account in accordance with the procedure referred to in s. 13 of the Agreement. What is that procedure? Section 13 of the Agreement in turn refers to “... the procedure established in Section 5 of this Agreement ...”. That procedure is not, in our view, confined to procedures extensively detailed in s. 5 itself, but includes any procedures established in s. 5. Among the procedures established in s. 5 is the alternative arbitration procedure provided for in s. 5.7.5 which is “... in accordance with subsection 11.2 of this Agreement”. We are of the opinion that the procedures set out in s. 11 of the Agreement are procedures that are “established in” s. 5 of the Agreement. [18] The only reasonable interpretation of s. 4 of the Pictou Landing Indian Band Agreement Act is that the procedures referred to in s. 13 (which include an arbitration such as that held before Arbitrator MacDougall) include also the appeals therefrom which are, by the Agreement, to be taken to this Court. The appeals are confined to issues of law or jurisdiction. [19] To the extent that the provisions of the Arbitration Act are inconsistent with the appeal provisions, the latter must prevail. The appeal provisions, while specifically spelled out in s. 11 are a part of the procedures established in s. 5.7, and by virtue of s. 5.7.1 quoted above, they prevail. [20] The motion is therefore dismissed with costs in the cause. Chipman, J.A. Concurred in: Freeman, J.A. Flinn, J.A.