Wuskwi Sipihk Cree Nation v. Canada ( Minister of National Health and Welfare )
T-383-98
Hargrave P.
21/1/99
11 pp.
Motion to stay proceedings in action grounded on perceived deficiencies in health care provided to plaintiffs-Plaintiffs plead various treaty, constitutional and fiduciary obligations of Canada to First Nations-In 1964, Federal Crown agreed with Manitoba to divide jurisdiction and responsibility for public health services to various communities, including First Nations communities, in Manitoba, between Government of Canada and Province of Manitoba-Plaintiff First Nation say delegation improper and seek declaratory and mandatory relief with view to obtaining adequate and continuous health care-Federal Crown's intent to bring third party claim against Manitoba Crown bringing into play Federal Court Act, s. 50.1(1) (Court shall, on application of Attorney General, stay proceedings in respect of claim against Crown where Crown desires to institute third-party proceedings in respect of which Court lacking jurisdiction)-Motion dismissed but extension of time allowed to bring third party proceedings against Manitoba Crown-Defendant's line of argument not set out or even suggested by counsel in written representations contained in motion record-R. 364(2) making it mandatory there be written representations, otherwise ambush may result-In present instance, clearly was ambush-Furthermore, whereas Federal Court Act, s. 50.1(1) making it clear stay mandatory only where Federal Court lacking jurisdiction, in present instance, Federal Court has jurisdiction to hear proposed third party claim, as Manitoba has passed legislation (Federal Court Jurisdiction Act) allowed under Federal Court Act, s. 19-In Fairford Band v. Canada (Attorney General), [1995] 3 F.C. 165 (T.D.), Federal Court, Trial Division assumed Federal Court Act did not require "substratum of federal law" beyond that contained in Act, s. 19 itself-Even if F.C.A. erred in assumption in Fairford Band, there is federal law to support plaintiffs' claim herein: Treaty No. 6, which has been interpreted to mean all medicines, drugs or medical supplies which might be required by Indians to be supplied to them free of charge-Although Saskatchewan Court of Appeal in dictum in R. v. Johnston (1966), 56 D.L.R. (2d) 749 (Sask. C.A.) questioned that broad interpretation, liberal interpretation of Aboriginal rights confirmed by S.C.C. in R. v. Sparrow, [1990] 1 S.C.R. 1075 and dictum in Johnston now in all probability wrong-Also, apparent federal excursion into health relating to First Nations coming within Constitution Act, 1867, s. 91(24)-Federal Court Act, R.S.C., 1985, c. F-7, ss. 19, 50.1(1) (as enacted by S.C. 1990, c. 8, s. 16)-Constitution Act, 1867, 30 & 31 Vict., c. 3, (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 91(24)-Federal Courts Jurisdiction Act, R.S.M. 1987, c. 270-Federal Court Rules, 1998, SOR/98-106, r. 364(2).