CANADA V PEIGAN:

HAS THE FEDERAL COURT GIVEN IN TO TEMPTATION?

Abstract

The Federal Court of Appeal’s decision in Canada v Peigan is a landmark departure from its longstanding jurisprudence in relation to the Federal Court’s limited jurisdiction over the provinces. The Court’s primary concern in this case was to hold a province to its contractual undertaking to a First Nation to attorn to the Court’s jurisdiction. The Court preferred contractual over legislative intent on these facts, and exceeded its jurisdiction in the process. Peigan is the first case in which the Court has assumed jurisdiction over a province under section 17 of the Federal Courts Act. Until Peigan, the Court had consistently rejected section 17 as a source of such jurisdiction. Peigan also marks a novel development for the doctrines of Crown immunity and the honour of the Crown.