Judgments

[1996] 3 F.C. 907

T-2676-89

Alfredo Moon, Kenneth Moon, Henry Moon, Glenn Moon, Albert Moon, Lilli Moon, Jennifer Moon, Alexander Moon and Samantha Moon by their guardian ad litem Alfredo Moon, Allison Moon and Danielle Moon by their guardian ad litem Lilli Moon (Plaintiffs)

v.

Campbell River Indian Band, Campbell River Indian Band Council, Her Majesty the Queen (Defendants)

Indexed as: Moon v. Campbell River Indian Band (T.D.)

Trial Division, Reed J.—Vancouver, May 8; Ottawa, June 19, 1996.

Native peoples — Registration — Band membership of adopted Indian children according to Indian Act, s. 10 — Children entitled to Band’s Christmas allocation — Ten-year limitation period based on fact Band Council herein acting as trustee for members.

Six of the plaintiffs, natural born Indian children of Nellie Moon and members of the Nimpkish Indian Band, were adopted by Victor and Nellie Moon in 1978. Victor Moon was a member of the Campbell River Indian Band and, in October 1977, had married Nellie Grey who thereupon became a member of the Campbell River Indian Band. Shortly after the adoption, the Registrar of the Department of Indian Affairs removed the names of the six children from the Band List of the Nimpkish Indian Band and added them to that of the Campell River Band. In 1979, the Band Council filed a protest against that decision. The protest was rejected by the Registrar on the ground that it was too late because it had not been filed within the prescribed period and, in any event, the children were entitled, as lawfully adopted children of Victor Moon, to membership in the Band, by operation of section 10 of the Indian Act.

The plaintiffs invoke section 18 of the Federal Court Act and sections 2 and 69 of the Indian Act to seek payment from the defendant Band and Band Council, as members of the Campbell River Indian Band, of per capita amounts (distribution dollars or Christmas allocation) paid to each Band member in the years 1979 to 1992 and in 1995.

Held, action allowed.

Section 10 of the Indian Act provides that where the name of a male person is included in a Band List, the names of his wife and his minor children shall also be included. Section 2 states that the word “child” includes a legally adopted Indian child. The Band argued that when Indian children are adopted, they cannot, pursuant to section 13, obtain membership in the Band of their adopting father without the consent of that Band. However, section 13 covers status Indians who are neither minors nor wives and who wish to be accepted into a band. Section 10 covers a narrower category of persons (the nuclear family) than does section 13. A canon of statutory interpretation being that the more specific sections of a statute are read out of the more general, section 10 therefore governed the circumstances in issue. There was no interrelation between the two sections. There is no ambiguity with respect to their fields of application. Furthermore, it would be a mistake to consider the alleged treatment by England of Indian tribes in the mid-1700s as relevant to the interpretation of the Indian Act as it existed in 1978. Nor should sections 10 and 13 be interpreted by reference to a selected group of American writings and case law which described a much earlier period of time and related to the situation in a country whose relationship with the Indians was different from our own.

The Nowegijick and Mitchell cases gave no guidance for resolving a dispute between an individual band member and other band members or the band council. The case of G. (C.L.) v. Smith, [1985] 2 W.W.R. 155 (B.C. Co. Ct.), in which the judge found that a child’s membership in his or her natal band was a “birthright”, was wrongly decided.

Since the Registrar never commenced an investigation, he never made a decision in response to the protests. Consequently, subsection 9(2) of the Act was not applicable.

Therefore, the six adopted children were all Band members, as are those claiming under them, and as such they were in the relevant years entitled to be paid the Christmas allocation.

As to the applicable limitation period, if the relationship between the Band Council and Band members with respect to the Christmas allocation moneys is one of fiduciary duty, rather than trust (for which the limitation period is ten years), the limitation period is six years. There was a separate and independent cause of action arising in each year of non-payment (1979 to 1992 and in 1995). The evidence established that the relationship of the Band Council to the Band members who have not been paid the allocation moneys was that of a trustee. The moneys were paid to the Band Council on express terms of trust for the Band members. They were treated as such by the Council. There was a specific and ascertainable trust property. There was a specific and ascertainable purpose of the trust—payment to the Band members.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (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].

Constitution of the United States, Art. 1, § 8, cl. 3.

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.

Indian Act, R.S.C. 1927, c. 98, ss. 2(d), 14, 15.

Indian Act, R.S.C. 1970, c. I-6, ss. 2(1) “child”, “member of a band”, 7, 9, 10, 13, 14, 66, 69.

Indian Act, R.S.C., 1985, c. I-5, ss. 10(1) (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 4), (9) (as am. idem).

Indian Act (The), R.S.C. 1886, c. 43, ss. 2(h), 11, 12.

Indian Act (The), S.C. 1951, c. 29, s. 2(1).

Indian Bands Revenue Moneys Regulations, C.R.C., c. 953, Schedule (as am. by SOR/73-593, s. 1).

Limitation Act, R.S.B.C. 1979, c. 236.

CASES JUDICIALLY CONSIDERED

DISAPPROVED:

G. (C.L.) v. Smith, [1985] 2 W.W.R. 155 (B.C. Co. Ct.).

DISTINGUISHED:

Nowegijick v. The Queen, [1983] 1 S.C.R. 29; (1983), 144 D.L.R. (3d) 193; [1983] 2 C.N.L.R. 89; [1983] CTC 20; 83 DTC 5041; 46 N.R. 41; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; (1990), 71 D.L.R. (4th) 193; [1990] 5 W.W.R. 97; 67 Man. R. (2d) 81; [1990] 3 C.N.L.R. 46; 110 N.R. 241; 3 T.C.T. 5219; Natural Parents v. Superintendent of Child Welfare et al., [1976] 2 S.C.R. 751; (1975), 60 D.L.R. (3d) 148; [1976] 1 W.W.R. 699; 6 N.R. 491; Sawridge Indian Band v. Potskin and Saddle Lake Indian Band (1985), 64 A.R. 1; 39 Alta. L.R. (2d) 72; [1986] 2 C.N.L.R. 164 (Q.B.); Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335; (1984), 13 D.L.R. (4th) 321; [1984] 6 W.W.R. 481; 59 B.C.L.R. 301; [1985] 1 C.N.L.R. 120; 20 E.T.R. 6; 55 N.R. 161; 36 R.P.R. 1.

ACTION by six adopted Indian children seeking payment from the defendant Band and Band Council of per capita amounts paid to each Band member in the years 1979 to 1992 and in 1995, entitlement depending upon whether the plaintiffs were members of the Campbell River Indian Band. The children were all Band members and entitled to be paid the per capita amounts.

COUNSEL:

Richard F. Johnston for plaintiffs.

Lewis F. Harvey and Tracy R. Fleck for defendants Campbell River Indian Band and Campbell River Indian Band Council.

Mitchell R. Taylor and Darlene Prosser for defendant Her Majesty the Queen.

SOLICITORS:

Johnston, Lewis & Company, Nanaimo, British Columbia, for plaintiffs.

Davis and Company, Vancouver, for defendants Campbell River Indian Band and Campbell River Indian Band Council.

Deputy Attorney General of Canada for defendant Her Majesty the Queen.

The following are the reasons for judgment rendered in English by

Reed J.: The plaintiffs seek payment from the defendant Band and Band Council of per capita amounts paid to each Band member in the years 1979 to 1992 and in 1995. These are referred to as “distribution dollars” or as the “Christmas allocation”. Entitlement to such depends upon whether the plaintiffs are members of the Campbell River Indian Band.

The plaintiffs’ claims to membership in the Campbell River Indian Band are based on the adoption, in 1978, of the plaintiffs Alfredo, Kenneth, Henry, Glenn, Albert and Lilli Grey (now Moon). They were adopted by Victor and Nellie Moon on October 10, 1978. Victor Moon was a member of the Campbell River Indian Band and had married Nellie Grey (now Moon) on October 19, 1977. The six children were the natural born children of Nellie from a previous marriage to Alfred Grey.

At the time of their birth the children had become members in the Nimpkish Indian Band. Alfred Grey was a member of that band and Nellie, who before her marriage was a member of yet another band, became a member of the Nimpkish Band as a result of her marriage to Alfred. She subsequently became a member of the Campbell River Indian Band when she married Victor Moon. No one contests these changes of membership. The changes occurred by virtue of the then relevant provisions of the Indian Act, R.S.C. 1970, c. I-6, sections 10, 14. (All references to the Indian Act will be to R.S.C. 1970, c. I-6 unless otherwise indicated.)

Shortly after the adoption of the children, the Registrar of the Department of Indian Affairs removed the names of the six children from the Band List of the Nimpkish Indian Band and added them to that of the Campbell River Band.[1] The six names are listed on the December 31, 1978 Register.[2] The Band Membership Report posted at the Indian Affairs District Office in Campbell River, on February 28, 1979, contained their names.[3] Although I do not think it relevant, given the statement, in the agreed statement of facts, that the transfer by the Registrar occurred shortly after the adoption, I note that the oldest of the six children, Alfredo, ceased to be a minor on January 16, 1979.[4]

The question of the membership of the children was raised at a general Band meeting on May 27, 1979. On December 13, 1979, the Campbell River Indian Band Council filed a protest against the Registrar’s decision to include the six children as Band members. The reason given for each was:

The transfer must have the consent of the Campbell River Band. The child was a member of the Nimpkish Band and the natural father is a member of the Nimpkish Band and therefore the child cannot transfer from the Nimpkish Band to the Campbell River Band without the consent of the Campbell River Band.

The protest was rejected by the Registrar, on the ground that: (1) it was too late because it had not been filed within the three-month period prescribed by subsection 9(1) of the Indian Act and, in any event; (2) the children were entitled, as lawfully adopted children of Victor Moon, to membership in the Band, by operation of section 10 of the Indian Act. This decision was given on March 10, 1980. It is not necessary, for the purpose of deciding whether the plaintiffs are band members, to describe the various communications which followed.

Band Membership of Adopted Children

The dispute concerning the membership of the children arises from differing interpretations of the interrelationship of what were then sections 10 and 13 of the Indian Act. Section 10 provided:

10. Where the name of a male person is included in, omitted from, added to or deleted from a Band List or a General List, the names of his wife and his minor children shall also be included, omitted, added or deleted, as the case may be. [Underlining added.]

Section 13 provided:

13. Subject to the approval of the Minister and, if the Minister so directs, to the consent of the admitting band,

(a) a person whose name appears on a General List may be admitted into membership of a band with the consent of the council of the band, and

(b) a member of a band may be admitted into membership of another band with the consent of the council of the latter band. [Underlining added.]

Section 10 has to be read together with subsection 2(1) which states that the word “child”, when used in the statute, includes a legally adopted Indian child.

During the hearing of this action, I made comments concerning the status of a non-Indian child who might be adopted by Indian parents. On reflection, I do not think this hypothetical situation is relevant. The definition set out in subsection 2(1) of the Act states that the word child in the Act includes “a legally adopted Indian child” (emphasis added).

In any event, the Band’s argument is that when Indian children are adopted, they cannot obtain membership in the band of their adopting father without the consent of that band. Consent pursuant to paragraph 13(a) is required if they are on the General List. Consent pursuant to paragraph 13(b) is required if they are on a Band List. The General List contains the names of those individuals who while not members of any band are status Indians.

The defendants argue that there is a conflict between section 10 and section 13 and that when resolving this conflict, section 10 must be read in conjunction with section 13 so as to accord the individual bands the greatest degree of autonomy possible, the greatest amount of control over their band membership. It is argued that this is in keeping with government policy, both present day and historical, and that it accords with the jurisprudence. In addition the decisions in G. (C.L.) v. Smith, [1985] 2 W.W.R. 155 (B.C. Co. Ct.) and Sawridge Indian Band v. Potskin and Saddle Lake Indian Band (1985), 64 A.R. 1 (Q.B.) are relied upon.

I do not read sections 10 and 13 as being in conflict. A plain reading of section 10, together with the definition of “child” found in subsection 2(1), leads to the conclusion that both an adopted child and a natural child take the band membership of the father, as does his wife. Section 10 is couched in mandatory language: “the names of his wife and his minor children [which includes legally adopted Indian children] shall also be included” (emphasis added). Whether such a provision coincides with present day views of either band autonomy or the position of a married woman is another matter. The wording is clear.

Section 13 has its own field of operation. It covers status Indians who are neither minors nor wives and who wish to be accepted into a band. In such circumstances the consent of the band into which they wish to transfer is required. In the case of minor children and wives, however, membership in the father/husband’s band was not left to the discretion of the band. Nor was discretion left to the wife or to the children. Section 10 covers a narrower category of persons (the nuclear family) than does section 13. It is a canon of statutory interpretation that the more specific sections of a statute are read out of the more general. Applying that principle also leads to the conclusion that section 10 governs the circumstances in issue.

Another reason for that conclusion is that the application of section 10 was not expressed by Parliament to be “subject to section 13”. Nor was the operation of section 13 described to be “notwithstanding section 10”. A subsection was not added stating that for the purposes of section 10 the word “child” did not include an adopted Indian child. If Parliament had intended the two sections to interrelate as counsel for the Band suggests, I am of the view, it would have used one of these three drafting techniques.

I have considered whether, when sections 10 and 13 are read in the light of section 14 an ambiguity can be said to exist. Section 14 reads:

14. A woman who is a member of a band ceases to be a member of that band if she marries a person who is not a member of that band, but if she marries a member of another band, she thereupon becomes a member of the band of which her husband is a member.

One can ask, if an adopted child, who is a member of another band, becomes a member of his adopted father’s band by operation of section 10, why is section 14 necessary in the case of a wife” why is section 10 alone not adequate. The answer is found in the legislative history of sections 10 and 14; see, for example, [Indian Act] R.S.C. 1927, c. 98, paragraph 2(d), sections 14 and 15, and [The Indian Act] R.S.C. 1886, c. 43, paragraph 2(h), sections 11 and 12. Section 14 is part of the regime which saw married women lose or obtain Indian status and band membership, become or cease to be enfranchised, according to their husband’s status. The clarification of the term “child”, as including a legally adopted Indian child, was not included in the Act until 1951 [The Indian Act, S.C. 1951, c. 29, subsection 2(1)]. The two provisions are not linked. They operate independently and there is no ambiguity with respect to their respective fields of application.

In so far as government policy being to accord Indian bands as much autonomy, as possible, counsel for the Crown is clearly right when he says that much of this emphasis has been of reasonably recent vintage. While England, in the mid-18th century, may have treated the Indian tribes in north America as “nations”, in the context of obtaining their support for the wars against France, this is a very limited portion of the relevant history, both in time and geographically.

Reliance on United States sources always seems to me to be somewhat problematic. The concept of domestic dependent nations, which developed in the United States, was not a familiar concept in this country. The different treatment in the Constitutions of the two countries (which Constitutions are of course separated by about 100 years) says much about the respective histories. Article I, section 8, clause 3 of the Constitution of the United States of 1787 gives Congress authority to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Section 91(24) of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (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]] gives Parliament legislative authority over “Indians, and Lands reserved for the Indians”, as a general subject-matter, comparable to that given over other matters. In my view, it would be a mistake to consider the alleged treatment by England of Indian tribes in the mid-1700s as relevant to the interpretation of the Indian Act as it existed in 1978.

That the legislation which governed Indians was paternalistic there can be little doubt. It is only fair to those who enacted it, however, to review it in the context of the historical situation in which it was enacted. It was an attempt to manage the clash of cultures which was bound to occur. (A clash of cultures which the Indians were bound to lose.) I include in the concept culture differing views of land use and ownership. That many aspects of the legislation became out of date and inappropriate is also clearly true. But I would find it a rewriting of history to interpret sections 10 and 13 of the Indian Act by reference to a selected group of U.S. writings and case law which describe a much earlier period of time and relate to the situation in a country whose relationship with the Indians was different from our own.

Counsel for the Band may be correct, in stating that the unity of the family, which is sought to be protected by section 10, is an ethnocentric (European) concept of family—it is the nuclear family whose unity is being preserved, and, it is certainly patrilineal not matrilineal in emphasis. At the same time, there is no evidence that the accepting of adopted children into the adopting father’s band was not an Indian practice and, more particularly, there is no evidence of the practice or practices of the particular tribal group or tribal groups in question. From the geographical location of the two Bands, in Alert Bay, B.C. and Campbell River, it is entirely possible that the Bands belong to the same tribal group. If this is so, the historical practice of the bands with respect to adopted children, in the position of these plaintiffs, may not be so different from that which is imposed under the 1978 Act. There is no evidence one way or the other on this but I am certainly not prepared to accept that the historical practice of the bands in question differed substantially from that arising under the statute in the absence of evidence to that effect.

In the case of a child that is adopted by the mother and a new husband, usually, the natural father has relinquished any interest he might have in the child or has had his consent dispensed with for appropriate reasons. The adopted child grows up with his or her sociological family. In the present case, for example, the oldest child, Alfredo, gave evidence that he was about seven or eight years old when he last had any connection with Alert Bay, B.C. Also the children lived with their mother in Campbell River for periods of time before the mother married Victor Moon. It is clear from Alfredo’s evidence that all the children’s sociological connections are with the Campbell River Band not the Nimpkish Band.

The decisions in Nowegijick v. The Queen, [1983] 1 S.C.R. 29 and Mitchell v. Pequis Indian Band, [1990] 2 S.C.R. 85 were cited. In Nowegijick, Justice Dickson [as he then was], writing for the Court, indicated that statutes and treaties should be liberally construed and doubtful expressions resolved in favour of the Indians. In Mitchell, Mr. Justice La Forest indicated that different considerations must apply in the case of statutes from those applicable in the case of treaties. This, he said, is because the latter are the result of an agreement between two contracting parties while the former are expressions of the will of Parliament. He indicated that he did not consider this a jettisoning of the principle of liberal interpretation, or that it was inappropriate to interpret statutory provisions so as to maintain Indian rights. This must be done, however, keeping in mind that statutes are an expression of the will of Parliament. In summarizing the Mitchell decision, as I have done, I do not want to be taken as failing to recognize that when one speaks of treaties as agreements between two contracting parties, one also must remember the very unequal bargaining power that existed.

I do not find the Nowegijick and Mitchell decisions of much help in the present situation. This is not a dispute between Indians and non-Indians. The competing interests are those of the adopted Indian children and the adopting parents (one of whom is the children’s natural mother), on the one hand, and those of the Band Council representing I assume a majority of the Band members, on the other. Nowegijick and Mitchell give no guidance for resolving a dispute between an individual band member and other band members or the band council.

I turn then to the Smith and Sawridge cases. In the Smith case, the fact situation is similar to the present one. The child was the natural child of the adopting mother and a previous husband. The child had been born into a Yukon band. The mother and her second husband, who was a member of the Sooke Band, adopted the child in 1972. In 1981 that marriage broke down. In 1983 the Registrar, somewhat belatedly, moved to register the child as a member of the Sooke Band. The mother protested. On an appeal from the denial of the protest by the Registrar, the Judge found that section 10 did not apply where a child was already a member of an Indian band. He found that a child’s membership in his (or her) natal band was a “birthright”. He relied on the Supreme Court decision in Natural Parents v. Superintendent of Child Welfare et al. , [1976] 2 S.C.R. 751. In the latter case, the Supreme Court held that an Indian child who was adopted by non-Indians retained his Indian status. The implication arising from the decision is not that band consent is required for a transfer, but that a minor child cannot be transferred at all.

In my view, the reliance on the Natural Parents case is not an appropriate one. Indian status is not comparable to band membership. No analysis was given as to why, if membership in one’s natal band is a birthright, it should not also be protected in the case of a natural born child and for a woman who marries outside her natal band. Also, protection of this birthright is not put in the hands of the person to whom it allegedly belongs, or in the hands of the natal band or those of the natural mother, or father of the child. It depends upon the adopting father’s band refusing membership to the child. This does not sit well with the concept that a “birthright” is involved. I do not think the Smith case was correctly decided. It may be that it was a hard case, which proverbially makes bad law, or it may be that the Judge’s attention was not drawn to all the relevant legislative provisions. In any event, I do not consider that decision persuasive for present purposes.

The Sawridge case does not involve facts similar to the present case. In Sawridge the children’s mother had not been married at the time of their birth. They were registered by the Registrar as her illegitimate children and therefore as members of the Sawridge Indian Band. The Band protested this registration on the ground that the children had non-Indian paternity. Before the Registrar finished dealing with this protest the mother married. She married a member of the Saddle Lake Band. The Sawridge Band then changed the grounds of its protest. It argued that the children were now members of the Saddle Lake Band because the mother’s now husband was the children’s father and the marriage had legitimated the children. The Registrar found that there was insufficient evidence respecting the paternity of the children for him to conclude that they were of non-Indian parentage and, therefore, should not be members of the Sawridge Band. He also found that the insufficient evidence of paternity was such that he could not conclude that they had been legitimated and were, therefore, members of the Saddle Lake Band.

By the time the Registrar’s decision reached the Alberta Court of Queen’s Bench, additional evidence concerning paternity had been provided. The mother’s husband was accepted as the father of the children. However, no real decision was made by the Court. Subsection 9(4) of the Act was interpreted as giving the Court authority to decide whether a person should be included on the Indian Register (i.e., whether he or she was a status Indian) but not whether a Registrar’s decision placing them on a given Band List was correct. The Judge made comments by way of obiter which indicated that, in any event, the consent of the Saddle Lake Band to the transfer of the children to that Band had never been given.

There are several difficulties with this decision. In the first place the Court declined jurisdiction (rightly or wrongly) so that all the comments on other aspects of the case are really dicta. Secondly, the decision under appeal was the adding of the two children to the Sawridge Band List at a time when they had not yet been legitimated. There was no subsequent decision of the Registrar adding them to the Saddle Lake Band. The protest provisions of the Act relate to a Registrar’s decision. An objection to a decision to add the children to a Band List prior to their legitimation is not reasonably attackable on the ground that a subsequent decision should have been made because of subsequently occurring facts. I do not think the decision is useful for present purposes.

Protest Provisions/Challenge to Registrar’s Decision

I turn then to the protest provisions of the Indian Act. Both the Smith and Sawridge cases were decided pursuant to that procedure. In general terms, the procedure provides that a band council or a specified number of electors of a band, or the person directly concerned may object to a decision of the Registrar to add to, or delete an individual’s name from a Band List. The Registrar renders a decision on the protest and, if the protestor is not satisfied, the Registrar’s decision may be referred by the Registrar, at the request of the protestor, for review to a judge of the relevant county or district court.[5]

In the case of a protest respecting an addition to or deletion from a Band List, subsection 9(1) provides that the protest must be made within three months of the date on which the name was added or deleted. No consequences are spelled out for when this time limit is not complied with. Subsection 9(2) provides for the situation in which a timely protest has been made to the Registrar and the Registrar has made an investigation and decision with respect thereto. In that case, if a timely request for a referral to a judge is not made, “the decision of the Registrar is final and conclusive” (emphasis added).

In the Sawridge case, the Judge declined jurisdiction because he held that he only had authority to determine whether names had been properly added to or deleted from the Indian Register, not whether names had been properly added to a Band List. The Indian Register is a list of all status Indians. It consists of the Band Lists and the General List. I would not have interpreted subsection 9(4) in so restrictive a fashion. However, since the protest procedure was not used in the present case, it is unnecessary for anything more to be said on that point.

In the present case, protests were made with respect to the Registrar’s decision to add the six children to the Campbell River Band. The Registrar refused to commence an investigation because the protests had not been filed within the prescribed three-month period. Argument before me focused on the wording of subsection 9(2) and on the statement that the Registrar’s decision is final and conclusive. I am not persuaded that subsection 9(2) is applicable. The Registrar never commenced an investigation in the present case. Therefore, he never made a decision in response to the protests. It is the Registrar’s decision, after investigation, consequent upon a protest that is declared by the statute to be final and conclusive, not the earlier decision which led to the addition or deletion of the names from the Band List.

The Registrar’s authority to modify a Band List by adding or deleting names flows from section 7 of the Indian Act:

7. (1) The Registrar may at any time add to or delete from a Band List or a General List the name of any person who, in accordance with this Act, is entitled or not entitled, as the case may be, to have his name included in that List.

(2) The Indian Register shall indicate the date on which each name was added thereto or deleted therefrom.

The consequence thereof is that the individual so named becomes or ceases to be, as the case may be, a band member. Subsection 2(1) of the Act states that “member of a band means a person whose name appears on a Band List or who is entitled to have his name appear on a Band List” (underlining added). The names of the six children appeared on the Campbell River Band List in 1978 and no action, other than the late protest, was taken to have them removed. The defendant Band Council was advised, in 1981, when correspondence passed between it and the Department, that although the time for filing a protest with the Registrar had passed, there was a potential avenue for review of his decision by application to the Federal Court pursuant to section 18 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10].[6] No such application for judicial review was ever commenced.

Thus, the names of the adopted Moon children remained on the Band List and the names of Jennifer (Alfredo’s wife), Alexander and Samantha (children of Alfredo and Jennifer, born 1981 and April 10, 1987, respectively) and Allison Moon (child of Lilli, born in 1983) were added by the Registrar at the respective, appropriate dates. On June 26, 1987, the Band assumed control of its own membership, pursuant to amendments made to the Indian Act, R.S.C., 1985, c. I-5, subsections 10(1) [as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 4] and 10(9) [as am. idem]. The plaintiff Danielle Moon and two other grandchildren of Victor and Nellie Moon, who were born after June 26, 1987, (Christopher and Barbara) have not been added. The membership rules adopted by the Band provide:

4. The following persons are entitled to membership and enrolment in the Band List:

(1) all persons entered or entitled to be entered in the Band List of the Campbell River Indian Band immediately prior to April 17, 1985;

(2) all persons born on or after April 17, 1985 to two Band members, whether living or deceased;

It is not contested that if the six adopted children are Band members, as a result of their adoption, the others claiming under them are entitled also to be members.

It flows from what has been said above that the six adopted children are all Band members, as are those claiming under them, and as such they were in the relevant years entitled to be paid the Christmas allocation.

Band Council—Trustee for Members

This leaves for consideration, the analysis of the applicable limitation period. That raises, in turn, the nature of the relationship between the Band Council and Band members with respect to the Christmas allocation moneys. It is agreed that the Limitation Act, R.S.B.C. 1979, c. 236 applies. Under that Act the limitation period for a breach of trust is ten years; the limitation period for a breach of a fiduciary duty is not stated. It is argued that if the relationship between the Band Council and the Band members is one of fiduciary duty, rather than trust, the limitation period is six years. In the case of a minor, the limitation period is postponed until the minor reaches the age of majority. Under the relevant British Columbia legislation this is nineteen years of age. Also, the non-payment of the distribution dollars occurred in each of the years 1979 to 1992 and in 1995. Thus, there was a separate and independent cause of action arising in each year of non-payment. Even if some of the years in question are statute barred, payments with respect to others will not be.

In order to determine the nature of the cause of action and thus the limitation period, it is necessary to describe more of the relevant factual situation. The funds from which the Christmas allocations are paid are revenue moneys. These arise, for example, from property rentals and other revenue sources. Section 66 of the Indian Act deals with the expenditure of revenue moneys. Subsection 69(1) provides that the Governor in Council may by order permit a band “to control, manage and expend in whole or in part its revenue moneys”. The Campbell River Indian Band was granted this authority in 1973 (P.C. 1973-2938, October 4, 1973) [SOR/73-593]. The granting of such authority involves compliance with the Indian Bands Revenue Moneys Regulations, C.R.C., c. 953, issued pursuant to subsection 69(2) of the Act. Those regulations require the band to establish a bank account, designate signing officers and provide for an auditor to audit the account.

The procedure for obtaining and distributing the Christmas allocation moneys will be set out below. That description is based on documentation that has been filed and which relates to different years and only to some of the years in question. The documentation, as I understand it, is representative of the procedure followed in all years. Neither defendant submitted evidence disputing that position.

In the late fall or early December of each year, the Band Council passed a resolution requesting transfer from the Band’s Ottawa revenue funds (held in the Consolidated Revenue Fund) into the Band’s bank account. The amount so requested was calculated by multiplying the number of band members by the amount allocated to each (e.g., in 1990 $300). The amount in question is transferred, by the Department of Indian and Northern Affairs, to the Band “in trust”, to be paid to the individual Band members. The “in trust" nature of the transfer is expressly so described by the Band Council and the relevant officials of the Department of Indian and Northern Affairs. The Band Council creates a ledger listing the names of all those to whom the allocation is to be made. When individuals pick up their allocation cheques they sign their names in the appropriate blank on the ledger. When cheques are mailed to Band members a notation to that effect is made on the ledger. When individuals to whom an allocation should be paid cannot be located, or when the person is mentally incompetent or is a minor child whose parents do not pick up the cheque on his or her behalf, the allocation moneys were returned to the Indian Affairs Office in Nanaimo for retention in a trust for the individuals.

In the case of the adopted Moon children, and those claiming under them, the amount paid to the Band was calculated by reference to the Band List which included their names but those individuals were not included on the Band Council ledgers to whom allocations were made.[7]

As has been noted, on December 13, 1979, the Band Council filed protests respecting the addition of the six children to the Band List. This was presumably triggered by questions arising in regard to the Christmas allocation of that year. On December 19, 1979, the Band Council wrote to Victor Moon stating that:

We are sorry there will be no distribution monies paid to these children pending a decision from the Minister [with respect to the protests which had been filed].

On March 10, 1980, the Registrar indicated that the protests were out of time and the children had been properly registered. The Band Council continued to contest this conclusion and passed a resolution the following December (presumably triggered by the Christmas allocation of that year). The resolution stated:

That the Campbell River Band Council withhold the distribution dollars of the adopted children of Victor Moon until a final decision has been made by the Registrar of Canada.

On January 15, 1981, Victor Moon received a letter from the Registrar stating that the six children had been properly registered and were members of the Campbell River Band. Mrs. Moon had apparently been informed by the Band Council that the position of her children was still not resolved. In February 1981, the Department again informed her otherwise. On August 31, 1981, the Band Council sent a Band Council resolution to the Registrar asking for a referral of the Registrar’s decision to a Superior Court Judge. The District Manager of the Department of Indian and Northern Affairs responded on September 28, 1981, indicating that the original protests had been out of time and there was therefore no authority to refer the matter to a judge. That response also noted that the six children were, under the terms, of the Indian Act, members of the Campbell River Indian Band.

In June of 1982, correspondence shows that Mr. Moon sought the Department’s assistance to require the Band Council to pay the allocations to his children. The Department advised him that, in keeping with its policy of non-interference in band affairs, it would not do so.

The evidence establishes that the relationship of the Band Council to the Band members who have not been paid the allocation moneys is that of a trustee. The moneys were paid to the Band Council on express terms of trust for the Band members. They were treated as such by the Council. There was a specific and ascertainable trust property. There was a specific and ascertainable purpose of the trust—payment to the Band members.

Counsel for the defandant Band and Band Council argues that the relationship is one of fiduciary duty because the Crown’s relationship to a band is of that nature. He argues that the relationship between the Band and its members can be no higher than that between the Crown and the Band.

Whether a trust relationship, or merely a fiduciary duty exists depends on the circumstances of each case. In the Guerin case [Guerin et al. v. The Queen et al.], [1984] 2 S.C.R. 335, the Crown was found to owe the duty of a fiduciary but not that of a trustee to the band in question because both the legal and the equitable title in the land was held by the Crown. There was no identifiable property right that could be the subject of a trust (see pages 386, 349-350). That case does not stand for the proposition that in all dealings between the Crown and an Indian band the duty is never that of a trustee. Equally in the case of the relationship of a Band Council to band members, there may be many circumstances in which the duty owed is that of a fiduciary but not a trustee. That is not the situation in this case. As noted, the funds were received pursuant to the express terms of a trust, they were treated as such by the Band and there is a specific, identifiable trust property.

For the reasons given a judgment will issue that the plaintiffs should have been paid per capita Christmas allocation moneys for the years after the date as of which they became Band members or, in the case of Danielle became entitled to be registered as such, and that the defendant Band Council shall pay the plaintiffs the amounts in question together with interest thereon from the date as of which each amount should have been paid.

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