Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., (2009) 384 N.R. 203 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 22, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2009), 384 N.R. 203 (SCC);2009 SCC 9;186 CRR (2d) 98;384 NR 203;[2009] 1 SCR 222;JE 2009-348;[2009] 2 CNLR 102;[2009] SCJ No 9 (QL);302 DLR (4th) 577;EYB 2009-154400

Ermineskin Indian Band v. Can. (2009), 384 N.R. 203 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2009] N.R. TBEd. FE.009

Chief John Ermineskin, Lawrence Wildcat, Gordon Lee, Art Littlechild, Maurice Wolfe, Curtis Ermineskin, Gerry Ermineskin, Earl Ermineskin, Rick Wolfe, Ken Cutarm, Brian Less and Lester Fraynn, the elected Chief and Councillors of the Ermineskin Indian Band and Nation, suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation (appellants) v. Her Majesty The Queen in Right of Canada, Minister of Indian Affairs and Northern Development and Minister of Finance (respondents) and Attorney General of Ontario, Attorney General of Quebec, Attorney General of Alberta, Assembly of First Nations and Lac Seul First Nation (intervenors)

Chief Victor Buffalo, acting on his own behalf and on behalf of all the other members of the Samson Indian Band and Nation, and Samson Indian Band and Nation (appellants) v. Her Majesty The Queen in Right of Canada, Minister of Indian Affairs and Northern Development and Minister of Finance (respondents) and Attorney General of Ontario, Attorney General of Quebec, Attorney General of Alberta, Assembly of First Nations, Saddle Lake Indian Band, Stoney Indian Band and Lac Seul First Nation (intervenors)

(31875, 31869; 2009 SCC 9; 2009 CSC 9)

Indexed As: Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

February 13, 2009.

Summary:

The Ermineskin Indian Band sued the Crown respecting its management of royalties and interest on those royalties from an oil and gas field underlying the Pigeon Lake Reserve (Action T-1254-92). The Samson Indian Band commenced a separate action respecting the interests of that band (T-2022-89). The minerals had been surrendered to the Crown by the bands in 1946. However, since 1952, oil and gas was extracted by oil companies under Crown leases with significant royalty monies being paid to the Crown on behalf of the bands. The royalties collected were deposited into the consolidated revenue fund (CRF) and held on behalf of the bands with interest payable at a set rate until 1969 and thereafter according to a set formula tied to the market yield of long-term government bonds. Both bands were entitled to the benefits of Treaty 6 (1876). The bands claimed, inter alia, that the Crown's fiduciary obligations required it to invest the oil and gas royalties received on behalf of the bands as a prudent investor or common law trustee would, i.e., in a diversified portfolio. The bands claimed that the Crown's refusal to invest their royalties deprived them of millions of dollars over the years. The trial proceeded in phases.

The Federal Court, in a decision reported 269 F.T.R. 188 (the Ermineskin decision) and in a decision reported 269 F.T.R. 1 (the Samson decision), gave reasons for judgment on the first two phases of the trial dealing with general and historical issues and money management issues. In the result, the court dismissed the actions against the Crown, holding that the Crown was not liable for its handling of the Indian moneys (i.e., the claims in relation to the money management phase of the trials were dismissed). The Ermineskin and Samson bands appealed. The appeals were heard together.

The Federal Court of Appeal, Sexton, J.A., dissenting, in a decision reported 357 N.R. 1, dismissed the appeals. Samson and Ermineskin appealed.

The Supreme Court of Canada dismissed the appeals. The court held that neither Treaty 6, nor a related treaty promise, imposed on the Crown the investment duties of a common law trustee. Here, the Crown's fiduciary obligations arose from the 1946 surrenders. Those obligations were not constrained by s. 4(1) of the Indian Oil and Gas Act (i.e., that Act did not preclude investment by the Crown of the royalties). However, the court held that the royalties were "public money" within the definition in s. 2(1) of the Financial Administration Act (FAA) and as such had to be dealt with in accordance with the provisions of that Act. The FAA, however, did not give the Crown the authority to invest in the public securities market. Further, nowhere in the "Management of Indian Moneys" provisions of the Indian Act, i.e., ss. 61 to 69, were investments of Indian moneys made, held and managed by the Crown contemplated (i.e., the Indian Act did not provide for investment). The court held that the Crown's actions under the authority of the FAA and the Indian Act, including the Indian moneys formula, were consistent with its fiduciary obligations to the bands. Lastly, the court rejected a Charter challenge by the bands to ss. 61 to 68 of the Indian Act (money management provisions), holding that they were not contrary to s. 15(1) of the Charter.

Civil Rights - Topic 1034

Discrimination - Race and national or ethnic origin - Indians - At issue was whether the "Management of Indian Moneys" provisions of the Indian Act, i.e., ss. 61 to 68, were contrary to s. 15(1) of the Charter - Two Indian bands argued that if the court found that those provisions precluded the Crown from investing the bands' oil and gas royalties in the manner of a common law trustee, the result was discriminatory - The bands argued that because they were Indians, they had been deprived by the Indian Act of the rights that were available to non-Indians whose property was held in trust by the Crown - The Supreme Court of Canada held that the first branch of the s. 15 test (i.e., the Andrews test) was met: the impugned legislation created a distinction between Indians and non-Indians because the legislation only applied to Indians (i.e., a distinction on an analogous ground) - However, the bands were unable to meet the second branch of the test (i.e., the provisions of the Indian Act that prohibited investment of the royalties by the Crown did not draw a distinction that perpetuated disadvantage through prejudice or stereotyping) - There was no violation of s. 15(1) of the Charter - See paragraphs 185 to 202.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 1034 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous categories - [See Civil Rights - Topic 1034 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Ermineskin Indian Band and the Samson Indian Band (i.e., the Plains Cree of Treaty 6 (1876)) claimed that the Treaty and an oral treaty promise by Lieutenant-Governor Morris imposed on the Crown a fiduciary obligation to invest the bands' oil and gas royalties as would a common law trustee - Therefore, the bands had a constitutional treaty right to have the royalties invested by the Crown in a diversified portfolio instead of putting them into the consolidated revenue fund to earn interest under a set formula - The Supreme Court of Canada held that the language of Treaty 6 did not support an intention to impose on the Crown the duties of a common law trustee - In any event, the court opined that Treaty 6 did not assist the bands, because invoking it as the foundation for the Crown's fiduciary duties did not lead to the result they sought, i.e., an obligation on the part of the Crown to invest royalties - The court stated that "... if Treaty No. 6, including the promise of Lieut.-Gov. Morris, constituted the basis of the Crown's fiduciary obligation to the bands, the obligation was that the royalties would be kept safe and secure and would increase over time. That could be guaranteed by the Crown holding the royalties and paying a rate of interest to the bands so that the funds would indeed increase. Treaty No. 6 did not obligate investment by the Crown. Rather than the Crown having the obligation to invest the royalties, it had the obligation to guarantee that the funds would be preserved and would increase. Because there is no treaty right to investment by the Crown, s. 35(1) is not engaged" - See paragraphs 44 to 67.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Ermineskin Indian Band and the Samson Indian Band (i.e., the Plains Cree of Treaty 6 (1876)) surrendered their mineral rights to the Crown in 1946 - The bands claimed that under the 1946 surrenders the Crown had the obligation of a common law trustee to invest their royalties in a diversified portfolio instead of putting them into the consolidated revenue fund to earn interest under a set formula - The Supreme Court of Canada interpreted the surrenders, holding that thereunder, the Crown had a fiduciary obligation to the bands with respect to their royalties - The court stated that "... the relationship between the Crown and the bands is a fiduciary relationship that is trust-like in nature. The Crown possesses a discretionary power to act in the best interests of the bands, and the bands are vulnerable to the Crown's exercise of that discretion. The Crown may only grant rights over the minerals upon terms that are most conducive to the welfare of the bands, and will hold the proceeds of the granting of those rights on behalf of the bands" - The court stated further that when the Crown was a fiduciary, Parliament could legislate ways that constrained or eliminated the Crown's fiduciary duties - Thus the Crown's obligation was to act in a way that was consistent with its fiduciary duties as constrained by valid legislation - In particular, the court held that the duties here were not limited by s. 4(1) of the Indian Oil and Gas Act - See paragraphs 68 to 88.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Samson Indian Band (i.e., the Plains Cree of Treaty 6 (1876)) claimed that the Financial Administration Act (FAA) provided authority for the Crown to invest the band's oil and gas royalties in a diversified portfolio instead of putting them into the consolidated revenue fund (CRF) to earn interest under a set formula - The Supreme Court of Canada held that because the royalties were money collected by Canada on behalf of the band pursuant to the Indian Oil and Gas Act, they were "public money" within the definition in s. 2(1) of the FAA and as such had to be dealt with in accordance with the provisions of that Act, including becoming part of the CRF - The court rejected Samson's argument that s. 17(1) of the FAA only required that money be paid into the CRF and did not require that the money be held in the CRF - The court noted that s. 21(1) provided that funds could only be paid out of the CRF in accordance with any statute applicable thereto - The court held that it was necessarily implied that the royalties had to be held in the CRF and only paid out in accordance with any applicable statute (in this case the Indian Act) - See paragraphs 90 to 94.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Samson Indian Band (i.e., the Plains Cree of Treaty 6 (1876)) claimed that the former s. 18 of the Financial Administration Act (FAA) provided authority for the Crown to invest the band's oil and gas royalties in a diversified portfolio instead of putting them into the consolidated revenue fund (CRF) to earn interest under a set formula - The Supreme Court of Canada held that ss. 18(1) and 18(2) did not authorize investment in the public securities market - Rather, they provided only for the acquisition of "securities", defined in that section and in s. 2 of the FAA as securities representing part of the public debt of Canada - Section 90(1)(b) of the FAA prohibited the acquisition of securities by the Crown unless authorized by an Act of Parliament - See paragraphs 95 to 98.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Ermineskin Indian Band and the Samson Indian Band (i.e., the Plains Cree of Treaty 6 (1876)) claimed that there was authority under the Indian Act for the Crown to invest the bands' oil and gas royalties in a diversified portfolio instead of putting them into the consolidated revenue fund (CRF) to earn interest under a set formula - Section 61(1) provided that "Indian moneys shall be expended only for the benefit of the Indians or bands ..." - An issue arose as to whether the term "expended" permitted the investment by the Crown of Indian moneys held in the CRF - The Supreme Court of Canada held that in order to determine the meaning of the word "expended" in s. 61(1), regard had to be had to the other provisions of the Indian Act under the heading "Management of Indian Moneys", ss. 61 to 69 - After reviewing those provisions, the court stated that "nowhere in ss. 61 to 69 of the Indian Act are investments of Indian moneys made, held and managed by the Crown contemplated" - See paragraphs 99 to 112.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Ermineskin Indian Band and the Samson Indian Band (i.e., the Plains Cree of Treaty 6 (1876)) claimed that there was authority under the Indian Act for the Crown to invest the bands' oil and gas royalties in a diversified portfolio instead of putting them into the consolidated revenue fund (CRF) to earn interest under a set formula - An intervener, the Assembly of First Nations, argued that when the express permission given to the Governor-in-Council to invest Indian moneys in s. 92 of the Indian Act, 1927, was repealed in 1951, the investment power was transferred to s. 64(1)(k) and thereby maintained - The Supreme Court of Canada rejected the intervener's argument, holding that the wording of the Indian Act and the legislative changes made in 1951 indicated that no power existed after that time for the Crown to make, hold and manage investments made with Indian moneys - See paragraphs 112 to 119.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Ermineskin Indian Band and the Samson Indian Band (i.e., the Plains Cree of Treaty 6 (1876)) claimed that there was authority under the Indian Act for the Crown to invest the bands' oil and gas royalties in a diversified portfolio as would a common law trustee instead of putting them into the consolidated revenue fund (CRF) to earn interest under a set formula - An intervener, the Lac Seul First Nation, argued that the Financial Administration (FAA) and Indian Act did not modify the Crown's duty as a common law trustee - It argued that "investment" was not an "expenditure", that s. 64 of the Indian Act did not apply, and that the Indian Act was therefore not an "applicable" statute within the meaning of s. 21 of the FAA (Section 21(1) of the FAA provided that money could be paid out of the CRF "subject to any statute applicable thereto") - As a result, the intervener argued that s. 21 operated as general authority to pay moneys out of the CRF to satisfy the Crown's common law duties as trustee, which included investment - The Supreme Court of Canada rejected the intervener's argument - See paragraphs 120 to 123.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Ermineskin Indian Band and the Samson Indian Band (i.e., the Plains Cree of Treaty 6 (1876)) claimed that there was authority under the Indian Act for the Crown to invest the bands' oil and gas royalties in a diversified portfolio as would a common law trustee instead of putting them into the consolidated revenue fund (CRF) to earn interest under a set formula - The Supreme Court of Canada noted that s. 21(1) of the Financial Administration Act (FAA) provided that money could be paid out of the CRF "subject to any statute applicable thereto" - The court stated that, in this case, the relevant applicable statute was the Indian Act because it was the statutory scheme governing the control and management of Indian moneys - That Act provided no authority for any expenditure or payment of Indian moneys other than for the purposes provided for in the Act - The Indian Act did not provide for investment - See paragraphs 99 to 123.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Ermineskin Indian Band and the Samson Indian Band (i.e., the Plains Cree of Treaty 6 (1876)) claimed that there was authority under the Indian Act for the Crown to invest the bands' oil and gas royalties in a diversified portfolio as would a common law trustee instead of putting them into the consolidated revenue fund (CRF) to earn interest under a set formula - The bands argued that the Crown was in a position of conflict of interest and therefore in breach of its fiduciary duty to them because their royalties were held in the CRF for use by the Crown - The bands characterized the fact that the royalties were held in the CRF for use by the Crown as a "forced borrowing", and that without their consent it was improper or unlawful - The Supreme Court of Canada noted that the Crown was in a unique position as a fiduciary - The Crown was borrowing the bands' money held in the CRF, but that borrowing was required by legislation (i.e., the combined operation of the Indian Act and the Financial Administration Act) - The court stated that a fiduciary that acted in accordance with legislation could not be said to be breaching its fiduciary duty - The situation which the bands characterized as a conflict of interest was an inherent and inevitable consequence of the statutory scheme - See paragraphs 125 to 128.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Ermineskin Indian Band and the Samson Indian Band (i.e., the Plains Cree of Treaty 6 (1876)) sued the Crown respecting the way it managed royalties and the interest on the royalties from an oil and gas field underlying the Pigeon Lake Reserve and Samson Reserve - The minerals had been surrendered to the Crown by the bands in 1946 - However, since 1952, oil and gas was extracted by oil companies under Crown leases with significant royalty monies being paid to the Crown on behalf of the bands - The royalties collected were deposited into the consolidated revenue fund (CRF) and held on behalf of the bands with interest payable at a set rate up until 1969 and thereafter according to a set formula tied to the market yield of long-term government bonds - An issue arose as to whether the interest paid on the royalties was sufficient to meet the Crown's fiduciary obligations - The Supreme Court of Canada stated that "the Crown's position in the setting of the interest rate paid to the bands is also unique. On the one hand, it has fiduciary duties that are owed to the bands, including the duty of loyalty and the obligation to act in the bands' best interests. On the other hand, the Crown must pay the interest owed to the bands with funds from the public treasury financed by taxpayers. The Crown has responsibilities to all Canadians, and some balancing inevitably must be involved." - See paragraph 129.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Ermineskin Indian Band and the Samson Indian Band (i.e., the Plains Cree of Treaty 6 (1876)) sued the Crown respecting the way it managed royalties and the interest on the royalties from an oil and gas field underlying the Pigeon Lake Reserve and Samson Reserve - The minerals had been surrendered to the Crown by the bands in 1946 - However, since 1952, oil and gas was extracted by oil companies under Crown leases with significant royalty monies being paid to the Crown on behalf of the bands - The royalties collected were deposited into the consolidated revenue fund (CRF) and held on behalf of the bands with interest payable at a set rate up until 1969 and thereafter according to a set formula tied to the market yield of long-term government bonds - An issue arose as to whether the interest paid on the royalties was sufficient to meet the Crown's fiduciary obligations - The Supreme Court of Canada examined the options, within the Crown's discretion as a fiduciary, for setting the interest rate paid to the bands - The court held that without knowing the direction of interest rates and anticipated inflation, it could not be said that the adoption of a floating long-term rate was an imprudent choice by the Crown - It was a way of contending with interest rates and inflation risk - The court opined that in selecting the floating rate methodology of the Indian moneys formula, there was no breach of the fiduciary duty owed by the Crown to the bands - See paragraphs 132 to 149.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Ermineskin Indian Band and the Samson Indian Band (i.e., the Plains Cree of Treaty 6 (1876)) sued the Crown respecting the way it managed royalties and the interest on the royalties from an oil and gas field underlying the Pigeon Lake Reserve and Samson Reserve - The minerals had been surrendered to the Crown by the bands in 1946 - However, since 1952, oil and gas was extracted by oil companies under Crown leases with significant royalty monies being paid to the Crown on behalf of the bands - The royalties collected were deposited into the consolidated revenue fund (CRF) and held on behalf of the bands with interest payable at a set rate up until 1969 and thereafter according to a set formula tied to the market yield of long-term government bonds - The bands argued that not only did the Crown refuse to invest the royalties, but also refused to transfer the funds to the bands or to independent trustees so as to the allow the bands to invest the royalties themselves - The Supreme Court of Canada rejected this argument - The court stated that the Crown could not just simply transfer funds - In accordance with its fiduciary obligations and s. 64(1)(k) of the Indian Act, it would have to be satisfied that any transfer was in the best interests of the bands - Once a transfer was effected, the Crown's fiduciary obligations would cease - The court examined the transfers proposed by the bands over the years, holding that there was nothing improper in the Crown's refusals to transfer funds from the CRF to the bands - See paragraphs 150 to 181.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Ermineskin Indian Band and the Samson Indian Band (i.e., the Plains Cree of Treaty 6 (1876)) sued the Crown respecting the way it managed royalties and the interest on the royalties from an oil and gas field underlying the Pigeon Lake Reserve and Samson Reserve - The minerals had been surrendered to the Crown by the bands in 1946 - However, since 1952, oil and gas was extracted by oil companies under Crown leases with significant royalty monies being paid to the Crown on behalf of the bands - The royalties collected were deposited into the consolidated revenue fund (CRF) and held on behalf of the bands with interest payable at a set rate up until 1969 and thereafter according to a set formula tied to the market yield of long-term government bonds - The bands argued that the Crown was unjustly enriched by making use of the bands' royalties and paying the rate of interest that it did - The Supreme Court of Canada held that this situation was an inevitable result of the statutory scheme, which required that the Crown hold the bands' royalties in the CRF and pay interest to the bands - The court stated that the basis for determining whether the Crown was enriched was a comparison with what would have been the case had the Crown not had access to the royalties in the CRF - The trial judge found that the Crown could (and would) have obtained replacement funds at a lower cost, i.e. the short-term treasury bill rate, than the interest it actually provided on the royalties - The court agreed with the courts below that the Crown was not enriched - See paragraphs 182 to 184.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - [See Civil Rights - Topic 1034 ].

Indians, Inuit and Métis - Topic 506

Rights - General - Constitution Act, 1982, s. 35 - Interpretation - [See first Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - Interpretation - [See first Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 5473

Lands - Surrender of lands - Mineral, oil and gas rights - [See second Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 5513

Lands - Reserves - Royalties from mines, minerals, oil and gas - [See Civil Rights - Topic 1034 and all Indians, Inuit and Métis - Topic 3 ].

Restitution - Topic 63

Unjust enrichment - General - Requirement of enrichment at plaintiff's expense - [See thirteenth Indians, Inuit and Métis - Topic 3 ].

Words and Phrases

Expended - The Supreme Court of Canada discussed the meaning of the word "expended" in the phrase "Indian moneys shall be expended ..." in s. 61(1) of the Indian Act, R.S.C. 1985, c. I-5- See paragraphs 99 to 104.

Words and Phrases

Public money - The Supreme Court of Canada held that royalties collected on behalf of Indian bands pursuant to the Indian Oil and Gas Act were "public money" within the definition in s. 2(1) of the Financial Administration Act, R.S.C. 1985, c. F-11 - See paragraphs 90 to 94.

Cases Noticed:

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 54].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280; 56 C.C.C.(3d) 225; 70 D.L.R.(4th) 427, refd to. [para. 55].

Fales v. Canada Permanent Trust Co., [1977] 2 S.C.R. 302; 11 N.R. 487, refd to. [para. 57].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 64].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [1995] 4 S.C.R. 344; 190 N.R. 89, refd to. [para. 70].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 75].

McInerney v. MacDonald, [1992] 2 S.C.R. 138; 137 N.R. 35; 126 N.B.R.(2d) 271; 317 A.P.R. 271, refd to. [para. 72].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, refd to. [para. 77].

Authorson v. Canada (Attorney General) (2007), 226 O.A.C. 4; 86 O.R.(3d) 321; 2007 ONCA 501, refd to. [para. 78].

Barrie Public Utilities et al. v. Canadian Cable Television Association et al., [2003] 1 S.C.R. 476; 304 N.R. 1; 2003 SCC 28, refd to. [para. 100].

McDiarmid Lumber Ltd. v. God's Lake First Nation et al., [2006] 2 S.C.R. 846; 356 N.R. 1; 212 Man.R.(2d) 7; 389 W.A.C. 7; 2006 SCC 58, refd to. [para. 121].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 125].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 130].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 183].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 188].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 294 D.L.R.(4th) 1; 2008 SCC 41, refd to. [para. 188].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 193].

Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2005] F.T.R. Uned. 99; 2005 FC 136, refd to. [para. 168].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 186].

Constitution Act, 1982, sect. 35(1), sect. 52 [para. 46].

Financial Administration Act, R.S.C. 1985, c. F-11, sect. 2 [para. 90]; sect. 17(1) [para. 92]; sect. 18 [para. 95]; sect. 21 [para. 93]; sect. 90 [para. 96].

Indian Act, R.S.C. 1927, c. 98, sect. 92 [para. 112]; sect. 93 [para. 113].

Indian Act, R.S.C. 1985, c. I-5, sect. 4(2) [para. 118]; sect. 6(1) [para. 80]; sect. 61, sect. 61(1), sect. 62, sect. 63, sect. 64 [para. 99]; sect. 64(1)(k) [para. 105]; sect. 65, sect. 66, sect. 67, sect. 68, sect. 69 [para. 99].

Indian Act, S.C. 1951, c. 29, sect. 123 [para. 113].

Indian Oil and Gas Act, R.S.C. 1985, c. I-7, sect. 4(1) [para. 82].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, vol. 1, 1st Sess., 30th Parliament (October 21, 1974), p. 558 [paras. 84, 86].

Canada, Hansard, House of Commons Debates, vol. 2, 4th Sess., 21st Parliament (March 16, 1951), p. 1352 [para. 121].

Hansard - see Canada, Hansard, House of Commons Debates.

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), pp. 877 [para. 125]; 962 [para. 57].

Counsel:

Marvin R.V. Storrow, Q.C., Maria A. Morellato, Q.C., Joseph C. McArthur and Joanne Lysyk, for the appellants (31875);

James A. O'Reilly, Edward H. Molstad, Q.C., Marco Poretti, L. Douglas Rae, Nathan Whitling and David Sharko, for the appellants (31869);

Mitchell R. Taylor, Q.C., W. Clarke Hunter, Q.C., and Michele E. Annich, for the respondents;

E. Ria Tzimas, for the intervenor, the Attorney General of Ontario;

Sylvain Leboeuf and Monique Rousseau, for the intervenor, the Attorney General of Quebec;

Stanley H. Rutwind, Q.C., for the intervenor, the Attorney General of Alberta;

Jack R. London, Q.C., and Bryan P. Schwartz, for the intervenor, the Assembly of First Nations;

W. Tibor Osvath, for the intervenors, the Saddle Lake Indian Band and the Stoney Indian Band;

Joseph Eliot Magnet and William Major, for the intervenor, the Lac Seul First Nation.

Solicitors of Record:

Blake, Cassels & Graydon, Vancouver, B.C., for the appellants (31875);

O'Reilly & Associés, Montreal, Quebec, for the appellants (31869);

Attorney General of Canada, Vancouver, B.C., for the respondents;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

Attorney General of Alberta, Edmonton, Alberta, for the intervenor, the Attorney General of Alberta;

Pitblado, Winnipeg, Manitoba, for the intervenor, the Assembly of First Nations;

Rae and Company, Calgary, Alberta, for the intervenors, the Saddle Lake Indian Band and the Stoney Indian Band;

Joseph Eliot Magnet, Ottawa, Ontario, for the intervenor, the Lac Seul First Nation.

These appeals were heard on May 22, 2008, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The following decision was delivered on February 13, 2009, for the court, in both official languages, by Rothstein, J.