Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., 2006 FCA 415

JudgeRichard, C.J., Sexton and Sharlow, JJ.A.
CourtFederal Court of Appeal (Canada)
Case DateDecember 20, 2006
JurisdictionCanada (Federal)
Citations2006 FCA 415;(2006), 357 N.R. 1 (FCA)

Ermineskin Indian Band v. Can. (2006), 357 N.R. 1 (FCA)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. JA.011

Chief John Ermineskin, Lawrence Wildcat, Gordon Lee, Art Littlechild, Maurice Wolfe, Curtis Ermineskin, Gerry Ermineskin, Earl Ermineskin, Rick Wolfe, Ken Cutarm, Brian Less, 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, The Minister of Indian Affairs and Northern Development and the Minister of Finance (respondents)

(A-618-05; 2006 FCA 415)

Chief Victor Buffalo acting on his own behalf and on behalf of all the other members of the Samson Indian Nation and Band and the Samson Indian Band and Nation (appellants) v. Her Majesty the Queen in Right of Canada, The Minister of Indian Affairs and Northern Development and the Minister of Finance (respondents) and the Attorney General of the Province of Alberta (intervenor) and the Attorney General for the Province of Saskatchewan (intervenor)

(A-629-05; 2006 FCA 415)

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

Federal Court of Appeal

Richard, C.J., Sexton and Sharlow, JJ.A.

December 20, 2006.

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 with interest payable at a rate of 5% up until 1969 and thereafter according to a set formula. 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, dismissed the appeals. The court held that the Crown's obligations as trustee of the royalties received for the benefit of the bands were substantially different from the obligations of a common law trustee, because of the combined operation of the Financial Administration Act and the Indian Act. Those obligations fell on the Minister in relation to the management of Indian money and on the Governor-in-Council in establishing how much interest was to be paid on Indian money. The Minister's obligations were to deposit the royalties into the appropriate reserve or band capital account in the consolidated revenue fund, to pay interest at the rate stipulated by the applicable Order-in-Council, to maintain accurate accounts, to provide periodic reports to the bands, and to consider any requests by the bands to authorize and direct expenditure of the capital money as proposed by a band council resolution. The Governor-in-Council, for its part, had to establish a rate of interest that was reasonable in the circumstances. The court agreed with the trial judge that the Crown had met all of its obligations as trustee of the royalties of Samson and Ermineskin. The judge was therefore correct to dismiss the bands' claims in the money management phase.

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - General - Application of - Persons protected - 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 bands challenged the constitutionality of the money management provisions of the Indian Act, alleging a breach of s. 15 of the Charter - The case proceeded in two phases - The Federal Court of Appeal held that s. 15(1) was of no assistance to the bands in advancing any claims made in the "money management phase" of their actions - The court stated that there could be a remedy under s. 15(1) only where a personal right was infringed - The claim in this case was not a claim in relation to a personal right, but a claim relating to the management of property of the band - The right of a member of an Indian band in relation to band property was a communal right, not a personal right - The fact that the claims were asserted in each of these cases by band members through representatives did not convert what was essentially a claim relating to band property into a claim relating to the personal rights of the members of the bands - See paragraphs 129 to 134.

Civil Rights - Topic 8664

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Application - [See Civil Rights - Topic 8305 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Federal Court of Appeal reviewed the history of the statutory provisions relating to the investment by the Crown of the capital money of Indian bands - See paragraphs 79 to 89 - The court also traced the rate of interest paid historically on Indian money, in this case royalties, in the consolidated revenue fund - See paragraphs 90 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)) 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 in 1946 - 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 until paid out in accordance with the Indian Act, with interest payable at a rate of 5% up until 1969 and thereafter according to a set formula - The Federal Court of Appeal held that the Crown was a trustee for the Indian monies deposited into the consolidated fund pursuant to s. 4 of the Indian Oil and Gas Act - Even if that Act had never been enacted, the Crown would have been a trustee of the royalties by virtue of the promises of Treaty 6 as well as the provisions of the Indian Act relating to reserves and the management of Indian money - The Crown clearly had fiduciary duties in this regard - See paragraphs 109 to 111.

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 in 1946 - 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 treated by the Crown as "public money" under the Financial Administration Act and were deposited into the consolidated revenue fund until paid out in accordance with the Indian Act, with interest payable at a rate of 5% up until 1969 and thereafter according to a set formula - The Federal Court of Appeal held that the royalties did not "belong to Canada" as required by the opening words of the definition of "public money" in s. 2 of the Financial Administration Act according to the ordinary sense of those words - However, the court interpreted the statutory definition of "public money" as applying to the royalties - See paragraphs 112 to 116.

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 in 1946 - 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 treated by the Crown as "public money" under the Financial Administration Act and were deposited into the consolidated revenue fund until such time as the money was paid out under s. 64 of the Indian Act - The bands claimed that the consequence of paying the royalties into the fund was that the bands' capital money was used by the Crown for its own purposes until it is paid out to the bands - The bands characterized that as an improper and unlawful "forced borrowing" by the Crown of their capital money - The Federal Court of Appeal rejected the bands' "forced borrowing" argument, holding that this was an inevitable consequence of the combined operation of the Indian Act and the Financial Administration Act, and was therefore lawful - See paragraphs 117 to 121.

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 in 1946 - 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 treated by the Crown as "public money" under the Financial Administration Act and were deposited into the consolidated revenue fund until such time as the money was paid out under s. 64 of the Indian Act - The bands argued that the Crown, as trustee of capital money, had a common law duty to invest the band moneys as a person of ordinary prudence - The Crown argued that its obligations as trustee were governed by the Indian Act not common law principles - The Federal Court of Appeal agreed that because of s. 64 of the Indian Act, the Crown could not act unilaterally to use the capital money of a band to make income earning investments for the benefit of the bands as a common law trustee would - The court stated that the Crown had no legal authority to invest Indian money - The court stated that had Parliament intended the Minister to have a duty to invest Indian money held in trust in the consolidated revenue fund, appropriate legislation could have been enacted, but that had not been done - See paragraphs 122 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 in 1946 - 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 treated by the Crown as "public money" under the Financial Administration Act and were deposited into the consolidated revenue fund until paid out in accordance with the Indian Act, with interest payable at a rate of 5% up until 1969 and thereafter according to a set formula - The bands argued that ss. 18 or 21(1) of the Financial Administration Act authorized the Crown to use the money to make income earning investments for the benefit of the bands - The Federal Court of Appeal rejected the bands' arguments based on the Financial Administration Act - See paragraphs 135 to 142.

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 in 1946 - 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 treated by the Crown as "public money" under the Financial Administration Act and were deposited into the consolidated revenue fund until paid out in accordance with the Indian Act, with interest payable at a rate of 5% up until 1969 and thereafter according to a set formula - The bands argued that their rights in relation to their capital money were treaty rights, and thus had to be recognized as constitutional rights pursuant to s. 35 of the Constitution Act, 1982, and could not be abrogated by statute - It followed, they argued, that if the statutory scheme precluded the Crown from investing Indian money as a trustee was obliged to do, then either the statutory scheme could not stand, or it had to be read down - The Federal Court of Appeal rejected this argument - See paragraphs 143 to 145.

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 in 1946 - 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 treated by the Crown as "public money" under the Financial Administration Act and were deposited into the consolidated revenue fund until paid out in accordance with the Indian Act, with interest payable at a rate of 5% up until 1969 and thereafter according to a set formula - The bands argued that the Crown should have recognized long ago that its interpretation of the scope of s. 64(1)(k) of the Indian Act was too narrow, and should have devised an appropriate investment proposal that would conform to the requirements of s. 64(1)(k), and put the proposal to Samson and Ermineskin to seek their consent - The bands also claimed that the Crown, in arguing that it was not required to take this initiative, was improperly trying to shift its legal obligation as trustee to the beneficiaries of the trust - The Federal Court of Appeal rejected this argument - See paragraphs 146 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 in 1946 - 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 treated by the Crown as "public money" under the Financial Administration Act and were deposited into the consolidated revenue fund until paid out in accordance with the Indian Act, with interest payable at a rate of 5% up until 1969 and thereafter according to a set formula - The bands claimed that by making use of the capital money of the bands and by paying the rate of interest it did, the Crown was unjustly enriched - The Federal Court of Appeal rejected this argument holding that the Crown was not enriched by its use of the capital money of the bands while it was held in the fund - See paragraphs 150 to 159.

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 in 1946 - 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 treated by the Crown as "public money" under the Financial Administration Act and were deposited into the consolidated revenue fund until paid out in accordance with the Indian Act, with interest payable at a rate of 5% up until 1969 and thereafter according to a formula established by Order-in-Council - The bands argued that their rights were breached by the choice of interest rate or interest rate methodology established by the Orders-in-Council - The Federal Court of Appeal held that in exercising its authority to set the rate of interest to be paid on Indian money under s. 61(2) of the Indian Act, the Governor-in-Council was bound by the fiduciary obligations that the Crown owed to all bands and Indians - The court held that the Governor-in-Council's choice of the rate of interest and the interest rate methodology was to be assessed against a standard of reasonableness - Here the court found no basis for intervening in the conclusion of the trial judge that the rates of interest paid in this situation were reasonable - See paragraphs 160 to 170.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Re Indian moneys - The Federal Court of Appeal held that the Crown's obligations as trustee of royalties received for the benefit of Indian bands were substantially different from the obligations of a common law trustee, because of the combined operation of the Financial Administration Act and the Indian Act - Those obligations fell on the Minister in relation to the management of Indian money and on the Governor-in-Council in establishing how much interest was to be paid on Indian money - The Minister's obligations were to deposit the royalties into the appropriate reserve or band capital account in the consolidated revenue fund, to pay interest at the rate stipulated by the applicable Order-in-Council, to maintain accurate accounts, to provide periodic reports to the bands, and to consider any requests by the bands to authorize and direct expenditure of the capital money as proposed by a band council resolution - The Governor-in-Council, for its part, had to establish a rate of interest that was reasonable in the circumstances - See paragraphs 171 and 172.

Indians, Inuit and Métis - Topic 503

Rights - General - Individuality v. collectivity - [See Civil Rights - Topic 8305 ].

Indians, Inuit and Métis - Topic 506

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

Indians, Inuit and Métis - Topic 508

Rights - General - Abrogation - [See seventh Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 800

Personal or legal rights - General - [See Civil Rights - Topic 8305 ].

Indians, Inuit and Métis - Topic 4416

Treaties and proclamations - General - Abrogation of treaties - [See seventh Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 5513

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

Restitution - Topic 63

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

Statutes - Topic 499

Interpretation - General principles - General - The Federal Court of Appeal stated that its approach to statutory interpretation had to be guided by the jurisprudence of the Supreme Court of Canada, as most recently summarised in Canada Trustco Mortgage Co. v. Canada (2005): "It has been long established as a matter of statutory interpretation that 'the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament': see 65302 British Columbia Ltd. v. Canada, [1999] ... at para. 50. The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole" - See paragraph 108.

Statutes - Topic 1201

Interpretation - Construction where meaning is plain - General principles - [See Statutes - Topic 499 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See Statutes - Topic 499 ].

Words and Phrases

Public money - The Federal Court of Appeal interpreted the definition of "public money" as set out in s. 2 of the Financial Administration Act, R.S.C. 1985, c. F-11 - See paragraphs 112 to 116.

Cases Noticed:

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, refd to. [para. 32].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 32].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 32].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1, refd to. [para. 108].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [paras. 110, 204].

Fales et al. v. Canada Permanent Trust Co., [1977] 2 S.C.R. 302; 11 N.R. 487, refd to. [paras. 122, 195].

Fales v. Wohlleben Estate - see Fales et al. v. Canada Permanent Trust Co.

Board of Education of School District No. 91 (Nechako Lakes) v. Patrick et al., [2002] B.C.T.C. 19; 2002 BCSC 19, refd to. [paras. 131, 301].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [2001] 4 F.C. 451; 274 N.R. 304 (F.C.A.), refd to. [paras. 133, 304].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128, refd to. [para. 153].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 183].

Baker Petrolite Corp. et al. v. Canwell Enviro-Industries Ltd. et al., [2003] 1 F.C. 49; 288 N.R. 201 (F.C.A.), refd to. [para. 189].

Hollis v. Dow Corning Corp. et al., [1995] 4 S.C.R. 634; 190 N.R. 241; 67 B.C.A.C. 1; 111 W.A.C. 1, refd to. [para. 190].

Authorson v. Canada (Attorney General) (2002), 157 O.A.C. 278; 215 D.L.R.(4th) 496 (C.A.), revd. [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363, refd to. [para. 199].

Wells v. Newfoundland and Board of Commissioners of Public Utilities (Nfld.), [1999] 3 S.C.R. 199; 245 N.R. 275; 180 Nfld. & P.E.I.R. 269; 548 A.P.R. 269, refd to. [para. 199].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; 190 N.R. 89, refd to. [para. 204].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1, refd to. [para. 231].

Cowan v. Scargill, [1984] 2 All E.R. 750, refd to. [para. 232].

Cheyenne-Arapaho Tribes of Indians of Oklahoma v. United States (1975), 512 F.2d 1390, refd to. [para. 232].

Miller Estate, Re (1987), 26 E.T.R. 188 (Ont. Surr. Ct.), refd to. [para. 235].

Nestle v. National Westminster Bank plc (1988), 10 Trust Law International 112, affd. [1993] 1 W.L.R. 1260 (C.A.), refd to. [para. 237].

Carley Estate, Re (1994), 2 E.T.R.(2d) 142 (Ont. Gen. Div.), refd to. [para. 237].

Myran et al. v. Long Plain Indian Band et al. (2002), 162 Man.R.(2d) 166 (Q.B.), refd to. [para. 237].

Semiahmoo Indian Band et al. v. Canada, [1998] 1 F.C. 3; 215 N.R. 241 (F.C.A.), refd to. [para. 250].

Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48; 156 F.T.R. 1 (T.D.), refd to. [para. 261].

Authorson et al. v. Canada (Attorney General), [2004] O.T.C. 1154; 249 D.L.R.(4th) 214 (Sup. Ct.), refd to. [para. 266].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 297].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 297].

Ardoch Algonquin First Nation et al. v. Canada (Attorney General), [2004] 2 F.C.R. 108; 315 N.R. 76 (F.C.A.), refd to. [para. 301].

Métis National Council of Women et al. v. Canada (Attorney General), [2005] 4 F.C.R. 272; 265 F.T.R. 162 (F.C.), affd. (2006), 348 N.R. 83; 2006 FCA 77, refd to. [para. 302].

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201, refd to. [para. 305].

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 306].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 310].

Kruger v. Canada, [1986] 1 F.C. 3; 58 N.R. 241 (F.C.A.), refd to. [para. 319].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 320].

Nilsson Livestock Ltd. v. MacDonald (1993), 140 A.R. 214; 11 Alta. L.R.(3d) 155 (Q.B.), refd to. [para. 329].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 333].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 333].

Luscar Ltd. and Norcen Energy Resources Ltd. v. Pembina Resources Ltd. (1994), 162 A.R. 35; 83 W.A.C. 35 (C.A.), refd to. [para. 334].

Canson Enterprises Ltd. et al. v. Boughton & Co. et al., [1991] 3 S.C.R. 534; 131 N.R. 321; 6 B.C.A.C. 1; 13 W.A.C. 1, refd to. [para. 341].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 130].

Financial Administration Act, R.S.C. 1985, c. F-11, sect. 2 [para. 113]; sect. 18 [para. 139]; sect. 21(1) [para. 136].

Indian Act, R.S.C. 1985, c. I-5, sect. 64(1)(k) [para. 86].

Indian Oil and Gas Act, R.S.C. 1985, c. I-7, sect. 4(1) [para. 109].

Authors and Works Noticed:

Ambachtsheer, Keith, Pension Fund Excellence, p. 35 [para. 236].

American Law Institute, Restatement of the Law, Trusts (3rd Ed. 1992), pp. 8, § 227 [para. 263]; 14 to 15, §227 [para. 234]; 164, § 211 [para. 341].

Canada, Indian and Northern Affairs, Project F2 Trust Fund Management, Final Report (1983), vol. 1  [para. 102].

Canada, Special Committee on Indian Self-Government, Report of (Penner Report) (1983), generally [para. 102].

Halsbury's Laws of England (1984) (4th Ed. - Reissue), vol. 48,  para. 835 [para. 195].

Lewin on Trusts (17th Ed. 2000), p. 1200-01, §§ 39-24 to 39-26 [para. 315].

Ontario, Law Reform Commission, Report on the Law of Trusts (1984), generally [para. 232].

Penner Report - see Canada, Special Committee on Indian Self-Government, Report of.

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 263 [para. 330]; 367 [para. 297].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), pp. 941 [para. 196]; 958, 959 [para. 221]; 963 [para. 262]; 1392 [para. 326].

Counsel:

Marvin R.V. Storrow, Q.C., J.C. McArthur, Maria Morellato and Joanne Lysyk, for the appellants, Chief John Ermineskin et al.;

James O'Reilly, Edward H. Molstad, Q.C., Marco Poretti, Nathan Whitling and Peter Hutchins, for the appellants, Chief Victor Buffalo et al.;

W. Clarke Hunter, Wendy McCallum, Mary Comeau and J. Raymond Chartier, for the respondents;

S.H.S. Rutwind, Q.C., and Sandra Folkins, for the intervenor, Alberta, Attorney General.

Solicitors of Record:

Blake, Cassels & Graydon LLP, Vancouver, British Columbia, for the appellants, Chief John Ermineskin et al.;

O'Reilly & Associés, Montreal, Quebec, Parlee McLaws LLP, Edmonton, Alberta and Hutchins Grant & Associés, Montreal, Quebec, for the appellants, Chief Victor Buffalo et al.;

Macleod Dixon LLP, Calgary, Alberta, for the respondents;

Attorney General of Alberta, Calgary, Alberta, for the intervenor.

These appeals were heard in Ottawa, Ontario, on October 16-19, 23-26, 30 and 31, and November 6-10, 2006, before Richard, C.J., Sexton and Sharlow, JJ.A., of the Federal Court of Ap-peal. The decision of the court was delivered on December 20, 2006, including the following opinions:

Richard, C.J., and Sharlow, J.A. - see paragraphs 1 to 174;

Sexton, J.A., dissenting - see paragraphs 175 to 343.

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28 practice notes
  • Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2015] F.T.R. TBEd. JL.031
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • July 9, 2015
    ...to. [para. 22]. Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al. (2006), 357 N.R. 1; 2006 FCA 415 , refd to. [para. Stoney Tribal Council v. PanCanadian Petroleum Ltd. et al. (2000), 261 A.R. 289 ; 225 W.A.C. 289 ; 2000......
  • Pioneer Corp. v. Godfrey, 2019 SCC 42
    • Canada
    • Supreme Court (Canada)
    • September 20, 2019
    ...Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147; Peixeiro v. Haberman, [1997] 3 S.C.R. 549; Ermineskin Indian Band and Nation v. Canada, 2006 FCA 415, [2007] 3 F.C.R. 245, aff’d 2009 SCC 9, [2009] 1 S.C.R. 222; Bowes v. Edmonton (City), 2007 ABCA 347, 425 A.R. 123; Fehr v. Jacob (1993), 14......
  • Goodswimmer v Canada (Attorney General),, 2016 ABQB 384
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • July 8, 2016
    ...dealing with a different phase of the action: Ermineskin Indian Band and Nations v Canada; Samson Indian Nation and Band v. Canada , 2006 FCA 415 ( Ermineskin , FCA); (upheld Ermineskin Indian Band and Nation v. Canada , 2009 SCC 9 (Ermineskin, SCC). [443] The majority in Ermineskin FCA uph......
  • Bruno v Samson Cree Nation, 2020 ABQB 504
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • August 31, 2020
    ...notional accounts”, interest is payable on monies held in trust by DIAND for royalties due to a Nation: Ermineskin Indian Band v Canada, 2006 FCA 415. [17] Weston Affidavit #2, para 2. [18] Weston Affidavit #1, para 3 [19] Weston Affidavit #1, para 4. [20] Weston Affidavit #1, para 5 and Ex......
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24 cases
  • Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2015] F.T.R. TBEd. JL.031
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • July 9, 2015
    ...to. [para. 22]. Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al. (2006), 357 N.R. 1; 2006 FCA 415 , refd to. [para. Stoney Tribal Council v. PanCanadian Petroleum Ltd. et al. (2000), 261 A.R. 289 ; 225 W.A.C. 289 ; 2000......
  • Pioneer Corp. v. Godfrey, 2019 SCC 42
    • Canada
    • Supreme Court (Canada)
    • September 20, 2019
    ...Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147; Peixeiro v. Haberman, [1997] 3 S.C.R. 549; Ermineskin Indian Band and Nation v. Canada, 2006 FCA 415, [2007] 3 F.C.R. 245, aff’d 2009 SCC 9, [2009] 1 S.C.R. 222; Bowes v. Edmonton (City), 2007 ABCA 347, 425 A.R. 123; Fehr v. Jacob (1993), 14......
  • Goodswimmer v Canada (Attorney General),, 2016 ABQB 384
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • July 8, 2016
    ...dealing with a different phase of the action: Ermineskin Indian Band and Nations v Canada; Samson Indian Nation and Band v. Canada , 2006 FCA 415 ( Ermineskin , FCA); (upheld Ermineskin Indian Band and Nation v. Canada , 2009 SCC 9 (Ermineskin, SCC). [443] The majority in Ermineskin FCA uph......
  • Bruno v Samson Cree Nation, 2020 ABQB 504
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • August 31, 2020
    ...notional accounts”, interest is payable on monies held in trust by DIAND for royalties due to a Nation: Ermineskin Indian Band v Canada, 2006 FCA 415. [17] Weston Affidavit #2, para 2. [18] Weston Affidavit #1, para 3 [19] Weston Affidavit #1, para 4. [20] Weston Affidavit #1, para 5 and Ex......
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4 books & journal articles
  • The Federal Court of Appeal: Caseload and Decision-Making
    • Canada
    • Irwin Books The Federal Court of Appeal and the Federal Court. 50 Years of History
    • October 4, 2021
    ...indicated in the text, although some of the dissents can be very extended — such as the 25,000 words in Ermineskin Indian Band v Canada , 2006 FCA 415 and the 20,000 words in Apoxtex v Sanoi-Aventis , 2014 FCA 68. [ 129 ] The Federal Co urT oF appeal and The Federal CourT although the propo......
  • Treaties in history and law.
    • Canada
    • University of British Columbia Law Review Vol. 47 No. 3, October 2014
    • October 1, 2014
    ...and Nation in Victor Buffalo v Canada, 2005 FC 1622, [2006] 1 CNLR 100 [Victor Buffalo], aff'd Ermineskin Indian Band and Nation v Canada, 2006 FCA 415, [2007] 3 FCR 245, aff'd 2009 SCC 9, [2009] 1 SCR 222 (on appeal, the case was joined with a related action brought by the Ermineskin India......
  • AGREEING TO SHARE: TREATY 3, HISTORY & THE COURTS.
    • Canada
    • University of British Columbia Law Review Vol. 51 No. 1, January 2018
    • January 1, 2018
    ...71. (121) Marshall, supra note 63 at para 37. (122) Usher, supra note 6 at 129. (123) See e.g. Ermineskin Indian Band and Nation v Canada, 2006 FCA 415 at para 38, [2007] 3 FCR 245. In that case the plaintiffs led evidence before the lower court regarding their pre-contact history, territor......
  • Section 15 and the Oakes test: the slippery slope of contextual analysis.
    • Canada
    • Ottawa Law Review Vol. 43 No. 3, December 2012
    • December 30, 2012
    ...(2006), 82 OR (3d) 561, 269 DLR (4th) 435 (Ont CA). (122) 2006 FCA 103, 266 DLR (4th) 753. (123) 2007 FCA 273, [2008] 2 FCR 341. (124) 2006 FCA 415, [2007] 3 FCR 245. (125) 2007 BCCA 314, [2007] 11 WWR 684. (126) 2007 FC 593, [2008] 1 FCR 716. (127) 2007 FCA 247, [2008] 1 FCR 641. (128) 200......

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