Date: 20021213
Docket: T-430-01
Neutral Citation No. : 2002 FCT 1299
BETWEEN:
ANDREW MARK BUFFALO also known as ANDREW MARK FREEMAN on his own behalf and on behalf of all other members of the Samson Cree Nation on whose behalf Her Majesty the Queen holds unpaid per capita distributions in the Samson Band Suspense Account
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Defendant
- and -
Docket: T-354-01
BETWEEN:
SAMSON CREE NATION
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
As represented by the Minister of Indian Affairs and Northern Development
Defendant
(Delivered from the Bench in Edmonton, Alberta on December 11, 2002)
[1] In these two actions, the two plaintiffs Andrew Mark Buffalo and the Samson Cree Nation each make claims against Canada in respect of sums of money held by the latter in what is called a suspense account which originally had its origin in funds held by Her Majesty in trust for the benefit of the Band.
[2] Andrew Mark Buffalo is a representative plaintiff and represents a certain number of other persons in similar situations and the evidence before me indicates that there are also other persons whose situation may not be identical to that of Andrew Mark Buffalo but the outcome of whose cases may depend upon the outcome of this case.
[3] His action started life as a representative action, but with the coming into force of the amendments to the Federal Court Rules, 1998 a scant couple of weeks ago relating to class actions and the repeal of old rule 114, by Rules Amending the Federal Court Rules, 1998, SOR 2002-417, s. 12, it must now be treated as a class action and the consequence of that, very briefly stated for today's purposes, is that while I am going to give judgment with respect to the individual claim of Andrew Mark Buffalo as a representative of a class, I am going to ask counsel representing Mr. Buffalo to draw the form of order in accordance with Rule 394 of the Federal Court Rules, 1998 and to propose, in accordance with Rule 369 by motion in writing other appropriate terms respecting the distribution of the amounts in issue and the manner in which individual claimants may make their claims.
[4] Mr. Buffalo and those whom he represents are persons who became members of the Samson Band on June 29, 1987, as a result of the coming into force of what is commonly called Bill C-31, An Act to Amend the Indian Act, S.C. 1985, c. 27. At the time that happened, there were two relevant situations in being with respect to the Samson Band. The first is that the Samson Band was still attempting to take control of its own membership. It is now common ground that the Samson Band did not take control of its own membership, does not have control of its own membership and that membership is controlled by the Registrar.
[5] The second relevant consideration was the passage of a Band Council resolution in April of that year directing the Minister in accordance with section 64 of the Act to make payments per capita distributions to Band members who were members of the Band during the period of May 1987 to May 1988. Because Mr. Buffalo only became a member at the end of June, his entitlement in accordance with the terms of that resolution which called for per capita distributions of $500 per month is for ten of such payments for a total of $5,000, there having been no subsequent directions for per capita distributions.
[6] The Band, as I said, was at that time attempting to take control of its own membership, an attempt which ultimately failed. However, it prevented by various means, all of them perfectly legitimate, Canada from caring out the directions which it had received under the Band Council resolution and the funds were paid into, as I have indicated, a suspense account where they have been bearing interest for the many years since that time.
[7] The real issue as between the two plaintiffs in these cases has to do with the effect of a purported settlement agreement. Let me say, first of all, that the parties, by agreement and in accordance with the direction given by me have treated this matter as one of interpleader. The Crown does not dispute that it holds the money as a stake holder and that it is prepared to pay the money out to whoever is properly entitled to it. It is for that reason that I directed that this matter should go forward for determination in a summary way as rule 108 says and I indicated that I thought the best way for that to be done was for each plaintiff to move for summary judgment and those are the motions that I have before me today. As I say, the issue is a purported settlement entered into between Andrew Mark Buffalo and the Band in 1995. Other claimants in the same position as Mr. Buffalo have apparently also entered into the same or similar settlement agreements.
[8] Briefly, the agreement which I have before me, the one entered into by Andrew Mark Buffalo, is one in which he releases the Band from all claims that he may have in respect of per capita distributions, waives his right to claim per capita distributions from the Band and agrees to indemnify and hold the Band harmless from such claims. The evidence is that he signed that agreement in 1995 when he was about 19 years old and that he received a payment of $1,000 in return therefore. In my view, it is quite clear that the agreement cannot be set up against Mr. Buffalo to defeat his claim to the funds which the Crown is holding.
[9] The first and shortest reason for that view is very simply that the agreement itself is a waiver of Mr. Buffalo's rights against the Band but his claim is not against the Band, his claim is against the Crown for funds which the Crown was holding in trust for the Band and which upon a direction, a proper direction of the beneficiary of that trust, namely the Band, it was henceforth holding in trust for Mr. Buffalo. So the agreement, the waiver and the release while they might properly release the Band, do not release the Crown from the obligation to pay and it is not entirely unreasonable that the Band may have had an interest in obtaining such a release.
[10] There is a second reason why I think the agreement cannot be enforced against Mr. Buffalo. It is clear to me from the recitals in the agreement that at least one of the major important considerations recited in the agreement is the Band's contention that it had the control of its own membership and the clear implication that having such control, it was prepared to admit Mr. Buffalo into membership in return for his entering into this agreement. But as we now know, the Band did not have the control of its own membership and that consideration, which is in fact the only consideration expressed in the agreement, has clearly failed.
[11] There is yet a third reason. The Band and the Band Council are under an obligation which has sometimes be characterized as being a fiduciary obligation towards Band members to deal with them fairly. In the matter of things like per capita distributions, the Band Council simply must deal equitably with each of the Band members. It could not, to take a simple silly example, direct that all members whose names began with letters from A to L should receive a per capita distribution and those whose names began with letters from M to Z should not. It must deal equally, fairly and in accordance with normal fiduciary principles with its members. That being so, it seems to me that it is for the Band to show that it has not acted in breach of its fiduciary obligation in entering into the agreement, as it did. It has not made any such showing, in fact it has not made any showing at all with respect to that agreement.
[12] Accordingly, it is my view, that that agreement cannot be set up against Andrew Mark Buffalo for the purposes of defeating his claim to the per capita distributions to which he was entitled and which together with the accumulated interest now amount to a very considerable sum of money.
[13] I indicated at the beginning that in my view, this matter is going to go forward as a class action and that I would direct Mr. Glancy, as solicitor for the claimants, the representative plaintiffs, to draw an order in appropriate terms. I think that that order should also make provision and I would invite Mr. Glancy in this respect to discuss with counsel for the Band and counsel for the Crown the proper form of order with respect to the procedure for persons making claims. There is a very large number of such persons. It is not clear to me on the material that is produced before me exactly who those persons are, nor yet what the amounts of their claims may be. It seems to me that the simplest way of dealing with that would be to prescribe some sort of procedure whereby each of those persons receives a letter inviting them to file a claim indicating the amount thereof and it would also be appropriate, it seems to me, to provide for any disputes on those individual claims to be adjudicated by a prothonotary unless the parties take the view that there is any one particular claim that raises such an important issue that it would need to be dealt with by the Court.
[14] Mr. Glancy has asked me to make an order for costs notwithstanding the rather draconian terms of Rule 299.41 (SOR/98-106). I cannot describe the conduct of either the Band or the Crown in this matter as being frivolous or vexatious or having been of a nature to obstruct the normal course of justice and that seems to me to be what the rule directs I should look to if I am going to make an order for costs. Accordingly, I will decline to make an order for costs.
Judge
Ottawa, Ontario
December 13, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-430-01
STYLE OF CAUSE: ANDREW MARK BUFFALO ET AL v.
HER MAJESTY THE QUEEN ET AL
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: DECEMBER 11, 2002
REASONS FOR ORDER OF HUGESSEN, J
DATED: DECEMBER 13, 2002
APPEARANCES:
Terence Glancy FOR PLAINTIFF
(ANDREW MARK BUFFALO)
Priscilla Kennedy FOR PLAINTIFF
(SAMSON CREE NATION)
Kevin Kimmis FOR DEFENDANT
SOLICITORS OF RECORD:
Royal, McCrum, Duckett & Glancy FOR PLAINTIFF
Edmonton, AB (ANDREW MARK BUFFALO)
Parlee McLaws FOR PLAINTIFF
Edmonton, AB (SAMSON CREE NATION)
Morris Rosenberg, FOR DEFENDANT
Deputy Attorney General of Canada
Ottawa, ON