Date: 19990607
Docket: A-679"96
CORAM: MARCEAU J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
CAMPBELL RIVER INDIAN BAND and
CAMPBELL RIVER INDIAN BAND COUNCIL
Appellants
(Defendants)
- and -
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
Respondents
(Plaintiffs)
- and -
HER MAJESTY THE QUEEN
Respondent
(Defendant)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia,
on Monday, June 7, 1999)
MARCEAU J.A.
[1] Despite both counsel for the appellants" remarkable efforts, we have not been persuaded that we have reason to intervene in the Trial Division"s judgment under appeal.
[2] There is no doubt in our minds that the learned trial judge was right in her interpretation of sections 10 and 13 of the Indian Act.1 Section 10 is mandatory in respect of the memberships in the husband"s/father"s Band of his wife and his children, whether legitimate or adopted. The reading of the provision suggested by counsel does violence to the very words used therein and runs counter to the obvious purpose it was meant to achieve.
[3] Indeed, it seems to us that the provision was rendered necessary in 1951 when Indian status and Band membership ceased to be co-extensive and its aim was to carry over the customary rule that the husband, as the head of the family, brings with him into his Band his wife and his children.
[4] No doubt the respect for the autonomy of Indian Bands is to be borne in mind in interpreting the scheme of the Act, but the safeguard of that autonomy is to be balanced with other interests and it is obvious to us here that Parliament has, in its wisdom, decided that the unity of the family interest is predominant.
[5] The adopted respondents from 1978 and the other respondents from the year of their birth were full and legal members of the Campbell River Band, entitled to receive the Christmas allocations payable by decision of the Band Council as approved by the Minister to each and every member of the Band. On this first and basic issue in the controversy, we adopt the analysis of the trial judge.
[6] We also accept the conclusion of the trial judge with respect to the issue of whether the claims would not be time-barred. Here again, her analysis of the evidence which led her to see a true trust relationship between the Band Council and the members of the Band in respect of the payment of the allocations appears to us correct. The moneys paid to the Band Council were, of course, within the limits of the amount of moneys due to the Band by the Government and payable from the Consolidated Revenue Fund, but they were transferred to the bank account of the Band Council on express terms of trust for the Band members. The Band Council could never appropriate those moneys as if they were its own money. That is, to us, sufficient to say that there was a specific and ascertainable trust property.
[7] There remains the issue of the award of prejudgment interest at a rate of prime plus one. While the award may have been generous, we do not feel that it was so excessive or so at variance with the practice of the British Columbia courts as to be outside the scope of the discretion that was hers pursuant to the B.C. Court Order Interest Act. There is, it is true, a difficulty with the wording of paragraph 6 of section 36 of the Federal Court Act which states in fine that "no interest shall be awarded for a period prior to February 1, 1992". But we simply cannot believe that Parliament could have taken away a power exercised by the Court since its creation by such an indirect and incidental provision. On first reading, the words may appear clear but put in context and seen in relation to the history of the jurisdiction of the Court, they lose their initial clarity. What was meant in our understanding is that the new provisions of section 36 would be applicable from the date of the coming into force of the amendment.
[8] On the whole, therefore, we think that the judgment a quo, as it is, is well founded and we will dismiss the appeal.
"Louis Marceau"
J.A.
Date: 19990607
Docket: A-679"96
CORAM: MARCEAU J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
CAMPBELL RIVER INDIAN BAND and
CAMPBELL RIVER INDIAN BAND COUNCIL
Appellants
(Defendants)
- and -
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
Respondents
(Plaintiffs)
- and -
HER MAJESTY THE QUEEN
Respondent
(Defendant)
Heard at Vancouver, British Columbia, on Monday, June 7, 1999.
Judgment rendered from the Bench on Monday, June 7, 1999.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
IN THE FEDERAL COURT OF APPEAL
Date: 19990607
Docket: A-679"96
BETWEEN:
CAMPBELL RIVER INDIAN BAND and
CAMPBELL RIVER INDIAN BAND COUNCIL
Appellants
(Defendants)
- and -
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
Respondents
(Plaintiffs)
- and -
HER MAJESTY THE QUEEN
Respondent
(Defendant)
REASONS FOR JUDGMENT
OF THE COURT
__________________
1 R.S.C. 1970, c. I-6.
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