DREAVER ET AL. v. THE KING

(1935), previously unreported

Exchequer Court of Canada , Angers J ., 10 April 1935

(a) that the Crown be condemned to pay into the funds of the Mistawasis Band of Indians $20,309.26 or so much as may be ascertained to have been improperly charged against said funds;

(b) that the Superintendent General of Indian Affairs be required to account for all sums of interest improperly paid to Mrs. Joseph Tait and Mrs. Patrice Primeau and that the amount thereof be paid into the said funds;

(c) that the Superintendent General be restrained from permitting his agent to farm, for his own purposes, land in the Mistawasis Indian Reserve;

(d) such further relief as may to the Court seem just;

(e) costs against the Crown.

The petition alleges in substance:

-that on the 23rd and 28th of August and the 9th of September, 1876, a treaty was entered into by Her Majesty the Queen, by her Commissioners, and the Plain and Wood Cree and other tribes of Indians now

represented by the Band of Indians at the Mistawasis Indian Reserve, of whom the suppliants are respectively Chief and Councillors, providing for certain land to be set aside for said Indians as a reserve and to be administered for the said band by Her Majesty's Government of the Dominion of Canada;

-that certain lands in or about Township forty-seven (47), Range six (6), West of the Fourth (4th) Meridian were set aside under said treaty;

-that, by surrender dated August 8, 1919, and two other surrenders, the Indians of said band surrendered unto their Sovereign Lord and King certain portions of said reserve, upon the condition that the same should be disposed of for the price mentioned in said surrenders and that money received from such disposition should, after certain payments to members of the band, be disposed of by placing 50 percent to the capital account for the benefit of the band and by using the remaining 50 percent for the following purposes:

(a) to provide rations for the old, sick and destitute members of the band;

(b) to provide houses, furniture and clothing for old and destitute members of the band or houses for young men who start farming;

(c) to provide farming outfits of horses, harness, plows or other implements for able-bodied members of the band who start farming as well as cattle and threshing outfits;

(d) to provide compensation to any Indian who owns buildings or improvements on land surrendered;

(3) to make loan advances, free of interest, to able-bodied returned Indian soldiers, members of the band, for the purpose of providing them with houses, stables, horses, cattle or farming implements;

-that the land surrendered has been mainly disposed of and accounts have been submitted to suppliants by the Department of Indian Affairs for the years 1911 to March 31, 1931, showing receipts and disbursements; certain charges in these accounts are objected to as improper, particularly the following:

1911-1912	$5,100.75 for supplying said Band with twenty-two horses, objected to to the extent of . . . . . . . . .	$2,000.00
1914-1915	R.N.W.M. Police arresting trespassers. . . . . . .	8.75
1918-1919	Drugs and medical supplies	165.53
1919-1920	Drugs and medical supplies	132.08
1920-1921	Medicines . . . . . . .	135.77
1921-1922	Medicines . . . . . . .	368.17
	Expenses taking prisoner to jail . . . . . . . . . .	16.75
	Salary of L.R.H. Nash- Stockman . . . . . . . .	960.00
1920-1921	Salary of Stockman . . .	600.00
1922-1923	Salary of Farm Instructor	960.00
1923-1924	Drugs . . . . . . . . .	297.13
	Salary of Farm Instructor	960.00
	Maintenance of deaf pupils	793.48
1924-1925	Drugs . . . . . . . . .	467.32
	Salary of Farm Instructor	880.00
	Maintenance of deaf pupils	635.79
1925-1926	Salary of Farm Instructor and living allowance . .	1,320.00
	Maintenance of deaf pupils	780.94
	Drugs . . . . . . . . .	320.90
1926-1927	Salary of Farm Instructor and living allowance . .	1,320.00
	Drugs . . . . . . . . .	545.67
	Maintenance of deaf pupils	786.73
1927-1928	Care of Charlotte Sanderson	808.85
	Drugs . . . . . . . . .	573.50
	Salary of Farmer ........	720.00
1928-1929	Drugs ...................	820.02
	Care of C . Sanderson . .	797.69

1929-1930	Drugs . . . . . . . . .	270.17
	Care of C. Sanderson . .	1,015.90
1930-1931	Drugs . . . . . . . . .	393.69
	Care and tuition of C. Sanderson . . . . . . . . .	454.53
		---------
		$20,309.26

-that the sum of $5,100.75 for 22 horses is an overcharge to the extent of at least $2,000.00;

-that drugs, under the treaty, were to be provided free;

-that the band never consented to deaf and dumb children being sent to a school for education at the expense of the band;

-that the treaty provided for free education to the Indians;

-that the suppliants never consented to a farm instructor or stockman being appointed or paid for at their expense;

-charges for salary and maintenance of such officials are improper and contrary to the treaty and surrender;

-that the Department of Indian Affairs permitted the Indian Agent, without the consent of the band, to farm for his own purposes over 100 acres of land, which he continues to do;

-that Mrs. Joseph Tait and Mrs. Patrice Primeau, although not members of the band, have improperly received from the Department of Indian Affairs, out of funds belonging to the band, interest money, without the consent of the band and to the prejudice of its members.

In his statement of defence the Attorney General, on behalf of His Majesty, pleads in substance as follows:

-he admits to allegations of the petition relating to the treaty and surrenders;

-he says that the land set aside as a reserve lies west of the Third Meridian

and not of the Fourth Meridian as alleged in the petition;

-he admits that the land surrendered has been mainly disposed of and that accounts have been submitted to the suppliants but denies that any of the charges therein are improper;

-he denies the other allegations of the petition; and he further avers that:

-all claims for moneys expended prior to August 6, 1926, are barred by the Statute of Limitations;

-the money expended for horses was so expended at the request and with the knowledge, consent and approval of suppliants;

-the expenditures with respect to the education of deaf and dumb children were made with the knowledge, consent and approval of suppliants;

-any interest or annuity money paid to Mrs. Joseph Tait was paid with the knowledge, consent and approval of suppliants and such payments were discontinued as soon as it was made known by the Chief and Councillors of the Mistawasis band that Mrs. Joseph Tait was not a member thereof;

-any payments of interest or annuity money to Mrs. Patrice Primeau were made to her as the wife of Henry Campbell, a member of the band, without the knowledge that she had previously been married to one Joseph Douquette, a member of another band, who, at the time of her marriage to said Campbell, had not been heard of for many years and was presumed to be dead; when it was made known that said Joseph Douquette was still living, no further payments were made to her; furthermore the payments to Mrs. Primeau were made relying upon the advice of the Chief and Councillors of the band and with the knowledge, consent and approval of suppliants;

-as to the whole of the charges objected to, they were made and charged to the funds of the band as by law authorized.

The suppliants filed a reply in which they deny the material allegation of the defence and state:

-that no Statute of Limitations applies to a petition of right;

-alternatively, that the suppliants' claims being founded not on simple contract but by treaty on a specialty contract and a deed under seal, the Statute of Limitations as founded on does not apply;

-alternatively, that the Government of Canada being in a fiduciary position towards suppliants, who are wards of the said Government and are under disabilities, the claims of the suppliants are not barred by the Statute of Limitations;

-alternatively, that the suppliants represent a considerable number of Indians who only acquired an interest in possession within the statutory period, whose claims are in no way affected by the Statute of Limitations;

-that the suppliants had no knowledge of the charges in connection with horses and in connection with the education of deaf and dumb children till accounts were received by them shortly before the date of the petition of right, which accounts were the first and only accounts received by suppliants.

It is contended in the statement of defence and it was urged by counsel for respondent at the hearing that the claims which the suppliants may have had against the Crown are barred by the Statute of Limitations. It will be convenient, I believe, in the circumstances to consider, in the first place, this question of prescription.

Section 32 of the Exchequer Court Act (R.S.C. 1927, c.34) says:

32. The laws relating to prescription and the limitation of actions in force in any province between subject and subject shall, subject to the provisions of any Act of Parliament of Canada, apply to any proceeding against the Crown in respect of any cause of action arising in such province.

The Statute of Limitations properly called which was in force when the action was commenced and to which counsel for the respondent referred is chapter 58 of the Revised Statutes of Saskatchewan of 1930, intituled The Limitations Act. This statute, the scope of which is very limited, does not, in my opinion, apply to the present case. Counsel for the suppliants relied on sections 34 and 35 of chapter 18 of the Statute of Saskatchewan of 1932, being the Limitation of Actions Act, 1932, which came into force by proclamation on November 15, 1933, subsequently to the service of the petition.

I think that the statute governing the question of limitation in the present instance is The Limitation of Actions Act, 1932. Section 43, dealing with the application of the act, gives it a retroactive effect; it reads as follows:

43. The provisions of this Act shall apply to all causes of action whether the same arose before or after the coming into force of this Act, but no action shall be barred merely by its operation until the expiry of six months from its coming into force:

Provided that all actions that would have been barred by effluxion of time during such six months under the provisions of the law existing immediately prior to the coming into force of this Act, shall be barred as if such law were still existing.

The sections of chapter 18 of the statute of 1932, regulating the limitation of actions against trustees, are sections 34, 35 and 36. Of these, only section 34 and subsections (1) and (2) of section 35 are relevant; they are in the following terms:

34. Subject to the other provisions of this Part no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by this Act.

35. (1) In this section "trustee" includes an executor, an administrator and a trustee whose trust arises by construction or implication of law as well as an express trustee, and also includes a joint trustee.

(2) In an action against a trustee or any person claiming through him except where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use,

(a) all rights and privileges conferred by this Act shall be enjoyed in the like manner and to the like extent as they would have been enjoyed in such action if the trustee or person claiming through him had not been a trustee or person claiming through a trustee;

(b) if the action is brought to recover money or other property, and is one to which no limitation provision of this

Act applies, the trustee or person claiming through him shall be entitled to the benefit of, and be at liberty to plead, the lapse of time as a bar to such action in the like manner and to the same extent as if the claim had been against him in an action for money had and received;

Section 34 and the exception contained in subsection (2) of section 35 deny to a trustee the right to invoke the Statute of Limitations against a claim of the nature of the present one, i.e. a claim for the recovery of monies received by the trustee and retained by him or, which, in my judgment, is equivalent, improperly applied or expended.

Even if I had come to the conclusion that the Limitation of Actions Act, 1932, was not retrospective, I would still be of [the] opinion that the law relating to the limitation of actions, as it existed at the time of the institution of the action, did not bar, through lapse of time, the suppliants' claim.

The law dealing with limitation of actions against trustees when the proceedings herein were commenced is to be found in section 77 of chapter 92 of the Revised Statutes of 1930, known as The Trustee Act.

The only part of section 77 having any relevance in the present case is worded as follows:

77. (1) In any action or other proceeding against a trustee or any person claiming through him, except where the claim is founded upon a fraud or fraudulent breach of trust to which the trustee was party or privy or is to recover trust property or the proceeds thereof still retained by the trustee or previously received

by him and converted to his own use, the following provisions shall apply:

(a) the law relating to the limitation of actions shall apply in the like manner and to the like extent as it would if the trustee or person claiming through him had not been a trustee or a person so claiming;

(b) if the action or other proceeding is brought to recover money or other property and is one to which no law relating to the limitation of actions applies, and trustee or person claiming through him may plead the lapse of time as a bar to such action or other proceeding in the like manner and to the like extent as if the claim had been against him in an action of debt for money had and received;....

Substantially similar provisions are contained in section 70 of chapter 75 of the Revised Statutes of 1920, in section 56 of chapter 46 of the Revised Statutes of 1909 and in section 55 of chapter 11 of the Ordinances of the North-West Territories, 1903 (2nd Session).

Under the terms of the exception contained in subsection (1) of section 77 trustees are denied the benefit of the Statutes of Limitations in three cases; among these is the one in which the claim is for the recovery of trust property or the proceeds thereof retained by the trustee.

Subsection (2) of section 35 of the Limitation of Actions Act, 1932, contains, as we have seen, a similar exception. Section 34 was first introduced in the statute of 1932; there was no similar provision in the Act of 1930. I do not think that section 34 modifies in any way the scope of the

exception contained in section 35. It deals solely with the claim of a cestui que trust against his trustee for property held under an express trust. With this subject we are not concerned. Section 34 is the reproduction of a similar enactment adopted in England in 1873; subsection (2) of section 25 of the Supreme Court of Judicature Act, 1873 (36 & 37 Vict., ch.66), from which section 34 of the Limitation of Actions Act, 1932, is derived, reads as follows:

(2) No claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any Statute of Limitations.

Prior to the adoption of this act, trusts in England were excepted from the operation of the Statutes of Limitation. In Darby & Bosanquet's Statutes of Limitations, (2nd edition), at page 245, we find a brief and clear statement of the law at that time:

If the relation of trustee and cestui que trust was once actually constituted, so long as it subsisted lapse of time was never allowed by Courts of Equity to affect the rights of the cestui que trust. The law on this subject, as recognized and administered in Courts of Equity (In re Cross. Harston v. Tenison, 20 Ch. D. 121), has now been expressly declared by statute and made applicable to all Courts by the Judicature Act, 1873, sect. 25, subsect. 2, of which is as follows: "No claim of a cestui que trust against his trustee for any property, held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any Statute of Limitations." As this is only a statutory declaration of the law

administered in Courts of Equity, it is still of importance to consider the way in which those Courts, before the Judicature Act, 1873, excepted trusts from the operation of the Statutes of Limitations. Before 3 & 4 Wm. IV., c. 27, if a trustee was in possession of land under a trust which he failed to execute, his possession was treated as that of his cestui que trust. Notwithstanding the fact that he did not perform his trust, length of time did not operate as a bar, because his possession was according to his title as trustee (Hovenden v. Lord Annesley, 2 Sch. & Lef. 607, 633; Chalmer v. Bradley, 1 Jac. & W. 51, 67). This, however, was in strict analogy to the legal doctrine, according to which the occupation of land without payment of rent or acknowledgment of the title of the rightful owner did not, unless the possession was strictly adverse to that title, bar his legal right of entry. When any person is in receipt of money as agent or guardian, or in any other fiduciary capacity for which it is his duty to account, so long as the relation of confidence continues to exist between the parties, no lapse of time can bar the right to an account from the commencement of the transactions. Nor will the statute begin to run when the relation is put an end to; mere lapse of the time has never been allowed to protect a trustee in the enjoyment of property of which he obtained possession in the character of trustee (Mathew v. Brise, 14 Beav. 341; Pelly v. Bascombe, 4 Giff. 390. See Pare

v. Clegg, 29 Beav. 589; 30 L.J. Ch. 742).

I believe that this was the law in the North-West Territories and later in the Province of Saskatchewan until the Parliament of this province decided to legislate on the subject. In virtue of section 45 of the Limitation of Actions Act, 1932, the Parliament of Saskatchewan repealed certain Imperial Acts or parts of Acts then in force in the province and by section 34 explicitly introduced into the Act of 1932 the provision of the Supreme Court of Judicature Act, 1873, stipulating the inapplicability of the Statutes of Limitations to trustees.

If we were to adopt the view that the exception set forth in subsection (1) of section 77 of the Trustee Act of 1930 does not affect the present instance and that consequently the respondent is entitled to invoke the Statute of Limitations, the time required to bar the suppliants' claim would, in my opinion, only reckon from the day the suppliants became aware of the charges made against the Indian fund: Darby & Bosanquet (op. cit., pp. 266, last paragraph, and 267; pp. 452, in fine, and 453).

The evidence discloses that the suppliants only had cognizance of this fact a short time before the proceedings were started, to wit when they received the accounts of the Department of Indian Affairs filed as exhibit 5. So even in this alternative the suppliants' recourse would not be barred by the Statute of Limitations.

It was argued on behalf of the suppliants that no Statute of Limitations applies to a petition of right; counsel relied on Darby & Bosanquet's (op. cit. p. 518) and Rustomjee v. The Queen [(1876), 45 L.J. 249.]. Up to the time of the adoption of the Petition of Right Act in 1876 the Crown had no right to set up in defence the Statute of

Limitations against a petition of right. This right however was conveyed upon the Crown by section 7 of the Petition of Right Act, 1876 (39 Vict., ch. 27). Section 7 reads as follows:

7. The statement in defence, or demurrer may raise, besides any legal or equitable defences in fact or in law available under this Act, any legal or equitable defences which would have been available had the proceeding been a suit or action in a competent court between subject and subject; and any grounds of defence which would be sufficient on behalf of Her Majesty, may be alleged on behalf of any such person, as aforesaid.

Section 7 was re-enacted in the Revised Statutes of 1886, 1906 and 1927: see R.S.C. 1886, c.136, s.8; R.S.C. 1906, c.142, s.8; R.S.C.. 1927, c.158, s.8.

On the question of the right of the Sovereign to plead the defence of the Statute of Limitations, see McQueen v. The Queen [16 S.C.R. 1, at 60, 81 and 113].

Ritchie C.J., at page 60 of the report says:

The crown has also invoked the benefit of the statute of limitations which, in my opinion, is a clear answer to this claim, if the crown can raise such a defence, and that it can do so is not, in my opinion, open to doubt or controversy.

Strong J., at page 81, discusses the case of Rustomjee v. The Queen and arrives at the conclusion that it has no application in view of (inter alia) the difference between the English Act and the Canadian Act.

The cases of Cayzer, Irvine & Co. v. Board of Trade [(1926), L.J. 95 K.B. 134] and of Re Mason [(1923), 139 L.T.R. 477],

referred to during the argument, are of little, if any, assistance: the first one holds that the Crown is entitled, in arbitration proceedings, to set up in defence the Statute of Limitations; the second one declares that the Statutes of Limitation were made applicable to petitions of right by the Intestates' Estates Act, 1884. In both decisions the case of Rustomjee v. The Queen was discussed.

The plea that the suppliants' action is barred by the Statute of Limitations being disposed of, I shall now proceed to examine the several items of the suppliants' claim. Before doing this however, it seems pertinent and apposite to examine the treaty and deeds of surrender and to note particularly the clauses in each of these instruments which are apt to affect the merit of the various claims.

The treaty of 1876 between Her Majesty the Queen and the Plain and Wood Cree Indians referred to in the petition of right was filed as exhibit 1.

The three deeds of surrender dated respectively the 20th of March, 1911, the 8th of August, 1919 and the 8th of August, 1919, also mentioned in the petition, were filed as exhibits 2, 3 and 4.

In virtue of the treaty of 1876 the Plain and Wood Cree Tribes of Indians and all other Indians inhabiting the lands described in the said treaty ceded, released and surrendered to the Government of the Dominion of Canada, for Her Majesty the Queen and Her Successors forever, all their rights, titles and privileges to the said lands as well as to all other lands wherever situated in the North-West Territories or in any other Province or portion of Her Majesty's Dominions situated within the Dominion of Canada.

Her Majesty the Queen, on the other hand, agreed and undertook to lay aside reserves for farming lands, due respect being had to lands then cultivated by the Indians, and other reserves for the benefit of the Indians, to be administered for them by Her Majesty's Government of the Dominion of Canada. A stipulation in the treaty provides that the Chief Superintendent of Indian Affairs shall send a person to "determine and set apart the reserves for each band, after consulting with the Indians thereof as to the locality which may be found to be most suitable for them".

The treaty then contains a proviso reading as follows:

Provided, however, that Her Majesty reserves the right to deal with any settlers within the bounds of any lands reserved for any band as She shall deem fit, and also that the aforesaid reserves of land, or any interest therein, may be sold or otherwise disposed of by Her Majesty's Government for the use and benefit of the said Indians entitled thereto, with their consent first had and obtained;...

Then comes a clause relating to schools, which says:

And further, Her Majesty agrees to maintain schools for instruction in such reserves hereby made as to Her Government of the Dominion of Canada may seem advisable, whenever the Indians of the reserve shall desire it.

The next and only other clause in the treaty having any materiality in the present instance is the one dealing with medicines; it is in the following terms:

That a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians at the direction of such agent.

By the deed bearing date of 20th of March, 1911 (exhibit 2) the Mistawasis Band of Indians released, remised and surrendered to His Majesty the King a certain parcel or tract of land containing 1607 acres, situate and lying in the Indian Reserve No. 103 at Snake Plain, in the Province of Saskatchewan. Under the terms of this deed His Majesty the King, his Heir and Successors were to hold the said parcel or tract of land forever in trust to dispose of the same to such person or persons and upon such terms as the Government of the Dominion of Canada might deem most conducive to the welfare of the said Indians.

The monies received from the sale of said land, after deducting the usual proportion for expenses of management, was to be placed to the credit of the Mistawasis Band and disposed of for the various purposes set forth in the said deed, purposes with which we are not concerned in this case, and the balance of the proceeds of such sale was to remain to the credit of the band.

This deed of surrender offers little, if any, interest.

By the deed dated the 8th of August, 1919, a copy of which was filed as exhibit 3, the Mistawasis Band of Indians released, remised and surrendered to His Majesty the King another parcel or tract of land, containing 11,520 acres, situate and lying in the same reserve.

As in the previous deed, His Majesty the King, his Heirs and Successors were to hold the land forever in trust to dispose of it to such person or persons and upon such terms as the Government of The Dominion of Canada might deem most conducive to the welfare of the said Indians. In this deed the price at which the land was to be disposed of was fixed at $138,000.

It is stipulated in the deed exhibit 3 that the monies received from the disposition of the land shall, after deducting the usual proportion for expenses of management, be disposed of in the following manner:

(a) That at the time of signing the surrender there shall be paid to each member of the Band resident upon the Reserve, the sum of One Hundred dollars ($100.00);

(b) That of the monies collected from the sale of land, Fifty per cent shall be placed to Capital Account to be used for the benefit of the Band by the Honourable Superintendent General of Indian Affairs;

(c) That the remaining monies collected from the sale of land shall be placed to the credit of an account to be used at the discretion of the Honourable Superintendent General of Indian Affairs, for the following purposes:

(1) To provide rations for the old, sick and destitute members of the Band.

(2) Suitable House, furniture and clothing for old and destitute members of the Band, or houses for young men who start farming.

(3) Farming Outfits of Horses, Harness, Plows or other necessary implements for able-bodied members of the Band who start farming, and for the purchase of Cattle or Threshing Outfits.

(4) To provide compensation to be paid to any Indian who owns buildings or other improvements upon any of the land surrendered.

(5) To make loan advances free of interest to able-bodied Returned Indian Soldiers who are members of the Mistawasis Band of Indians, for the purpose of providing them with Houses, Stables, Horses, Cattle or Farming Implements.

(d) That on or about the first day of February in each year there shall be distributed equally amongst the members of the Band, an amount equal to the interest accruing from all funds held in trust by the Department.

By the deed also dated the 8th of August, 1919, a copy whereof was filed as exhibit 4, the Mistawasis Band of Indians released, remised and surrendered to His Majesty the King a third parcel or tract of land, containing 5,028 acres, situate in the Province of Saskatchewan, presumably in the same reserve - the description of the property does not specify the site more precisely. In virtue of this deed, as under the previous surrenders, His Majesty the King, his Heirs and Successors were to hold the said parcel or tract of land forever in trust to dispose of the same to such person or persons and upon such terms as the Government of the Dominion of Canada might deem most conducive to the welfare of the Indians. The price at which the land was to be disposed of was, in this case, fixed at $60,000.

This deed exhibit 4 contains provisions to a large extent similar to those found in exhibit 3; some of them in fact are identical. It provides that all monies received from the disposition of the land shall, after deduction of the usual proportion for expense of management, be disposed of as follows:

(a) That on or about the first day of November, A.D. 1919, there shall

be paid to each member of the Band the sum of Fifty Dollars ($50.00).

(b) Same as in exhibit 3.

(c) That the remaining monies collected from the sale of land shall be placed to the credit of an account to be used at the discretion of the Honourable Superintendent General of Indian Affairs, for the following purposes:

(1) To provide Rations for the old, sick and destitute members of the Band.

(2) Suitable Houses, Furniture and Clothing for old and destitute members of the Band, or Houses for young men who start farming.

(3) Farming outfits of Horses, Harness, Plows or other necessary implements for able-bodied members of the Band who start farming, and for the purchase of Cattle or Threshing Outfits.

(4) To make loan advances free of interest to able-bodied Returned Indian Soldiers who are members of the Mistawasis Band of Indians for the purpose of providing them with Houses, Stables, Horses, Cattle or Farming Implements.

(d) Same as in exhibit 3.

These are the only provisions in the treaty and in the deeds of surrender having any bearing on the items in dispute.

The accounts in which are included the charges objected to, running from 1911 to the 31st of March, 1931, were received by Chief Dreaver in or about 1932 (dep. George Dreaver, p. 21). These accounts were filed as exhibit 5.

The first charge which is objected to by the suppliants is one for $2000. The amount is claimed as a rebate on the price

of horses bought for Indians of the Mistawasis Band in 1911. The price amounted to $5,100.75 (see the first item in paragraph 4 of the petition and the entries on the second page of exhibit 5); the suppliants contend that this sum is an overcharge to the extent of at least $2000. Eighteen of the horses in question were bought in the Province of Ontario and from there shipped to the Mistawasis Reservation, in Saskatchewan. They are the horses described in exhibits 8 and A. They have been referred to, during the trial, as eastern horses. The suppliants' contention is that these horses were not fit to do farm work in the west, that they were not inured to the western climate, that they were subject to swamp fever, that many of them died within a few months from their arrival on the reserve and that not a single one lived more than three years. The evidence on this point, although not unanimous, is unquestionably favourable to the suppliants' contention: see the depositions of George Dreaver, pp. 17, 18, 31; D.A. Ross, pp. 41, 44, 45; Watson, p. 77; Head, p. 87; Joseph Dreaver, pp. 95, 96, 97; Brazenall, pp. 109, 116; Brownlee, pp. 121, 122; McIntosh, p. 130.

I am satisfied that the horses brought from Ontario in 1911, not being used to the climate of northern Saskatchewan, did not live as long as the local horses. The proof however shows that they were young horses, in good condition, and that they were well worth the price at which they were purchased.

Another aspect of the case with regard to the purchase of eastern horses which deserved consideration and which, in fact, was dealt with at the trial was the possibility of obtaining farming horses in or around Prince Albert or anywhere else near the Mistawasis Reserve in 1911.

witnesses on this point do not agree, which could have been anticipated, and the evidence is contradictory. Witnesses called by the suppliants say that there were plenty of horses procurable in the Province of Saskatchewan and that they could have been purchased at substantially lower prices: see depositions of George Dreaver, on discovery, question 54; D.A. Ross, pp. 41, 43; Smith, p. 65; Head, p. 87; Joseph Dreaver, p. 98. Witnesses heard on behalf of the respondent, on the other hand, swear that there was a scarcity of good farming horses in Saskatchewan in 1911: see depositions Brazenall, pp. 107, 109; Brownlee, p. 121; McIntosh, p. 130.

The evidence given by the respondent's witnesses in this respect is more specific and more categorical than that given by the suppliants' witnesses. Moreover it must not be overlooked that it was incumbent on the suppliants to establish beyond doubt that as good farming horses as those brought from the east were available in the west in 1911. The evidence adduced by suppliants in support of their contention is not, to my mind, very convincing nor satisfactory. Besides I may say that it is hard for me to believe that the Indian Agent at Mistawasis would have deemed proper and reasonable to bring horses from the east, if horses of the same type and quality could have been obtained in or around Prince Albert at a lower price. On the whole I do not think that the proof of record warrants the conclusion that the Department of Indian Affairs overpaid $2000 on the horses it bought for the Indians and that the suppliants are entitled to a reimbursement pro tanto. The suppliants' claim with regard to this sum of $2000 is unfounded and must accordingly fail.

The next item of the suppliants' claim, as we have seen, is set forth as follows: 1914-1915 R.N.W.M. Police arresting trespassers--$8.75.

Another charge of a similar nature is the following: 1921-1922 Expenses taking prisoner to jail--$16.75.

Nothing is said in the treaty nor in the deeds of surrender in relation to police or the maintenance of good order on the reserve. There are no provisions in the Indian Act (R.S.C. 1906, c. 81) touching upon the subject, with the exception of sections 33 to 37a and 124 to 129, which have no bearing on the point under consideration. The evidence throws no light on the matter: two copies of information and complaint and two copies of commitment were filed respectively as exhibits 36, 37, 38 and 39. One information and complaint and one commitment (exhibits 36 and 38) concern an Indian of the Mistawasis Reserve found guilty of trespassing on Sandy Lake Reserve; the other complaint and information and the other commitment (exhibits 37 and 39) relate to an Indian of the Sandy Lake Reserve found guilty of trespassing on Mistawasis Reserve. The charge of $16.75 in 1921-1922 for "Expenses taking prisoner to jail" was apparently made in connection with these two informations and complaints and commitments. I see nothing in the Act nor in the treaty and surrenders authorizing this charge. The same remarks apply a fortiori to the charge of $8.75 in 1914-1915, about which there is not a word of evidence in the record. I am of [the] opinion that the Department of Indian Affairs had no right to charge these sums of $8.75 and $16.75 against the funds of the Mistawasis Band of Indians and that in consequence they should be paid back into the said funds.

We then come to the several charges for drugs, medical supplies or medicines totalling $4,489.95.

As I have previously pointed out, the treaty stipulates that a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians at the direction of the Agent. This, in my opinion, means that the Indians were to be provided with all the medicines, drugs or medical supplies which they might need entirely free of charge. The proof does not elicit what the medicines, drugs or medical supplies, mentioned in the statement inserted in paragraph 4 of the petition, were nor does it show the reason why they were charged. Do they constitute all the medicines, drugs and medical supplies furnished to the Indians of the Mistawasis Band by the Department of Indian Affairs or do they only represent a part of what was supplied to them, there is nothing in the evidence to indicate it. Be that as it may, I do not think that the Department had, under the treaty, the privilege of deciding which medicines, drugs and medical supplies were to be furnished to the Indians gratuitously and which were to be charged to the funds of the band. The treaty makes no distinction; it merely states that a medicine chest shall be kept at the house of the Indian Agent for the use and benefit of the Indians. The clause might unquestionably be more explicit but, as I have said, I take it to mean that all medicines, drugs or medical supplies which might be required by the Indians of the Mistawasis Band were to be supplied to them free of charge.

The suppliant Dreaver was present when the treaty was signed in 1876; he was then approximately twenty years old. He remembers the conversation between the Commissioners

representing Her Majesty the Queen and the Chiefs and Headmen acting for the Indians about medicines and says that it was understood that all medicines were to be supplied free to the Indians (dept. Dreaver, pp. 13, 14, 25 and 26). The witness declares that in fact medicines were supplied gratuitously to the Indians from the date of the treaty until the band surrendered land to the Crown (dept. George Dreaver, p. 14). The date of the surrender is not mentioned, but the first charge for medicines is in 1918-1919; this seems to indicate that the witness was referring to the surrenders made in 1919, to wit exhibits 3 and 4.

The claim of the suppliants with regard to the charges for medicines, drugs and medical supplies is, I think, well founded.

I shall now deal with the charges relating to the salary of the farm instructor, stockman or farmer as he is alternatively called in the petition. These charges total $7,720.

It was argued on behalf of the respondent that these charges were authorized by subsection 1 of section 89 of the Indian Act (R.S.C. 1906, c. 81); it reads as follows:

With the exception of such sum not exceeding fifty per centum of the proceeds of any land, and not exceeding ten per centum of the proceeds of any timber or other property, as is agreed at the time of the surrender to be paid to the members of the band interested therein, the Governor in Council may, subject to the provisions of this Part, direct how and in what manner, and by whom, the moneys arising from the disposal of Indian lands, or of property held or to be held in trust for Indians, or timber on Indian lands or reserves,

or from any other source for the benefit of Indians, shall be invested from time to time, and how the payments or assistance to which the Indians are entitled shall be made or given.

This section confers on the Governor General in Council very broad powers with regard to the investment of monies arising from the disposal of Indian lands, but it is subordinate in each case to the terms of the deed of surrender.

It may be noted that subsection 1 of section 92 of the Indian Act of 1927 (R.S.C. 1927, c.98), with the exception of a variation immaterial herein, is identical.

The deeds in the present case, to wit exhibits 3 and 4, are quite explicit and indicate clearly the purposes for which the funds are to be used; they contain no stipulation whatever concerning the payment of the salary of a stockman, farm instructor or farmer.

Several letters were produced dealing with this question; they are exhibits 9 to 24 inclusive. They show that Chief Dreaver, one of the suppliants, always objected on behalf of his band to the payment of this salary out of the band's funds. I do not propose to go into the details of this correspondence; I may perhaps quote, however, from a letter written by the Indian Commissioner and bearing date the 9th of August, 1928, an extract which shows that evidently the Department of Indian Affairs was not at all convinced that it had the right to charge the farm instructor's salary to the band's funds; the extract in question is worded as follows:

With reference to Inspector Murison's remarks in connection with the surrender, I think perhaps it is a mistake to charge up the salaries of the Farming Instructor to Band

funds, I understand, however, that it is not the intention of the Department to continue this in future.

After carefully examining the sections of the Act dealing with the investment of Indian funds in conjunction with the deeds of surrender and also the correspondence, I have reached the conclusion that the salary of the farm instructor should not have been charged against the band's funds and that the suppliants' claim that the amount of such salary, namely $7,720, be paid into the funds of the band is well founded.

The next charges to which the suppliants object are those concerning the maintenance of deaf pupils or the care and tuition of Charlotte Sanderson. All these charges in fact, be they under the first or second head, concern a deaf and dumb child named Charlotte Sanderson, a member of the Mistawasis Band, who, in 1922, when about 8½ years of age, was placed in a deaf and dumb institute in Manitoba, where she stayed until 1931 or thereabout.

The respondent submits that he is entitled to charge the cost of the care and tuition of this child in virtue of subsection (d) of section 92 of the Indian Act (R.S.C. 1906, c.81). The subsection in question is in the following terms:

92. The Superintendent General may,- ...

(d) whenever sick or disabled, or aged or destitute Indians are not provided for by the band of which they are members, furnish sufficient aid from the funds of the band for the relief of such sick, disabled, aged or destitute Indians.

I may note incidentally that subsection (d) of section 95 of the Indian Act of 1927 (R.S.C. 1927, c.98) is textually the same.

I do not think that under the terms of

subsection (d) of section 92 the Superintendent General was empowered to charge the cost of the care and tuition of the child Charlotte Sanderson against the funds of the band. The child was not, in my judgment, a sick or disabled person within the meaning of subsection (d). This apparently seems to have been the opinion of the Department of Indian Affairs at least at the time the girl was placed in the Manitoba School for the Deaf, judging from the correspondence deposited in the record, particularly the telegram and letter filed as exhibits 28 and 30.

The telegram, which bears date of 13th of September, 1921, reads as follows:

W.M. Graham

Indian Commissioner

Regina, Sask.

Department will defray expenses re Lottie Sanderson. Kindly make arrangements.

(Signed) J.D. McLean

The letter, which is dated the 13th of September, 1923, is a letter from W.M. Graham, the Indian Commissioner at Regina, Sask., to the Secretary of the Department of Indian Affairs in Ottawa; it contains, among others, the following comments:

In forwarding the account the Bursar states that the girl's father promised to pay the account and it would appear that he made a deposit at the school of $15.00. As, however, the Department had undertaken to pay for the girl's tuition at the institution there seems to be no reason why the parent should have made any contribution.

I may add that the clause in the deeds of surrender (exhibits 3 and 4) is narrower and consequently less favourable to the

respondent than subsection (d) of section 92.

The evidence discloses that the suppliants were not aware of the charges made for the care and tuition of Charlotte Sanderson until they received the statement of the Department of Indian Affairs in 1932.

These charges total $6,073.81 and this sum should therefore be paid into the funds of the Mistawasis Band.

The last claim is for the interest money paid to Mrs. Joseph Tait and Mrs. Patrice Primeau out of the band's funds, although they were not members of the band.

Counsel for the respondent admitted at the trial that the Department of Indian Affairs had paid to Mrs. Primeau, between the years 1919 and 1928, the sum of $444.62 and to Mrs. Tait, between the years 1919 and 1931, the sum of $522.62. The admission appears at page 20 of the deposition of George Dreaver.

Mrs. Tait and Mrs. Primeau lived on the Mistawasis Reserve for several years, the former with a man known as John Muchahoo or John Bird and the latter with a man named Campbell. Muchahoo alias Bird and Campbell were both members of the Mistawasis Band.

Chief Dreaver says that he made objections to the Indian Agent to the payment of interest money to Mrs. Primeau and Mrs. Tait at the time the sum of $100 was paid to each member of the band under the deed of surrender of the 8th of August, 1919 (exhibit 3); the witness however could not remember the year (see deposition George Dreaver, pp. 20 and 37). The Chief is partly corroborated by his son (dep. Jos. Dreaver, pp. 99 and 100). The evidence on the whole is not very conclusive. In view of the fact that Mrs. Primeau and Mrs. Tait had been living on the reserve for many years, to the knowledge and apparently with the consent

of the Chief and the Councillors, the Indian Agent had reason to believe that they were members of the band and, in my opinion, it was incumbent upon the suppliants, in the circumstances, to establish decisively that the Indian Agent or the Department of Indian Affairs had been notified that these women were not entitled to receive interest money out of the band's funds. I do not think that the suppliants have succeeded in proving this fact in a satisfactory manner. The claim of the suppliants with regard to the money paid to Mrs. Tait and Mrs. Primeau must accordingly be rejected.

The suppliants, as has been previously mentioned, complain that the Department of Indian Affairs has permitted the Agent at Mistawasis to farm, for his own purposes, over one hundred acres of land without the consent of the band and they ask that the Superintendent General of Indian Affairs be restrained from permitting the said Agent to farm on the reserve.

The suppliant Dreaver testified that the Department of Indian Affairs had asked him to allow the Agent at Mistawasis to have a garden on the reserve and a pasture for his horses and cow; witness says that he agreed to this (dep. George Dreaver, p. 20). Instead of this the Agent, according to the Chief's version, has approximately 80 acres in crop and is keeping a number of cattle on the reserve (Ibid., pp. 20, 21, 28 and 29). The Indian Agent has evidently been a little too ambitious and enterprising and has exceeded the permission given him by the Chief to have a garden for his personal use and a pasture for his cow and horses. I think he should refrain from farming on a large scale, as he has been doing in the past few years.

The suppliant Dreaver instructed his solicitor to complain about this (dep. George Dreaver, p. 21). The latter wrote a letter to the Deputy Controller General of Indian Affairs at Ottawa on July 12, 1932; a copy of the letter was filed as exhibit 25. The suppliant Dreaver stated that the Department of Indian Affairs took no notice of the complaint (Ibid., p. 21). I think in the circumstances that the demand of the suppliants to have the Superintendent General of Indian Affairs restrained from permitting the Indian Agent at Mistawasis to farm for his own purposes on the reserve is justified.

For the reasons hereinabove set forth I have reached the conclusion that the suppliants are entitled to a portion of the relief sought by their petition and there will be judgment:

(a) ordering the respondent to pay into the funds of the Mistawasis Band of Indians the sum of $18,309.26;

(b) restraining the Superintendent General of Indian Affairs from permitting his Agent on the Mistawasis Reserve to farm land on the said reserve for his own purposes.

The suppliants will also be entitled to their costs against the respondent.

Counsel for the suppliants has asked me to direct the Department of Indian Affairs to pay his fees as between solicitor and client out of the funds of the band. However fair and reasonable I may believe this request to be, I do not think that it is within my province to give a direction to the Department of Indian Affairs in this action. I will reserve counsel for the suppliants the right to come before me to have his fees as between solicitor and client taxed after due notice to the suppliants and to the Superintendent General of Indian Affairs.