Beattie v. Canada

Beattie v. Canada
Court (s) Database
Federal Court Decisions
Date
2004-05-06
Neutral citation
2004 FC 674
File numbers
T-2134-00, T-2203-00, T-2204-00
Notes
Reported Decision
Decision Content
Date: 20040506
Dockets: T-2203-00
T-2204-00
T-2134-00
Citation: 2004 FC 674
BETWEEN:
BRUCE ALLAN BEATTIE
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
LAFRENIÈRE P.
[1] The Plaintiff, Bruce Beattie (the "Plaintiff"), is the assignee of various treaty annuity rights of ten assignors, who are said to be descendants of treaty Indians. The Plaintiff claims that the assignors are entitled to treaty annuities dating back to their birth. As assignee, the Plaintiff has brought three separate actions to recover the yearly annuity arrears, including interest. Her Majesty the Queen in right of Canada (the "Crown") denies that the assignors are entitled to treaty annuities for the periods claimed, or to any interest thereon.
[2] Rule 50(2) provides that a prothonotary may hear an action exclusively for monetary relief, provided the amount claimed in each action does not exceed $50,000.00, exclusive of interest and costs. The payments at issue are nominal, and the actions are therefore within a prothonotary's jurisdiction. Once the Plaintiff's claim for simple and compounded interest is added however, the amounts involved can be quite substantial.
[3] These actions are the latest in a series of similar actions brought over the past decade by several of the Plaintiff's family members against the Crown for treaty annuity arrears. Since all previous actions were settled before trial, the application of interest to annuity arrears has not been finally determined.
[4] Among the issues raised in the actions are: whether the assignors are entitled to the annuity payments; whether the Crown owes a duty to the assignors; whether the treaty obligations have been extinguished, or otherwise limited; whether the assignments held by the Plaintiff are valid pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11 ("FAA"); whether the claims are time-barred; the amount of the claim; and whether interest is payable, and if so, what is the applicable rate and whether it can be compounded.
[5] On April 1, 2003, following a pre-trial conference, Prothonotary Hargrave ordered that the trial of two issues be determined separately pursuant to Rule 107 of the Federal Court Rules, 1998, in order to reduce the cost of trial, to encourage settlement, and to expedite matters.
[6] The two issues for separate determination are as follows:
(a) the effect, if any, of the FAA on the validity of the assignments to the Plaintiff; and
(b) whether interest is owing on any annuity arrears that may be found to be owing and, if so, what the interest rate is, whether it is simple or compound interest, and how it is to be calculated.
[7] The hearing of the bifurcated issues proceeded on the basis of an agreed statements of facts specific to each action, affidavit evidence of Nicholas Mitchell and Michael McGinty, documentary evidence contained in a Joint Book of Documents, and evidence from examinations for discovery of the Plaintiff and the assignors. The materials filed by the parties are voluminous, and extensive legal submissions were made, both orally and in writing. These reasons set out only a summary of the relevant facts and legal arguments of the parties.
[8] For the reasons that follow, I conclude that the assignment of treaty annuities are invalid and void, and that the three actions should accordingly be dismissed. In the event that my conclusion regarding the validity of the assignments is incorrect, I conclude that no interest can be recovered by the Plaintiff for any of the annuity arrears at issue.
The Facts
[9] The assignors in the three actions are all direct natural descendants of original treaty adherents to either Treaty 6 or Treaty 11. In all cases, the applicable treaty pre-dates the births of the respective assignors. Each of the assignors is a registered treaty Indian pursuant to the Indian Act, R.S.C. 1985, c. I-5 (the "Indian Act"), and all but one of them have been paid treaty annuities at some point in their lives.
[10] Treaty No.6 provides in part, as follows:
. . . with a view to show the satisfaction of Her Majesty with the behaviour and good conduct of her Indians, she hereby, through her Commissioners, makes them a present of twelve dollars for each man, woman and child belonging to the bands here represented, in extinguishment of all claims heretofore preferred; . . .
And further, that Her Majesty's Commissioners shall, as soon as possible after the execution of this treaty, cause to be taken an accurate census of all the Indians inhabiting the tract above described, distributing them in families, and shall, in every year ensuing the date hereof, at some period in each year, to be duly notified to the Indians, and at a place or places to be appointed for that purpose within the territory ceded, pay to each Indian person the sum of $5 per head yearly.
Treaty No.11 contains similar wording, as follows:
And in order to show the satisfaction of His Majesty with the behaviour and good conduct of His Indian subjects, and in extinguishment of all their past claims hereinabove mentioned, He hereby, through his Commissioner, agrees to give to each Chief a present of thirty-two dollars in cash, to each Headman, twenty-two dollars, and to every other Indian of whatever age of the families represented, at the time and place of payment, twelve dollars.
HIS MAJESTY, also agrees that during the coming year, and annually thereafter, He will cause to be paid to the said Indians in cash, at suitable places and dates, of which the said Indians shall be duly notified, to each Chief twenty-five dollars, to each Headman fifteen dollars, and to every other Indian of whatever age five dollars, to be paid only to heads of families for the members thereof, it being provided for the purposes of this Treaty that each band having at least thirty members may have a Chief, and that in addition to a Chief, each band may have Councillors or Headmen in the proportion of two to each two hundred members of the band.
[11] In Court No. T-2204-00 , the assignors, James Delap Harris, William Thomas Harris, Nora Eileen Matchatis ("Nora Matchatis"), and Bridget Angela Volden, are siblings and grandchildren of original Treaty 6 adherents. They are all currently registered as Indians pursuant to the Indian Act. The Department of Indian Affairs and Northern Development ("DIAND") has recognized the siblings, other than Nora Matchatis, as being entitled to receive annuities pursuant to Treaty No. 6 since the dates of their respective applications for registration as status Indians under the Indian Act, but not prior to those dates. DIAND has recognized Nora Matchatis as being entitled to annuities since the year following her marriage to a Treaty 6 Indian.
[12] In Court No. T-2134-00, the assignor, Charles Edward Harris ("Charles Harris") is a grandchild of original Treaty 6 adherents and is currently registered as an Indian pursuant to the Indian Act. DIAND has recognized Charles Harris as being entitled to receive annuities pursuant to Treaty No. 6 since the date of his application for registration as a status Indian under the Indian Act, but not prior to that date. Any cause of action for breach of treaty obligations by the Crown to make payment of annuities to Charles Harris arose within the Province of Alberta.
[13] Reproduced below is the Agreed Statement of Facts in Court No. T-2203-00, which is representative of the statements agreed to in the other two proceedings.
AGREED STATEMENT OF FACTS
1. The assignors, Philip George Harris, Mary Martha Harris, Margaret Mary Napora, Kevin Kimberley Napora, and Shannon Trevor Napora, (the "Assignors) are children or grandchildren of original Treaty 11 adherents and are all currently registered as Indians pursuant to the Indian Act, R.S.C. 1985, c. I
2. The signing of Treaty 11 pre-dates the births of all the Assignors.
3. The Plaintiff, Bruce Beattie, is not a Treaty 11 Indian, nor is he registered as an Indian under the Indian Act, but he is a family member to each of the Assignors through marriage.
4. The Department of Indian Affairs and Northern Development ("DIAND") has recognized each of the Assignors as being entitled to receive annuities pursuant to Treaty No. 11 ("Annuities") since the dates of their respective applications for registration as status Indians under the Indian Act, but not prior to those dates.
5. Treaty paylist records indicate when payment to any individual Indian entitled to receive treaty annuity was not made.
6. The Plaintiff sent the Receiver General a Notice of Assignment of Crown Debt in respect to the assignment of the Assignor, Charles Edward Harris, in related Action No. T-2134-00. However, the assignment was not approved by the Receiver General.
7. As a result of the Receiver General's response to the Notice of Assignment of Crown Debt of Charles Edward Harris, the Plaintiff has not sent the Receiver General any further Notices of Assignment of Crown Debt in respect to the assignments of the other Assignors.
8. Treaty 11 does not contain express terms with respect to payment of interest on annuity arrears.
9. The historical documents listed by the parties to the actions before the Court disclose no reference to discussions of interest on annuity arrears during negotiations leading to the signing of Treaty 11.
10. Any cause of action herein in respect of any debts arising from breach of treaty obligations by the Crown to pay annuity arrears, and to pay interest thereon, arose in more than one province or outside a province.
[14] For the purposes of these reasons, no factual distinctions need be drawn between any of the individual assignors or between the two treaties at issue. While the wording and historical context of each of the treaties at issue are unique, there is sufficient similarity between the two treaties, at least with respect to the specific issues in this hearing, that the intent and legal effect of the two annuity provisions can be taken to be essentially the same.
[15] First, neither the text, nor the historical context, of either treaty provides any explicit consequences for non-payment or delayed payment of annuities, or for the payment of interest on accumulated arrears.
[16] Second, both Treaty No. 6 and Treaty No. 11 promise annual payments by the Crown of $5.00 to each of the original adherents of the respective treaties and their natural descendants. In his affidavit, Mr. Mitchell sets out the procedure for payment of annuities:
1. Treaty annuity payments were provided by the Department of Indian Affairs on an annual basis, using funds voted by Parliament each year. The funds used to pay annuities were voted on the basis of Departmental Estimates.
2. Annuities were paid to Treaty Indians at pre-determined times and places, and these payments were recorded in Treaty paylists for each Band.
3. When the payment process had been completed each year, unused Treaty annuity moneys were returned to the Receiver General. No annuity payments were retained for use in subsequent years.
4. The same procedure was repeated every fiscal year.
5. The annual Estimates prepared by the Department of Indian Affairs each year included moneys to pay arrears of annuities to Treaty Indians who had missed previous payments.
6. Arrears were paid from the annuity moneys for the same fiscal year in which the request for arrears was made.
7. No interest was paid on arrears of Treaty annuities.
[17] I will deal first with the effect, if any, of the Financial Administration Act on the validity of the assignments to the Plaintiff, and then turn to the question whether interest is owed on any annuity arrears.
VALIDITY OF THE ASSIGNMENTS
[18] By Notices of Assignment, the assignors purport to assign to the Plaintiff all "unpaid arrears of per head yearly (annuity) payments, plus interest thereon which are lawfully due and payable ¼ pursuant to the terms of Treaty ¼ up to the date of this assignment, and all causes of action related to such debt." The Crown submits that the Plaintiff's assignments are void based on three separate grounds.
[19] First, the Crown submits, treaty annuities cannot be assigned based on the prohibition contained in section 67 of the FAA, which governs assignments of Crown debts. Section 67 provides as follows:
67. Except as provided in this Act or any other Act of Parliament,
(a) a Crown debt is not assignable; and
(b) no transaction purporting to be an assignment of a Crown debt is effective so as to confer on any person any rights or remedies in respect of that debt.
67. Sous réserve des autres dispositions de la présente loi ou de toute autre loi fédérale :
a) les créances sur Sa Majesté sont incessibles;
b) aucune opération censée constituer une cession de créances sur Sa Majesté n'a pour effet de conférer à quiconque un droit ou un recours à leur égard.
[20] The exceptions to this general prohibition against assignments of Crown debts are found in section 68, which provides as follows:
68 (1) Subject to this section, an assignment may be made of
(a) a Crown debt that is an amount due or becoming due under a contract; and
(b) any other Crown debt of a prescribed class.
68 (1) Sous réserve des autres dispositions du présent article, les créances suivantes sont cessibles :
a) elles qui correspondent à un montant échu ou à échoir aux termes d'un marché;
(b) celles qui appartiennent à une catégorie déterminée par règlement.
[21] The Crown submits that treaty annuities do not fall within any of the exceptions contained in s. 68 of the FAA, and more particularly, within the meaning of the term "Crown debt due or becoming due under a contract". Since the said provision is an exception to the general prohibition against the assignability of Crown debts set out in the FAA, it should be strictly construed, particularly given that the underlying purpose of this part of the FAA is to restrict the assignability of Crown debts. The Crown suggests that a strict construction of the meaning of the term "contract" does not include a treaty.
[22] Second, the Crown submits that even if treaty annuities fall within the exception to the general prohibition against assignments of Crown debts in the FAA, they are nonetheless not assignable because it is a condition of treaty rights that they are non-transferable.
[23] Third, the Crown contends that the assignments are invalid for failing to comply with the requirements of the FAA and Assignment of Crown Debt Regulations (the "Regulations").
[24] The three grounds for invalidity of the assignments advanced by the Crown are addressed below in the same order.
Prohibition against Assignment of Crown Debt
[25] The Crown submits that the general prohibition against assignments set out in s. 67 of the FAA applies, and that the treaty annuities at issue are not assignable.
[26] The Plaintiff takes issue with the Crown's position, arguing that statutory provisions that have an impact on treaty rights must be liberally construed, and that any uncertainties or ambiguities should be resolved in favour of the Indians. The Plaintiff submits that each of the treaties at issue in these actions is a "contract involving the payment of money by the Crown", as contemplated by s.66 of the FAA, and that no valid reason has been provided by the Defendant for disregarding the definition of "contract", which has been expressly provided for the purposes of Part VII of the FAA. In support of his contention, the Plaintiff makes reference to the following extracts from case law and other legal authorities that he claims affirm the contractual nature of treaties (the emphasis was added by the Plaintiff):
Treaties are analogous to contracts, albeit of a very solemn and special, public nature. They create enforceable obligations based on the mutual consent of the parties. It follows that the scope of treaty rights will be determined by their wording, which must be interpreted in accordance with the principles enunciated by this Court.
R. v. Badger, [1996] 1 S.C.R. 771
... a treaty is the product of bargaining between two contracting parties...
Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85
In its simplest form the treaty must of necessity consist of an agreement or settlement arrived at between two or more parties with all of the elements of a valid contract.
R. v. Tennisco, [1981] 4 C.N.L.R. 138
The treaty is similar to an agreement or contract.
R. v. Dennis and Dennis (1974), 56 D.L.R. (3d) 379 (BC Prov. Ct.)
Issue of Breach of Contractual Obligation
It is obvious that the Lake-Huron Treaty, like all Indian treaties, was not a treaty in the international law sense. The Ojibways did not then constitute an "independent power", they were subjects of the Queen. Although very special in nature and difficult to precisely define, the Treaty has to be taken as an agreement entered into by the Sovereign and a group of her subjects with the intention to create special legal relations between them. The promises made therein by Robinson on behalf of Her Majesty and the "principal men of the Ojibway Indians" were undoubtedly designed and intended to have effect in a legal sense and a legal context. The agreement can therefore be said to be tantamount to a contract, and it may be admitted that breach of the promises contained therein may give rise to an action in the nature of an action for breach of contract.
Pawis v. The Queen, [1980] 102 D.L.R. (3d) 602, (F.C.T.D.)
In Canada the Indian treaties appear to have been judicially interpreted as being mere promises and agreements.
R. v. Wesley,[1932] 4 D.L.R. 774,(Alta App. Div.)
From these extracts it is clear that what characterizes a treaty is the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity. In the Court of Appeal Bisson J.A. in fact adopted a similar approach when he wrote (at p. 1726):
[TRANSLATION] I feel that in order to determine whether document D-7 [the document of September 5, 1760] is a treaty within the meaning of s. 88 of the Indian Act, the fundamental question is as follows: is it an agreement in which the contracting parties . . . intended to create mutual obligations which they intended to observe solemnly?
R. v. Sioui, [1990] 1 S.C.R. 1025
The haste of the Treaty Commissioner in securing Indian signatures on a piece of paper removes any illusions that the Treaty was a contract signed by equal partners.
Sawridge Band v. Canada, [1995] 4 C.N.L.R. 121 (S.C.C.)
Their Lordships have had no difficulty in coming to the conclusion that, under the treaties, the Indians obtained no right to their annuities, whether original or augmented, beyond a promise and agreement, . . . Seeing that the substantial question involved in these appeals is that of contract liability for a pecuniary obligation, they are of opinion that the rule followed by them in some really international questions between Canadian Governments ought not to apply here.
AG Canada v. AG Ontario, [1897] A.C. 199 (P.C.)
The judgement of their lordships was delivered by Lord Watson:--
On the 3rd of October, 1873, a formal treaty or contract was concluded between commissioners appointed by the Government of the Dominion of Canada, on behalf of Her Majesty the Queen, of the one part, and a number of chiefs and headmen duly chosen to represent the Salteaux tribe of Ojibbeway Indians, of the other part...
...The policy of these administrations has been all along the same in this respect, that the Indian inhabitants have been precluded from entering into any transaction with a subject for the sale or transfer of their interest in the land, and have only been permitted to surrender their rights to the Crown by a formal contract, duly ratified in a meeting of their chiefs or head men convened for the purpose.
St Catherine's Milling Co. v. Queen (1888), 14 A.C. 46 (P.C.)
That treaties are contracts has been affirmed in a number of Canadian cases.
Woodward, J., Native Law, Toronto: Carswell, 1990 at p. 205
An Indian treaty is a contract in a class of its own.
Woodward, J., Native Law, Toronto: Carswell, 1990 at p. 405
An Indian treaty in Canada is not the same type of agreement as an international treaty between two sovereign states, but neither is it merely a contract in the ordinary sense.
Woodward, J., Native Law, Toronto: Carswell, 1990 at p. 404
The numbered treaties were agreements by which the Indians obtained a contractual right to the conveyance of certain lands.
Woodward, J., Native Law, Toronto: Carswell, 1990 at p. 236
The contractual rights are the very minimum rights of Indians under treaties, since the rights are also constitutionally protected.
Woodward, J., Native Law, Toronto: Carswell, 1990 at p. 205
In certain situations, the courts have viewed Indian treaties as analogous to private agreements or contracts. Indeed, the available, but admittedly limited, judicial authority implicitly supports the application of the contractual model to the Indian treaties.
Cumming and Mickenberg Native Rights in Canada (2nd ed.),Toronto: Indian-Eskimo Association of Canada, 1972 at p.56
The Government of Canada has also indicated that it considers Indian treaties to be analogous to contracts. In a speech given in Vancouver, British Columbia, Prime Minister Trudeau made the following comments:
...We will recognize treaty rights. We will recognize forms of contract which have been made with the Indian people by the Crown and we will try to bring justice to that area and this will mean that perhaps the treaties shouldn't go on forever.
Cumming and Mickenberg Native Rights in Canada (2nd ed.),Toronto: Indian-Eskimo Association of Canada, 1972 at p.57
[27] The Plaintiff submits that a treaty is a unique type of contract to which special principles of interpretation should apply. The Plaintiff suggests that a debt of treaty annuity arrears should accordingly be treated as "a Crown debt that is an amount due or becoming due under a contract" that may be assigned pursuant to s. 68(1) of the FAA.
[28] The Plaintiff further submits that the word "contract" should be interpreted as it has already been defined in s.66, which simply permits assignment of any Crown debts which involve the payment of money, are derived from some type of contract, and have not been specifically excluded from assignment by s.68(5). According to the Plaintiff, the only types of contract debts which Parliament specifically intended to exclude from s.68(1) assignment, are those identified in s.68(5), because no provision was made for extending exclusion to other types of contract debts by regulation.
[29] I come to a different conclusion regarding the interplay and applicability of the provisions of the FAA.
[30] Prior to the decision of the Exchequer Court of Canada in Bank of Nova Scotia v. The Queen (1961), 27 D.L.R. (2d) 120, the general position in Canada was that Crown debts were not assignable. In the Bank of Nova Scotia case, the Court held that contract money claims against the Federal Crown were assignable without the Crown's consent. Subsequent to that decision, Parliament enacted s. 67 of the FAA, presumably to reinstate the general prohibition against assignment of Crown debts.
[31] The Plaintiff conceded at the hearing that the right to receive treaty annuities is not within any "prescribed class" in the regulations to the FAA. Consequently, in order to succeed, the Plaintiff was required to establish that the treaty annuities fell within the exemption in ss. 68(1)(a) of the FAA.
[32] The modern principle of statutory interpretation requires the words of an Act 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: E. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87 ("Driedger").
[33] In keeping with the modern principle, when the legislature makes a general rule and lists certain exceptions, the latter must be strictly construed. An exception should not be construed in such a manner that the broad purpose of the legislation is undermined: Quebec v. Corp. Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3 at para. 23; Macdonell v. Quebec (Commission d'acces a l'information), [2002] S.C.J. No. 71 at para. 18; R. Sullivan, Sullivan & Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002)at 396 to 397 ("Sullivan"); Côté, The Interpretation of Legislation in Canada (Scarborough: Carswell, 2000) at 502 and 503.
[34] Section 68 of the FAA exempts a "Crown debt due or becoming due under a contract" from the general prohibition against the assignability of Crown debts contained at s. 67. Since it is an
exception to the general rule, it must be strictly construed, particularly given that the underlying purpose of this part of the FAA is to restrict the assignability of Crown debts.
[35] Indian treaties have often been equated to contracts. However, the jurisprudence and authorities cited by the Plaintiff do not deal treaties within the context of the FAA. They are therefore of little assistance.
[36] In fact, the Supreme Court of Canada has held that a treaty is not a commercial contract, and that contract principles do not apply to treaties: R. v. Sundown, [1999] 1 S.C.R. 393 at para. 24; Benoit v. Canada, [2002] F.C.J. No. 257 (T.D.) at paras. 10 and 12, rev'd on other grounds [2003] F.C.J. No. 923 (C.A.); Hay River v. R. (1979), 101 D.L.R. (3d) 184 (Fed. T.D.) at 186.
[37] Moreover, Parliament appears to have intended to differentiate between treaties and contracts in the FAA. In section 2, the words "contract" and "treaty" are referred to separately in the definition of "public money":
"public money" means all money belonging to Canada received or collected by the Receiver General or any other public officer in his official capacity or any person authorized to receive or collect such money, and includes ¼
(d) all money that is paid to or received or collected by a public officer under or pursuant to any Act, trust, treaty, undertaking or contract, and is to be disbursed for a purpose specified in or pursuant to that Act, trust, treaty, undertaking or contract.
fonds publics » Fonds appartenant au Canada, perçus ou reçus par le receveur général ou un autre fonctionnaire public agissant en sa qualité officielle ou toute autre personne autorisée à en percevoir ou recevoir. La présente définition vise notamment :...
d) les fonds perçus ou reçus par un fonctionnaire public sous le régime d'un traité, d'une loi, d'une fiducie, d'un contrat ou d'un engagement et affectés à une fin particulière précisée dans l'acte en question ou conformément à celui-ci.
[38] By contrast, section 68 of the FAA only includes the term "contract" and does not refer to "treaty".
[39] Although the Plaintiff maintains that the word "treaty", as used in s. 2 of the FAA, should be restricted to treaties in the international sense, no authorities are cited in support of such a proposition. To the contrary, the use of the indefinite pronoun "any" to modify the terms "Act, trust, treaty, undertaking or contract", suggests that "treaty" should be given a broader, rather than limited, interpretation.
[40] It is a principle of statutory construction, according to Sullivan at p. 187, that:
[w]hen a provision specifically mentions one or more items but is silent with respect to other items that are comparable, it is presumed that the silence is deliberate and reflects an intention to exclude the items that are not mentioned. The reasoning goes as follows: if the legislature had intended to include comparable items, it would have mentioned them or described them using general terms; it would not have mentioned some while saying nothing of the others because to do so would violate a convention of communication ¼.
[41] As a result, the inclusion of both the terms "treaty" and "contract" in section 2, and the use of only the term "contract" in s. 68 of the FAA, suggests that Parliament intended for the word "contract" to be construed differently from a treaty.
[42] The French version of s. 68 of the FAA also supports an interpretation which excludes treaties from the meaning of "contract". Under the "shared meaning" rule of statutory interpretation, the meaning that is shared by both the French and English versions is presumed to be the meaning intended by the legislature. Where the two versions of legislation do not say the same thing, the meaning that is shared by both ought to be adopted unless this meaning is for some reason unacceptable. Similarly, where one of the two versions is broader than the other, the common meaning rule favours the more restricted meaning: Schreiber v. Canada (A.G.), [2002] S.C.J. No. 63 at paras. 54-57; Authorson v. Canada (A.G.) 2003 SCC 39 at para. 60; Sullivan, supra, at 81; Driedger, supra, at 165 to 181.
[43] In interpreting the meaning of the phrase, "Crown debt due or becoming due under a contract", the French version, "celles qui correspondent à un montant échu ou à échoir aux termes d'un marché", must also be considered, with the meaning which is common to both phrases being adopted. In the French dictionary, Le Petit Larousse (Paris: Larousse, 2000), the term "marché" is defined as "transaction, accord impliquant un échange à titre onéreux de biens ou de services; convention d'achat et de vente." This is translated into English as "transaction, agreement involving a trade of goods or services in exchange for consideration; buying or selling agreement".
[44] Similarly, in the French dictionary, Le Petit Robert Dictionnaire de la Langue Francaise (Paris: Le Robert, 2002), "marché" is defined as "convention portant sur la fourniture de marchandises, de services et de valeurs" which can be literally translated as "agreement for the provision of goods, services and valuables".
[45] The term "marché" is therefore restricted to commercial transactions. This more restricted meaning is the meaning which is common to both the English term "contract" and the French term "marché". Since a treaty is far broader than a mere commercial transaction, Parliament evidently did not intend to include treaties in s. 68 of the FAA.
[46] It follows that any Crown debt owing under a treaty does not fall within the exception set out in s. 68. I therefore conclude that the general prohibition against assignments set out in s. 67 of the FAA applies, and that the treaty annuities at issue are not assignable.
Transferability of treaty annuities
[47] The Crown submits that treaty annuities cannot be assigned, even if they fall within the exception set out in s. 68(1) of the FAA., since treaty rights are non-transferable due to their special status in law: Anishinaabeg of Kabapikotawangag Resource Council Inc. v. Canada (A.G.), [1998] 4 C.N.L.R. 1 (Ont. Gen. Div.) at paras. 12 to 14; R. v. Stubbington (1988), [1999] 4 C.N.L.R. 222 (B.C. Prov. Ct.) at paras. 31 to 45; R. v. Pike, [1994] 1 C.N.L.R. 160 (B.C.S.C.) at 4 to 6; The Pas Merchants Ltd. v. R., [1974] 2 F.C. 376 (T.D.) at paras. 2 to 4. The Plaintiff counters that the assignments do not purport to assign any entitlement to any treaty rights, but are confined to debts which are past due and any causes of action in respect of those debts.
[48] Section 68(4) of the FAA provides that an assignment is "subject to all conditions and restrictions in respect of the right of transfer that relate to the original Crown debt or that attach to or are contained in the original contract." Consideration must therefore be given to section 90 of the Indian Act, which deals with personal property of Indians. Section 90 provides as follows:
(1) For the purpose of sections 87 and 89, personal property that was ¼
(b) given to Indians or to a band under a treaty or agreement between a band and Her Majesty,
shall be deemed always to be situated on a reserve.
(2) Every transaction purporting to pass title to any property that is by this section deemed to be situated on a reserve, or any interest in such property, is void unless the transaction is entered into with the consent of the Minister or is entered into between members of a band or between the band and a member thereof.
(3) Every person who enters into a transaction that is void by virtue of subsection (2) is guilty of an offence, and every person who, without the written consent of the Minister, destroys personal property that is by this section deemed to be situated on a reserve is guilty of an offence.
(1) Pour l'application des articles 87 et 89, les biens meubles qui ont été : ¼
(b) soit donnés aux Indiens ou à une bande en vertu d'un traité ou accord entre une bande et Sa Majesté,
sont toujours réputés situés sur une réserve.
(2) Toute opération visant à transférer la propriété d'un bien réputé, en vertu du présent article, situé sur une réserve, ou un droit sur un tel bien, est nulle à moins qu'elle n'ait lieu avec le consentement du ministre ou ne soit conclue entre des membres d'une bande ou entre une bande et l'un de ses membres.
(3) Quiconque conclut une opération déclarée nulle par le paragraphe (2) commet une infraction; commet aussi une infraction quiconque détruit, sans le consentement écrit du ministre, un bien meuble réputé, en vertu du présent article, situé sur une réserve.
[49] In Her Majesty the Queen v. Kakfwi, [1999] 99 DTC 5639, the Federal Court of Appeal held that the term "personal property" in s. 90 of the Indian Act includes money and debts: see also Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85 at paras. 95 and 96 Per La Forest J. and at para. 41 per Dickson C.J. On the plain reading of section 90, therefore, treaty annuities, and any claims to such annuities, are deemed to be situated on a reserve, and their assignment is prohibited without the consent of the Minister of Indian Affairs.
[50] The Plaintiff submits that enforcement of a core treaty right, and any lawful action reasonably necessary to that end, including the assignment of a Crown debt, are activities which are reasonably incidental to a core treaty right, and are therefore protected from infringement to the same extent as the core treaty right. He claims that the assignments at issue show that assignment to the Plaintiff was the preferred means by each of the Indian assignors of exercising their incidental right to enforce payment of Crown debts of treaty annuity arrears. According to the Plaintiff, to the extent that provisions of the FAA infringe that incidental right, those provisions must be justified by the Defendant in accordance with s.35(1) of the Constitution Act, 1982.
[51] I am not prepared to entertain a constitutional challenge in the absence of any proper or sufficient notice. In any event, I fail to see how the assignors' rights, which could be enforced individually, can be said to have been infringed by any provisions of the FAA.
[52] On the evidence before me, it appears that, as a matter of general policy, the Crown does not consent to the assignment of annuities to third parties. Although there is evidence that payments were occasionally made to a person other than to the treaty Indian on the pay list, such arrangements were made solely with close relatives of the Indian person, a Chief, or an Indian agent in order to facilitate payment.
[53] I conclude, therefore, that absent the Crown's consent, treaty annuities cannot be transferred.
Validity of the Notices of Assignment
[54] The Crown submits that even if treaty annuities are generally assignable, the assignments are invalid for failing to comply with the requirements of the FAA and Assignment of Crown Debt Regulations (the "Regulations"). Section 68(2) of the FAA sets out the requirements for a valid assignment as follows:
68(2) The assignment referred to in subsection (1) is valid only if:
(a) it is absolute, in writing and made under the hand of the assignor;
(b) it does not purport to be by way of charge only; and
(c) notice of the assignment has been given to the Crown as provided in section 69.
. . .
69(1) The notice referred to in paragraph 68(2)(c) shall be given to the Crown by serving on or sending by registered mail to the Receiver General or a paying officer, in prescribed form, notice of the assignment, together with a copy of the assignment accompanied by such other documents completed in such a manner as may be prescribed.
(2) Service of the notice referred to in subsection (1) shall be deemed not to have been effected until acknowledgement of the notice, in prescribed form, is sent to the assignee, by registered mail, under the hand of the appropriate paying officer.
68(2) La cession n'est valide que si les conditions suivantes sont remplies :
a) elle est absolue, établie par écrit et signée par le cédant;
b) elle n'est pas censée faite à titre de sûreté seulement;
c) il en a été donné avis conformément à l'article 69.
. . .
69. (1) Toute cession visée au paragraphe 68(2) est communiquée à Sa Majesté par un avis accompagné d'une copie de l'acte de cession, signifié ou envoyé par courrier recommandé au receveur général ou à un agent payeur; la forme de l'avis et la nature des autres documents qui doivent l'accompagner, ainsi que la manière d'établir ceux-ci, sont fixées par règlement.
(2) La signification de l'avis n'est considérée comme effective qu'après envoi au cessionnaire, par courrier recommandé, d'un accusé de réception établi en la forme réglementaire et signé par l'agent payeur compétent.
[55] The Plaintiff does not dispute that the strict requirements of the FAA have not been complied with in the present case. The Plaintiff forwarded the notice of assignment of Charles Harris to the Receiver General, however the Receiver General did not acknowledge the assignment, and returned it to the Plaintiff on the basis that treaty rights are not assignable. In the face of this rejection, the Plaintiff did not forward notices of the other assignments to the Receiver General.
[56] Notwithstanding that the requirements of the FAA have not been strictly adhered to, it appears that the Plaintiff fully intended to comply with the notice requirements of Part VII of the FAA and the Regulations, but was dissuaded from doing so following the refusal by the Receiver General to acknowledge service of Charles Harris' notice of assignment. One can understand the Plaintiff's reluctance to simply pose futile gestures.
[57] Although the Plaintiff failed to strictly comply with the requirements of section 68(2), no useful purpose would be served from requiring the Plaintiff to now comply with the notice requirements in the FAA and Regulations. On the evidence before me, the Crown has since received sufficient and proper notice of all ten assignments. Consequently, the Crown objections on technical grounds are rejected.
WHETHER INTEREST IS OWED ON ANNUITY ARREARS
[58] The second question for separate determination is whether interest is owing on any annuity arrears that may be found to be owing and, if so, what the interest rate is, whether it is simple or compound interest, and how it is to be calculated? Each sub-issue shall be dealt with in turn. For the purpose of a determination of the interest issue as a whole, I must proceed on the premise that the Plaintiff will ultimately succeed at trial in establishing that he is entitled to the payments claimed.
Entitlement to interest
[59] At common law, the general rule is that interest is not payable on a debt or loan in the absence of express agreement or some course of dealing or custom to that effect.
[60] The parties agree that neither Treaty 6 nor Treaty 11 provides for the payment of interest. In addition, the parties have agreed that the payment of interest was not discussed when Tre