1985 Sawridge Trust v. Alberta (Public Trustee), 2012 ABQB 365

Court of Queen ’ s Bench of Alberta Citation: 1985 Sawridge Trust v. Alberta (Public Trustee), 2012 ABQB 365 Date: 20120612 Docket: 1103 14112 Registry: Edmonton In the Matter of the Trustee Act , R.S.A. 2000, c.

T-8, as amended; and In the Matter of The Sawridge Band Inter Vivos Settlement Created by Chief Walter Patrick Twinn, of the Sawridge Indian Band, No. 19, now known as the Sawridge Indian Band, on April 15, 1985 (the “ 1985 Sawridge Trust ” ) Between: Roland Twinn, Catherine Twinn, Walter Felix Twin, Bertha L ’ Hirondelle, and Clara Midbo, As Trustees for the 1985 Sawridge Trust Respondent - and - Public Trustee of Alberta Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ I.

Introduction................................................................................................................ Page: 2 II. The History of the 1985 Sawridge Trust...................................................................... Page: 3

III. Application by the Public Trustee............................................................................... Page: 4 IV. Should the Public Trustee be Appointed as a Litigation Representative?..................... Page: 5 A. Is a litigation representative necessary?........................................................... Page: 5 B. Which minors should the Public Trustee represent?........................................ Page: 8 V. The Costs of the Public Trustee................................................................................... Page: 9 VI.

Inquiries into the Sawridge Band Membership Scheme and Application Processes... Page: 11 A. In this proceeding are the Band membership rules and application processes relevant? Page: 11 B. Exclusive jurisdiction of the Federal Court of Canada................................... Page: 12 VII. Conclusion................................................................................................................ Page: 14 I.

Introduction [ 1 ] On April 15, 1985 the Sawridge Indian Band, No. 19, now known as the Sawridge First Nation [the “Band” or “Sawridge Band”] set up the 1985 Sawridge Trust [sometimes referred to as the “Trust” or the “Sawridge Trust”] to hold some Band property on behalf of its then members. The 1985 Sawridge Trust and other related trusts were created in the expectation that persons who had been excluded from Band membership by gender (or the gender of their parents) would be entitled to join the Band as a consequence of amendments to the Indian Act , R.S.C. 1985, c.

I-5 which were being proposed to make that legislation compliant with the Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [the “ Charter ”]. [ 2 ] The 1985 Sawridge Trust is administered by the Trustees named as Respondents in this application [the “Sawridge Trustees” or the “Trustees”] who now seek the advice and direction of this Court in respect to proposed amendments to the definition of the term “Beneficiaries” in the 1985 Sawridge Trust and confirmation of the transfer of assets into that Trust. One consequence of these proposed amendments to the 1985 Sawridge Trust would be that the entitlement of certain dependent children to share in Trust assets would be affected.

There is some question as to the exact nature of the effects, although it seems to be accepted by all of those involved on this application that certain children who are presently entitled to a share in the benefits of the 1985 Sawridge Trust would be excluded if the proposed changes are approved and implemented.

Another concern is that the proposed revisions would mean that certain dependent children of proposed members of the Trust would become beneficiaries and entitled to shares in the Trust, while other dependent children would be excluded. [ 3 ] At the time of confirming the scope of notices to be given in respect to the application for advice and directions, it was observed that children who might be affected by variations to the 1985 Sawridge Trust were not represented by counsel.

In my Order of August 31, 2011 [the “August 31 Order”] I directed that the Office of the Public Trustee of Alberta [the “Public Trustee”] be notified of the proceedings and invited to comment on whether it should act in respect of any existing or potential minor beneficiaries of the Sawridge Trust. [ 4 ] On February 14, 2012 the Public Trustee applied to be appointed as the litigation representative of minors interested in the proceedings, for the payment of advance costs on a solicitor and own client basis and exemption from liability for the costs of others.

The Public Trustee also applied, for the purposes of questioning on affidavits which might be filed in this proceeding, for an advance ruling that information and evidence relating to the membership criteria and processes of the Sawridge Band is relevant material. [ 5 ] On April 5, 2012 I heard submissions on the application by the Public Trustee which was opposed by the Sawridge Trustees and the Chief and Council of the Sawridge Band. The Trustees and the Band, through their Chief and Council, argue that the guardians

of the potentially affected children will serve as adequate representatives of the interests of any minors. [ 6 ] Ultimately in this application I conclude that it is appropriate that the Public Trustee represent potentially affected minors, that all costs of such representation be borne by the Sawridge Trust and that the Public Trustee may make inquiries into the membership and application processes and practices of the Sawridge Band. II.

The History of the 1985 Sawridge Trust [ 7 ] An overview of the history of the 1985 Sawridge Trust provides a context for examining the potential role of the Public Trustee in these proceedings. The relevant facts are not in dispute and are found primarily in the evidence contained in the affidavits of Paul Bujold (August 30, 2011, September 12, 2011, September 30, 2011), and of Elizabeth Poitras (December 7, 2011). [ 8 ] In 1982 various assets purchased with funds of the Sawridge Band were placed in a formal trust for the members of the Sawridge Band.

In 1985 those assets were transferred into the 1985 Sawridge Trust. At the present time the value of assets held by the 1985 Sawridge Trust is approximately $70 million. As previously noted, the beneficiaries of the Sawridge Trust are restricted to persons who were members of the Band prior to the adoption by Parliament of the Charter compliant definition of Indian status. [ 9 ] In 1985 the Sawridge Band also took on the administration of its membership list. It then attempted (unsuccessfully) to deny membership to Indian women who married non-aboriginal persons: Sawridge Band v.

Canada , 2009 FCA 123 , 391 N.R. 375, leave denied [2009] S.C.C.A. No. 248. At least 11 women were ordered to be added as members of the Band as a consequence of this litigation: Sawridge Band v. Canada , 2003 FCT 347 , [2003] 4 F.C. 748, affirmed 2004 FCA 16 , [2004] 3 F.C.R. 274. Other litigation continues to the present in relation to disputed Band memberships: Poitras v. Sawridge Band , 2012 FCA 47 , 428 N.R. 282, leave sought [2012] S.C.C.A. No. 152. [ 10 ] At the time of argument in April 2012, the Band had 41 adult members, and 31 minors.

The Sawridge Trustees report that 23 of those minors currently qualify as beneficiaries of the 1985 Sawridge Trust; the other eight minors do not. [ 11 ] At least four of the five Sawridge Trustees are beneficiaries of the Sawridge Trust. There is overlap between the Sawridge Trustees and the Sawridge Band Chief and Council. Trustee Bertha L’Hirondelle has acted as Chief; Walter Felix Twinn is a former Band Councillor.

Trustee Roland Twinn is currently the Chief of the Sawridge Band. [ 12 ] The Sawridge Trustees have now concluded that the definition of “Beneficiaries” contained in the 1985 Sawridge Trust is “potentially discriminatory”. They seeks to redefine the class of beneficiaries as the present members of the Sawridge Band, which is consistent with the definition of “Beneficiaries” in another trust known as the 1986 Trust. [ 13 ] This proposed revision to the definition of the defined term “Beneficiaries” is a precursor to a proposed distribution of the assets of the 1985 Sawridge Trust.

The Sawridge Trustees indicate that they have retained a consultant to identify social and health programs and services to be provided by the Sawridge Trust to the beneficiaries and their minor children. Effectively they say that whether a minor is or is not a Band member will not matter: see the Trustee’s written brief at para. 26. The Trustees report that they have taken steps to notify current and potential beneficiaries of the 1985 Sawridge Trust and I accept that they have been diligent in implementing that part of my August 31 Order. III.

Application by the Public Trustee [ 14 ] In its application the Public Trustee asks to be named as the litigation representative for minors whose interests are potentially affected by the application for advice and directions being made by the Sawridge Trustees. In

summary, the Public Trustee asks the Court:

1. to determine which minors should be represented by it; 2. to order that the costs of legal representation by the Public Trustee be paid from the 1985 Sawridge Trust and that the PublicTrustee be shielded from any liability for costs arising; and 3. to order that the Public Trustee be authorized to make inquiries through questioning into the Sawridge Band membership criteriaand application processes.

The Public Trustee is firm in stating that it will only represent some or all of the potentially affected minors if the costs of itsrepresentation are paid from the 1985 Sawridge Trust and that it must be shielded from liability for any costs arising in this proceeding. [15] The Sawridge Trustees and the Band both argue that the Public Trustee is not a necessary or appropriate litigationrepresentative for the minors, that the costs of the Public Trustee should not be paid by the Sawridge Trust and that the criteria andmechanisms by which the Sawridge Band identifies its members is not relevant and, in any event, the Court has no jurisdiction to makesuch determinations.

IV. Should the Public Trustee be Appointed as a Litigation Representative? [16] Persons under the age of 18 who reside in Alberta may only participate in a legal action via a litigation representative: AlbertaRules of Court, Alta Reg 124/2010, s. 2.11(a) [the “Rules”, or individually a “Rule”]. The general authority for the Court to appoint alitigation representative is provided by Rule, 2.15. A litigation representative is also required where the membership of a trust class isunclear: Rule, 2.16. The common-law parens patriae role of the courts (E. v.

Eve (Guardian Ad Litem), (SCC), [1986]2 S.C.R. 388, 31 D.L.R. (4th) 1) allows for the appointment of a litigation representative when such action is in the best interests of achild. The parens patriae authority serves to supplement authority provided by statute: R.W. v. Alberta (Child, Youth and FamilyEnhancement Act Director), 2010 ABCA 412 at para. 15, 44 Alta. L.R. (5th) 313. In

summary, I have the authority in thesecircumstances to appoint a litigation representative for minors potentially affected by the proposed changes to the 1985 Sawridge Trustdefinition of “Beneficiaries”. [17] The Public Trustee takes the position that it would be an appropriate litigation representative for the minors who may bepotentially affected in an adverse way by the proposed redefinition of the term “Beneficiaries” in the 1985 Sawridge Trustdocumentation and also in respect to the transfer of the assets of that Trust.

The alternative of the Minister of Aboriginal Affairs andNorthern Development applying to act in that role, as potentially authorized by the Indian Act, R.S.C. 1985, c. I-5, s. 52, has notoccurred, although counsel for the Minister takes a watching role. [18] In any event, the Public Trustee argues that it is an appropriate litigation representative given the scope of its authorizinglegislation. The Public Trustee is capable of being appointed to supervise trust entitlements of minors by a trust instrument (PublicTrustee Act, S.A. 2004, c. P-44.1, s. 21) or by a court (Public Trustee Act, s. 22).

These provisions apply to all minors in Alberta. A. Is a litigation representative necessary? [19] Both The Sawridge Trustees and Sawridge Band argue that there is no need for a litigation representative to be appointed inthese proceedings. They acknowledge that under the proposed change to the definition of the term “Beneficiaries” no minors could bepart of the 1985 Sawridge Trust.

However, that would not mean that this class of minors would lose access to any resources of theSawridge Trust; rather it is said that these benefits can and will be funnelled to those minors through those of their parents who arebeneficiaries of the Sawridge Trust, or minors will become full members of the Sawridge Trust when they turn 18 years of age. [20] In the meantime the interests of the affected children would be defended by their parents. The Sawridge Trustees argue that

the Courts have long presumptively recognized that parents will act in the best interest of their children, and that no one else is betterpositioned to care for and make decisions that affect a child: R.B. v. Children's Aid Society of Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315 at 317-318, 122 D.L.R. (4th) 1. Ideally, a parent should act as a ‘next friend’ [now a ‘litigationrepresentative’ under the new Rules]: V.B. v. Alberta (Minister of Children's Services), 2004 ABQB 788 at para. 19, 365 A.R. 179;C.H.S. v.

Alberta (Director of Child Welfare), 2008 ABQB 620, 452 A.R. 98. [21] The Sawridge Trustees take the position at para. 48 of its written brief that: [i]t is anachronistic to assume that the Public Trustee knows better than a First Nation parent what is best for the children of that parent. The Sawridge Trustees observe that the parents have been notified of the plans of the Sawridge Trust, but none of them have commented,or asked for the Public Trustee to intervene on behalf of their children.

They argue that the silence of the parents should be determinative. [22] The Sawridge Band argues further that no conflict of interest arises from the fact that certain Sawridge Trustees have servedand continue to serve as members of the Sawridge Band Chief and Council. At para. 27 of its written brief, the Sawridge Band advancesthe following argument: ... there is no conflict of interest between the fiduciary duty of a Sawridge Trustee administering the 1985 Trust and the duty ofimpartiality for determining membership application for the Sawridge First Nation.

The two roles are separate and have no interests thatare incompatible. The Public Trustee has provided no explanation for why or how the two roles are in conflict. Indeed, the interests ofthe two roles are more likely complementary. [23] In response the Public Trustee notes the well established fiduciary obligation of a trustee in respect to trust property andbeneficiaries: Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23 at para. 148, [2011] 2 S.C.R. 175.

It observes thata trustee should avoid potential conflict scenarios or any circumstance that is “... ambiguous ... a situation where a conflict of interest and duty might occur ...” (citing D. W. M. Waters, M. Gillen and L. Smith, eds., Waters’ Law of Trusts in Canada, 3rd. ed. (Toronto:Thomson Carswell, 2005), at p. 914 [“Waters’ Law of Trusts”]. Here, the Sawridge Trustees are personally affected by the assignment ofpersons inside and outside of the Trust.

However, they have not taken preemptive steps, for example, to appoint an independent personor entity to protect or oversee the interests of the 23 minors, each of whom the Sawridge Trustees acknowledge could lose their beneficialinterest in approximately $1.1 million in assets of the Sawridge Trust. [24] In these circumstances I conclude that a litigation representative is appropriate and required because of the substantialmonetary interests involved in this case.

The Sawridge Trustees have indicated that their plan has two parts: firstly, to revise and clarify the definition of “Beneficiaries” under the 1985 Sawridge Trust; and secondly, then seek direction to distribute the assets of the 1985 Sawridge Trust with the new amended definition of beneficiary.

While I do not dispute that the Sawridge Trustees plan to use the Trust to provide for various social and health benefits to thebeneficiaries of the Trust and their children, I observe that to date the proposed variation to the 1985 Sawridge Trust does not include arequirement that the Trust distribution occur in that manner.

The Trustees could, instead, exercise their powers to liquidate the SawridgeTrust and distribute approximate $1.75 million shares to the 41 adult beneficiaries who are the present members of the Sawridge Band.That would, at a minimum, deny 23 of the minors their current share of approximately $1.1 million each. [25] It is obvious that very large sums of money are in play here. A decision on who falls inside or outside of the class ofbeneficiaries under the 1985 Sawridge Trust will significantly affect the potential share of those inside the Sawridge Trust.

The keyplayers in both the administration of the Sawridge Trust and of the Sawridge Band overlap and these persons are currently entitled toshares of the Trust property. The members of the Sawridge Band Chief and Council are elected by and answer to an interested group ofpersons, namely those who will have a right to share in the 1985 Sawridge Trust. These facts provide a logical basis for a concern by thePublic Trustee and this Court of a potential for an unfair distribution of the assets of the 1985 Sawridge Trust.

[ 26 ] I reject the position of the Sawridge Band that there is no potential for a conflict of interest to arise in these circumstances. I also reject as being unhelpful the argument of the Sawridge Trustees that it is “anachronistic” to give oversight through a public body over the wisdom of a “First Nations parent”.

In Alberta, persons under the age of 18 are minors and their racial and cultural backgrounds are irrelevant when it comes to the question of protection of their interests by this Court. [ 27 ] The essence of the argument of the Sawridge Trustees is that there is no need to be concerned that the current and potential beneficiaries who are minors would be denied their share of the 1985 Sawridge Trust; that their parents, the Trustees, and the Chief and Council will only act in the best interests of those children.

One, of course, hopes that that would be the case, however, only a somewhat naive person would deny that, at times, parents do not always act in the best interests of their children and that elected persons sometimes misuse their authority for personal benefit. That is why the rules requiring fiduciaries to avoid conflicts of interest is so strict. It is a rule of very longstanding and applies to all persons in a position of trust. [ 28 ] I conclude that the appointment of the Public Trustee as a litigation representative of the minors involved in this case is appropriate.

No alternative representatives have come forward as a result of the giving of notice, nor have any been nominated by the Respondents.

The Sawridge Trustees and the adult members of the Sawridge Band (including the Chief and Council) are in a potential conflict between their personal interests and their duties as fiduciaries. [ 29 ] This is a ‘structural’ conflict which, along with the fact that the proposed beneficiary definition would remove the entitlement to some share in the assets of the Sawridge Trust for at least some of the children, is a sufficient basis to order that a litigation representative be appointed.

As a consequence I have not considered the history of litigation that relates to Sawridge Band membership and the allegations that the membership application and admission process may be suspect. Those issues (if indeed they are issues) will be better reviewed and addressed in the substantive argument on the adoption of a new definition of “Beneficiaries” under the revised 1985 Sawridge Trust. B. Which minors should the Public Trustee represent? [ 30 ] The second issue arising is who the Public Trustee ought to represent.

Counsel for the Public Trustee notes that the Sawridge Trustees identify 31 children of current members of the Band. Some of these persons, according to the Sawridge Trustees, will lose their current entitlement to a share in the 1985 Sawridge Trust under the new definition of “Beneficiaries”. Others may remain outside the beneficiary class. [ 31 ] There is no question that the 31 children who are potentially affected by this variation to the Sawridge Trust ought to be represented by the Public Trustee.

There are also an unknown number of potentially affected minors, namely, the children of applicants seeking to be admitted into membership of the Sawridge Band. These candidate children, as I will call them, could, in theory, be represented by their parents. However, that potential representation by parents may encounter the same issue of conflict of interest which arises in respect to the 31 children of current Band members. [ 32 ] The Public Trustee can only identify these candidate children via inquiry into the outstanding membership applications of the Sawridge Band.

The Sawridge Trustees and Band argue that this Court has no authority to investigate those applications and the application process. I will deal in more detail with that argument in

Part VI of this decision. [ 33 ] The candidate children of applicants for membership in the Sawridge Band are clearly a group of persons who may be readily ascertained. I am concerned that their interest is also at risk. Therefore, I conclude that the Public Trustee should be appointed as the litigation representative not only of minors who are children of current Band members, but also the children of applicants for Band membership who are also minors. V. The Costs of the Public Trustee

[34] The Public Trustee is clear that it will only represent the minors involved here if: 1. advance costs determined on a solicitor and own client basis are paid to the Public Trustee by the Sawridge Trust; and 2. that the Public Trustee is exempted from liability for the costs of other litigation participants in this proceeding by an order of thisCourt. [35] The Public Trustee says that it has no budget for the costs of this type of proceedings, and that its enabling legislationspecifically includes cost recovery provisions: Public Trustee Act, ss. 10, 12(4), 41.

The Public Trustee is not often involved in litigationraising aboriginal issues. As a general principle, a trust should pay for legal costs to clarify the construction or administration of thattrust: Deans v. Thachuk, 2005 ABCA 368 at paras. 42-43, 261 D.L.R. (4th) 300, leave denied [2005] S.C.C.A. No. 555. [36] Further, the Public Trustee observes that the Sawridge Trustees are, by virtue of their status as current beneficiaries of theTrust, in a conflict of interest. Their fiduciary obligations require independent representation of the potentially affected minors.

Anylitigation representative appointed for those children would most probably require payment of legal costs. It is not fair, nor is it equitable,at this point for the Sawridge Trustees to shift the obligation of their failure to nominate an independent representative for the minors tothe taxpayers of Alberta. [37] Aline Huzar, June Kolosky, and Maurice Stoney agree with the Public Trustee and observe that trusts have provided the fundsfor litigation representation in aboriginal disputes: Horse Lake First Nation v.

Horseman, 2003 ABQB 114, 337 A.R. 22; BlueberryInterim Trust (Re), 2012 BCSC 254. [38] The Sawridge Trustees argue that the Public Trustee should only receive advance costs on a full indemnity basis if it meetsthe strict criteria set out in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2,[2007] 1 S.C.R. 38 [“Little Sisters”] and R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78.

They say that in this instance the Public Trusteecan afford to pay, the issues are not of public or general importance and the litigation will proceed without the participation of the PublicTrustee. [39] Advance costs on a solicitor and own client basis are appropriate in this instance, as well as immunization against costs ofother parties. The Little Sisters criteria are intended for advance costs by a litigant with an independent interest in a proceeding.Operationally, the role of the Public Trustee in this litigation is as a neutral ‘agent’ or ‘officer’ of the court.

The Public Trustee will holdthat position only by appointment by this Court. In these circumstances, the Public Trustee operates in a manner similar to a courtappointed receiver, as described by Dickson J.A. (as he then was) in Braid Builders Supply & Fuel Ltd. v. Genevieve Mortgage Corp.Ltd. (1972), (MB CA), 29 D.L.R. (3d) 373, 17 C.B.R. (N.S.) 305 (Man. C.A.): In the performance of his duties the receiver is subject to the order and direction of the Court, not the parties.

The parties do not controlhis acts nor his expenditures and cannot therefore in justice be accountable for his fees or for the reimbursement of his expenditures. Itfollows that the receiver's remuneration must come out of the assets under the control of the Court and not from the pocket of those whosought his appointment. In this case, the property of the Sawridge Trust is the equivalent of the “assets under control of the Court” in an insolvency.

Trustees inbankruptcy operate in a similar way and are generally indemnified for their reasonable costs: Residential Warranty Co. of Canada Inc. (Re), 2006 ABQB 236, 393 A.R. 340, affirmed 2006 ABCA 293, 275 D.L.R. (4th). [40] I have concluded that a litigation representative is appropriate in this instance. The Sawridge Trustees argue this litigation willproceed, irrespective of whether or not the potentially affected children are represented.

That is not a basis to avoid the need and cost torepresent these minors; the Sawridge Trustees cannot reasonably deny the requirement for independent representation of the affectedminors. On that point, I note that the Sawridge Trustees did not propose an alternative entity or person to serve as an independentrepresentative in the event this Court concluded the potentially affected minors required representation. [41] The Sawridge Band cites recent caselaw where costs were denied parties in estate matters. These authorities are not relevant to

the present scenario. Those disputes involved alleged entitlement of a person to a disputed estate; the litigant had an interest in the result. That is different from a court-appointed independent representative. A homologous example to the Public Trustee’s representation of the Sawridge Trust potential minor beneficiaries would be a dispute on costs where the Public Trustee had represented a minor in a dispute over a last will and testament.

In such a case this Court has authority to direct that the costs of the Public Trustee become a charge to the estate: Public Trustee Act , s. 41(b). [ 42 ] The Public Trustee is a neutral and independent party which has agreed to represent the interests of minors who would otherwise remain unrepresented in proceedings that may affect their substantial monetary trust entitlements. The Public Trustee’s role is necessary due to the potential conflict of interest of other litigants and the failure of the Sawridge Trustees to propose alternative independent representation.

In these circumstances, I conclude that the Public Trustee should receive full and advance indemnification for its participation in the proceedings to make revisions to the 1985 Sawridge Trust. VI. Inquiries into the Sawridge Band Membership Scheme and Application Processes [ 43 ] The Public Trustee seeks authorization to make inquiries, through questioning under the Rules , into how the Sawridge Band determines membership and the status and number of applications before the Band Council for membership.

The Public Trustee observes that the application process and membership criteria as reported in the affidavit of Elizabeth Poitras appears to be highly discretionary, with the decision-making falling to the Sawridge Band Chief and Council.

At paras. 25 - 29 of its written brief, The Public Trustee notes that several reported cases suggest that the membership application and review processes may be less than timely and may possibly involve irregularities. [ 44 ] The Band and Trustees argue that the Band membership rules and procedure should not be the subject of inquiry, because: A. those subjects are irrelevant to the application to revise certain aspects of the 1985 Sawridge Trust documentation; and B. this Court has no authority to review or challenge the membership definition and processes of the Band; as a federal tribunal decisions of a band council are subject to the exclusive jurisdiction of the Federal Court of Canada: Federal Courts Act , R.S.C. 1985, c.

F-7, s. 18. A. In this proceeding are the Band membership rules and application processes relevant ? [ 45 ] The Band Chief and Council argue that the rules of the Sawridge Band for membership and application for membership and the existence and status of any outstanding applications for such membership are irrelevant to this proceeding.

They stress at para. 16 of their written brief that the “Advice and Direction Application” will not ask the Court to identify beneficiaries of the 1985 Sawridge Trust, and state further at para. 17 that “... the Sawridge First Nation is fully capable of determining its membership and identifying members of the Sawridge First Nation.” They argue that any question of trust entitlement will be addressed by the Sawridge Trustees, in due course. [ 46 ] The Sawridge Trustees also argue that the question of yet to be resolved Band membership issues is irrelevant, simply because the Public Trustee has not shown that Band membership is a relevant consideration.

At para. 108 of its written brief the Sawridge Trustees observe that the fact the Band membership was in flux several years ago, or that litigation had occurred on that topic, does not mean that Band membership remains unclear. However, I think that argument is premature. The Public Trustee seeks to investigate these issues not because it has proven Band membership is a point of uncertainty and dispute, but rather to reassure itself (and the Court) that the beneficiary class can and has been adequately defined. [ 47 ] The Public Trustee explains its interest in these questions on several bases.

The first is simply a matter of logic. The terms of the 1985 Sawridge Trust link membership in the Band to an interest in the Trust property. The Public Trustee notes that one of the three ‘certainties’ of a valid trust is that the beneficiaries can be “ascertained”, and that if identification of Band membership is difficult or impossible, then that uncertainty feeds through and could disrupt the “certainty of object”: Waters ’ Law of Trusts at p. 156-157.

[48] The Public Trustee notes that the historical litigation and the controversy around membership in the Sawridge Band suggeststhat the ‘upstream’ criteria for membership in the Sawridge Trust may be a subject of some dispute and disagreement. In any case, itoccurs to me that it would be peculiar if, in varying the definition of “Beneficiaries” in the trust documents, that the Court did not makesome sort inquiry as to the membership application process that the Trustees and the Chief and Council acknowledge is underway. [49] I agree with the Public Trustee.

I note that the Sawridge Band Chief and Council argue that the Band membership issue isirrelevant and immaterial because Band membership will be clarified at the appropriate time, and the proper persons will then becomebeneficiaries of the 1985 Sawridge Trust. It contrasts the actions of the Sawridge Band and Trustees with the scenario reported in Barryv. Garden River Band of Ojibways (1997), (ON CA), 33 O.R. (3d) 782, 147 D.L.R. (4th) 615 (Ont. C.A.), wherepremature distribution of a trust had the effect of denying shares to potential beneficiaries whose claims, via band membership, had notyet crystalized.

While the Band and Trustees stress their good intentions, this Court has an obligation to make inquiries as to theprocedures and status of Band memberships where a party (or its representative) who is potentially a claimant to the Trust querieswhether the beneficiary class can be “ascertained”. In coming to that conclusion, I also note that the Sawridge Trustees acknowledge thatthe proposed revised definition of “Beneficiaries” may exclude a significant number of the persons who are currently within that group. B.

Exclusive jurisdiction of the Federal Court of Canada [50] The Public Trustee emphasizes that its application is not to challenge the procedure, guidelines, or otherwise “interfere in theaffairs of the First Nations membership application process”. Rather, the Public Trustee says that the information which it seeks isrelevant to evaluate and identify the beneficiaries of the 1985 Sawridge Trust. As such, it seeks information in respect to Bandmembership processes, but not to affect those processes.

They say that this Court will not intrude into the jurisdiction of the FederalCourt because that is not ‘relief’ against the Sawridge Band Chief and Council. Disclosure of information by a federal board,commission, or tribunal is not a kind of relief that falls into the exclusive jurisdiction of the Federal Courts, per Federal Court Act, s. 18. [51] As well, I note that the “exclusive jurisdiction” of statutory courts is not as strict as alleged by the Trustees and the BandChief and Council. In 783783 Alberta Ltd. v.

Canada (Attorney General), 2010 ABCA 226, 322 D.L.R. (4th) 56, the Alberta Court ofAppeal commented on the jurisdiction of the Tax Court of Canada, which per Tax Court of Canada Act, R.S.C. 1985, c. T-2, s. 12 has“exclusive original jurisdiction” to hear appeals of or references to interpret the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp). TheSupreme Court of Canada in Canada v. Addison & Leyen Ltd., 2007 SCC 33, 365 N.R. 62 indicated that

interpretation of the IncomeTax Act was the sole jurisdiction of the Tax Court of Canada (para. 7), and that (para. 11): ... The integrity and efficacy of the system of tax assessments and appeals should be preserved.

Parliament has set up a complex structureto deal with a multitude of tax-related claims and this structure relies on an independent and specialized court, the Tax Court of Canada.Judicial review should not be used to develop a new form of incidental litigation designed to circumvent the system of tax appealsestablished by Parliament and the jurisdiction of the Tax Court. ... [52] The legal issue in 783783 Alberta Ltd. v.

Canada (Attorney General) was an unusual tort claim against the Government ofCanada for what might be described as “negligent taxation” of a group of advertisers, with the alleged effect that one of two competingnewspapers was disadvantaged. Whether the advertisers had or had not paid the correct income tax was a necessary fact to be proven attrial to establish that injury: paras. 24-25. The Alberta Court of Appeal concluded that the jurisdiction of a provincial superior courtincludes whatever statutory

interpretation or application of fact to law that is necessary for a given issue, in that case a tort: para. 28.

Inthat sense, the trial court was free to interpret and apply the Income Tax Act, provided in doing so it did not determine the income taxliability of a taxpayer: paras. 26-27. [53] I conclude that it is entirely within the jurisdiction of this Court to examine the Band’s membership definition and applicationprocesses, provided that: 1. investigation and commentary is appropriate to evaluate the proposed amendments to the 1985 Sawridge Trust, and 2. the result of that investigation does not duplicate the exclusive jurisdiction of the Federal Court to order “relief” against theSawridge Band Chief and Council. [54] Put another way, this Court has the authority to examine the band membership processes and evaluate, for example, whether

or not those processes are discriminatory, biased, unreasonable, delayed without reason, and otherwise breach Charter principles and the requirements of natural justice. However, I do not have authority to order a judicial review remedy on that basis because that jurisdiction is assigned to the Federal Court of Canada. [ 55 ] In the result, I direct that the Public Trustee may pursue, through questioning, information relating to the Sawridge Band membership criteria and processes because such information may be relevant and material to determining issues arising on the advice and directions application. VII.

Conclusion [ 56 ] The application of the Public Trustee is granted with all costs of this application to be calculated on a solicitor and its own client basis. Heard on the 5 th day of April, 2012. Dated at the City of Edmonton, Alberta this 12 th day of June, 2012. D.R.G. Thomas J.C.Q.B.A. Appearances: Ms. Janet L. Hutchison (Chamberlain Hutchison) for the Public Trustee / Applicants Ms. Doris Bonora, Mr. Marco S. Poretti (Reynolds, Mirth, Richards & Farmer LLP) for the Sawridge Trustees / Respondents Mr. Edward H. Molstad, Q.C. (Parlee McLaws LLP) for the Sawridge Band / Respondents