370 EXCHEQUER COURT OF CANADA [1948 1947 BETWEEN : Dec. 11 CONSTANCE 'CHISHOLM, in her 1948 quality of sole devisee and testamen- May 21 • tary executrix of Andrew Gordon ( SUPPLIANT; Chisholm, deceased J AND HIS MAJESTY THE KING RESPONDENT. Crown—Petition of Right—Indian Act, R.S.C. 1927, c. 98, s. 90(2)—No recovery for services rendered Indians not approved by Superintendent General of Indian Affairs—Decision of the Minister is not subject to review by the Court. Held: That there can be no recovery against the Crown for services rendered a band of Indians at the request of such band unless an agreement to such effect has been approved in writing by the Superintendent General of Indian Affairs. 2. That the decision of the Minister of Mines and Resources to pay or not to pay is not subject to review by the Court. ARGUMENT on question of law ordered to be set down and disposed of before the trial. The argument was heard before the Honourable Mr. Justice O'Connor at Ottawa. Auguste Lemieux, K.C. for suppliant. W. R. Jackett for respondent. The facts and questions of law raised are stated in the reasons for judgment. O'CONNOR J. now (May 21, 1948) delivered the following judgment: This is a Petition of Right brought by Constance Chis-holm, sole devisee and executrix of the will of the late Andrew Gordon Chisholm, K.C., who died at London, Ontario, on the 11th day of January, 1943. In these proceedings the following question of law was set down for hearing:— Assuming the allegations of fact contained in the Petition of Right to be true, does a petition of right lie against the Respondent for any of the relief sought by the Suppliant in the said Petition?
Ex.C.R.] EXCHEQUER COURT OF CANADA 371 The facts alleged in the Petition of Right are:— 1948 The late Mr. Chisholm, between the years 1915 and CaisaoLM 1942, both inclusive, rendered legal services to the Six THE Krxo Nations Indians, particulars of which are set out in the O'Connor J. account of $5,034.70, annexed to and forming part of the — Petition of Right. The services rendered were in connection with the preparation and prosecution of a claim by the Six Nations Indians against the Crown. The Six Nations Indians are wards of the respondent and under the Indian Act, R.S.C., 1927, chap. 98, as amended, the Minister of Mines and Resources is and has been at all times material the trustee of the Indians, and as Superintendent General of Indian Affairs has the control, direction and management of the Indians in Canada, including their trust funds. The professional services were rendered to the Six Nations Indians at their own request, and for their benefit and advantage and protection and promotion of their welfare as such band. The charge for such services is most modest and reasonable. Mr. Chisholm applied to the respondent as trustee for the Six Nations Indians for payment of the account, but failed to obtain any settlement. The Six Nations Indians have always viewed with favour and approved the account, and have been willing that Mr. Chisholm be paid an adequate remuneration and by a resolution of the Six Nations, dated 8th of February, 1943, they duly approved and recommended that the sum of $1,500 be paid to the suppliant on account of the bill for such legal services, but no payment has been made. For these reasons the respondent is indebted to the suppliant in the said sum of $5,034.70. The facts alleged do not show that there is any liability on the respondent for the account. It is not suggested that the respondent ever instructed Mr. Chisholm to act. Because the respondent holds money in trust for the Indians does not impose a liability on the respondent to pay this account out of the trust funds or otherwise. The decision of the Minister either to pay or not to pay the account is not subject to review by the Court. The Court has no jurisdiction to do so. 12850-2ia
372 EXCHEQUER COURT OF CANADA [ 1948 1948 Nor is there any liability if the claim is on the basis CHISHOLM that:— V. (a) the Six Nations engaged Mr Chisholm and agreed to pay him THE KING out of the trust funds in the possession of the respondent O'Connor J. or (b) the resolution approving and recommending payment is an assignment of the trust funds or an order to pay $1,500 out of such funds; because Section 90 (2) of the Indian Act provides:— No contract or agreement binding or purporting to bind, or in any way dealing with the moneys or securities referred to in this section, or with any moneys appropriated by Parliament for the benefit of Indians, made either by the chiefs or councillors of any band of Indians or by the members of the said band, other than and except as authorized by and for the purposes of this part shall be valid or of any force or effect unless and until it has been approved in writing by the Superintendent General. It is not alleged that there was such approval. The question of law will, therefore, be answered in the negative. The costs will be costs in the cause. Judgment accordingly.
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