A Trust agreement’s payments are not extended to individuals who became members of the Ginoogaming First Nation after a designated payout day, even if they should have been a member on that date but for the discriminatory provisions of the Indian Act.
The Trustees of the Ginoogaming First Nation Timber Claim Settlement Trust [“Trust”] brought an application concerning the interpretation of the Timber Claim Trust Agreement [“Trust Agreement”]. The Ginoogaming First Nation [“GFN”] is a Band pursuant to the terms and provisions of the Indian Act. The GFN is the settlor of the Trust. Prior to the Ginoogaming Timber Claim Settlement Agreement [“Settlement Agreement”] being entered into between the GFN and the Government of Canada, the terms and conditions of the Settlement Agreement and the Trust Agreement were put to the members of the GFN and approved in a ratification vote [“Voting Day”]. Article 12.5 of the Trust Agreement, provides for a one-time payment to be made to members of the GFN on the Voting Day. The discriminatory provisions of the Indian Act, RSC, 1985 c I-5 [“Indian Act”] were in effect at that time. At issue in this appeal is that some individuals were able to become members since two amendments to the Indian Act, and are they therefore eligible for the one time payments from this Trust.
The two significant legislative changes to the Indian Act arose from two court decisions, McIvor v Canada (Registrar of Indian and Northern Affairs),  2 CNLR 236 (BCCA) leave to appeal to the SCC refused, 33201 (2009) [“McIvor”] and Descheneaux c Canada (Procureur Géneral),  2 CNLR 175 (QCCS) [“Descheneaux”]. The Gender Equity in Indian Registration Act [“Bill C-3”] was in response to McIvor, but it focused exclusively on the specific circumstances outlined in McIvor and inequities persisted. Bill C-3 had not gone far enough to remedy the inequities perpetuated by the Indian Act. The federal government’s response to Descheneaux was Bill S-3, an Act to amend the Indian Act through the elimination of sex-based inequities in registration, which received royal assent on December 12, 2017.
Even though it is recognized by the court that but for the discriminatory provisions of the Indian Act at the time those individuals should have been members on the Voting Day, they were not and therefore are excluded from the benefit of the payment provided for in the Trust. When it comes to Article 12.5, the settlors of the Trust expressed an intention to limit the payment to those individuals who were members of the GFN on the Voting Day. The applicants neither sought to vary the terms of the Trust, nor to have certain provisions declared void. It is not the role of an interpreting court to change the plain meaning of a trust document. Article 16 of the Trust Agreement specifically provides for changes or amendments to the terms of the Trust Agreement if approved by a vote of the Members. It is also open to the Trustees to bring an application for a variation of the terms of the Trust if otherwise permitted by law.