Written By: Sonya C Pighin
Date: June 10, 2019
Disclaimer: This Article represents a general critique of current legal decisions by the author and is not intended to be used as a source of legal advice. If the reader would like to determine whether a specific court would likely rule that a band is subject to the Charter in particular circumstances, a fact-specific legal opinion must be sought.
Introduction
Judicial review is the manner in which courts review the actions and inactions, decisions or orders of the government or a public body to determine whether they are constitutionally or legally valid within the statutory authority provided. In Canada, the Federal Courts Act[1]and Federal Courts Rules[2]establish the rules and procedures for judicial review of a matter pertaining to the orders or decisions, actions or omissions of a “federal board, commission or tribunal”. In this article, I will provide some basic information regarding the Federal Court’s test for when a body, person or persons is considered to be a “federal board, commission or tribunal” and the types of matters that are judicially reviewable. This article will then set out historical and constitutional references to Indians, bands and band councils, each of which are entities that could be seen as being created by Acts of Parliament and then we will look at whether the latter two are considered to be a federal board, commission or tribunal, as well as when the courts have accepted a power to judicially review their decisions, actions or omissions. We will see that the courts have been hesitant to view bands as federal tribunals but that they have often viewed band councils as federal tribunals, regardless of the fact that in some circumstances the two bodies are essentially undertaking the same functions.
Federal Board, Commission or other Tribunal
The Federal Courts Act sets out that an application for judicial review can only be brought against a federal board, commission or other tribunal, which is defined as a “body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by an order made pursuant to a prerogative of the Crown…”[3]. When determining whether a body, person or persons constitutes a federal board, commission or other tribunal, a person must examine the particular jurisdiction or power being exercised to determine whether the source of that jurisdiction or power is an Act of Parliament or an order made pursuant to the prerogative of the Crown[4].
Judicially Reviewable Matters
Once it is established that a "person, body or persons" may be subject to judicial review, a person must then determine whether the "matter" at hand is one that falls within the Federal Court’s jurisdiction. In Air Canada v Toronto Port Authority[5], Justice Stratas of the Federal Court of Appeal summarized which “matters” may be subject to Federal Court judicial review, as follows:
24… A "matter" that can be subject of judicial review includes not only a "decision or order", but any matter in respect of which a remedy may be available under section 18 [as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26] of the Federal Courts Act: Krause v. Canada, [1999] 2 F.C. 476 (C.A.). Subsection 18.1(3) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] sheds further light on this, referring to relief for an "act or thing", a failure, refusal or delay to do an "act or thing", a "decision", an "order" and a "proceeding". Finally, the rules that govern applications for judicial review apply to "applications for judicial review of administrative action", not just applications for judicial review of "decisions or orders": rule 300 [as am. by SOR/2002-417, s. 18(E); 2004-283, s. 37] of the Federal Courts Rules [SOR/98-106, r. 1 (as am. idem, s. 2)].
25 As far as "decisions" or "orders" are concerned, the only requirement is that any application for judicial review of them must be made within 30 days after they were first communicated: subsection 18.1(2) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act.
Additionally, to be subject to Federal Court judicial review a matter must be public as opposed to private in nature. When determining whether a matter is public in nature, all the circumstances must be considered with attention to the following factors, which we will consider when exploring whether the action or omission of a person or entity composed of Canada’s indigenous peoples is reviewable in the Federal Court:
whether the matter is a private, commercial matter or whether it has broader importance to the public;
the nature of the decision-maker and its responsibilities and whether that decision-maker is acting in the capacity of a Crown agent or a statutorily recognized body, and charged with public responsibilities;
whether the decision emanates directly from a public source of law, such as a statute, regulation or order, or whether the decision comes from something other than legislation, such as a contract or business decision;
the relationship between the decision-making body and other statutory schemes or parts of government and whether its exercise of power is part of a governmental network;
the extent to which the decision-maker is an agent of government, or is directed, controlled or significantly influenced or overseen by a public entity;
the suitability of the public law remedies available;
the existence of compulsory power, either over the public or over a defined group, such as a profession; and
whether the matter has a serious and exceptional effect on the rights or interest of a broad segment of the public[6].
The Federal Court’s jurisdiction extends beyond formal decisions and includes the review of "a diverse range of administrative action that does not amount to a 'decision or order', such as subordinate legislation, reports or recommendations made pursuant to statutory powers, policy statements, guidelines and operating manuals, or any of the myriad forms that administrative action may take in the delivery by a statutory agency of a public programme”.[7]A public legal duty can arise either pursuant to a statute or pursuant to guidelines issued under a statutory authority[8].
Historical and Constitutional References to Indians, Bands and Band Councils
Before examining the current status of bands and band councils as a federal board, commission, or other tribunal, let’s consider the historical and constitutional references to Indians, bands and band councils to give context to the discussion that will follow. At the time of confederation, the Parliament of Canada was granted authority under section 91(24) of the Constitution Act, 1867 to enact laws in relation to “Indians and lands reserved for Indians”[1]. In 1868 the Parliament of Canada enacted An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Landssetting out the first Canadian statutory definition of whether a person is or is not an Indian and the first statutory authorization of chiefs as decision-makers in relation to surrenders of land on behalf of a tribe, band or body of Indians[2], terms which were not yet legislatively defined. The following year, Parliament of Canada enacted An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31stVictoria, Chapter 42, which granted the Governor in Council powers to order that chiefs of a tribe, band or body of Indians be elected and to remove a chief from their position as chief[3]. This latter Act also granted a chief or chiefs of a tribe in council statutory delegation to develop their own rules and regulations, subject to confirmation of the Governor in Council with regard to: (a) the care of public health, (b) the observance of order and decorum at assemblies of the people in General Council, or on other occasions, (c) the repression of intemperance and profligacy, (d) the prevention of trespass by cattle, (e) the maintenance of roads, bridges, ditches and fences, (f) the construction of and maintaining or repair of school houses, council houses and other Indian public buildings, and (g) the establishment of pounds and the appointment of pound keepers[4]. In 1876, the Parliament of Canada enacted the Indian Act, 1876, in which the term “band” was first defined, and in which the statutory delegation of powers of councils were expanded to include powers to enact rules and regulations for: (a) the observance of order and decorum at assemblies of the Indians in general council, or on other occasions, and (b) the locating of the land in their reserves, and the establishment of a register of such locations[5].
Since 1867, defining the term “Indian” has been a major area of contention amongst the provinces, the territories, the Parliament of Canada, and the indigenous peoples of Canada. Today our picture of who is or is not an “Indian” for the purposes of section 91(24) is much more colorful than the picture painted in early Acts of Parliament. In part, the term “Indian” has developed as a result of the provincial, territorial and federal governments of Canada revising the Constitution Act, 1867and approving theConstitution Act, 1982, in which they “recognized and affirmed what they call the existing aboriginal and treaty rights of the “aboriginal peoples of Canada”, which they defined as including the Indian, Inuit and Metis peoples of Canada[6]. Most recently in 2016, the Supreme Court of Canada decided the term “Indians” for the purposes of section 91(24) includes Inuit, Metis and non-status Indians:
35.The term “Indian” or “Indians” in the constitutional context, therefore, has two meanings: a broad meaning, as used in s. 91(24) , that includes both Métis and Inuit and can be equated with the term “aboriginal peoples of Canada” used in s. 35 , and a narrower meaning that distinguishes Indian bands from other Aboriginal peoples. As will be noted later in these reasons, this Court in Reference as to whether “Indians” in s. 91(24) of the B.N.A. Act includes Eskimo inhabitants of the Province of Quebec, [1939] S.C.R. 104 (“Re Eskimo”), held that s. 91(24) includes the Inuit. Since the federal government concedes that s. 91(24) includes non-status Indians, it would be constitutionally anomalous, as the Crown also conceded, for the Métis to be the only Aboriginal people to be recognized and included in s. 35 yet excluded from the constitutional scope of s. 91(24)[7].
Contemporary Acts of Parliament and the Judicial Reviewability of Bands and Band Councils
There are a number of contemporary Acts of Parliament that refer to Indians, bands and band councils but in this paper, we will focus on where those Acts of Parliament specifically or implicitly confer jurisdiction or powers on a band or band council. In particular we will focus on: the Indian Act, 1985, First Nations Land Management Act(“FNLMA”)[8], the Family Homes on Reserves and Matrimonial Interests or Rights Act(“FHRA”)[9], and the First Nations Fiscal Management Act(“FNFMA”)[10]. In doing so, we will also assess when decisions or orders, acts or things, failures, refusals or delays to do acts or things, proceedings undertaken and administrative actions of bands and band councils pursuant to these Acts of Parliament are subject to review in the Federal Court.
Matters Pertaining to the Exercise of Powers Under the Indian Act, 1985
Although there is more clarity today with regard to who is or is not an “Indian” under section 91(24), there is not a duty on the Parliament of Canada to legislate with regard to all classes of “Indians”[11], and in fact the Parliament of Canada has exercised their legislative power in this respect sparingly and selectively. The Indian Act, 1876has been amended numerous times with its most recent consolidation being the Indian Act, 1985[12], which does not apply to all persons who are considered Indians for the purposes of section 91(24). TheIndian Act, 1985 sets out strict criteria for when a person is considered an Indian for its purposes and those criteria exclude many persons who have Canadian indigenous ancestry.
The Indian Act, 1985defines a band as a body of Indiansfor whom Her Majesty holds money, for whom Her Majesty has set aside lands, or who are declared to be a band by the Governor in Council[13]. As of May 11, 2018, the Parliament of Canada recognizes 618 First Nation “bands”[14]. When it comes to the reviewability of a decision of a band, different courts have taken different approaches. Chief Justice Stratton of the New Brunswick Court of Appeal determined that a band is not a reviewable body because the powers under the Indian Actof a band to nominate and elect chief and councillors and to surrender rights or interests in reserve lands are not analogous to a municipal or governmental power, nor does a band act as an agent for the Minister of Indian Affairs and Northern Development or perform any decisive role in the Minister’s exercise of authority over reserve lands[15]. Justice Maloney of the Ontario Divisional Court similarly stated in 1991 that an Indian Band is not a federal board or tribunal within the meaning of the Federal Courts Act[16]. On the other hand, Justice Phelan of the Federal Court gave full consideration to the decision made by a band that was made by band members entering their votes behind a curtain but in front of a witness when the band’s land code required votes to be by show of hands at a community meeting[17].
The Indian Act, 1985 sets out rules for membership in a band and provides that a band may control its own membership if: (a) it establishes membership rules for itself in writing and in accordance with the Indian Act, (b) it gives appropriate notice to electors of the band of its intention to assume control of its own membership, and (c) a majority of the electors of the band vote on whether to approve the membership rules and 50% plus 1 of those electors of the band who vote, cast a vote in favor of the membership rules and the band’s control of its own membership[18]. The Indian Act, 1985further provides that a band may establish a mechanism for reviewing decisions on membership[19]. If the Minister is satisfied that the conditions set out in the Indian Act, 1985have been satisfied they will send notice to the band that it has control of its own membership, thus granting the band power to control its membership in accordance with its membership rules[20]. Here we have an Act of Parliament conferring a power on a band, as opposed to conferring that power on the band council. The band is composed of “a body of persons” and the decision being made has to do with membership, which is akin to citizenship and is very public in its nature because it has an exceptional effect on the rights or interests of indigenous peoples who wish to be recognized as part of the band. For these purposes, the band should be a judicially reviewable body in its establishment of membership rules.
It is common under a band’s custom membership rules for there to be a membership clerk or membership committee authorized to undertake certain functions with regard to the receipt and management of applications for membership, the adding or deleting of names from the band list, as well as the making of decisions with regard to applications for membership or applications for revocation of membership. In other cases, it is the council of a band that makes decisions regarding membership, or it may be the band itself by way of referendum at a band meeting that makes such decisions.
Under the Indian Act, 1985, a band may also approve either the absolute or restricted surrender of its reserve lands[21]. There is no definitive case law with regard to whether the decision of a band is reviewable for this purpose but consider the public importance to all band members of such a decision, judicial review should be available for persons wanting to challenge the validity of such decisions.
The Indian Act, 1985also recognizes four different bodies as the council of a band:
(1) a body of persons elected into council in accordance with the Indian Act, 1985and its associated regulations, as per a declaration or order of the Minister of Indian Affairs and Northern Development, which council exists and operates in accordance with the rules and procedures set out in that Act and in those regulations[22];
(2) a body of persons elected into the council of a band in accordance with the Act of Parliament known as the First Nations Elections Act, as per an Order of the Minister of Indian Affairs and Northern Development Canada, which council exists and operates in accordance with the rules and procedures set out in that Act and in those regulations[23];
(3) a body of persons elected into the council of a band in accordance with that band’s own community election code, in circumstances where the band was subject to the First Nations Elections Actbut the Minister of Indian and Northern Affairs removes their name from the Schedule of that Act in accordance with that Act[24]; and
(4) in the case of any other band, the council chosen according to the “custom of the band”, or if there is no council, the chief of the band chosen according to the custom of the band[25]. To be a custom of the band, first there must be a certain number of occurrences (which, under some circumstances, may be replaced by an isolated act such as the adoption of a general rule or of an electoral code). Second, there must be compliance by the persons affected by the practice[26]. In some cases, a band will enact a custom election law by way of a ratification vote to establish a codified custom regarding elections, council decision-making and the management and accountability of the council of the band. Where a band is subject to an order under section 74 of the Indian Act, 1985, there is a strict process they must follow before the Minister will repeal that order allowing them to operate under custom election rules[27].
The Federal Court recognizes the council of a band as being a federal tribunal for the purposes of judicial review[28]. This approach to the status of a band council is supported by some Canadian appellate courts. Justice Belzil of the Alberta Court of Appeal described a band council as having been “created” under the Indian Act, with no other source of power[29]. Justice Cameron of the Saskatchewan Court of Appeal described band councils as being “creatures” of the Parliament of Canada “intended to provide some measure – even if rather rudimentary – of local government in relation to life on Indian reserves and to act as something of an intermediary between the band and the Minister of Indian Affairs”[30]. Justice Cameron further said that in addition to municipal and governmental functions, band councils are empowered under the Indian Act to perform advisory roles and veto powers with respect to certain activities of the Minister of Indian Affairs in relation to the reserve, the spending of Indian monies and the use and possession of reserve lands, and that band councils act as agents of the Minister of Indian Affairs with respect to certain federal government programs that are designed for Indian reserves and their residents[31]. Last, he described band councils as elected public authorities, dependent on Parliament for their existence, powers and responsibilities, with an essential function being to exercise municipal and government power – as delegated by Parliament[32].
The Federal Court has also determined that a band council elected in accordance with its own customs is a federal tribunal for the purposes of judicial review. In Gamblin v. Norway House Cree Nation Band Council, the council of the band was elected in accordance with the Indian Act, 1985 and its associated regulations until 1998 when it enacted its own custom election law[33]. With regard to whether the council was a federal tribunal, Justice Mandamin described the capacity of the First Nation to make laws concerning matters of leadership and governance as not being derived from the Indian Act or other statutory power but instead from the First Nation’s aboriginal right to make its own laws concerning governance[34]. Regardless, Justice Mandamin concluded that decisions made by the council of Norway House Cree Nation were federal in nature because the council derives its jurisdiction from both the federal common law of aboriginal rights and its capacity to exercise federal statutory powers under the Indian Act[35]. In addition to the status of a band council as a federal tribunal, the Federal Court has also determined it has jurisdiction to judicially review the acts of individual chiefs and councillors in their official capacities[36].
The Indian Act, 1985 also creates an obligation for a band that has its own membership rules to maintain a band list, setting out the names of those persons who are entitled to be members of the band, and gives the band power to add or delete names from their band list in accordance with its membership rules[37]. Maintaining the membership list in accordance with membership rules has been found to be a public law duty[38]. Where the membership rules of a band do not specifically delegate this duty to another person or body, the Federal Court has determined that the duty lies on the council of the band[39]. Where the council of a band evades this duty to maintain the band list, the Federal Court has determined that it commits a reviewable error and breaches the rule of law, which requires that all persons must comply with the law, including government bodies[40]. The Federal Court has also exercised jurisdiction to review band council decisions made pursuant to a membership code regarding the exclusion of persons from membership and stated that regardless of whether there is an actual documented band council decision it is judicially reviewable where the chief and council act upon an alleged decision regarding a person’s membership by denying that person the right to vote as a member in a council election[41].
The Indian Act, 1985 also grants powers to the council of a band with regard to the making of certain by-laws. For example, the band council may make by-laws not inconsistent with the Indian Act, 1985or with any regulation made by the Governor in Council or the Minister, relating to matters such as: health, traffic, law and order, disorderly conduct and nuisances, trespass of cattle and animals, pound-keepers, construction of local works including water works, zoning, construction, surveys and allotments of reserve lands, public games and sports, businesses on reserve, animal and fish protection on-reserve, residency, matrimonial rights on-reserve[42]. The band council may also make money by-laws, subject to the approval of the Minister of Indigenous and Northern Affairs, and by-laws pertaining to intoxicants on-reserve, subject to approval of those members of the band over the age of 18[43]. The band council’s power to make by-laws is very clearly a power conferred by an Act of Parliament – the Indian Act, 1985. Where such by-laws grant the band council authority to make decisions, such as the decision to grant a dog licence under an animal control by-law or the decision to grant a building permit under a building and construction by-law, the band council’s jurisdiction to make those decisions also have their source in the Indian Act, 1985for without the Indian Act, 1985those by-laws would not exist, nor would the power of the band council to make such decisions exist in a legally enforceable manner. As such, the band council is undertaking an administrative action in accordance with subordinate legislation that is made pursuant to an Act or Parliament.
There are also powers under the Indian Act, 1985 that the Minister of Indigenous and Northern Affairs can only exercise after obtaining the consent of a band council, such as the granting of a permit for the use, occupation or possession of reserve lands that exceeds one year in duration or the grant of reserve lands to an individual member of the band[44]. Additionally, the Minister can only regulate timber licensing on-reserve, cultivate reserve lands or dispose of sand, gravel, clay, and non-metallic substances taken from reserve lands with the consent of a band council[45]. Likewise, the Minister can only approve expenditures of a band’s capital monies or revenue monies with band council’s consent[46]. The Federal Court judicially reviewed the decision of band councils to refuse issuance of survey instructions concerning a proposed grant of reserve lands to an individual member as “band councils are granted discretion to approve allotments by s.20” and doing so is a fulfillment of the band council’s “public law duty in developing a fair lands management policy for the band”[47]. The other required consents may also be considered an exercise of a public duty as they are each part of an overall statutory scheme relating to the management of reserve lands by the Parliament of Canada and they all have to do with the management of reserve lands or monies that are to be held for the benefit of the band, both of which are of a public interest to other band members.
Matters Pertaining to Exercise of a Power Under the First Nations Fiscal Management Act
The FNFMA is an Act of Parliament that enables bands the authority to develop real property taxation regimes on reserve lands, access financial management advisory and capacity development services from federal government institutions established under the FNFMA and participate in pooled borrowing[48]. It is optional for a band to become subject to the FNFMA. To become subject to the FNFMA a band council must make a request to be added to the schedule of the FNFMA and the Governor in Council has discretion on whether to amend the schedule bringing the band under the operation of the FNFMA[49].
Once a band is added to the schedule, the FNFMA grants a clear authority to the band, subject to the approval of a federal government institution called the First Nations Tax Commission and subject to a public notification period, to make laws relating to taxation for local purposes of reserve lands and interests in reserve lands, including taxation of rights to occupancy, possession and use of reserve lands, and laws regarding valuation assessments, taxation rates, taxation on services and business activities, and development cost charges[50]. The FNFMA also sets out a clear power of the council of a band to enact laws authorizing local revenue expenditures, interest on unpaid taxes, the borrowing of money from a federal government institution known as the First Nations Finance Authority, and the enforcement of such laws[51]. Where the council of a band enacts such laws, those laws must include an appeal procedure with respect to assessments and fixed rates of remuneration and terms of office for any persons designated to decide the appeals[52]. Before the council of a band can make any of these laws, the FNFMA requires them to make a law respecting the financial administration of the band, which must be approved by a federal government institution known as the First Nations Financial Management Board[53]. The FNFMA also regulates what must be in certain laws of the band, restricting their freedom to legislate as they please[54]. Given the close oversight relationship between the Parliament of Canada and a band or band council under the FNFMA and the extent of control that is maintained by the Parliament of Canada with respect to the band’s law development powers, any action by a band or band council with regard to developing financial laws under the FNFMA must be considered public in nature and subject to judicial review. Likewise, where the council of a band has some obligation or decision-making authority under those laws, such as the approval of a band’s annual budget, or an annual or term-based financial plan, that band council should be subject to judicial review in their decision making. This is consistent with C.P. v Matsqui Indian Band, where a majority of the Supreme Court of Canada confirmed that an assessment by-law enacted pursuant to the FNFMA has the status of a regulation as per section 2(1)(a) of the Interpretation Act, which includes any “order, regulation, rule, rule of court, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issues, made of established…in the execution of a power conferred by or under the authority of an Act…”[55].
Matters Pertaining to the Exercise of a Power Under the First Nations Lands Management Act
The FNLMA provides that a band may establish a land management regime over its reserve lands by adopting a land code applicable to all of its reserve lands, which land code must describe the land that will be subject to the land code and set out rules and procedures in relation to matters such as the use, occupancy and possession of those lands, transfers of those lands, financial management in relation to revenue from those lands, the development of laws in relation to those lands, and the expropriation of those lands or exchange of those lands[56]. In addition to developing a land code, the band must enter into an individual agreement with the Minister describing the land that will be subject to the land code and providing for the terms of transfer from the Minister to the band of administration and control over those lands and any existing interests or licences on those lands, as well as an environmental assessment process that will apply to projects on those lands until such time as the band enacts its own law in relation to environmental assessment processes[57]. The FNLMA also sets out a specific process for how the band may approve its land code and individual agreement, which involves a full ratification vote to be undertaken[58]. Once a band’s land code comes into effect, those provisions of the Indian Act, 1985 pertaining to the management or reserve lands cease to apply and the only way for an interest, right or licence in the reserve lands subject to the land code can be acquired or granted except in accordance with the land code[59]. Additionally, the band has power to manage the reserve lands that are subject to the land code in accordance with the land code, and that power can be exercised either by the band council or by a person or body delegated to exercise such powers in accordance with the land code[60].
The FNLMA is an Act of Parliament specifically providing the council of a band with power to manage the band’s reserve lands, in accordance with a land code that meets the specific expectations of the Parliament of Canada. Furthermore, all decisions made under a land code relate to the management of reserve lands, which is a public function akin to the function of a municipality over municipal lands or the province over provincial lands. As such, any decision made by a band council under the community’s land code must be subject to judicial review.
Matters Pertaining to the Exercise of a Power Not Specifically Delegated to a Band Council within an Act of Parliament
There are circumstances where the Federal Court has reviewed the actions or decisions of a band council where the band council’s authority to undertake that action or make that decision is not clearly set out in an Act of Parliament. When it comes to the actions of a band council in accordance with the customary laws of a band, Justice Strickland of the Federal Court has determined that where a band council administers estate matters and controls land transfers between individuals by requiring its approval of each transaction, their actions are public in nature and reviewable in the Federal Court[61]. In another case, the Federal Court reviewed a band council’s decision to (a) approve the advanced payment of settlement funds and (b) release Canada from future obligations to the band with regard to a settlement agreement between the band and Manitoba Hydro, a decision that was considered to be the exercise of the council’s powers in relation to first nation governance and a matter of public interest as it related to the provision of potable water for members of Norway House Cree Nation[62]. Although the powers of the council being exercised had a financial aspect to them, the decisions were related to the supply of water, which the court decided made them public in nature[63]. Furthermore, the exercise of authority by the council was considered an exercise of its jurisdiction for governance in a manner analogous to the exercise by a federal board, commission or other tribunal…”[64].
Bands also receive funding from the Parliament of Canada to administer services on behalf of Indigenous and Northern Affairs Canada to its membership. To receive such funding the council of a band must enter into a funding agreement with the Minister that sets out the band council’s obligations to membership and for reporting back to the Minister on the use of those funds[65]. Such funds include contributions for: the provision of income support to on-reserve residents, the administration of Indian registration; support for elementary, secondary and post-secondary costs for members; assistance relating to lands management and economic development initiatives. The actions of chiefs and councillors in signing off a cheque for the spending of such monies or making decisions with regard to the administration of such programs may also be judicially reviewable because in doing so they undertake an administrative action in the band’s delivery of a public program that is being delivered in accordance with guidelines set out in the funding agreements. The band council is directed and overseen by government in their spending and their delivery of such programs is controlled often by government policies[66]. Furthermore, the programs being delivered promote matters that are very much public in nature, including: public health, social / community care, reserve lands administration, natural resources management, and community governance.
Band councils also enter into financing agreements with banks, in particular for the building of new social housing units on-reserve. The band council will be judicially reviewable for any financial decisions or actions it takes in accordance with the community’s financial administration laws, such as their management of those social housing units as tangible capital assets to ensure their good and safe condition[67]. On the other hand, the Federal Court has said that decisions regarding the enforcement of tenancy contracts are private law contractual decisions[68].
There are also times where members of a band council will act in their capacities as directors of band-owned business entities incorporated under provincial legislation. In such capacities, they are not acting as a federal board or federal tribunal because their actions are not being undertaken in accordance with a responsibility under an Act of Parliament[69]. There are other times where a band council will act in dual capacity both as a shareholder of a corporation as set out in provincial legislation, and at the same time as band councillors holding shares in trust for the band membership who are the beneficiaries. In these circumstances, generally the band council is engaging in a commercial enterprise for the benefit of the band but at the same time engaging in the management of public funds. It will depend on the nature of the specific decision being made on whether the band council’s actions are subject to judicial review. Likewise, there are times where band council will act as trustees under a settlement trust but at the same time the band council is managing funds on behalf of the band membership who are the beneficiaries. Whether the band council’s actions in this regard will be judicially reviewable matters is a question for the courts of the future to determine.
Conclusion
It is questionable whether the courts will continue treating "bands" as non-reviewable entities in judicial review proceedings, or whether they will change their tune and treat bands as bodies of persons authorized under an Act of Parliament to make decisions of a public nature. We will need to wait to see the future of whether "band" decisions are judicial reviewable. For example, how will the courts treat future decisions of a "band" regarding: the surrender of reserve lands, the approval of a by-law, or decisions regarding approval of persons as members at band meetings pursuant to their custom membership rules, or approval of land instruments pursuant to their land codes. When it comes to the "council of a band", the courts have already concluded that such bodies are federal tribunals and subject to judicial review, but in some circumstances, they have decided that the actions of band councils are not public enough in nature to be judicially reviewable. On this latter point, we will see whether the courts decide in the future to revert their findings. In all actions taken by a band council, they are making decisions on behalf of membership, in their fiduciary capacities in which they must act in the best interests of members. They would not have such authority to act except for the fact that they are legally recognized by outside persons as the authorized representatives of a band because of their status as a band council under the Indian Act, 1985.
Footnotes:
[1]Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5
[2]An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, Assented to on May 22nd, 1868, at s. 15, Online: https://www.aadnc-aandc.gc.ca/eng/1100100010196/1100100010198
[3]An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31stVictoria, Chapter 42, Assented to on June 22nd, 1869, at s.10, Online: https://www.aadnc-aandc.gc.ca/eng/1100100010204/1100100010206
[4]Ibid at s.12
[5]Chap. 18. An Act to amend and consolidate the laws respecting Indians, Assented to April 12th, 1876, at ss. 3 and 63, Online: https://www.aadnc-aandc.gc.ca/eng/1100100010252/1100100010254
[6]Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11, at s.35
[7]Daniels v Canada (Indian Affairs and Northern Development, [2016] 1 S.C.R. 99, at paras 35 and 46 [“Daniels”]
[8]First Nations Land Management Act, (S.C. 1999, c. 24) [“FNLMA”]
[9]Family Homes on Reserves and Matrimonial Interests or Rights Act, (S.C. 2013, c.20) [“FHRA”]
[10]First Nations Fiscal Management Act, (S.C. 2005, c.9) [“FNFMA”]
[11]Daniels, at para 15
[12]Indian Act(R.S.C., 1985, c. I-5) [“Indian Act”]
[13]Indian Act, at s.2(1)
[14]Government of Canada, First Nation Profiles(Homepage) (Ottawa: Indigenous and Northern Affairs Canada, 2018), Online: http://fnp-ppn.aandc-aadnc.gc.ca/fnp/Main/index.aspx?lang=eng
[15]Sabattis v. Oromocto Indian Band (N.B.C.A.),[1986] N.B.J. No. 141 at p.3
[16]Chapman v. Chicago (Div. Ct.), 5 O.R. (3d) 220
[17]Lafond v. Muskeg Lake Cree Nation,[2009] F.C.J. 1135 at paras 7-18 and 24-25
[18]Indian Act, s.10(2)(a); Abenakis of Odanak (Band Council of) v Canada, [2008] 3 C.N.L.R. 1 (Federal Court of Appeal), at para.47
[19]Indian Act, s.10(2)(b)
[20]Government of Canada, About Band Membershi and How to Transfer of Create a Band(Date modified: May 15 2018), Online: http://www.aadnc-aandc.gc.ca/eng/1100100032469/1100100032470
[21]Indian Act, at ss.38 and 85.1
[22]Indian Act, at ss. 2(1) and 74 to 80; Indian Band Election Regulations (C.R.C., c. 952)
[23]First Nations Elections Act, (S.C. 2014, c. 5), at s.3(1) [“FNEA”]
[24]Indian Act, at s.2(1) andFNEA, at s.42
[25]Indian Act, at s.2(1);
[26]Vollant v Sioui, [2006] F.C.J. No. 611 at para 39
[27]Indigenous and Northern Affairs Canada, Conversion to Community Election System Policy(Date Modified: June 1, 2015), Online: https://www.aadnc-aandc.gc.ca/eng/1433166668652/1433166766343
[28]Canatonquin v. Gabriel, [1980] 2 F.C. 792 (C.A.); Sebastian v. Saugeen First Nation No. 29, 2003 FCA 28, [2003] 3 F.C. 48 at para. 51, referred to in Horseman v Horse Lake First Nation, [2013] F.C.J. 690, at para 6 [“Horseman”]
[29]R v Paul Band, 1983 ABCA 308 at para 20
[30]Whitebear Band Council v. Carpenters Provincial Council of Saskatchewan and Saskatchewan Labour Relations Board, 1982 CanLii 2582 (SKCA), at para 13 [“Whitebear”]
[31]Whitebear, at paras 17-18
[32]Whitebear, at para 19
[33]Gamblin v. Norway House Cree Nation Band Council and the Attorney General of Canada, 2012 FC 1536 at paras 7-8 [“Gamblin”]
[34]Gamblinat para 34
[35]Gamblin, at para 50
[36]Lake Babine Band v. Williams (1996), 194 N.R. 44, 61 A.C.W.S. (3d) 256 (F.C.A.); Salt River First Nation 195 (Council) v. Salt River First Nation(2003), [2004] 1 C.N.L.R. 319 (F.C.A.), referred to in Horsemanat para 6
[37]Indian Act, s.10(9)-(10)
[38]Scrimbitt v Sakimay Indian Band Council, [2000] 1 CNLR 205 at para 37, mentioned in Cameron v Canada (Minister of Indian Affairs and Northern Development), [2012] F.C.J. No. 835 at para 44 [“Cameron”]
[39]Cameron, at para 55
[40]Cameron, at para 38
[41]Okemow-Clark v. Lucky Man Cree Nation[2008] F.C.J. No. 1104, at para 29; Appeal dismissed by the Federal Court of Appeal dismissed in Okemow-Clark v. Lucky Man Cree Nation, [2010] F.C.J. No. 219
[42]Indian Act, at s.81
[43]Indian Act, at ss.83 and 85.1
[44]Indian Act, at ss.20 and 28
[45]Indian Act, at ss.57(a) and 58(1)
[46]Indian Act, at ss.59 and 64
[47]Parker v Okanagan Indian Band Council,[2011] 2 C.N.L.R. 235 at paras 1, 2 and 6
[48]Canada, Aboriginal Affairs and Northern Development Canada, Report to Parliament on the Legislative Review of the First Nations Fiscal and Statistical Management Act, March 2012
[49]FNFMA, at s.2(3)
[50]FNFMA, at s.5(a), 6 and 7
[51]FNFMA, at ss.5(b) to (e)
[52]FNFMA, at s.5(4)
[53]FNFMA, at ss.4 and 9
[54]FNFMA, at ss.8,
[55]Matsqui, at para 51
[56]FNLMA, at s.6(1)
[57]FNLMA, at s.6(3)
[58]FNLMA, at ss.8-14
[59]FNLMA, at ss.16 and 38
[60]FNLMA, at s.18
[61]Hill v Oneida Nation of the Thames Band Council, [2014] F.C.J. No. 841, at paras 37-38
[62]Gamblin, at paras 50-51
[63]Gamblin, at para 53
[64]Gamblin, at para 60
[65]Government of Canada, Band Support Funding Program Policy(Date modified: January 15 2016), Online: http://www.aadnc-aandc.gc.ca/eng/1100100013828/1100100013833; Also, Government of Canada, The Reporting Guide(Date modified: December 19, 2017), Online: http://www.aadnc-aandc.gc.ca/eng/1385559716700/1385559777677
[66]Government of Canada, Terms and Conditions for INAC Transfer Payments(Date Modified: May 16, 2017), Online: http://www.aadnc-aandc.gc.ca/eng/1385747327206/1385747397222
[67]First Nations Financial Management Board, Sample Financial Administration Law, Online: https://fnfmb.com/sites/default/files/2018-05/Sample%20FAL%20-%20%28With%20Local%20Revenues%20-%202016%20Standards%29.pdf
[68]Cottrell v. Chippewas of Rama Mnjikaning First Nation Band,[2009] F.C.J. No. 369
[69]Horseman, at para 8;
[1]Federal Courts Act, (R.S.C., 1985, c. F-7) [“FCA”]
[2]Federal Courts Rules(SOR/98-106)
[3]FCA, at ss. 2(1), and 18.1(1), (3) and (4)
[4]Air Canada v Toronto Port Authority, [2013] 3 F.C.R. 605, at para 47 [“Air Canada”]
[5]Air Canada, at paras 24 and 25
[6]Air Canada, at para 60
[7]Markevich v. Canada, 1999 CanLII 7491 (FC), [1999] 3 F.C. 28 (QL) (T.D.), at para. 11, reversed on other grounds, 2001 FCA 144 (CanLII), [2001] F.C.J. No. 696, reversed on other grounds, 2003 SCC 9 (CanLII), [2003] S.C.J. No. 8., quoted in Nunavut Tunngavik Inc. v. Canada (Attorney General), 2004 FC 85 (CanLii), at para 8
[8]Jefford v. Canada, 1988 CanLII 5687 (FCA), [1988] 2 F.C. 189 and Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1989] 3 F.C. 309 (T.D.); aff’d.[1990] 2 W.W.R. 69 (F.C.A.)., referred to in Burstyn v. Canada (Canada Revenue Agency),2007 FC 822 (CanLii), at para 26