Gamblin v. Norway House Cree Nation Band Council

Gamblin v. Norway House Cree Nation Band Council
Court (s) Database
Federal Court Decisions
Date
2012-12-20
Neutral citation
2012 FC 1536
File numbers
T-434-06
Notes
Digest
Decision Content
Date: 20121220
Docket: T-434-06
Citation: 2012 FC 1536
Ottawa, Ontario, December 20, 2012
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
MAGGIE MYRNA LORRAINE GAMBLIN
Applicant
and
NORWAY HOUSE CREE NATION BAND
COUNCIL AND THE ATTORNEY GENERAL
OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant, Ms. Maggie Myrna Lorraine Gamblin, is a member of the Norway House Cree Nation (NHCN). She seeks a writ of certiorari quashing the February 7, 2006 resolution by the Respondent, the NHCN Council (NHCN Council). The Applicant also seeks a declaration that an earlier written NHCN Council resolution (BCR) dated July 21, 2005 is void ab initio because the BCR was not a Council decision passed at a duly convened NHCN Council meeting.
[2] The February 7, 2006 Council resolution purports to ratify the July 21, 2005 NHCN Council resolution. The latter resolution was reduced to writing on Indian and Northern Affairs Canada form for Indian band council resolutions. It is identified as BCR N.H. / 2005-06/050 (BCR/050) and resolves that:
a. the NHCN requests Manitoba Hydro to pay a present value sum of $6,365,000 in lieu of payments over 17 years of the aggregate value sum of $10,920,000;
b. in reliance on the agreement that Manitoba Hydro will pay NHCN the present value amount of $6,365,000.00, NHCN
i. has provided Canada with a full and final release of all future obligations of Canada to NHCN under the Claim 138 First Nations Settlement Agreement, and
ii. hereby provides Manitoba Hydro with a receipt and acknowledgement that the payment of the present value of $6,365,000.00 satisfies Manitoba Hydro’s obligations to Canada under the August 27, 2004 Memorandum of Settlement between Canada and Manitoba Hydro, and the June 17, 2005 direction from Canada to Manitoba Hydro concerning payment of funds payable to Canada under the August27th, 2004 Memorandum of Settlement.
c. the proper officers of NHCN are authorized to take all steps necessary to execute all documentation, if any, required to implement this resolution.
The funds are payment by Manitoba Hydro in settlement of the balance of a claim, Claim 138, by Canada relating to the Manitoba Hydro’s 50 % share of infrastructure costs for potable water supply for the NHCN reserve.
[3] This case raises issues concerning First Nation governance as well as subsidiary questions concerning this specific application. Briefly, the substantive issues are:
a. whether the Federal Court has jurisdiction to hear this application for judicial review of the impunged decisions by the NHCN Council;
b. whether the NHCN Council complied with NHCN procedural laws concerning approval of the impugned BCR/050; and
c. whether this is an appropriate instance for the Court to exercise its jurisdiction to grant relief.
[4] I conclude the Court has jurisdiction to hear this application for judicial review. I agree with the Applicant that the challenged BCR/050 were not approved in compliance with NHCN procedural laws. However, I find this is a case in which this Court should decline to exercise its jurisdiction to grant the relief sought by the Applicant.
[5] My reasons follow.
Background
[6] The NHCN is a First Nation governed by a council comprised of an elected chief and six elected councillors. During the period when the impugned BCR/050 was passed and ratified, the six elected Councillors were Eric Apetagon, Marcel Balfour, Eliza Clarke, Fred Muskego, Mike Muswagon and Langford Saunders. The Chief of the NHCN was Ron Evans who held office from March 2002 until his resignation on August 1, 2005. The chief’s position was vacant from August 2005 to March 2006.
[7] The NHCN is a ‘custom band’ under the Indian Act, RSC 1985, c I-5. The Indian Act defines the council of a band, where the section 74 election provisions do not apply, as that chosen by the custom of the band. The NHCN had been under the Indian Act election provisions but reverted to custom on January 23, 1998 when the Minister of Indian and Northern Affairs Canada (INAC), by Ministerial Order, excluded the NHCN from the electoral provisions of the Indian Act.
[8] In a letter dated January 30, 1998, INAC officials advised the NHCN Council that, as a result of the Ministerial Order, the Indian Band Council Procedure Regulations, CRC, c. 950 no longer applied to NCHN council meetings and recommended that the NHCN Council adopt a replacement for the Indian Act regulations. The NHCN has enacted its own election law and procedural regulations as described in Muskego v Norway House Cree Nation Appeal Committee, 2011 FC 732 at para 4 by Justice de Montignay who wrote:
The Norway House Cree Nation (“NHCN”) is a custom band. In December 1997, the NHCN adopted the NHCN Elections Procedures Act, and on January 23, 1998 the band was granted the right to be removed from section 74 (Elections Procedures) of the Indian Act to exercise self-government through a custom election system. This entitles the band to hold its elections pursuant to its own custom election code. On October 18, 2005, the amended “Norway House Cree Nation Elections Procedures Act” was adopted and ratified by the Chief and Council (hereinafter the Elections Procedures Act, 2005 or “EPA”).
[9] In March 2001, the NHCN Council adopted the Policy and Procedural Guidelines Manual (the Guidelines). The Applicant did not provide a copy of the NHCN Elections Procedure Act but did provide the Guidelines which she makes reference to. I am satisfied the Guidelines replicate the relevant custom election laws and procedural regulations. The custom law and procedural regulations for the NHCN replace the Indian Act section 74 election provisions and the Indian Band Council Procedural Regulations.
[10] The Guidelines provide that NHCN by-laws and resolutions are to be adopted at “duly constituted Council meetings”, whether “Regular Chief and Council meetings” or “Special Council meetings”.
[11] The context and history giving rise to the impugned NHCN Council resolutions was described by Prothonotary R. Lafrenière, the Case Management Judge, in his Order dated January 19, 2011: Maggie Myrna Lorraine Gamblin v Norway House Cree Nation Band Council, 2010 FC 1244. Paragraphs 4-18 are reproduced here:
On December 16, 1977, Canada, the Province of Manitoba, Manitoba Hydro and the Northern Flood Committee Inc., representing five First Nations, including the NHCN, executed the Northern Flood Agreement (NFA). The NFA was designed to compensate the said First Nations for adverse effects of flooding caused by Manitoba Hydro projects.
Under Article 6.1 of the NFA, Canada accepted responsibility to ensure the continuous availability of a potable water supply on each of the First Nations reserves. Under Article 6.2, Manitoba Hydro promised to reimburse Canada 50% of its reasonable potable water-related expenditures attributable to adverse effects of the Project.
On May 10, 1988, Canada entered into an Infrastructure Agreement (IA) with the Northern Flood Committee Inc., the Northern Flood Capital Reconstruction Authority Inc. (NFCRA), and the five First Nations. The IA was intended to satisfy Canada’s obligations to ensure a continuous availability of a potable water supply for the First Nations by enabling them to provide it for themselves.
Under Article 15 of the IA, Canada agreed to attempt to recover the maximum amount possible from Manitoba Hydro pursuant to Article 6.2 of the NFA using arbitration, if necessary, and to transfer any amounts recovered to the NFCRA for potable water projects of the NFA First Nations, subject to the conditions contained in Article 15 of the IA.
Canada filed arbitration Claim 138 against Manitoba Hydro on April 19, 1984, to determine Manitoba Hydro’s liability under NFA Article 6.2 for Canada’s potable water expenses. The First Nations subsequently intervened, at Canada’s expense, in Claim 138.
On November 19, 2003, Canada and Manitoba Hydro signed a letter of intent outlining the key components of a settlement of Claim 138. NHCN gave “interim approval in principle” to the amount of the settlement and terms of its payment as reflected in a Band Council Resolution (BCR) dated May 19, 2004.
Canada and Manitoba Hydro formalized the settlement on August 27, 2004. Manitoba Hydro agreed to pay $40.5 million to Canada, in installments over 17 years from 2004 to 2021; Canada had the express right to instruct Manitoba Hydro to pay one or more of the First Nations directly; and Canada and Manitoba Hydro agreed to seek a consent dismissal of Claim 138 from the NFA Arbitrator.
On October 28, 2004, Canada signed the Claim 138 Settlement Agreement (Settlement Agreement) with NHCN and three other First Nations. Canada agreed that Manitoba Hydro would pay the $40.5 million directly to NHCN and the other signatory First Nations by installments. NHCN’s share of each installment was 28%, totaling $11,340,000.00 of the $40.5 million.
In the Settlement Agreement, NHCN consented to a dismissal of Claim 138 (Article 2.1); released Canada from any further liability under Article 6 of the NFA and section 15 of the IA (Article 3); agreed that NHCN Chief and Band Council had approved the terms and conditions of the Settlement Agreement as evidenced by a BCR prior to executing it (Article 5.1 and 6.1(a)); had received independent legal advice prior to executing it (Article 6.1(b); represented and warranted that it was not under any legal impediment that would prevent it from executing the Settlement Agreement (Article 9.1); and agreed that the Settlement Agreement was binding upon its members (Article 11.1).
On November 26, 2004, the NFA Arbitrator dismissed Claim 138 with the consent of Canada and Manitoba Hydro. NHCN also gave its consent to the dismissal of Claim 138 through its own legal counsel.
Manitoba Hydro made its first installment payment of $1.5 million to Canada on September 1, 2004. NHCN received $420,000.00 from Canada as its 28% share. On June 10, 2005, at the request of NHCN, Canada instructed Manitoba Hydro to pay NHCN’s 28% share of further installments directly to NHCN. Manitoba Hydro accepted this direction.
Subsequently, at NHCN’s request, Manitoba Hydro agreed to pay the balance of NHCN’s share ($10,920,000.00) by way of an accelerated lump sum payment of $6,365,000.00, which was the present value of that share as determined by NHCN’s independent legal and accounting advisors.
On July 21, 2005, NHCN produced the BCR being impugned in the present application. The BCR formally approved and acknowledged receipt of the accelerated lump sum payment of $6,365,000.00 from Manitoba Hydro and authorized NHCN to provide a full and final release to Canada regarding all future obligations under the Claim 138 Settlement Agreement. The BCR and Release were duly signed by a majority of Chief and Band Council.
Manitoba Hydro subsequently paid the amount of $6,365,000.00 to NHCN in satisfaction of Canada’s obligation to pay the balance of NHCN’s share of the Manitoba Hydro monies.
At a NHCN Band Council meeting held on February 7, 2006, Councillor Saunders moved to ratify the BCR dated July 21, 2005. Councillors Clarke, Muswagon and Saunders voted in favour of the motion, while Councillor Balfour was the sole vote against it.
[12] On March 9, 2006, the Applicant filed a Notice of Application challenging the validity of BCR/050. As noted above, BCR/050 was dated July 21, 2005. It was not ratified by the NHCN Council until the NHCN Council meeting on February 7, 2006.
[13] The Attorney General of Canada applied to be added as a respondent. The Applicant opposed Canada’s application contending the only parties that would be affected by the application for judicial review were the NHCN and its members. However, Prothonotary Lafrenière concluded the underlying issue was an attack on the validity of the Claim 138 Settlement. He stated at paragraphs 31 and 32 of his Order:
It is understandable that Canada has expressed an interest in these proceedings. If the order sought by the Applicant is made, the Applicant or other person may use that order to attack the validity of the consent dismissal of Claim 138 and release of Canada, the Claim 138 Settlement Agreement with NHCN itself, or NHCN’s agreement with Manitoba Hydro to accept a discounted lump sum rather that installments over time.
The Applicant suggests that the application for judicial review is simply about whether a band council resolution, and its purported ratification, is valid or not. It remains, however, that at is root, the main purpose of the application appears to be to impugn the Claim 138 Settlement Agreement, by attacking the underlying authority of the Band Council to effectively execute the Claim 138 Settlement Agreement on behalf of the NHCN, and its authority to negotiate an accelerated payment and to provide the Release. The potential consequences are not, in my view, a “local matter” or a simple issue of good governance.
[14] The Prothonotary decided Canada has an interest in the application should be joined as a respondent to ensure all matters in dispute may be effectively and completely determined given that the NHCN Council has maintained a passive role in the application. In result, the Prothonotary ordered Canada added as a respondent.
[15] The Respondent NHCN council did not respond or otherwise participate other than provide documents requested by the Applicant. Accordingly, I will refer to the Attorney General as either the Respondent or as Canada.
Decision Under Review
[16] The Applicant seeks a writ of certiorari quashing the February 7, 2006 NHCN Council decision ratifying the July 5, 2005 BCR/050 and a declaration that the latter BCR/050 is void ab initio and without force and effect.
[17] The impugned July 5, 2005 BCR/050 purports to be a council resolution passed at a duly convened meeting of the same date by the Chief and four Councillors. BCR 050 resolves that:
WHEREAS, Canada and Manitoba Hydro, on August 27, 2004, entered into a Memorandum of Settlement that resulted in the full and final resolution of Canada’s claim against Manitoba Hydro in relation to Northern Flood Agreement Claim 138, and
WHEREAS, paragraph 2 of the Memorandum of Settlement sets out specific funds to be paid by Manitoba Hydro to Canada on specific dates, and
WHEREAS, Canada, subsequently, made a separate agreement with Norway House Cree Nation that resolved the manner in which the funds to be paid by Manitoba Hydro to Canada would be distributed to each of those NFA First Nations for sewer and water projects, and
WHEREAS, Canada, on June 17, 2005, directed Manitoba Hydro, pursuant to paragraph 3 of the August 27, 2004 Memorandum of Settlement between Canada and Manitoba Hydro, to pay 28% of the specified funds to Norway House on the specified dates, and
WHEREAS, [t]he aggregate amount of the 28% that Canada directed Manitoba Hydro to pay to the Norway House on the specified dates is $10,920,000.00, and
WHEREAS, Norway House, based on independent advice, calculated that the present value, of the aggregate amount of $10,920,000.00 that Canada directed Manitoba Hydro to pay to Norway House is, $6,365,000.00, and
WHEREAS, Manitoba Hydro has agreed to make such a present value payment of $6,365,000.00 to Norway House provided Canada is prepared to accept and acknowledge that upon such present value payment being made to Norway House, twenty eight percent (28%) of all obligations owed by Manitoba Hydro to Canada under the Memorandum of Settlement of August 27, 2004 and Canada’s direction of June 17, 2005 are fully and finally met and resolved, and
WHEREAS, Canada is prepared to acknowledge that the present value payment of $6,365,000.00 would, if paid now, fulfill twenty eight percent (28%) of all obligations owed by Manitoba Hydro to Canada under the Memorandum of Settlement of August 27, 2004, provided Norway House releases Canada for all future obligations of Canada to Norway House under the Claim 138 First Nations Settlement Agreement.
NOW THEREFORE BE IT RESOLVED THAT:
1. Norway House requests Manitoba Hydro to pay to Norway House the present value amount of $6,365,000.00 in lieu of the aggregate payment over time of $10,920,000.00.
2. In reliance on the agreement between Manitoba Hydro and Norway House that Manitoba Hydro will pay the present value amount of $6,365,000.00 to Norway House, Norway House:
a) has provided Canada with a full and final release of all future obligations of Canada to Norway House under Claim 138 First Nations Settlement Agreement, and
b) hereby provides Manitoba Hydro with a receipt and acknowledgement that the payment of the present value of $6,365,000.00 satisfies Manitoba Hydro’s obligations to Canada under the August 27, 2004 Memorandum of Settlement between Canada and Manitoba Hydro, and the June 17, 2005 direction from Canada to Manitoba Hydro concerning payment of the funds payable to Canada under the August 27th, 2004 Memorandum of Settlement.
3. The proper officers of Norway House are authorized to take all steps necessary to execute all documentation, if any, required to implement this resolution.
[18] BCR/050 records the date of the duly convened meeting is 21-07-05 and indicates the quorum is four members of the NHCN Council. It is signed by the Chief and four Councillors.
[19] The minutes of the Regular Council meeting on February 7, 2006 provide, after discussion, that:
Motion # 10:
Councillor Langford Saunders moves that Deputy Chief and Council ratify BCR N.H./2005-06/050. Counsellor Mike Muswagon seconds the motion.
3 in favour, 1 against (Marcel); Motion is carried.
Legislation
[20] The Federal Courts Act, RSC 1985, c F-7 provides:
2. (1) In this Act,
“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution
Act, 1867 ;
…
18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
…
18.1 (2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
[Emphasis added]
2. (1) Les définitions qui suivent s’appliquent à la présente loi.
« office fédéral » Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une
compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d’une prérogative royale, à l’exclusion de la Cour canadienne de l’impôt et ses juges, d’un organisme constitué sous le régime d’une loi provinciale ou d’une personne ou d’un groupe de personnes nommées aux termes d’une loi provinciale ou de l’article 96 de la Loi constitutionnelle de 1867.
…
18. (1) Sous réserve de l’article 28, la Cour fédérale a compétence exclusive, en première instance, pour :
a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral;
b) connaître de toute demande de réparation de la nature visée par l’alinéa a), et notamment de toute procédure engagée contre le procureur général du Canada afin d’obtenir réparation de la part d’un office fédéral.
…
18.1 (2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l’office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu’un juge de la Cour fédérale peut, avant ou après l’expiration de ces trente jours, fixer ou accorder.
(3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut :
a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral.
[21] The Indian Act provides:
2. (1)
“council of the band” means
(b) in the case of a band to which section 74 does not apply, the council chosen according to the custom of the band, or, where there is no council, the chief of the band chosen according to the custom of the band;
…
(3) Unless the context otherwise requires or this Act otherwise provides,
(a) a power conferred on a band shall be deemed not to be exercised unless it is exercised
pursuant to the consent of a majority of the electors of the band; and
(b) a power conferred on the council of a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the councillors of the band present at a meeting of the council duly convened.
[Emphasis added]
2. (1)
« conseil de la bande »
b) dans le cas d’une bande à laquelle l’article 74 n’est pas applicable, le conseil choisi selon la coutume de la bande ou, en l’absence d’un conseil, le chef de la bande choisi selon la coutume de celle-ci.
…
(3) Sauf indication contraire du contexte ou disposition expresse de la présente loi :
a) un pouvoir conféré à une bande est censé ne pas être exercé, à moins de l’être en vertu du consentement donné par une majorité des électeurs de la bande;
b) un pouvoir conféré au conseil d’une bande est censé ne pas être exercé à moins de l’être en vertu du consentement donné par une majorité des conseillers de la bande présents à une réunion du conseil dûment convoquée.
[22] The NHCN’s Guidelines state:
At present, the local Norway House Cree Nation government has its legal basis in the Indian Act.
Indian Act 74 (1)
“Whenever he deems it advisable for the good government of a band, the Minister may declare by order after a day to be named therein the Council of the Band, consisting of a Chief and Councillors, shall be selected by elections to be held in accordance with this Act.”
This section of the Act means that Bands, can legally, elect a Chief and Council responsible for the governing of the Band.
In practice, it means that either in accordance with the Act or with accepted Band Custom, the Band will regularly elect its governing council.
…
3.1 Chief and Council are the elected representatives of the Norway House Cree Nation responsible for the following:
3.1.1 Forming the local government, for the well being and benefit of the members of the Norway House Cree Nation.
3.1.2 Managing the Norway House Cree Nation’s affairs by making policies and regulation through by-laws and resolutions.
3.1.3 Ensuring that established policies, guidelines and regulations are put into effect and are properly administered by the Norway House Cree Nation staff.
…
3.3 The Chief and Council, once elected, draw their authority from the Indian Act.
…
3.5 The Chief and each Councillor execute their responsibilities through three forums:
3.5.1 Through Chief and Council, at duly constituted Council meetings, where by-laws and resolutions are adopted.
…
11.1 Frequency of Meetings Regular Chief and Council meetings shall commence promptly at 9:00 a.m. on the first and third Tuesday of every month. All Managers and Directors must attend these regular Chief and Council meetings.
…
11.4 Special Council Meetings Special Council meetings may be called by the Chief upon provision to each member of Council of twenty-four (24) hours’ notice and a specific agenda relating to the special meeting. Special meetings may be called by the Chief on his or her own initiative, or by the Chief at the request of a majority of Council.
[Emphasis added]
Issues
[23] Both the Applicant and Respondent raise a number of issues in this application. In my view, the determinative issues, in more expanded form, are:
1. Does the Federal Court have jurisdiction to hear this application for judicial review of the decisions by the NHCN Council a judicial review application considering:
a. the NHCN Council is chosen by custom,
b. the decision is a financial nature, and
c. the application for a writ of certiorari with respect to BCR/050 is made out of time;
2. Did the NHCN Council validly approve the impugned BCR/050 having regard for NHCN Guidelines for procedural requirements concerning approval of the NHCN Council resolutions; and
3. Is this an appropriate instance for the Court to exercise its discretion to grant relief?
Standard of Review
[24] The Applicant submits that this application concerns matters of the jurisdiction and vires of the actions of the NHCN Council under the Indian Act and the NHCN Guidelines.
[25] The Supreme Court of Canada has held in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir] that there are only two standards of review: correctness for questions of law and reasonableness involving questions of mixed fact and law and fact: Dunsmuir at paras 50 and 53. The Supreme Court has also held that where the standard of review has previously been determined, a standard of review analysis need not be repeated: Dunsmuir at para 62.
[26] The Applicant submits the applicable standard of review of the NHCN Council decision is correctness and cites Justice Gauthier’s decision in Laboucan v Little Red River Cree Nation No. 447, 2010 FC 722, [2010] FCJ no 871 [Laboucan]. At paragraph 21, Justice Gauthier stated:
The applicable standard of review to the issue of jurisdiction of Council is that of correctness: Martselos v. Salt River Nation #195, 2008 FCA 221 (CanLII), 2008 FCA 221, 168 A.C.W.S. (3d) 224 at paras. 28-32 (Martselos); Jackson v. Piikani Nation, 2008 FC 130 (CanLII), 2008 FC 130, 164 A.C.W.S. (3d) 549 at para. 17. In fact, such question relates to the interpretation of the Code by the Chief and Council of LRRCN. This is a question of law for which no deference is owed.
[Emphasis added]
[27] This case requires the consideration of the NHCN Council’s jurisdiction or authority and interpretation of the NHCN rules governing the decision-making process of its elected council. I agree with the Applicant the issue involves interpretation of the NHCN governance law concerning council decision making. Such questions, as Justice Gauthier pointed out, involve a question of law and I consider the appropriate standard of review correctness.
Analysis
[28] In this application, the Respondent NHCN Council takes no position, has submitted no evidence other than that provided to the Applicant, and makes no submissions. The Respondent NHCN Council did not even attend the hearing of the judicial review. The application is contested solely by the Respondent Canada.
Does the Federal Court have jurisdiction to hear a judicial review application concerning a decision by the custom elected NHCN Council?
[29] The first issue to be considered is whether this Court has jurisdiction to entertain the current application and grant the relief sought by the Applicant. Addressing this issue involves determining if the NHCN Council is a “federal board, commission or other tribunal” for the purposes of section 18.1 of the Federal Courts Act. The question further involves a determination whether the NHCN Council was exercising or purporting to exercise jurisdiction or powers encompassed by s. 18.1 of the Federal Courts Act when it made the impugned decisions.
[30] Section 18.1 provides that an application for judicial review may be made in respect of decisions or orders of federal boards, commissions or other tribunals. The definition of federal board, commission or other tribunal found in s. 2 of the Federal Courts Act is reproduced here:
“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown...
[Emphasis added]
[31] Canada submits even where a federal entity is sometimes recognized as a “federal board, commission, or other tribunal”, it is necessary to have regard to the powers exercised. DRL Vacations Ltd. v Halifax Port Authority, 2005 FC 860 (DRL Vacations Ltd.) Further, Canada contends the power the entity is seeking to exercise must be determined and the source of the power examined. Anisman v Canada 2010 FCA 52 (Anisman).
[32] Canada submits that the NHCN Council exercised its inherent power to contract or settle claims when it purported to approve expedited payment under the Settlement Agreement. Additionally, the NHCN Council resolution on when and how to be paid is derived from private law rather than the public law considerations that arise in judicial review applications. Canada points to a line of cases in support of its position: Devil’s Gap Cottagers (1982) Ltd. v Rat Portage Band, 2008 FC 812, Peace Hills Trust Co. v Moccasin, 2005 FC 1364 (Peace Hills Trust), and Ballantyne v Bighetty, 2011 FC 994 (Ballantyne).
[33] The Applicant submits the NHCN Council meets the definition of a “federal board, commission or other tribunal” for the purposes of section 18.1 of the Federal Courts Act. The Applicant relies on a decision by Justice Blais, as he then was, in which Justice Blais concluded that the NHCN Council constitutes a federal board in Balfour v Norway House Cree Nation, 2006 FC 213 (Balfour). In Balfour Justice Blais stated:
[20] The jurisprudence has established that an Indian Band Council constitutes a “federal board, commission or other tribunal” pursuant to section 18 of the Act (Rider v. Ear (1979), 103 D.L.R. (3d) 168 and Gabriel v. Canatonquin, [1978] 1 F.C. 124). As such, the Federal Court of Appeal confirmed in Salt River First Nation 195 (Council) v. Salt River First Nation 195 [2003] F.C.J. No. 1538, at paragraph 18, that this Court has jurisdiction to issue a writ of quo warranto or to grant declaratory relief against an Indian Band Council and its constituent members:
Pursuant to paragraph 18(1)(a) of the Federal Court Act, the Federal Court has jurisdiction to issue a writ of quo warranto or to grant declaratory relief. I see no reason why declaratory relief which, in substance, is in the nature of quo warranto, cannot be granted. That procedure appears to have been approved in Lake Babine Indian Band et al. v. Williams et al. (1996), 194 N.R. 44 (F.C.A.). Robertson J.A. states at paragraphs 3 and 4:
[3] It is to be noted at the outset that the appellants do not dispute the jurisdiction of the court to address the issues herein. The respondents seek declaratory and injunctive relief, which in these circumstances essentially amounts to a request for a writ of quo warranto. Quo warranto allows a challenge of an individual's right to hold a particular office...
[4] There is no doubt therefore that there is jurisdiction per se, an Indian Band Council being a "federal board, commission or other tribunal" within the meaning of ss. 2 and 18 of the Act....Accordingly, this Court has jurisdiction to address the issue but it can do so only in the context of a s. 18 application not the context of an action initiated by way of statement of claim.
…
[25] The respondents further mention that the applicant had approached a representative of the Minister regarding similar concerns found in the present matter. The applicant had requested that the redress mechanisms found in the Canadian First Nations Funding Agreement (CFNFA) between Indian and Northern Affairs Canada (INAC) and the NHCN be used to remedy the disputes. Those disputes related to the failure of the NHCN Council to adhere to its own operating procedures and the issues surrounding the applicant’s salary and expense budget (see email sent from Mr. Martin Egan (Minister’s representative) to Marcel Luke Hertlein Balfour, dated November 25, 2003, page 316 of the respondent’s record – volume III).
[26] The Minister’s representative refused the applicant’s request for assistance. As such, the respondents submit that the applicant should have instituted an application for judicial review of the Minister’s representative’s decision as opposed to commencing an application requesting a declaration in the nature of a writ of quo warranto.
[27] I disagree with the aforementioned position. Again, the NHCN Band Council constitutes a federal board. If the applicant wished to challenge the decisions of the Band Council for failing to adhere to its own operating procedures, the correct course of action is not to request the assistance of the Minister; it is an application for judicial review in this Court.
[28] I conclude that this Court does have jurisdiction in the present matter. Further, I find that the application for judicial review, brought in this Court, of the NHCN Band Council’s conduct and decisions, is the appropriate course of action for the applicant. However, it remains to be seen whether or not a writ of quo warranto is warranted. I will now turn my attention to this very matter.
[Emphasis added]
[34] The NHCN Council is a custom First Nation council. The capacity of NHCN to make laws concerning matters of leadership and governance are not derived from the Indian Act or other statutory power. Rather it is a result of the exercise of the First Nation’s aboriginal right to make its own laws concerning governance. This was been indirectly acknowledged in Wood Mountain First Nation v Canada (Attorney General) (2006), 55 Admin. L.R. (4th) 293 (F.C.) (Wood Mountain First Nation), where Justice Strayer wrote at paragraph 8:
8. This Court has held that the reference to band custom elections in the definition of "council of the band" in section 2 of the Act does not create the authority for custom elections but simply defines them for its own purposes: see Bone v. Sioux Valley Indian Band No. 290 Council, 107 F.T.R. 133, at paras. 31-32. Thus such elections are not held under the authority of an Act of Parliament. Counsel for the Applicants did not draw to my attention any provision in the Act which gives to [Indian and Northern Affairs Canada] the authority to decide who has won such an election. It was held by Justice Paul Rouleau in Lac des Mille Lacs First Nation et al. v. Canada (Minister of Indian Affairs and Northern Development), [1998] F.C.J. No. 94 (QL), at para. 4 that the Minister has no authority over such elections. Nor does INAC have any role in determining what is band custom for the purpose of governance of an election: see Chingee v. Chingee, (1999), 153 F.T.R. 257, at para. 13.
[Emphasis added]
The implication is that the jurisdiction of the NHCN Council to manage governance of NHCN affairs is not necessarily derived from a statutory source such as the Indian Act.
[35] Gabriel v Canatonquin, [1978] 1 FC 124 [Gabriel] is treated as the seminal case for the proposition that a First Nation council is a “federal board, commission or other tribunal”. In Gabriel, Justice Thurlow reviewed the powers the Indian Act bestowed on a First Nation council and decided the scheme disclosed by the statute resembled a restricted form of municipal government by the council of and on the reserve. He concluded that such a council was a "federal board, commission or other tribunal" within the meaning of the Federal Court Act. This decision was confirmed by the Federal Court of Appeal without further elaboration.
[36] In deciding as he did, Justice Thurlow noted two qualifications, one indirectly referencing custom band councils and one explicitly relating to the nature of powers exercised. Justice Thurlow quoted Justice Laskin, writing:
11 However, in The Attorney General of Canada v. Lavell, Laskin J. (as he then was), with whom three other judges of the Court concurred, expressed doubt that a band council fell within the definition. He said at page 1379:
I share the doubt of Osler J. whether a Band Council, even an elected one under s. 74 of the Indian Act (the Act also envisages that a Band Council may exist by custom of the Band), is the type of tribunal contemplated by the definition in s. 2(g) of the Federal Court Act which embraces "any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of the Parliament of Canada". A Band Council has some resemblance to the board of directors of a corporation, and if the words of s. 2(g) are taken literally, they are broad enough to embrace boards of directors in respect of powers given to them under such federal statutes as the Bank Act, R.S.C. 1970, c. B-1, as amended, the Canada Corporations Act, R.S.C. 1970, c. C-32, as amended, and the Canadian and British Insurance Companies Act, R.S.C. 1970, c. I-15, as amended. It is to me an open question whether private authorities (if I may so categorize boards of directors of banks and other companies) are contemplated by the Federal Court Act under s. 18 thereof. However, I do not find it necessary to come to a definite conclusion here on whether jurisdiction should have been ceded to the Federal Court to entertain the declaratory action brought by Mrs. Bédard against the members of the Band Council. There is another ground upon which, in this case, I would not interfere with the exercise of jurisdiction by Osler J.
[Emphasis added]
[37] In Devil’s Gap Cottagers (1982) Ltd v Rat Portage Band, 2008 FC 812, [Devil’s Gap], Justice Dawson, as she then was, touched on both of Justice Laskin’s doubts when she held that a decision by the First Nation council to refuse to consent to an extension of a lease of reserve land was not a decision of a “federal board, commission or other tribunal”. Justice Dawson first considered the source of the First Nation’s authority and concluded it “did not flow from any grant of statutory authority or from any power that is public in nature.” Rather, the power to refuse is the result of the First Nation's inherent interest in its lands and the reservation of its right to consent to a lease of reserve land in Treaty No. 3.” She wrote, at paragraph 45:
45 Given that nature of the First Nation's interest in the reserve lands, and the reservation of rights in Treaty No. 3, I am unable to conc