Wednesday, 16 January 2013

Governance of First Nations: Federal Court Exercises Discretion not to Grant Relief

Canada's relationship with its First Nations has been in the news a great deal recently, due to the Idle No More protests. Governance is a central issue in current political discourse and it was also at the centre of Gamblin v. Norway House Cree Nation Band Council, 2012 FC 1536.
Here, the respondent had approved an agreement with Manitoba Hydro in respect of its share of the costs of providing potable water to the Norway House Cree Nation.

The first issue was whether the approval was subject to review at all. Mandamin J. was not impressed by the Attorney General's argument that the approval emanated from what was essentially a contracting decision, a matter for private law and not for scrutiny on judicial review:
[50]           In my view, the NHCN Council decisions are not “private law” decisions. They are made by a First Nation entity that is federal in nature.  The NHCN derives its jurisdiction from both the federal common law of aboriginal rights and its capacity to exercise federal statutory powers conferred on a council of an Indian band by the federal Indian Act. The nature of jurisdiction the NHCN Council is exercising is in relation to First Nation governance and is a matter of public interest given the impugned decisions are part of a series of decisions relating to the provision of potable water for the members of the NHCN....
[62]           In this case, the NHCN Council’s authority to make decisions is derived from their election as the governing body of the NHCN. The evidence demonstrates that the NHCN Council were exercising their authority as the elected leaders of the NHCN. Their positions as elected Chief and Councillors authorized them to make decisions on behalf and for the benefit of the members of the NHCN. Their decisions in this matter relate to governance of the NHCN.
However, there were procedural improprieties in the approval process. A meeting of a sub-group of the council was initially held, of which two members of the council were unaware because no notice had been given to them. Although a subsequent council meeting approved the settlement, Mandamin J. held that this violated the administrative law rule against rubberstamping because there could have been no consideration of the settlement on its merits:
[82]           Since BCR/050 was presented to Canada and Manitoba Hydro as representing the official decision of the NHCN Council, which was then acted upon by them, the ratification process on February 7, 2006 could not be considered anything other than having been predetermined. The vote was taken long after parties have acted on BCR/050 and provides the NHCN Councillors no realistic opportunity to decide other than for ratification.
Nevertheless, Mandamin J. exercised his discretion not to grant the application for judicial review:
[97]           First, Prothonotary Lafrenière noted that the Applicant had suggested the application for judicial review is simply about whether a Council resolution and its purported ratification is valid or not. The Applicant had contended it was merely a “local matter” or a simple issue of good governance.  In this application the Applicant has achieved obtaining her answer in relation to the question of “good governance” for the NHCN.

[98]           Second, a declaration that the NHCN council decision BCR/050 is invalid has serious implications for the NHCN itself. Aside from the potential for adverse financial consequences, namely the return the monies paid, there is the question of the impact on the NHCN ability to do business in the future. NHCN Council decisions in the course of future dealings with government and corporations would be cast under a shadow of doubt as to their validity even if apparently valid in the face of the BCR. Given the import of such questions, it is essential to consider the position of the Respondent NHCN Council. Since the NHCN Council chose not to participate, that voice was not heard. I consider it unwise to decide such a question when the Respondent NHCN Council has not been heard.

[99]           Finally, I note that BCR/050 was signed by the Chief and four Councillors out of the seven members of Council. That is five out of seven Councillors approved of BCR/050 while two Councillors had not. What was not observed was the procedural requirements for approving a NHCN Council resolution in accordance with the NHCN procedural regulations. When the matter was presented for ratification, a quorum of council was present and BCR/050 was approved by a vote of three to one. In all of this, it is apparent to me that a majority of the elected NHCN leadership at the relevant times were in favour of BCR/050. They did not do so in an open manner required by the NHCN procedural requirements.

[100]      I am satisfied the above drawbacks to finding BCR/050 to be invalid far outweigh the procedural violations by the majority of the NHCN Council.
Given the passage of time, the evident support for the settlement and the value for the future of judicial condemnation of procedural irregularities, intervening to quash the decision now would be inappropriate.

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