Mirror, mirror on the wall, who is best chief of all? | Rob Louie

By Rob Louie

Law360 Canada (October 13, 2023, 11:41 AM EDT) --
Rob Louie
Rob Louie
As an Indigenous legal commentator and president of a national Indigenous organization that takes issue with self-serving Indigenous chiefs, I remain cautiously optimistic that the day will come when those same chiefs have a spiritual awakening that they are first among equals.

There was significant attention to the calls for action under the rubric of Truth and Reconciliation in relation to Canada; however, there remains little to no action for the truth to come out — and reconciliation to begin — within First Nation communities.

Indigenous chiefs wish to replace Canadian legislation with their own traditional laws that emanate from cultural mores. At times, Canadian law may be incompatible with Indigenous traditional law while at other times, there is remarkable confluence in values that underpin both laws. As the theory goes, traditional laws safeguard the First Nation. But, if there are no traditional laws that replace Canada’s laws, such as the Canadian Charter of Rights and Freedoms, what then?

Speaking of the Charter, as the president of the Band Members Alliance and Advocacy Association of Canada (BMAAAC), we were at the Supreme Court of Canada this past February. It was BMAAAC’s first time being here as an intervener. This case that will decide if the Charter applies to Indigenous’ self-governments. The case is known as Dickson v. Vuntut Gwitchen First Nation. BMAAAC was represented at Canada’s top court by Vancouver lawyer, Ian Knapp.

As several academics and lawyers point out, there is tension between s. 25 of the Charter and s. 35 of the Constitution Act, 1982. Several First Nation chiefs, as well as their constitutional cousins (the Métis) were of the opinion that the Charter had no application to their regime, while BMAAAC opined that the Charter should apply because it affords much-needed protection for band members and others that would fall under the jurisdiction of an Indigenous self-government.

The Supreme Court of Canada reserved its decision.

However, last month in Alberta, Justice Guy Régimbald, in Collins v. Saddle Lake Cree Nation #462, 2023 FC 1239, (SLCN) weighed in on the Charter vis-à-vis Indigenous’ self-governments.  Gail Collins, being a registered band member of Saddle Lake First Nation, was seeking to undo a decades-old Aboriginal custom of a two-tier membership system. In the June 2022 SLCN election, and those held previously, women who were re-enfranchised under Bill-C-31 were still disallowed to vote under the still applicable Election Regulations. Collins and numerous other band members like her, were affected by this, so she retained Edmonton lawyer, Orlagh O’Kelly.  

This band member fought the law and she won.

In deciding this case, Justice Régimbald commented:

In my view, and as explained above, the source of the Indigenous government’s authority is not relevant. Whether that power is delegated under the Indian Act, merely “recognized” by the Indian Act, or originating from the Indigenous nation’s inherent right to self-government, any rule resulting from the exercise of that power is compulsory on the nation’s members and the decision is “governmental” in nature. With the advent of the Charter, it was first thought that the Charter applied to Indigenous governments because they fell within the powers of Parliament. While that theory may be erroneous, a purposive interpretation of the Charter as a whole signals that the intent was always to grant all Canadians equal rights that may be asserted against their own government, at all levels. That also ought to apply to any Indigenous individual in relation to their nation’s governance.

I should point out that shortly before the SLCN judicial review hearing, Justice Paul Favel of the Federal Court reached a decision in McCarthy v. Whitefish Lake First Nation #128, 2023 FC 220 (McCarthy) which was identical to the Gail Collins case. In fact, there is consanguinity between Saddle Lake First Nation and White Fish First Nation, respectively. Both parties in SLCN conceded that Justice Favel’s decision applied in this case. Upon applying the legal principle of judicial comity, Jutice Régimbald applied Justice Favel’s decision because he was not convinced that the decision was entirely different or totally wrong. I should also add that at the initial stage of McCarthy’s case, BMAAAC helped Karen McCarthy, who is a band member of Whitefish First Nation, by getting her access to justice by teaming up with an Edmonton lawyer.

As for BMAAAC itself, we were in the B.C. Court of Appeal last week asking to be interveners in Webb v. Genaille. This is a high profile appeal that will have far-reaching implications in First Nation law.

Briefly, in Webb v. Genaille, 2021 BCSC 2284, the trial judge found that this chief and two-person council breached their fiduciary duty to their band members and the Financial Administration Law by employing themselves as band staff and setting their own remuneration; paying themselves to attend meetings and by setting rates for such attendances; paying themselves lump sum amounts for travel and telephone expenses; deciding their own entitlement to band funds and program funding; namely, by granting themselves funding under the Family Assistance program in the absence of a clear guideline or approval by band members; and failing to provide equal access to band members, as required by Article 7 of the Financial Administration Law.

The trial judge found additional financial hanky panky of a band councillor that determined her own entitlement to program funding, as well as receiving honoraria and travel expenses from funds received by the band pursuant to a Mutual Benefits Agreement. Moreover, the chief and council hired an immediate family member without giving other band members an opportunity to apply for the position. The trial judge also ordered punitive damages against the chief and council defendants.

The chief filed an appeal.

The B.C. Court of Appeal recognized that BMAAAC is a not-for-profit society with a mandate to assist Indigenous people in seeking good governance and financial accountability from band governments. Since the chief and council intended to argue on appeal that band councils should be equated with Crown and municipal governments for the purpose of determining whether fiduciary duties are owed, this is of general importance to governance in Indigenous communities in Canada. Therefore, the Court of Appeal confirmed, “there is no question that the issue legitimately engaged BMAAAC’s interest.” While the Court of Appeal accepted that BMAAAC does have a different and broader experience, it found that the argument against the chief and council can best be left to David Wu, who is the lawyer for the band member. So, BMAAAC’s application to be an intervener was dismissed without costs.

This high profile case will be heard Nov. 20, 2023, in Vancouver.

BMAAAC has yet to do the dialectal dance with the Assembly of First Nations (AFN). But that day is coming. In the meantime, and in the spirit and recognition of the Truth and Reconciliation Day that just took place, I will leave you with an open-ended question: how can any chief in Canada speak the truth about First Nation governance unless they can speak out against band council corruption?

The mirror is impartial in what is reflected back.

Rob Louie is a constitutional scholar specializing in constitutional law and president of Band Members Alliance and Advocacy Association of Canada.

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