First Nation Bands and Application of the Charter of Rights and Freedoms

 

Written By: Sonya C Pighin

Date: January 3, 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.

  

1.    INTRODUCTION

Section 32 of the Constitution Act, 1982[1](the “Constitution”) sets out those entities to which the Charter of Rights and Freedoms[2](the “Charter”) shall apply. It states:

32. (1) This Charter applies 

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province[3].

The Constitution left it to the courts to interpret what is meant by “government” and “matters within the authority of [Parliament or the legislature of a province]”.Since the entrenchment of the Charter into the Constitution, the Honourable Justices of the Supreme Court of Canada have debated whether the Charter applies to statutory entities, universities, colleges, hospitals, or to private bodies delivering government programs and services. In doing so, they have developed a legal test to determine when an entity is a government body, and when the actions of a private entity constitute government action, making their actions subject to the Charter. In this article, we will review the development of those legal tests and look at how they have been applied to the laws, by-laws or decisions of a first nation band (“band”). In reviewing the the case law concerning Charter application to a band, it becomes questionable whether the courts have missed analyzing key facts regarding the manner in which a band operates when assessing whether a band should be considered a government actor. In some circumstances, it is quite clear that a band is undertaking an action on behalf of government but there is much more to the story that needs to be uncovered before all the actions of a band should be considered subject to the Charter. 

 

2.   LEADING LEGAL TESTS REGARDING SECTION 32OF THE CHARTER 

Between 1986 and 1997, the Supreme Court of Canada paid a great amount of attention to section 32 of the Charter. In RWDSU v. Dolphin Delivery[4], Justice McIntyre confirmed that section 32 specifies the Charter will apply to the legislative, executive and administrative branches of the government, whether or not their action is invoked in public or private litigation[5]. However, there must be a direct and precisely-defined connection between the element of a government action and a claim advanced before the Charter will apply[6]. Justice McIntyre states:

39. It would also seem that the Charter would apply to many forms of delegated legislation, regulations, orders in council, possibly municipal by-laws, and by-laws and regulations of other creatures of Parliament and the Legislatures. It is not suggested that this list is exhaustive. Where such [page603] exercise of, or reliance upon, governmental action is present and where one private party invokes or relies upon it to produce an infringement of the Charter rights of another, the Charter will be applicable[7].

In Slaight Communications Inc. v. Davidson,Justice Lamer writing in dissent (whose reasons were agreed to in Chief Justice Dickson’s majority judgement) said the Charter applies to an order made by an adjudicator, where that adjudicator is appointed pursuant to a legislative provision and derives all his powers from the statute[8]. In McKinney v. University of Guelph, Justice La Forest added to Justice Lamer’s comments by saying “the mere fact that an entity is a creature of statute and has been given the legal attributes of a natural person is in no way sufficient to make its actions subject to the Charter[9]”. Justice Lamer recognizes entities are established by statute for many reasons, not all of which involve the performance of tasks that are generally assigned to government. 

36. …the Charter is not limited to entities which discharge functions that are inherently governmental in nature…more would have to be shown than that they engaged in activities or the provision of services that are subject to the legislative jurisdiction of either the federal or provincial governments.[10]”  

In determining whether a University was a government actor for the purpose of the Charter to apply, Justice La Forest wrote the leading opinion focussing on the level of control the government had over the University’s decision-making. The receipt of government funding combined with some regulatory limitations were not enough to bring the University within the control of government making it a government actor[11]. The fact that the University had its own autonomous governing body, majority of whom were not appointed by government, and that there was no question of the University’s power to negotiate contracts and collective agreements despite there being no statutory compulsion for them to do so, contributed to Justice La Forest’s conclusion that the University was not an organ of government for the purposes of the Charter.[12]Justice La Forest also clarified that a body may be a statutory body performing a public service and be subject to judicial review of certain decisions, but this does not in itself make them part of government for the purposes of Charter application[13]. During the same time as McKinney v. University of Guelph was decided, the Supreme Court of Canada also considered Douglas/Kwantlen Faculty Assn. v. Douglas College[14]. In that case, the Charter was found to apply to a community college that (1) was established by statute, (2) had a board appointed and removed at the pleasure of government, and (3) was bound to comply at all times with the laws and policies set for it by government[15].  

In Lavigne v. Ontario Public Service Employees Union[16], Justice La Forest provided a two-step test to be taken in deciding whether the Charter shall apply. First, you must conclude the entity at issue is a government actor, and then you must determine whether their action can be considered government conduct[17]. In Eldridge v. British Columbia (Attorney General)[18], Justice La Forest speaking on behalf of a unanimous Court added that where an entity itself is not found to be a part of government, their actions may nonetheless become subject to the Charter if they are undertaking delegated governmental powers or implementing government policy:

36. Legislatures have created many other statutory entities, however, that are not as clearly autonomous from government. There are myriad public or quasi-public institutions that may be independent from government in some respects, but in other respects may exercise delegated governmental powers or be otherwise responsible for the implementation of government policy. When it is alleged that an action of one of these bodies, and not the legislation that regulates them, violates the Charter, it must be established that the entity, in performing that particular action, is part of "government" within the meaning of s. 32 of the Charter[19].

44.… the Charter may be found to apply to an entity on one of two bases. First, it may be determined that the entity is itself "government" for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as "government" within the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as "private". Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly "governmental" in nature -- for example, the implementation of a specific statutory scheme or a government program – the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities[20].

In the end, what must be assessed is whether an entity is found to be “government”, either because of its nature or because the government maintains substantial control over its activities, then all of its activities will be subject to the Charter. If an entity is not found to be “government” but performs “governmental activities” then only those activities that are governmental in nature will be subject to the Charter[21].

3.   COURT’S APPLICATION OF THE CHARTER TO LAWS, BY-LAWS AND ACTIONS OF A BAND

The courts have applied the Charter to band custom elections laws, custom membership laws, and decisions made under those laws, as well as with regard to band by-laws, a band council’s application for injunctions against band members protesting at their band office, and a private contract for services entered into by a band. Although Charter challenges have been raised against bands in more circumstances than those just listed, there are many cases where judges have decided the outcome of a case based on other grounds and decided there is no need to deal with the Charter challenge to dispose of the case. The next part of this article will provide an overview of select court decisions where judges have considered Charter challenges, and we will see that in many cases the court has given no consideration to the Supreme Court of Canada’s legal tests set out above, despite most of these cases being heard after the development of those legal tests. After we review the decisions made by the courts, we will come back to a discussion around where the courts have “missed the boat” in their reasons for decision.

Custom Election Laws

Before getting into a discussion of the cases dealing with custom election laws, let’s review how they operate and consider key differences with regard to the government’s control over a band council that has a custom election law compared to one operating under the Indian Actelection rules. A band’s elections may be conducted pursuant to the Indian Act[22]First Nations Election Act[23], a self-government agreement, or custom rules and procedures determined by members of the band. Under the Indian Act, the Minister of Indigenous and Northern Affairs Canada may declare by order that the council of a band be selected in accordance with rules and procedures set out in the Indian Act, and its associated regulations, if the Minister deems it to be advisable in the good governance of the band to do so[24]. Without such an order in place, the members of a band may select their council according to the custom of the band. 

Where the election of a band council is conducted under the Indian Act, government has a high level of control over the manner in which the band council is elected and makes decisions compared to when a band operates under a custom election law. The Governor in Council has control over the composition of the band council, eligibility to be on band council, terms of office, the manner in which elections are held and the power to set aside the election of a chief or councillor in certain circumstance[25].  The band must also operate in accordance with specified rules of procedure set out by the federal government[26]. Where a band is ordered to conduct their elections in accordance with the Indian Actelection rules and procedures, they may apply to the Department of Indigenous and Northern Affairs for the order to be repealed, but first the band must develop and approve its own rules and procedures governing elections, which rules and procedures must meet certain criteria as set out in federal policy, including that they must be consistent with the Charter of Rights and Freedoms[27].  Such rules and procedures are often called custom election laws, by-laws, rules, regulations, and codes and once they are in place the federal government does not have any control over the composition of council, eligibility to be on band council, term of council, or over that band’s elections or disputes concerning elections and council members. The federal government will not consider disputes, does not monitor amendments or act as a decision maker in any manner with regard to the band council’s operations.   

The Federal Court has historically been inadequate with how it assesses application of the Charter to a custom election law. In Bone v Sioux Valley Indian Band No. 290[28], Justice Heald of the Federal Court made the following comments with respect to a band that held its elections under its own custom rules and procedures:

32… I do not think that the power of the Band to choose its council in a customary manner is a "power conferred on the Band" as is contemplated by subsection 2(3)(a) of the Indian Act. Rather it is an inherent power of the Band; it is a power the Band has always had, which the Indian Act only interferes with in limited circumstances, as provided for under section 74 … 

One week prior to releasing his decision in Bone v Sioux Valley Indian Band No. 290,Justice Heald released reasons for decision inCrow v. Blood Band, where he assumed without any analysis that the Charter applies to a band’s custom election rules and procedures and decided that the Blood Band’s custom election rules and procedures violate the Charter[29]. There are numerous other cases where Federal Court assessed alleged Charter violations in custom election laws while presuming application of the Charter without analyzing it[30]

In Mohawk of Kanesatake v Mohawk of Kanesatake (Council), Justice Martineau of the Federal Court spent much time comparing the authority of a band to that of a municipality pointing out similarities but failing to consider the major differences that exist between the two entities before concluding the band’s law-making powers under the Kanesatake Interim Land Base Governance Actcome within the application of the Charter[31]. Without expressing a final opinion on whether the Charter applies to the band’s custom election law, Justice Martineau pointed out that although the Federal Court had considered such cases in the past, in none of those decisions did it engage in any extensive analysis of the “complex” legal issues in determining whether a case concerning compliance of the Indian Actprovisions with regard to elections with the Charter also applied to custom bands[32]. It was unnecessary for Justice Martineau to undertake this analysis in that case as a decision had already been made based on other grounds. 

An analysis with respect to custom election laws and the Charter was finally conducted by the Federal Court of Appeal in Taypotatv.Kahkewistahaw First Nation[33],16 years after the Supreme Court of Canada decided Eldridge v. British Columbia (Attorney General). Taypotat had been elected into the position of Chief for a total of 27 years while the band operated under the Indian Act, and the band subsequently adopted its own rules and procedures for elections, which required candidates to have a grade 12 or equivalent education. Taypotat challenged this requirement on the basis that it infringed section 15 of the Charter. In considering the issue of Charter application, Justice Mainville of the Federal Court of Appeal reviewed some of the Supreme Court of Canada’s jurisprudence on the issue, then concluded:

36In this case, the Council of the Kahkewistahaw First Nation (formed of an elected Chief and councillors) is clearly a sui generis government entity which exercises government authority within the sphere of federal jurisdiction under the Indian Act and other federal legislation. Pursuant to ss. 18(2), ss. 20(1), ss. 28(2), para. 57(a), ss. 58(1), and para. 58(4)(b) of the Indian Act, the Council plays a key role in the management of reserve land. Pursuant to ss. 52.1(1), s. 59, ss.64(1), ss. 66(1), and par. 73(1)(m) of the Indian Act, it also plays a key role in the management of band assets and band monies. The Council also holds extensive by-law making powers under ss. 81(1), ss. 83(1)(2), and ss. 85.1(1) of the Indian Act. Moreover, the Council is entrusted with the management of numerous federal government programs destined to Indian members of the First Nation. It consequently largely acts as a government under federal legislation and in matters within the authority of Parliament.

37Moreover, there can be no doubt that the election process through which the Council members are elected under sections 74 to 79 of the Indian Act is subject to Charter scrutiny, including scrutiny under section 15 (Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 ("Corbiere")). The fact that the Minister has taken measures to revoke the order under subsection 74(1) of the Indian Act so as to allow the First Nation to determine itself its election code does not result in the repudiation of Charter scrutiny. Indeed, a government should not be able to shirk its Charter obligations by simply conferring its powers to another entity: Eldridge v. British Columbia (Attorney General), above, at para. 42; Godbout v. Longueil, above, at para. 48. As a result, the application of Corbiere (and of subsection 15(1) of the Charter) cannot be avoided through the adoption by a First Nation of a community election code pursuant to the revocation of an order under subsection 74(1) of the Indian Act 

On appeal to the Supreme Court of Canada Justice Abella did not address the question of application of the Charter and there were no intervenors in the courtroom to comment on the issue. Rather, Justice Abella presumed that the Charter does apply and overturned the Federal Court of Appeal’s decision, concluding there was not enough evidence led to support a section 15 claim[34]. In Orr v Peerless Trout First Nation, the Alberta Court of Queen’s Bench followed the Federal Court of Appeal’s decision in Tayopotat v. Kahkewistahaw First Nationregarding application of the Charter to a customary band’s election law but provided no clear reasons for their conclusion that it should be applied[35].  

Membership Laws 

Custom election laws are not the only type of customary laws where the Federal Court has made substantive Charter infringement decisions without adequate analysis of Charter application. They have also done so when it comes to a band’s customary membership laws. Before looking at what the courts have said, let’s first recap how these laws operate. Under the Indian Act, a band list must be maintained containing the names of all persons who are members of a band and such band lists are either maintained by the federal government or by the band itself[36]. Where the federal government maintains the band list, the band may assume control over it by developing their own membership rules and having a majority of their members who are over 18 years of age consent to those rules[37]. There are nominal restrictions on who musts be eligible as a member under the band’s membership rules. Once a band has control of its own membership, the procedures in the Indian Actfor inquiries regarding who is on a band list, and protests regarding decisions around membership cease to apply to the band, removing the government’s control over disputes regarding membership[38]. There is no authority in the Indian Act for the federal government to force a band to return control over its membership to the federal government and such decision can only be made with consent of the members of the band who are over 18 years of age[39].  

Now, let’s look at what the courts have said. In Scrimbitt v. Sakimay Indian Band Council, Justice MacKay of the Federal Court considered whether the decision of a band council, acting under its own membership law, was in breach of the Charter[40]. Federal government officials at the Department of Indian and Northern Affairs Canada had stated to Scrimbitt that the Sakimay Indian Band has exclusive control over their membership list and that neither the Department or Minister of Indian Affairs and Northern Development had the power to make changes to the membership list[41]. Regardless of the governments clear statement to Scrimbitt that they have no control over her name being on the membership list, Justice MacKay determined the Charter applies. In doing so, he relied upon Ermineskin v Ermineskin Band Council, where Justice Jerome of the Federal Court considered a band council’s decision under its membership law to be derived from the Indian Actand subject to judicial review[42]. That case did not deal with a Charter challenge. In Grismer v. Squamish Indian Band, Justice Martineau of the Federal Court also assumed the Charter applies to provisions in the Squamish Nation Membership Code, 2000, and in doing so did not comment on submissions from the Squamish Indian Band with regard to whether a decision made under the Squamish Nation Membership Code, 2000could properly be regarded as the exercise of a delegated power under the Indian Act[43]. Their submissions included that:

·     section 10 of the Indian Act does not delegate power over membership to a band but rather allows the band to regain control over their membership;

·     once control over membership is regained by a band, the Minister has no jurisdiction to resume control over the band’s membership; and

·     bands are pre-existing entities with a legal status of their own and they have their own customs, laws, privileges, rights and obligations[44].

Other Band By-laws and Decisions

When it comes to decisions made by courts other than the Federal Court, a bit more attention has been paid to section 32 of the Charter in the context of band council decisions. InHorse Lake First Nation v Horseman,Justice Lee of the Alberta Court of Queen’s Bench considered whether a band council’s action in applying for an interim injunction against individual band members restricting them from protesting at the band office could infringe their individual rights under section 2(b) of the Charter – freedom of expression. In considering this, he stated the following:

66. Since condominium boards, and quite often provincial boards have authority to make by-laws, it is not the authority to make the by-laws, but the source of the authority that attracts the requirement that a body comply with the Charter. Accordingly, whether a Native Band Council functioning on an Indian Reservation must comply with the Charter could depend on where the Council gets its authority to enact laws or to govern[45].

Having given the parties additional time to make submissions with regard to the Charter’s application, Justice Lee concluded the following in supplementary reasons: 

18. The Alberta Court of Appeal in R. v. Paul Band, [1984] 1 C.N.L.R. 87 held that "[b]and councils are created under the Indian Act and derive their authority to operate qua band councils exclusively from that Act. In the exercise of their powers they are concerned with the administration of band affairs on their respective reserves whether under direct authority of Parliament or as administrative arms of the Minister. They have no other source of power. Band councils are thus within the exclusive legislative jurisdiction and control of the Parliament of Canada over 'Indians, and Lands reserved for Indians' ... and such councils are thus immune to provincial legislation": p. 7 of 8 [p. 94 C.N.L.R.].

19. Consequently, the Charter should apply to the by-laws and actions of Band Councils; and members of Bands should be able to assert rights, such as the right to freedom of expression, against Band Councils.  

29 The Charter should apply to any decision or by-law or action the Band Council or the Band makes under the authority of the Indian Actbecause the Band is using its statutory authority to regulate the life of its members. Therefore, the women whom the Band seeks to restrain from protesting should be able to raise freedom of expression against the Band Council.

30 There are circumstances where the decisions of the Band should not be subject to the Charter. For example, if the Band or Band Council is contracting with a private party for goods or services, the relationship is one that would likely be governed by private contract law.

In Band (Eeyouch) v. Napash[46], Justice Gervais of the Court of Quebec took some time to analyze the application of the Charter to a band’s by-law enacted under the Cree-Naskapi (of Quebec) Act, an Act which put into place the James Bay and Northern Quebec Agreement, and which provided the band law-making authority over intoxicants within specified territorial boundaries. In his reasons, Justice Gervais considered and dismissed the position that the James Bay and Northern Quebec Agreement could be nothing but the expression of an inherent right that existed previously. Justice Gervais found that the Charter applies as the by-law making authority was provided to the band by way of an Act of Parliament[47]. In coming to this conclusion, Justice Gervais referred to Justice La Forest’s legal test in Eldridge v British Columbia, canvassed a myriad of case law but made no conclusion on whether the band was substantially controlled by government overall. Rather, he focussed on the source of the authority to enact a law. 

In Siksika Nation v. Crowchief, Justice Hunt McDonald of the Alberta Court of Queen’s Bench considered whether band members who were blockading a work site on band lands could claim the protection of the Charter under section 2(b) – freedom of expression – in response to the band’s application for an injunction against them for interfering with the building of new homes[48]. In applying RWDSU v. Dolphin Delivery, as well as Justice Lee’s words in Horse Lake First Nation v Horseman, she determined that the band had entered into a private agreement with a contractor to conduct work and was acting under a private contract so the Charter did not apply[49]. It appears from Justice Hunt McDonald’s reasons that she did not consider the application of other Supreme Court of Canada decisions. Rather, she acknowledged a lack of certainty in the law then went on to analyze the Charter breach in the event her decision around application was wrong. 

4.   DISCUSSION RE COURTS APPLICATION OF THE CHARTER TO FIRST NATION BANDS

There are many factors with regard to a band’s existence, and operations, which have not been mentioned in the courts’ reasons’ regarding whether a band’s laws, by-laws and actions are subject to the Charter. The mere fact that a band is a recognized by statute and is given the legal attributes of a natural person is in no way sufficient to make all of its actions subject to the Charter. The courts’ have put a strong focus on the Indian Act’s regulation of a band’s decisions regarding its reserve lands, finances, and by-law making but have failed to look at a band from all viewpoints.

 Like the university’s governing body in McKinneyv University of Guelph, the councils of many bands have an autonomous governing body consisting of individuals appointed by the members of the band, none of whom are appointed by government, and none of whom can be removed from their positions by a government official. There are exceptional circumstances where a band is subject to an order from the Minister to elect its officials under the Indian Act. Despite the original assessment undertaken when a band wants to be removed from under the Indian Act election process, once they are operating under a customary law there is a hands-off approach taken by the government with regard to the band’s elections and the conduct of their elected officials. The only way to have an election set aside, or challenge an elected official’s position is to do so in accordance with the rules and procedures set out in the band’s customary law. The responses given by government officials when band members contact them for remedial action is that they have no control or authority to intervene.

A band council cannot derive its authority “exclusively” from the Indian Act, have no source of other power, but at the same time have the power to negotiate on behalf of its membership and contract with private parties outside of the Indian Act. Bands negotiate treaties with the federal and provincial government and impact benefit agreements with industry proponents, not because they have any statutory authority to do so but because they are granted authority from their own members to do so. A band may also create its own laws, not under the authority of an Act of Parliament, and may follow indigenous laws that come from “sacred teachings, naturalistic observations, positivistic proclamations, deliberative practices, and local and national customs”[50]. Whereas a sacred law may come from the Creator or a creation story, naturalistic observations come from the indigenous people’s observations of the natural world[51]

When it comes to the implementation of government programs and policies, in some circumstances a band may receive funding from the government and be required to spend that funding on certain matters and in accordance with government policies. In other circumstances, the band will maintain control over how they spend that funding. There are also circumstances in which a band may have “own source revenue” arising from market-based activities, such as impact and benefit agreements, or commercial operations run by the band.  A band may make decisions with regard to spending of this own source revenue and is not in any manner controlled by the government with regard to those expenditures. The First Nations Financial Transparency Act requires a band to prepare financial statements setting out their assets, liabilities, equity, income, expenses and cash flows, and those financial statements must include the financial information for own-source revenue[52]. However, the purpose of that Act is to enhance financial accountability and transparency of bands[53]. It does not act to control how such funds are spent. Likewise, while a band’s chief and council must uphold fiduciary duties with regard to their control of band-owned assets and their approval of spending activities, this duty flows from the common-law not from an Act of Parliament.

5.   CONCLUSION

The current legal test regarding application of the Charter has been in clear existence since Justice La Forest set it out in Eldridge v British Columbia. It has been clear since that time that an entity may be a government actor or it could be a private entity, in which case more is required in order to bring that entity’s actions within the scope of the Charter. In assessing whether the entity has violated the Charter, the courts must look to more than just the legislation that regulates it.  For the most part, the lower courts have failed to adequately assess application of the Charter to the laws and actions of a band. In fact, there are quite a few cases where they have not mentioned the appropriate legal test or where they have purely focussed their attention on the legislation that regulates some aspects of a band’s operations. The courts have embarked upon various analysis of whether other courts have applied the Charter to one circumstance or another, despite those courts often providing no analytical reasons for their decisions. Until such time as the courts take the time to assess the many differences that exist between a band and a municipality, hospital, college, university, etc., the matter of whether a band should or should not be considered a government actor or undertaking government action for purposes of the Charter will remain inadequately addressed. 

Footnotes:

[1]Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [“Constitution”]

[2]Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [“Charter”]

[3]Charter, at s.32(1)

[4]RWDSU v Dolphin Delivery, [1986] 2 S.C.R. 573 [“Dolphin Delivery”]

[5]Dolphin Delivery, at paras 33 and 34

[6]Dolphin Delivery, at para 36

[7]Dolphin Delivery, at para 39; Also, note that the Interpretation Act(R.S.C., 1985, c. I-21) defines a “regulation” as including “an order, regulation…by-law, resolution or other instrument issued, made or established in the execution of a power conferred by or under the authority of an [Act of Parliament], or by or under the authority of the Governor in Council.

[8]Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at paras 9 and 87 [“Slaight”]

[9]McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at para 30 [“McKinney”]

[10]McKinney, at para 36

[11]McKinney, at para 35

[12]McKinney, at paras 36 and 39-42

[13]McKinney, at para 34

[14]Douglas/Kwantlen Faculty Assn. v Douglas College, [1990] 3 S.C.R. 570 [“Douglas”]

[15]Douglas, at paras 15 and 16

[16]Lavigne v Ontario Public Service Employees Union, [1991] S.C.J. No. 52 [“Lavigne”]

[17]Lavigne, at para 212

[18]Eldridge v. British Columbia (Attorney General), [1997] S.C.J. No. 86, at para 19 [“Eldridge”]

[19]Eldridge, at para 36

[20]Eldridge, at para 44

[21]Greater Vancouver Transport Authority v Canadian Federation of Students – British Columbia Component, [2009] S.C.J. No. 31, at para 16

[22]Indian Act; Indian Band Council Method of Election Regulations, SOR/90-46; and Indian Band Election RegulationsC.R.C., c. 952

[23]First Nations Elections Act(S.C. 2014, c.5)

[24]Indian Ac, at ss. 74-80 

[25]Indian Act, at ss. 74, 79 and 80

[26]Indian Band Council Procedure Regulations, C.R.C., c. 950

[27]Indigenous and Northern Affairs Canada, Conversion to Community Election System Policy, Date modified: 2015-06-01, Accessed Online: https://www.aadnc-aandc.gc.ca/eng/1433166668652/1433166766343

[28]Bone v Sioux Valley Indian Band No. 290, [1996] F.C.J. No. 150

[29]Crow v. Blood Band, [1996], F.C.J. No. 119, at paras 21, 23 and 31

[30]See:Hartley Bay Indian Band v. Hartley Bay Indian Band (Council), [2005] F.C.J. No 1267; Thompson v Laq’a:mel First Nation, [2007] F.C.J. No 955; Cockerill v. Fort McMurray First Nation #468, [2010] F.C.J. No. 393 (*Note, in this case the Federal Court relied upon other Federal Court decisions as precedents regardless of those decisions not considering the Supreme Court of Canada caselaw)

[31]Mohawk of Kanesatake v Mohawk of Kanesatake (Council), [2003], F.C.J. No. 156, at para 15 [“Mohawk”]

[32]Mohawk, at paras 74 - 77

[33]Taypotatv.Kahkewistahaw First Nation, [2013] F.C.J. No. 938

[34]Kahkewistahaw First Nation v Taypotat, [2015] 2 S.C.R. 548

[35]Orr v Peerless Trout First Nation, [2015] A.J. No. 8;

[36]Indian Act, ss. 8-11

[37]Indian Act, s.10(1)

[38]Indian Act, ss. 14.1 – 14.3

[39]Indian Act, s. 13.2

[40]Scrimbitt v. Sakimay Indian Band Council, [1999] F.C.J. No. 1606 [ “Scrimbitt”]

[41]Scrimbitt, at para 14

[42]Scrimbitt, at para 22; Also, Ermineskin v. Ermineskin Band Council, [1995] F.C.J. No. 821, at paras 13 and 14

[43]Grismer v Squamish Indian Band, [2007] 1 C.N.L.R. 146, at paras 24, 25 and 32 [“Grismer”]

[44]Grismer, at paras 24 and 25

[45]Horse Lake First Nation v Horseman, [2003] 2 C.N.L.R. 180

[46]Band (Eeyouch) v. Napash, [2014] Q.J. No. 11936 [“Band (Eeyouch)”]

[47]Band (Eeyouch), at para 106

[48]Siksika Nation v Crowchief, [2016] A.J. No. 1101 [“Siksikia”]

[49]Siksika Nation, at paras 67-68

[50]Borrows, John, Canada’s Indigenous Constitution,(Toronto: University of Toronto Press, 2010), at pp.23 & 30 [“Borrows”]

[51]Ibid

[52]First Nations Financial Transparency Act, S.C. 2013, c.7 [“FNFTA”]

[53]FNFTA, at s.3