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THE INDIGENOUS LAW JOURNAL at the University of Toronto, Faculty of Law THE INDIGENOUS LAW JOURNAL at the University of Toronto, Faculty of Law ISSUE 1 VOLUME 12 EDITORS-IN-CHIEF Mark Carter and Aislin Stott SENIOR EDITORS Laura Cardiff Leora Jackson Aaron Pegg Jonathan Charland Emilie Lahaie Rebecca Sutton Christopher Evans Christina-Markie Laura Zubot-Gephart Mammoletti SUBMISSIONS MANAGERS Promise Holmes-Skinner Meagan Jemmett FACULTY ADVISOR Douglas Sanderson COPY EDITOR LAYOUT Petra Dreiser Eric Mills Editing & Design COVER Austin Acton ORIGINAL LOGO DESIGN ORIGINAL COVER DESIGN Riel Benn Chris Parsons ASSOCIATE EDITORS Lindsay Borrows Mallorie Malone Karen Drake Lauren Pearce Shardae Fortier Alexandra Penny Penny Garnsworthy Jamie-Lynn Smukowich Katherine Georgious Jamie Thomas EXTERNAL READERS Names withheld ADVISORY BOARD Catherine Bell Mr Justice Frank Iacobucci Andrée Lajoie Mary-Ellen Turpel-Lafond The Indigenous Law Journal at the University of Toronto gratefully acknowledges the generous support of its Patron THE UNIVERSITY OF TORONTO FACULTY OF LAW Front B.indd 2 14-07-04 12:33 AM Awards Gowling Lafleur Henderson LLP Best Student Submission Award Gowling Lafleur Henderson LLP sponsors an award of $400 for the best student submission to the ILJ. The award is available to students from any school, and is given out to the student submission that the Senior Editorial Board of the journal feels is the best amongst its peers. Criteria that are con- sidered include, but are not limited to, writing style, novelty of topic, novelty of approach and depth of research. The purpose of this award is to encour- age student scholarship and recognize outstanding achievement. The winning paper is also published in the current volume. In this issue, the winner of the Gowling Lafleur Henderson LLP Award is Anthony Gatensby. Please see <http://www.indigenouslawjournal.org> for the most recent information on awards, fellowships and deadlines. Front B.indd 3 14-07-04 12:33 AM Web Page: WWW.INDIGENOUSLAWJOURNAL.ORG Published by Wilfrid Laurier University Press on behalf of the Indigenous Law Journal. Printed in Canada. Copyright © 2014. All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means including information storage and retrieval systems, apart from short passages for use in review, without permission, except by the author. Reproduction of this material without authorization, by any means of duplication whatsoever, is a violation of copyright. ISSN: 1703-4566 Subscriptions Wilfrid Laurier University Press 75 University Avenue West Waterloo, ON, Canada N2L 3C5 Telephone: (519) 884-0710 ext. 6124 Fax: (519) 725-1399 E-mail: [email protected] Web Site: http://www.wlupress.wlu.ca All Other Communications Editors-in-Chief The Indigenous Law Journal University of Toronto Faculty of Law 78 Queen’s Park Circle Toronto, Ontario, Canada M5S 2C5 Telephone: (416) 946-8134 E-mail: [email protected] The Indigenous Law Journal is available online from Hein Online, Quicklaw, Westlaw, EBSCO, Synergies and other services. Citation: (2014) 12:1 Indigenous L.J. Front B.indd 4 14-07-04 12:33 AM Contents The Legal Obligations of Band Councils The Exclusion of Off-Reserve Members from Per-Capita Distributions 1 Anthony Gatensby Transforming Our Nuuyum: Contemporary Indigenous Leadership and Governance Stories told by Glasttowk askq and Bakk jus moojillth, Ray and Mary Green 33 Translated, interpreted, and written by Kundoqk, Jacquie Green Front B.indd 5 14-07-04 12:33 AM Front B.indd 6 14-07-04 12:33 AM The Legal Obligations of Band Councils The Exclusion of Off-Reserve Members from Per-Capita Distributions ANTHONY GATENSBY* I Introduction 2 II Band Councils, Membership, and Per Capita Distributions 4 Money-Management Powers and Per Capita Distributions 4 Revenue and Capital Accounts 6 External Trusts 9 The Powers of the Band Council and Band Council Resolutions 10 Challenging the Decisions of Band Councils 12 The Federal Municipality Analogy 12 Jurisdiction of the Federal Court and the Superior Court 14 III Recent Case Law 16 The Dual Barrier: Procedural Safeguards 16 Aboriginal Residence 16 Application of Aboriginal Residence to Non-election Band Council Resolutions 19 A Pragmatic Look at Procedure 21 The Dual Barrier: Substantive Safeguards 22 Fiduciary Obligations in General and to First Nations 22 Evolution of Fiduciary Duties in Band Councils 25 A Pragmatic Look at Substantive Safeguards 28 * Third-year student at Queen’s University, Faculty of Law. Anthony will be completing articles in Toronto at McCague Borlack LLP, and articles of clerkship with the Saskatchewan Court of Appeal in 2015–16. INDIGENOUS LAW JOURNAL / Volume 12 Issue 1 /2014 1 Gatensby - D.indd 1 14-07-04 12:32 AM 2 INDIGENOUS LAW JOURNAL Vol. 12 No. 1 IV Application 29 The First Barrier: Procedural Safeguards 30 The Second Barrier: Substantive Safeguards 30 V Conclusion 31 The growing population of off-reserve First Nations members poses unique challenges to the traditional band council system, which was developed as a reserve-centric institution. Commentators have paid generous atten- tion to the constitutional protection of off-reserve members in determining the leadership of their respective bands. The fiscal management of those bands, on the other hand, has mostly been left to the scant governing sec- tions of the Indian Act and to private law. Of particular importance is the ability of band councils to distribute money directly to the band membership, often after the resolution of a land claim and the receipt of large entitlements from Canada. In comparison to discriminatory voting procedures, the body of jurisprudence concern- ing the exclusion of off-reserve members from per capita distributions is scattered and without coherence. Yet because these distributions are quite common in contemporary First Nations life, the issue is one that deserves focus. I argue that a mixture of constitutional, statutory, and private law prin­­ciples form a “dual barrier”: a combination of procedural and sub- stantive protections that prevent the unequal distribution of funds to the band membership. Adhering to the jurisprudence of the courts, I explore the nature of the power of band councils and how they interact with the judicial system, before exploring how these safeguards operate. I conclude with a practical application of these safeguards. I Introduction It is now well established that the Aboriginal population in Canada is larger, younger, and more urban than ever before. In 2006 the Canadian Census re- ported that the Aboriginal population had grown by 45 percent in the previous ten years, reaching a record population count of over 1 million.1 Of that num- 1 The Environics Institute, Urban Aboriginal Peoples Study (Toronto: Environics Institute, 2010) at 24. Gatensby - D.indd 2 14-07-04 12:32 AM The Legal Obligations of Band Councils 3 ber, almost half were under the age of 24. It is not surprising, with a youthful demographic exploding in size, that more and more Aboriginals are choos- ing to live off reserve. On average, just less than 70 percent of the Canadian ­Aboriginal­ population­ lives­ beyond­ the­ confines­ of­ a­ reserve,­ including­ in­ major urban centres. The impact of this residential shift has been felt strongly in Ontario, where band membership is now often substantially higher than the number of on- reserve residents.2 For example, the Serpent River First Nation, located approximately 30 kilometres south of Elliot Lake, reported a total band popu- lation of 1,118, but only 340 on-reserve residents (30.4%).3­The­Whitefish­ River First Nation, about 20 kilometres south of Espanola, lists a popula- tion of 1,032, with only 379 residents (36.7%).4 The North Spirit Lake First Nation, on the shores of Sandy Lake near the Ontario-Manitoba border, re- ports a total band population of 411, only 259 (63%) of which reside on the reserve.5 This trend of migration has created two classes of Aboriginal people, divided solely on the basis of residency, which many First Nations have not reconciled. Band councils, which govern reserve life, have noticed the diverging na- ture and interests of on- and off-reserve members. At times, they have seen the latter as less deserving both of the band’s limited resources and of leader- ship opportunities. This view appears informed by common sense: by limit- ing resources to on-reserve members and activities, band councils may focus on improving life on the reserve, which is often wrought with infrastructural inadequacies. By restricting voting and leadership to members ordinarily resi- dent on the reserve, councils are procedurally ensured that only those most familiar and connected with band and reserve life are put in direct positions of governing it. While this idea is contentious, it is never more so than when the band stands to receive a large sum of money, often, though not always, in response to a land claim settlement. The ability of band councils at that 2 I make this comment even if the effect may have been greater or lesser in other provinces. 3 The total band population can be found at Aboriginal Canada Portal, First Nation Connectivity Profile–Serpent River, online: Aboriginal Affairs and Northern Development Canada <http:// www.aboriginalcanada.gc.ca>. The total population and dwelling can be found at StatCan 2006 Canadian Census, Aboriginal Population Profile–Serpent River, online: Statistics Canada <http://www12.statcan.gc.ca>. 4 The total band population can be found at Aboriginal Canada Portal, First Nation Connectivity Profile–Whitefish River, online: Aboriginal Affairs and Northern Development Canada <http:// www.aboriginalcanada.gc.ca>. The total population and dwelling can be found at StatCan 2006 Canadian Census, Aboriginal Population Profile–Whitefish River, online: Statistics Canada <http://www12.statcan.gc.ca>. 5 The total band population can be found at Aboriginal Canada Portal, First Nation Connectivity Profile–North Spirit Lake, online: Aboriginal Affairs and Northern Development Canada <http:// www.aboriginalcanada.gc.ca>.
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