Process that resulted in passage of resolution breached procedural fairness

Federal court | Aboriginal Law

Government of Aboriginal people

Councils

Process that resulted in passage of resolution breached procedural fairness

Respondents, purporting to act as chief and council of First Nation, passed resolution that purported to vest responsibility for First Nation school board in chief and council and to invalidate decisions made by board that were not supported by quorum of council and/or required ratification of such decisions by majority of council. Effect of resolution could include invalidating board’s decision to restructure and to dismiss Director of Education. Applicants maintained that resolution was not valid because it was passed at meeting of council that was not duly convened and without notice to chief and council, and resolution was beyond jurisdiction of chief and council. Applicants applied for judicial review of resolution. Application granted. Process that resulted in passage of resolution breached procedural fairness. Meeting was called for only one purpose, which was to discuss forensic audit, and it was not regular meeting of council but was more akin to special meeting. Respondents could not opportunistically spring resolution on chief at meeting called for different purpose. Although all councillors were present at meeting and chief was aware of concern of some councillors regarding school board, applicants had no advance warning that resolution would be tabled, or of its wording, and they had no opportunity to prepare and to make submissions. Respondents’ actions in passing resolution without sufficient notice to chief and to all councillors and without providing all councillors with opportunity to make representations was breach of procedural fairness, and resolution was invalid. Resolution failed to recognize that school board was separate entity that was accountable to Band and not directly to chief and council, that school board election procedures could not be unilaterally amended by chief and council, and that resolution that established band must be respected.
Peguis First Nation v. Bear (2017), 2017 CarswellNat 356, 2017 FC 179, Catherine M. Kane J. (F.C.).

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