Federal Court Procedure – Aboriginal Law
Case Study
A.2 Federal Court Workshop
CBA Legal Conference
2014 St. John’s
Newfoundland
Case Study:
Judicial Review Proceedings and
First Nation Governance
Disputes
Federal Court Jurisdiction
• First Nations find themselves in judicial review
proceedings in Federal Court for two main reasons:
• 1. First Nations are the subject of decisions of a
“federal board, commission or other tribunal” for
which they are seeking judicial review; and
• 2. First Nations themselves are considered to be within
the definition of “federal board, commission or other
tribunal” under section 2 of the Federal Courts Act
• First Nations members can seek court review of
decisions of their Chiefs and Councils
FCA - Section 18 – Standing and
Time Limitations
• “Directed affected” test is the threshold for standing to
bring an application under section 18 (per 18.1(1))
• Over 50% of FN’s hold elections under custom election
codes, rather than the Indian Act –the Federal Court can
review decisions pertaining to custom elections on
application by affected members of the First Nation
• Time limitation to apply for judicial review is 30 days
after the decision is communicated
• This means you need to ACT FAST!
Grounds for Review
• Section 18.1(4) enumerates grounds for review which include:
•
•
•
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The tribunal acted without jurisdiction
The tribunal failed to observe a principle of natural justice
The tribunal erred in law
The tribunal based its decision on an erroneous finding of fact
• Review applications pertaining to custom election codes are
commonly around themes such as unfairness, with a
developing jurisprudence on Charter compliance (s. 15)
Unique Issues in Governance Disputes
• A unique development in the jurisprudence is the test of
‘broad community consensus’ to determine and/or
validate election rules and procedural requirements- the
court is often called upon to determine what the rules
actually are, given some are not written down or have
evolved over time
• While the term ‘custom’ code suggests traditional
governance, s. 35 Aboriginal rights rarely come into play
and codes have been subject to Charter challenges in
judicial review proceedings, particularly with respect to
the representation of members residing off-reserve
Which Decision and Who is the DM?
• Often the dispute arises out of a series of transactions or a
pattern that has developed over time –election code disputes
are often political disputes as much as legal disputes
• Strategic questions for legal counsel are: which is the
reviewable decision and who made the decision- is it the
electoral officer implementing the code, or some or all of the
Chief and Council?
• Chief and Council can change and
result in a conflict for legal counsel
• The court has to struggle to find
a remedy that resolves the dispute
Remedies
• Seeking appropriate remedies is arguably the biggest
challenge in judicial reviews for both counsel and the court
• Section 18.1(3) of the Federal Courts Act gives the court a
broad range of remedies including:
• Ordering a decision maker to do something it has unlawfully
failed to do, or unreasonably delayed in doing
• Declaring invalid a decision, order, act or proceeding of a decision
maker
• Prohibit or restrain a decision, order, act or proceeding
• Quash the impugned act, set it aside or refer it back w/directions
Timing Concerns
• The length of time it takes to get a 1-3 day hearing can be six
months to a year
• Often disputes have escalated by then, resulting in further
applications, or have become moot, complicating the remedy
issue
• For example, if a Court finds an election code to be in breach
of the Charter, or procedurally unfair, should the election be
quashed, causing a vacuum in governance, or should the Court
delay the remedy and require the First Nation to amend the
code in time for the next election?
• If yes, should the Court prescribe a process for amendment?
• The Court needs to balance giving guidance without unduly
interfering with the governance customs of the First Nation
Pilot Project for Governance Disputes
• In 2012, the Court issued a notice announcing the launch of a pilot
project for judicial review applications dealing with First Nations
governance disputes
• The initiative demonstrates the Court’s recognition that alternative
dispute resolution can be a better tool to address the complexity
and uniqueness of First Nation governance disputes
• The process starts with an assessment (“triage”) by the Court of
each notice of application- the parties are asked to consider
mediation, judicially assisted or away from the court
• Court assisted dispute resolution generally falls under Rule 384
• The Court is taking innovative approaches to governance dispute
resolution, including conducting the process in First Nations
communities, inviting elders to participate in the process, and
working with traditional dispute resolution customs
Thank you!
Krista Robertson
816 - 1175 Douglas Street
Victoria, BC V8W 2E1
250 475.2010/250 893.8710
krobertson@jfklaw.ca