Rules for Decision Making

Under Canadian law there are rules about how some types of decisions must be made. People can ask a court to review a decision if they think these rules have not been followed. After a court reviews a decision they can send it back to the original decision maker. If they do this, they may outline what needs to be done. In some cases, they can change the decision. 

Courts can review decisions made by people or agencies that a government authorizes to make decisions. For example, a decision by the Minister of Indigenous Services Canada under Indian Act about a Will can be reviewed.

Courts have found they can review a decision made:

• under the Indian Act or other law that gives an Indigenous Nation decision-making power
• through a First Nation Council bylaw, resolution or other decision
• by a First Nation Council based on a customary law about an election 

There are some decisions that courts will not review to see if the rules about decision making have been followed. This can be based on where the authority to make the decision comes from, the type of body that made the decision or the type of decision that was made.

Canadian Law

Courts will review decisions if the decision maker’s authority is based on Canadian law, like the Indian Act. For example, courts will review decisions of a First Nation Council if they are made under customary laws about elections. This is because the Indian Act gives First Nations the power to use customary laws in elections.

However, courts acknowledge that Indigenous decision makers are the best people to interpret their own laws. Courts must respect an Indigenous decision maker’s understanding of their own laws. They have knowledge about the customs a law is based on and on the community’s understanding of the law.

An Indigenous community could make decisions based on their Inherent Rights, not any Canadian law. In this case the court might not review the decision. The reason the court would not review the decision is that it is outside of Canadian law. However, if the First Nation tried to use Canadian law to enforce the decision this would be different.

Type of Body

Decisions made by voluntary organizations cannot be reviewed. Courts have ruled that both Métis Nation-Saskatchewan (MN-S) and the Federation of Sovereign Indigenous Nations are voluntary organizations. 

MN-S is in the process of negotiating a Treaty with the federal government. Once it is signed it will be implemented by a federal law. This could change whether decisions made by MN-S can be reviewed by courts.

Type of Decision

Courts also cannot review things like business decisions. Examples of business decisions by a First Nation that cannot be reviewed include:

• evicting a tenant based on their rental agreement with the tenant
• choosing a contractor to do work on the reserve

There are several reasons a court can find a decision was not properly made. Two of the most common reasons are explained here. 

How the Decision was Made

This type of review does not consider the decision itself. Instead, the court looks at how the decision was reached. This is called procedural fairness. 

Fair decision making requires that the person know that a decision is being made that will affect them. They need to know what is being considered in making the decision and have a chance to present their side to the decision maker. Procedural fairness also means the decision maker does not have or appear to have a stake in the outcome. An example of having a stake in the outcome would be if the successful candidates in an election decided if their election was valid. 

What this means in any case can be very different. Sometimes it means there would need to be an oral hearing. Other times written notice and a chance to respond in writing would be enough. 

In deciding if a decision was made in a fair way courts must consider Indigenous laws or customs. Basic things like the person knowing what the case against them is and being able to respond still apply. But the First Nation can have their own way of making sure these things are in place.

Cases

This is a complex area of the law. Below are examples of court rulings that can help people understand when a the process for coming to a decision meets the requirements of Canadian law.

Testawich v. Duncan’s First Nation decided by Federal Court on November 6, 2014

This case was about an election.

A member was elected as a councillor but then removed by the community’s Appeals Committee. Another member said the councillor had contacted and harassed members. The committee held a hearing. They did not keep a written record of the hearing. The committee’s written decision just said there was a violation of the election rules but did not say what the councillor had done wrong.

The court found that the committee did not follow a fair procedure in deciding to remove the councillor. They did not keep a written record and did not give any details about why they removed him, so the councillor had no way of understanding why he was removed.

Crowchild v. Tsuut'ina Nation – decided in Federal Court on October 6, 2017

This case was about a right to reserve land.

The Chief and council decided to give some of the land a member was living on to another member of her family. The member had lived on the land with her mother since her birth. It was accepted that her mother had the right to live on the land.

The court found that the Chief and council did not follow a fair procedure because they did not give the member notice of some key meetings where the issue was discussed. For other meetings the member had notice but not enough notice. The court also found that the decision was not made in a fair way because a member of the council who had an interest in the land (and therefore a stake in the outcome) took part in the discussions. 

Johnson v. Okanagan Indian Band – decided in Federal Court on August 29, 2022

This case was about membership.

A member of another Band wanted to transfer her membership back to the Okanagan Indian Band. She had been registered as a member there but after she moved away she became a member of the Band where she was living. Her transfer under the Indian Act required the consent of the council of the Band she wanted to join. The Band she wanted to join also had a Transfer Policy. The Band denied her request to transfer.

The Court found that the Band did not follow a fair procedure. They did give her to a chance to make her case in writing and in person. But they did not tell her what they would be considering. She did not know that they were looking at her character and past contributions to the community as well as threatening and aggressive behaviour. 

Was the Decision Reasonable?

In deciding if a decision was reasonable the court does not just make their own decision. The decision does not need to be the one the court would have made. The court looks at the decision and the reasons for the decision. The court looks at whether the reasons support the decision that was made. The court also considers whether the decision was based on the facts and the law. 

Cases

McCarthy v. Whitefish Lake First Nation – decided in Federal Court on February 15, 2023

This case was about voting in an election.

A committee of the Whitefish Lake First Nation refused to allow one member to vote in their election because she was reinstated when the government changed the Indian Act. The change reinstated women who lost their status as registered Indians when they married a man who was not an Indian under the Indian Act. The change also reinstated the children of these women. Whitefish Lake First Nation argued the voting policy was a custom of the First Nation.

The court found that they could review this decision for reasonableness. They found the voting policy was unreasonable because the First Nation had not shown that this was a custom. With no custom to support the decision there was no reason for the decision. 

Pastion v. Dene Tha’ First Nation decided in Federal Court on June 21, 2018

This case was also about an election.

The First Nation held elections according to their Customary laws. The First Nation made Election Regulations. The regulations stated that people running for election had to live on the reserve. One candidate for Chief did not live on the reserve. After the election a member went to the Election Appeal Board. The Board found that the regulations had not been broken because this could only be raised at the time a candidate was nominated to run, not after the election.

The court found that the decision of the Appeal Board was reasonable. The regulations provided a process for challenging both the nomination of a candidate and the election of a candidate. The court found that even though both types of challenges were allowed it was reasonable for the Appeal Board to decide that residency could only be challenged during the nomination process.

Gordon D. Lerat v. Cowessess First Nation Council – decided in Federal Court on December 13, 2019

This case was about a right to reserve land.

The First Nation Council passed a resolution to stop members from leasing reserve land to non-members and collecting those rents. This had been happening for many years. The First Nation had decided to only lease their land through permits under the Indian Act. 

The court found that the decision was reasonable. The council had to balance the collective interests of the First Nation and the individual interests of certain members. It was reasonable for the council to want the First Nation as whole to benefit from these reserve lands. The council offered the members now leasing the land compensation even though they had no legal right to lease the land.