Federal Court clarifies leadership duties under First Nation custom by-laws

On November 17, 2025, the Federal Court released its decision in Apsassin v. Councillor Yahey, 2025 FC 1830. The case is an important reminder that First Nation governments must follow the rules set out in their own governance documents. When they do not, courts can intervene.

Blueberry River First Nations (BRFN) is governed by a Custom Election By-Law, approved under the Indian Act and treated as the Nation’s constitutional document. Among other things, this By-Law sets out how Council must hold meetings, consult with family groups and communicate with members. It also outlines when and how Council may hold private (in camera) sessions.

Two BRFN Elders asked the Federal Court to review a pattern of non-compliance by four councillors. They claimed that the councillors:

• Failed to hold the required regular Council meetings
• Held meetings without agendas or minutes
• Met in camera without proper motions or records
• Made major decisions without consulting the families they represent

These events took place during a period of political conflict, including steps taken to investigate and eventually remove the Chief. Although the Chief’s removal was not part of this judicial review, the dispute formed the background to the case.

Governance laws must be followed

The Court held that the By-Law is BRFN’s “supreme law” for governance and leadership cannot suspend or ignore these rules, even if they have political disagreements or believe they are acting in the Nation’s best interest. Meeting procedures, notice requirements, in camera rules and consultation duties are mandatory, not optional. Even if Council holds a majority, they cannot shortcut rules for the sake of efficiency.

Importance of record keeping for litigation protection

A key problem was the councillors’ refusal to file the Certified Tribunal Record (CTR), a required set of documents in the judicial review process that show how decisions were made by the Council. Despite a court order, they did not provide the CTR. As a result of this refusal, as well as the overall evidence in Court, the Court drew an adverse inference that the Council did not meet at least twice monthly, and in camera meetings were held without proper motions – all of which were required under the Custom Election By-Law. This shows that record-keeping is not just administrative housekeeping but an important legal safeguard.

Ongoing pattern of breaches can be judicially reviewed

Because BRFN leadership exercises authority delegated under federal law (i.e. the Indian Act), decisions made outside the By-Law’s framework are vulnerable to being quashed or declared unreasonable. Typically, judicial reviews focus on a single point-in-time decision of Chief and Council or other administrative tribunals. However, in this case the Court found that the councillors’ behaviour amounted to a continuous course of unreasonable conduct. Even though there was no single decision under review, the ongoing pattern of failing to follow the By-Law was enough to justify judicial intervention.

Declarations

Because of the continued breaches of the By-Law, the Court made the following declarations:

• The Respondents breached Blueberry River First Nation’s laws and customs, namely the By-Law
• Blueberry River First Nations Council is required to meet regularly and as a whole of Council, in accordance with the By-Law
• Blueberry River First Nations Council is required to consult with and represent the views of Blueberry’s members, including Family Groups and Elders, in advance of making major decisions on behalf of the Nation, in accordance with the By-Law

Takeaways for First Nation Governments

Looking ahead, the decision signals several implications for First Nation governments:

1. Courts will continue to treat Custom Election Codes and other governance documents as constitutional frameworks that must be followed closely
2. Councillors in family-based representation systems will be expected to communicate actively with their groups, and failure to consult will carry legal consequences
3. Missing minutes, notices or agendas may be treated as indications that leadership has not complied with its obligations. Some Nations may respond by strengthening their governance procedures, improving record-keeping systems or clarifying consultation processes
4. Because governance disputes can affect decisions on major agreements, external partners may begin to require clearer evidence that decisions were made in compliant, duly constituted meetings.

Apsassin v. Councillor Yahey sends a straightforward message: First Nation leaders must follow their own governance laws. When they do not, the courts can step in. For First Nation governments, this decision highlights the need for transparency, proper procedures and strong record-keeping: ore elements of effective and lawful governance.

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