Reducing judicial review risk in Indigenous governance decisions

This Insight was prepared with assistance from summer student Liese Charriere.

Indigenous governments, like other governments in Canada, make decisions and exercise their authority in ways that can be subject to review by the courts. Effective governance and decision-making processes are critical to reducing the risk of judicial review, which can delay, alter or even overturn decisions. Having decisions overturned on judicial review can lead to legal and financial consequences, instability or internal conflict within communities.

While there is no way to completely avoid the risk of a court challenge, Indigenous governments can implement practices to help reduce the likelihood of a decision being challenged. Best practices can include knowing the source of the authority for the decision, following the required process, keeping a reliable record and clearly communicating outcomes to affected parties.

Why are governance decisions challenged?

Challenges often arise when a decision directly affects community members or the way an Indigenous community is governed. While courts have shown increasing respect for Indigenous communities’ governance autonomy, this does not mean that decisions of Indigenous governments are immune from judicial review. Examples of decisions that are commonly reviewed include decisions relating to elections or removing elected leaders, voter eligibility, access to financial information, consultation on major decisions or decisions related to housing, employment or residency.

Judicial review often focuses on the process for making the decision. A decision may be vulnerable to challenge if the decision maker skips a required notice or consultation step, fails to give affected members a meaningful opportunity to be heard, relies on irrelevant considerations, uses in-camera sessions without proper authority, does not provide reasons where reasons are required or otherwise ignores mandatory procedures. Courts have emphasized that Indigenous governments must follow the laws, policies, rules and customary practices that apply to them.

Record keeping is often central to the outcome of these challenges. Courts expect to see a clear and reliable record of how a decision was made, including, where applicable, agendas, meeting minutes, resolutions, consultation records, decision logs and supporting documentation. If records are incomplete or missing, courts may question the legitimacy of the decision-making process, making it more difficult to defend the decision.

Legal foundations of good governance

For Indigenous leadership, the first questions should be: What gives us authority to make this decision, and what process does that authority require? The answer may come from the Indian Act, a custom election code (see our recent Insight, Avoidable drafting pitfalls in First Nation custom election codes, for more insights into implementing a custom election code for your Nation), a land code, a constitution, a self-government agreement, modern Treaty legislation, bylaws, policies, written procedures or the community’s Indigenous legal orders, customary practices and inherent authority.

Elected leaders have fiduciary obligations when exercising authority on behalf of the Indigenous community. These obligations require leadership to act loyally, honestly, in good faith, impartially and in the best interests of the community as a whole. This typically includes avoiding conflicts of interest and not using the position for personal benefit.

Courts are starting to look beyond the Indian Act or other written laws and policies in their review of Indigenous governance decisions. Courts increasingly look at an Indigenous community’s governance customs – informed by their Indigenous legal traditions – even when unwritten.

Good governance best practices

While there is no single governance model that will fit every Indigenous community, the following core principles are best practices:

1. Identify and follow relevant laws and rules – Before making a decision, leadership should confirm which laws, policies, codes, customs or procedures apply and should follow those rules carefully and document how those requirements were met.
2. Prioritize fair, accountable and transparent processes – Leadership should ensure that affected individuals are given proper notice, relevant information, a meaningful opportunity to be heard and an impartial decision-maker. Procedural rules should be followed carefully, particularly for decisions likely to affect community members’ rights, livelihoods, lands, Treaty rights or participation in governance.
3. Uphold fiduciary duties – Leadership should identify potential conflicts early, disclose them as required and decide how to mitigate them. Decisions involving remuneration, honoraria, expenses, contracts with related parties or use of the community’s property should be approached with particular care.
4. Plan member engagement for major decisions – For significant decisions involving lands, Treaty and Aboriginal rights, major agreements or other matters with a community-wide impact, leadership should identify in advance who must be consulted, what information must be shared, how feedback will be received and how the final decision will be recorded and communicated.
5. Recognize and follow customary practices – Indigenous customary practices and legal orders are more likely to be recognized by the courts where they are grounded in consistently followed practices that reflect broad community consensus. Clear articulation of those practices can reduce uncertainty and strengthen the defensibility of decisions if they are challenged.
6. Maintain clear documentation – Leadership should keep records, such as agendas, meeting minutes, motions, resolutions, consultation records, financial approvals, conflict disclosures and decision logs.

Key takeaways for Indigenous governments

Judicial review risk usually hinges on whether the decision maker had authority, followed the required process and created a reliable record. When leadership and staff can answer those questions before a decision is made, the decision is more likely to withstand scrutiny and less likely to create avoidable delays, costs, or community conflict.

MLT Aikins regularly advises Indigenous communities on governance, elections, membership, lands, consultation, bylaws, policy development and judicial review risk. For support with a governance decision, code or policy, contact a member of our Indigenous Practice Area.

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