The Federal Court recently weighed into a hereditary leadership dispute involving the Da’naxda’xw First Nation (DFN) in British Columbia, ruling that neither group had legal authority to govern the First Nation. In Da’naxda’xw First Nation v Peters , two parties claimed to be the rightful governing authority of the northern Vancouver Island First Nation: the Glendale Band Council (GBC) and the Hereditary Chief Council (HCC). The GBC is comprised of a hereditary Chief, Gordon Glendale, and two councillors. The HCC consists of 4 hereditary Chiefs (including Gordon Glendale), and was created by a consent order that arose as a result of a governance mediation in 2017 (the “Consent Order”). The DFN has approximately 226 members, the vast of majority of which reside off reserve.
DFN had been governed by the GBC for some time, but in 2017 DFN re-assessed its leadership structure through a governance review and vote. DFN did not previously have a written governance or election code. DFN considered three governance models: (1) a Hereditary Chief and two elected councillors; (2) Hereditary Chiefs supported by a Family Leadership Council; and (3) an Elected Chief and two Elected Councillors. DFN voters overwhelmingly supported the option of Hereditary Chiefs supported by a Family Leadership Council. The results were announced on March 22, 2017 (the “Governance Review Results”).
Following the announcement of the Governance Review Results, a mediation was held in regard to a previous judicial review application concerning governance. The mediation resulted in the Consent Order, which established the HCC and tasked it with creating a governance code by December 1, 2017 to be presented to the community for approval. However, timelines were postponed and the HCC never established a governance code. Complicating matters, both the GBC and the HCC claimed to be the rightful governing authority of DFN in the interim, and the HCC purported to suspend Gordon Glendale from the HCC because of alleged financial irregularities, to which Mr. Glendale claimed he was not given the chance to respond. Ultimately, the HCC and GBC each applied for judicial review to confirm their respective positions.
Justice Strickland of the Federal Court ultimately ruled that there was no broad consensus in the community supporting either governing model and ordered a vote be held among DFN membership to identify and appoint interim Hereditary Chiefs and interim members of the Family Leadership Council pending the development of a governance code. This case provides a good overview on the law of custom in First Nations’ governance and highlights the fact that custom is not frozen in time and needs to continue to reflect the will of the majority of the community.
The governance of First Nations in Canada can be elected, hereditary, or the combination of the two. Depending on the regime, this can be determined through (i) the election regimes set out in the Indian Act or the opt-in First Nations Elections Act (ii) a community’s constitution if they have a self-government agreement or (iii) using a community’s own customary election system which can be written or unwritten.
This case was focused on band custom, which can be developed through repetitive acts in time or through a single act such as the adoption of an electoral code. The Court provided a review of the general principles on band custom and governance, including:
- There must be broad consensus among the membership for the custom, which requires evidence demonstrating that the custom is firmly established, generalized, and followed consistently and conscientiously by a majority of the community;
- Custom is not frozen in time but any change requires a broad consensus of the membership. The Chief and Council along cannot determine that a change in circumstances comprises a new custom;
- Custom may be demonstrated by a one-time event like a referendum or majority vote, by a series of events, or possibly acquiescence; and
- The inquiry into whether a custom enjoys broad consensus is fact and context specific and the evidence may demonstrate that there is no consensus.
In applying these principles to the facts, Justice Strickland determined that there was not broad community consensus for the HCC or the GBC and neither had the lawful authority to govern the First Nation.
With respect to the HCC, it was noted that DFN’s custom for governance is in a transition period and that DFN never endorsed sole leadership by the HCC. DFN was interested in a leadership change, but with the expectation that the HCC would create a new code of governance that ultimately could be accepted or rejected by the community through a referendum. The Court further noted that the HCC’s present form was the result of the Consent Order, rather than the final manifestation of the governance form that DFN had voted in favour of adopting. The fact that HCC had in fact taken on a governance role after 2017 did not establish a custom that the band itself had knowingly agreed to. Likewise, DFN’s lack of opposition to the HCC did not indicate acquiescence to HCC’s governing role, because it did not rise to a choice “generally acceptable to members of the Band, upon which there is broad consensus” .
The Court next considered whether the GBC had lawful governing authority. The GBC claimed to enjoy broad consensus as the lawful governing authority of the DFN dating back to 1987. The Court held that even if there had been broad consensus historically, it had diminished in recent years, and the Governance Review Results demonstrated that it no longer existed.
The Consent Order outlined that the GBC’s purpose was to hold a temporary, limited role in governance while the HCC was preparing a new governance code. The Court held that there was no evidence that the Glendale Band Council was actually conducting any band governance after the Governance Review. Instead, the evidence indicated that Mr. Glendale had been working with other HCC members to conduct DFN band business until he was suspended and that the two councillors did not make any attempt to fulfill their roles until after this suspension. The Court considered the most accurate picture of DFN’s desired leadership structure to be reflected in the 2017 Governance Review Results, which was not the model proposed by either the HCC or the GBC.
On the issue of the suspension of Gordon Glendale from the HCC (who was also the Hereditary Chief of the GBC), the Court held that because the HCC was not the legal head of the DFN, it could not suspend Gordon Glendale. Further, his suspension was procedurally unfair because he received no requisite notice and was given no chance to counter the alleged financial misappropriation.
Remedies and Conclusion
This case presents some unusual circumstances. Having found that neither claimant actually had the lawful authority to govern DFN, the Court needed to find a workable interim governance solution. The Court ordered that an immediate DFN membership meeting be held to confirm the desire to change the custom to governance by Hereditary Chiefs supported by Family Leadership Council prior to the development of a governance code, and to select interim members of the Hereditary Chiefs and the Family Leadership Council to fulfill those roles until a governance code can be presented to the DFN for consideration and ratification (within at least 1 year of the members meeting). The suspension of Gordon Glendale from the HCC was set aside, as the HCC lacked the necessary authority to suspend him, and did so in a procedurally unfair way. Gordon Glendale, Robert Duncan, Norman Glendale and Bill Peters were tasked with running the day to day administration of DFN in their traditional capacity as hereditary Chiefs, until the interim Hereditary Chiefs and Family Leadership Council are in place.
This case highlights the limited role of the Court in resolving governance disputes within First Nations and the complex governance issues that can arise particularly when there is not clear consensus within the community. This case is one of several recent Federal Court cases considering First Nation governance . It highlights the fact that governance of First Nations can take different forms but there must be continued broad community consensus supporting any custom for selecting the leadership of the First Nation. This is likely to be an area of increasing focus as some First Nations work to revitalize traditional governance systems.