Federal Court Procedure – Aboriginal Law Case Study A.2 Federal Court Workshop

1. Federal Court Procedure – Aboriginal Law Case StudyA.2 Federal Court Workshop CBA Legal Conference 2014 St. John’s Newfoundland

2. Case Study:Judicial Review Proceedings and First Nation Governance Disputes

3. 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

4. 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!

5. Grounds for Review • Section 18.1(4) enumerates grounds for review which include: • 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)

6. 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

7. 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

8. 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

9. 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

10. 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

11. Thank you! Krista Robertson 816 - 1175 Douglas Street Victoria, BC V8W 2E1 250 475.2010/250 893.8710 krobertson@jfklaw.ca