Digests

Roseau River Anishinabe First Nation v. Atkinson

T-285-01

2003 FCT 168, Kelen J.

14/2/03

31 pp.

Judicial review of decision of Custom Council of Band (CCB) amending Roseau River Anishinabe First Nation Election legislation (RRAFNE legislation) by reducing term of office of Chief and Band Councillors from four years to two years--Whether CCB "federal board, commission or other tribunal" as defined in Federal Court Act, s. 2--In Sparvier v. Cowessess Indian Band, [1993] 3 F.C. 142 (T.D.), Court stated for purpose of judicial review, Indian band council and persons purporting to exercise authority over members of Indian bands acting pursuant to provisions of Indian Act constitute "federal board, commission or other tribunal" as defined by s. 2--Accordingly, CCB acted as a federal board, commission or other tribunal and subject to jurisdiction of Court--Whether CCB failed to follow procedure prescribed in RRAFNE legislation--Requirements in order to properly amend RRAFNE legislation: CCB must pass resolution authorizing amendment; tribal meeting held to discuss resolution--What constitutes tribal meeting--CCB must provide Band members with adequate notice of tribal meeting--Must also provide forum for Band members to have effective opportunity to comment and discuss proposed amendment--Band members were provided with adequate effective notice of meeting and were given effective opportunity to have input into amendment--Whether CCB owed duty of fairness to applicants and if so, whether CCB breached duty--Decisions made by legislative bodies of general nature based on broad considerations of public policy considered immune from duty of fairness--By contrast administrative decision directed at particular person and affecting rights, privileges or interests of individual will trigger application of duty of fairness--CCB under duty of fairness when amended election legislation--Like other bodies of political nature, CCB should only be held to minimum standard relating to bias: whether members still "capable of persuasion": Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 1213--CCB had legal right to remove applicants from office, and by necessity, CCB members must have had personal opinions about applicants' ability to govern, which does not constitute bias--CCB's actions based on concerns of community and not on improper motives such as personal gain--CCB "capable of persuasion" and onlooker would not have perceived reasonable apprehension of bias--In light of affidavit evidence, CCB did not provide notice directly to applicants--But CCB's failure to give personal notice may be excused if Court satisfied applicants possessed actual knowledge of ongoing proceedings and chose not to participate--Court found Hayden Council had sufficient knowledge of amendment and relevant meetings to have appeared without formal notice because public notices of CCB meetings posted in government office occupied by applicants--Whether amendment applies retrospectively and ends term of Hayden Council--General rule stipulates amendments not to be construed as having retrospective effect unless such construction expressly or by necessary implication required by language of amendment-- Court leery of retrospective legislation and will presume legislation not intended to have retrospective effect when substantially affects vested rights of party--CCB intended amendment to apply retrospectively to applicants' term of office--Such intention made clear at tribal meeting and rebuts presumption against retrospectivity--Application for judicial review dismissed--Federal Court Act, R.S.C., 1985, c. F-7, s. 2 "federal board, commission or other tribunal" (as am. by S.C. 1990, c. 8, s. 1).