December 18, 2023

The Federal Court’s (lack of) jurisdiction over Indigenous laws

The Federal Court has confirmed that, while it has judicial review jurisdiction over decisions of band councils insofar as they use Indian Act powers (or powers under some other federal law), it lacks jurisdiction over decisions under Indigenous laws (except where such Indigenous laws have been recognized by Canadian law): George v. Heiltsuk Tribal Council, 2023 FC 1705 per Justice Grammond.

Background: A non-Indigenous person, hired as an employee of an on-reserve school, acquired a right to reside on the reserve pursuant to an Indian Act residency bylaw. After he lost his employment, he thereby lost his right to remain residing on the reserve. He did not, however, leave the community.

Heiltsuk Nation has an Indian Act band council, Heiltsuk Tribal Council (HTC). HTC has, however, a dual role: in addition to HTC’s status as a band council, exercising powers under the Indian Act, HTC also acts as part of “joint leadership,” consisting of both Heiltsuk’s traditional chiefs and its elected band councillors. Joint leadership exercises inherent, Indigenous powers pursuant to Ǧvı̓ḷás, or Heiltsuk law. 

HTC issued two band council resolutions (BCR) reflecting decisions of joint leadership; the first BCR stated that the individual had no right to be on the reserve, and requested that he leave Bella Bella (the “First BCR”). The Second BCR, issued after the individual remained in the community while technically being off the Bella Bella reserve, prohibited the individual from being on Heiltsuk Territory “Pursuant to Heiltsuk Traditional Governance and Ǧvı̓ḷás”.  HTC later communicated the BCRs to a school district operating in Heiltsuk Territory that was employing the individual (the “District”).

The individual applied to the Federal Court for judicial review of both BCRs, seeking to have both of them quashed as allegedly unreasonable, and for lack of procedural fairness. [18] Additionally, the individual requested a declaration that HTC lacked power to expel non-Heiltsuk persons from its traditional territory. [23]

The Federal Court dismissed the application:

  1. “The first resolution is not reviewable because it did not affect Mr. George’s rights. His legal entitlement to reside on the reserve ended with his employment, before the resolution was adopted.” [22]
  2. “The second resolution was not made pursuant to powers granted or recognized by federal legislation and is therefore outside the jurisdiction of the Federal Court.” [22]

The Court concluded that, “The interactions between the Council and School District 49 do not involve any public law power and are therefore not properly subject to judicial review, with the result that this Court lacks jurisdiction to issue a declaration regarding them.” [23]

Additionally, the Court declined any declaration about HTC’s lack of jurisdiction relating to its traditional territory, as “the proposed declaration pertains to Canadian law and the Council is not relying on Canadian law.” [23]

A distinction between Canadian law and Indigenous law: The Court referred to “Indigenous law” as, “[28] … law the authority and legitimacy of which are rooted in Indigenous traditions, philosophies and worldviews instead of the Canadian constitution. In this sense, Indigenous law exists independently of any delegation of power from the Canadian legal system.”

The Court recognized some “contact points” between Indigenous law and Canadian law, such as the Indian Actrecognizing that band councillors could be chosen according to “custom”, or the common law and legislation in several provinces recognizing Indigenous “customary” adoption. [29] However, the Court also recognized “matters in respect of which there is no contact point between Canadian and Indigenous law.”

Further, the Court examined several basic principles of administrative law.

  1. One such principle is that judicial review is “available only if the impugned decision affects the applicant’s rights or legal situation”. [35]
  2. Another such principle is that s. 18 of the Federal Courts Act only grants the Court jurisdiction to grant remedies against any “federal board, commission or other tribunal”, which means any body or persons “having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made under a prerogative of the Crown….” [37]
  3. Further, while many decisions by First Nations are of a “public character” and therefore amenable to judicial review, that is not always the case. [43]

Where “the council of a First Nation exercises powers that are not granted or recognized by the Indian Act or other federal legislation, it does not act as a ‘federal board, commission or other tribunal’ and its decisions are not reviewable in the Federal Court….” [40]

The First BCR had no impact on the individual’s legal rights: As a starting point on the First BCR, the Court recognized that “members of the public do not have a right to reside or to be present in First Nations communities governed by the Indian Act….” [46] Since the individual’s entitlement to reside within the reserve “terminated automatically” when his employment ended, [49] the First BCR did not purport to terminated his right of residency; that had already occurred automatically. [50] Therefore, the First BCR did not take away any rights. Any prejudice that the individual suffered was not the result of the First BCR, but rather the consequence of his loss of entitlement to reside in Bella Bella pursuant to the Residency Bylaw. [55]

The Second BCR was not made pursuant to Canadian law: The Second BCR was not amenable to judicial review because it was made “pursuant to a source of authority other than federal legislation”, [60] being “based exclusively on Ǧvı̓ḷás, or Indigenous law.” [62] HTC was not exercising nor purporting to exercise powers flowing from federal legislation nor powers recognized by federal legislation. [64] Moreover, HTC “completely refrained from resorting to the processes or institutions of Canadian law for enforcing the resolution.” [67] The Court noted that, “It is increasingly accepted that the councils of First Nations derive their powers not only from federal legislation, such as the Indian Act, but also from Indigenous law….” [65] The Court recognized that HTC was acting as part of joint leadership, and that, “it would be very difficult to argue that the second resolution would be amenable to judicial review in the Federal Court had it been made by the Hím̓ás acting alone.” [70]

Although the Second BCR was made on a form provided by the federal government for recording BCRs, the Court concluded simply that, “The mere use of that form says nothing about the source of authority for the decision it records.” [68]

Accordingly, the Court concluded that “this Court cannot have jurisdiction to review decisions made solely pursuant to Indigenous law unless the Federal Courts Act is amended.” [73]

Private communications with the District: With respect to HTC’s communications with the District about the BCRs, the Court concluded that such communications were not of a public character: “…the Council did not exercise any compulsory power over the District, but simply relied on persuasion.” [79]

No declaration respecting powers under Indigenous law: Finally, the Court declined to grant a declaration that HTC lacked jurisdiction outside the Bella Bella reserve, relating to its traditional territory, as such a declaration “surely pertains to Canadian law,” and the Court “would not have jurisdiction to issue a declaration pertaining solely to Ǧvı̓ḷás”. [80] HTC was not invoking a power flowing from Canadian law. Therefore, no live controversy existed between the parties. [82]

Conclusion: The Federal Court has recognized that it lacks jurisdiction over Indigenous laws that pre-date the Crown’s de facto sovereignty, and exist independently of federal law. This outcome is logical, as the Crown cannot take inconsistent positions by denying the legal status of Indigenous laws while also undertaking judicial reviews through its judicial apparatus. Indigenous laws should be interpreted and applied by Indigenous institutions. As the Court noted in this case, “there may be valid reasons why Indigenous communities would not want their laws, or certain categories of them, to be interpreted and applied by Canadian courts, including the courts’ lack of familiarity with unwritten Indigenous laws and their philosophical background….” [73]

Ng Ariss Fong, Lawyers was honoured to represent Heiltsuk Tribal Council in this matter, together with co-counsel Edward G. Wong.

George v. Heiltsuk Tribal Council, 2023 FC 1705

Ruben Tillman