¹ Indian and Northern Affairs Canada, Registered Indian Population by Sex and Residence 2003 by McGregor, Eric (Ottawa: Minister of Indian Affairs and Northern Development, 2004)Google Scholar.

² See s. 74 of the Indian Act, R.S.C. 1985, c. 1-5.

³ Please note that in certain cases self-government has been achieved through passage by the First Nations' band of a referendum approving the granting of self-government to the band by the Federal government. In this regard see Sechelt Indian Band Self Government Act, S.C. 1986, c. 27 [Sechelt Act]Google Scholar. However, the present practice would appear to have the Federal government enter into a written Agreement with a particular First Nations' band for the purpose of providing that band with a form of self-government. In turn, the Federal legislature then passes legislation that ratifies this Agreement. See Nisga'a Final Agreement Act, S.C. 2000, c. 7Google Scholar. For an excellent source of material on the First Nations' self-government movement see the internet web site of Nelson/Thomson Learning, “Aboriginal Issues” online: Nelson - Political Science-Canadian Politics on the Web <http://www.nelson.com/nelson/polisci/aboriginal.html>.

⁴ For the purpose of consistency in this discussion, the writer will use the term “band council” when referring to the governing body of a First Nations' band.

⁵ Please note that a First Nations' band council may be chosen in accordance with the custom of the particular band. See s. 2(1) of the Indian Act, supra note 2, where “council of the band” is defined as including a “council chosen according to the custom of the band.” See Indian and Northern Affairs Canada, Governance Discussion Group Manitoba Region (February 12, 2002), online: First Nations Governance <http://www.aincinac.gc.ca/ps/lts/fng/prev/EA_GDG_ManitobaFeb12_e.html>>Google Scholar, where it is stated that, “[t]raditionally in the Anishinabe way of government, the women determined who were going to be the leaders of the community.”

⁶ [1982] 3 W.W.R. 554 (Sask. C.A.) [Whitebear].

⁷ Ibid. at 559.

⁸ See Gilbert v. Abbey, [1992] 4 C.N.L.R. 21 at 23 (B.C.S.C.) [Gilbert].

⁹ See Hawrelak v. Edmonton (City of), [1975] 4 W.W.R. 561 at 584 (S.C.C.), where de Grandpré J., (in dissent), reaffirmed that to ensure the continued existence of civil liberties, such liberties must be protected by, “…the absolutely unimpeachable conduct on the part of those who have been entrusted with the administration of the public domain.” See also Gilbert, ibid. at 23, where Skipp J., stated that, while a member of a band council, the actions of the chief “are subject to strict scrutiny.”

¹⁰ See Lac Minerals Ltd. v. International Corona Resources Ltd., (1989) 61 D.L.R. (4^th) 14 at 26 (SCC) [Lac Minerals], for a concise list of the authorities that discuss the concept of a fiduciary relationship. See also Assu v. Chickite, [1999] 1 C.N.L.R. 14 (BCSC) [Assu].

¹¹ [2005] 2 C.N.L.R. 1 (F.C.) [Annapolis]. See also Williams v. Squamish Indian Band, [2003] 2 C.N.L.R. 390 at 395 (F.C.T.D.) [Williams], where Rouleau J., also applied the trust criteria as set down by Wilson J., in Frame v. Smith, (1987) 42 D.L.R. (4^th) 81 [Frame].

¹² Annapolis, ibid. at 7. See also, Lac Minerals, supra note 10, where the Supreme Court adopted the reasoning of Frame (ibid.), in concluding that the nature of fiduciary obligations is continually expanding with new categories being found. Furthermore, the court adopted the “rough and ready” guide as set out by Wilson J. in Frame, in determining whether a fiduciary relationship has been created.

¹³ Assu, supra note 10 at 24.

¹⁴ Canada (Attorney General) v. Virginia Fontaine Memorial Treatment Centre Inc., [2006] 7 W.W.R. 503 at 518 (M.C.Q.B.).

¹⁵ See Giradet v. Crease & Co. (1987), 11 B.C.L.R. (2d) 361 at 362 (S.C.), where Southin J., in discussing what constitutes a breach of a fiduciary duty stated, “but to say that simple carelessness in giving advice is such a breach is a perversion of words.”

¹⁶ See Gilbert, supra note 8 at 24.

¹⁷ See Re United Buildings Ltd. and Vancouver (City of) (1913), 3 W.W.R. 908 at 909 (B.C. S.C.), where Clement J., in commenting on the decision making power of a municipal council stated that as members of the council, “[t]hey were entitled to use their corporate powers to carry out what they honestly considered was a good bargain for the city. They may be, though I don't suggest for a moment that they are, all wrong: but self-government, it has been said, involves the right to make mistakes.”

¹⁸ See Regina ex rel Anderson v. Hawrelak (1965), 53 W.W.R. 257 at 269 (Alta. C.A.), appeal to the Supreme Court of Canada dismissed, (1966), 55 W.W.R. 320 (S.C.C.), where Smith C.J.A., in quoting Lord Cranworth in Broughton v. Broughton (1855), 5 De G M & G 160, 25 LJ Ch 250, 1 Jur (NS) 966, 43 ER 831, where the learned Lord stated that, “[t]he rule is based on a rule of human nature, that no person having a duty to perform shall be allowed to place himself in a situation in which his interest and duty may conflict.” See also Fisher v. Moll (1979), 8 M.P.L.R. 266 at 269 (Ont. S.C.).

¹⁹ See Annapolis, supra note 11 at 8. See also, Assu, supra note 10 at 25 and Williams, supra note 11 at 396.

²⁰ C.R.C., c. 950.

²¹ The Nisga'a Final Agreement was signed on behalf of the Nisga'a Nation and Her Majesty in right of British Columbia on April 27, 1999 and on behalf of Her Majesty in right of Canada on May 4, 1999.

²² Ibid. at s. 9(m). See s. 29(5) of the Constitution of the Nisga'a Nation, which came into effect on May 11, 2000 and which states that, “Wilp Si'ayuukhl Nisga'a must enact and maintain conflict of interest rules for elected and appointed officials of Nisga'a Government that are comparable to standards generally accepted for governments in Canada.” Further, pursuant to s. 62 of such Constitution, the term, “Wilp Si'ayuukhl Nisga'a” means “the assembly of Nisga'a Lisms Government that exercises the legislative authority of the Nisga'a Nation.”

²³ [1995] F.C.J. No. 1020.

²⁴ Ibid. at para. 31.

²⁵ See Sechelt Act, supra note 3 as an example of self-government legislation that mirrors a municipal governance format.

²⁶ In the case of the municipality it is the corresponding provincial legislature, and in the case of a First Nations' band it is the relevant Federal legislation. In the latter case, see s. 74 of the Indian Act, supra note 2. See also Whitebear, supra note 6 at 560, where Cameron JJ.A, in commenting on the function of a First Nations' band council stated that, “[i]n summary, an Indian band council is an elected public authority, dependent on Parliament for its existence, powers and responsibilities, whose essential function it is to exercise municipal and government power—delegated to it by Parliament—in relation to the Indian reserve whose inhabitants have elected it…”

²⁷ 21 B.C.L.R. 326.

²⁸ Ibid. at 336-337. See also Francis v. Mohawk Council of Kanestake, [2003] 3 C.N.L.R. 86 at 94 (F.C.T.D.), where Martineau J., comments on the similarity that exists between a First Nations' band council and the council of a municipality.

²⁹ See R. v. Gladue (1999), 171 D.L.R. (4^th) 385 at 415 (S.C.C.), where Cory J., and Iacobucci J., in jointly discussing the inappropriateness of applying the current concept of penal sentencing with respect to aboriginal offenders stated, “[w]hat is important to recognize is that, for many if not most aboriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communities.”

³⁰ (1999), 176 D.L.R. (4^th) 35 (F.C.A.).

³¹ Ibid. at 56.

³² See s. 10 (control of and membership), s. 20(4) (allotment of reserve land to the band members), s. 52.1 payments to support infant children), and s. 64(f) (approval of capital expenditures for such things as the purchase of livestock, farm implements etc.), of the Indian Act, supra note 2. See also clause 41 (laws may be made by the band, “to preserve, promote, and develop Nisga'a culture and Nisga'a language”), clause 56 (“make laws in respect of the use, possession, and management of assets”), clause 75 (“make laws in respect of solemnization of marriages within British Columbia, including prescribing conditions under which individuals appointed by Nisga'a Lisims Government may solemnize marriages”), clause 86 (“may make laws in respect of the authorization or licensing of individuals who practice as aboriginal healers”), and clause 94 (custody of children”), of The Nisga'a Final Agreement, supra note 21.

³³ See Lac Minerals, supra note 10 at 63, where Sopinka J., affirmed that, “the one feature, however, which is considered to be indispensable to the existence of the relationship, and which is most relevant in this case, is that of dependency or vulnerability.”

³⁴ Unfortunately, the application of trust principles in the context of municipal government has at times defied agreement by the judiciary. As to those judicial authorities that support the finding of such a trust relationship see MacIlreith v. Hart (1907), 34 S.C.R. 657 at 670; Paterson v. Bowes (1853), 4 Gr. 170 at 180 (Chan.); Patchell v. Raikes (1904), 7 O.L.R. 470 at 477 (C.A.) and McMillan v. Winnipeg (City) (1919), 1 W.W.R. 591 at 592 (Man. K.B.). As to those judicial authorities that do not support the finding of such a trust relationship see Gallagher v. Armstrong, [1911] A.L.R. 443 at 453 (S.C.). For the most part, the judiciary has held to the belief that if such a trust relationship exists, it does so in a “broad” sense and not in a “legal” sense. See Robertson v. Montreal (City of) (1915), LII S.C.R. 30 at 63; Norfolk v. Roberts (1913), 13 D.L.R. 463 at 466 (Ont. S.C.); See Seaton v. Vancouver (City) (1993), 14 M.P.L.R. 247 at 254 (B.C. S.C.) and Scarborough (Borough) v. R.E.F. Homes Ltd. (1979), 9 M.P.L.R. 255 at 257 (Ont. C.A.).

³⁵ [1994] 1 C.N.L.R. 182 at 198 (F.C.T.D.).

³⁶ Ibid. at 198-99. See also Assu, supra note 10 at 29, where Romilly J., took into consideration the fact that given the small population size of the band, “it would be practically impossible for the Band or its Council to operate if Councillors had to withdraw from all matters involving relatives.” See also Duncan v. Band Council Behdzi Ahda First Nation, [2004] 1 C.N.L.R. 106 at 112 (F.C.T.D.), where Gibson J., commented on the fact that, “[t]here was no evidence before the Court of a custom of the Behdzi Ahda First Nation that a Councillor such as Jennifer Duncan duly elected with the community having knowledge of her ongoing pursuit of studies outside Colville Lake was required to officially request a leave of absence from council.”

³⁷ See Annapolis, supra note 11 at 8, where Kelen J. acknowledged that conflict of interest rules must be relaxed in small bands where relatives of the Chief and Councillors will necessarily be involved in band business.

³⁸ R.S.A. 2000, c. M-14 [Métis Act].

³⁹ Ibid. s. 8 which permits for the formation of a settlement council for the purpose of administering the affairs of the settlement. By s. 2(1) a Métis settlement is a corporation and by virtue of s. 3(1), each settlement, “has the rights, powers and privileges of a natural person.” Furthermore, by s. 51 the settlement council may exercise the powers as set out in Schedule “A” which provides amongst other matters, the power to “make bylaws for the general governance of the settlement area” and “for the internal management of the settlement.” As well, by s. 3(2)(a) a settlement council may, subject to certain restrictions, engage in commercial activities, make investments, lend and borrow money, guarantee loans and the repayment of interest.

⁴⁰ See The Municipal Government Act, R.S.A. 2000, c. M–26Google Scholar. Please note that unlike the prevailing municipal regime where each municipality enjoys a large degree of autonomy, the Alberta legislature chose to expand the level of self-government vis-à-vis the Métis settlements, to include an overriding statutory body called a “General Council”, see s. 214(1) of the Métis Act, supra note 38, which states that a Métis settlements General Council is established as a corporation. This General Council is comprised of all of the councillors of each Métis settlement council; see s. 214(2) (ibid.). Together these members form a statutory body that has the right to pass policies governing the various aspects of the Métis settlements, but primarily the use of the land, wildlife and natural resources. Furthermore, pursuant to s. 3(3)(b)(i) of the Métis Act, the powers as given to a settlement council under s. 3(2) may only be exercised if authorized by a General Council policy. In this manner, each Métis settlement is bound by the common will of all settlement councils as represented by the General Council. The result of this commonality is that no particular settlement may make laws or policies that may further their own particular needs to the detriment of the general Métis populace in the settlements. In this manner, each Métis settlement is bound by the common will of all settlement councils as represented by the General Council.

⁴¹ See s. 39 of the Métis Act, supra note 38, which provides that a member of a settlement council must disclose to the settlement council any financial interest that the councilor has in a matter before the council, and must not take part in any of the deliberations of the council concerning such matter. See also s. 39.1, which deals with situations where a member of a settlement council is party to an agreement with the settlement. See Parenteau v. Calliou, [2000] A.J. No. 504 (Q.B.), where the Court dealt with a situation involving the disqualification of a member of the governing council of the Métis settlement due to a personal conflict of interest.

⁴² See Ch. 18 of the Nisga'a Final Agreement, supra note 21. For a discussion of municipal servicing issues and First Nations' bands see “Municipalities and First Nations: Servicing and Development Issues” (2004) 1:17Digest of Municipal and Planning LawGoogle Scholar.

⁴³ For an example as to how this can be accomplished, see the Nisga'a Nation Fiscal Financial Agreement between the governments of Canada and British Columbia and the Nisga'a Nation dated May 11, 2000.

⁴⁴ Please note that in October 2003, the Premier of the Yukon government, the Grand Chief of the Council of Yukon First Nations, and the Chiefs of self-governing Yukon First Nations, entered into a Memorandum of Understanding on Cooperation in Governance in the Yukon. This Memorandum of Understanding resulted in the passage by the Yukon government of the Cooperation in Governance Act, S.Y. 2005, c. 6Google Scholar. This statute recognizes that First Nations' who are self-governing and the Yukon governments both have jurisdiction and authority over many similar matters. The statute further created what is termed the “Yukon forum”, which is the place for dialogue among these governments, to encourage cooperation and collaboration in governance within the Yukon's boundaries.

⁴⁵ See Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159, and Guerin et al v. The Queen, [1984] 13 D.L.R. (4^th) 321 at 334 (S.C.C.). See also Haida Nation v. British Columbia (Minister of Forests), [2004] S.C.J. No. 70 at para. 18 (S.C.C.), where McLachlin C.J., discussed the subtle distinction between a fiduciary duty and a trust in terms of the Federal Crown and First Nations' bands.