As a result of the COVID-19 pandemic, Band Councils may need to make important decisions in a timely manner for the protection of their communities. Among other things, these types of decisions may include entering into agreements with individuals or companies for the provision of emergency services. While present circumstances may require decisions to be made in an expeditious manner, Band Councils should be cautious to ensure that their powers are still being exercised in accordance with the Indian Act (the "Act") and the applicable Regulations.
The Exercise of Powers Conferred on a Band Council
Section 2(3)(b) of the Act sets out the manner in which a Band Council may exercise its powers. It states that, "unless the context otherwise requires or this Act otherwise provides…a power conferred on the council of a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the councillors of the band present at a meeting of the council duly convened".
In other words, for a Band Council to exercise its powers in accordance with the Act a majority of the Band Council must consent to the decision being made at a meeting where quorum has been met.
The clearest way to show the consent of a Band Council is by way of a Band Council Resolution ("BCR"). Any such BCR needs to be signed by a majority of Councillors at a meeting duly convened.
If a Band Council wants to authorize an individual such as a Chief to make specific decisions on behalf of the Band Council, this authorization needs to be contained in a BCR that has been signed by a majority of Councillors at a meeting duly convened. A Band Council should only authorize individuals to make discrete, narrowly defined decisions on its behalf, such as entering into specific agreements for emergency services.
Please note that certain decisions cannot be effected by a BCR, and must be implemented by issuing a by-law. Section 81(1) of the Act sets out a list of purposes for which a Band Council may issue a by-law. Initiatives identified in the Act as being the proper subject of by-laws cannot be implemented through a BCR alone. For a more in depth discussion on issuing by-laws during the COVID-19 pandemic, we invite you to read our colleagues' article titled "COVID-19 and Indigenous Communities: Authority to Restrict Access".
Band Council Meetings during COVID-19
Because section 2(3)(b) of the Act requires that Band Councils exercise their powers at a meeting of council duly convened , failing to do so can affect the validity of a particular Band Council decision.
In W. Downer Holdings Ltd. v. Red Pheasant First Nation, 2012 SKQB 468, the Court ruled that a settlement agreement signed by a majority of the Band Councillors was invalid because it was not signed at a proper meeting of the Band Council, as contemplated by the Act. In that case, the failure of the Band Council to sign the settlement agreement at a meeting duly convened was fatal to the validity of the agreement.
That being said, the requirement that decisions be made a meeting duly convened raises questions about how a Band Council can safely exercise its powers during the COVID-19 pandemic. In a time where social distancing is the best way to combat the pandemic, Band Councils must decide on the safest, most effective way to exercise their powers in accordance with the Act.
In this regard, Band Councils may decide that it is in the interest of public safety to hold all future Band Council meetings by way of teleconference or videoconference. Though the Act does not contemplate Band Council meetings taking place in this manner, we note that 2(3)(b) of the Act only applies "unless the context otherwise requires". In light of the COVID-19 pandemic and the current context that Band Councils are operating under, it is likely that Band Councils will be granted some flexibility in how their meetings are held.
Notably, if a Band Council transitions to holding meetings by way of teleconference or videoconference, they would be acting in line with a number of municipal councils across the country. For example, on March 19, 2020, the Province of Ontario passed Bill 187: An Act to Amend the Municipal Act, 2001 and the City of Toronto Act, 2006, which allows for persons participating electronically in a council meeting to be counted in determining whether quorum has been met. Electronic Band Council meetings would therefore be in step with the ways that some municipal councils have adapted to the COVID-19 pandemic.
It is important to acknowledge that not all Band Councils will have the capacity to hold their meetings by way of teleconference or videoconference due to historic and continuing on-reserve infrastructure deficits and underfunding (i.e. proper teleconference infrastructure, lack of high-speed internet etc.). This creates unique challenges for Band Councils who are trying to ensure the safety of their Councillors while still acting in accordance with the Act and the Regulations. If Band Councils need to exercise their powers during COVID-19 but do not have capacity to hold meetings by way of teleconference or videoconference, they should seek legal advice before effecting any decisions.
If a Band Council is able to hold its meetings remotely, any BCRs that are passed should include a "counterparts" clause. Including a "counterparts" clause in a BCR will allow Councillors to sign their own individual copies of the BCR which, taken together, will be considered one complete document. If electronic signatures can be enabled, then a single PDF version of the BCR can be circulated by email and signed by Councillors over the computer.
Band Council Meetings that are Open to Members of the Band
Section 23(1) of the Indian Band Council Procedure Regulations, C.R.C. c. 950, requires that all regular meetings of a Band Council be open to members of the Band. This creates some difficulties if Band Councils have decided to hold meetings by way of teleconference or videoconference.
In these circumstances, if Band Councils are able to, they should provide call-in details to community members a week or two before Band Council meetings take place. The call-in details could be posted on the Band Council's website, on social media, or in a newspaper.
If it is not feasible to have Band members join Band Council meetings remotely, Band Councils should circulate a summary of the topics to be discussed at the meeting a week or two in advance. Again, this can be done over the Band Council's website, on social media, or in a newspaper. When posting this kind of summary, Band Councils should invite Band members to submit their comments/inquires to the Band Council by way of email or regular mail. Community members' comments/inquiries can then be addressed during the remote Band Council meeting. The outcome of a Band Council meeting, and any decisions made therein, can likewise be circulated to community members in a brief memo after the Band Council meeting is adjourned.
Please note that if community members cannot join Band Council meetings remotely, there will be limited ability to engage in a proper community dialogue. As such, in these circumstances, Band Councils should consider whether important topics that are not urgent can be dealt with at a later date when community members can safely gather together.
The COVID-19 pandemic has created a situation where Band Councils might need to make important decisions quickly. In those circumstances, Band Councils must ensure that they continue to exercise their powers in accordance with the Act and the applicable Regulations. This means ensuring that all decisions are made with the consent of a majority of the Band Council at a meeting duly convened.
Again, Band Councils will need to determine whether Band Council meetings should be held remotely for safety purposes. At the very least, Band Councils should establish a plan in the event that remote meetings become a necessity. Doing so will allow Band Councils to continue governing their communities in a safe and effective manner.
Gowling WLG (Canada) LLP's Indigenous Law practice group would be pleased to assist you with any questions related to Band governance during the COVID-19 pandemic.
 Gamblin v. Norway House Cree Nation (2000), 198 F.T.R. 242 at para 52.