CAPACITY OF FIRST NATIONS TO CONTRACT A REVIEW OF RECENT CANADIAN CASE LAW WITH SPECIAl REiFERENCE TO SASKATCHEWAN

Transcription

1 CAPACTY OF FRST NATONS TO CONTRACT A REVEW OF RECENT CANADAN CASE LAW WTH SPECAl REiFERENCE TO SASKATCHEWAN ) V.N.Brock Folkersen NorSask Forest Products nc. 201 ~ 8th St E... Saskatoon. a.sk.s7hop2 Ph: Fax:

2 CAPACTY OF FRST NATONS TO CONTRACT A REVEW OF RECENT CANADAN CASE LAW WTH SPECAL REFERENCE TO SASKATCHEWAN TABLE OF CONTENTS. NTRODUCTON 1. BANDS AND BAND COUNCLS 2. TE N~ OF A BAND 4 V. TE CAPACTY OF A BAND AND A BAND COUNCL ) A. TO CONTRACT 5 B. TO OWN PROPERTY 8 1. The right to own shares or to be a member ofa corporation The Right To Become a Registered owner ofland in Saskatchewan 9 3. The Capacity to Become the Registered Owner ofa Motor Vehicle Tribal Councils 10 V. THE POWERS EXERCSABLE BY A BAND COUNCL 11 V. PROCEDURAL REQUREMENTS FOR BAND COUNCL POWERS 14 V. SUMMARy 16 ) "

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4 . NTRODUCTON The purpose of this paper is to examine the capacity of First Nations in Canada to enter into contractual obligations. This must necessarily include an examination oftheir capacity generally at law, including the nature oftheir capacity to incur contractual or civil liabilities which arise from their activities. The scope ofthis analysis on capacity will be restricted to an examination ofthe provisions ofthe ndian Act and recent decisions ofcanadian Courts. Admittedly, any attempt to define the capacity ofa First Nation (or ofan ndian Band, as that term is defined in the ndian Act) by reviewing Canadian Case Law must accept two very substantial limitations. Firstly, it has only been in the last 15 years that our courts have grappled with the primary questions oflawfor there are few decisions on this area reported prior to This means that the process ofinterpreting the law as it applies to First Nations is still a very young process. Many questions remain unanswered in any definitive way. Secondly, the law as it has been applied to date seems incomplete from a conceptual viewpoint. That is, our courts have generally found that ndian Bands are "creatures of statute" whose essential function is to exercise power which has been delegated to it by Parliament. 1 However, as pointed out by Jack Woodward in Native Law, 2 at page 17: "The reality that has always faced governments in Canada is that when the settlers came, the land was already occupied by self-governing aboriginal people. Each ofthe original self-governing groups became a band. (Accordingly,) An ndian band, as a community with an existence independent ofthe ndian Act, is something more than a "creature ofstatute". ) 1 Whitebear ndian Council y. Carpenters Provincial Council ofsaskatchewan [1982] 3 C.N.L.R. 181; [1982] 3 W.W.R. 554; 15 Sask. R 37 (C.A.) 2 Carswell, 1989, looseleaf

5 2 Our Courts have been slow to address the question ofcapacity of First Nations from an inherent perspective, rather than only from the Legislative perspective. What the extent ofthat inherent capacity might be is not the purpose ofthis paper but it is mentioned only to indicate a limitation. in this paper. ) n. BANDS AND BAND COUNCLS The term "First Nation" is not found within the ndian Act, nor does there appear to be a recognized definition ofthat term within the current jurisprudence in Canada. n common usage it is substituted for the statutory term "ndian Band" but will carry a meaning greater than that statutory term. Because the case law interprets the provisions ofthe ndian Act, the terminology which is used by the courts is the language ofthe statute, namely "ndian Bands" and "Band Councils" and it is those terms which will be used within this paper. Section 2(1) ofthe ndian Act defines a "band" as a body ofndians for whose use and benefit lands have been set apart, moneys are held by the Crown or which has been declared to be a Band by the Governor in Council. A "council ofthe band" or "band council", is defined in that same section as meaning the Chiefand Council ofa Band, chosen by the Band Members either by elections according to sec. 74 ofthe Act or according to the custom ofthe Band. n order to clarify the nature ofthe band and the band council, our courts have generally compared them to municipal councils who are "creatures ofstatute" and who draw their powers and authority from their respective statutes. 3 The Act gives certain powers to the Band and certain powers to the Council ofthe Band, and each must exercise those powers in accordance with the statute. 3 See Footnote 1, page 559

6 3 Nevertheless, it would appear that there may well be a certain separation between a Band and a Band Council. n discussing the role ofa band council in actions involving its band, Jack London in ndibn Law states at p. 397: "An action by or against a band must be distinguished from an action involving only the Band Council. The need for this distinction arose in Prior to that date the ndian Act contained the following definition of"band" which resolved the problem: "band" means any tribe, band or body ofndians...and, when action is being taken by the band as such, means the band in council." ) Current Section 2(3) ofthe ndian Act (which is discussed in greater detail in Part V ofthis paper), provides that: (a) a Band is to exercise its powers through the consent ofa majority ofits electors; and (b) a Band Council is to exercise its powers through a majority ofits councillors. This section seems to impose a separateness ofexistence between a Band and a Band Council, with each having separate powers to be exercised in an independent manner. n P.S.AC. y, Francis, 4 the Public Service Commission was granted certification as the bargaining unit for employees ofthe S1. Regis Band Council. A question arose as to whether it was the Band or the Band Council that was the employer. The Canada Labour Relations Board ruled that it was the Band Council that was the employer. The Federal Court ofappeal held that the Band Council could not be an employer under the Canada Labour Code because a Band Council was not a legal entity. The Supreme Court decided that the Band Council was a legal entity and upheld the Board's finding that the Band Council was the employer. The court was very precise in stating that the statutory body created by sec ofthe ndian Act and which is empowered under sec was the Band Council. With respect to the apparent dichotomy between the Band and its Council, Martland, JA. stated at p. 98 that: 4 P.S,AC. y. Francis [1982] 2 S.C.R. 72; [1982] 4 C.N.L.R. 94; (sub nom S1. Regis ndian Band Council v. P.S.AC.) 5 Sec. 74 provides for the election ofa Chiefand Council by the electors ofthe Band 6 Sec. 81 gives certain powers to the Band Council with respect to the making ofby-laws

7 4 "The decision as to whether the Councilor the Band should be regarded as the employer was one which is within the jurisdiction ofthe Board to determine under s. 118 (p) ofthe Code, previously cited. t was for the Board to decide who was the employer, and the Board did so." n Ochapowace First Nation v. Araya,7 the Ochapowace ndian Band took a representative action to obtain custody oftwo childrenunder The Children's Law Act, S.S at p. 84: The Court stated "First, it is unclear as to what sort oflegal entity made this application. Was it a statutory body created by the ndian Act, R.S.C. 1985, c.l-5, with only the powers conferred by that Act, or was it the approximately 1,000 members of the Band bringing a representative action... " Both ofthese decisions seem to make it clear that a Band Council is distinct from its Band in a more fundamental manner than is a Rural Municipality Council from its Rural Municipality Corporation. D. THE NAME OF A BAND Thendian Act doesnot specify the procedure for a Bandto establishthe name by which it chooses to be known. Section 8 ofthe Act does require the Departmentto maintain a "Band List" which is a list ofthe members ofa Band determined in accordance with the Act. fthe Band has assumed control ofits Membership as provided is s. 11, then the Band will maintain this list in accordance with the Band's own membership rules. This Band List,. by implication, will also contain the name ofthe Band and the Band Number which the Department has assigned to each Band for further identification. Withrespect to recording the name ofthe Band, the procedure which appears to be followed by the Department ofndian and Northern Affairs (DAND) is that it will'record the name or a change of name ofa Band on the Band List ifthe request is authorized by a Band Council Resolution. 7 Ochapowace First Nation v. Araya [1995] 1 C.N.L.R. 75 (Sask. C.A.)

8 A Band name is not like the name ofa Corporation. Woodward 8 5 states: "A company, being an artificial legal person, must have a precise and unique name by which it may be identified. A band, on the other hand, is not artificial. Most bands existed before their status as legal entities was confinned under the ndian Act. The name by which a band may be identified is not limited by statute as is the case with companies." "The words "Band" or "ndian Band" are not necessrily part ofthe name ofa band." V. THE CAPACTY OF A BAND AND A BAND COUNCL A. TO CONTRACT One ofthe early important decisions on the capacity ofan ndian Band was Mintuck y. Valley River Band No. 63A. 9 n that case the band was sued in its own name for the tort ofinterference with contractual rights. n issue was whether the Band was a legal entity capable of being sued in its own name. The trial judge held that the Band was not a legal entity and therefore made an order, at the ) conclusion ofthe trial, that required the Chief and Council ofthe Band to represent the Band in the defence ofthe action. On appeal to the Manitoba Court ofappeal, the Court upheld the decision of the trial judge and stated that the representation order was made correctly. However, Guy, J.A. in giving judgment indicated at p. 311 that "the band could well be a suable entity". Nevertheless, the decision seems to have been taken to stand for the proposition that a Band is not a legal entity and lacks the capacity to sue or be sued in its own name. See for example Bannon y. peryaisl0 wherein the Court referred to Mintuk and made a representation order because ofthe "lack ofclarity" in the decisions. Also see Otineka DeyelQpment CQrporation Limited y. R,11 wherein the court, in stating that The Pas ndian Band was a self-governing entity, qualified that statement at p. 1235, footnote 1, in the following manner: 8 See Footnote 2, ndian Law, p. 418: 9 Mintuk v. valley River Band No. 63A [1977] 2 W.W.R. 309 (Man. C.A.) 10 Bannon y. Pervais (1989) [1990] 2 C.N.L.R. 17; 68 D.R. (2d) Otineka Deyekwment Corporation Limited y. R, (1994) 94 D.T.C. 1234

9 6 " use that word "entity" as it is used in paragraph 4 ofthe Notice ofappeal, which is admitted in the Reply. t is common ground, however, that it is probably not an entity in the sense ofbeing a juridical person. The tenn is used, believe, in a somewhat looser and colloquial sense ofa separate and identifiable but unincorporated body or group ofpersons. t is not necessary, for the purposes of these appeals to reach a concluded view on the point". The Saskatchewan Court ofappeal in Kucey v, Peter BaJlantyne Band Council,12 rejected Mintuk and concluded that an ndian Band Council, though not a corporate entity, could be sued in its own name. Wakeling, la., for the court, referred to the Supreme Court decisions in P.S.A.C. v. Francis. 13 and Nor. Pipeline Aiency v. Perehinec l4 and stated at p. 440: "These cases have made it clear that where entities such as ndian band councils are given significant rights to contract and incur legal obligaions in the course offulfilling their statutory mandate - as described by this court in Whitebear ndian Council v. Carpenters Prov. Council of Sasle. [1982] 3 W.W.R. 554, 135 D.L.R. (3rd)128, 15 Sask R 37 (C.A.) - such entities may sue or be sued in their own name. They have an existence in the law which is beyond that oftheir individual members." n P.S.A.C. v. Francis,S the Supreme Court ofcanada considered the capacity ofan ndian Band Council to be an employer and held, per Martland J., for the Court: (a) "Section 74 ofthe ndian Act contemplates the creation ofa statutory body, the council, to be selected by elections to be held in accordance with the Act. While the Act does not provide that this body shall be incorporated, it does grant to this body substantial legislative powers which, ifexercised, would require the employment ofstaffto secure the implementation ofits by-laws." (p ) (b) "The Band Council is a creature ofthe ndian Act." (p. 98) (c) "n the absence ofanything to show a contrary intent, the legislature must be taken to have intended that the creature ofthe statute should have the same duties and the same liabilities as the general law would 12 Kucey v. Peter Ballantyne Band Council [1987] 3 C.N.L.R. 68; [1987] 3 W.W.R. 438; 57 Sask. R. 29 (C.A.) 13 See Footnote 4 14 Nor. Pipeline Ajencyv. Perehinec [1983] 2 S.C.R. 513, [1984] 2 W.W.R 385 S See Footnote 4

10 7 impose on a private individual doing the same thing." (p. 98) n Whitebear Band Council y. C.p.C.s.,16 Cameron, J.A. considered the nature ofa band council and found that as "municipal councils are 'creatures' ofthe legislature ofthe Provinces, so ndian Band Councils are the 'creatures' ofthe Parliament ofcanada.", and: "More specifically, s. 81 ofthe Act clothes ndian band councils with such powers and duties in relation to an ndian reserve and its inhabitants are usually associated with a rural municipality and its council: " (p.559) "n summary, an ndian 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 ndian reserve whose inhabitants have electedit" (p ) n Clow Darling Ltd. y. Big Trout Lake Band et al,17 and Francis decisions, among others, and made the following disposition: the court considered the Kucey, Whitebear " find that the Big Trout Lake Band being a creature of the ndian Act, with expressed legislative authority, has a capacity to function and assume obligations which is separate and apart from its individual members. n this case the statutory authority provides it with the legal status to sue or be sued in its own name and a representation order is unnecessary." (p. 9). n Telecom Leasing Canada (TLC) Limited v. Enoch ndian Band,18 the Alberta Queen's Bench held that an ndian Band had the power to contract and enter into commercial agreements in its own name. n summary, there seems little doubt but that a Band Council is a statutorybody with the capacity: (a) (b) (c) to enter into contracts and commercial transactions in its own name, to attract the same duties and liabilities as the general law would impose on a private individual doing the same thing, and to sue and be sued in its own name. ) 16 See Footnote 1 17 Clow Darling Ltd. y Big Trout Lake Band [1990] 4 C.N.L.R. 7; 70 O.R. (2d) 56 (Ont. D.C.) 18 Telecom Leasing Canada (TLC) Ltd. y. Enoch ndian Band ofstony Plain ndian Reserve No. 135 [1993] 1 W.W.R. 373 (Alta. Q.B.)

11 8 B. TO OWN PROPERTY Given the extensive capacity granted to Bands and Band Councils by the ndian Act, including the ability to enter into commercial transactions as legal entities, it would seem to follow that they will have the right to own property. Pursuant to sec. 81(l)(a) ofthe ndian Act, the Band Council has the power to provide for the health ofresidents on the reserve and for it to exercise that function will reasonably require it to acquire and own health facilities and resources. The same is true for many of the subsequent powers enumerated in that section. Accordingly, the issue is not so much the right to own property but rather the right to be registered within the legal system as the owner of its property. t is that registration and acceptance of ownership by the law which brings with it those rights and obligations which are a necessary part ofownership. 1. The right to own shares or to be a member ofa corporation ndian Bands will often exercise their commercial activities through corporations and the courts have accepted ndian bands as having the right to own the shares of capital stock issued by those corporations. 19 This apparent acceptance ofa Band's right to hold in its own name securities ofa corporation seems to be justified on the following authority: (a) Sec. 25 ofthe Business Corporations Act. permits a corporation to issue shares to "persons". 19 See Footnote 11 and Kinookimaw Beach Assoc. y. R. [1979] 6 W.W.R. 84; leave to S.C.C. refused; 1 Sask. R. 179N

12 9 (b) Sec 2(l)(w) ofthat same Act defines a "person" as including "an individual, partnership, association, body corporate, trustee, executor, administrator or legal representative". While a Band is not an individual, partnership or body corporate, it would seem to fall within the definition ofan "association" which is defined in The Canadian Law Dictionari as a "body of persons not invested legally with corporate status". This position seems to have been accepted in R y. Peter Ballantyne Band 21 where the Saskatchewan Court ofqueen's Bench found that the Peter Ballantyne Band came within the definition of"persons" in a by-law where "persons" was defined as including "corporations, associations, or other aggregations ofindividuals". The definition of "person" as found in The Business Corporations Act is also found in The Non Profit Corporations Act ofsaskatchewan (as well as the Canada Business Corporations Act) which would on the same interpretation allow an ndian band to be a "member" ofa non-profit corporation The Right To Become a Registered owner ofland in Saskatchewan There do not appear to be any reported decisions in Saskatchewan on the capacity ofa Band to be a registered "owner" ofland or ofan interest in land pursuant to The Land Title's Act. Sec. 2(p) of that Act defines an owner as "a person or a body corporate" and provides no definition for "person". The nterpretation Act of Saskatchewan defines a person as including a corporation. Accordingly, it does not appear that a Band or Band Council can come within the definition of an "owner" ofan interest in land under The Land Title's Act. Any interest in land which a Band does acquire may however be held by a Band- owned Corporation , Datinder S. Sodhi 21 R. y. Peter Ballantyne Band [1987] 1 C.N.L.R.; 67 (Sask. Q.B.) 22 However see ndian Law, supra, at p.21 where the author indicates that a band may not be eligible to be a shareholder ofa company incorporated pursuant to the Company's Act of British Columbia.

13 3. The Capacity to Become the Registered Owner ofa Motor Vehicle 10 n R v. Peter Ballantyne Band,23 Noble, J held that a band could be the registered owner ofa motor vehicle, notwithstanding that The Vehicle"s Act as it then was, provided only for a motor vehicle registration to be issued to a "person". n summary, there would appear to be an acknowledgement by the Courts that an ndian Band does not fit very well within the usual categories oforganizations recognized by the common law and that recourse will be had to fundamental concepts in order to achieve the proper result. So, in R.v. Peter Ballantyne Band,24 Noble, J, in making his decision, first determined that the fundamental nature ofa Band was a statutory entity with "wide powers ofownership"2s and found that the Band was "clearly an entity that can own property including motor vehicles".26 There will be gaps in the procedural rules ofprocess and where necessary the gaps will be bridged, as they were in Kucey v Peter Ballantyne Band Council.2 7 See the comments ofwakeling, JA. at p. 440: "However, because [the Band Council] was not a corporate entity, there was a gap in the Queen's Bench rules relating to discovery, which gap [the chambers Judge] was entitled to bridge by the authority given in s. 13 ofthe Queen's Bench Act. " 4. Tribal Councils ndividual First Nations have generally, in recent years, joined together to form tribal councils, in order to pursue aims and objectives common to their group. The ndian Act does not expressly deal with associations ofbands or Band Councils and in the absence ofsuch statutory creation, those associations will not ofthemselves be legal entities, capable ofcontracting or maintaining court actions in their own name. Unless the individual First Nations cause that tribal council to achieve corporate status, the association itself will have no status at law in its own right. The Tribal Council S See Footnote 21 See Footnote 21 bid., p. 68 bid., p. 68 See Footnote 12

14 11 will simply be an unincorporated association ofgovernmental Bodies with the same status within the common law as any other such group. V. THE POWERS EXERCSABLE BY A BAND COUNCL Being a "creature ofstatute" it would seem that a band council may only exercise those powers which have been granted to it pursuant to the ndian Act: "The only operations or activities that a band council is empowered to carry on are those authorized by Parliament under the ndian Act and in particular by s. 81:,,28 Nevertheless, it has been held that a Band or its council has the legal capacity in its own name: (a) (b) (c) to enter into contractual arrangements with a School Division for the education of its band members' children. 29 to be the beneficiary ofa trust.30 to guarantee the debts ofa corporation.31 (d) to contract for the provision ofmechanical and electrical work.32 (e) to enter into employment contracts with employees. 33 With respect to the powers which have been granted to Band Councils, there has been a recognition of an enhanced "general power" capacity which is reflected in s. 81(q) of the ndian Act. provision gives the band council authority to make by-laws: This "with respect to any matter arising out ofor ancillary to the exercise ofpowers under this section". 28 Paul Band v. R. [1984] 2 W.W.R. 540 (Alta. c.a.) 29 Kinistino School Division #55 y. James Smith ndian Band [1988] 4 C.N.L.R. 60; [1988] 5 W.W.R. 404; 56 Sask. R. 224 (Q.B.) 30 Keewatin Tribal Council y. Thompson (City) [1989] 3 C.N.L.R. 121 (Man. Q.B.) 31 See Footnote See Footnote Bear y. John Smith ndian Band Chief[1983] 5 W.W.R. 21; [1983] 4 C.N.L.R. 32; 26 Sask. R. 280 (Q.B.)

15 12 The net effect is: (a) to provide band councils with "substantial legislative powers"34; and (b) to provide Band Councils with the power "to act in any way ancillary to the exercise ofthose functions delegated to them in the rest ofthat section".35 Recent authority seems to suggest that under the law, ndian Bands and their Councils have an inherent capacity to contract in addition to and apart from the provisions of the ndian Act. For example, in Telecom Leasing Canada (TLC.) Ltd. y. Enoch ndian Band ofstony Plain ndian Reserve No. 135,36 a band council had executed a guarantee on behalf of a band company and when the creditor sued the band, the capacity ofthe band council to enter into the contract ofguarantee was put in issue. The Alberta Court ofqueen's Bench referred to the comments oflaforest, J. in Mitchell y. Peauis ndian Band 37 and stated at p. 376: "However, outside of areas specified in the ndian Act, ndian bands are free to contract in the same way as any other party, subject to the laws of general application. " The Court also adopted the suggestion ofjack Woodward in Native Law 8 at p. 166: "t may be said that band councils posses at least all the powers necessary to effectively carry out their responsibilities under the ndian Act, even when not specifically provided for. There is an implied power to contract, without the need for authority in the ndian Act." See Footnote 4 35 See Footnote See Footnote Mitchell y. Peguis ndian Band [1990] 2 S.C.R. 85; [1990] 5 W.W.R. 97; [1990] 3 C.N.L.R. 46 (?) 38 Toronto: Carswell, Bolding is mine

16 ) n Wewayakum ndian Band v. Canada and Wewayakai ndian Band a question arose as to the legal capacity ofan ndian band. Addy, n.j. at p discussed this issue in the following terms: "t appears to me that the members ofan ndian Band as such and quite apart from any provisions of the ndian Act, must necessarily enjoy a special legal status derived from their existence as a separate society and from common fundamental and special tribunal customs, laws, privileges, rights and obligations, akin, to some extent at least, to the rights and privileges enjoyed by and to the obligations and duties incumbent upon the citizens ofa state. 41 "There seems to me to be no logical reason why ndian Bands, as such should not possess the same rights to sue as corporations for instance, and, similarly, to be subject to various resulting obligations. Although no general statutory enactment so provides, common sense seems to dictate it. therefore find that they do possess a special status enabling them to institute, prosecute and defend a court action. t follows that those claiming to sue in the name of a Band must be prepared to establish their authority to do so when and ifthat authority is challenged. Any such authorization of course need not be subject to any special rules, laws, or procedures other than those prescribed by the traditions, customs and government ofthe particular band.,,42 t is probably premature to suggest that this expanded approach to the capacity of Bands and Band Councils has been generally adopted by the courts, although it seems clear that the law will continue to move in this direction. Nevertheless, the concept ofa "statutory body" with the powers and limitations contained in the ndian Act, as enunciated in P.S.AC. v. Francis 43 is likely still the law in Saskatchewan. ndian Bands and Band Councils entering into contractual arrangements (and those with whom they contract) will still wish to find their authority to contract in the ndian Act and to ensure that there is compliance with its statutory procedures. 40 Wewayakum ndian Band y. Canada and Wewayakai ndian Band (1991) 42 F.T.R. 40 (T.n.) 41 bid., Para. 16; bolding is mine 42 bid., Para. 19; bolding is mine 43 See Footnote 4

17 14 V. PROCEDURAL REQUREMENTS FOR BAND COUNCL POWERS Section 2(3) ofthe ndian Act provides: "Unless the context otherwise requires orthis Act otherwise provides (a) a power conferred upon a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the electors ofthe band, and (b) a power conferred on the council ofa band shall be deemed not to be exercised unless it is exercised pursuant to the consent ofa majority ofthe councillors ofthe band present at a meeting ofthe council duly convened." Accordingly, a Band Council wishing to enter into a contract must exercise its power by obtaining the consent ofa majority ofits councillors at a duly convened meeting ofthe Band Council. The accepted way of expressing this consent is by a written "Band Council Resolution". 44 The requirements ofsec. 2(3) must be strictly complied with and there will be no presumption, such as the indoor management rule applicable in corporate law, which will cure any defects. The following cases illustrate examples where the statutory requirements were not complied with which resulted in the Courts finding the contracts void: (a) n solation Sept Des nc. c. La Bande des Montawmis de Sept. - Des et Maliotenam 4S a contractor insulated 74 houses and converted another 68 to energy efficient houses on the basis ofa contract signed by a band council member who was in charge ofreserve housing. The contract had not received the approval of a majority ofthe Band Councillors at a duly convened council meeting (nor the approval of the Minister under s. 64) and was therefore held to be invalid. The 44 Also note that there are special ndian Band Council Procedure Regulations which set out the procedures to be followed by a meeting of a band council 4S solation Sept. - Des nc. c. La Bande des MontaWais de Sewt. - lies et Maliotenam [1989] 2 C.N.L.R. 49 (Que. S.C.)

18 ) (b) (c) 15 doctrine of unjust enrichment was not applicable in such circumstances and the partial payment made on the contract did not amount to ratification. n Heron Seismic Services Ltd Vo Muscowpetuns ndian Band,46 the Plaintiff sued the Band for the balance owing on an account for the drilling and development ofwells on the Reserve. The Trial Judge referred to the solation SeJ)t Des decision with approval and dismissed the claim on the basis that the evidence did not support a contract but also on the basis that there was no authorization ofthe Band Council for the alleged contract as required by sec. 2(3) ofthe ndian Act. The Saskatchewan Court ofappeal held, at p. 32, that "the trial judge correctly applied the applicable principles oflaw to the facts ofthe case". n Leonard and The KamloQps ndian Band et al v. GottfiiedSQD,47 the defendant alleged the existence ofan agreement with the Band granting him possession ofa portion ofreserve land. The alleged agreement was supported, in part, by a Band Council Resolution signed by all the council members, although no actual meeting had been held. The court found that, in the absence ofa duly convened meeting, such a B.C.R. did not comply with sec. 2(3) ofthe ndian Act. For that reason, and others, the Court held that there was no valid contract.. ) 46 Heron Seismic Services Ltd. v. Muscowgetuna ndian Band [1991] 2 C.N.L.R. 52 affirmed [1992] 4 C.N.L.R. 32 (Sask. C.A) 47 Leonard and The Kam1oO,ps ndian Band et al y. Gottfriedson (1981) 21 B.C.L.R. 326; [1982] 1 C.N.L.R. 60 (SC)

19 vn. SUMMARY 16 n providing advice with respect to the capacity ofan ndian band council to enter into a contractual relationship, the following points should be noted: (a) A band council is a legal entity, namely a statutory body, with the capacity to contract, to incur contractual and tortious liability and to sue orbe suedin its own name; (b) f any doubt exists as to the current name ofa Band, the Band List maintained by the Band or by DAND may be consulted; (c) The capacity ofa band council to enter into a particular contract may depend on whether it has been given the power through the provisions of the ndian Act to engage in the activity contemplated by the proposed agreement. (d) The contract, to be valid, must be authorized by a Band Council Resolution consented to by a majority of councillors present at a meeting duly convened. All ofthe Parties to a Contract will want to verify that these procedural requirements have been met.