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Federal Court - 'Federal Board, Commission, or other Tribunal' (FBCOT). Salt River First Nation #195 v. Shanks
In Salt River First Nation #195 v. Shanks (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, this from a JR that set aside a Band Council Resolution that "precluded Mr. Shanks and other members of the First Nation from receiving the per capita distribution to be made to members at that time", which per capital distribution was "paid annually to members from funds held by the First Nation pursuant to a treaty settlement agreement".
The main issue considered on the JR (and this appeal) was whether the Resolution was of a sufficiently public nature to support being JR justiciable:[2] Mr. Shanks brought an application for judicial review challenging the validity of the Band Council Resolution. For reasons cited as Shanks v. Salt River First Nation #195, 2023 FC 690, the Federal Court allowed the application for judicial review and set aside the Band Council Resolution on the ground that it was unreasonable. In reaching this decision the Federal Court rejected the submission of the First Nation that the Court lacked jurisdiction to hear the application. Instead, the Federal Court concluded that when enacting the Band Council Resolution, the Council acted as a "“federal board, commission, or other tribunal”" and that the authority exercised by the Council was of a sufficiently public character to confer jurisdiction on the Federal Court.
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II. Applicable Legislation
[6] Subject to certain exceptions that have no application to this appeal, subsections 18(1) and (3) of the Federal Courts Act R.S.C., 1985, c. F-7 give exclusive, original jurisdiction to the Federal Court to entertain applications for judicial review of decisions of "“any federal board, commission or other tribunal”".
[7] Section 2 of the Federal Courts Act defines the phrase "“federal board, commission or other tribunal”" to mean any entity "“having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown”". Again, this definition is subject to a number of exceptions, none of which apply to this appeal.
III. The Standard of Review
[8] Whether the Federal Court had jurisdiction to judicially review the Band Council Resolution is a question of law, reviewable on the standard of correctness (Anisman v. Canada (Border Services Agency), 2010 FCA 52, at para. 26); (Housen v. Nikolaisen, 2002 SCC 33, at para. 8). This requires the Federal Court to correctly articulate and apply the test for determining whether an entity is acting as a federal board, commission or other tribunal (Innu Nation v. Pokue, 2014 FCA 271, at para 10).
[9] Before turning to the application of the standard of review, nothing in this case turns on any distinction between a board, commission or other tribunal. Therefore, for simplicity, the phrase "“federal board”" will be used in the balance of these reasons and should be read as including reference to a federal commission or other tribunal.
IV. Application of the Standard of Review
A. Applicable Legal Principles
[10] The leading authority with respect to the proper interpretation of the definition of federal board is the decision of this Court in Anisman. There, at paragraph 29, the Court concluded that "“a two-step enquiry”" must be made to determine whether an entity is a federal board. The first enquiry is directed to what jurisdiction or power is being exercised. The second enquiry is directed to the source or origin of the jurisdiction or power that is being exercised. The primary determinant is the source of the entity’s authority. The question is, when acting, was the tribunal empowered by or under federal legislation or by an order made pursuant to a prerogative power of the federal Crown? Neither the nature of the power exercised nor the nature of the body exercising the power are determinative of whether a tribunal falls within the definition.
[11] Subsequent to the decision of this Court in Anisman, the Supreme Court clarified in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018]1 S.C.R. 750, at paragraph 14, that judicial review is only available "“where there is an exercise of state authority and where that exercise is of a sufficiently public character”". The Supreme Court went on to state that "“a decision will be considered to be public where it involves questions about the rule of law and the limits of an administrative decision-maker’s exercise of power. Simply because a decision impacts a broad segment of the public does not mean that it is public in the administrative law sense of the term”" (para. 20).
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[21] The jurisprudence of this Court and the Federal Court is to the effect that Band Councils established under the Indian Act are federal boards whose decisions are subject to judicial review when they exercise their powers over band members under a federal statute such as the Indian Act and when the issue involves a matter that is "“public”" in nature: Sebastian v. Saugeen First Nation No. 29 (Council of), 2003 FCA 28, at paragraph 51; Ermineskin First Nation v. Minde, 2008 FCA 52, at para. 33; Horseman v. Horse Lake First Nation, 2013 FCA 159, at para. 6; Buffalocalf v. Nekaneet First Nation, 2024 FCA 127, at para. 19.
E. Was the power exercised of a sufficiently public character so as to make judicial review available?
[25] At paragraphs 33 to 35 of its reasons, the Federal Court considered and rejected the submission of the First Nation that the exercise of power at issue was not public in nature and so was not amenable to judicial review.
[26] The First Nation argues that the Federal Court erred by not conducting a full analysis of the nature of the power exercised in accordance with the factors set out by this Court in Air Canada v. Toronto Port Authority, 2011 FCA 347 at paragraph 60. The First Nation argues that instead the Court over emphasized Council’s status as the government of the First Nation.
[27] This submission requires this Court to consider the nature of the holding in the Air Canada case. In decisions such as Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court restated the principle that relationships that are essentially private in nature are to be redressed by way of the private law not public law. In Air Canada, this Court then directed itself to the question of how to determine where a particular matter falls on the public-private spectrum. At paragraph 60, the Court observed that in determining the public-private issue, all of the circumstances are to be weighed. The Court then went on to enumerate a number of factors relevant to the determination of whether a matter is sufficiently public to bring it within the purview of judicial review. The Court’s listing did not purport to be exhaustive, and the Court noted that whether one factor or a combination of factors operate to tip the balance to make a matter public in nature depends upon the facts of the case.
[28] In the present case, the Federal Court did not cite Air Canada; nor did the Court explicitly review the factors enumerated in Air Canada. This said, the Court did review a number of factors to reach its conclusion that Council was not acting privately when it exercised the power at issue. Particularly, the Court considered that the decision was made following a meeting duly convened within the meaning of subsection 2(3) of the Indian Act, that the decision concerned a payment made pursuant to the terms of the Revenue Account Law, and that the decision to authorize per capita distribution payments was inherently a governance issue relating to the management and disposition of funds from a settlement which was established for the benefit of the First Nation. These facts fall within the scope of factors articulated in Air Canada, particularly: the nature of the decision-maker and its responsibilities, the extent to which the decision is founded and shaped by law as opposed to private discretion, and the character of the matter for which review is sought.
[29] While it would have been preferable for the Court to have specifically referenced the factors articulated by this Court in Air Canada, and while the parties and this Court would have been assisted by an express consideration of those factors, I am not persuaded that the Court committed any reviewable error when it concluded that the impugned Band Council Resolution was of a sufficiently public character to properly attract judicial review.
[30] Applying the factors articulated in Air Canada that are of particular relevance to this case:The character of the Band Council Resolution was not a private, commercial matter. The decision involved the distribution of public funds and flowed from the Revenue Account Law adopted by members of the First Nation and incorporated into the Election Regulations. The fact that compensation was paid to the First Nation as "“personal property”" did not make the Band Council Resolution private in nature.
The decision-maker was the governance body recognized by the Indian Act and the Band Council Resolution was registered with the appropriate Minister.
The decision was not founded in private discretion but rather in the terms of the Treaty Settlement Agreement, the Settlement Trust Agreement, the Revenue Account Law and the Election Regulations. Judicial Review is a suitable public law remedy to challenge the lawfulness of the Band Council Resolution.
[31] It follows that when making per capita payments pursuant to the Revenue Account Law and enacting the Band Council Resolution, Council was not acting in a private capacity. Therefore, the Resolution is subject to judicial review.
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