COVID-19 And Band Council Decisions: Exercising Your Powers During The Pandemic

• Published date: 29 May 2020
• Author: Ms Jaimie Lickers, Brent Murphy and Keith Brown
• Subject Matter: Government, Public Sector, Coronavirus (COVID-19), Indigenous Peoples, Operational Impacts and Strategy
• Law Firm: Gowling WLG

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.[1] 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...