Who's In Charge Here? Da'naxda'xw First Nation v Peters And The Dynamics Of One First Nation's Leadership

• Published date: 08 July 2021
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian ERA Perspectives, Kyle McMillan, Bryn Gray and Grant Szelewicki

The Federal Court recently weighed into a hereditary leadership dispute involving the Da'naxda'xw First Nation (DFN) in British Columbia, ruling that neither group had legal authority to govern the First Nation. In Da'naxda'xw First Nation v Peters¹, two parties claimed to be the rightful governing authority of the northern Vancouver Island First Nation: the Glendale Band Council (GBC) and the Hereditary Chief Council (HCC). The GBC is comprised of a hereditary Chief, Gordon Glendale, and two councillors. The HCC consists of 4 hereditary Chiefs (including Gordon Glendale), and was created by a consent order that arose as a result of a governance mediation in 2017 (the "Consent Order"). The DFN has approximately 226 members, the vast of majority of which reside off reserve.

DFN had been governed by the GBC for some time, but in 2017 DFN re-assessed its leadership structure through a governance review and vote. DFN did not previously have a written governance or election code. DFN considered three governance models: (1) a Hereditary Chief and two elected councillors; (2) Hereditary Chiefs supported by a Family Leadership Council; and (3) an Elected Chief and two Elected Councillors. DFN voters overwhelmingly supported the option of Hereditary Chiefs supported by a Family Leadership Council. The results were announced on March 22, 2017 (the "Governance Review Results").

Following the announcement of the Governance Review Results, a mediation was held in regard to a previous judicial review application concerning governance. The mediation resulted in the Consent Order, which established the HCC and tasked it with creating a governance code by December 1, 2017 to be presented to the community for approval. However, timelines were postponed and the HCC never established a governance code. Complicating matters, both the GBC and the HCC claimed to be the rightful governing authority of DFN in the interim, and the HCC purported to suspend Gordon Glendale from the HCC because of alleged financial irregularities, to which Mr. Glendale claimed he was not given the chance to respond. Ultimately, the HCC and GBC each applied for judicial review to confirm their respective positions.

Justice Strickland of the Federal Court ultimately ruled that there was no broad consensus in the community supporting either governing model and ordered a vote be held among DFN membership to identify and appoint interim Hereditary Chiefs and interim members of the Family Leadership Council...