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COMMUNITIES AND GOVERNANCE - Practice and procedure - Appeals and judicial review

Friday, February 23, 2018 @ 8:57 AM  


Lexis Advance® Quicklaw®
Application by the Meadow Lake Tribal Council for judicial review of the respondent Government’s decision concerning the negotiations for the establishing of a First Nation school board. After the applicant submitted a proposal for funding for a First Nation school board, the parties began negotiations. During the negotiations, the respondent took the position that the majority of elected Chiefs and Councillors could not sit on the school board’s board of directors as a way of ensuring that day-to-day control was separate from political interference. The respondent ceased negotiations when the applicant refused to amend their Bylaws which allowed for the majority of Chief and Councillors to sit on the board. The applicant refused to change its position and sought judicial review of the respondent’s rejection of the proposed bylaws, the respondent’s refusal to allow the majority of elected directors of the proposed school board to consist of Chiefs and Councillors and the respondent’s refusal to continue negotiations unless the applicant changed the proposed bylaws.

HELD: Application dismissed. The Federal Court’s judicial review jurisdiction was limited to the review of decisions made by a federal board, commission or other tribunal. The matter the Court was asked to judicially review was not a decision about the application of a policy, but rather a negotiation that was at an impasse. This matter was not a legal dispute, but rather a political one. The dispute was so political that the Court was incapable or unsuited to deal with it, or should not deal with it in light of the demarcation of powers between the Court and the other branches of government. Furthermore, the matter was inappropriate for judicial review because the judiciary had not been given access to all of the information available regarding the parties’ political positions.

Birch Narrows Dene Nation v. Canada, [2018] F.C.J. No. 34, Federal Court, G.L. McVeigh J., January 9, 2018. Digest No. TLD-Feb192018010