Traditional Cree values and customs came to inform the court’s decision in a recent case involving alleged oppressive conduct of a non-profit membership corporation. In Big River First Nation v Agency of Chiefs Tribal Council Inc, 2020 SKQB 273, the court determined that the Agency of Chiefs Tribal Council (ACTC) engaged in oppressive conduct when it unilaterally removed Big River First Nation’s (BRFN) directors from their board. A helpful summary of the case can be found here: canliiconnects.org/fr/r%C3%A9sum%C3%A9/73312. I won’t be providing an exhaustive summary of the decision, so before proceeding with this post I suggest reading the decision.
Professor Johnson provided me with her annotated copy of the case that included her own queries and thoughts line-by-line, which gave me an additional lens to view the decision with. I wanted to briefly comment on the court using Cree law to interpret colonial law. The Convention Act, which was signed by all Member Nations and grounded in traditional Cree values and customs, laid out how the Member Nations’ relationship was to be governed. The court even acknowledges that the Cree customs or law contained in the Convention Act must be taken into consideration when interpreting the Non-profit Corporations Act and the parties’ reasonable expectations regarding ACTC's conduct. Some of the principles included that the Member Nations would be governed by principles of respect, cooperation, consensus and equal representation. Accordingly, the court found that it would be reasonable for BRFN to expect that they would not be unilaterally expelled from their membership in ACTC and have their director removed from the board without due process.
The court's application of the law to the facts seems to meet this middle ground between Cree law and the relevant statutes and common law. The court even acknowledges that they have "recognized the existence of a rule of Indigenous law when it is shown that it reflects the broad consensus of the membership of a First Nation" (para. 17). As Professor Johnson points out in her annotations: who is doing the recognizing? what sort of evidence is required to satisfy this test of recognition? The court tries to delineate what constitutes "broad consensus" in the Whalen v Fort McMurray No. 468 First Nation, 2019 FC 732 decision, by looking to whether a law has been enacted by a majority vote of the membership of a First Nation or through a course of conduct. This conflict of law issue is entirely one-sided, as it is solely up to the Canadian courts to determine whether Indigenous law applies. If the Indigenous law does not meet the legal test, then it ceases to be in effect. While the court in Whalen gives "broad consensus" various meanings, it is primarily coloured by a colonial interpretation and ultimately gives deference to the court to make that determination. This leaves room for many Indigenous laws to never reach the arbitrary threshold of "broad consensus" and thus, have Indigenous legal issues be solely decided by Canadian law.