Updated: Dec 28, 2025
By Johnny Hawk
This is not legal advice. This is for educational purposes.
As of now, there is no Supreme Court of Canada case specifically about a First Nation council being found to violate the Charter by unlawfully barring members from a Band meeting; Council meeting, General Community Meeting or a Forum to participate in Governance.
However there are many occurrences where this is currently happening to Band Members where these violation of rights can be entered into a court and set a precedent ruling.
BAND COUNCILS ARE A FEDERAL BOARD
Under the Federal Courts Act, section 2 (1) “federal board, commission or other tribunal”; means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament. A Band Council is created by and derive their authority exclusively from the federal Indian Act therefore is designated as a Federal Board.
In Willson v. British Columbia Hydro and Power Authority the court held that an Indian Act Band is a juridical person, meaning; a corporation.
Canadian courts have repeatedly held that band councils exercise trustee-like or fiduciary powers when they: manage reserve lands or communal assets; administer band funds; make decisions affecting membership; housing; benefits; or governance; conduct community meetings tied to rights or entitlements.
Guerin v. The Queen, [1984] 2 SCR 335
“Crown and Indigenous governing bodies exercising control over Indigenous interests are subject to fiduciary obligations.”
Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9
“Fiduciary standards apply where discretion affects beneficiaries’ economic and governance interests.”
RIGHTS ARE PROTECTED TO ATTEND BAND MEETINGS
Band membership have a right to attend Council and Community Meetings which is protected by Canada’s Charter of Rights and Freedoms under Section 2 (b)/2(d) freedom of expression and freedom of association; Section 15, equality before and under law and equal protection and benefit of law, the right not to be discriminated against.
Corbiere v Canada (1999 SCC) “Charter applies to Band Councils”
Dickson v. Vuntut Gwitchin First Nation, 2024 SCC
"The Charter applies to First Nation governments when exercising public authority."
Corbiere v. Canada (1999 SCC)
“Denying off-reserve band members the right to vote in Band Council elections violated
section 15(1) of the Canadian Charter of Rights and Freedoms.”
BAND COUNCILS CANT EXCLUDE MEMBERSHIP
Band Council cannot ban or exclude a band member(s) from a community meeting, council meeting, info session or decision making forum as it is a violation of the following:
Charter Violations
S.2(b) – Freedom of expression
Community meetings are political forums. Exclusion suppresses political speech.
S.2(d) – Freedom of association
Denying attendance of Community Meeting’s prevents collective participation in governance.
S.15 – Equality rights
Selective or targeted exclusion constitutes discrimination.
S.25 - Protects legitimate collective Indigenous rights.
Band Councils excluding members from meetings is a modern administrative act. Band Council can’t use the excuse of Nationhood or an inherent Indigenous right to ban
members from a meeting.
BAND COUNCILS LEGALLY NEED TO BE FAIR
A Band Council decision to exclude membership from a meeting or to conduct an in-camera session without notice, reasons, or a meaningful opportunity to respond is a breach of the duty of procedural fairness and is unlawful.
Baker v. Canada, [1999] 2 SCR 817 “The more important the decision is to the lives of those affected and the greater its impact on that person, the more stringent the procedural protections that will be required.”
Doré v. Barreau du Québec, 2012 SCC 12
“The question becomes whether, in assessing the impact of the relevant Charter
protection and given the nature of the decision and the statutory scheme, the decision
reflects a proportionate balancing of the Charter protections at play.”
When a Band Council makes a discretionary decision affecting a member it must give notice; Allow a chance to respond where appropriate; Act in good faith; Consider relevant factors; Avoid bias or retaliation and provide reasons if the decision has serious impact.
Band Councils must balance members’ rights with statutory objectives in a reasonable way. Blanket or unexplained exclusions from meetings or governance can be unlawful if they disproportionately impair members’ rights
BLANKET CLAIMS OF CONFIDENTIALITY ARE UNLAWFUL
In Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, the Supreme Court rejected blanket claims of confidentiality and required decision-makers to justify non-disclosure with specificity and proportionality. The same principle applies here: exclusion from meetings cannot be justified by generalized claims of privacy or confidentiality.” If the Minister of National Defence cannot get away with this, a Band Council can not either.
The Supreme Court of Canada held that: Claims of confidentiality, secrecy, or national security cannot be asserted broadly or automatically to deny access to information. They must be justified, specific, and proportionate, and are subject to independent review. The case confirms that statutory decision-makers must provide access to information unless there is a narrow, justified reason to withhold it.
Band Councils cannot exclude members from meetings or deny them information unless there is a specific, legitimate, and proportional reason (e.g., privacy, legal advice, personnel matters). Blanket exclusions or denials are likely unreasonable and unlawful under principles drawn from Canada (Information Commissioner) v. Canada (Minister of National Defence).
WHEN MEMBERS CAN LAWFULLY BE EXCLUDED
In-camera secrecy can only be temporary and limited, and overreach can be legally challenged via judicial review, fiduciary claims, injunctions, or declaratory relief. Confidentiality is lawful only when necessary to protect legitimate interests such as; Negotiation & Financial Transactions; Legal Advice & Litigation Strategy; Human Resources / Personnel Matters; Individual Member Privacy; Child Welfare; Land, Property, or Security Matters.
Practical Legal Approach for Band Councils going In-Camera:
Identify the sensitive agenda items and enter in-camera only for those.
Document justification for in-camera sessions (legal, financial, privacy reasons).
Limit duration of closure and return to open session as soon as feasible.
Provide post-meeting summaries to members, redacting only sensitive details.
Ensure decisions comply with fiduciary duty and procedural fairness — secrecy cannot be used to avoid accountability.
A Band Council can adjourn a meeting if it has properly moved into an in-camera (closed) session and attendees who are not entitled to be present refuse to leave—but only if certain legal and procedural conditions are met. Otherwise, adjourning may itself be improper.
What an in camera session legally requires
Before a council can lawfully exclude beneficiaries or community members, it must:
Have legal authority to go in camera. This authority must come from one or more of the following:
The First Nation’s governance law or by-law
Band Council Procedure By-laws
A custom election or governance code
A specific statutory obligation (e.g., privacy law)
The council must:
Move and vote on a motion in public session
State specific reasons for closure (not vague language)
Acceptable reasons include:
Personal or personnel matters
Confidential legal advice
Litigation strategy
Sensitive financial or privacy-protected information
“General discussion,” “governance,” or “political strategy” are not sufficient reasons.
IF COMMUNITY MEMBERS REFUSE TO LEAVE
Scenario: The Council has properly moved into an in-camera session, and some attendees refuse to exit.
What Council may do:
Adjourn or recess the meeting
Suspend proceedings until order is restored
Reschedule the in-camera portion
This is generally lawful provided the closure itself was lawful.
What Council may NOT do:
Use adjournment to avoid public scrutiny
Use in-camera to silence political opposition
Exclude beneficiaries when the matter affects collective rights or band members generally
Retroactively justify closure after conflict arises
If adjournment is used as a tactic to suppress attendance, it may be:
A breach of procedural fairness
A Charter s.2(b) (expression) and s.7 issue in some contexts
A fiduciary breach under federal common law
A Council acting in good faith should:
Move to in camera with reasons recorded
Allow members to object on the record
Offer alternatives: Redacted summaries later; Separate confidential session
If refusal continues: Recess, not immediately adjourn; Resume for non-confidential business
Record: Who refused to leave; Why closure was required; Steps taken to preserve fairness
Failure to do this can expose Council to:
Judicial review
Ministerial intervention (ISC)
Injunctions or compliance orders
Loss of legitimacy under custom law
DO BAND COUNCILS REQUIRE COMMUNITY CONSENT FOR SIGNIFICANT CAPITAL SPENDING?
A Band Council does not generally need community consent to approve capital spending. However, best practice and fiduciary duties often require consultation on significant projects, especially those affecting land, debt, or long-term assets.
If the Band operates under a custom governance code, self-government agreements then the rules in those agreements or codes prevail. Some First Nations require community ratification for large capital projects, especially where there’s long-term debt, the project impacts community land and revenue from capital assets will flow to external entities.
If funding comes from Indigenous Services Canada (ISC) or federal grants; CMHC programs or other federal capital grants then there may be reporting requirements or approval thresholds, but these are administrative, not community consent requirements.
Courts have recognized that fiduciary duties require councils to act in the best interests of the band and beneficiaries (see Baker v. Canada, Doré v. Barreau du Québec principles applied analogously). Failing to consult on large capital projects can be challenged as a breach of fiduciary duty.
Hans McCarthy v. Canada (Indigenous Services) (2025 FC 1843)
Hans McCarthy’s precedent Federal Court victory compels Indigenous Services Canada to disclose Band Council Resolutions and trust-fund records to a concerned band member, marking a significant step toward financial transparency in Indigenous governance in Canada.
ARE BAND MEMBERS “TRESPASSING” AT A BAND MEETING?
Band members are generally not trespassing at a band meeting. A Band Council cannot automatically use police to remove, escort, or charge members for refusing to leave an in-camera meeting. Doing so is lawful only in rare and strict circumstances.
Key points:
Band members are not trespassers when attending:
A properly called band or council meeting
A meeting held on reserve
A meeting about band governance or collective interests Being asked to leave does not automatically make someone a trespasser.
Trespass may apply only if:
The meeting was lawfully closed
Closure was authorized by law or by-law
A lawful order to leave was clearly given and refused
If the in-camera session itself was unlawful, no trespass exists.
Police may attend only to keep the peace, such as where there is:
Violence or credible threats
Serious disorder preventing the meeting from continuing
Police cannot be used to enforce secrecy, silence dissent, or act as council security.
Charges like trespass or mischief are extremely rare and lawful only if:
The in-camera session was properly authorized
The member was clearly informed why they must leave
The refusal caused real disruption or risk
All lesser measures failed
Even then, such charges often fail in court.
Charter and fairness rights apply:
Freedom of expression (Charter s.2(b))
Liberty and security (Charter s.7)
Procedural fairness (Baker v. Canada)
Bottom line: Band Councils cannot treat their own members like trespassers for attending governance meetings. Police may be used only for safety and peace—not to enforce in-camera secrecy. Charges are rare, risky, and often unlawful unless strict legal conditions are met.
WIKWEMIKONG ELDERS ASKED TO LEAVE MEETING WITHOUT REASON
December 17, 2025 - Wikemikong Unceeded Territory: Band Members (Elders) attend a Band Council Meeting over concerns of capital expenditures. They are asked to leave an in-camera session for an unexplained exclusion using a blanket claim of confidentiality. An unlawful act that disproportionately impaired the members rights.
The Elders choose not to leave as they are not told by required lawful procedure the specific reasons for the in camera session and non-disclosure of information. Band Council stalls the meeting and calls the Police on the Elders. The Chief accuses the Elders of Trespassing. The Police are only present to Keep the Peace. Cops can not tell the members they are trespassing nor charge them in such an instance.
Band Council adjourns the meeting and all parties leave. Council was within their right for an in-camera meeting for such reasons however they did not inform the members of the specific sensitive matter and the reasoning to be excluded and gave an unreasonable blanket claim of confidentiality which may be seen as unlawful by their fiduciary duty of procedure.
On December 20, 2025, Chief Tim Omnika makes an online Facebook Statement that addresses that the subject of the Council's pursuing a major capital investment was leaked which was the subject of the attempt of the in-camera session where members were asked to leave on Dec 17, 2025. Council can not retroactively justify closure after conflict arises. The membership at the time needed to be informed at the time of the specific sensitive matter that was to be discussed in-camera and given a summery after without compromising specific details. Members have a potential strong case for a judicial review of conduct of Council in failing to provide fairness, reasoning of their exclusion.
WHAT TO DO WHEN MEMBERS RIGHTS ARE VIOLATED
Band Members have options when such actions in this article have been breached. Members can apply for a Judicial Review in a Federal Court; Provincial (Superior Court) and or File a Human Rights Complaint with the Federal Human Rights Tribunal and or file a Constitutional Question with a Superior Court. Often times we have no money for lawyer and filing fee's. You can apply through the courts to have your filing fee's waived.
If you have no funds for a lawyer, filing a Human Rights Complaint with the Canadian Human Rights Tribunal as they deal with Federal; do not file with Provincial Tribunal; Filing a Constitutional Challenge through a Superior Court. These would be your best path.
Common fiduciary breaches suitable for a Judicial Review include:
Excluding members from meetings affecting collective rights
Misuse or misallocation of band funds
Acting in bad faith, conflict of interest, or self-dealing
Denying procedural fairness (no notice, no reasons, secret decisions)
Breaching the duty to act in the best interests of the membership
Procedural Fairness (Most common & strongest) Courts take this seriously.
Failures include:
No notice of meetings
Improper in-camera use
No opportunity to be heard
No written reasons
Removing members without lawful authority
(Baker v. Canada applies here.)
HOW TO PURSUE A FORENSIC AUDIT BY AND FOR THE PEOPLE
At a General Community Band Meeting get as many supporters of this to attend. Get Recognized by the Chair: When there is no other business on the floor, stand up and address the presiding officer or chairperson to get their recognition and that you have business to address.
State the Motion:
Once recognized, clearly state your motion by saying, "I move that the eligible voters of membership in attendance vote that we as a First Nation pursue a Forensic Audit using Settlement/Trust Funds due to valid concerns of 'We' the membership"
Wait for a Second:
After you have stated your motion, another member of the meeting must "second" it by saying, "I second the motion" or simply "Seconded". This indicates agreement that the motion should be brought up for discussion.
Discussion and Voting:
If the motion is seconded, it is then considered the "business" before the assembly and is open for discussion before a vote is taken. If there is no second, the chair will declare the motion not before the group, and it is not lost, as no vote has been taken
Quorum:
For any motion to be valid and for a vote to commit the members, a quorum (the minimum number of members required to be present to conduct business) must be in attendance as specified in the bylaws
During voting by First Nations of the Union of Ontario Indians on the Anishinabek Education Agreement, First Nations Land Management Act, Land Codes and Anishinabek Self Governance Agreement these Indian Act Leaders of these First Nations imposed a shameful 25% plus 1 voting threshold of those in attendance of the vote to pass or not these Self Government Agreements and even held a second vote if the first vote failed; which was permitted by the Federal Government.
This is the threshold that we would use also since they set this president with their Sellout Agreement Thresholds they imposed on us, to pass their Government Assimilation Agreements.
Band members can raise a motion in a general meeting, provided they follow the organization's bylaws or the rules of parliamentary procedure (such as Robert's Rules of Order), as it is a fundamental right for members in many organizations to propose business for the group's consideration.
If the Chief and his or her minions fail to comply with these rights of the membership then record everything that happened and take their asses to court and file a Human Rights Complaint and Constitutional Challenge where they are violating your fundamental rights and freedoms by imposing discriminative policies of the Indian Act to deny your right to freedom of information and freedom of expression and freedom of association.
