The Federal Court of Appeal has dismissed an attempt by the Salt River First Nation to overturn an earlier ruling that excluding some members from annual payments is “unreasonable.”
In 2021, a band council resolution declared that treaty payments of $800 would be paid only to people who were Salt River First Nation members as of 2002 and their descendants, not anyone who became a member at a later date.
Richard Shanks, one person affected by that exclusion, took the First Nation to Federal Court, arguing – in the judge’s words – that the 2021 band council resolution “unreasonably disenfranchised him” from receiving the $800 payment.
Shanks argued the original agreement simply states that treaty payments are due to members, and nowhere does any wording limit the payments to people who were on the membership list in June 2002.
In a 2023 ruling, a Federal Court judge agreed.
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The First Nation’s subsequent appeal centred not on the verdict that the band council resolution was unreasonable, but on the Federal Court’s right to hear the issue in the first place.
The Federal Court of Appeal last week ruled the Federal Court was correct to assume it had jurisdiction because – in issuing a band council resolution – the First Nation was using powers derived from federal legislation, “within the contemplation of the definition of [a] federal board,” qualifying the matter for Federal Court consideration.
The First Nation had argued, by contrast, that the resolution used powers “found in the inherent right of self-government and council’s right to manage and deal with Salt River’s own property.”
Moreover, the Federal Court of Appeal ruled, the payments issue was “not a private, commercial matter [and] involved the distribution of public funds.” That meant the case was “of a sufficiently public character to properly attract judicial review.”
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The verdict of the three-person appeal court panel was unanimous. The original 2023 ruling stands.
Meanwhile, the panel also found in Shanks’ favour in an appeal he had lodged over the original awarding of costs.
Shanks said fighting the initial case cost him more than $30,000. The Federal Court, however, awarded him costs of only $5,000 when finding in his favour in 2023.
The Federal Court of Appeal said that should have been higher and, adjusting for some elements of Shanks’ claim that the appellate court rejected, awarded him a total of $15,500 in costs and disbursements – plus his costs related to the appeal.
