Governance is an evolving concept. Little is written in stone.

The roles and responsibilities of leaders of First Nations should be clear, but at times, they are hazy. Many communities have documents and policies regarding confidentiality and codes of conduct for staff. However, the roles and responsibilities of the people at the top often have not been spelled out.

Accountability is a cornerstone of good governance. In order for leadership to be accountable to members, leaders must clearly demonstrate that they are operating within a clear framework and ‘walking the talk’.

Roles of the Chief

A chief is a councillor, but the role of the chief is broader and includes legal, day-to-day and political roles. A chief has the responsibility of being the spokesperson, chairing meetings and calling emergency meetings, and ensuring that the council works well together.

Many people regard the chief as the boss. Community members look to the chief to be the leader, to set the agenda and create a vision for the community to advance forward. However, in order to achieve the best results, the chief must work with the entire council.

Roles and responsibilities of the Council

The main role of a council is to represent the interests and views of the members when making decisions on behalf of the band and in the best interests of all of its members.

Each community has different needs and it is the job of the council to figure out what those needs are by listening to members and advocating to get their needs met when negotiating agreements and determining priorities.

Council must place communicating with members at the top of its duties. Communications, or public relations, is the key to building support and trust between council and community members.

As elected officials, council has the responsibility of setting goals for the community, hiring and managing an executive director and being guardians of the community’s assets such as land and community buildings. Council also has to manage funds properly and in accordance with the Indian Act. It must also create, modify and implement governance and operational policies, oversee the executive director, who in turn monitors staff’s performance and make sure programs are operating efficiently, fairly and cost effectively.

Fiduciary Duty of Council

Most of us are familiar with the idea that the Crown owes a ‘fiduciary’ duty to First Nations people. In recent years, however, it has been shown in court that band councils also have fiduciary duties to band members.

That means councillors exercise their powers in the best interests of all members and manage the assets of the First Nation properly. Councillors must always conduct themselves in a manner that is honest, loyal, in good faith and they must avoid any conflicts of interest.

Band councils often act as directors of band-owned companies. This position also includes a fiduciary duty to act in the best interests of the First Nation.

However, not all duties are fiduciary in nature. Fiduciary duties are restricted to those that create a trust-like relationship.

Recent court cases

BC courts have recently heard cases that have helped to both clarify what is the fiduciary duty that a band council has to community members.

Take the 1999 case of Assu v. Chickite. The court said a fiduciary has a duty to act with “utmost good faith” and with a heightened sense of loyalty. A fiduciary also must act in a manner consistent with the best interests of a “beneficiary” in all matters related to an undertaking of trust and confidence.

This case involved a dispute between members of a council. At the centre of the case was a decision by a quorum of the council to hire an interim band manager, and set her salary, while the chief was away.

The plaintiffs argued that the quorum of council was biased because the individual hired was a relative. The court found that the decisions of the majority of council were made at duly convened meetings and that the circumstances around the decision to hire an interim manager were not a breach of fiduciary duty. The court also found that the large legal fees that followed were not a breach either, but rather justifiable under the circumstances.

Here is another case where no breach of fiduciary duty was found. In Williams v. Squamish Indian Band in 2003, a band member claimed that the band had breached its fiduciary duty to him by failing to put his disbursement cheques in an interest-bearing account while he was a minor. The band had issued the quarterly cheques to his grandmother to help pay for his upbringing. The court confirmed that the band did have a fiduciary duty to make decisions about the distribution funds in the applicant’s best interests. The court found that the band had acted in good faith and in the applicant’s best interests. It said the band made appropriate decisions to release the funds to help the grandmother raise her grandson. Additionally, the court noted that the applicant failed to show any damage as he had already received the benefit of the money as a child.

There are other cases where the court found that there was a breach of fiduciary. These usually involve situations in which a member of council has participated in a decision of the council that resulted in a direct financial benefit to that councillor orhis/her immediate family.

Understanding and upholding fiduciary duties is just one example of how a band council can show that it is accountable to community members and that they are carrying out good governance. Such a principle can be spelled out in a formal policy or code of conduct for chief and council. An oath of office, enforceable by the members, is another option.

In conclusion, another question that often comes up is ‘what power does an individual councillor have?’ Depending on how you view it, the answer to this one is either fortunate or unfortunate.

An individual band councillor has no power or authority outside of his or her everyday power or authority as a band member. Power resides collectively in the council when it sits at a duly convened meeting of the council.

Other than that, and contrary to what is often assumed, a councillor has no more power or authority than any other member of the community.

If you have any questions about any of this information, or want to ask questions about other facets of governance, feel free to call or email me (nicoleh@nautsamawt.com – I would be happy to help!

The following article is the first in a series on Good Governance by Nicole Hajash, the governance coordinator of Naut’sa mawt Tribal Council.