I.
Overview
[1]
The respondent Innu Nation brings this motion to
strike the underlying judicial review application commenced by the applicant
Simon Pokue (Mr. Pokue). In that application, Mr. Pokue seeks to set aside the
results of an election for the offices of Grand Chief and Deputy Grand Chief of
the Innu Nation, held in September, 2012.
[2]
This motion turns on the proper characterization
of the Innu Nation’s election. If it is characterized as falling within the
exercise of power of a “federal board, commission or other tribunal” then it is
subject to Federal Court jurisdiction and the motion to strike will be
dismissed. If not, then it is not subject to Federal Court jurisdiction and
the motion to strike will succeed.
[3]
I conclude that the Innu Nation, in its holding
of an election, is within the judicial review jurisdiction of the Federal
Court. While the Innu Nation has certain, limited, technical attributes that
are contrary to this conclusion, in substance, its status, mandate and conduct
bring it within the meaning of a “federal board, commission or other
tribunal.” As a consequence, I dismiss the motion to strike.
II.
Background
[4]
I begin with the historical background and the
evolution of governance of the Innu people.
[5]
The Innu, formerly known as the Montagnais and
Naskapi, are an Aboriginal group residing in Labrador and Newfoundland. The
Innu in Labrador reside in two communities, the Mushuau Innu in Natuashish and
the Sheshatshiu Innu in Sheshatshiu. They were not recognized by the federal
government as Indians under the Indian Act (RSC, 1985, c I-5). They had
no band council. In light of this vacuum, in 1976 the Innu established a
not-for-profit organization under Part II of the Canada Corporations Act (RSC
1970, c C-32) called the Naskapi-Montagnais Indian Association (the NMIA). Its
objects then, as now, were to carry out numerous governance and civic functions
on behalf the Innu, including the negotiation of land claims, and the provision
of education, healthcare and social services in the two communities.
[6]
In 1990, the NMIA changed its name to the Innu
Nation, and continued as a not-for-profit corporation under the Canada
Corporations Act.
[7]
On November 21, 2002, by Order in Council, the
Innu were granted status as First Nations under the Indian Act, with
reserves being established. The lands reserved for the benefit of the Mushuau
Innu First Nation were set aside in 2003, before it moved from Davis Inlet to
Natuashsish in Northern Labrador. Two local band councils of Mushuau and
Sheshiatshiu were established and recognized under the Indian Act, and
exercise some of the powers and authority accorded band councils.
[8]
The Innu Nation has negotiated an Agreement in
Principle with Canada and Newfoundland and Labrador. While I return to this
later, the Grand Chief of the Innu Nation, in his affidavit, explains its
significance:
Should
the Innu eventually ratify the Final Land Claims Agreement, then the Innu
Nation will, under the terms of the Final Agreement, become the Innu
Government. The two band councils will become the Innu Community Governments.
However, Innu Nation is not yet the Innu Government.
[9]
The statement that the Innu Nation is “not yet
the Innu Government” is the core of the Innu Nation’s opposition to this
application. It says that it is a private body, exercising only private
rights. As will be evident, this assertion is inconsistent with the evidence.
Essentially, the Innu Nation concedes that once the Final Land Claims Agreement
is ratified, it will be a federal board. It further concedes that it is now, de
jure and de facto, the overarching government body, but is insulated
from any form of judicial review by reason of its status as a “private
association.” However, being a federal board is an issue of substance,
not form. The Innu Nation’s perspective on the makeup of a federal
board which shelters behind its corporate antecedence belies the court’s
multi-variable approach in Air Canada v Toronto Port Authority, 2011 FCA
347.
[10]
As will be evident from the review of the
evidence, the Innu Nation is an umbrella organization that unites both of the
band councils into a single governance body. To this end, most, but not all,
core governance functions associated with a band council have been subsumed by
the Innu Nation. Indeed, according to the Grand Chief, it is the Innu Nation,
and not the local band councils, that negotiated the Final Land Claims
Agreement on behalf of the Innu.
III.
Analysis
A.
Motions to Strike
[11]
Successful motions to strike judicial review
applications are exceptional. The basic rule is that expressed in David
Bull Laboratories (Canada) Inc v Pharmacia Inc, [1995] 1 FC 588 at 600 and
affirmed in Canada v JP Morgan Asset Management, 2013 FCA 250 at para
47:
The Court will strike a notice of application for judicial
review only where it is "so clearly improper as to be bereft of any
possibility of success" […] There must be a "show
stopper" or a "knockout punch" - an obvious, fatal flaw striking
at the root of this Court's power to entertain the application.
[12]
The decision to hear a preliminary motion to
strike an application for judicial review is discretionary. In the
circumstances of this case, several factors, including ready access to a
decision, economy and the discrete nature of the issue weigh in favour of
hearing this motion. All the necessary evidence is before the Court and both
parties seek a determination on the issue raised.
B.
The Disputed Characterization: Whether the Innu
Nation’s Election Constitutes a Public Act by a “federal board, commission or
other tribunal”
[13]
The Innu Nation contends that the Court has no
jurisdiction to hear the application for judicial review of the election of the
Innu Nation because it is not a “federal board, commission or other tribunal.” The
foundation of its argument is its legal status as a not-for-profit corporation
incorporated under the Canada Corporations Act. In consequence, it says
the particular decision sought for review (the election result of September,
25, 2012) is entirely a private matter. The Innu Nation contends that there is
nothing in the evidence which supports its characterization as a federal board
and that the powers that it exercises cannot be linked to the exercise of
powers under the Indian Act.
[14]
It is well established that a body may be a
federal board for some purposes and not others: DRL Vacations Ltd v Halifax Port Authority, 2005 FC 860 at para 48. The focus must remain in the
character of the particular function in question, when situated in the context
and circumstances of the particular case. As the Federal Court of Appeal
recognized in Toronto Port Authority at paras 49-50, even
when it is undisputed that the actor in question exercises authority conferred
by federal law, the ultimate question is whether or not the power exercised
itself is “of a public character.” Consequently, the legal status of the Innu
Nation as a not-for-profit corporation (the foundation of the respondent’s
argument) is but one factor to be considered in the characterization of its
exercise of power when coordinating its election. The historical origin,
mandate and function of the Innu Nation, and the nature of its activities and
powers are components of that context, and help frame how the particular power
in question, the election, is characterized.
(1)
Governing Principles Regarding the Disputed
Characterization
[15]
A “federal board, commission or other tribunal”
is defined as follows in the Federal Courts Act, section 2:
“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 or by or under an order made pursuant to a
prerogative of the Crown, other than the Tax Court of Canada or any of its
judges, any such body constituted or established by or under a law of a
province or any such person or persons appointed under or in accordance with a
law of a province or under section 96 of the Constitution Act, 1867.
[16]
This section is to be given a flexible and purposive
interpretation. Justice Anne Mactavish made the point in Halifax Port
Authority, at para 48, that section 2 is “particularly broad” and should be
given a liberal interpretation. The Court of Appeal made a similar observation
earlier in Gestion Complexe Cousineau (1989) Inc v Canada (Minister of Public Works and Government Services), [1995] 2 FC 694 at para 7 (CA).
[17]
The Court of Appeal provides a robust overview
of the approach to characterizing the “public character” of an action in Toronto
Port Authority. While this case was not relied upon in argument by
counsel, it is nonetheless the leading authority on the approach to
characterizing public acts, and is therefore directly applicable. First,
Justice Stratas notes that “[t]he majority of decided cases concerning the
characterization of a “federal board, commission or other tribunal” turn on
whether or not there is a particular federal act or prerogative underlying an
administrative decision-maker's power or jurisdiction” (at para 48). However,
critically, he also notes that the ultimate legal question is directed at the power
exercised rather than the exerciser of power. Put differently,
being subject to judicial review depends principally on whether or not the
power exercised possesses public character, not whether the actor exercising
that power is technically public itself (at paras 52-60).
[18]
With that focus established, Justice Stratas
then outlines a non-exhaustive list of factors relevant to the public vs.
private characterization flowing from the jurisprudence, namely:
a)
the character of the matter for which review is
sought,
b)
the nature of the decision-maker and its
responsibilities,
c)
the extent to which the decision is founded in
law as opposed to private discretion,
d)
the body’s relationship to other statutory
schemes or other parts of government,
e)
the extent to which the decision-maker is an
agent of government or is significantly influenced by a public entity,
f)
the suitability of public law remedies,
g)
the existence of compulsory power over individuals,
and
h)
whether the conduct has a serious public
dimension (an exceptional circumstance).
[19]
In light of the foregoing, the legal question in
this case is whether the Innu Nation’s election possesses public character and
is thus subject to judicial review.
(2)
Application of the Governing Principles to the
Disputed Characterization
(a)
Decision Founded in Private Discretion
[20]
Following the approach in Toronto Port
Authority, I first note that the Innu Nation’s powers do not originate from
a federal act or prerogative. While it is a not-for-profit corporation
operating under the legal authority of the Canada Corporations Act, its
mandate and powers come from its by-laws, not statute. Consequently, factor c)
from Toronto Port Authority (whether the power is founded in law or
private discretion) favours the characterization of the Innu Nation election as
beyond the ambit of judicial review. That being said, an analysis of the
remaining factors tilts the scale demonstrably in favour of the opposite
conclusion.
(b)
Character of the Matter
[21]
In this case, the character of the matter for
which review is sought is the Innu Nation’s election. It is difficult to
conceive of a power more public in nature than an election of those who will
exercise wide and significant powers which directly affect individuals and, for
the Innu people, the generations that will follow. The decisions of the Innu
Nation have wide-reaching implications for its Aboriginal membership that
directly correspond with those of typical band councils. In that regard, this
election is entirely dissimilar from an election of the board members in a
corporation whose conduct relates solely to private matters. While I readily
accept that not all elections of not-for-profit corporations are the exercise
of public powers, the election of the Grand Chief and councillors of the Innu
Nation is not a “private matter” akin to membership in a club or philanthropic
association as argued. This election, when situated in light of the past,
current and stated intentions of the Innu Nation, is in substance, the exercise
of a public power. This brings me to the second factor from Toronto Port
Authority: the nature of the Innu Nation and its responsibilities.
(c)
Nature of the Decision-Maker
[22]
The nature of the decision-maker (the Innu
Nation) and its responsibilities also support the characterization of the
election as a public act. In particular, the Innu Nation’s intended and actual
activities support its characterization as a band council (whose elections
certainly fall within the ambit of judicial review: Elders of
Mitchikinabikok Inik (Algonquin of Barriere Lake) v Algonquins of Barriere Lake
Customary Council, 2010 FC 160, [2010] 2 CNLR 275, at para 106).
[23]
First, on its website, the Innu Nation describes
and represents itself to the Innu and others as the governing body. This
description is clearly inconsistent with the exercise of “private powers,” as
argued by the Innu Nation:
Innu Organizations and Land Claims
The
Innu people of Labrador formally organized under the Naskapi Montagnais Innu
Association (NMIA) in 1976 to better protect their rights, lands, and way of
life against industrialization and other outside forces. The NMIA changed its
name to the Innu Nation in 1990 and today functions as the governing body of
the Labrador Innu. The group won recognition for its members as status
Indians under Canada’s Indian Act in 2002 and is currently involved in land
claim and self-governance negotiations with the federal and provincial
governments. [Emphasis added]
[24]
Second, the Innu Nation functions as a band
council by acting as a representational governing body over a discrete
Aboriginal community. In fact, there are representational links between the
band councils and the Innu Nation. For example, disputes over membership in
the Innu Nation is to be determined by reference to band council membership
lists. Further, the Innu Nation is elected by members of the two bands, each
of which has equal representation on the board. The Chiefs of each band also
sit on the council of the Innu Nation. Counsel for the respondent admits that
the Innu Nation derives its authority “from the people.”
[25]
Third, the Innu Nation acts as a band council by
pursuing and executing a mandate similar to that of a band council. Drawing
from its own evidence, there are three components to the mandate of the Innu
Nation. The first is to provide “a unified political voice to protect the Innu
people from outside threats.” The second is “to pursue land claims agreements”
and the third is “to assist in the delivery of education, healthcare and other
social services.” In furtherance of this mandate, the Innu Nation has
performed numerous acts consistent with its characterization as a band council,
some of which I outline below.
[26]
In November, 2012, the Innu Nation was the
signatory to the New Dawn Agreement with the government of Newfoundland and Labrador and Newfoundland Power. It is signed by the Deputy Minister of Justice, the
President of the Energy Corporation of Newfoundland and Labrador, and the Innu
Nation Grand Chief and Deputy Grand Chief.
[27]
The agreement is a land claim settlement in
principle and is supplemented by an impact and benefits agreement which ensures
that the Innu people will benefit from resource development on its territory.
It is a comprehensive framework that provides for revenue sharing from the
Upper Churchill hydro electric development, the identification of 5000 square
miles of Innu lands in the land selection process, 130,000 square miles over
which certain hunting and trapping rights can continue, and commitments to
process the identification of hydro transmission corridors.
[28]
Significantly, some sections of the agreement
are contingent upon the timely resolution of consultation obligations. As Haida
Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR
511 and Mikisew Cree First Nation v Canada (Minister of Canadian Heritage),
2005 SCC 69, [2005] 3 S.C.R. 388 teach, consultation is a core component of the
relationship between Aboriginal people and governments. In this case, the
consultation process with the Innu people is conducted through and with the
Innu Nation.
[29]
Section 2(a) of The New Dawn Agreement also
provides that the Innu Nation is the recipient of land claim settlement funds
and of the continuing royalty stream from the Upper Churchill Project:
Upper Churchill
Project
(a)
The Province shall pay to Innu Nation or, if established, the Innu Government
(collectively hereafter “Innu Nation”) an annual payment of two million
dollars Canadian ($2,000,000.00) commencing upon ratification and execution of
the IBA and terminating on August 31, 2041.
[30]
These facts demonstrate that the Innu Nation
exercises financial, political and legal control and authority consistent with
its character and stature as a public body, exercising public powers.
[31]
This conclusion is reinforced by other conduct
and decisions of the Innu Nation, all of which are of a public character:
a)
The Innu Nation has undertaken legal action on
behalf the Innu people in the two communities.
b)
The Grand Chief and Deputy Grand Chief of the
Innu Nation, along with the two Chiefs of the Bands, represent the Innu at the
Round Table, a Federal and Provincial government forum for discussion of common
issues.
c)
The relocation agreements, by which the Band
formerly moved from the Davis Inlet to Natuashish were negotiated by the Innu
Nation.
d)
The comprehensive health care agreement with the
governments of Canada and Newfoundland and Labrador was negotiated by the Innu
Nation, along with the band councils.
e)
The Fisheries Guardian Program, which trains
Innu people to work as fisheries conservation officers was negotiated between
the Innu Nation and the Government of Canada.
f)
The province of Newfoundland and Labrador
negotiated an agreement with the Innu Nation to allow full Innu participation
in forest planning in Central Labrador.
g)
The Innu Nation has received on behalf of the
Innu, over $4,000,000,000 in royalties from Inco Ltd. in respect of the Voisey Bay nickel mine. The Innu Nation is responsible for the proper management of these
financial resources on behalf of the Innu people.
h)
The agreement of the Innu Nation to the New Dawn
Agreement is binding on band councils and future governments.
[32]
While not determinative, I note that the Innu
Nation has recently abandoned the formal titles characteristic of a
not-for-profit corporation under the Canada Corporations Act (Board of
Directors, President and Vice-President) and replaced them with the titles and
offices consistent with public governing authorities; those of Grand Chief,
Deputy Grand Chief and council.
[33]
Finally, Canada, Newfoundland and Labrador recognize the Innu Nation as the political representative of the Innu Nation.
This is not disputed. This fact, together with several of the facts noted
above, bear on criteria d) of Toronto Port Authority, namely, the body’s
relationship to other parts of government.
[34]
All of these activities provide context to and
frame the specific question at hand, and in turn support the characterization
of the Innu Nation as a “federal board, commission or other tribunal,” in so
far as it holds elections.
(d)
The Existence of Compulsory Power over
Individuals
[35]
A third Toronto Port Authority factor,
the existence of compulsory power, further establishes the Innu Nation as a
public body. By way of example, the Innu Nation passed a resolution in
February, 2013 authorizing the harvesting of caribou in the George River herd.
The Innu Nation says that it is not a by-law enacted under section 81 of the Indian
Act, because it was not referred to the Minister for approval, and is
therefore irrelevant to the disputed characterization.
[36]
In substance, it is a by-law and was clearly
intended by the Innu Nation to be treated as such. The resolution provides, in
part:
AND
WHEREAS the George River Caribou Herd is currently in a state of decline, and
Innu Nation is determined to take necessary steps to sustainably manage their
hunt through the exercise of communal jurisdiction to limit the amount of
caribou that may be harvested by Innu Nation Members;
AND
WHEREAS the Innu Nation has consulted with the Innu Nation membership and
obtained the advice and direction of leadership, elders and hunters, BE IT
HEREBY RESOLVED THAT:
Innu
Nation will establish community harvesting guidelines […] that will limit the
taking of caribou […] These guidelines will be in effect for a period of one
(1) year. Innu Nation will continue to monitor the situation and will take such
steps as may be necessary in future.
[37]
The regulation of harvesting of fur bearing animals
is, under the Indian Act, a matter within the authority of the band
council. When asked as to the basis of the Innu Nation’s authority to issue a
resolution of this nature, Grand Chief Prote Poker admitted that the Innu
Nation functions as the Aboriginal governing body:
Q.
And how come—for what reason, why wouldn’t the respective band councils have
passed this resolution?
A.
Because it’s the responsibility of the Innu Nation, as we—we act as a governing
body, as a government, moving—even though we’re not a government, but we are
moving in that direction, so we are just exercising our right and when we
become a government, we are just practicing or doing the things that we need to
do to become a government.
[38]
While the Innu Nation contends that the resolution
was not binding, the evidence of Mr. Pokue, which was not disputed on this
point, was to the contrary. The resolution was posted in public places, had
the form and style of a by-law and, importantly, according to Grand Chief
Poker, the Innu Nation expected that the Innu people would abide by its terms.
(e)
Suitability of Public Law Remedies
[39]
The availability and suitability of public law
remedies is a further criterion to be considered in characterizing the act in
question.
[40]
Allowing status under the Canada Corporations
Act to be determinative would restrict the Innu people’s access to
effective judicial remedies. Judicial review would be limited to those
governance functions that still remain with the local band council. In respect
of the significant activities and decisions undertaken by the Innu Nation, many
of which are of the highest order of decision making, and have direct impact on
the people, there would be no recourse.
[41]
The respondent says that the applicant has
remedies available to it under the Canada Corporations Act. There are
problems, legal and practical, with this. First, apart from a vague allusion
to oppression remedies, no means of recourse was identified. Oppression
remedies are available in respect of Canada Business Corporations Act (RSC,
1985, c C-44), and not in respect of Canada Corporations Act entities.
While this is sufficient to dispose of this argument, the respondent’s
suggestion would depend on the awkward conceptualizing of band members as
shareholders, and some delineation of who is a “minority” shareholder. It is a
very awkward fit. Importantly, if dissatisfied with the management a Canada
Corporations Act corporation, members can simply walk away and choose not
to participate. Here, however, the actions of the Innu Nation reach deep into
the heart of daily life of band members, and the generations that will follow.
They cannot simply walk away. These observations highlight the wisdom of
focussing on the nature of the power exercised, and its consequences.
[42]
Moreover, to accept the narrow definition of a
federal board advanced by the respondents would produce odd and dysfunctional
results. As we have seen, some of the agreements with respect to policing and
health care were negotiated between the governments, the Innu Nation and the
band councils, acting jointly. The decision to enter into the agreement, and
decisions taken under the agreement (assuming that they are amenable to
judicial review), would be reviewable only to the extent that they were
attributable to the Band, but not the Innu Nation.
[43]
Third, construed as “private powers,” the
binding agreements made by the Innu Nation and its conduct, generally, would be
immune from judicial review. The power at hand, the election, would be
detached from the vast body of law which affirms the importance of procedural
fairness and natural justice in the Aboriginal electoral process, and regulated
by private law constructs, inappropriate to the nature of the interests at
hand.
(f)
Serious Public Dimension
[44]
Public confidence in the integrity and fairness
of electoral processes in respect of governing bodies, regardless of the
office, is integral to our democratic principles. Elections for public office,
such as those of the Innu Nation, must conform to the principles of natural
justice. As Justice Marshall Rothstein stated in Long Lake Cree Nation v Canada (Minister of Indian and Northern Affairs), [1995] FCJ No 1020 (FCTD)
at para 31:
Councils
must operate according to the rule of law whether that be the written law, custom
law, the Indian Act or whatever other law may be applicable. Members of
Council and/or members of the Band cannot take the law into their own hands.
Otherwise, there is anarchy. The people entrust the Councillors to make
decisions on their behalf and Councillors must carry out their responsibilities
in a way that has regard for the people whose interest they have been elected
to protect and represent. The fundamental point is that Councils must operate
according to the rule of law.
[45]
The point was made more recently by Justice
Robert Mainville who stated in Algonquins of Barriere Lake v Algonquins of
Barriere Lake (Council), [2010] FCJ No 185 (Mitchikinabikok Inik):
…those who carry out
and supervise leadership selection processes for public bodies, such as a band
council, are required at a minimum to project and demonstrate a degree of fair
play and impartiality such as to ensure a credible result from those processes.
[46]
Elections that select individuals who exercise
broad and significant power over communities of individuals, and in particular,
powers that are conventionally exercised by public bodies, have a serious
public dimension. In light of this, the contention that this election is merely
analogous to an election to the executive of a private club, fails.
(3)
Specific Arguments to the Contrary
[47]
The respondent points to the absence of an
express authority under the Indian Act for some of the functions carried
out by the Innu Nation. Such direct linkage has never been a requirement. A
similar argument was advanced in Sparvier v Cowessess Indian Band,
[1993] 3 FC 175. In that case, it was argued that there was no jurisdiction in
the Federal Court to hear a customary band council election as it was not a
band council election under the Indian Act. Justice Rothstein rejected
that argument. In doing so he drew on long-standing appellate jurisprudence,
including Peter Canatonquin et al v Louis Gabriel et al, [1980] 2 FC 792
at 793 (CA):
We
see no merit in the appellants' contention that the Trial Division does not
have jurisdiction because the only issue raised by the action, namely the
validity of the election of the defendants to the Council of the Band, is
governed by customary Indian law and not by a federal statute.
[48]
I should, before leaving the issue of the public
character of the election process, turn to the decision in Lonechild v
Federation of Saskatchewan Indian Nations, Inc, [2011] SJ No 524 (Sask.
QB).
[49]
The decision stands on an entirely different
factual footing than this case. In Lonechild, the Court was clear that
the Federation of Saskatchewan Indians did not hold itself out as the
government, was organizationally discreet from the Bands, did not perform band
council functions and that its mandate did not overlay with that of the Bands.
There are numerous distinctions between the Lonechild case and the facts
before me, such that the case is of no assistance to the Innu Nation.
IV.
Conclusion
[50]
Band councils cannot circumvent judicial review
by delegating their functions to an umbrella corporation. Nor can elections
and other government conduct and decisions be immunized from judicial review by
sheltering behind a corporate structure. Band councils should be free to
modify existing structures of governance or to consider innovative models in
order to address local needs. However, the communities that they govern should
not feel that in making these choices they lose access to justice.
[51]
The respondent’s argument is predicated on the
fact of its corporate status. This status as a corporation with “members”, the
argument goes, determines the characterization of the election as a private
matter. In my view, to accept this argument would have the Court turn a blind
eye to the facts and focus on the legal form. The courts have long departed from
excessive formalism in their analysis of public law issues. Such an approach
also directly contradicts the contextual and “substance over form” approach
endorsed by the Federal Court of Appeal in Toronto Port Authority.
[52]
While the Canada Corporations Act may be
the legal platform from which the Innu Nation technically operates, as we have
seen, many of the activities that it performs are band council functions. It
is important to note that the functions of the Innu Nation are not simply
“analogous” to those of the band council. They are, in fact, band council
functions. The negotiation of the agreements for the provision of healthcare,
policing and the regulation of trapping and fishing on reserve lands are core
band council functions. The fact that some services may be delivered at an
operational level by the band councils themselves, while another factor in the
equation, does not tip the balance in favour of the election being a private
power. Similarly, the absence of an express delegation of authority from the
band council to the Innu Nation is not a compelling argument. At a minimum,
the band councils have acquiesced in the Innu Nation discharging many of their
core functions.
[53]
The question of whether an institution, body, or
person is acting in the capacity of a federal board in a given set of
circumstances is one that must be resolved on a case by case basis, having
regard to the criteria articulated in Toronto Port Authority regarding
public character. The Innu Nation’s election is properly the subject of
judicial review because it possesses such public character. Its public
character flows from a consideration of the multiple factors established in Toronto
Port Authority in relation to “federal boards, commissions or other
tribunals” and the application of those factors to the makeup and conduct of
the Innu Nation.
[54]
To be clear regarding the scope of this
decision, I have determined that the Innu Nation, in the holding of its
election, is exercising public powers and falls within the definition of
section 2 of the Federal Courts Act. I make no determination with
respect to other functions that may be performed by the Innu Nation.
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