Canada: Liability Protection For Indigenous Governments And Their Businesses Providing Essential Services

On April 2, B.C.'s Minister of Public Safety and Solicitor issued an order (the "Order") under the Emergency Program Act which provides that a person providing essential services cannot be held liable if an individual is infected, or likely infected, or exposed to COVID-19 as a result of that person providing an essential service, provided that the person: (a) is providing such service in accordance with the applicable emergency and public health guidance; or (b) reasonably believed that they were operating or providing the essential service in accordance with all applicable emergency and public health guidance.

The Order has implications for Indigenous Governments and their businesses.  Namely, Band Councils and their businesses  will be protected from liability if staff, or other individuals, are exposed to COVID-19, provided that they are operating in compliance with guidelines of applicable health authorities and other emergency orders issued by the Province.  As provided in the Order, "health authorities" includes the First Nations Health Authority (the "FNHA").  As such, on the basis of the Order, Band Councils can be confident that as long as they are complying with provincial and FNHA orders and guidelines, they cannot be held liable by individuals who may come in contact with COVID-19 as a result of providing essential services on behalf of the Band Council.

However, not all Indigenous Government  services will be considered essential.  Clark Wilson will be publishing an article shortly which sets out which Band Council services are likely to be considered "essential" under provincial and federal lists.