Band Council Remote Decision-Making
In the midst of the COVID-19 outbreak, many organizations are wondering how they can make key decisions without meeting in large groups. Band Councils are no exception. These challenging times may require that certain aspects of Chief & Council function as "essential services" (another topic soon discussed in this series) for delivery of health, social services, community emergency response, community safety and infrastructure services, to name but a few areas where Chief & Council are required.
Band Council decision-making processes are prescribed by the Indian Act (the "Act") and the Indian Band Council Procedure Regulations (the "Regulations"). The Act requires that council decisions be made at "duly convened" council meetings, which requires a majority of councillors to be present at a council meeting in order to pass a Band Council resolution ("BCR"). This requirement is set out in section 2(3)(b) of the Act as follows:
(3) Unless the context otherwise requires or this Act otherwise provides,
(b) a power conferred on the council of a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the councillors of the band present at a meeting of the council duly convened.
Though neither the Act nor the Regulations explicitly requires that meetings be conducted in-person, certain conduct required by the Regulations effectively implies that meetings must take place in-person. However, because section 2(3) of the Act only applies "unless the context otherwise requires", Band Councils are afforded some flexibility if exceptional circumstances make in-person meetings impractical or impossible. In our opinion, the COVID-19 pandemic provides such exceptional circumstances.
Thus, for the foreseeable future, in-person Band Council meetings can and should be replaced with teleconference or videoconference meetings. Councils should, however, continue to follow all other procedural requirements when conducting meetings and passing BCRs.
When the Chief summons a "special meeting", the Act and Regulations require that: (a) the meeting be called at the request of a majority of councillors; (b) advance notice be given; and (c) the meeting be attended by a quorum of council. Each of these requirements should be followed even when meetings are conducted remotely. Practically speaking, this means:
- Councillors should be requesting meetings via email, with a proposed meeting agenda included with each request.
- The Chief should only summon a special meeting once a majority of councillors has emailed an endorsement of the request.
- Meetings should not proceed until a quorum of councillors are connected on the teleconference or videoconference line.
- Councillors must ensure they are maintaining confidentiality during meetings, meaning calls should be taken in a private room away from anyone (including family members) who is not part of Council and care should be taken to safeguard emails and important and sensitive documents.
There is an extra complication when conducting "regular meetings" of council, as section 23(1) of the Regulations requires that all regular meetings be open to members of the band. This, of course, will be much more difficult to coordinate remotely. If your council has a regular meeting scheduled in the near future, consider proceeding as follows:
- If your band is set up with a teleconference line or on a videoconference service, you may wish to provide call-in details to members in advance of the regular meeting. Members can be asked to mute their phones or other devices until they wish to speak.
- If a teleconference or videoconference involving membership is impractical or impossible, consider sending an agenda for the regular meeting to membership at least two weeks before the meeting takes place, and requesting that members provide feedback on agenda items via email or telephone. Then, once the meeting has been conducted, provide detailed meeting minutes to members as quickly as possible, and solicit feedback again. Avoid making any major decisions which require meaningful community dialogue in this way.
- If there are no urgent matters needing to be discussed with the community, consider postponing the regular meeting until it is safe for your community to gather again.
Signing BCRs in Counterparts
In order to execute BCRs without holding in-person council meetings, we recommend including a "counterparts" clause in all upcoming BCRs and with the use of electronic signatures. Such a clause allows each councillor to sign a separate physical piece of paper and circulate a scanned copy to the rest of council, or to circulate a pdf document for the placement of electronic signatures. Once each signature page is compiled into one document, along with the body of the BCR, this constitutes a validly passed BCR. A sample clause reads as follows:
This Band Council Resolution may be signed in counterparts and such counterparts together shall constitute one and the same instrument and an electronic facsimile or portable document format (PDF) transmission hereof signed by any councillor named below will be sufficient to establish the signature of that councillor and to constitute the consent in writing of that councillor to the foregoing resolutions and, notwithstanding the date of execution, shall be deemed to be executed as of the date set forth above. In addition, a member of Council may sign by way of electronic signature.
In the uncertain times we are currently facing, it is more important than ever for councils to be open and transparent with membership. We suspect communities are heeding the advice of health officials and are suspending all community gatherings for the time being. Under these circumstances, the best way for Councils to achieve certainty in their decisions and instill confidence in their members is to continuously communicate with membership and abide by normal council procedures, as prescribed by the Act and Regulations, as much as possible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.