McLeod Lake Indian Band v. Chingee
T-2327-97
Reed J.
21/8/98
9 pp.
Questions of law for determination by Court: whether Band has authority to determine applicable custom (whether electoral, hereditary or any other method) for selection of chief and council of Band; and to determine terms of such custom by majority decision of Band members attending general meeting of Band convened with notice-Band selecting council according to band custom, not according to procedures prescribed by Act, s. 74-Dispute arose when election held to choose chief and council for Band, following procedures adopted by general meeting of Band-Parliament intended, when enacting relevant provisions of Indian Act, would be for band to determine custom that would govern its selection of "council of band"-That band members determine custom conclusion in accordance with first principles, with case law on subject, workable and practical-Custom by its nature not frozen in time-Changes in response to changed circumstances-Reference to "custom of the band" in Act, s. 2(1) cannot be interpreted as preventing band from changing custom according to which it governs itself from time to time in response to changing circumstances-Custom must include practices for choice of council generally acceptable to members of band upon which there is broad consensus: Bigstone v. Big Eagle, [1993] 1 C.N.L.R. 25 (F.C.T.D.)-Approval by majority of adult members of Band probably safe indication of broad consensus-Whether majority decision by Band members attending general meeting demonstrates broad consensus depends on circumstances of that meeting-Answer to question 1: yes-Answer to question 2: authority exists but whether such decision demonstrates broad consensus exists will depend on circumstances of meeting-Indian Act, R.S.C., 1985, c. I-5, ss. 2(1) "council of the band", 74.