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Band councils, band moneys and fiduciary duties

Band councils owe fiduciary duties to their bands and to band members. These are distinct duties and while they are generally compatible they can, in some circumstances, conflict.

Although the relationship between these duties has not received much attention from courts or academics, it is of great practical importance for band councils. Perhaps the most critical context for these duties is the use of band moneys. When council decides whether to spend, save or invest band moneys, it must consider and satisfy its fiduciary duty to the band. It must settle on the use that will best serve the long-term interests of the band as a distinct cultural, economic and political unit. When council decides how to spend band moneys, it must fulfill its fiduciary duties to band members. It must act in their best interests, which must be understood in light of the best interests of their community. This task is further complicated by the existence of at least six different kinds of band moneys, each of which can present different procedures and considerations.

Councillors should be aware of their obligations, as well as the legal mechanisms by which those obligations can be enforced. This paper aims to help both councillors and lawyers navigate this relatively uncharted area of Canadian law.

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John Rich | Aboriginal Law