the personal intended harm to the First Nation or any member. However, if intent to harm the First Nation is shown then punitive or exemplary damages may be ordered to punish the wrongdoer. In addition to the remedy of damages, other special remedies such as an accounting of profits wherein the fiduciary must reimburse the First Nation or corporation for any gains made by him or her may be ordered. Avoiding and Preventing Liability The high standards and the significant personal risks that go with being characterized as a fiduciary mean that Chiefs and Councillors should be careful to observe the duties of care, diligence, and skill expected of them. If you want to protect yourself you will do at least the following: Attend all meetings; Insist that written and background materials be provided to you well in advance of meetings, particularly when those materials are necessary to you making an informed vote; Always carefully review and read all documents and background materials; Insist on written opinions from legal counsel, accountants, financial advisors, and other professionals on any important decisions; Carefully review all written opinions, make sure you understand them, and, most importantly, follow the advice which is given to you; Make sure that minutes are taken of all Council meetings; Make sure you review all Council minutes and that you find them accurate; Keep your own notes; Keep your notes and minutes in a binder or a file so that you have them organized into an easy reference; If you are in the minority on a decision, make sure your disagreement is made known and is recorded in the record of the minutes. Do not abstain as a means of registering disapproval; Read and know the policies and bylaws of the First Nation; Know the internal control structures in place at your First Nation. Do you know who has signing authority for cheques and who can sign contracts on behalf of the First Nation? Know what property the First Nation owns and who has responsibility for it; Make sure that committees and Boards are reporting regularly to the Council; Avoid even the appearance of conflict of interest! As the above list makes clear, it is important that Councillors keep themselves knowledgeable about the affairs of the First Nation and that they ensure that they have all the background and advice they need to make proper decisions. The Fiduciary Duties of Chief and Council has been prepared by Ackroyd LLP, Barristers and Solicitors for educational and general information purposes only. The resolution of all legal problems depends on a consideration of the facts and relevant circumstances. The material set out in this document is not legal advice. ACKROYD LLP 1500 First Edmonton Place 10665 Jasper Avenue Edmonton, Alberta T5J 3S9 Telephone (780) 423-8905 Fax: (780) 423-8946 ackroydlaw [email protected]
Posted on: Tue, 18 Nov 2014 21:12:44 +0000
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