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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

Aboriginal rights litigation is notoriously complex. It involves proof of facts dating back hundreds of years.

The jurisprudential life of the Crown’s duty to consult with aboriginal people in the interim of the final determination of aboriginal claims is almost a decade long. Since the Supreme Court of Canada’s confirmation of the duty in 2004, First Nations have spent a lot of litigation time and effort trying to determine just how, when, and where they can enforce this duty.

In British Columbia v Okanagan Indian Band, LeBel J stated that negotiation “remains the ultimate route to achieving reconciliation between aboriginal societies and the Crown.” Yet while negotiation is critical to achieving reconciliation, it need not and should not be the exclusive domain of reconciliation.

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