DOHM: Public authority or private contractor? Navigating conflicting band identities

Last February, a BC Supreme Court Justice granted an injunction forcing the Okanagan Indian Band to continue providing fire and emergency services to roughly 700 Parker Cove residents after the band threatened to cut off those services with just 60 days' notice over an unresolved dispute about fire protection fees. 

The interim ruling, Parker Cove Properties Limited Partnership v. Okanagan Indian Band, 2026 BCSC 601 illustrates a broader problem in Canadian Aboriginal law: bands may simultaneously occupy multiple legal identities, deploying whichever one serves their arguments best.

The band attempted to claim it was a private contractual party when accountability was at stake, but also a public authority when powers of governance were at stake. The Justice put it bluntly: "they cannot have it both ways". 

Under the Indian Act, bands are not autonomous governments. The Crown holds reserve lands on their behalf and exercises discretionary control over their affairs. From that relationship flows the fiduciary duty established by the Supreme Court of Canada, a duty rooted in the fact that the Crown assumed control over land and resources belonging to Indigenous peoples and must act in their best interest. The band, in that framework, is a ward, and the Crown is a trustee with enforceable obligations.

But since Haida in 2004, bands have also been recognized as constitutional rightsholders whose title and governance authority the Crown must accommodate before making decisions that affect their territories. Under this identity, bands are not wards at all. Rather, they resemble distinct governments whose consent carries legal weight against the authority of the Crown. 

And then there is the third hat, which the OKIB tried to wear in the Parker Cove proceedings: the band as a private entity engaged in independent commercial dealings. Under this identity, the band would be accountable only to the terms of a contract and not to the standards that apply to governments providing essential services, nor subject to the discretionary control of the Crown as a ward. 

How can one entity genuinely occupy all three of these positions? How can Courts know which duties, responsibilities, and standards ought to apply to a band’s conduct if they may simultaneously exist as corporate entities with significant financial holdings, wards to whom the Crown has a fiduciary duty, and governments whom the Crown engages in a “nation-to-nation” relationship? 

In this instance, the OKIB entered into a fire services agreement under s. 81 of the Indian Act, using its governmental powers to regulate and charge for services on reserve land. The plaintiffs alleged that the fees were structured less like a cost-recovery charge and more like a property tax, tied to assessed value rather than the actual cost of running the fire department. In this sense, the band’s role is that of a government exercising fiscal authority.

But when residents of Parker Cove asked how the fees were calculated and whether the cost was being spread fairly across all leaseholders, the band refused to say. Its own internal memo, written ten days before it delivered a termination letter to every household in the Parker Cove development, acknowledged that the fee increases "would probably be recognized as being unfair." Nevertheless, the band proceeded with its attempt to cut off essential services with little notice. 

The court found the letter "shocking." The band's operations manager then swore an affidavit claiming the fire department was heading into deficit and could not sustain operations without payment from the plaintiffs. But the band's own publicly available audited financial statements showed a $79 million surplus. The Justice called the evidence in that affidavit "highly dubious and very troubling" for a public authority to put before a court.

The Province is nowhere to be found in this dispute. In June 2025, when the threat to cutoff service first became public, the Province said it was staying out because "this is a contractual matter between Okanagan Indian Band and the company leasing the land."

The Province’s response therefore adopted the band's preferred framing as a private contractor engaged in a simple contract dispute. 

Despite having spent years recognizing the band as a government for purposes of consultation, consent, and the accommodation of rights, in this instance, the Province was content to treat this same band as a private contractor the moment its conduct raised questions about public accountability. The seven hundred residents of Parker Cove, many elderly and in a high risk wildfire zone, have subsequently been left to fight by themselves in court. 

More broadly speaking, there is no clear way for the court to reliably determine which identity a band is, or ought to be, occupying in various scenarios. The complications which result from the bands acting simultaneously as private corporate entities and as wards of the Crown arises in other litigation as well, for example in the case between the Lil’wat Nation and BC Hydro and between the Metlakatla First Nation and the Prince Rupert Port Authority. 

Canadian Aboriginal law developed fiduciary duty, the consultation rights framework, and the Indian Act governance system in different eras and for different purposes.

Therefore, no court or legislature has produced a coherent account of how these frameworks should interact when a band might simultaneously act as a taxing authority, claim the protections of a Crown ward, assert their status as a constitutional rightsholder, all while being engaged in a “nation-to-nation” relationship on par with the Crown, acting as a co-governing authority through section 7 agreements under DRIPA, or even being recognized as an “authorized government” through agreements such as the Haida Nation Recognition Act.

In the OKIB fire protection case, the result is that a band has exercised governmental power, issued invoices structured like a tax, withheld financial disclosure from the people being charged, threatened to cut off fire services with 60 days' notice, and then told a court it is simply a private party in a contractual dispute that should be left to sort itself out. 

A full trial of the Parker Cove case is scheduled for August 2027. The court will be tasked with attempting to juggle the competing identities and responsibilities of the band in this instance.

Laurisa Dohm is a BC-based consultant and policy advisor. She holds an M.Sc from Gothenburg University.