Date: 20060216
Docket: T-588-04
Citation: 2006 FC 213
Ottawa,
Ontario, February 16, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
MARCEL LUKE HERTLEIN BALFOUR
Applicant
and
NORWAY HOUSE CREE NATION CHIEF AND
COUNCIL AND RON EVANS, ERIC APETAGON,
ELIZA CLARKE, FRED MUSKEGO,
MIKE MUSWAGON, AND
LANGFORD SAUNDERS
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, C. F-7 (the Act) of the ongoing course of conduct
and state of affairs created by the actions of some and/or all of the
individual respondents purporting to act in the name and on behalf of the
respondent Norway House Cree Nation (NHCN) Band Council.
RELEVANT FACTS
[2]
The
applicant is an elected councillor of the NHCN Band Council. The respondents
are the NHCN Chief and Council as well as the individually elected Band councillors.
[3]
On
January 23, 1998, the Minister of Indian and Northern Affairs Canada (the Minister)
issued an order to exclude the NHCN from the electoral provisions of the Indian
Act, R.S.C. 1985, c. I-5 (Indian Act). As such, the NHCN became a “custom
band” and the Indian Council Regulations under the Indian Act no
longer applied to the NHCN Council meetings. The NHCN Chief and Council adopted
a replacement for the said regulations, being the NHCN Policy and Procedural
Guidelines Manual (the guidelines). The Norway House election code also
referred to as the Election Procedures Act is part of the said guidelines.
[4]
On
March 14, 2002, after a Band Council election, the three re-elected respondent
parties, Muskego, Muswagon
and Clarke together with the re-elected respondent party Evans met with the
three defeated councillors at a special Council meeting between the election day
and the convened meeting of March 22, 2002. At this meeting the aforementioned
group of individuals purported in the name of the NHCN Band Council to award a four
year job to a defeated councillor. They also ratified 53 NHCN Band Council
Resolutions (BCRs) forms which purported to reflect earlier decisions of
Council.
[5]
The
“quorum of Council” is a sub-group of the Band Council councillors that
operates separately from the rest of the Band Council. It does not follow the
rules laid out in the guidelines for conducting convened meetings of Council.
This sub-group of councillors should not be confused with what constitutes the
quorum of the Band councillors at a convened Council meeting that is subject to
the guidelines and paragraph 2(3)(b) of the Indian Act.
[6]
On
or about March 17, 2004, three members of the sub-group of the NHCN councillors
signed a resolution directing their solicitor to pursue a claim against Don
Godwin for misrepresentation and sought an injunction against him. On March 22,
2004, the aforementioned resolution, called NHCN BCR form N.H./2003-04 #128,
was submitted by NHCN Band Council into the Court of Queen’s Bench in Thompson, Manitoba, as evidence
of an official decision of the respondent Band Council. However, that
resolution which was drafted by the sub-group was never ratified by the Band
Council before it was submitted to Court. The resolution was eventually
ratified at a duly convened special Council meeting on April 1, 2004.
[7]
On
March 22, 2004, the applicant filed a notice of application for a writ of quo
warranto. On the very next day, March 23, 2004, the applicant was locked
out of the NHCN Chief and Council building and his councillor’s office therein.
[8]
The
applicant is paid a councillor’s honorarium of $60,000 per year. After
initiating the present judicial review proceedings, two of the applicant’s
honorarium remuneration payments were withheld. The subsequent honorarium
remuneration payments were reduced to about $189 every two weeks, or about $5,000
per year.
ISSUES
1.
Does the
Federal Court have jurisdiction in the present matter?
2.
Have the elected
Chief and all councillors vacated their positions?
3.
Should the sub-group
of Band councillors be allowed to exist?
4.
Should the
Band Council Resolution dated March 17, 2004 be declared void?
5.
Should the
applicant’s honorarium be changed?
ANALYSIS
[9]
Prior
to beginning my analysis, I would like to stress two specific events which
occurred regarding the present matter. On March 14, 2002, after a Band Council
election, the three re-elected respondent parties, Muskego, Muswagon
and Clarke together with the re-elected respondent party Evans met with the
three defeated councillors at a special Council meeting. At this meeting the
aforementioned group of individuals purported in the name of the NHCN Band
Council to award a four year job to a defeated councillor. Clearly, those
members did not respect the outcome of the election and attempted to reinstate
a losing candidate into his former job by awarding him a contract for the
duration of an elected Band councillor’s four year mandate. Upon my analysis of
the evidence, this is but one example among many, in which members of the NHCN
Band Council have failed to respect the notion of representative democracy
regarding their activities. When a Band Council fails to respect the results of
an election, or attempts to circumvent the outcome of an election, then
democracy is at risk.
[10]
The
second event I would like to mention concerns the attempted blackmail of the
applicant. The applicant was often in disagreement with other Band Council
members regarding NHCN matters. As such, he wrote letters that were critical of
Band Council procedures and decisions. In a letter dated July 23, 2003, Chief
Evans informed the applicant that he was unilaterally removing the latter’s
portfolios and reducing his honorarium (see applicant’s record volume II at
pages 27 and Tab 18). The respondent Muswagon, as noted in the minutes of a regular
Council meeting dated December 2, 2003, acknowledged that the applicant’s
honorarium was reduced for purportedly acting to discredit the efforts made by
the Chief and Band Council. In the said meeting, a motion was passed to ratify
the decision taken by Chief Evans to reduce the applicant’s honorarium for not
complying with the wishes of Council. It was made clear to the applicant that
such a decision could have been reversed if he had just complied with the
Chief’s wishes and was not openly critical of the Band Council’s actions (see
the minutes of the NHCN Band Council meeting at page 15, Tab M of the
applicant’s record, volume III). This is a clear indication of influence
peddling and blackmail directed towards the applicant. Such behaviour is
deplorable and has no place in democratic institutions, which the NHCN Band
Council purports to be.
[11]
In
Reference re Secession of Quebec [1998] 2 S.C.R. 217, at paragraph 67,
the Supreme Court of Canada emphasized the following regarding the
notion of democracy:
Democracy in any real sense of the word
cannot exist without the rule of law. It is the law that creates the framework
within which the sovereign will is to be ascertained and implemented. To be
accorded legitimacy, democratic institutions must rest, ultimately, on a legal
foundation. That is, they must allow for the participation of, and
accountability to, the people, through public institutions created under the
Constitution.
[12]
In Long
Lake Cree Nation v. Canada (Minister of Indian and Northern Affairs) [1995]
F.C.J. No. 1020, Justice Rothstein, at paragraph 31, emphasized that Band
Councils must operate according to the rule of law:
On
occasion, conflicts can become personal between individuals or groups on
Council. But Councils must operate according to the rule of law whether that be
the written law, custom law, the Indian Act or whatever other law may be
applicable. Members of Council and/or members of the Band cannot take the law
into their own hands. Otherwise, there is anarchy. The people entrust the Councilors
to make decisions on their behalf and Councilors must carry out their
responsibilities in a way that has regard for the people whose interest they
have been elected to protect and represent. The fundamental point is that
Councils must operate according to the rule of law.
[13]
In Assu
v. Chickite [1999] 1 C.N.L.R. 14, Justice Romilly of the British
Columbia Supreme Court, discussed the source and the extent of a Band Council’s
power as it is outlined in the law. He said the following at paragraph 30:
The Act expressly confers a number of powers on Band Councils. The
courts have made it clear that, as an autonomous elected body, a Council is
entitled to make decisions as it sees fit on the matters falling within the
scope of its powers, provided that the decisions are informed and are reached
by majority vote at duly convened meetings. […]It is now generally accepted
that a Council holds not only all of these express powers, but also all
additional powers necessary to effectively carry out its statutory
responsibilities, including the power to bring or defend claims on behalf of
the Band […] It would therefore appear that the Band is bound by the decisions
of its elected Council unless they act in bad faith.
[14]
Justice
Romilly recognized that Band Council decisions were binding if derived from
powers conferred by the Act, reached by a majority vote at a duly convened
meeting and not made in bad faith. Acting in accordance with the rule of law
entails the obligation to adhere to the notion of democracy and a commitment to
respect the duty of procedural fairness regarding decisions Band councillors
take in the interest of those they were elected to protect.
1.
Does the Federal Court have jurisdiction in the present matter?
[15]
In
the present matter, at first glance, the applicant’s amended notice of
application and the relief sought seems to be contrary to Rule 302 of the Federal
Court Rules. That is, the applicant is seeking judicial review of more than
one of the NHCN Band Council’s decisions. Rule 302 states the following:
|
302. Unless the Court orders otherwise, an
application for judicial review shall be limited to a single order in respect
of which relief is sought.
|
302. Sauf ordonnance contraire
de la Cour, la demande de contrôle judiciaire ne peut porter que sur une
seule ordonnance pour laquelle une réparation est demandée.
|
[16]
In
Truehope
Nutritional Support Ltd. v. Canada (Attorney General), [2004] F.C.J. No.
806), Justice Campbell comments on the purpose of Rule 302 as well as its
exceptions. He states the following at paragraphs 5, 6 and 7:
Rule 302 reflects the policy of ensuring an expeditious and focused
process for challenging a single decision or order (Badger v. Sturgeon Lake
Cree Nation, [2002] F.C.J. No. 172, 2002 FCT 130 (T.D.) at para. 13).
Continuing acts or decisions may be reviewed under s.18.1 of the
Federal Court Act without offending Rule 1602(4) [now Rule 302]; however the
acts in question must not involve two different factual situations, two
different types of relief sought, and two different decision-making bodies
(Mahmood v. Canada (1998), 154 F.T.R. 102 (F.C.T.D.); reconsideration refused
[1998] F.C.J. No. 1836). […]
In Puccini v. Canada, [1993] 3 F.C. 557, 65 F.T.R. 127 (T.D.) […] the
Court held that s.18.1(2) and Rule 1602(4) contemplated a specific decision or
order in respect of which judicial review was sought. They could, however, also
encompass a situation, or involve an ongoing situation, where a number of
decisions are taken.
[17]
In
the present matter, the applicant invokes the exception found in Rule 302 in
order to seek judicial review of more than one of the NHCN Band Council’s
decisions. That is, he contests those decisions because they represent an
“ongoing course of action” that should not be permitted.
[18]
Another
way to be in conformity with Rule 302 occurs when the Court orders that an
exception can be made. On October 26, 2004, Prothonotary Tabib considered the
motion record of the applicant and noted the consent of the respondents to the
amended notice of application. She ordered the matter to proceed despite the
fact that judicial review was being sought for more than one decision of the
NHCN Band Council. As such, I am satisfied that the present matter is in
conformity with Rule 302 and it is unnecessary to analyze whether or not the relief
sought by the applicant is justified pursuant to the “ongoing course of action”
exception to the aforementioned rule.
[19]
The
respondents argue that this Court does not have jurisdiction in the present
matter. As such, they submit that judicial review is not available to the
applicant and claim that the request for a declaration in the nature of a writ
of quo warranto is not warranted. Considering that the present matter
was case managed and that the respondents consented to the notice of
application as it was before Prothonotary Tabib, I am somewhat reluctant to
address the issue of jurisdiction. The respondents had ample opportunity to
tackle this issue at an earlier time and I consider it suspect that they failed
to do so. With that being said, I will continue with my analysis.
[20]
The
jurisprudence has established that an Indian Band Council constitutes a
“federal board, commission or other tribunal” pursuant to section 18 of the Act
(Rider v. Ear (1979), 103 D.L.R. (3d) 168 and Gabriel v. Canatonquin,
[1978] 1 F.C. 124). As such, the Federal Court of Appeal confirmed in Salt
River First Nation 195 (Council) v. Salt River First Nation 195 [2003]
F.C.J. No. 1538, at paragraph 18, that this Court has jurisdiction to issue a
writ of quo warranto or to grant declaratory relief against an Indian
Band Council and its constituent members:
Pursuant
to paragraph 18(1)(a) of the Federal Court Act, the Federal Court has
jurisdiction to issue a writ of quo warranto or to grant declaratory relief. I
see no reason why declaratory relief which, in substance, is in the nature of
quo warranto, cannot be granted. That procedure appears to have been approved
in Lake Babine Indian Band et al. v. Williams et al. (1996), 194 N.R. 44
(F.C.A.). Robertson J.A. states at paragraphs 3 and 4:
[3] It is to be noted at the outset that the
appellants do not dispute the jurisdiction of the court to address the issues
herein. The respondents seek declaratory and injunctive relief, which in these
circumstances essentially amounts to a request for a writ of quo warranto. Quo
warranto allows a challenge of an individual's right to hold a particular
office...
[4] There is no doubt therefore that there is
jurisdiction per se, an Indian Band Council being a "federal board,
commission or other tribunal" within the meaning of ss. 2 and 18 of the
Act....Accordingly, this Court has jurisdiction to address the issue but it can
do so only in the context of a s. 18 application not the context of an action
initiated by way of statement of claim.
[21]
Again,
in Salt River First Nation 195 (Council), above, the Federal
Court of Appeal states the following regarding the applicability of the writ of
quo warranto at paragraph 20:
While
normally judicial review is conducted with respect to a decision of a federal
board, commission or tribunal, there will be occasions where relief may be
granted in the absence of a decision. An application for a writ of prohibition
is an obvious example. Quo warranto or a declaration in the nature of quo
warranto where the challenge is to the right of a public office holder to hold
office directly is another.
[22]
The
respondents mention that prior to commencing the present matter, the applicant
sent a petition to the Minister of Indian and Northern Affairs Canada
requesting the immediate annulment of the NHCN Election Procedures Act
and that the NCHN be reinstated under sections 74-79 of the Indian Act
for the purpose of good government of the Band. The Minister denied such a
request by stating that he was “not prepared to take the extreme measure of
exercising authority under section 74(1) of the Indian Act” (see
respondent’s record page 127 – affidavit of Fred Muskego).
[23]
The
respondents submit that the applicant should have commenced an application to
judicially review the Minister’s decision as opposed to commencing an
application requesting a declaration in the nature of a writ of quo warranto
in this Court. The respondents justify such a response by citing Charles v. Semiahmoo
Band Council [1998]
F.C.J. No. 45, whereby Justice Rouleau found that the proceeding was premature
because the avenues of appeal had not been exhausted. In the aforementioned
case, the eleven members of the Semiahmoo Band used the appeal procedures
contained in section 12 of the Indian Band Election Regulations to file
an appeal alleging that the election was unfair and had been conducted
unlawfully. However, the Minister dismissed the applicants' appeal and
decided that the results of the election would stand. As such, the Band members
should have appealed the Minister’s decision.
[24]
I
disagree with the respondents’ assertions. I am of the opinion that the
petition to the Minister constitutes the premature course of action and not the
application for judicial review and a writ of quo warranto in the
present matter. As previously mentioned, the NHCN Band Council is a federal board
under the definition of section 18 of the Act. If the applicant wished to
challenge the decisions taken by that board, it should have done so in this
Court first as opposed to asking the Minister for assistance by means of a
petition.
[25]
The
respondents further mention that the applicant had approached a representative
of the Minister regarding similar concerns found in the present matter. The
applicant had requested that the redress mechanisms found in the Canadian First
Nations Funding Agreement (CFNFA) between Indian and Northern Affairs Canada
(INAC) and the NHCN be used to remedy the disputes. Those disputes related to
the failure of the NHCN Council to adhere to its own operating procedures and
the issues surrounding the applicant’s salary and expense budget (see email
sent from Mr. Martin Egan (Minister’s representative) to Marcel Luke Hertlein
Balfour, dated November 25, 2003, page 316 of the respondent’s record – volume
III).
[26]
The
Minister’s representative refused the applicant’s request for assistance. As
such, the respondents submit that the applicant should have instituted an
application for judicial review of the Minister’s representative’s decision as
opposed to commencing an application requesting a declaration in the nature of
a writ of quo warranto.
[27]
I disagree
with the aforementioned position. Again, the NHCN Band Council constitutes a
federal board. If the applicant wished to challenge the decisions of the Band
Council for failing to adhere to its own operating procedures, the correct
course of action is not to request the assistance of the Minister; it is an
application for judicial review in this Court.
[28]
I
conclude that this Court does have jurisdiction in the present matter.
Further, I find that the application for judicial review, brought in this
Court, of the NHCN Band Council’s conduct and decisions, is the appropriate
course of action for the applicant. However, it remains to be seen whether or
not a writ of quo warranto is warranted. I will now turn my attention to
this very matter.
2. Have the elected chief
and all councillors vacated their positions?
[29]
The
applicant is seeking a declaration that the elected Chief and all councillors
have each vacated their office because they have missed three consecutive duly
constituted regularly scheduled meetings of the Band Council without being excused.
[30]
A
writ or a declaration of quo warranto may be requested from the Federal
Court when the office of an elected official is vacated but the official
continues to exercise his functions contrary to the law. The question that
remains is to determine whether a writ of quo warranto is an appropriate
course of action given the circumstances in the present case.
[31]
The
NHCN government has its legal basis in the Indian Act even though the
Band substituted its own electoral process, as regulated by the NHCN
guidelines, for those of the Indian Act. Similar to the federal Indian
Band Council Procedures Regulations, the guidelines specify the dates and
times for regularly scheduled Council meetings, notice requirements for special
Council meetings, procedure for agenda items and conduct during the meetings.
The pertinent provisions of the guidelines are as follows:
11.1 Frequency of Meetings Regular Chief and
Council meetings shall commence promptly at 9:00 am on the first and third
Tuesday of every month. All Managers and Directors must attend these regular
Chief and Council meetings.
11.4 Special Council Meetings. Special Council meetings
may be called by the Chief upon provision to each member of Council of
twenty-four (24) hours’ notice and a specific agenda relating to the special
meeting. Special meetings may be called by the Chief on his or her own
initiative, or by the Chief at the request of a majority of Council. [my
emphasis]
[32]
The
applicant submits that between March 5, 2002 and November 2, 2004, there were
approximately 56 officially-scheduled meetings as required by article 11.1 of
the NHCN guidelines. However, the applicant mentions that only 16 of these
meetings actually took place in the form prescribed by the guidelines. As such,
he argues that the councillors have each vacated their office because they have
missed three consecutive duly constituted regularly scheduled meetings of the
Band Council without being excused. Article 9.1(e) of the NHCN Election
Procedures Act outlines the criteria of what constitutes a vacated
position:
9.1 The office of Chief or Councillor
becomes vacant when a person who holds that office:
e) Fails to attend three (3) consecutive duly
constituted Council meetings without being excused from attendance by a
quorum of Council. [my emphasis]
[33]
Using
the applicant’s rationale, if every Band Council member failed to show up to
three consecutively scheduled meetings, they would all be guilty of vacating
their positions. The respondents submit that the applicant is incorrectly using
the terms duly constituted and duly scheduled interchangeably. I agree with the
respondents’ assertion that the applicant is wrong in believing that just
because a meeting is scheduled it is therefore a duly constituted meeting.
[34]
The
fundamental question regarding the issue of vacancy is what qualifies as a duly
constituted meeting. There is no definition of the aforementioned term in the Indian
Act or in the NHCN guidelines. In Assu, above, Justice Romilly, at paragraph 37, acknowledges
that the
notion of what constitutes a duly convened meeting is somewhat vague:
There
is very little authority as to what constitutes a "duly convened
meeting", as the term is undefined in both the Indian Act and the Indian
Band Procedure Regulations (the regulations). However, the
regulations do contain some relevant provisions, the most important of which is
the requirement that an actual meeting be held at which a quorum of Council
members is present. Where a Council consists of nine or more
members, s.6 of the regulations states that a quorum shall consist of 5
members: Indian Band Council Procedure Regulations, C.R.C. 1978, c. 950.
[35]
Justice
Romilly accepts the view that in order for a meeting to be duly convened, it
must actually be held and attended by a quorum of Council members. In the NHCN Election
Procedures Act, article 9.1(e) uses the term duly constituted as opposed to
duly convened. However, I believe those two terms are interchangeable in the context
of the present matter. I understand that article 11.1 of the NHCN guidelines
mandates that Band Council meetings be held on the first and third Tuesday
of every month. However, if a meeting does not actually take place, or takes
place but is not attended by a quorum of Council members, I find that it cannot
be considered duly constituted as required by article 9.1(e). As such, I do not
agree with the applicant’s suggestion that all the councillors have vacated
their position because they failed to attend three consecutive duly constituted
meetings.
[36]
Although
I do not support the applicant’s position, his argument raises important
questions regarding the process of canceling duly scheduled meetings. In the
present matter, the Chief of the Band systematically cancelled regular
scheduled meetings. As will be outlined below, I believe such action
constitutes a usurpation of power.
[37]
Justice
Romilly in Assu, above, did not accept the position that the Band
Chief has the authority to schedule Council meetings on a given day. He states
the following at paragraph 41:
Moreover,
it is my view that the Chief has no power to require Council to accede to his
"notification" that Council meetings would be held on Fridays.
[38]
In
light of the above, I believe a parallel can be drawn between not allowing the
Chief to randomly schedule a meeting and not permitting him to randomly cancel
one. That is, both acts could be seen as a usurpation of power on the part of
the Chief.
[39]
The
jurisprudence has confirmed the existence of similarities between the
administration of a Band Council and the administration of a municipality. In a
municipality, much like the Band Council in the present matter, the timing of
meetings is prescribed pursuant to rules.
[40]
Regarding
municipalities, regular scheduled meetings can be cancelled if, upon the
opening of a meeting, the chairperson or secretary realizes that a quorum of
members is not in attendance. Such a process should be the norm for the
cancellation of Band Council meetings. Band Council meetings should not be
cancelled as a result of a decision taken by the Chief or as a result of a
resolution of the quorum of council prepared in advance of the scheduled
meeting. There are no doubt exceptions to be made periodically for valid
reasons; however, the systematic cancellation of two thirds of the regular
scheduled meetings is totally unacceptable. Between March 5, 2002 and November
2, 2004, there were approximately 56 officially-scheduled meetings that were
required to be attended and convened by the councillors and Chief. However,
only 16 of these meetings were duly constituted. Such a situation goes against
the spirit and the wording of the rules. Further, the systematic cancellation
of meetings makes it exceedingly difficult for the members of the Band to
participate in the process.
[41]
If
the Chief had the ability to cancel and reschedule meetings at will, then he
could manipulate the timing of meetings in favour of his own agenda. For
example, situations could arise whereby councillors that favour the Chief’s
positions will be absent from a meeting in which a vote will be taken on a
particular matter, leaving only those who oppose him. If the Chief knows this
in advance, and cancels the meeting accordingly, he is manipulating the system
in order to favour his agenda. Such a scenario is contrary to the notion of democracy
and is in violation of the fiduciary obligation the Chief holds towards his Band
members and the promotion of their interests.
[42]
The
wording of section 11.1 of the NHCN guidelines seems to be clear regarding the
frequency of meetings and who must attend. Equally clear is the wording of
section 11.4 of said regulations which outlines the procedure for having special
Council meetings. In the present matter, the procedures outlined in sections
11.1 and 11.4 have not been respected. The NHCN Band Council has taken the
position that the Chief and his three supporters decide when meetings will be
convened. It is quite obvious upon review of the evidence that meetings are
convened when the Chief and his three supporters are available. Such a strategy
is taken in order to guarantee that a specific policy agenda is adhered to. If
it is evident that dissenting councillors will outnumber those favouring the
position of the Chief at a scheduled meeting, the meeting is often cancelled.
Further, sometimes the meetings take place in Winnipeg, which is
several hours away from where they should ordinarily be held. Such conduct is
contrary to the wording and spirit of the NHCN guidelines.
[43]
Also,
it would seem that the frequency of special meetings, outlined in section 11.4
of the NHCN guidelines, have replaced the frequency of regular scheduled
meetings. This in and of itself is contrary to the spirit of the rules. Special
meetings cannot become the norm. Further, all meetings should be held in public
and ordinary members of the Band should be made aware of the rules and the
frequency of the meetings. If a meeting is cancelled, notice should be provided
in order to inform members of the Band when a replacement meeting will be held.
[44]
As
a result of the above analysis, I find that the Band councillors have not
vacated their positions and a writ of quo warranto is not an appropriate
course of action given the circumstances in the present case. However, I do
find that there are serious procedural flaws in the way Band Council meetings
are cancelled.
3. Should the sub-group of Band councillors be allowed
to exist?
[45]
The
applicant contests the fact that a sub-group has been created. He contends that
when decisions are taken by the smaller group of councillors, the rules
regarding quorum, notices and the recording of decisions and minutes are not
respected.
[46]
The
respondents claim that it is the “Band custom” for a small group of councillors
to conduct sporadic oral meetings amongst themselves, without notice or minutes
or any records of decisions. Further, they state that all the decisions taken
by the sub-group are properly ratified in conformity with the guidelines and
paragraph 2(3)(b) of the Indian Act at a duly convened meeting of the
Band Council at a later date.
[47]
The
applicant takes issue with the “Band custom” justification for the creation of
a sub-group that does not have to follow NHCN guidelines. The applicant
contends that elected band officials have neglected their fiduciary and
representative duties. The applicant further submits that the respondents did
not provide any evidence that the custom of the NHCN Band has somehow properly
and validly been changed to forego providing notice of meetings or the
recording of minutes. Also no evidence was submitted to illustrate that Band councillors
were to be excluded from participating in NHCN decision-making. Finally, the
applicant submits that even if the custom changed, such a change would be
disallowed for being contrary to the mandatory requirements pursuant to
paragraph 2(3)(b) of the Indian Act which states the following.
b) a power conferred on the council of a band shall be deemed
not to be exercised unless it is exercised pursuant to the consent of a
majority of the councillors of the band present at a meeting of the council
duly convened.
[48]
Justice
Romilly in Assu, above, recognized that elected Band Council
members have the right to meet outside the context of a Band Council meeting.
He states the following at paragraph 62:
Furthermore, as members of an elected body engaged in purely
legislative decision-making, there is nothing to prevent the defendant
Councillors from holding meetings among themselves to discuss issues concerning
the Band. The courts have recognized that advance discussion by elected members
of government in matters coming forward for decision will be inevitable: Old
St. Boniface Residents Assn. Inc. v. Winnipeg (City) (1990), 75 D.L.R. (4th)
385 (S.C.C.) at 404 and 409.
[49]
In
light of the above, I find that it is permissible for a sub-group of Band Council
members to meet outside the formal confines of Band Council meeting to discuss
issues concerning the Band. However, a distinction must be drawn between the
latter and what has occurred in the present matter. That is, it is not permissible
for the sub-group of Band councillors to make decisions in secret and
subsequently have those decisions rubber stamped at future Band Council meetings
without regard to the Band Council guidelines or the provisions of the Indian
Act.
[50]
In Louie
v. Derrickson [1993] B.C.J No. 1338, Justice Blair, at paragraph 87, makes
reference to the comments of Justice Rae in Leonard v. Gottfriedson
(1981), 21 B.C.L.R. 326, regarding the need to respect the requirements of subsection
2(3) of the Indian Act when a Band Council exercises its powers:
In Leonard v. Gottfriedson Mr. Justice Rae, commenting on a band
council resolution of the Kamloops Indian Band, stated at page 337:
The [Indian] Act is clearly of a tenor
indicating the need and intent to benefit and protect the Indian bands and
their individual members coming under its provisions.
It is to be read, interpreted and applied in
that light. Just as the exercise of a power by a municipality is required to be
exercised in strict accord with the statute to protect the interests of the
inhabitants, so, it seems to me, and on the same principle, the council's
powers under the Indian Act are to be exercised strictly in accord with the Act
in the interests of the benefit and protection of the Indians.
In order to satisfy the strict compliance test referred to by Mr.
Justice Rae, I must be satisfied that the Band council's powers determining the
severance and the payment for it were exercised in accordance with s. 2(3) of
the Indian Act.
[51]
Not
only does the exercise of conferred Band Council powers need to be in
conformity with subsection 2(3) of the Indian Act, it also must be in
the best interest and for the protection of the Band members. Justice Blair
goes on to equate a failure to respect the criteria of subsection 2(3) of the Indian
Act as a breach of a fiduciary and trust obligation owed to the Band
Council members by stating the following at paragraphs 88 and 91:
There is a paucity of evidence upon which I might be so
satisfied. There are no minutes or records of a meeting of the Band
council which could lead me to conclude that a meeting had been duly convened
as required by the Act. There are no Band council resolutions which
could lead me to conclude that a majority of the councillors of the Band had
consented to the severance and the payment.
[…]
In summary, the defendant failed to appreciate in any meaningful way
the fiduciary and trust obligations imposed on him as Band chief when it came
to dealing with the Band council in his capacity as a locatee. He
was either oblivious to his obligations or cavalier in his attitude towards
them. In either event, the result is the same: he was in breach of
the fiduciary and trust obligations imposed upon him by his position and benefited
by the breach of those obligations in the amount of $112,500.
[52]
Even
if Band Council resolutions are passed with a majority of the councillors and
minutes and records of a meeting of the Band Council were taken, a violation of
subsection 2(3) of the Indian Act can still occur.
[53]
In Old
St. Boniface Residents Assn. Inc. v. Winnipeg (City) (1990), 75
D.L.R. (4th) 385, the Supreme Court outlined a test to be used in illustrating
that Municipal Council decisions were pre-determined and therefore not in the
best interests of the residents. Justice Romilly, in Assu, above, adopts
the same test for illustrating that Band Council decisions are predetermined
and therefore not in the best interests of Band members. In Old St.
Boniface, the Supreme Court says the following regarding the aforementioned
test:
In my opinion, the test that is consistent with the functions of a
municipal councillor and enables him or her to carry out the political and
legislative duties entrusted to the councillor is one which requires that the
objectors or supporters be heard by members of council who are capable of being
persuaded. The legislature could not have intended to have a hearing before a
body who has already made a decision which is irreversible. The party alleging
disqualifying bias must establish that there is a prejudgment of the matter, in
fact, to the extent that any representations at variance with the view, which
has been adopted, would be futile. […] In this regard it is important to keep
in mind that support in favour of a measure before a committee and a vote in
favour will not constitute disqualifying bias in the absence of some indication
that the position taken is incapable of change. The contrary conclusion would
result in the disqualification of a majority of council in respect of all
matters that are decided at public meetings at which objectors are entitled to
be heard.
[54]
The
respondents argue that they may ratify their resolutions at a later point in time
at a duly convened meeting. I am satisfied, however, that in the present matter,
the outcome of the ratification process was pre-determined in many situations.
That is, resolutions drafted in secret meetings that did not respect the NHCN
guidelines, often represented positions that were incapable of being changed. Further,
the content of said resolutions was never circulated to the Band’s members and properly
debated at duly convened meetings and objectors were not given the opportunity
to be heard.
[55]
I
would like to emphasize that the ratification process mentioned by the
respondents is a myth. Resolutions cannot be adopted in secret meetings, and
then subsequently ratified at a duly convened meeting without being discussed
and debated. The resolution itself must be passed at a duly convened meeting.
It cannot be the product of a secret meeting and subsequently rubber stamped at
a later date at a duly convened meeting. Resolutions cannot be the product of
predetermined decisions. They must be debated and passed in accordance with the
rules and guidelines of the Band and in accordance to the principles of
democracy. In
the present matter, there are many examples which illustrate that the
ratification process of Band Council resolutions was inherently biased. I will
now turn my attention to one such example.
4. Should the Band
Council resolution dated March 17, 2004 be declared void?
[56]
The
Federal Court’s authority to render a Band Council resolution invalid is found
at paragraph 18(1)(3) of the Act, which states the following:
|
18.1(3) On an
application for judicial review, the Federal Court may
a)order a
federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing; or
b)declare
invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
|
18.1 (3) Sur présentation d'une demande de
contrôle judiciaire, la Cour fédérale peut :
a) ordonner à
l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou
refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable;
b) déclarer nul ou
illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux
instructions qu'elle estime appropriées, ou prohiber ou encore restreindre
toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.
|
[57]
On
or about March 17, 2004, three members of the sub-group of the NHCN councillors
signed a resolution directing their solicitor to pursue a claim against Don
Godwin for misrepresentation and sought an injunction against him. On March 22,
2004, the aforementioned resolution, called NHCN BCR form N.H./2003-04 #128,
was submitted by NHCN Band Council into the Court of Queen’s Bench in Thompson, Manitoba, as evidence
of an official decision of the respondent Band Council. However, that
resolution which was drafted by the sub-group was never ratified by the Band
Council before it was submitted to Court. The resolution was eventually
ratified at a duly convened special Council meeting dated April 1, 2004, after
the injunction was allowed.
[58]
The
applicant is seeking a declaration from this Court stating that the BCR of
March 17, 2004, is void and not binding. The applicant justifies such a
position by stating that the BCR was not the product of a duly convened NHCN Band
council meeting.
[59]
I
find that the resolution should not have been submitted into the Court of
Queen’s Bench in Thompson, Manitoba, as evidence of an official decision
of the respondent Band Council because it had yet to be passed by the Band
Council. Further, the resolution presented to be passed on April 1, 2004, was
in fact a predetermined matter. Councillors were not given a chance to debate
or discuss the resolution. Further, copies of the resolution, agreed to in
secret by only three council members, were not provided to the councillors for
review. It is clear that the matter had been pre-determined. As such, I find
that the resolution which was allegedly passed on April 1, 2004, is void.
[60]
I
also find that the use of BCR forms to adopt the “draft” resolutions by the
sub-group of councillors at their secret meeting is somewhat misleading, given
that the use of those forms leads to believe that the resolutions had been
adopted at a regular duly convened meeting which was not the case.
[61]
In
fact, in my view, the only valid resolution is the one passed at the duly
convened meeting, which is certified by the official representative of the Band
Council. In the present matter, the way in which the BCR was written, and
filed, does not mention in any way that it is “draft resolution” that has to be
adopted at a subsequent meeting of the Council.
[62]
If
the BCR had been recognized as draft, in seeking an injunction, the Council would
not have been able to file the resolution in Court, before April 1, 2004.
[63]
Therefore,
we have here a clear demonstration that not only the membership of the Band had
been manipulated, but a judge had been provided a motion for injunction by a
Council that was not yet authorized to apply for such a remedy. This is but one
example among many of the Band Council’s unauthorized activities.
[64]
The
respondents cannot have it both ways: pretend on one hand that the process is
transparent and that the “draft” resolutions adopted by the sub-group of councillors
will be discussed and maybe amended before being ratified; and pretend on the
other hand, that the BCR “draft” resolution is valid as soon as it is passed by
the sub-group.
5.
Should the applicant’s honorarium be changed?
[65]
As
previously noted, the NHCN is bound by the decisions of its elected Council
unless the latter acted in bad faith (see Assu, above, at
paragraph 30). Acting in bad faith would breach the duty of procedural fairness
the NHCN Band Council owes to its Band members. As will be demonstrated below,
there is no doubt that the respondents acted in bad faith on numerous
occasions.
[66]
The
applicant claims that his honorarium and expense payments were unjustly
curtailed or withheld. The applicant was often in disagreement with other Band
Council members regarding NHCN matters. He also wrote letters that were
critical of Band Council procedures and decisions. The respondents admitted
that the applicant’s honorarium was reduced for purportedly acting to discredit
the efforts made by the Chief and Band Council. Chief Evans reduced unilaterally
the applicant’s honorarium from $60,000 to $5,000 and also denied him the use
of his travel budget which was in the amount of $24,000. The applicant was
informed by letter dated July 23, 2003, that his duties and responsibilities were
being stripped and his salary reduced. Although immediately implemented the aforementioned
course of action taken against the applicant was not formally adopted by a duly
convened Council meeting until December 2, 2003. Chief Evans usurped his power
by unilaterally stripping the applicant of his responsibilities and honorarium.
Further, Chief Evans attempted to formalize his usurpation of power by having
his actions sanctioned at a duly convened meeting four months after the
applicant began to be denied his portfolios and honorarium. No notification or
opportunity was provided to the applicant to respond to the disciplinary
actions taken against him regarding the reduction in his salary and duties.
Further, once the applicant commenced the present judicial matter before this
Court, he was locked out of the Council building and his computer was seized.
[67]
The
Supreme Court of Canada in Therrien (Re), [2001] 2 S.C.R. 3, commented
on the basic elements associated with procedural fairness. That is, the right
to be heard and the right to an impartial hearing. At paragraph 82, the
Court said:
Essentially, the duty to act fairly has two components: the right to be
heard (the audi alteram partem rule) and the right to an impartial hearing (the
nemo judex in sua causa rule). The nature and extent of the duty may
vary with the specific context and the various fact situations dealt with by
the administrative body, as well as the nature of the disputes it must resolve:
Syndicat des employés de production du Québec et de l'Acadie v. Canada
(Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96, cited
with approval in 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool) 3
S.C.R. 919, at para. 22, and Ruffo, supra, at para. 88.
[68]
The
Supreme Court goes on to outline, at paragraph 83, the factors Justice
L’Heureux-Dubé, in Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, specifically mentioned as being relevant in determining
the extent of the duty of procedural fairness in a given set of circumstances:
Thus in Baker, supra, at paras. 23-28, L'Heureux-Dubé J. specifically
pointed out that several factors have been recognized in the jurisprudence as
relevant to determining what is required by the duty of procedural fairness in
a given set of circumstances. While she did not provide a
comprehensive list of such factors, she referred to: (1) the nature of the
decision being made and the process followed in making it; (2) the nature of
the statutory scheme and the terms of the statute pursuant to which the body
operates; (3) the importance of the decision to the individual or individuals
affected; (4) the decision; and (5) respect for the choices of procedure made
by the agency itself, particularly when the statute leaves to the
decision-maker the ability to choose its own procedures. It is from this
perspective that I will now consider the allegations of breach of the rules of
procedural fairness made by the appellant in the instant case.
[69]
The
nature of the Band’s decision entails the reduction of the applicant’s salary
and his duties and responsibilities as a Band councillor. In my opinion the
actions taken against the applicant is akin to a loss of employment. In fact,
Chief Evans would have certainly fired the applicant if he had been an employee.
Given that the applicant is an elected member of the Band Council and therefore
not officially an employee, Chief Evans did everything that he could to limit
the applicant’s duties, responsibilities and honorarium, even confiscating the
computer he used in exercising his responsibilities as a councillor. The
actions of Chief Evans were conducted with no respect whatsoever for the
applicant’s status as an elected member and a peer at the Council table. In Roseau
River Anishinabe First Nation v. Atkinson et al. [2003] F.C.J. No. 251,
Justice Kelen addresses the issue of procedural fairness with regards to the
continuation of one’s employment by stating the following at paragraph 42:
Decisions
made by legislative bodies of a general nature and based on broad
considerations of public policy are considered to be immune from the duty of
fairness. In contrast, an administrative decision that is directed at a
particular person and affects "the rights, privileges or interests"
of that individual will trigger the application of the duty of fairness, see
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
at para. 20. The content of the duty of fairness may also vary in correlation
to the significance of the impact upon the individual in question. The Supreme
Court has stated that when an individual's right to continue his or her
employment is at stake "a high standard of justice is required", see
Kane v. University of British Columbia, [1980] 1 S.C.R. 1105 at p. 1113.
[70]
Also
for a thorough analysis of the jurisprudence regarding the duty of procedural
fairness as it relates to the obligation to inform an employee of the
disciplinary action taken against him or her, see the decision of Justice Simon
Noël in Pelletier v. Canada (Attorney General) 2005 FC 1545 at
paragraphs 64 and 66.
[71]
The
actions taken by the Band Council have serious consequences for the applicant.
Further, the reasons noted by the Band Council to take such actions are
completely unfounded. The respondent Muswagon acknowledged that the
applicant’s honorarium was reduced for purportedly acting to discredit the
efforts made by the Chief and Band Council. It was made clear to the applicant
that such a decision could have been reversed if he had just complied with the
Chief’s wishes and was not openly critical of the Band Council’s actions (see
the minutes of the NHCN Band Council meeting at page 15, Tab M of the
applicant’s record, volume III). This is a clear indication of influence
peddling and blackmail directed towards the applicant. The respondents
clearly acted in bad faith, and have not justified their actions with any valid
reasons.
The respondents have breached duties of procedural fairness by not providing
valid notification and reasons for the reduction in the applicant’s honorarium
and responsibilities. Further, even though valid reasons were not provided, the
applicant should have still been given an opportunity, to respond to the
actions taken against him. In not providing this opportunity the respondents
breached a duty of procedural fairness.
[72]
The
failure to provide the applicant with notification, valid reasons and an
opportunity to be heard, are not the only breaches of procedural fairness
regarding the present matter. The applicant states that the NHCN guidelines
provide a clear and fair procedure in order to reduce a councillor’s
honorarium. Articles 10.1 to 10.11 of the guidelines state the following
regarding said procedure:
10.1 In the event that a Councillor fails
to perform his or her duties or conducts himself or herself in violation of the
above provisions, a quorum of Council, at a duly constituted meeting, may
consider suspending the Councillor from office
10.2 If a suspension is to be considered,
a quorum of Council shall provide the Councillor with the following:
10.2.1 A written notice that the question
of the Councillor’s suspension will be considered at the next duly constituted
meeting.
10.2.2 An itemization of the reasons for
considering suspension.
10.3 The above written notices shall be
provided (ten) 10 clear days in advance of the next duly constituted Council
meeting.
10.4 The proposed suspension of the
Councillor shall be the first matter on the agenda at the next duly constituted
Council meeting.
10.5 The Councillor, after hearing the allegations
that would give rise to the suspension, which allegations shall be presented by
any member of Council so designated, shall have full opportunity to respond to
such allegations.
10.6 After hearing the Councillor’s
response to the allegations, discussion shall take place following which a vote
shall be called. The Councillor whose suspension is being considered shall not
be eligible to vote.
10.7 In the event that the subject
Councillor is not in attendance at the meeting despite being provided with the
appropriate notice as specified in 10.2.1 and 10.3, the vote shall proceed in
his or her absence.
10.8 In order for a vote to be called and
for a suspension to stand, the Chief and all other Councillors must be present
at the subject Council meeting; the Chief and a minimum of four Councillors
must vote in favour of suspension.
10.9 Suspensions shall be a period from
one to thirty (30) days.
10.10 Suspensions may be with or without
pay, as determined by Council and depending on the severity of the violation.
10.11 Any decision to suspend pursuant to
these provisions shall be subject to ratification at a general Cree Nation
meeting, at which the matter of that suspension shall be an agenda item. The
decision to suspend shall be ratified, if a majority of the members present at
the general Cree Nation meeting vote in favour of the suspension.
[73]
Pursuant
to articles 10.1 to 10.11 of the NHCN guidelines, a councillor must first be
suspended from his or her duties before the optional suspension of an
honorarium can be considered. However, in the present matter, it would seem
that the Band Council did not follow their own procedure in order to reduce the
Band councillor’s honorarium. This was evident in the fact that he was not
actually suspended before his honorarium was reduced. I find that
the applicant, at the very least, could have expected that the Band’s policy
for the suspension of a councillor’s honorarium would have been followed. Therefore,
in ignoring their own processes in a manner that suggests a lack of good faith,
the respondents breached a duty of procedural fairness (see Ross v. Mohawk of
Kanesatake [2003] F.C.J. No. 683, at paragraph 95).
[74]
The
respondent Eric Apetagon decided to be represented by a solicitor, Don Knight,
as of August 10, 2005.
[75]
Counsel
for Mr. Apetagon provided no written submissions but nevertheless, commented on
his client’s attitude at Council meetings. The respondent Apetagon demonstrated
that he was mostly supportive of the applicant but was regularly outnumbered.
His counsel suggests that he is somewhat between a rock and a hard place. That
is, he supported the respondents’ position that Council members did not vacate
their positions, but also abstained on resolution No. N.H./2003-04#128 of March
17, 2004, regarding the mandate for an injunction. Regarding the resolution
passed on December 2, 2003, to “ratify” the unilateral decision taken by the
Chief on July 23, 2003, it is not clear whether he voted against or abstained.
Nevertheless, it seems that the respondent Apetagon has not demonstrated the
same bad faith attitude towards the applicant and often supported him.
[76]
Members
of the Band have no obligation whatsoever to support each other; they are free
to discuss and to vote. Nonetheless, when members vote in bad faith, as was the
case when councillor Muswagon moved the resolution on December 2, 2004, to ratify
the decision of Chief Evans, on the basis that the applicant should somehow be
punished for not wanting to conform with the majority, such a course of action
is contrary to the rules and the principles of democracy.
[77]
I
find that respondent Apetagon was not acting in bad faith and should not have
to pay the costs of this case.
JUDGMENT
THIS COURT:
·
orders that this application for judicial review be
granted in part;
·
DECLARES
THAT the
Federal Court has jurisdiction in this case;
·
DECLARES
THAT the
Chief and all councillors did not vacate their positions;
·
orders that the Band Council resolution No
N.H./2003-04-#128 of March 17, 2004 be quashed and the resolution be therefore
without force and effect;
·
orders that the decision made by the NHCN Band
Council to withhold all or part of the applicant’s honorarium remuneration and
his expense payments arising out of his status and required work as an elected
NHCN councillor equivalent to those paid to other elected NHCN councillors and
commensurate with applicable regulations and policies, be quashed; and the
resolution and the letter regarding that decision be without force and effect;
·
declareS that the applicant be re-established in his
previous responsibilities with all honorarium remuneration and expenses payments
arising out of his status and required work as an elected NHCN councillor
equivalent to those paid to other elected NHCN councillors and commensurate
with applicable regulations and policies;
·
ALSO ORDERS THAT, given that the NHCN’s Council decision
to deprive the applicant of his duties, responsibilities, honorarium and
expenses being now quashed, the applicant shall be paid forthwith all his
honorarium and expenses that were withhold, since the decision was made, notwithstanding
any appeal;
·
The
applicant shall file and serve written submissions regarding costs no later
than February 28, 2006. The respondents shall file and serve their written
submissions in response, no later than March 13, 2006 and the applicant shall
file and serve his reply, if necessary, no later than March 20, 2006.
“Pierre Blais”
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