Date: 20060706
Docket: T-1365-05
Citation: 2006 FC 854
MONTREAL, QUEBEC, July 6, 2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
PATRICIA CASSIDY, COUNCILLOR OF THE QUALICUM FIRST NATION
and DARLENE WELLS, COUNCILLOR OF THE QUALICUM FIRST NATION
on their own behalf and as COUNCIL OF THE SONGHEES INDIAN BAND
and on behalf of THE SONGHEES INDIAN BAND AND ITS MEMBERS
and QUALICUM FIRST NATION
Applicants
and
KIM RECALMA-CLUTESI and
THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
Respondents
Docket: T-1454-05
BETWEEN:
PATRICIA CASSIDY, COUNCILLOR OF THE QUALICUM FIRST NATION
and DARLENE WELLS, COUNCILLOR OF THE QUALICUM FIRST NATION
on their own behalf and as COUNCIL OF THE QUALICUM FIRST NATION
and on behalf of THE QUALICUM FIRST NATION AND ITS MEMBERS
and QUALICUM FIRST NATION
Applicants
and
THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] These two proceedings deal with the validity of certain Band Council Resolutions passed by only two members of a three person Indian Band Council. These proceedings arise from the same factual background and were heard at trial one after the other. One set of Reasons, applicable to both, is issued, with separate judgements in each.
[2] A Band Council, which consists of two Councillors and the Chief, governs the Qualicum First Nation, a small Indian Band located on coastal Vancouver Island. The Band comprises some 110 members of which some 58 are entitled to vote for Chief and members of Council. This means that only two Council members, together with the Chief, comprise the three-person elected governing Council. Deep divisions have arisen between members of the Band which divisions have been reflected in those who are elected Chief and Councillors. Most relevant are the matters that arose in July and August 2005 when the two elected Councillors purported to pass Band Council Resolutions dealing with Council proceedings. The Chief refused to recognize such Resolutions when purportedly passed on July 8, 2005 as did the Department of Indian and Northern Affairs Canada (INAC). The two Councillors request declarations from this Court as to the validity of such Resolutions. These requests will be more particularly set out shortly as there was some amendment to and clarification of the relief sought in each proceeding.
[3] For the reasons that follow, I am declaring all of the Resolutions to be invalid and am awarding no costs to any party.
[4] The Applicants are the same in each proceeding: they are two elected Band Councillors, Cassidy and Wells. In T-1365-05, the Respondents are the elected Band Chief and the Minister of Indian and Northern Affairs. In T-1454-05 only the Minister is the Respondent.
[5] In proceeding T-1365-05, the issue as ultimately framed for this Court is a request for:
A declaration that the Qualicum Indian Band Council Resolutions made between July 7, 2005 and August 1, 2005 were and are valid and lawful Band Council Resolutions of the Qualicum First Nation.
[6] Those Resolutions were restricted at the hearing to six Resolutions, all purportedly voted upon and passed by only the two Councillors at a purported meeting held on July 8, 2005. For clarity, they are found at pages 127 and 132 inclusive of the Applications' Record and state:
1. THAT the only authorized signatories for the Qualicum First Nation are to be Kim Recalma-Clutesi, Darlene Wells, Patricia Cassidy and Barb Burns. Two signatures are needed at all times for authorizations and this is to take effect immediately.
2. THAT it is confirmed, pursuant to Rule 31 of the Indian Band Procedure Regulations, if:
i. A Chief or Councillor is missing from a Band Council meeting;
ii. A quorum has been satisfied;
iii. A Band Councillor presides as the Chairperson; and
iv. There are only two people at a meeting
Then the Chairperson may vote on any issue contained in the Regulations.
3. THAT all future meetings of the Chief and Council of Qualicum First Nation will take place at Qualicum First Nation Band Hall at 10 o'clock a.m. on the following dates: July 13th, 20th and 27th, 2005 - August 3rd, 10th, 17th and 31st , 2005 - September 7th, 14th, 21st and 28th, 2005 - October 12th and 26th, 2005 - November evenings at 7 pm on the 9th and 23rd, 2005, at the Qualicum First Nation Band Hall - January 4th, 2006 at Qualicum First Nation Band Hall at 10 o'clock a.m.
4. THAT the permanent position of "Band Manager" of Qualicum First Nation shall be posted and a competition should occur where applications for the position are assessed by a committee that is established by Barbara Burns. A copy of the job description for the position of "Band Manager" is attached to this Band Council Resolution.
5. THAT any and all existing committees for Qualicum First Nation, Qualicum Indian Band, Qualicum Band of Indians, be dissolved effective immediately.
6. THAT Chief and Council not receive any honoraria's wages, or any form of remuneration until further notice. Expenses will be reimbursed but only if they have been pre-approved at a duly convened Council Meeting.
[7] Up to the time of the hearing the Applicants had sought additional relief in T-1365-05 including two different injunctions against the Chief personally or acting on behalf of the Band. In their memorandum of Argument, paragraph 152, they also sought an Order declaring the decision of the Chief not to call a Band Council meeting until August 2, 2005 to be unlawful. The Applicants dropped any claim for all such additional relief at the hearing, causing the Chief, to seek increased costs.
[8] In proceeding T-1454-05, in which only the Minister is Respondent, the Applicants have reduced their claim for relief to:
A declaration that the Qualicum Indian Band Council resolution passed at a regular meeting of the Band Council on August 2, 2005 as follows:
"THAT it is confirmed, pursuant to Rule 31 of the Indian Band Council Procedure Regulations, if:
i. A Chief or Councillor is missing from a Band Council meeting;
ii. A quorum has been satisfied;
iii. A Band Councillor presides as the Chairperson; and
iv. There are only two people at a meeting
Then the Chairperson may vote on any issue."
Is a valid Band Council Resolution.
[9] This Resolution is identical in its terms to the second Resolution which is the subject of proceedings T-1365-05 except that it was passed by a vote of two to one at what is agreed to have been a duly convened meeting of the Band Council on August 2, 2005. The objection to the Resolution is, in this latter case, directed only to the validity of the Resolution itself, and not also to the propriety of the meeting at which it was passed.
[10] Counsel for the Respondent Chief raised an initial objection stating that section 18.1(3) of the Federal Courts Act R.S.C. 1985, C. F-7 permitted this Court only to make a declaration as to invalidity, not as to validity of the Resolutions. I disagree, section 18.1(3) is permissive in using the word "may", it is not exclusionary. The jurisdiction of this Court comes from section 18(1) of that Act which provides jurisdiction to grant, among other things, a declaration. That jurisdiction extends to both positive and negative declarations and whatever other declaration is appropriate.
[11] The pertinent facts begin with the election of Ms. Recalma-Clutesi as Chief of the Band on August 7, 2002. The Applicant, Cassidy and one other person, were elected as Councillors at the same time. On the night of the election the newly elected Chief convened a Band Council meeting to deal with transitional matters as all of the elected persons were new. On August 10, 2004, two years later, the same persons were again elected as Chief and Councillors respectively. A Band Council meeting was held a week later. From this period forward there occurred an escalating series of disputes and incidents between the Chief and the Councillors as elected from time to time.
[12] At a regular Band Council meeting held on January 25, 2005, a person from INAC referred to as a "superintendent" in the Indian Band Council Procedure Regulations passed under the Indian Affairs Act, was present. The role of the superintendent is set out in those Regulations and includes the calling of special meetings and acting as chairman on certain occasions. A question arose at this meeting as to whether an earlier meeting was duly convened as, while a quorum was present, a non-council member acted as the Chair. The superintendent offered this advice:
"...even though the meeting was a duly convened meeting, the motions passed cannot be accepted. Should there be only the Chief and one Councillor, the Chief as chair can put forward motions but cannot vote. Therefore, one vote from the Councillor is enough to pass the motion."
[13] This statement may well have planted the seed for the most significant of the Resolutions now the subject of these proceedings. The Minister's counsel now asserts that the statement was incorrect in law, but no corrections were made until, inferentially, a contrary statement was made in correspondence from legal counsel for the Minister to the Applicants' solicitor in late July 2005.
[14] On February 8, 2005, the two elected Councillors, the Applicant Cassidy and another, resigned. On March 31, 2005 a by-election was held and the Applicant Wells and a different other person were elected to fill the vacancies. A Band Council meeting was called immediately by the Chief to deal with a funding arrangement. Subsequently disputes arose between the Chief and these two newly elected Councillors. These new Councillors submitted their resignations on May 10, 2005.
[15] For a period of time, before and through the critical periods in 2005, the Chief held two positions, that of Chief and that of Band Administrator. This gave the Chief tremendous control over almost all financial aspects of the Band. The Councillors also held dual roles: for instance Cassidy was, for a period, the Social Development worker, a position from which she was suspended by the Chief in January 2005.
[16] The Chief recognized that her dual role, including that of Band Administrator, carried with it concerns as to conflict of interest. In February 2005 she secured a legal opinion which stated, among other things: "The Band Administrator has a separate role from an elected official of the Band.... The combining of the role of Chief and Band Administrator creates a true conflict in interest." The Chief shared this opinion with the Band but did not take action so as to remove herself from the Band Administrator role. The assumption of both roles by the Chief continued through the period in question.
[17] Thirty-one Band members signed a petition on May 21, 2005 calling for resignation of the Chief. At that time the Applicants, Cassidy and Wells, along with others, organized a blockade of a business site of the Band. The British Columbia Supreme Court granted an interim injunction on May 25, 2005 precluding these persons from continuing that blockade. By a further Order of that Court dated June 3, 2005 the interim injunction was continued until July 15, 2005. In so doing the Court recognized that the Minister had arranged for a by-election to be held on July 7, 2005 to fill the two vacancies for Band Councillor.
[18] On July 7, 2005 the by-election was held and the Applicants, Cassidy and Wells, were elected as Band Councillors. When the results were announced at the Band Council office at about 9:30 that evening, the two new Councillors immediately requested that the Chief call a special meeting to be held the next morning at 10:00 a.m. The Chief refused and left the building. The two Councillors and others remained in the Band Council office overnight claiming that otherwise they would be unable to access the office the next day as they had no key to the lock.
[19] During these events of July 7, 2005 there seems to have been much heated exchange of conversation and general chaos. During that night the two Councillors faxed a written notice to the Chief and to the INAC superintendent asking that a special meeting be held at noon on July 8, 2005. The Chief also faxed a letter to the superintendent stating that a regular meeting scheduled for August 2, 2005 would be sufficient.
[20] The two Councillors attended at the Band Council office at 10:00 a.m. and noon on July 8, 2005. Neither the Chief nor the superintendent showed up.
[21] That same day, July 8, an application was made to the British Columbia Supreme Court to lift the interim injunction as against Cassidy and Wells since they had been elected as Councillors of the Band and should not be enjoined from carrying on their duties in that regard. The matter was heard that afternoon. The two Councillors and the Chief were present in the courtroom while the matter proceeded. The Judge heard the application and withdrew for a period of time to consider the matter. During this recess the two Councillors approached the Chief and demanded that a special meeting be held then and there. The Chief was presented with a number of draft Resolutions including the six at issue here. The Chief, who has difficulty walking without a cane, remained in her seat but said and did nothing. The Judge returned to the courtroom and lifted the interim injunction against Cassidy and Wells. Everyone left. It is this "meeting" that the Applicants now rely upon to validate the six Resolutions at issue.
[22] Commencing on July 8, 2005 there was an exchange of several letters between the solicitor for the two newly elected Councillors and the superintendent and the legal counsel for the Minister. On July 8, the Councillors' solicitor wrote to the superintendent requesting that a special meeting be held at noon that day. On that same day the Chief faxed the superintendent and wrote to the two new Councillors to say that a meeting would take place only on August 2, 2005. On July 14 the Councillors' solicitors again wrote to the superintendent requesting that special meeting be called. On July 18 legal counsel for INAC responded to the Councillors' solicitor's two earlier letters acknowledging that the Councillors were calling for a special meeting before August 2 and requesting an agenda and "a clear and succinct and rational as to why a special meeting should be held prior to the regular meeting scheduled to occur on August 2, 2005". The Councillors' solicitor responded the next day, July 19, with a lengthy letter setting out in detail why, in their view, a special meeting was necessary. On July 20 the legal counsel for INAC responded that the Minister did not recognize the validity of the Resolutions said to have been passed on July 7 or thereafter, by the two Councillors. Legal counsel for INAC said, "After due consideration, The Indian and Northern Affairs Council takes the position that the date and time of the Band Council meeting scheduled for August 2, 2005 is appropriate."
[23] Legal counsel for INAC in the same letter of July 20, 2005 proposed that a mediator be provided, at INAC's expense, in an endeavour to resolve the conflicts respecting Band grievances. Such mediation did take place a few days later, but was not successful in resolving the conflicts.
[24] A regular meeting was held on August 2, 2005 with the two Councillors, the Chief and the superintendent present. All parties agree that the meeting was "duly convened" within the definitions provided in the Act and Regulations. At that time Band Council Resolutions were passed, including the six that are the subject of the dispute in proceedings T-1365-05. Of these six only the validity of Resolution 2 remains the subject of proceedings T-1454-05. Therefore, as to the remaining five Resolutions the issue in proceeding T-1365-05 is only directed to their status in the period from July 8, 2005 to August 2, 2005.
[25] With this background as to the facts, I will turn to consideration of the relevant provisions of the Indian Act and Indian Band Council Procedure Resolutions. While the Applicants initially raised an argument that the Act did not provide for Regulations dealing with the Band Council procedure, they now recognize that section 80 of the Act makes provisions for such Regulations.
[26] Section 2(3) of the Act provides for a majority rule at a "duly convened" meeting:
| (3) Unless the context otherwise requires or this Act otherwise provides,
(a) a power conferred on a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the electors of the band; and
(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.
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(3) Sauf indication contraire du contexte ou disposition expresse de la présente loi :
(a) un pouvoir conféré à une bande est censé ne pas être exercé, à moins de l'être en vertu du consentement donné par une majorité des électeurs de la bande;
(b) un pouvoir conféré au conseil d'une bande est censé ne pas être exercé à moins de l'être en vertu du consentement donné par une majorité des conseillers de la bande présents à une réunion du conseil dûment convoquée.
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[27] The Regulations deal with procedure at Band Council meetings. Section 3(1) requires that a first meeting be held within one month from the date of the election.
| 3. (1) The first meeting of the council shall be held not later than one month after its election, on a day, hour and place to be stated in a notice given to each member of the council, and meetings shall thereafter be held on such days and at such times as may be necessary for the business of the council or the affairs of the band.
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3. (1) La première assemblée du conseil se tiendra dans un délai d'un mois au plus tard après l'élection, au jour, à l'heure et à l'endroit qui seront indiqués à l'avis communiqué à chacun des membres du conseil, et les assemblées subséquentes se tiendront au jour et à l'heure déterminés, selon ce que requièrent les affaires du conseil ou les intérêts de la bande.
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[28] Section 4 of the Regulations states that the Chief or superintendent may call a special meeting at any time but must do so when requested by a majority of Councillors. This is the "special meeting" requested by the two Councillors on July 7, July 8 and thereafter. Section 4 says:
| 4. The chief of the band or superintendent may, at any time, summon a special meeting of the council, and shall summon a special meeting when requested to do so by a majority of the members of the council.
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4. Le chef de la bande ou le surintendant peut en tout temps convoquer une assemblée extraordinaire du conseil et doit convoquer une telle assemblée s'il en est requis par la majorité des membres du conseil.
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[29] Sections 8, 9 and 10 of the Regulations provide that the Chief shall be the "presiding officer" at the meetings or, if consented to by a majority, the superintendent, if present, may be the "presiding officer". Where neither the Chief nor superintendent is present, a Councillor may be "chairman" until one of them arrives. The presiding officer maintains order and decides issues of procedure. These Regulations state:
| 8. The chief of the band or, with the consent of the majority of the councillors present at the meeting, the superintendent shall be the presiding officer.
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8. Le chef de la bande ou, avec le consentement de la majorité des conseillers présents à l'assemblée, le surintendant doit remplir la fonction de président.
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| 9. (1) Upon a quorum being present, the presiding officer shall take the chair and call the meeting to order.
(2) A chairman shall be chosen
(a) in the absence of the chief, or
(b) where the superintendent is not chosen the presiding officer pursuant to section 8,
from among the members present who shall preside during the meeting or until the arrival of the chief or until the superintendent is chosen as the presiding officer.
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9. (1) Une fois le quorum constaté, le président doit assumer ses fonctions et déclarer la séance ouverte.
(2) Un président sera choisi
(a) en l'absence du chef, ou
(b) lorsque le Surintendant n'a pas été désigné pour présider ainsi qu'il est prévu à l'article 8,
parmi les membres présents qui dirigera les délibérations soit jusqu'à l'arrivée du chef, soit jusqu'à ce que le surintendant ait été choisi pour présider.
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| 10. The presiding officer shall maintain order and decide all questions of procedure.
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10. Le président doit faire régner l'ordre et décider de toute question de procédure.
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[30] Section 18 of the Regulations provides that the majority shall rule and that the presiding officer cannot vote except to break a tie and then only if the Chief is the presiding officer:
| 18. (1) All questions before the council shall be decided by a majority vote of the councillors present.
(2) The presiding officer shall not be entitled to vote but whenever the votes are equal the presiding officer, other than the superintendent, shall cast the deciding vote.
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18. (1) Toute question soumise au conseil se décidera à la majorité des voix des conseillers présents.
(2) Le président n'aura pas droit de vote; néanmoins, lorsque le vote est également partagé, le président, sauf si c'est le surintendant, doit donner un vote prépondérant.
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[31] Section 20 of the Regulations provides that refusal to vote is deemed to be an affirmative vote:
| 20. A member who refuses to vote shall be deemed to vote in the affirmative
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20. Lorsqu'un membre s'abstient de voter, il est réputé donner un vote affirmatif.
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[32] The general concept is clear, a majority vote prevails, the Chief or superintendent shall preside but not vote, except that the Chief, if presiding, can vote to break a tie.
[33] The issue here, unique to a small Band such as the Qualicum where the Council comprises only the Chief plus two Councillors, arises where neither the Chief nor superintendent attend a meeting. Can the meeting be said to be "duly convened" within the meaning of sub-section 2(3) of the Act? Who chairs the meeting? Who is entitled to vote? What happens when a majority of Councillors (two) request a special meeting but the Chief and superintendent refuse or neglect to call one or procrastinate in doing so? Can a Band Council Resolution, such as that at issue here, be crafted to deal with the situation that only the two Councillors need to be present with both able to vote?
[34] In approaching the consideration of the Act and Regulations I am guided by the analysis recently conducted by Justice Blais of this Court in Balfour v. Norway House Cree Nation February 16, 2006, [2006] F.C.J. No 269, 2006 FC 213, at paragraphs 11 to 14.
¶ 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.
[35] In brief, a Band Council is entrusted to make decisions as it sees fit, provided that such decisions are made in accordance with the rules of law. A Band Council cannot take the law into their own hands.
[36] I am also guided by what Justice Rae said in Leonard v. Gottfriedson (1980) 21 B.C.L.R. 326 (British Columbia Supreme Court) in dealing with section 2(3)(b) of the Indian Act at page 337:
¶ 51 The 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.
[37] It is the protection of the Band that is to be the guiding principle, not the protection of the Chief or Councillors, or what one or more of them might perceive as that which protects the Band.
[38] I turn to the question of what constitutes a "special meeting" as referred to in section 4 of the Regulations. There is no definition in the Act or Regulations that is of assistance. Sub-section 2(3) of the Act requires that a meeting be "duly convened". Justice Romilly of the British Columbia Supreme Court in Assu v. Chickite, November 26, 1998, [1998] B.C.J. No. 2775 at paragraphs 37 to 40 agreed with the following submission as to a "duly convened" "special meeting":
(A) meeting will be duly convened where:
(a) the meeting is called at the request of a majority of Councillors;
(b) advance notice is given of the meeting; and
(c) the meeting is attended by a quorum of the Council.
[39] I agree. However, this definition does not deal with the circumstance where a Chief or superintendent do not call such a meeting, nor do they attend, at least not voluntarily.
[40] I am guided by two decisions in the area of municipal law which, while distinguishable in some ways, nonetheless provides useful instruction as to the difference between a special meeting and a regular meeting and what makes a meeting "special". The first is a decision of the Manitoba Court of Appeal in Rural Municipality of Macdonald (1995), 10 Man. Rep. 382. At pages 388 and 389 Kellam J. said:
The common law recognized two kinds of meetings of the members, or of the governing bodies, of corporations, ordinary, stated or regular meetings; and special or extra-ordinary meetings. The characteristic distinction between these two kinds seems to lie in the fact that the former are held at fixed and definite periods, and that the latter are called to meet emergencies that may arise from time to time. The times of holding regular meetings being fixed, all members of the corporation will be taken to know that the meetings will be held at the times appointed; and, therefore, at such meetings, as a general rule, all business that concerns the corporation may be transacted. But while it is necessary that some one should be entrusted with the power to call special meetings, it is also plainly necessary, in order that the power may not be abused, that everyone entitled to take part in the meeting should receive reasonable notice that it will be held, and of the business that will be brought before it.
[41] At page 390 Bain, J. said:
There is an inherent difference between regular and special meetings; and the Legislature intended that this difference should be observed in the meetings of councils held under the authority of the Municipal Act. The Act provides that regular meetings will be held, and that special ones may be held; but if these two meetings are to be considered to have been regular meetings, then councils are able to disregard the distinction between the two kinds of meetings that the Legislature has marked, and to evade the law by holding special meetings without observing the directions of the Act for calling them.
[42] The second decision is that of the Ontario Supreme Court in Cooper v. Croll [1940] 1 D.L.R. 610 where Gillanders JA said at page 615:
When the respondent was requested to call a special meeting it was his statutory duty to do so with reasonable dispatch and not refuse, but his refusal is not a basis for the applicants to themselves call a meeting under s.213(2).
[43] From all of the decisions set out above, having regard to the Act and Regulations, it is clear that:
1. A special meeting is different from a regular meeting. There must be some clearly stated purpose for a special meeting.
2. The Chief or superintendent when requested by a majority of the Band Council, must call a special meeting. There is no discretion.
3. The request made to the Chief or superintendent must be provided upon reasonable notice, it cannot simply be "sprung upon" such person. The notice should provide a reasonable indication as to the purpose of the meeting.
4. Once reasonable notice is given, the Chief or superintendent cannot refuse to call a special meeting and must not unreasonably delay in doing so.
5. If the Chief or superintendent refuse or delay unreasonably in calling a special meeting the Councillors cannot take matters into their own hands. Their remedy lies in a mandamus application in an appropriate Court.
[44] Applying these principles to the facts of this case, and in particular to proceeding T-1365-05, I make the following findings:
1. No reasonable notice was given on either of July 7 or July 8 by the Councillors to the Chief as to a request for a special meeting. The Councillors could not attempt to convene a meeting simply by opportunistically springing upon the Chief during a recess in Court proceedings on July 8 to attempt to hold a "special meeting". For this reason, the six purported Resolutions at issue are not valid Band Council Resolutions as they were not passed at a "duly convened" Band Council meeting.
2. The Chief was wrong in not calling a special meeting at some reasonable time before August 2, 2005. She had a duty to do so and she failed in observing that duty. I am not required to make an Order in that regard but this finding impacts on costs.
3. The superintendent failed in her duty to call a special meeting before August 2, 2005. She had a duty to do so and procrastinated, hiding behind legal counsel and making unnecessary requests for clarification by the Councillors. Her duty was clear and was neglected or deflected. Again, no order is required in that regard but there is an impact on costs.
[45] Therefore, with respect to proceeding T-1365-05 I declare that the Band Council Resolutions purportedly passed on July 8, 2005 are not valid. The Applicants, however, will not have to pay costs and neither Respondent is entitled to costs having regard to the findings made above.
[46] Turing to proceeding T-1454-05 the issue does not depend on whether there was a "duly convened" meeting. The Resolution in question was passed at the August 2, 2005 meeting which all parties agree was duly convened. The issue to be resolved is whether the Resolution itself is valid.
[47] Counsel for the Applicants, Councillors Cassidy and Wells, who voted for the Resolution, the Chief voting against, say that the Resolution is valid for either of two reasons:
1. It is not inconsistent with the Act or Regulations; or
2. If it is inconsistent with the Regulations, in particular section 18(2), then that section is ultra vires having regard to the provisions of section 2(3) of the Act.
[48] As to the first of these reasons, the Applicants say that section 31 of the Regulations permit rules of procedure "not inconsistent with these Regulations". That section says:
| 31. The council may make such rules of procedure as are not inconsistent with these Regulations in respect of matters not specifically provided for thereby, as it may deem necessary.
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31. Le conseil peut, s'il l'estime nécessaire, établir tout règlement interne, qui ne soit pas en contradiction au présent règlement, en ce qui concerne des points qui n'y sont pas spécifiquement prévus.
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[49] The Applicants say that the Regulations are silent as to situations where the Band Council comprises only three members, the Chief and two Councillors. They say that the Regulations do not provide for a situation where there may be a quorum at a meeting, namely two persons, it is impractical to have one preside and the other to be the only voting member. The Resolution, they say, fills this void by permitting the presiding officer to vote.
[50] The Applicants' argument clearly cannot stand. Section 18(2) of the Regulations expressly prohibit the presiding officer from voting except in the case of a tie. There can be no tie when only one person is otherwise left to vote, nor is there a quorum when only one voting member is present. Either the Chief or the superintendent must be present.
[51] The second reason put forward by the Applicants is that section 18(2) of the Regulations must be invalid having regard to section 2(3) of the Act which says that powers are conferred by "a majority of the Councillors of the Band present at the meeting". Thus, they argue, where the council comprises only three, two constitutes a quorum and should each be able to vote so that a "majority" can be achieved. They say that any Regulation such as 18(2) which deprives one of these two of a vote cannot be valid.
[52] This question must be approached having in mind the principles expressed by Anglin J. of the Supreme Court of Canada in Toronto Railway Company v. Paget (1909), 42 S.C.R. 488 at page 499:
It is not enough to exclude the application of the general Act that it deals somewhat differently with the same subject matter. It is not "inconsistent" unless the two provisions cannot stand together.
[53] The Supreme Court of Canada has, in cases such as Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at paragraph 21, adapted the principle expressed by Driedger on the Construction of Statutes, 2nd ed, Butterworths Canada at page 87 that words of a statute (and regulation) are to be read in their grammatical and ordinary sense harmoniously with the scheme and subject of the Act and intention of Parliament.
[54] The Indian Act together with the Regulations at issue provides for a procedure whereby Band Council meetings may be held and conducted. This procedure is generally consistent with that recognized in our society: there must be a quorum, majority rules, the chair cannot vote except to break a tie. Provision is made in the Regulations for a third party, the superintendent, to act as Chair, but without having the power of a tie-breaking vote. In this way a quorum of only two can function where the Band Council consists of only three and one is absent. These provisions are not inconsistent with section 2(3) of the Act, which is expressed in the negative, that is, that "unless the context otherwise requires". The power of the Band Council is not exercised unless by consent of the majority at a duly convened meeting. The Regulations provide for a majority vote at a duly convened meeting. Where the meeting lacks the Chief or a superintendent to act as presiding officer, the meeting is no longer "duly convened" where only two councilors are present. The Act and the Regulations are not inconsistent.
[55] I find, therefore, that the Resolution at issue in T-1454-05 is not valid and so declare. For the reasons earlier given, I decline to award costs to the Minister. Had the superintendent acted promptly and called a special meeting it may well have been that such a resolution would not have been put forward. Lack of diligence on the part of the superintendent was clearly a motivational factor in seeking a resolution of this kind.
"Roger T. Hughes"
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