Date: 20060927
Docket: T-1383-05
Citation: 2006 FC 1147
Halifax, Nova Scotia, September 27,
2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
KWANLIN
DÜN FIRST NATION
Applicant
and
JENNIFER EDZERZA, HELEN
CHARLIE,
AND JACINE FOX
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This is an
application by the applicant, Kwanlin Dün First Nation, for judicial review of
a decision of the Kwanlin Dün First Nation Election Appeals Board (the Board)
of July 27, 2005, which determined that the Board has jurisdiction to make a
declaration respecting the validity of Kwanlin Dün First Nation law, i.e. the Rules
and Procedures for Conduct of a Vote for Chief & Council, Kwanlin Dün First
Nation, April 2005 (the Election Rules, 2005).
[2]
Respondents Jennifer
Edzerza and Helen Charlie are members of the Kwanlin Dün First Nation and
respondent Jacine Fox was an unsuccessful candidate in the election at issue.
[3]
The applicant
requested an order prohibiting the Board from reviewing and making a declaration
respecting the validity of the Election Rules, 2005.
[4]
The respondents
agreed with the relief sought by the applicant.
Background
[5]
On April 1, 2005, the
Council of Kwanlin Dün First Nation (the Council) enacted the Kwanlin Dün
First Nation Constitution (the Constitution) and the Election Rules,
2005. On June 3 and 4, 2005, an election was held to elect a Chief and
Council pursuant to the Election Rules, 2005.
[6]
On June 28, 2005, the
respondents commenced an appeal of the election on the grounds that the
election was not conducted in accordance with the Election and Referendum
Code contained in Schedule 3 of the Constitution, but was conducted in
accordance with the Election Rules, 2005. The respondents (appellants)
asserted that the Election Rules, 2005 were invalid as they were adopted
by the Council in a manner not consistent with the Constitution.
[7]
On July 4, 2005, the
respondents filed a petition in the Supreme Court of the Yukon Territory
seeking an order declaring that the Election Rules, 2005 are void and
that the election of June 3 and 4, 2005 is void as it was not conducted
pursuant to the rules and procedures of the Constitution.
[8]
On July 7, 2005, the
Board was constituted to hear the appeal of the respondents.
[9]
On July 18, 2005, the
respondents made a “Request to Council to Review its Decision” of April 1, 2005
adopting the Election Rules, 2005. The respondents sought
reconsideration of the decision to enact the Election Rules, 2005 on the
basis that the substantive amendments to the rules and procedures for elections
were not in accordance with the requirements of the Constitution, and are
therefore of no force and effect.
[10]
On July 21, 2005, the
Supreme Court of the Yukon
Territory stayed the
respondents’ petition pending a final decision of the Board.
[11]
A preliminary issue
raised by the respondents was whether the Board had jurisdiction to hear the
appeal. The respondents contended that the Board did not have jurisdiction
because the Constitution, which became effective on April 1, 2005, provided
that an appeal in respect of an election must be heard by the Judicial Council
of the Kwanlin Dün First Nation (the Judicial Council). However, the Judicial
Council had not yet been appointed, for reasons not explained. The position
advanced by the applicant was that the Board, a tribunal contemplated under the
pre-Constitution Kwanlin Dün First Nation Election Regulations, 1999 (the
Election Regulations, 1999), had jurisdiction to deal with the
appeal in the absence of the Judicial Council. The applicant submitted that to
conclude otherwise would create a void in the appeal process that was not
contemplated or intended by the Constitution.
[12]
After receiving
written submissions from the parties on the question of jurisdiction, the Board
issued an interim decision on July 21, 2005 concluding that it did have
jurisdiction to hear the appeal. Reasons for that decision were given on July
25, 2005. A key issue for the Board was the interpretation of the transitional
rules governing an appeal of an election.
[13]
In its reasons, the
Board cited subsection 66(4) of the Constitution, which states:
Any
law, ordinance, resolution or agreement enacted or entered into by the Kwanlin
Dün First Nation Band Council, and in force immediately before the Effective
Date, continues in force to the extent that it is consistent with this
Constitution, subject to any subsequent amendment or repeal, or in accordance
with this Constitution.
[14]
The Board also cited
subsection 19(1) of Schedule 3 to the Constitution, which provides:
Until
the Council amends this Act, or the Judicial Council adopts Rules of Procedure
respecting electoral appeals, clauses 16.06, 16.07.01, and 16.08 through 16.17
inclusive of the Kwanlin Dün First Nation Election Bylaw in force immediately
prior to the Effective Date [sh]all apply to an appeal under this Schedule, but
a reference in any of those provisions to the Kwanlin Dün First Nation Election
Appeals Board must be read as if it were a reference to the Judicial Council.
[underlining
added]
[15]
The Board agreed with
the applicant that in the absence of a Judicial Council, the underlined portion
of subsection 19(1) should be treated as inoperative, and that the Board should
therefore be given the same jurisdiction that the Judicial Council would
possess if it were constituted or capable of being constituted to deal with
this appeal. The Board found that this interpretation was consistent with the
fundamental spirit, purpose and intent of the Constitution to promote
self-governance under the Constitution. The Board also stated that it should
undertake only so much of the jurisdiction of the Judicial Council, as set out
in the Constitution, as may be reasonably necessary to render a decision on the
present appeal.
[16]
On July 27, 2005, the
Board held a hearing to address the substantive issues of the appeal. All
parties agreed that the election had been conducted in accordance with the Election
Rules, 2005. The chairperson of the Board requested submissions as to
whether the Council had complied with subsection 49(1) of the Constitution in
enacting the Election Rules, 2005. Counsel for the applicant objected to
this on the ground that the Board had no jurisdiction to deal with issues of
law or with the enactment of the law, and that its jurisdiction is confined
solely to dealing with whether the election was conducted in compliance with
the Election Rules, 2005. As the parties had agreed that there were no
improprieties in this regard, counsel for the applicant urged that the Board
had no option but to dismiss the appeal.
[17]
The chairperson
asserted at the hearing that the Board had jurisdiction to address not only the
issue of compliance with the Election Rules, 2005, but also the
constitutional validity of the Election Rules, 2005. The applicant
objected to the Board exercising jurisdiction in respect of the constitutional
validity of the Election Rules, 2005. Chief Mike Smith, concurred in by
applicant’s counsel, sought and obtained an adjournment from the Board in order
to seek advice of counsel.
[18]
On August 9, 2005,
the applicant filed this application for judicial review to challenge the
Board’s decision of July 27, 2005, that it had jurisdiction to rule on the
validity of the Election Rules, 2005. The Board decided not to reconvene
the election appeal hearing pending the outcome of this application. The Board
took no position in relation to the relief sought by the applicant and has not
been joined as a respondent to this application.
[19]
This application for
judicial review is not opposed by the respondents.
Issues
[20]
The applicant
submitted the following issues for consideration in its memorandum of fact and
law:
1. Whether the Board has
jurisdiction to review and to make a declaration upon the validity of the Election
Rules, 2005; and
2. Whether a writ of prohibition
restraining the Board from reviewing and making a declaration upon the validity
of the Election Rules, 2005 ought to issue.
Applicant’s Submissions
[21]
The applicant
submitted that the Board is a federal board, and this Court has jurisdiction to
hear this application for judicial review and to issue the writ of prohibition
sought.
[22]
The applicant
submitted that the legislative intent of the Kwanlin Dün First Nation
Self-Government Agreement, the Election Regulations, 1999, and the Election
Rules, 2005 is to give the Board final appellate jurisdiction in respect of
the conduct of elections and to give the Council, the Judicial Council, the
Supreme Court of the Yukon Territory and the Federal Court exclusive
jurisdiction in respect of challenges to the validity of Kwanlin Dün First
Nation law.
[23]
The applicant
submitted that the Constitution sets out a complete scheme for enacting Kwanlin
Dün First Nation law and for challenging such law, first by appeal to the
Council, then to the Judicial Council, then to the Supreme Court of the Yukon Territory. It was submitted that the validity of a
Kwanlin Dün First Nation law may be challenged in the Supreme Court of the Yukon Territory (subsection 52(1) of the Constitution).
However, before a person may challenge the validity of a Kwanlin Dün First
Nation Law in the Supreme Court of the Yukon
Territory, that person must
first exhaust any other procedures established by Kwanlin Dün legislation for
challenging the validity of that law (subsection 52(2) of the Constitution).
Therefore, it was submitted that before the respondents can challenge the
validity of the Election Rules, 2005 in the Supreme Court of the Yukon
Territory, they must first, in accordance with paragraph 47(1)(e) of the
Constitution, ask the Council to reconsider the enactment of the Election
Rules, 2005 on the grounds that the enactment appears to have been made in
a manner inconsistent with the procedures described in Part 4 of Chapter 7 of
the Constitution.
[24]
The applicant
submitted that the power to consider questions of law can be bestowed on an
administrative tribunal explicitly or implicitly by legislation (see Cooper
v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854). It was submitted
that there is no provision in the Election Regulations, 1999 or the Election
Rules, 2005 vesting the Board with the power to determine the validity of
Kwanlin Dün First Nation law, whereas, the Constitution expressly vests such
power in the Council, Judicial Council and the Supreme Court of the Yukon
Territory.
[25]
The applicant
submitted that the Board does not have the mechanism in place to adequately
deal with multifaceted constitutional issues. For example, the Board is not
bound by traditional rules of evidence, and thus a Board may receive unsworn
evidence, hearsay evidence and simple opinion evidence. It was submitted that
such an unrestricted flow of information is inappropriate in determining the
validity of legislation. Moreover, it was submitted that the Board lacks
special expertise with respect to questions of law.
[26]
The applicant
submitted that one of the objectives of judicial review is to prevent
administrative bodies from doing acts that they do not have the power to do,
and one method of accomplishing this that is recognized in the Federal
Courts Act is to obtain a writ of prohibition (see Canada (Attorney
General) v. Canada (Commissioner of the Inquiry on the Blood System),
[1997] 2 F.C. 36 at paragraph 25 (C.A.), affirmed [1997] 3 S.C.R. 440). The
applicant submitted that prohibition is a preventative rather than corrective
remedy (see Krause v. Canada, [1999] 2 F.C. 476 at paragraph 17 (C.A.)). It was submitted that prohibition should only be issued
and maintained when the tribunal exceeds its jurisdiction or has exercised a
jurisdiction which is not within its competence (see Bauer v. Canada (Immigration Commission), [1984] 2 F.C. 455 at paragraph 12
(T.D.)).
[27]
The applicant
submitted that the appropriate remedy, in light of the Board’s express
intention to rule on the validity of the Election Rules, 2005, is to
order a writ of prohibition restraining the Board from reviewing and making a
declaration upon the validity of the Election Rules, 2005.
Respondents’ Submissions
[28]
The respondents did
not file written submissions.
Analysis and Decision
[29]
On April 1, 2005, the
Kwanlin Dün First Nation enacted their Constitution and the Election Rules,
2005. The Constitution and the Election Rules, 2005 set out
provisions for the conduct of elections of the Chief and Council, and replaced
the Election Regulations, 1999 which were previously in force.
[30]
Pursuant to
subsection 16(1) of Schedule 3 of the Constitution, an appeal respecting the
electoral process may be made to the Judicial Council. Pursuant to subsection
22(1) of the Election Rules, 2005, an appeal in respect of the
conduct of a vote shall be made to the Judicial Council.
[31]
No Judicial Council
has been constituted. However, the Board was appointed to hear the appeal of
the election at issue. The Board is an administrative body constituted under
the pre-Constitution Election Regulations, 1999 for “the purpose of
hearing any appeals resulting from the conduct of the election” (section 16.06
of the Election Regulations, 1999). These regulations empower the Board
to uphold an appeal (section 16.15.01) or dismiss an appeal (section 16.15.05),
and, where circumstances warrant, call a re-election or by-election or declare
that certain candidates are ineligible to hold office (section 16.15.02 to
16.15.04). The Board found that in the absence of a Judicial Council, it was
appropriate for the Board to assume jurisdiction to hear the appeal as if it
were the Judicial Council properly constituted.
[32]
One of the issues of
the appeal is whether the Election Rules, 2005 are invalid under the
Constitution of the Kwanlin Dün First Nation. At the hearing of July 27, 2005,
the Board decided that it had jurisdiction to hear submissions and make a
determination on the validity of the Election Rules, 2005. The applicant
has asked this Court to decide whether the Board has jurisdiction to rule on
this issue. The applicant submitted that the Constitution, the Election
Rules, 2005 and the Election Regulations, 1999 do not explicitly or
implicitly empower the Board to entertain questions on the validity of
legislation. I agree. The legislation provides that the Board is constituted to
hear an appeal in respect of the conduct of an election. The Judicial Council,
which replaces the Board under the new Constitution, has authority to hear an
appeal regarding the electoral process (subsection 16(1) of Schedule 3 to the
Constitution). There is nothing in the legislation which would evidence the
intent of the legislators to confer upon the Board or the Judicial Council, the
authority to make determinations on the validity of Kwanlin Dün First Nation
legislation in the context of an appeal of an election. Questions of the
validity of such legislation, including the issue of whether a provision was
properly enacted under the Constitution, are to be determined by the Council,
the Judicial Council, or the Supreme Court of the Yukon Territory, in accordance with the Constitution.
[33]
I note that the
respondents, who have not opposed this application for judicial review, have
sought to challenge the validity of the legislation by filing a petition in the
Supreme Court of the Yukon Territory (which was stayed pending a decision by
the Board), and also by submitting a Request to Council to reconsider the
enactment of the Election Rules, 2005 pursuant to paragraph 47(1)(e) of
the Constitution. I agree with the applicant that the proper means of
challenging the validity of the Election Rules, 2005 is first, to
exhaust the legislated procedures for challenging the validity of laws
(subsection 52(2) of the Constitution), in particular, by submitting a Request to
Council, as the respondents have done.
[34]
In my view, the Board
does not have jurisdiction to rule on the validity of the Election Rules,
2005 and it is appropriate in the circumstances to issue an order of
prohibition.
[35]
The
application for judicial review is therefore granted and an order of
prohibition will issue, prohibiting the Board from ruling on the constitutional
validity of the Election Rules, 2005.
JUDGMENT
[36]
IT
IS ORDERED that the application for judicial review is granted and an order
of prohibition will issue, prohibiting the Board from ruling on the
constitutional validity of the Election Rules, 2005.
“John
A. O’Keefe”
ANNEX
Relevant Legislation
The
relevant provisions of the Kwanlin Dün First Nation
Constitution are as follows:
1. (1)
In accordance with the inherent right of self-government and the Kwanlin Dün
First Nation Self-Government Agreement, the Kwanlin Dün declare and confirm the
establishment of the Kwanlin Dün First Nation to:
(a) promote
the common interests and shared welfare of the Kwanlin Dün; and
(b) give
effect to:
(i) the
Kwanlin Dün First Nation Final Agreement, as recognized and protected by the
Constitution of Canada, and
(ii) the
Kwanlin Dün First Nation Self-Government Agreement.
2.
(1) This Constitution is the supreme law of the Kwanlin Dün First Nation.
(2) If any
law enacted by the Kwanlin Dün First Nation is inconsistent with this
Constitution, that law is, to the extent of the inconsistency, of no force or
effect.
(3) Each
Schedule attached to this Constitution is part of the Constitution, unless a
provision of this Constitution expressly states that a particular Schedule has
the status of ordinary Kwanlin Dün First Nation legislation.
47.
(1) A Citizen may request the Council to reconsider any of its decisions,
including the enactment or amendment of any Kwanlin Dün First Nation law, on
the grounds that the decision appears to:
…
(e) have
been taken in a manner inconsistent with the procedures described in Part 4 of
this Chapter, if the decision resulted in the enactment or amendment of Kwanlin
Dün First Nation law.
(2) The
Council must consider any request under subsection (1) at its next meeting
following receipt of the request.
(3) A
decision that is the subject of a request under this section remains in force
unless the Council changes or repeals it, subject to a decision of the Judicial
Council under Section 56(1)(d).
49.
(1) The Council will have enacted an Act or Regulation when the following
events have occurred:
(a) at the
meeting of the Council at which the motion is first made, the Council has
decided by Preliminary Vote, to accept the introduction of that Act or
Regulation for later consideration;
(b) a notice
concerning the proposed Act or Regulation has been published, copies have been
made available to Citizens, and those Citizens have been informed how they can
submit their opinions concerning the proposed Act or Regulation;
(c) at a
second meeting of the Council held after the period of time for public
discussion, the Council has debated both the general purpose and the details of
the proposed Act or Regulation, and decided by Preliminary Vote to accept the
proposed Act or Regulation, with or without amendments;
(d) at a
third meeting of the Council, held at least 14 days after the meeting referred
to in paragraph (c), the Council has decided by final vote to enact the
proposed Act or Regulation; and
(e) the
Chief and a quorum of Councillors has signed the Act or
Regulation.
…
52.
(1) Subject to subsection (2), the validity of a Kwanlin Dün First Nation law
may be challenged in the Yukon Supreme Court.
(2) Before a
person may challenge the validity of a Kwanlin Dün First Nation law in the
Yukon Supreme Court, that person must first exhaust any other procedures
established by Kwanlin Dün legislation for challenging the validity of that
law.
…
56. (1)
The Judicial Council is responsible and has authority to perform any of the
following functions:
…
(d) consider
an application by a Citizen challenging a decision of the Council on any ground
set out in section 47(1), if that decision has been upheld by the Council under
section 47, and make a declaratory order either
(i)
affirming the decision of the Council; or
(ii) setting
aside the decision of the Council.
…
(2) A person
may not bring an application referred to in subsection (1)(d) unless that
person has first submitted a request to the Council to reconsider the matter
under section 47.
66. …
(4) Any law, ordinance,
resolution or agreement enacted or entered into by the Kwanlin Dün First Nation
Band Council, and in force immediately before the Effective Date, continues in
force to the extent that it is consistent with this Constitution, subject to
any subsequent amendment or repeal, or in accordance with this Constitution.
68. (1) When interpreting this
Constitution, or any of the Schedules, the Judicial Council, a court, tribunal
or forum must:
(a) promote the values that are set out in it, or underlie it; and
(b) promote the spirit, purport and objects of the Constitution.
…
Schedule
3 to the Constitution (Election and Referendum Code) sets out the
following provisions concerning an appeal of an election:
16. (1) An appeal regarding the
electoral process may be made to the Kwanlin Dün First Nation Judicial Council
within:
(a) 30 days after the election
decision from which the appeal is taken; or
(b) such shorter time
prescribed by the Judicial Council Rules of Procedure in a particular case.
(2) In its consideration of
appeals, the Judicial Council must abide by the procedures outlined in this
Constitution, and its rules of procedure.
(3) A decision of the Judicial
Council on an appeal is final.
19. (1) Until the Council amends this Act, or the
Judicial Council adopts Rules of Procedure respecting electoral appeals,
clauses 16.06, 16.07.01, and 16.08 through 16.17 inclusive of the Kwanlin Dün
First Nation Election Bylaw in force immediately prior to the Effective Date
[sh]all apply to an appeal under this Schedule, but a reference in any of those
provisions to the Kwanlin Dün First Nation Election Appeals Board must be read
as if it were a reference to the Judicial Council.
Provisions
of the Kwanlin Dün First Nation Election Regulations, 1999 concerning
the Kwanlin Dün First Nation Election Appeals Board are set out below.
16.01 For the purpose of hearing any
appeals resulting from the conduct of the election, an Appeals Board shall be
established. Such an Appeals Board shall be referred to as the Kwanlin Dün
First Nation Election Appeals Board.
16.06 Any eligible voter may lodge an
appeal against a Kwanlin Dün First Nation Election by:
16.06.01 filing within thirty days of the
Kwanlin Dün First Nation Election a written document on which shall appear,
16.06.02 the grounds pursuant to these
Bylaws and Regulations on which the election is appealed,
16.06.03 the evidence in support of the
grounds, and
16.06.04 the signature of a person
initiating the appeal.
16.06.05 Such notice of appeal shall;
16.06.06 be served either personally on the
Chief Electoral Officer or by forwarding the appeal to the Kwanlin Dün First
Nations Election Appeals Board via registered mail, mailed within such period,
addressed to …
16.07.01 Upon receipt of an appeal, the
Kwanlin Dün First Nation Election Appeals Board shall cause a copy of the
appeal to be served on all candidates of the Kwanlin Dün First Nation Council
and the Chief Electoral Officer.
…
16.11 Upon expiry of the time for filing
replies, the Kwanlin Dün First Nation Election Appeals Board shall meet to hear
and determine the outcome of the application.
16.12 In their deliberations, the Kwanlin
Dün First Nation Election Appeals Board may, in their sole discretion;
16.12.01 make regulation and orders
governing the conduct of any hearings or any proceedings of the board,
16.12.02 conduct hearings with the
Appellant, the Respondent and any witnesses the parties may require or permit
to be heard,
16.12.03 cause the appearances of
witnesses for the Appellant or Respondent and any additional individuals who
may, in the Board’s opinion, assist the outcome of the proceedings,
16.12.04 examine the record(s), and
16.12.05 generally conduct the
proceedings in a manner which the Board, in its sole discretion, deem necessary
and appropriate in order to formulate an informed decision.
…
16.15 The final decision of the Kwanlin
Dün First Nation Election Appeals Board shall be;
16.15.01 to uphold the appeal and, in the
sole discretion of the Kwanlin Dün First Nation Election Appeals Board,
16.15.02 to present instructions to the
Chief Electoral Officer, if circumstances warrant, that the entire election be
set aside and to conduct a re-election whereby all seats for the Kwanlin Dün
First Nation Council are declared vacant and a new election is held forthwith,
16.15.03 where circumstances warrant that
only one or more seats be declared vacant and a by-election for the original
term for which the contested election was called is held forthwith, for the
remainder of the original term,
16.15.04 declare that a candidate or
candidates for any of the governing bodies is in breach of these Bylaws or
Regulations and ineligible to hold office and to declare the candidate with the
next highest number of votes to be elected, or
16.15.05 dismiss the appeal.
16.16 The decision of the Kwanlin Dün
First Nation Election Appeals Board shall be final and binding upon the
parties.
16.17 Any person lodging an appeal may at
any time before a final decision is rendered by the Kwanlin Dün First Nation
Election Appeals Board withdraw his appeal and such an appeal is thereupon
dismissed.
The
Rules and Procedures for Conduct of a Vote for Chief & Council, Kwanlin
Dün First Nation, April 2005 set out the following provision governing an
appeal in respect of an election:
22. (1) Any request for an appeal
respecting the conduct of the vote shall be made to the KDFN Judicial Council
within:
(a) 30 days after the election
decision; or
(b) such shorter time
prescribed by the Judicial Council Rules of Procedure in a particular case.
(2) In its consideration of
appeals, the KDFN Judicial Council must abide by the procedures outlined in the
KD Constitution, and its rules of procedures.
(3) A decision of the Judicial
Council on an appeal is final.
(4) If the Judicial Council is
not in place, the rules established by the Kwanlin Dun Indian First Nation
(pre-April 1, 2005) will apply as set out in the Constitution of the KDFN.
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