Date: 20061031
Docket: T-183-06
Citation: 2006
FC 1311
Ottawa, Ontario,
October 31, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
GEORGE
LESLIE MINDE
Applicant
and
ERMINESKIN
CREE NATION and ERMINESKIN TRIBAL COUNCIL
Respondents
REASONS FOR ORDER AND ORDER
Introduction
[1]
On August
31, 2005, George Leslie Minde (the applicant) was elected Chief of the
Ermineskin Cree Nation (ECN) for a second three-year term. He was first
elected as Chief in August of 2002. In the aftermath of the August 2005
election, there were two election appeals against his election heard by the
Election Appeals Board and dismissed. He commenced his second term on October
1, 2005.
[2]
On December
4, 2005, at a special meeting of the Ermineskin Tribal Council (the Tribal Council),
a Band Council Resolution (BCR) was passed in the following terms:
“Be it resolved that at a duly
convened special meeting, we the Ermineskin Tribal Council make the
following decision in accordance to the Council Code of Conduct within the
Ermineskin Tribal Constitution;
Whereas, the Ermineskin Tribal
Council has accepted the recommendation by the Ermineskin Elders Council to
implement Section 15 on October 31, 2005 and;
Whereas, George L. Minde has
failed to appear before the Ermineskin Elders Council within the specified
timeline allotted and;
Therefore, the Ermineskin
Tribal Council now exercise its authority in reference to Section 11,
where George L. Minde has vacated his position as Chief, in accordance to
violation of Sections: 4, 5 & 9 of the Council Code of Conduct within the
Ermineskin Tribal Constitution.”[Emphasis mine]
[3] I set out in Appendix A to these reasons the
relevant sections of the Council Rules of Conduct in force today.
[4] On January 30, 2006, Mr. Minde sought
judicial review of the BCR which he characterized as a resolution “which
purported to terminate or self-terminate the applicant as Chief of the ECN.”
He seeks the following relief:
1. An order quashing the BCR dated
December 4, 2005;
2. A declaration that the applicant,
George L. Minde, is the Chief of the ECN;
3. Such further relief as this
Honourable Court may deem just;
4. Costs of this action on a solicitor and his own client
basis, or alternatively, costs in the fixed sum of $25,000.00.
[5] The main ground advanced by
the applicant to quash the BCR is breach of procedural fairness: the applicant
states he was not given any notice of the December 4, 2005 Tribal Council special
meeting, did not know what action was being proposed, did not know the
allegations made against him and had no opportunity to defend himself. The
other grounds include lack of notice of the December 4, 2005 meeting to two
other Tribal Councillors and lack of a proper quorum. Chief Minde states he became
aware of the BCR only on December 20, 2005 when he was served with originating
documents in the Alberta
proceedings.
[6] Chief Minde’s
affidavit supported his judicial review application as did that of Donna
Littlechild Patenaude who confirmed she had not been given notice of the
December 4th special meeting and there were only 5 Councillors
present. Chief Minde was cross-examined on his affidavit.
[7] It is admitted by Counsel for the Tribal Council
there is no evidence the applicant who is, as Chief, a member of the Tribal
Council was ever notified a special meeting would be held on December 4, 2004,
the purpose of that meeting, nor that he was present so as to be able to speak
in his defence.
[8] This judicial review application took an unusual
twist with the filing of the respondents’ record. In that response, the respondents
argue the ECN has its own Constitution consisting of the Ermineskin Tribal
System (the Tribal System) and Bylaws. The respondents specifically point to Bylaw
E-83-01, as amended in 1987 and 1996, being a Custom Law providing for the
conduct of the Ermineskin Tribal Council (Chief and Council) mandates the Ermineskin
Elders Council (EEC) to “shall advise the Chief and Council, and monitor the
conduct of the Chief and Council with authority to discipline the Chief and Council
as necessary from time to time and as per memorandum of agreement attached as
Appendix B”. [Emphasis mine]
[9] At page 007 of the respondents’ record is a document dated October
27, 2004 entitled Memorandum of Agreement for a Term of Assigned Office.
The memorandum is between Chief Minde and the Ermineskin Elders Senate which in
section 8 stipulates it “terminates respectively at the end of my term as
Chief” I quote section 4 of the Memorandum of Agreement:
“As Chief, I have myself knowledge about
the responsibilities to the Ermineskin Cree Nation Membership and hereby
agree to my office becoming vacant for violations to rules as set out with and
in the Ermineskin Tribal System. Further, I hereby agree to hourly
deductions from my salary for being late or missing meetings without permission
and agree to any suspension by the Elders Senate for conduct unbecoming.”
[Emphasis mine]
[10] The respondents
assert the Elders Council decided, in August 2005, to investigate certain
allegations Chief Minde had improperly engaged in three financial transactions
involving ECN funds. They say the EEC notified the Chief, asked him to
cooperate in the investigation of these matters but he refused to do so which
led the EEC to serve on Chief Minde a Notice of Self-Termination dated November
14, 2005 which stated, in part, he had forfeited his position as Chief due to
his continued disregard of notices previously served on him by the EEC to
cooperate in the investigation. One of these transactions occurred in August
of 2004. It involved the purported purchase of new heavy equipment worth
$149,000.00.
[11] The bottom line
of respondents’ argument is that Mr. Minde has sued the wrong body. They argue
the decision-maker was the EEC and not the Tribal Council and the BCR
effectively does not play any role in the decision of the Elders Council that
Mr. Minde was deemed to have vacated his position as Chief. They argue the
applicant, if he wished to attack by judicial review the decision to declare
that he was deemed to have vacated his position as Chief, should have sought to
quash the EEC’s decision.
[12] The applicant filed
a reply on June 30, 2006. The applicant argues three points:
·
The EEC was not in existence at all material times, i.e., during the
period August to December, 2005 when the alleged disciplinary steps were taking
place;
·
If an EEC had existed at all material times it did not have the authority
to terminate or “self-terminate” Mr. Minde because the authority to do so would
still rest with the Tribal Council; and
·
The EEC is not a Federal board, commission or other tribunal within the
meaning of section 2 of the Federal Courts Act.
[13] As part of the
reply material the applicant filed an outside legal opinion (i.e. not from
their regular counsel dated October 21, 2005) which the Tribal Council received.
That legal opinion dealt with the legal requirement of procedural fairness surrounding
the two-week suspension of Chief Minde which purportedly occurred on October 17,
2005.
[14] The respondents’
response was supported by the affidavit of George Ermineskin, Chairman of the
EEC. His affidavit appended various copies of the meetings of the EEC and
notices of investigation to Chief Minde. He was cross-examined. The respondents
deposed three other affidavits, not cross-examined upon:
· The affidavit of J. Wilton Littlechild, Q.C. who exhibited documents
related to the ECN’s Tribal System and Constitution;
· The affidavit of Bob Small, a former member of the Tribal Council from
October 1999 to 2005, who detailed his participation with the applicant in the
purchase of heavy equipment and who endorsed the cheques to the auto dealer.
As requested, he appeared before the EEC in August 2005 to explain his role.
The EEC decided to suspend him for 10 years from running for elected office in
the ECN;
· The affidavit of Craig Makinaw, a member of the Tribal Council since
1993. He appended several documents including a number of BCRS’, and a memo
dated December 5, 2005 to the directors and managers of ECN business and
other organizations stating Mr. Minde was no longer acting as Chief.
Background
and Facts
(a)The
Proceedings in Alberta
[15] On December 16, 2005, the ECN and the Tribal
Council filed a statement of claim in the Alberta Court of Queen’s Bench as
Plaintiffs against Mr. Minde as defendant alleging, inter alia, the
defendant:
·
At the
time of taking his oath of office, signed an agreement dated October 27, 2004
with the Ermineskin Elders Senate whereby he agreed in the event he violated
the Rules of the Ermineskin Tribal System, his office would be deemed to become
vacant;
·
He
breached the Code of Conduct and thereby breached the agreement he signed on
October 27, 2004;
·
He
breached his fiduciary duty in his capacity of Chief in his dealings with an auto
dealer and his involvement in the fraudulent purchase of heavy equipment at
inflated values;
·
He has
committed a breach of trust by conspiring to have the ECN purchase the heavy
equipment; and
·
He is
guilty of deceit and misrepresentation in his dealings with a tribal member and
in arranging for three cheques to be endorsed and turned over to the auto
dealer without the knowledge and consent of the Tribal Council.
[16] The Plaintiffs sought general damages against Mr.
Minde in the amount of $149,000.00, punitive and exemplary damages, an
interlocutory and permanent injunction requiring Mr. Minde to immediately vacate
the Chief’s office in the Band Administration offices of the ECN and
restraining Mr. Minde from interfering with the Tribal Council, Band Staff or
Band Members of the ECN.
[17] The Plaintiffs also alleged in the statement of claim
that upon discovering the issuance of the three cheques totalling $149,000.00,
the Tribal Council commenced an investigation through Tribal Elders.
The Plaintiffs alleged Mr. Minde was asked to cooperate in the investigation
but refused to do so.
[18] The Plaintiffs say the EEC had been given the power
by the Tribal Council to investigate matters involving the Chief and Council and
decided to do so. The statement of claim further alleges the EEC made every
effort to follow due process in the investigation; however, Mr. Minde, it
states, refused to participate despite receiving notices to appear and despite
being given every opportunity to appear and give evidence on his own behalf.
[19] The Plaintiffs further say the EEC suspended Mr.
Minde without pay pending the conclusion of the investigation and gave notice
to him of the suspension. Nevertheless, Plaintiffs allege Mr. Minde
deliberately arranged for the payment of his wages and certain travel expenses on
or about October 10, 2005 despite knowledge he had been suspended without pay.
[20] Plaintiffs allege on September 22, 2005, at
a general meeting of the Elders, a resolution was passed unanimously giving
full authority and direction to the EEC to enforce the suspension of Mr. Minde
stating, in part, if he did not appear before the EEC he would automatically
forfeit his position as Chief of the ECN.
[21] Plaintiffs further state on December 4, 2005 the
Tribal Council passed a resolution accepting the recommendation of the EEC to
recognize Mr. Minde had vacated his position as Chief due to violations of the
Ermineskin Tribal Constitution and By-laws. [Emphasis mine]
[22] The Plaintiffs moved the Alberta Court of Queen’s
Bench for the interlocutory injunction. That matter was heard by Mr. Justice
Belzil on January 16, 17, 30 and 31, 2006.
[23] On February 8, 2006, Justice Belzil issued
his decision. He granted the interlocutory injunction stipulating until
further order of this Court, Mr. Minde was enjoined from entering the ECN Band
offices and was further enjoined from conducting any financial transactions on
behalf of the ECN or Tribal Council including the issuance of any cheques or
execution of any contracts. In addition, Mr. Minde was enjoined from
interfering with ECN staff or ECN members of ECN tribal enterprises.
[24] Justice Belzil attached a number of conditions to
the interlocutory injunction including the following:
·
If Mr.
Minde was successful in his application for judicial review in the Federal Court
and obtained the declaration or order sought that he remains Chief of ECN, the
parties have leave to re-attend before him to set aside or vary the order; and
·
Mr. Minde
is permitted to attend ECN offices during regular business hours on one occasion
accompanied by a designated representative of ETC, to remove any personal items
from his office which he formally occupied. [Emphasis mine]
(b) Justice Belzil’s Reasons
[25] Justice Belzil issued lengthy reasons for the grant
of the interlocutory injunction against Mr. Minde. I find those reasons of substantial
interest on several points in this judicial review application.
[26] First, he characterized the Tribal Council’s
December 4, 2005 resolution as one “declaring that the defendant had vacated
his position as Chief, and appointed an interim Chief pending a by-election.”
[Emphasis mine]
[27] Second, he rejected an argument by Mr. Minde, as
defendant, the Court of Queen’s Bench of Alberta lacked jurisdiction to adjudicate on the
Plaintiffs action which Mr. Minde had submitted should be advanced in Federal
Court. Justice Benzil ruled the Alberta Courts had jurisdiction because the
essence of the Plaintiffs claim was that of tortious misconduct by Mr. Minde entitling
the Plaintiffs to damages. He relied upon the Alberta Court of Appeal’s
judgment in Horseman v. Horse Lake First Nation [2005] A.J. No.
24.
[28] Third, at the urging of the Plaintiffs, he ruled
the Alberta Court of Queen’s Bench did not have jurisdiction on Mr. Minde’s
cross-application for a declaration that he is the Chief of the ECN and that at
no time has he been suspended or removed for a further declaration there is not
in existence an Elders Council/Elders Senate/Council of Elders of the ECN and a
further declaration that all decisions made by the Tribal Council as of October
17, 2005 to date are invalid and ineffective. [Emphasis mine]
[29] The Plaintiffs argued Mr.
Minde’s cross-application was, in reality, an application for judicial
review of a decision of the Tribal Council which application should properly be
brought in the Federal Court. Justice Benzil ruled in the Plaintiffs
favour stating “the proper remedy for the defendant [Mr. Minde] is to seek
judicial review in the Federal Court of the Band resolution pursuant to which
the Band argues he vacated his position as Chief of the ECN.” (Paragraph
31) [Emphasis mine]
[30] Fourth, Justice Benzil considered what status Mr.
Minde had before him for the purposes of the Plaintiffs interlocutory
injunction application. In connection with this issue, Justice Belzil:
·
Said at
paragraph 35 of his reasons the Plaintiffs argue that Mr. Minde was removed as
ECN Chief by virtue of passage a resolution of the Tribal Council on December
4, 2005 and at paragraph 36
Mr. Minde refused to acknowledge the validity of the resolution and argued that
he remained ECN Chief;
·
Ruled at
paragraph 37 that it would be inappropriate for him to speculate on the outcome
of the application for judicial review in the Federal Court;
·
Found at
paragraphs 38 and 39, the resolution of the Tribal Council passed on December
4, 2005 “exhibited before me, appears to be valid on its face and can be
relied upon” and “thus, for the purposes of this application, the defendant is
not currently ECN Chief, and, indeed, currently holds no elective office with
the Band. To hold otherwise would involve intruding into the exclusive
jurisdiction of the Federal Court.” [Emphasis mine].
(c)
The Context
[31] I set out the following context to this judicial review
application.
[32] First, Chief
and Tribal Council members of the ECN since 1983 are chosen by Band custom and thus
are not governed by sections 74 to 79 of the Indian Act. Election by Band
custom includes matters related to tenure and removal from office (see the
decision of Mr. Justice Heald, then a member of the Trial Division, in Crow
v. Blood Indian Band Council 107 FTR 270).
[33] Second, the ECN general membership codified its customs relating to
elections to the offices of Chief and Council when it ratified a first version of
a bylaw known as bylaw E-83-02 and revised as By-law 86-01. The short title of
this Bylaw is “Declaration of Custom with respect to the Establishment and Election
of Band Council”. The latest revision is dated May 31, 2004 ratified at a
general membership meeting on June 23, 2004 (see applicant’s record, page 52).
Section 32 of this bylaw relates to the terms and conditions of office. Its
paragraph (a) reads:
“Pursuant to the
Ermineskin Tribal System, Rules of Conduct sections (8), (9), (10), an elected
Chief or Council Member shall be removed from office upon the following
conditions:
i.
a member of the Tribal Council has deceased;
ii.
a member of the Tribal Council submits a formal resignation in writing;
iii.
a member of the Tribal Council has been convicted of a criminal offence;
iv a member
of the Tribal Council has had no involvement in the operation of the Tribe
without a valid reason for four (4) consecutive working days.[Emphasis mine]
[34] Third, reference
is made throughout these reasons to the Tribal System. The Tribal System
consists of a written constitution and a number of bylaws. I describe these
documents in summary form:
1. The constitution of the ECN consists
of a preamble, a statement as to the primacy of Treaty 6, special recognition
to specified Canadian constitutional instruments or statutes of Canada and the
composition, powers, authority, and responsibilities of the Tribal Council which
is made up of one Chief and eight Councillors elected by tribal custom. The
Tribal Council is specifically recognized as the government of the Ermineskin
Tribe.
2. Certain bylaws in particular:
·
Bylaw E-83-01, re-named Custom Law no. E-83-01 being a
Custom Law providing for the conduct of the Ermineskin Tribal Council as
revised in 1987, 1995 and 1996. This bylaw has several divisions labelled A to
K. The relevant provisions of divisions A and B are set out in Appendix A
to these reasons. Division C deals with meetings of the Tribal Council, Division
D with Minutes of Meeting, Division E with salaries, Division F with travel, Division
G with committees. Other Divisions cover such matters as the establishment of
an Ethics Commission, holidays, general meetings, vacancies and amendments;
·
Bylaw 83-02, revised as By-law E-86-01, being the
Custom Election Bylaw;
·
Bylaw 83-04 providing for the financial management of the ECN. [Emphasis
mine]
[35] Fourth,
the evidentiary record reveals prior to the August 31, 2005 elections a meeting
held on August 12 2005 at which where present members of the Finance
Committee, some (34 out of 77) Elders, seven members of the Tribal Council
(absent the applicant and Bob Small) and some ECN members. It was decided by
the Tribal Council members who were at that gathering to launch an
investigation into the alleged propriety by the Chief in three financial
transactions involving ECN funds and the investigation would be conducted by
nine appointed members of the EEC, (the appointed members) (respondents’ record,
page 12).
[36] It is important
to appreciate prior to the August 12, 2005 gathering, a special meeting of the
Tribal Council was held on August 8, 2005 at which the following BCR was passed
(respondents’ record, page 57):
“Be it resolved that we, the Ermineskin
Chief and Council, do hereby recognize the Elders Council as presented in
accordance with the Ermineskin Tribal System Bylaw No. E-83-01, Article B only:
Further to that section B of the bylaw providing
for the Conduct of Ermineskin Council No. E-83-01 be amended to consist of
all Elders of the Ermineskin Tribe.
Further to that in section B part 2, a
quorum shall consist of nine (9) Elders, subject to amendments, additions
and/or deletions with a final review to be approved by a quorum of Chief and
Council.” [Emphasis mine]
[37] On August 16,
2005, the EEC forwarded a letter to the Ermineskin Chief and Council. It
stated the Elders Council “were given approval, by general consensus of the
Ermineskin [Tribal] Council at a meeting held on August 8, 2005 at the Elders
Centre to proceed, based on factual evidence, if indeed any infractions are
substantiated by the Ermineskin Tribal Officials in regard to the $149,000.00
transaction.” The EEC’s communication went on to say as follows:
“In conclusion, the appointed Elders Council (quorum of nine) shall, based
on its findings, pursue the following disciplinary action:
·
As per the bylaw providing for Conduct of the Ermineskin Council number
83-01 section B, paragraph 2;
·
Bylaw E-86-01 Ermineskin Tribal Election Custom (Election Regulations, Section
28, paragraph G.
A final report shall be presented along with the facts and infractions
listed which may enforce the Elders Council to enact the disciplinary action
upon the said individuals responsible for the said infractions.” (applicant’s reply
record, page 101).”
[38] I have already
reproduced section B, paragraph 2 of bylaw E-83-01 relating to the Rules of
Conduct of the Ermineskin Tribal Council in Appendix “A” to these Reasons.
[39] Section 28 of
the Ermineskin Tribal Election Custom Bylaw (Bylaw E-86-01) concerns the
Election Appeals Board and enables that Board to examine any election complaint
with paragraph G reading as follows:
“(G) In the event any
appeal indicated there were unacceptable acts being conducted by candidates it
shall be within the power of the Elections Appeal Board to eliminate a
candidate from the re-election and to disqualify any such person from future
election as Chief or Tribal Council for a period of up to ten (10) years.” [Emphasis
mine]
[40] I now summarize
the main actions taken by the appointed members of the EEC which I note, under
the August 8, 2005 amendment passed by the Tribal Council is a quorum of the
Elders Council. Interspersed in the summary, mention is made of certain
actions taken by the Elders as a whole and certain actions by the Tribal
Council. All underlining is my emphasis. I should note that in the respondents’
record many of the documents were partly or substantially illegible which did
not facilitate the Court’s comprehension.
1. On August 23, 2005, the
appointed members sent Chief Minde a Notice of investigation/suspension stating
that “Upon reviewing the information regarding the process in which the $149,000
transaction occurred … the nine appointed Ermineskin Elders Council do hereby suspend
[Chief Minde and Bob Small] suspending all authorities and powers and or privileges
effective immediately such suspension shall be without pay until such time as
the investigation has been completed and “pursuant to section B, Elders
Council paragraph II duties [of the Code of Conduct] directed the Tribal
Council to proceed with the direction immediately to enforce this suspension
effective immediately.”[Emphasis mine];
2. On August
24, 2005, the appointed members issued Chief Minde with a first mandatory
notice to appear before them regarding the heavy equipment purchase which was
said to have been made by him without authority. The notice stipulated that
disciplinary action shall ensue if Chief Minde failed “to attend this hearing”;
3. On
September 1, 2005, the appointed members issued Chief Minde a second
mandatory notice to appear;
4. On
September 1, 2005, the appointed members issued a notice of enforcement of suspension
addressed to the Tribal Council/Administrator. The action requested was the
convening of a quorum of Tribal Council for the purpose of enforcing
the suspension of Chief Minde by approved motion;
5. On
September 8, 2005, the Chairman of the Elders Council, George P. Ermineskin,
wrote to Chief Minde concerning the investigation;
6. On
September 19, 2005 the Chairman of the Elders Council wrote to the Tribal
Council/Administrator stating that the EEC are seriously requesting that
the Ermineskin Council /Administrator enforce the suspension of Chief Minde;
7. On
September 22, 2005, the Elders apparently called a general meeting of the
members of the ECN attended by 103 out of 3,500 members. The following
resolution was passed (applicant’s Reply Record, page 103):
“Be it resolved that we, the
Ermineskin Tribal Membership, do hereby support, give full authority and
direction to the Elders Council of the Ermineskin Tribe to enforce the
suspension of Chief George L. Minde for a period of not more than fourteen (14)
days of which, if he does not appear before the Elders Council hearing that he
shall automatically forfeit his position as Chief of the Ermineskin Tribe.
Further, that he be suspended from any elected position, candidacy or financial
position and/or executive position within the Ermineskin Tribe System for a
period of ten years.”
8. On
September 22, 2005 the Chairman of the EEC wrote to Chief Minde concerning
his suspension and mentioned the membership’s motion that day. The letter
provided Chief Minde a notice of hearing and advised him that if he did not
appear before/by October 31, 2005, before the investigating members he would
that day forfeit his position as Chiefs;
9. The respondents’
record at pages 28 and 29 reproduce letters from the Chairman of the EEC, George
P. Ermineskin, dated October 5 and 12, 2005 concerning the convening of a
meeting of the Ermineskin Tribal Council and to “enforce/enact the Elder’s
Council ruling regarding Chief Minde and Bob Small [due to the violation which
they knowingly …];
10.
On October 14, 2005 (respondents’ record,
page 58) appears a copy of a Tribal Council Resolution dated October 14, 2005.
This Resolution is not on standard Chief and Council motion paper and absent were
Chief Minde and Bob Small. That resolution reads:
“Be it resolved at a duly convened Tribal
Council meeting that we, the Ermineskin Tribal Council do hereby support, give
full authority and direction of the appointed Elders Council of the Ermineskin Tribe
to enforce the suspension of Chief George L. Minde for a period of not more
than fourteen (14) days without pay, or which if he does not appear before the
Elders Council hearing that he shall automatically forfeit his position as
Chief of the Ermineskin Tribe effective immediately.”; [Emphasis mine]
11. On October 17, 2005, the
Elders Council Chairman, George P. Ermineskin wrote to Chief Minde providing
him with official notice that he was still under suspension and was required to
appear before the appointed members no later than October 31, 2005;
12. On or about October 21,
2005 the Tribal Council/Administrator received the legal opinion
of outside legal council concerning the requirements of procedural fairness on
Chief Minde’s suspension. It stated that procedural fairness applied to both
the circumstances of suspension and removal of the Chief from elected office and
asked for further information which, if provided, is not in the record.
13. On October 27,
2005, the appointed members issued to George Minde a final notice of
hearing/enforcement of suspension;
14. On October 31, 2005 at
4 p.m., the appointed members decided to enforce the “automatic forfeiture” of
the Chieftainship of George Minde for failure to attend the hearing. In that
decision, the members stated it was requesting that the Tribal Council enforce
the decision by way of Tribal Council Motion;
15. That same day, namely
October 31, 2005, at 4:30 p.m., the appointed members issued to Chief Minde
a notice of Self-Termination. Chief Minde was advised that he had an
opportunity to appeal the decision;
16. On October 31, 2005 (respondents’
record, page 59) appears the following Tribal Council Resolution:
Be it resolved at a duly convened Council
meeting, that we the Ermineskin Council recognize and enforce the Self-Termination
of Chief George L. Minde as stated in the October 27th formal Notice
to Appear letter and;
Further that, Mr. Minde has ten (10)
working days from the said date of the hand-delivered notice, to appeal to the
Ermineskin Council as stated in section 15-rules of Code of Conduct.
17. On November 14, 2005 apparently
another notice of self-termination was issued by the appointed Elders Council
members to George Minde. The fourth paragraph of that letter reads:
“Therefore, we the
appointed Elders Council are requesting that the Ermineskin tribal Council
enforce this decision also by Band Council motion within the true context of
their authority vested by the Ermineskin Constitution, policies and/or bylaws,
customs and traditions of the Ermineskin First Nation.”
18. On
December 4, 2005 the impugned BCR was passed in the applicant’s absence.
Analysis
(a) Standard
of Review
[41] Mr. Minde
argues the BCR of December 4, 2005 should be set aside principally because it
was passed in breach of procedural fairness: he had no notice of the special
meeting, nor its purpose, nor was he present. The standard of review is
correctness.
[42] Justice
Rothstein, then a member of the Federal Court of Appeal, in Canada (Attorney
General) v. Featherston [2005] FCA 111 ruled that procedural
fairness questions are not subject to a pragmatic and functional analysis
because the Courts are to provide the legal answer to such questions relying
upon Justice Binnie’s Supreme Court of Canada decision in CUPE v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539.
[43] The question
whether the Tribal Council was exercising statutory powers when it passed the
BCR on December 4, 2005 is a question of law which, on a pragmatic and
functional analysis, must be decided a standard of correctness, there being no privative
clause, the Court having overall greater expertise with respect to the issue, the
nature of the question being a legal one and the purpose of the legislation not
favouring deference. The same standard applies with respect to the authority of
the appointed members of the EEC to make a binding decision with respect to the
Chief’s term of office.
(b) The BCR and Procedural Fairness
[44] Although it is
well-recognized the content of the rules of procedural fairness vary depending
on the circumstances, in my view, there can be no question the applicant was
entitled to procedural fairness in respect of the BCR of December 4, 2005 which
declared that, in accordance to the Tribal Council Code of Conduct within the
Ermineskin Tribal Constitution, Chief Minde had vacated his position as Chief.
His right to remain in office was directly affected. For this proposition, I
need only cite the well-known decisions of the Supreme Court of Canada in Nicholson
v. Haldeman-Norfolk (Regional Municipality) Commissioners of Police,
[1979] 1 S.C.R., Cardinal v. Kent Institution, [1985] 2 S.C.R. 649
and Lakeside Colony of Hutterian Bretherin v. Hofer, [1992] 3
S.C.R. 165.
[45] There can also be
no doubt the BCR was arrived at in breach of the procedural fairness which had
to be accorded to Mr. Minde. The most basic requirements of procedural justice
are notice and an opportunity to make representations which were denied him.
[46] Furthermore, I
rely on the decision of Justice Rothstein, then a member of the Federal Court,
Trial Division, in Sparvier v. Cowessess Indian Band No. 73 et al.,
[1993] 3 F.C. 143 for the proposition that the principles of procedural
fairness are to be applied in situations where Band custom dictates the
procedures to be followed by a decision-maker in matters of the removal of a
Chief or Band Councillors from office (see, paragraphs 55 to 57 of his reasons
for judgement). (see also, Duncan v. Behdzi Ahda First Nation, 2003 FC 1385 and Sucker Creek
Indian Band v. Calliou [1999] F.C.J. 1135].
[47] I should add
the Tribal Council was aware of the requirement of procedural fairness having
reviewed a legal opinion to that effect on the related point of his suspension.
(c)
Who was the decision-maker?
[48] For the several
reasons that follow, I am of the opinion that the effective decision-maker, in
this case, was the Tribal Council and not the appointed members of the EEC (the
quorum
of Council).
[49] In coming to my
conclusion, I have read the ECN Tribal System (Constitution and Bylaws) harmoniously
as a whole and in context in order to ensure that all of the provisions of the Tribal
System are given meaning.
[50] Furthermore, I
did not read the provisions of the ECN’s Tribal System in a literal way but
generously and contextually in order to discover the customary laws of this
First Nation which is at the foundation of the Tribal System.
[51] In addition,
for the purposes of the conclusion which I reach on this point, I assume,
without deciding, that a properly constituted EEC under the Custom Law
providing for the conduct of the Tribal Council would be a federal board,
commission or other tribunal be amenable to judicial review under section 18 of
the Federal Courts Act. Again, for the purposes of my conclusion, I took
as the only valid and subsisting Custom Law providing for the conduct of the
Ermineskin Tribal Council to be the one appended as Exhibit “C” to the
affidavit of J. Wilton Littlechild, Q.C., sworn on April 22, 2006. This
version contains amendments enacted in 1995 and 1996 which eliminate the
confusion in nomenclature between the Elders Council and the Elders Senate
found in previous versions and specifically, in the version appended to the applicant’s
affidavit.
[52] I do not view the
appointed Elders Council of nine members (the quorum of Council) to be the
decision-maker in this case for the following reasons.
[53] First, there is
no evidence before me the bylaw amendment to Custom Law E-83-01, as amended,
enacted by Tribal Council on the 8th of August 2005 was ever
ratified by a majority of the general membership of the ECN as required by
paragraph K of the ECN’s Constitution (see respondents’ record, page 122).
[54] The evidence is
to the contrary. J. Wilton Littlechild, in his affidavit, asserts the only valid
and existing version of Bylaw E-83-01 dictates an Elders Council appointed from
a list of candidates as submitted by the Elders consisting of 5 Elders with 3
Elders being a quorum with a mandate at least in part, to deal with appeals
under section 15 of the Bylaw.
[55] Moreover, the
evidence is clear that the nine appointed members to the Elders Council were
appointed by 34 Elders at the 8th of August gathering after the
Tribal Council made the purported bylaw amendment (see cross-examination of
George Ermineskin, applicant’s reply record, pages 15 and 16).
[56] On this basis,
the appointed nine members, being a quorum of the Elders Council, were not
properly constituted and, consequently, any actions they took subsequent to
their purported establishment was invalid. Paradoxically, if this body had
been judicially reviewed by this Court, that decision would have been quashed.
[57] Counsel for the
respondents argued I should not read the Bylaw provisions dealing with the constitution
of the EEC as mandatory but directory invoking Justice Rothstein’s decision in Sparvier,
supra, in which he relied upon the Privy Council decision in Montréal
Steel Railway Co. v. Normandin [1917] A.C. 170.
[58] I do not think
that case has any application in the situation before me. The Bylaw provision
dealing with the composition, quorum and mandate of the EEC are not procedural
and mere formalities but evidence an intent to establish a workable appeal
tribunal in respect to the enforcement of the Rules of Conduct governing the
Chief and Council. Their observance are integral to the object and purpose of those
Rules and insistence on their application would not be contrary to their object.
[59] Second, the
evidentiary record clearly shows the appointed members, being a quorum of the
re-constituted EEC, if they had been validly constituted, did not consider they
had the authority to issue a binding decision in respect of Mr. Minde. They
considered that whatever action they took, be it suspension from office,
termination from office, or self-termination, such action had to be sanctioned
and ratified by the Tribal Council to be legally effective.
[60] This
consideration is, in my view, very important because of the nature of the Custom
Law in question. Who would be in a better position than the Elders of this First
Nation to give content to any power of discipline which might customarily and
traditionally have been accorded to a particular body?
[61] Yet, none of
the respondents’ deponents provided the Court with any significant evidence of
the ECN’s customary disciplinary practices or traditions in this area. Only two
instances are mentioned in the evidentiary record: The first instance is Bob
Small’s voluntary appearance before the appointed members and his acceptance of
the decision which was made to bar him from running for office for ten years.
In other words, he was not removed from the office of Tribal Councillor. He
did not run in the August, 2005 elections. The other instance is found at respondents’
record, page 86 where Earl Ermineskin resigned as a Councillor after being investigated
by the Elders Senate in June of 1997 for not being present at regular meetings
of the Tribal Council.
[62] In sum, I
consider the belief of the appointed members as to the scope of their authority
in disciplinary matters related to the tenure of Chief and Council of the ECN and
the absence of meaningful evidence to the contrary as quite telling.
[63] Third, in my
view, the respondents are estopped from advancing before this Court the
proposition the Tribal Council was not the decision-maker removing the
applicant from office. In front of Justice Belzil they advanced the contrary,
that is, the Tribal Council was the decision-maker.
[64] Finally, the
Tribal Council, on December 4, 2005, did not simply rubber-stamp, so to speak,
the actions of the Elders Council in its investigation of the allegations
against Chief Minde. Tribal Council’s decision built upon the recommendation
of the EEC to implement section 15 of the Council Code of Conduct. Section 15,
which is triggered by a decision of Council, deals with a possible appeal by a
Councillor to the Ermineskin Council of Elders established pursuant to clause B
of the Rules of Conduct in respect of “any suspension of reprimand resulting
from violations of the above Rules of Conduct”. The Tribal Council on December
4, 2005 went further and stated that it “now exercise its authority in reference
to section 11, where George L. Minde has vacated his position as Chief, in
accordance to violation of sections 4, 5 and 9 of the Council Code of Conduct within
the Ermineskin Tribal Constitution”. As I have concluded, the Tribal Council reached
this decision in breach of the applicant’s rights of procedural fairness.
[65] The reasons for
not considering the appointed members as the decision-makers in this case are
sufficient to justify the conclusion that the Tribal Council did indeed make
the decision that the applicant had vacated his position as Chief.
[66] But I do with a
caveat because both counsel before me recognized that the documents evidencing
the ECN’s Constitution and Bylaws needed updating because they had gaps and
imperfections. Indeed, that was the view expressed by Mr. Littlechild when First
Reading was given to a proposed updating of the Custom Law providing for the
conduct of the Ermineskin Council. At respondents’ record, page 84, Mr.
Littlechild stated “this bylaw went back to 1983 and needed to be updated in a
manner that makes sense and was practical.”
[67] Absent evidence
explaining the practices and traditions behind the codified provisions of the
applicable Custom Law of the ECN in this matter, it seems to me as a matter of
context and harmony that matters of tenure to the elected offices of Chief and
Council were designed to be handled at the first level by the Tribal Council
itself with an appeal to a properly constituted Elders Council whose decision
on an appeal would be final.
[68] In terms of
suspension from office of the Chief or any Councillor, the indicator is
strong. In the case of suspension from elected office, Council is the
decision-maker after a hearing as specifically provided for in section 10 of
the Rules of Conduct for violation of sections 7, 8 and 9 of the Rules with an
appeal to the Ermineskin Council of Elders as provided for in section 15. The
one contra-indictor is that section 15 mentions only a Councillor as having the
right to appeal a suspension.
[69] The Rules of
Conduct also speak to the Chief and any Councillor being “considered to have
abandoned their duties thereby vacating their office as contemplated in
sections 8 and 11 of the Rules of Conduct but it is not specified there is a
right to hearing to Tribal Council but an inference to this effect may be drawn
from section 32 of Bylaw E-86-01, the Declaration of Custom with respect the
establishment and election of Band Council. That section states that upon
specified conditions, “Pursuant to the Ermineskin Tribal System, Rules of
Conduct, sections 8, 9, and 10, an elected Chief or Council Member shall be
removed from office.” To make sense of this provision, it would appear that
Bylaw E-86-01 has incorporated by reference the hearing and decision-making
authority of Tribal Council to remove Chief and Council subject to appeal to
the Elders Council.
[70] In addition,
any residual right of removal from the office of Chief or any Councillor would
lie with the Tribal Council which is stated, under the ECN Constitution, to be
the government of the ECN.
[71] I cannot accept
any argument that the applicant’s removal is justified based on a breach of the
memorandum of argument. First, the intent of the agreement which was signed
was for ceremonial purposes and not for enforcement ones, (see
cross-examination of George Ermineskin, applicant’s reply record, page 24 to
26). Second, in its terms, section 4 of the agreement does not add but
dovetails with the Rules of Conduct.
Remedy
[72] Subsection
18.1(3) of the Federal Courts Act deals with the powers of the Federal
Court. It reads:
|
Powers of Federal Court
(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.
|
Pouvoirs de la Cour fédérale
(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.
|
[73] As stated by
Justice Rothstein in Sparvier, supra, a denial of procedural fairness in
the proceedings of a tribunal would normally lead a Court to quash the decision
and depending upon the circumstances the Court could refer the matter back for
re-determination in accordance with such directions as the Court considers
appropriate.
[74] I find myself
in the same conundrum as Justice Rothstein found himself in Sparvier, supra.
Quashing the decision without anything further would be to reinstate the
results of August 31, 2005 election, i.e., restore the applicant as Chief
without anyone having come to grips with the issue whether in fact there exists
valid grounds for his removal. The applicant would be required to assume and
carry on his duties under a cloud. I do not consider this result satisfactory
as it is not in the best interests of the ECN. This divided First Nation will
not heal unless the issue surrounding the $149,000.00 transaction is explained
and is resolved and the same can be said of the two other financial
transactions said to have been improperly made. Mr. Minde may well have valid
explanations to provide and he should be provided an opportunity to do so which
is what this decision will enable him to do.
[75] There are
evident problems in referring these issues back to Tribal Council for
re-determination. The doctrine of necessity may apply but it was not argued
before me.
[76] I would very
much prefer that the First Nation find a solution to this problem rather than
having this Court impose one which may not advance the best interests of the
ECN.
[77] Justice
Rothstein in Sparvier wrote:
“For the foregoing reasons, I am of the
opinion that counsel should have the opportunity to more fully address the
question of remedy in this case, including if possible, agreement as to how the
matter may be resolved, before an order is issued by the Court. The Registrar
of the Court will therefore communicate with counsel shortly after these
reasons are issued to arrange for a conference call with me so that I may
ascertain how counsel wish to proceed that is whether by way of oral hearing,
by written argument, or in some other manner, with respect to the issue of
remedy.
So there will be no doubt and to avoid
confusion or inconvenience to the Band, I expressly state that at this time,
the administration of the Band is not affected by the issuance of these
reasons. An order shall not be issued until counsel have the opportunity to
make further submissions on the issue of remedy.”
[78] I make mine the words of Justice Rothstein
expressed immediately above and add that I will be prepared to issue an
appropriate order after hearing from Counsel to the parties.
[79] The applicant is entitled to his costs in this
judicial review proceeding as he has been successful. Solicitor-client costs
are only awarded if the opposite party has displayed reprehensible, scandalous
or outrageous conduct which is not the case here. However, the Tribal
Council’s handling of the Chief’s removal was not in accordance to law which
was the thrust of its outside legal opinion.
[80] I have no basis to award the applicant fixed costs
at $25,000.00 as no pro forma bill of costs was provided. I direct the
taxation of costs at the upper scale of Column IV.
ORDER
THIS COURT POSTPONES the issuance of an order
providing an appropriate remedy until counsel for the parties have had an
opportunity to input this issue.
“François
Lemieux”
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