Francis v. Mohawk Council of Kanesatake, 2003 FCT 115

Date: 20030131

Docket: T-1993-02

Neutral citation: 2003 FCT 115

OTTAWA, ONTARIO, THIS 31^st DAY OF JANUARY 2003

PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU                                   

BETWEEN:

                                                           DARLENE FRANCIS,

                                    JAMES GABRIEL, in his capacity as Grand Chief,

                                       CLARENCE SIMON, in his capacity as Chief,

                                         and MARY CHÉNÉ, in her capacity as Chief

                                                                                                                                           Applicants

                                                                         - and -

                                     The MOHAWK COUNCIL OF KANESATAKE,

                                      STEVEN BONSPILLE, in his capacity as Chief,

                                        PEARL BONSPILLE in her capacity as Chief,

                                          JOHN HARDING, in his capacity as Chief,

                                      and the ATTORNEY GENERAL OF CANADA

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

[1]                The Mohawk Community of Kanesatake (the "Community" or the "Band") is a registered band under the Indian Act, R.S.C. 1985, c. I-5 (the "Act"). The Band is governed by the Mohawk Council of Kanesatake (the "Council") whose membership is composed of six chiefs and one grand chief. The Council, one of the designated respondents, is chosen according to the custom of the Band. The members' mandates are for a period of three years. The last general elections were held in 2001.

[2]                On October 3, 2002, Chief Crawford Gabriel passed away.

[3]                On November 26, 2002, the Council adopted a resolution (the "impugned decision") calling a by-election to be held on January 4, 2003, "in accordance with the Electoral Code of Kanesatake" (the "Code") (Exhibit "C" to the supplementary of James Gabriel, dated December 3, 2002 and Exhibit "D" to the affidavit of James Gabriel, dated December 1^st , 2002). The resolution was adopted unanimously but now there is no consensus on its purported effect. Stakes are high: the participation, or on the contrary, the exclusion of non-resident Band members from the electoral process may well influence the outcome of the next by-election. The applicants, three of whom are Council members and the fourth who is a non-resident Band member, have brought the present judicial review application to set aside the impugned decision, to declare what the custom of the Band is and to obtain other injunctive relief.

I- BACKGROUND

[4]                The fact that the by-election needs to be conducted and is to be held in accordance with the custom of the Band, as opposed to the provisions of the Act where an order has been made pursuant to subsection 74(1) of the Act, is not at issue. Although the Attorney General of Canada, representing the Minister of Indian and Northern Affairs Canada ("INAC"), has been named as a respondent, he has no involvement in the conduct of elections held in accordance with "the Custom of the Band". Accordingly, his status is more that of a "mis-en-cause" and he will not be referred to as a "respondent" in these reasons for order and order; the "respondents" are therefore the Council and the three respondent Chiefs.

[5]                Profound internal division among the members of the Council, who are associated with two competing factions, has seriously impaired the functioning of the Council and has resulted in abundant and persistent litigation. The three applicant Chiefs were re-elected in 2001 while the three respondent Chiefs were newly elected in 2001. Chief Crawford Gabriel was also a newly elected Chief. Since the 2001 elections, the following applications have been brought before the Court:

(a)        Larry Ross v. Mohawk Council of Kanesatake (File No. T-1915-01), to set aside the termination of the acting Chief of Police. In this case, the application was heard by the Court, but no final order has been released as of the date of these reasons for order and order.

(b)        James Gabriel v. Mohawk Council of Kanesatake (File No. T-33-02), to set aside the removal of the applicant James Gabriel as Grand Chief, one of the re-elected chiefs. In that case, the newly elected chiefs put in practice their views that            non- residents should not be allowed to vote at a Community meeting called on December 6, 2001, for the removal of Grand Chief James Gabriel. The Court granted an interlocutory injunction and ordered his reinstatement pending the final disposition of this application (Gabriel v. Mohawk Council of Kanesatake, [2002] F.C.J. No. 635 (F.C.T.D.) ("Gabriel")). In her decision, Tremblay-Lamer J. noted that the latter who first became Grand Chief in 1996, and was subsequently re-elected in 1998 and 2001, "strongly supported police initiatives to control criminal activities in the territories, particularly involving the illegal drug trade". However, she went on to state that: "[t]he 2001 elections saw four new members elected to Council. The new members did not share the applicant's views. Their focus was on public accountability, rather than police and security matters" (paragraphs 5 and 6).

(c)        Louise Bonspille v. Mohawk Council of Kanesatake (File No. T-824-02), to set aside the termination of two police commissioners. The Court granted an interim injunction and ordered the reinstatement of Louise Bonspille and Brenda Etienne as members of the Kanesatake Mohawk Police Commission until such time as an interlocutory order is rendered in this matter (Bonspille v. Mohawk Council of Kanesatake, [2002] F.C.J. No. 919 (F.C.T.D.)).

(d)        Louise Bonspille v. Mohawk Council of Kanesatake (File No. T-1150-02), to set aside an attempt by the Council to appoint new commissioners which has been allegedly made contrary to the Tripartite Agreement on Policing. No final order has been released in this matter.

(e)        Marie Chéné v. Mohawk Council of Kanesatake (File No. T-1884-02), to set aside the removal of Chief Chéné from the Council, also a re-elected chief. The Court granted an interim injunction and ordered her reinstatement until such time as the motion for interlocutory injunction is heard by the Court. An order was rendered on November 19, 2002.

[6]                The state of urgency which prompted the expeditious hearing of the present application on December 16, 2002, flows from the fact that Chief Crawford Gabriel's death has created a deadlock situation. Inasmuch as the aforementioned ordinarily aligned himself with the three respondent Chiefs, his support thus permitted them to have a majority on the Council. On December 17, 2002, further to the request made at the hearing by the applicants, and being satisfied that the three conditions for the issuance of an interlocutory injunction were met, I ordered a stay of the impugned decision pending the final disposition of this judicial review application.

[7]         At this point, I observe that the evidence on record shows that since November 26, 2002, the Executive Director of the Council, Barry Bonspille, purportedly acting in the name of the Council and under the authority of the impugned decision, has taken a number of steps to assure that the by-election be conducted "in strict compliance" with the Code provisions which generally provide for the exclusion of non-resident Band members (Article 2) and for the election of "Election Supervisors" and members of a "Council of Elders" (Articles 7.1 and 8 paragraph 2). An attempt was even made by the Executive Director to postpone the election date from January 4, 2003, to January 11, 2003, in order to comply with the Code's current prescription that there be at least 21 days between the nomination meeting and the election date (Article 6.1).

[8]                Furthermore, on December 4, 2002, a Community meeting was held to elect Election Supervisors and a Council of Elders. Non-resident Band members were not notified of this meeting. It is likely, from the evidence on record, in view of the position taken by the respondent Chiefs and the Executive Director, acting in the name of the Council, that non-residents would not be permitted to vote. Their position is that they must come within one of the strict exceptions mentioned in the Code. Assuming that some non-residents may qualify, they would still have to take specific steps to have their names put on the voters' list by the Election Supervisors. In practice, this means that they would still have to convince an Election Supervisor of the existence of their voting right.

[9]                As we will see later, the evidence shows that Election Supervisors and members of the Council of Elders are likely to be biased. That being said, although provision is made in the Code or in the accompanying Regulations for the election of a Council of Elders and Election Supervisors, those requirements were never followed in past elections; the exclusion of non-residents, although mentioned in the Code, was never enforced in past elections. At all times since 1991, non-residents aged 18 years and over were allowed to vote and the elections were carried out by a third independent agency.

[10]            In the case at bar, the applicants ask the Court to set aside the impugned decision calling for a by-election to be held on January 4, 2003, and a nomination meeting to be held on December 19, 2002. The applicants further ask for a declaration that the Band electoral custom requires all elections and by-elections for positions on the Council be open to all registered Band members to vote and must be conducted by an independent agency retained by the Council to oversee and direct the vote, all in accordance with procedures followed in past elections conducted "in accordance with the Code". The applicants also ask for a declaration that the Community meeting held on December 4, 2002, to elect a Council of Elders and Election Supervisors was held without authority by the Council and that the persons elected at that meeting to fill the positions of Election Supervisors and members of the Council of Elders were therefore not lawfully elected to those positions. Finally, the applicants ask for an order for a mandatory injunction or mandamus requiring that a by-election be held within 60 days following the final order of the Court.

II- JURISDICTIONAL ISSUE

[11]            It is not disputed that the Council adopted on November 26, 2002, a resolution calling a special election to be held on January 4, 2003, "in accordance with the Electoral Code of Kanesatake", and a nomination meeting to be held on December 19, 2002. However, the respondents deny the Court's jurisdiction to entertain and dispose of the present judicial review application.

[12]            I consider that the Court has jurisdiction pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, to entertain the present application, and as the case may be, to set aside the impugned decision, to grant declaratory or injunctive relief with respect to the custom of the Band and its purported application by the Council, its Executive Director Barry Bonspille or any election officer or other person, purportedly acting in the name of the Council or under the authority of the impugned decision or of the Code.

[13]            First, I note that subject to section 28 of the Federal Court Act, section 18 confers on the Trial Division of the Federal Court exclusive original jurisdiction to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any "federal board, commission or other tribunal" as defined in section 2 of the Federal Court Act. In this regard, I note that the respondents acknowledged decisions of this Court and other courts which have already held that a band council is a federal board (Rider v. Ear, [1979] 4 C.N.L.R. 119 (Alta. S.C.T.D.); Gabriel v. Canatonguin, [1980] 2 F.C. 792 (F.C.A.) ("Canatonguin"); and Trotchie v. The Queen et al., [1981] 2 C.N.L.R. 147 (F.C.T.D.)). In Canatonguin, supra, the Federal Court of Appeal upheld a decision of then Associate Chief Justice Thurlow of this Court ([1978] 1 F.C. 124) and decided that a band council came within the jurisdiction of the Federal Court where the election of the band council was made pursuant to the custom of the band and not the Act. In view of the fact that the Act applies to both a band council elected by custom or one elected pursuant to section 74 of the Act (see the definition of "council of the band" in subsection 2(1) of the Act), the judgment rendered by the Court of Appeal in Canatonguin, supra, appears to be determinative of the jurisdictional issue.

[14]            Second, I have also considered the respondents' assertion thatCanatonguin, supra, may have been wrongly decided and that "[o]ther cases which purport to follow or which cite Canatonguin, do so with the proviso that a Band Council is a "federal board" when the council exercises Indian Act powers" (respondents' memorandum, paragraph 60). In this regard, they submit that a band council's decision is only reviewable where it flows from the exercise of a power specifically conferred upon it by a federal act of Parliament. They rely on Bigstone v. Big Eagle, [1993] 1 C.N.L.R. 25 at 32-33 (F.C.T.D.) ("Bigstone"); Cree Regional Authority v. Canada (Federal Administrator) (C.A.), [1991] 3 F.C. 533 at 556; Samson Cree Nation v. Canada (Minister of Indian and Northern Affairs), [1999] A.J. No. 225 at paragraph 19 (Alta. Q.B.) and some other cases. They also state that their approach is consistent with the dissenting judgment of Laskin J. (as he then was) in [1974] S.C.R. 1349">Attorney General of Canada v. Lavell, [1974] S.C.R. 1349, at 1379, in which three other judges concurred. In that case, Laskin J. stated that "[a] Band Council has some resemblance to the board of directors of a corporation, and if the words of s. 2(g) [of the Federal Court Act] are taken literally, they are broad enough to embrace boards of directors in respect of powers given to them under such federal statutes as the Bank Act, R.S.C. 1970, c. B-1, as amended, the Canada Corporations Act, R.S.C. 1970, c. C-32, as amended , and the Canadian and British Insurance Companies Act, R.S.C. 1970, c. I-15, as amended".

[15]            I doubt that, for all purposes, a band council could still be viewed or compared today to the board of directors of a corporation. Besides having jurisdiction over the registration of band members and the conduct of band affairs, band councils are invested with broad law-making powers through section 81 and other sections of the Act. In the case, for example, of traffic regulation, not only the band members but all people who are on the reserve, whether they are band members, residents or outsiders, may be affected by by-laws duly adopted by band councils. Accordingly, it is preferable to compare band councils to municipal councils (Canadian Pacific Ltd. v. Matsqui Indian Band (C.A.), [2000] 1 F.C. 325). That being said, I recognize that the legislative powers of the Mohawk Council of Kanesatake under the Act may be somewhat more limited since the Kanesatake territory is not a "reserve" within the meaning of the Act. Moreover, the Kanesatake Interim Land Base Governance Act, S.C. 2001, c. 8, rectifies, to a large extent, this latter deficiency. Section 7 of the latter Act provides that the Band has jurisdiction "to make laws in relation to the use and development of the lands in the Kanesatake Mohawk interim land base". Those powers are exercised through the Council. From the list of powers enumerated in said Act (including, for example, traffic regulation), I have no hesitation in concluding that they are analogous to the ones generally attributed to municipal councils and that the Band's "law making powers" come within the ambit of section 32 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (the "Charter") (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573).

[16]            I also respectfully disagree with the purported effects the respondents attribute to Bigstone, supra, and the other cases cited in their memorandum. The respondents assert that in Bigstone, supra, the band council was exercising a power conferred under the Act in respect of the management of the native lands and funds rather than dealing with the election process and therefore, it should be distinguished from the case at bar. Nevertheless, it seems clear that this case does recognize the jurisdiction of this Court under section 18 of the Federal Court Act when dealing with "any federal board, commission or other tribunal..." such as "council of the band" and it "makes no difference that they purport to have been elected by custom rather than under the Indian Act" in accordance with the decision in Canatonquin, supra (Bigstone, supra, at 33).

[17]            Moreover, the most recent case law does not support the respondents' general proposition. I note that the present situation is somewhat similar to the one examined by the Court in Francis v. Mohawks of Akwesasne Band of Indians (1993), 62 F.T.R. 314, where Noël J. (as he then was) granted, under section 18.2 of the Federal Court Act, an interim order prohibiting the Mohawk Council of Akwesasne from holding a by-election. As in this case, the Court was asked to determine the legality of the council's decision to hold such an election. I also note that in Frank v. Bottle, [1993] F.C.J. No. 670 (F.C.T.D.), there was an issue about the Court's jurisdiction. The issue was the removal of a chief. It was argued that actions under the Blood Tribe Custom Election By-law did not constitute decisions by a "federal board, commission or other tribunal". The by-law's validity was challenged. The Court followed Pratte J.'s comments of the Court of Appeal in Canatonquin, supra, at 793 and noted that the jurisdictional argument was rejected by McNair J. (as he then was) in Joe v. John, [1991] 3 C.N.L.R. 63 at 70 (F.C.T.D.). Moreover, MacKay J. who rendered the Court's decision in Frank, supra, added that it is the Act, and more particularly subsection 2(1) of the Act, "which provides for recognition of the customary law under which the plaintiff, as Chief, and the defendants, as members of the Council of the Blood Tribe, each claim their offices" (paragraph 17), and concluded on this point by stating that "the customary law of the Tribe has recognition as law by reason of federal statutory law and it is the Council so elected which has status in accord with the Indian Act" (paragraph 19). I fully agree with these statements and add that they are authoritative justification for the conclusion that any refusal to recognize a Band member's right to vote at an election conducted under the custom of the Band is a reviewable decision under sections 18 and 18.1 of the Federal Court Act (Scrimbitt v. Sakimay Indian Band Council (T.D.), [2000] 1 F.C. 513, at paragraph 22).

[18]            Finally, I am unable to accept the respondents' assertion that this is a purely internal matter that is to be left to the Community. In Bone v. Sioux Valley Indian Band No. 290 Council, [1996] 3 C.N.L.R. 54 (at paragraphs 31 and 32) (F.C.T.D.) ("Bone"), the Court observed that custom elections are held under the inherent power of the "band", not from a delegation under the Act. However, this last factor did not prevent the Court from being satisfied that it had jurisdiction to grant declaratory relief pursuant to an application for judicial review by virtue of paragraph 18(1)(a) and subsection 18(3) of the Federal Court Act (Bone, supra, at paragraph 22). The Court also noted that the issue was whether the Sioux Valley Dakota Oyate Custom Election Code and Regulations reflected the band's custom by enunciating practices that were generally acceptable to members of the band and upon which there was broad consensus (Bone, supra, at paragraphs 27 and 32). In that case, the Court declared that the Code was in force. I therefore conclude that the Court has jurisdiction to entertain this application and, as the case may be, to make any declaration with respect to the custom of the Band and its purported application by the Council and its Executive Director, Barry Bonspille or other election officers, purportedly in the name of the Council, or under the presumed authority of the impugned decision, or of the Code.

[19]            Before turning to the merits of the present case, I find it helpful to canvass the general principles of law as they relate to the custom of the Band.

III- GENERAL PRINCIPLES APPLICABLE TO THE CUSTOM OF THE BAND

[20]            The Act recognizes two methods for choosing the grand chief and councillors of a band: the first is a procedure set out in the Act itself; the other is by "custom", and recognizes selection processes developed by First Nations. In the latter case, First Nations determine who may vote, how the voting is carried out, and when elections are held. In the case at bar, what is really at issue is how the upcoming Band custom by-election is to be conducted and who will be entitled to vote.

[21]            The jurisprudence has established that it must be incumbent upon those who are relying upon "custom" to at least establish what it is and the derivation thereof: McArthur v. Saskatchewan (Registrar, Department of Indian Affairs and Northern Development) (1992), 91 D.L.R. (4^th) 666 (Sask. Crt. Q.B.) ("McArthur"). However, while the Act allows for the selection of the "council of the band" by the custom of the Band, it does not set out guidelines as to how that custom is to be identified.

[22]            In Bigstone, supra, the validity of the procedures used to determine the rules that would govern the composition and selection of a band council, not governed by section 74 of the Act, was at issue. Strayer J., (as he then was) held that at 34:

Unless otherwise defined in respect of a particular band, "custom" must I think include practices for the choice of a council which are generally acceptable to members of the band, upon which there is a broad consensus. With a newly re-established band whose circumstances are vastly different (e.g. the majority not being resident on the reserve) from those of the band dissolved some 90 years earlier, it is not surprising that innovative measures would have to be taken to establish a contemporary "custom". The real question as to the validity of the new constitution then seems to be one of political, not legal, legitimacy: is the constitution based on a majority consensus of those who, on the existing evidence, appear to be members of the band? This is a question which a court should not seek to answer in the absence of some discernable legal criteria which it can apply. While there might be some other basis for judicial supervision if there were clear evidence of fraud or other acts on the part of the defendants which could clearly not be authorized by the Indian Act, there is no evidence of any such activities before me.

(my emphasis)

[23]            The constituent elements of custom may therefore be summarized as follows:

1) "practices" for the choices of a council;

2) practices must be "generally acceptable to members of the band"; and

3) practices upon which there is a "broad consensus".

[24]            As I understand it, this jurisprudential definition of custom has two components. The first involves "practices" which may either be "established" through repetitive acts in time, or through a single act such as the "adoption" of an electoral code. This was in fact noted in McLeod Lake Indian Band v. Chingee (1998), 153 F.T.R. 257 (F.C.T.D.) ("McLeod"), where Reed J. (as he then was) described the nature of custom in paragraph 8 as a "practice established or adopted as a result of the individuals to whom it applies having accepted to be governed in accordance therewith". Further, she emphasized in paragraphs 10 and 17 the evolutionary nature of custom depending on changing circumstances:

Also, custom by its nature is not frozen in time It can and does change in response to changed circumstances. A band may choose to depart from oral tradition and set down its custom in written form. It may move from a hereditary to an electoral system. It may choose to adopt as its customary practices, practices and procedures that resemble the election procedures used to elect municipal or provincial governments. I cannot interpret the reference to "custom of the band" in subsection 2(1) as preventing a band from changing the custom according to which it governs itself from time to time in response to changing circumstances.

[...]

The defendants' main argument is that to allow amendment of the custom of the band by majority vote of the band members is to impose a non-customary method of selection. That is, that a determination of how the custom of the band may be changed or determined is itself a determination of the method of selection. That may be the inescapable consequence, but I return to what is fairly established in the jurisprudence, that the custom of the band is the practices for selecting the council of the band that are generally acceptable to members of the band, upon which there is broad consensus As noted above, I cannot conclude that band custom is frozen in time.

[25]            It is recognized that the content of the custom of a band will vary from time to time, according to the will of the members of the band. This principle was highlighted in Six Nations Traditional Hereditary Chiefs v. Canada (Minister of Indian and Northern Affairs) (1991), 43 F.T.R. 132 (F.C.T.D.) ("Six Nations Traditional Hereditary Chiefs"). Rouleau J. stated as follows:

The plaintiffs did not succeed in persuading me that custom would be infringed if a referendum were held. It is true that the Constitution Act, 1982 entrenches the customs of aboriginal peoples, but if the latter decide that they will no longer elect the band council in accordance with custom, they cannot be accused of infringing their own customs. That would be illogical .

[26]            The second component of the definition of custom, therefore, involves a subjective element, which refers to the manifestation of the will of those interested in rules for determining the electoral process of band council membership to be bound by a given rule or practice. However, the remaining question is: whose consent must be obtained for the purposes of establishing custom? More specifically, what threshold must be reached for practices to be "generally acceptable to members of the band", and what is the meaning of a "broad consensus"? Are these two "standards" one and the same, or are they cumulative? The "broad consensus" needed to support a band custom system has been generally discussed in the following cases:

[27]            In Bone, supra, a band that had previously been governed by section 74 of the Act elected to become a custom band. This change was approved after two plebiscites were held in which a majority of the voters approved the change. Heald D.J. (as he then was) found that the code and regulations that were subsequently adopted were "nothing more than an attempt to put down in some kind of recognizable and written form the electoral practices of this particular Band" and that there was no requirement under the Act that a band put in writing its custom with respect to the selection of the band's council. However, it was not entirely clear whether the band membership had also approved the election code that was eventually used to select the chief and council under the new custom regime. In determining whether the subsequent election of 1994, which had been held in accordance with that code, was valid, Heald D.J. asked himself whether the code reflected the custom of the band: in other words, did it enunciate practices that are generally acceptable to members of the band and upon which there is a broad consensus?According to Heald D.J., the answer was to be found in the conduct of the band in relation to the March 14, 1994 election and the events that followed. He noted that the election had been conducted in accordance with the election code that was being challenged, with no objection having been registered until the election was lost. He interpreted the lack of objection at an earlier date as evidence that the election had been conducted in accordance with what the band had adopted as the custom of the band.

[28]            In McArthur, supra, the Saskatchewan Court of Queen's Bench found that the Interim Band Council was accepted by all of the 109, or 113, individuals generally acknowledged, at that time, as being legitimate descendants of members of the previous Pheasant Rump Band. It went on to note that "[t]he appellants participated in the process which resulted in the establishment of the Interim Band Council. The evidence permits of no other conclusion that the establishment of the Interim Band Council resulted not just from "a majority consensus" of those apparently entitled to be members of the new Band but from unanimous consensus".

[29]            In Lac des Mille Lacs First Nation v. Chapman (1998), 149 F.T.R. 227 (F.C.T.D.) (the "First Nation"), discussions were apparently held in 1995 among the members of the First Nation and a new Custom Leadership Selection Code (the "Selection Code") was drafted along with Referendum Regulations and a draft Financial Administration Law. By referendum of the First Nation, the Selection Code was allegedly adopted by the First Nation. Counsel for the applicant submitted that, with only 73 votes validly cast, it was not possible to state that the Selection Code was adopted according to the criteria established in Bigstone, supra. Thus, the issue was whether the Selection Code was generally acceptable and whether it was supported by a broad consensus. Cullen J. (as he then was) concluded as follows at paragraphs 29 and 34:

The unique situation of the members of this First Nation must be considered in such a discussion. According to paragraph 20 of the affidavit of Ron Bachmier there are approximately 300 members of this First Nation who are eligible to vote. However, the location of only approximately 130 of these members is known. The applicant does not contest these figures. The minutes of the 1990 general meeting, at which a Chief and Councillors were elected, indicates that somewhere in the neighbourhood of 40 eligible voters participated. This is evidenced by the minutes of the 1990 General Meeting which show that 45 votes were cast in the election of Chief and 38 (114 / 3) in the voting for the Councillors. The minutes of the 1996 election (Exhibit "E" to the affidavit of Roderick Sawdo) indicate that 45 voters were registered. There has been no other evidence presented on the issue of voter participation. There is a pattern of general non-participation even by known members who are eligible to vote. I find that the participation of 86 voting members which resulted in 73 votes being counted, out of which 64 votes were in favour of the Selection Code and 7 were against with one "no opinion" and one spoiled, constitutes a broad consensus sufficient in these special circumstances to consider the Selection Code to now constitute Band Custom.

[...]

In the result, I find that the respondents Lawrence Chapman, Elizabeth Boucher, Ron Bachmier and James Nayanookee [sic] constitute the proper Chief and Council of the First Nation Lac des Mille Lacs. Furthermore, the Custom Leadership Selection Code is the official band custom and its procedures should be followed in all subsequent selections of Chief and Council until such time as the custom is changed according to a broad consensus of the band members. If the members of this First Nation wish to change their leadership, they will have the opportunity to do so within five years of the last selection process according to the provisions of their own Selection Code.

(my emphasis)

[30]            Finally, one of the clearest articulations of what is the requisite subjective element for the establishment of the custom of a band is found in McLeod, supra, where Reed J. stated as follows in paragraphs 18-19:

The question that remains is whether "broad general consensus" equates to a "majority decision of the Band members attending a general meeting of the Band convened with notice". In my view, it may do so, or it may not, depending upon a number of factors. If for example, the general meeting was held in a location or at a time when it was difficult for a number of members to attend, and there was no provision for proxy voting, it may not meet the broad consensus test. If the notice was not adequate in not providing sufficient detail of what was proposed, or was not given sufficiently in advance of the meeting to allow people a realistic opportunity to attend then it would not be.

There are also situations in which those who do not vote may be signalling a willingness to abide by the majority decision of those who do. I am of the view that approval by a majority of the adult members of the Band is probably a safe indication of a broad consensus (the age of majority being a matter for the band to determine). Whether a majority decision by the Band members attending a general meeting demonstrates a broad consensus depends on the circumstances of that meeting.

(my emphasis)

[31]            An unresolved question is whether "broad consensus" mean the approval of a majority of both resident and non-resident band members, thereby ensuring that the community's voice as a whole has been heard. In Bone, supra, Heald D.J. stated as follows at paragraphs 44-45:

However, subsection 77(1) has no relevance to these proceedings. The votes in question, in the plebiscites of June and July, 1993, were not elections as contemplated by section 77 of the Indian Act: they were not elections for the office of Chief and/or Councillors. The votes in question were plebiscites held to comply with the Department's policy in relation to the revocation of a section 74 ministerial order. The said policy incorporated the definition of elector as found in the Indian Act, which is set out above. This definition does not contain a residency requirement. It does provide for the disqualification of a potential elector in part (c) of the definition. And, as was discussed above, prior to the decision in Batchewana, if the election were for Chief or Councillor, an elector was disqualified if he/she did not reside on the Reserve. However, the plebiscites in question were not such elections. Furthermore, there was no provision in the Act that disqualified electors for any reason, with respect to a plebiscite. Therefore, in my view, it follows that if a Band member had met the first two requirements of the definition, that is he/she was registered on the Band List and was eighteen years of age or older, then he/she was an eligible elector according to this definition, and accordingly should have had the opportunity to vote in the plebiscites held in pursuance of the Department's policy. However, this was not the case. Non-resident Band members were not considered eligible voters and were not permitted the opportunity to vote in the plebiscites. In spite of this apparent deviation from the Department's policy, on the basis of the plebiscite results, the Department did recommend to the Minister that the section 74 order be repealed.

Thus, the Respondents were correct in submitting that non-resident Band members should have been given the opportunity to vote in the plebiscites.

(my emphasis)

[32]            Bone, supra, dealt with the opportunity for non-resident band members to vote in the plebiscites regarding the question of a change to become a custom band. However, I find Heald D.J.'s reasoning to be equally applicable to the case of a vote for a resolution regarding the process of conduct of future elections in a custom band. It is noteworthy that Strayer J.'s definition of custom in Bigstone, supra, does not contain a residency requirement and does not disenfranchise some band members from voting.

[33]            Also of great relevance to the present case is the British Columbia Supreme Court decision in Napoleon v. Garbitt, [1997] B.C.J. No. 1250. In that case, the band had passed the Saulteau Indian Band Government Law (the "Law") in 1988 under which it was recognized by INAC (then the Department of Indian Affairs and Northern Development) as a band which selected its council according to the custom of the band. The Law contained a provision as to its own amendment. In the fall of 1996, a certain number of resolutions were passed concerning the procedures for electing the chief and council. The issue raised before the Court was how the Law, as to amendments, was to be viewed and interpreted. Parrett J. noted that the proper interpretation of that Law, applying the custom of the band, was that for the Law to be amended, appropriate notice had to be given to citizens of the proposed amendments, citizens had to be consulted on the desirability of the proposed amendments, and the majority of citizens had to consent to, or vote for, the amendments. However, he also noted that the strict wording of the amendment provisions of the Law had not usually been followed by the band in practice. Rather than operate with strict technical adherence to the Law, the band had adapted the Law to reflect the band's needs as they emerged. The Court concluded that the custom of the band with respect to "amending" its Law had been to seek consensus within the band by means of informal votes or by means of band meetings. The actions of the so-called "dissidents", the defendants in that case, represented attempts to pursue change by democratic means while the actions of the other side, the plaintiffs, appeared to be an attempt to retain power at the expense of democratic principles.

[34]            Having said that, I do not consider that it can be claimed that all customary rules which may be invoked by individual band members have a content exactly identical to that of the rules contained in an electoral code. On a number of points, the areas governed by the two sources of law may not exactly overlap, and the substantive rules in which they are framed may not be identical in content. Indeed, this will often be the case with more technical rules governing the conduct of elections which may or may not be applied consistently in practice, depending on the attendant circumstances. The relevant question is whether a particular rule in an electoral code also exists as a customary rule, either because the code has merely codified the custom of the band, or caused it to "crystallise", or because it has influenced its subsequent adoption.

[35]            Thus, one will have to determine how an electoral code has been applied in practice in a given situation, for instance vis-à-vis the question of who is entitled to vote and who will administer the conduct of the elections or by-elections. It is quite common that behaviours arising through attitudes, habits, abstentions, shared understandings and tacit acquiescence develop alongside a codified rule and may colour, specify, complement and sometimes even limit the text of a particular rule. Such behaviours may become the new custom of the band which will have an existence of its own and whose content will sometimes not be identical to that of the codified rule pertaining to a particular issue. In such cases, and bearing in mind the evolutionary nature of custom, one will have to ascertain whether there is a broad consensus in the community at a given time as to the content of a particular rule or the way in which it will be implemented.

[36]            For a rule to become custom, the practice pertaining to a particular issue or situation contemplated by that rule must be firmly established, generalized and followed consistently and conscientiously by a majority of the community, thus evidencing a "broad consensus" as to its applicability. This would exclude sporadic behaviours which may tentatively arise to remedy certain exceptional difficulties of implementation at a particular moment in time as well as other practices which are clearly understood within the community as being followed on a trial basis. If present, such a "broad consensus" will evidence the will of the community at a given time not to consider the adopted electoral code as having an exhaustive and exclusive character. Its effect will be to exclude from the equation an insignificant number of band members who persistently objected to the adoption of a particular rule governing band elections as a customary one.

[37]            In my view, in light of all the abovementioned cases, the real question as to whether a particular band resolution, decision or an adopted electoral code reflects the custom of the band can be framed as follows: is the resolution, decision or code based on a majority consensus of all those who, on the existing evidence, appear to be members of the band, regardless of residency?

[38]            With these general principles in mind, I will now consider what is the custom of the Band applicable to the present dispute.

IV - ANALYSIS OF THE CUSTOM OF THE BAND

[39]            Conflicting views have been taken with regards to the character and effects of the Code to which the impugned decision refers. The applicants stress that the Code and accompanying Regulations have never been officially adopted. As we will see, a resolution adopting "in principle" a former version of the Code was adopted at a Community meeting held on May 20, 1992. The Code, as we will also see, has been used generally as a "guideline" for the conduct of elections. This fact has allowed the development of parallel practices which now form part of the custom of the Band. Accordingly, the applicants ask the Court to set aside the impugned decision and to grant other declaratory and injunctive relief inasmuch as a by-election ordered by the Council to be conducted "in strict compliance" with the Code would be contrary to the custom of the Band.

[40]            The respondents allege that the Code was adopted by the Community in a public meeting held on May 20, 1992, at which a "broad consensus" was achieved. In view of its approval, the Code has force of law. Therefore, it can only be changed by the Community in a public meeting. The fact that the Code has not been strictly adhered to cannot amount to an amendment of the Code. The Code can only be amended by a resolution of the Council subsequently ratified by the Community. No such resolution was ever passed. Accordingly, the Council, which is simply carrying out the wishes of the Community, may take any measures to ensure the procedure for the election of its members is followed "in its entirety without deviation or exception" (Resolution adopted on October 19, 2002, at a Community meeting, Exhibit "H" to the affidavit of James Gabriel, dated December 1^st, 2002).

[41]            In view of the contradictory positions taken by the parties, it is therefore necessary to analyse the context in which the Code was "adopted" and whether a "broad consensus" has been achieved with respect to its adoption and subsequent application. Some history will provide the proper factual background.

                                    Situation prior to 1991

[42]            Traditionally, prior to 1991, the selection and appointment of the grand chief and other chiefs of the Council were made by the Six Nations Traditional Hereditary Clan Mothers in accordance with the custom of the band. The Council at that time consisted of one grand chief and eight chiefs. The grand chief and two chiefs were selected from the Turtle Clan. Three chiefs were selected from the Bear Clan and three chiefs were selected from the Wolf Clan.

[43]            Over the years, elements of the Community grew dissatisfied with this mode. Attempts, all unsuccessful, were made in the sixties, the seventies and the eighties to replace the traditional system by an elective one. Those attempts are well explained in two decisions of this Court: Gabriel v. Nicholas, [1983] F.C.J. No. 2 (F.C.T.D.); and Six Nations Traditional Hereditary Chiefs, supra.

[44]            As the Court points out in the former decision, INAC became concerned about the incessant requests of some groups of Band members to have an elective process. In 1988, it was therefore decided to ask the Community to pronounce itself on this issue. A referendum was to be held in June 1988. The Minister's right to hold a referendum was contested. Interested parties agreed that the Court should first dispose of the jurisdictional issue. Further delays ensued. In the meantime, what was labelled by the media as the "Oka Crisis" received national coverage during the summer of 1991. The Oka Crisis was a 78 day standoff which was sparked when the municipality of Oka tried to expand a golf course onto disputed land which was claimed to be Mohawk territory. In the early days of this standoff, a Sûreté du Québec officer was shot and killed. The judgment of the Court came a few months after the Oka Crisis. On February 20, 1991, the Court ruled that the holding of a referendum was neither unfair, arbitrary nor illegal.

[45]            The referendum was held on May 31, 1991. It was conducted by the Canadian Election Consultants, a neutral organism hired by INAC. A majority of the Band members favoured the election process. Although the particular results of the plebiscite are not part of the Court's record, all parties agree that there was a broad general consensus to replace the traditional mode of selecting and appointing the members of the Council by an elective system. But what kind?

                                              Transition

[46]            The election of an interim Council was completed on June 27, 1991. It was conducted by the same neutral agency. The defined voter eligibility in this election consisted "of all members of the Kanesatake Mohawk Band (regardless of residence) aged 18 years or over on voting day" (Exhibit "D" to the affidavit of Nathalie Nepton, dated December 10, 2002). Seven chiefs and one grand chief were elected for a term of ten months. One of their priorities was to develop the Code which could be used for the next coming election which was planned to take place at the end of April 1992. It was also expected that before the election, the Community would have adopted and ratified the proposed code.

[47]            Again, in April 1992, the same consulting firm was assigned by INAC to conduct the 1992 election "in accordance with the newly defined custom election code of Kanesatake". But the Code had yet to be finalized and submitted for the approval of the Band members. The Council tentatively set the election day on May 30, 1992. On April 25, 1992, Grand Chief Jerry Peltier, in the name of the Council, publicly announced that "a mail-in voting process will be in place for this election and will receive the voting of Kanesatake Mohawks who do not live in the Kanesatake Community. There is also to be a mobile pole [sic] available on the 23^rd, 24^th and 30^th of May 1992" (Press-Release, dated April 25, 1992).

                                     Draft Electoral Code

[48]            Either in March or April 1992, a "draft Electoral Code" (the "draft Code") was circulated among members of the Community. The evidence on record does not show if said document was circulated among non-residents as well. An important feature of that draft Code was the reduction of the size of the Council. The aforementioned would be reduced from nine to seven members. I will not insist on this aspect since all parties agree that the smaller size, which corresponds to the size of all the councils elected since 1992, is part of the custom of the Band. However, I note that the Council in subsequent resolutions passed since 1992 has consistently referred to the said reduction as an "amendment". This shows that some sort of custom, although unwritten, incorporating features of the 1991 election, existed at the time the draft Code was circulated. This is not to say, however, that this "custom" was definite and that it could not evolve through the adoption of a new set of rules and election procedures. In fact, that was precisely the purpose of the draft Code which was circulated.

[49]            Another distinguishing feature of the draft Code was the general exclusion of non-residents from the nominating and voting process under Article 2.1:

2.1           Every member of the Mohawk Community of Kanesatake who is of the age of eighteen (18) years or upwards may nominate and elect eligible persons to sit on the Mohawk Council of Kanesatake.

(Draft Electoral Code, Exhibit "A" to the Affidavit of Andrew Hayes,

dated December 16, 2002)

[50]       However, an exception was provided in the case of Band members "domiciled" in the Community, but who are absent for "temporary reasons". Article 2.2 reads as follows:

2.2           Any member of the Mohawk Community of Kanesatake who is domiciled in the Community but who is absent for temporary reasons, such as employment, studies, illness or vacation, shall not, for such reasons only, cease to be an eligible voter.

[51]            Moreover, it is clear that the authors of the draft Code viewed the exclusion of non-residents as a consequence of a Band member's personal characteristics such as birth or marriage. This is evidenced by the "Note" that immediately follows Article 2.2:

NOTE:    To be "domiciled" means to have both a connection with the Community by birth or marriage and also to have an intention to remain part of the Community.

[52]            As can be seen, Article 2 of the draft Code was in sharp contrast with the public announcement made on April 25, 1992, which allowed all members of the Band, aged 18 years or over, on voting day, to vote, regardless of their residence, and constituted a clear departure from the Band's burgeoning custom followed during the election of June 1991.

[53]            Other fundamental changes introduced by the draft Code concerned the persons who would be responsible for conducting the elections. As we have seen, they were conducted in 1991 by an outside consulting firm which was mandated to do the same in 1992. Under the draft Code, the list of eligible voters would now be established by five persons within the Community. The latter were designated afterwards in the current version of the Code as "Election Supervisors" (Article 7.1) Moreover, the Community would also establish a "Council of Elders" and its role would be to hear appeals made by defeated candidates (Article 8). However, these provisions of the draft Code did not provide details on the election and functioning of the Council of Elders. For the most part, these aspects, together with many essential ingredients respecting the nomination meeting and the responsibilities of the Election Supervisors, are to be found in the Regulations adopted by the Council under Article 9 of the Code.

[54]            There were Community consultations from March 3 to May 11, 1992. This was done by telephone interviews or workshops. Some 86 persons expressed their opinions. Their comments on the draft Code were reflected in a document which reproduced the provisions of the draft Code together with the participants' "proposed changes" (Exhibit "A" to the Affidavit of Andrew Hayes). The evidence shows that these consultations were limited to the draft Code itself. They did not include any proposed Regulations. The evidence on record does not show if non-residents were invited to participate or did in fact participate in the consultative process. In view of the particular comments reproduced in said document, it can be inferred that non-residents were excluded from the consultative process. In any event, the latter document was submitted for "discussion" at a Community meeting that was held on May 20, 1992, at 7:30 p.m., in the Kanesatake gymnasium. Draft Regulations under Article 9 of the Code, if they ever existed, were not part of the "discussion" package.

                                The May 20, 1992 meeting

[55]            The May 20, 1992 meeting was presided over by Grand Chief Peltier. He reminded the audience that at a Community meeting held on May 5, 1992, it was decided to "delay both the elections and also the implementation of the election code for at least 2 weeks" (transcript of the Minutes of the Meeting held on May 20, 1992, Exhibit "B" to the Affidavit of James Gabriel, dated December 15, 2002). He also explained that in the meantime the "discussion paper", to which reference was made above, with a "memorandum" dated May 13, 1992, from Chief Clarence Simon explaining the results of the surveys "were going to be distributed to all community band members" ("Results of Community Consulations [sic] re: Election Code", Exhibit "A" to the Affidavit of Andrew Hayes). However, there is insufficient evidence on record to permit the Court to infer that those documents were in fact distributed to all Band members, regardless of their place of residence, with a notice of the purpose of the May 20, 1992 meeting. This important lacuna, together with the nature of the resolution adopted at this meeting, cast great doubt on the respondent's submission that the Code is legally in force today and can only be "amended" by a new vote of the Band members.

[56]            Immediately following the opening statements made by Grand Chief Peltier, one of the participants, Mr. Morelely Oke, an elder, intervened and moved that "we adopt the electoral code as is now on a [sic] interim basis"; the latter having stated earlier that the draft Code "is a working document and that's what it's meant to do ... and I think that most of us here will realize that any trouble that we have with it will come out after and the new council can deal with the things that didn't work". The motion was seconded by Mr. Richard Gabriel who added that "the elections should continue and the new council work on the new codes [sic]" (transcript of the Minutes of the Meeting held on May 20, 1992, supra, at 3).

[57]            Further to these interventions, Grand Chief Peltier called a vote on the following resolution:

Be it resolved that the draft election code be adopted in principle and that the new council carry out further work on the code and present it to the community for final ratification.

(ibid, at 3)

[58]            The results of the vote called above being in favour 68, against 16, abstained 1, the resolution was accordingly adopted (ibid, at 4).

                                 The 1992 general election

[59]            At the end of the May 20, 1992 meeting, Grand Chief Peltier announced that the election would now be held on June 13, 1992. He explained that "[t]he nominations have been going on and will continue" and that the deadline for the nominations would be on May 23, 1992, at 10:00 p.m. As can be seen, there were 21 days between the last day of the nominations and the election date, a fact upon which the applicants rely on to affirm that since 1992 the custom of the Band is to allow at least 21 days (and not 12 days as mentioned in the Regulations) between the nomination meeting and the election day. Grand Chief Peltier concluded the meeting by mentioning: "... make sure your name is on the voters' list and you have to be 18 years and over the last day to check whether your name is on the voters' list is May the 30^th, which is a Saturday 1992 [sic]" (ibid, at 4). This statement clearly suggests that all Band members aged 18 years and over regardless of their residence were entitled to vote at this election. Actually, the list of electors prepared by the consulting firm, dated June 4, 1992, included non-resident Community members as well (List of Electors for the June 13, 1992 Kanesatake Mohawk Council Election, letter dated May 27, 1992 from J. Donegani, Exhibits "B" and "D" to the affidavit of Nathalie Nepton, dated December 10, 2002). 1336 Band members who were still living appeared on the Band's list, but some 283 were either deceased or could not be found or identified. There were 1107 eligible voters left, out of which 739 were residents and 368 were non-resident Community members. Out of that number, some 567 electors voted on June 13, 1992, including 398 residents and 169 non-residents. Grand Chief Peltier was re-elected to that position together with six other candidates as chiefs for a three-year period.

[60]            Although the draft Code has been in fact remodelled since the May 20, 1992 meeting, what appears to be the current version of the Code and accompanying Regulations have never been officially adopted by the Council, nor have they been ratified by the Community. It is therefore necessary to examine how the draft Code has been implemented in practice.

                     Practice since the 1992 general election

[61]            It seems that the words "in accordance with the Electoral Code of Kanesatake", or other words with the same meaning, appearing in some past Council resolutions (applicants' application record, Resolutions dated May 1, 1995, November 2, 2002, May 19, 1998, May 29, 2001, Exhibits "3B" and "3C" as well as "4A" and "4B") have never been intended to exclude the participation of non-residents and the use of outside consultative firms. Notwithstanding the restrictions found in Article 2 of the Code (which was unilaterally modified after May 20, 1992, to take into account some of the comments made earlier by some participants in the consultative process), the practice of the last ten years is to let all non-residents vote at all the elections that followed the 1992 general election:

(a)        On August 14, 1993, the Council held a by-election for three vacant positions. The same consulting firm was hired. All Band members, regardless of their residence, were eligible to vote (Public Notice, dated June 2, 1993, Exhibit "A" to the third supplementary affidavit of James Gabriel, dated December 16, 2002). The voters' list had 1104 electors and 289 electors voted (Band list (18 years and over August 14, 1993) and list of electors, comparisons, Exhibit "G" to the affidavit of Nathalie Nepton, dated December 10, 2002).

(b)        Again on June 10, 1995, a general election for the grand chief and six chiefs on the Council was held. The term was also for three years and the election was apparently conducted according to the draft Code which was adopted in principle on May 20, 1992. This election was conducted by "Coopers and Lybrand" of Montreal and all Band members, "regardless of their residence", were invited to vote (Resolution dated May 1, 1995, Exhibit "I" to the affidavit of Nathalie Nepton, dated December 10, 2002).

(c)        The same form of resolution was signed by the Council in 1998 and again in 2001 for the general elections held on June 27, 1998, and July 14, 2001 (Resolutions of May 19, 1998 and of May 29, 2001 in the second supplementary affidavit of James Gabriel, Exhibits "A" and "B"). The official Notices of Election issued by the Council on both occasions clearly state that all Band members aged 18 years and over on voting day were eligible to vote (Exhibits "L" and "S" to the affidavit of Nathalie Nepton, dated December 10, 2002). 603 electors voted in the June 27, 1998 election. Official results for the July 14, 2001 election were not provided to the Court; however, as appears from the affidavit evidence on file, non-residents did, in fact, vote at this latter election (affidavits of Rita Jacobs, Helene Gareau, Gisele Mayer Masion, Carol Simon, Dorice Cardinal, Carmen Richard Philibert, Guy Richard, Marie-Paule Richard, Laurence Richard Lanthier, Jean-Guy Mayer, Pierre Demers, Josée Lavallée, Allen Ernie Benson and Mark Lavallée).

(d)        Prior to the general election of 1998, there was a by-election on July 6, 1996, for the position of grand chief. Again, non-residents voted at this by-election. As in the preceding elections, and the 1998 and 2001 elections, there were advanced and mail-in polls (Exhibit "R" to the affidavit of Nathalie Nepton, dated December 10, 2002). 451 electors voted and the applicant James Gabriel was elected with 54% of the ballots cast (official results, Kanesatake July 6, 1998 by-election, Exhibit "K" to the affidavit of Nathalie Nepton, dated December 10, 2002).

(e)        In June 2001, the Kanesatake Interim Land Base Governance Act, was adopted. Prior to the adoption of that Act, a plebiscite was held in September 2000 with respect to the ratification by the Community of the Land Governance Agreement and the Mohawks of Kanesatake Land Governance Code. All Band members 18 years of age and over, including non-residents, were entitled to vote on the ratification. 476 voters expressed their opinion (Legal opinion of the Honourable Lawrence A. Poitras, dated November 30, 2000, at 7, Exhibit "H" to the reply affidavit of James Gabriel, dated December 12, 2002).

                                      Subjective element

[62]            On June 13, 1992, out of 1336 living Band members, 1107 could be found and were allowed to vote. Therefore, 68 votes cast in favour of the adoption "in principle" of the draft Code represent only 6% of the eligible voters at that time. Furthermore, the evidence on record does not show that proper notice or the time and purpose of the May 20, 1992 meeting were given to all Band members interested, particularly the non-residents, since their voting rights were affected by the draft Code. Moreover, there is no way of knowing who actually voted on May 20, 1992, and who was previously consulted by telephone or participated in a workshop. But, more importantly, the figure of participation, 85 persons, is strikingly low compared to the usual numbers counted in past elections since 1992 or in the 2000 plebiscite, and which (except for the 1993 by-election) normally varied between 400 and 750 voters who exercised their rights to vote out of some 1100 eligible voters. In view of the purported effect that the respondents want to attach to the Code which they present as a sort of "Constitution" of the Band, the participation should be significant. This is certainly not the case.

[63]            Inasmuch as reliance is placed by the respondents on the fact that the draft Code was adopted "in principle" at the Community meeting held on May 20, 1992, they have failed to establish that the participation of 85 persons which resulted in 68 votes in favour, 16 against, and one abstention, constitutes a "broad consensus" sufficient in these special circumstances to consider that the Code now constitutes the custom of the Band. I realize that this finding is contrary to the preliminary conclusion reached by Tremblay-Lamer J. in Gabriel, supra, who declared herself "satisfied, at this stage, that there is strong evidence that [the Code] represents the custom for choice of council members, upon which there is a broad consensus" (paragraph 17). However, the evidence discussed above, which may not have been brought to the attention of Tremblay-Lamer J., convinces me that no such general conclusion can be reached where it comes to fundamental principles of exclusion of non-residents and the enforcement of the Code and Regulations' provisions respecting the election of Election Supervisors and members of the Council of Elders.

[64]            Furthermore, the evidence shows that there has been a continuous intention, publicly expressed through various resolutions and communiques of the Council, to permit non-residents to vote and resort to independent agencies retained by Council and charged with organizing and supervising the electoral process. In none of these elections was there any recourse to a Council of Elders or Election Supervisors. I find in this regard that the conduct of the Band members in acquiescing to these practices is sufficient evidence to satisfy the requirement that the latter were "generally acceptable to members of the Band upon which there is broad consensus".

[65]            In coming to the above conclusion, I have also considered the fact that following the 1998 election, complaints were made and concerns were expressed in the name of some 85 Band members who were not satisfied with the outcome of the election and sought to overturn it on the grounds that it was not conducted "in strict adherence with the Code" (Exhibits "F", "G" and "H" to the affidavit of Steven Bonspille, dated December 10, 2002). I have also considered the fact that at a Community meeting held on October 19, 2002, a resolution was passed to the effect "that the rules of procedures for the election of its Mohawk Council, adopted in principle on May 20, 1992, be followed, in its entirety, without deviation or exception for any future election of Grand Chief and Council, including any future bi-election [sic] calling the same" (Exhibit "H" to the affidavit of James Gabriel, dated December 1, 2002). Some 60 persons attended that meeting.

[66]            That being said, despite the respondents' general assertion, which is strongly contested by the applicants, that people are not intimidated or harassed at the Community's public meetings, I am unable to conclude that the concerns expressed by some 85 persons in 1998 and some 60 persons in 2002, demonstrate that the "broad consensus" referred to above no longer exists or that a new "broad consensus" exists such that the Band's elections should no longer be conducted using the Code as a guideline. I also accept the applicants' evidence that the October 19, 2002 meeting was not authorized by the applicants and that the notice was improper and insufficient to the extent that non-resident Band members were not given proper notice and thus were unable to express their views on the matter (affidavit of James Gabriel, dated December 1, 2002, paragraphs 18 and 19 and Exhibit "G" to said affidavit).

                                             Conclusion

[67]            In view of the above evidence, which I find conclusive, I have no hesitation in concluding that the strict enforcement, either by Council, its Executive Director or other electoral officers, of the residency requirements mentioned in Article 2 of the Code would be contrary to the custom of the Band. Inasmuch as the Code has not been strictly enforced, the strict enforcement of the provisions of the Regulations which provide for the election of Election Supervisors and a Council of Elders would also be contrary to the custom of the Band since 1992.

V- OTHER LEGAL OBSTACLES

[68]            Besides the absence of a broad consensus, there are other legal obstacles that prevent the Court from accepting the respondents' submissions that the provisions of the Code and the Regulations with respect to residency requirements and the election of Election Supervisors and a Council of Elders are legally binding and should be strictly enforced.

[69]            First, the Code to which the impugned decision refers (Exhibit "D" to the affidavit of James Gabriel, dated December 1, 2002) is not the draft Code that was approved "in principle" at the Community meeting held on May 20, 1992 (Exhibit "A" to the affidavit of Andrew Hayes) but a modified version which seems to have been prepared for the June 10, 1995 election in view of the "explanation" provided, which mentions that the latter "will be conducted by Coopers and Lybrand of Montreal, Quebec". It is apparent from a comparison of the two documents that the authors of the 1995 version substantially amended the 1992 version. The 1995 version incorporates some of the changes suggested by some of the participants at the consultative process. However, it is not necessary to enter into a comparative analysis as no final version of the draft Code has ever been presented for ratification to the Community members despite the fact that this was clearly required by resolution passed on May 20, 1992.

[70]            The fact that no definite character can be attributed to what is presented as the "current version" of the Code is further evidenced by the communique issued by the Council in May 1998 in anticipation of the general election of June 27, 1998. It reads as follows:

KANESATAKE, May 29, 1998. The Mohawk Council of Kanesatake would like to advise all Kanesatake Band members that a draft Election Code, which is still a discussion paper, is presently being circulated within the Community.

The circulation of this document within the Community is only causing confusion and unwarranted concern.

On the first page of the draft it is clearly marked "draft" and it has not been discussed by the Mohawk Council of Kanesatake nor has it been ratified by the Community.

Therefore, if anyone has any questions about the forthcoming election, please do not hesitate to contact the Election Consultants office of DAYE AND VINCENT at 479-8256 and clarify any misunderstandings.

Nia wen

THE MOHAWK COUNCIL OF KANESATAKE

(Communique, Draft Election Code, Exhibit "C" to the affidavit of Andrew Hayes)

[71]            Second, the Regulations to which Article 9 of the Code refers can be legally binding only once the Code itself has been ratified. Furthermore, it is also not clear from the evidence on record whether the Council has adopted the Regulations, as it appears their application was suspended in 1992 (Council Resolution, dated May 26, 1992, Exhibit "A" to the affidavit of James Gabriel, dated December 15, 2002).

VI- RULES OF NATURAL JUSTICE

[72]            Fair play and impartiality are vital to the democratic process the Band members chose to adopt in 1991 when they opted for an elective system. The systematic recourse by Council in past elections to independent agencies ensured that all electors (residents and non-residents) and candidates were not discriminated against and were treated fairly. This practice of appointing such agencies and of allowing non-resident Band members to vote must therefore be considered as part of the custom of the Band which implicitly incorporates the respect of the rules of natural justice and associated principles.

[73]            I have also considered the parties' evidence with respect to the meeting that took place on December 4, 2002, to elect Election Supervisors and the Council of Elders. Some 30 persons attended that meeting and their names have been provided to the applicants. I find that notice of said meeting, as well as the December 6, 2002 communique that a nomination meeting would take place on December 19, 2002, were not sent to non-resident Band members. The Election Supervisors are Sonya Gagnier, Sheila Bonspille, Clifton Nicolas, Jonathan Peltier and Janet Nicolas. The members of the Council of Elders are Noreen Cree, Shawhanatsi Montour, Charlotte Beaver, Paul Bonspille and Llyod Figie. It is admitted that the election of Election Supervisors and members of the Council of Elders were not elected by secret ballot. I accept the applicants' evidence that most of the persons who attended the meeting are clearly opposed to the applicants and also that Election Supervisors and members of the Council of Elders, in view of their past conduct, their family links or because they are parties or related to parties named in contempt proceedings or other proceedings before the Court (reply affidavit of James Gabriel, dated December 12, 2002, paragraph 10 and Exhibits "A", "B", "C" and "D" to said affidavit), are openly biased, or at least that a reasonable apprehension of bias exists here. I also note that none of these Election Supervisors have any expertise in conducting an election.

VII - THE CHARTER ARGUMENT

[74]            In view of the general conclusion that an election in strict compliance with the Code would be contrary to the custom of the Band, it is not necessary that I decide whether the exclusion of non-resident Band members from voting is contrary to section 15 of the Charter. Without expressing any final opinion on this subject, I will limit myself to a few observations.

[75]            In Crow v. Blood Band (1996), 107 F.T.R. 270 (F.C.T.D.), the Court was asked to decide whether the Charter applied to customary band election procedures. Heald D.J. avoided having to answer the question and stated as follows at paragraph 21 of his reasons:

... This is a complex matter which involves, inter alia, the application of section 32 of the Charter as well as the interpretation and possible application of section 25 of the Charter. However, given the conclusion that I have reached with respect to the infringement of the Plaintiff's Charter rights in this case, it is unnecessary for me to reach a conclusion on this issue. Accordingly, for the purposes of the ensuing discussion, I have assumed, without deciding, that the Charter does apply to the Band's Custom Election Bylaw.

[76]            In Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, the Court invalidated, as inconsistent with section 15 of the Charter, subsection 77(1) of the Act, which excluded off-reserve members of an Indian band from the right to vote in band council elections. The remaining question is whether the Court's finding also applies to custom band elections.

[77]            Recent indications in the jurisprudence of the Federal Court of Canada show a certain inclination towards the applicability of the Supreme Court's decision in Corbière, supra, to custom band elections: Gros-Louis v. Nation Huronne-Wendat (Conseil), [2000] F.C.J. No. 1529 (F.C.T.D.), Pinard J., at paragraph 4; Hall v. Dakota Tipi Indian Band, [2000] F.C.J. No. 207 (F.C.T.D.), Pelletier J. (as he then was), at paragraph 2; and Gabriel, supra, Tremblay-Lamer J., at paragraphs 13-14. However, in none of these decisions did the Court engage in any kind of extensive analysis of the "complex" legal issues involved in determining whether Corbière, supra, also applied to custom band elections. I think this question is still open to debate and the indications already given by the Court are by no means definite.

[78]            That being said, I note that this case is not about whether or not the Mohawks of Kanesatake have the "right to control their election process" but it is essentially a dispute between two Mohawk factions as to what the applicable process should be in this particular instance. Furthermore, the "custom" the parties are referring to, is a "contemporary" custom of approximately ten years, and is therefore to be distinguished from the "ancestral customs or practices" referred to in cases such as R. v. Van der Peet, [1996] 2 S.C.R. 507. In that context, the present case does not allow for the "aboriginal right to self-government" argument that the respondents are raising in their memorandum. I will also add that such complex issues require extensive and historical oral evidence, and that, in any event, the scarce and general allegations made in the affidavits submitted by the respondents do not satisfy this requirement and do not allow the Court to make any finding under section 25 of the Charter or section 35 of the Constitution Act, 1982.

VIII - CONCLUSION

[79]            For the above reasons, I have decided to allow in part the present judicial review application. An order setting aside the impugned decision and granting relief is issued accordingly. This will leave two unsettled issues.

[80]            First, at the present time, I find it advisable to allow the Council's members some time to choose a new election date and agree on an independent agency which will oversee and direct the vote in accordance with the custom of the Band. Therefore, I will not dispose today of the applicants' present request for mandatory injunction or mandamus. However, I will retain jurisdiction to consider said request (or any amended request for an alternate order) and to issue any further order in the event Council members are unable to agree on a new election date or on the choice of an independent agency.

[81]            Second, I am also disposed to award costs in favour of the applicants against the respondents, save and except, the Attorney General of Canada, whose status is that of a "mis-en-cause", as already indicated. At the hearing, the applicants' counsel asked that their application be allowed, leave be granted to submit written representations on the opportunity of issuing an order directing Council to pay the costs of the applicants on the same basis and according to the same terms followed by Council to pay its solicitors to defend these proceedings, or alternatively, on a solicitor and client basis. Accordingly, the parties are directed to serve and file their written representations on the amount of costs and other related issues within the period mentioned in the accompanying order.

                                               ORDER

IT IS ORDERED THAT the decision of the Council of November 26, 2002, calling for a special election to be held on January 4, 2003, "in accordance with the Electoral Code of Kanesatake", and for a nomination meeting to be held on December 19, 2002, be set aside as being contrary to the custom of the Band;

IT IS DECLARED THAT the election of Election Supervisors and members of the Council of Elders at the meeting of the Community held on December 4, 2002, has no effect and is illegal, as said meeting was not authorized by the Council and was held without proper notice and that the persons elected at that meeting to fill the positions of Election Supervisors and members of the Council of Elders, and who are likely to be biased, were not lawfully elected to those positions;

IT IS FURTHER DECLARED THAT an election or by-election conducted in strict compliance with the provisions of the Code and Regulations respecting the residency requirements and the election of Election Supervisors and a Council of Elders would be contrary to the custom of the Band;

IT IS FURTHER ORDERED THAT until such time as the Code reflects the custom of the Band, any future elections and by-elections for positions on the Council must be open to all registered Band members aged 18 years and over, the latter being entitled to vote regardless of their residency, and be conducted:

(a)        by an independent agency retained by the Council to oversee and direct the vote all in accordance with the custom of the Band and procedures followed in elections conducted in accordance with the Code since 1992; and

(b)        without involvement or participation of Election Supervisors or of a Council of Elders;

IT IS FURTHER ORDERED THAT the applicants' request for a mandatory injunction or mandamus requiring a by-election to be held within 60 days following the Court's final order to fill the vacant position of chief on the Council be held in abeyance and that the Court retains jurisdiction to dispose of said request (or any amended request for an alternate order) and to issue any further order in the event Council members are unable to agree on a new election date or on the choice of an independent agency;

IT IS FURTHER ORDERED THAT costs be awarded in favour of the applicants against the respondents, save and except the Attorney General of Canada, and that the parties serve and file their written representations on the amount of costs and other related issues within 10 days of the present order.

                                                                                                  Judge

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1993-02

STYLE OF CAUSE: DARLENE FRANCIS AND OTHERS v. THE                          MOHAWK COUNCIL OF KANESATAKE AND                                     OTHERS

PLACE OF HEARING:                                 OTTAWA

DATE OF HEARING:                                   DECEMBER 16, 2002

REASONS FOR ORDER AND ORDER : THE HONOURABLE MR. JUSTICE MARTINEAU

DATED:                     JANUARY 31, 2003

APPEARANCES:

Mr. Peter Annis                                                 FOR APPLICANTS

Mr. Ian Houle

Mr. Martin Mason                                             FOR RESPONDENT - THE

Mr. Sebastien Spano                                         MOHAWK COUNCIL OF

KANESATAKE

Ms. Anick Pelletier                                            FOR RESPONDENT - THE

ATTORNEY GENERAL OF

CANADA

SOLICITORS OF RECORD:

VINCENT CAGENAIS GIBSON                               FOR APPLICANTS

Ottawa, Ontario

GOWLING LAFLEUR HENDERSON            FOR RESPONDENT - THE

Ottawa, Ontario                                                MOHAWK COUNCIL OF

KANESATAKE

MORRIS ROSENBERG                                              FOR RESPONDENT - THE

Deputy Attorney General of Canada                  ATTORNEY GENERAL OF

Ottawa, Ontario                                                CANADA