Date: 19980604
Docket: T-2078-97
BETWEEN:
LAC DES MILLE LACS FIRST NATION
and RODERICK SAWDO
Applicants
- and -
LAWRENCE CHAPMAN, ELIZABETH BOUCHER,
RON BACHMIER and JAMES NAYANOOKEESIC
Respondents
REASONS FOR ORDER
CULLEN J.:
[1] At the outset I must state my disappointment that the members of this First Nation could not resolve this dispute on their own. It is a sad event that the parties in this proceeding are in a dispute which involves such animosity. Having said that, however, I must make it clear to all parties that this decision is not an endorsement of which Council would be better from the standpoint of the First Nation, nor is it an endorsement of any particular person sitting on Council. My decision is based solely on principles of administrative law and procedure.
[2] This is an application for a declaration that Roderick Sawdo, John Heafey, Clarence McKenzie and Stacey O'Neil constitute the proper Chief and Council of the co-applicant, Lac des Mille Lacs First Nation. Roderick Sawdo and Lac des Mille Lacs First Nation (the "First Nation"), collectively the applicants, are seeking a declaration that the above-mentioned individuals are the proper Chief and Council of the First Nation and shall remain so until a new election is held in accordance with established band custom; alternatively, for an order that a new election be held within a prescribed period of time in accordance with established band custom; and an interlocutory injunction preventing the continuance of the referendum to revise band custom. Because the referendum has already been completed, the request for the injunction is moot.
[3] I note at this juncture that the Minister of Indian Affairs and Northern Development ( the "Minister") has been struck as a party respondent by Order of Rouleau J. dated January 23, 1998. As a result, the court will not deal with any of the requested relief directed to the Minister, as the prayer for relief was not amended after Rouleau J.'s Order.
[4] The general dispute in this case is that two separate groups are making claims to the positions of Chief and Council. The following are the facts which led to this conflict.
[5] Lac des Mille Lacs First Nation is not subject to the provisions of the Indian Act, R.S.C. 1985, c. I-6 governing the procedure for electing band council, having formally reverted to band custom in matters of election pursuant to Order in Council P.C. 1972-2168 dated 24 September, 1972, since repealed and replaced by Indian Bands Council Method of Election Regulations, SOR/90-46.
[6] On June 23, 1990 a general member's meeting of the band was held. At that meeting a "Band Custom Election Procedure" was passed by the voting members in attendance and an election was held. According to the report of George Broeffle, attached as Exhibit "A" to the affidavit of Roderick Sawdo, sworn September 16, 1997, the results of the 1990 election were that Mr. Kelvin Chicago was elected as Chief and Andrew Kishigweb, Rob Peters and Marvin Boucher were elected as Councillors. The Band Custom which was adopted at the 1990 general meeting and by which the 1990 election was conducted appears as Exhibit "B" to the affidavit of Roderick Sawdo in the form of Band Council Resolution (BCR) # 191 and reads:
WHEREAS. Lac Des Mille Lacs First Nation is adopting the following election procedures:
1. Voting age to be 18 years and over
2. Band members living off reserves to be allowed to vote
3. Office of Councillor can be held by a Band member living off the reserve
4. Election of Chief and Councillors to be held every two years. 18 years old and over will be allowed to vote at a general meeting
5. Only Band members present at the nomination meeting will be allowed tovote (sic) for Chief and Councillors. Elections will be held the same day
6. Band members nominated must be in attendance at the nomination meeting
7. There will be an electorial officer sellected (sic) by Chief and Council from a neutral party
[7] On March 21, 1992 another election was held which followed the above procedure. The results of this election were that Lawrence Chapman was elected as Chief and Ron Bachmier, Roy Peters and Ron Peters were elected as councillors. Mr. Ron Peters later resigned and was replaced by Martin King who had placed fourth in the 1992 election. For the sake of clarity, I will refer to this Chief and Council as "Council No. 1". Lawrence Chapman and Ron Bachmier are respondents to this motion along with Elizabeth Boucher and James Nayanookeesic. These four people, for the sake of convenience, will be referred to as the "successor Council", being the successors to Council No. 1 according to the submissions of the respondent.
[8] Although the procedure for selection of Chief and Council was not officially changed to band custom until 1972, the First Nation could not elect its Council according to the regime established in the Indian Act because there were no members of the First Nation who were ordinarily resident on the reserve due to the flooding of reserve lands which occurred in 1955. Thus, from 1955 until the official change, the First Nation had been de facto electing its Council according to band custom.
[9] The band custom in 1972, the year of the official change of election procedures, was for new Councillors to be appointed by the existing Council. In 1979 the custom for selection of the Chief was that the new Chief would be chosen by the past Chief and this choice then had to be ratified by a majority of the band members. That this was in fact the custom is evidenced by Exhibits "A"- "D" of the affidavit of Ron Bachmier, sworn on March 26, 1998. The current crises was presaged in 1986 when Harvey Churchill resigned as Chief without designating a replacement. The dissipation of the members of the First Nation meant that it was difficult to locate elders with whom to consult with respect to the proper custom to be followed in such an unprecedented situation.
[10] After the 1992 election, Council No. 1 approved an Electoral Code of the First Nation (#93-001, Exhibit "E" to the affidavit of Ron Bachmier). The adoption of this Code, however, was subsequently revoked when an appeal was filed which included documentation that the code as drafted did not accurately reflect prior band custom. This appeal, filed by Mr. Anthony Susin, Jr., included correspondence (Exhibits "A"- "D" mentioned above) which revealed the above-noted custom of which the Council was previously unaware. The Council also cited the lack of support for the Code by a majority of band members as well as flaws in the procedural aspects of the Code, specifically the lack of an appeal, as reasons for abandoning this Code #93-001.
[11] After discussion with members of the First Nation, Council No. 1 decided to hold a referendum to ratify a new draft code for the Council selection process which would be in accordance with band custom. Council No. 1 published a Notice of Referendum and requested that the Department of Indian and Northern Affairs ("DIAND") release funding in the amount of $20,000.00 to finance the referendum. The referendum was to begin at the end of March and was to last approximately six months in order to allow for full participation of all band members. However, as the release of the funds was delayed until the end of March of that year, the referendum actually took place between May 1, 1996 and July 25, 1996.
[12] Paragraph 17 of the affidavit of Mr. Roderick Sawdo reads:
many band members, including myself, became very suspicious of the actions of Chief Chapman and his council. The delay of the scheduled election did not seem legitimate and the abandonment of the ratified electoral code was not acceptable to many members.
As a result, Mr Sawdo organized an election which was held on April 27, 1996 but was not attended by the members of Council No. 1. The meeting was attended by 45 voting members and the procedure of 1990 was used. Roderick Sawdo was elected as Chief and John Heafey, Clarence McKenzie and Stacey O'Neil were elected as Councillors. This group is referred to as Council No. 2. The Minister refused to recognize Council No. 2 and will not release any funds to either Council pending a resolution of the conflict between the two groups and a clear mandate from the First Nation as to the appropriate Council.
[13] In order to demonstrate support for his Council, Mr. Sawdo circulated a petition which is attached as Exhibit "E" to his affidavit which lists 94 names of band members. In response to this petition, counsel for the respondent, in his written and oral submissions states the following:
a. there is no indication of when this petition was circulated or the dates upon which individuals signed;
b. at least one of the signatures on the [petition], that of Ernest May, is sworn by him not to be his signature. Equally significant, Mr. May's signature is purported to be witnessed by the applicant, Roderick Sawdo, who chose not to cross-examine Mr. May on his affidavit;
c. there are a number of signatures of witnesses for which there are no original or any signature of petitioners;
d. there is no evidence of any checks and balances with respect to the process of the procedure to ensure its validity;
e. there is no evidence before this Honourable Court to indicate to what use this petition was made or to whom it was provided;
f. a number of the people who signed the petition also participated in the Referendum or sought nomination in the subsequent leadership selection process.
[14] All of the criticisms of the petition listed above are meritorious. In the discussion which follows therefore, the existence of the petition is given no weight.
[15] The applicant seeks a declaration that he and his Councillors (collectively constituting Council No. 2) are the true Council of the First Nation. This therefore must be the first issue addressed by examining the legitimacy of the election by which they were purportedly put into power.
[16] Mr. Sawdo and Council No. 2 were elected in 1996. The evidence indicates that it was Mr. Sawdo himself , with the help of other unidentified band members, who arranged for, called and administered the 1996 election. The affidavit of Mr. Sawdo states at paragraph 18 that Hereditary Chief and elder Robert Sandy Patrick Sawdo and Pam Sawdo, the applicant's father and sister respectively, had verbal confirmation from Mr. Green, District Manager, Western District, Ontario Region, DIAND, that they could hold the election. However, as the first affidavit of Mr. Brent Lepage clearly states at paragraph 8, it is highly unlikely that such confirmation did come from Mr. Green because it was not within the jurisdiction or mandate of DIAND to approve the calling of an election. As the First Nation was to select its leaders according to band custom, the role of the Department was one of recognition only. Additionally, it was incumbent on counsel for the applicant to provide the court with the affidavit of either or both Mr. Patrick Sawdo or Ms Pam Sawdo relating what exactly had been said to them. As this evidence was not provided, and considering the contrary affidavit evidence from DIAND, I disregard this purported "affirmation" as any justification for the election. However, in the end this is of little relevance because, even assuming Mr. Green had supported the election, such support would have had no legal effect.
[17] Mr. Sawdo, it is not disputed, was and is a band member. However, at the time Mr. Sawdo purportedly called the election in 1996 there was already a Council in place which was holding itself out as continuing in office. There is no evidence which indicates that attempts were made to convince Council No. 1 to step down and/or call an election prior to the election called by Mr. Sawdo. There is evidence however that DIAND offered to provide mediation to the parties in order to resolve the dispute but that neither party would participate without their lawyers and that the parties further wished DIAND to cover the legal fees. This was not acceptable to DIAND however. (See the first affidavit of Mr. Lepage, at paragraph 6(d))
[18] The proper course which should have been followed by Mr. Sawdo is to have sought a writ of quo warranto from this court. Heald J. canvassed the law of quo warranto in the context of disputes relating to the proper Council of a First Nation in Bone v. Sioux Valley Indian Band No. 290 Council (1996), 107 F.T.R. 133. In Bone an appeal had been taken to the Appeal Board pursuant to the Band Election Code on the grounds that the elected Chief was not eligible to stand for election as he did not meet the residency requirement of the Election Code. The Appeal Board ordered that a new election be held. However, under the Band Regulations, only the Chief and Council could call an election, which they refused to do on the advice of the elders of the First Nation. The Chief was the respondent in the case and he refused to step down. Heald J. held that the court could issue a writ of quo warranto if the court was satisfied that the individual against whom the writ is issued has no legal basis for holding the position in question. At 151 Heald J. cited Teitelbaum J. in Jock v. Canada (Minister of Indian and Northern Affairs), [1991] 2 F.C. 355 wherein Teitelbaum J. writes:
According to de Smith's Judicial Review of Administrative Action (4th Ed. by J.M. Evans, 1980), the old substantive law rules for quo warranto, with only slight modifications, still apply, as listed below (at pp. 463-464):
1. The office must be one of a public nature.
2. The holder must have already exercised the office; a mere claim to exercise it is not enough.
3. The office must have been created by the Crown, by a Royal Charter, or by an Act of Parliament.
4. The office must not be that of a deputy or servant who can be dismissed at will.
5. A plaintiff will be barred from a remedy if the plaintif [sic] has been guilty of acquiescence in the usurpation of office or undue delay.
6. The plaintiff must have a genuine interest in the proceedings. Nowadays probably any member of the public will have sufficient interest, provided that he has no private interest to serve
There were other criteria cited by Heald J. which need not be discussed here as this is in fact not a motion for a writ of quo warranto.
[19] Counsel for the applicant submits however that the 1996 election was proper and valid because:
1. it followed the same procedure for selection as was used in 1990 and 1992; and
2. that, once the 93-001 Code had been withdrawn, Council No. 1 no longer had any mandate or power and therefore there was no other Council in place.
[20] In my view this second argument fails on the above-mentioned fact that, if it was the case that Council No. 1 was purporting to continue to act without authority, a writ of quo warranto should have been pursued and the lack of authority with respect to Council No. 1 did not thereby confer any authority on the applicant.
[21] The proper course in the situation as described above would have been to seek a writ of quo warranto on the basis that: the office of Chief is public; there is no dispute that Mr. Chapman has exercised the office; as found by Heald J. in Bone, even an office holder elected by Band Custom satisfies the third requirement; the Chief cannot be dismissed at will; and, Mr. Sawdo has a genuine interest in the proceedings. Counsel for the respondent argued that the applicant was guilty of delay and had in fact acquiesced in the continuation of Mr. Chapman as Chief. This point, however, need not be decided for purposes here as no party has requested that the court issue a writ of quo warranto. However, I am satisfied that Mr. Sawdo should have pursued this course of action. There is much to recommend this course of action. First, it sends a clear message that the members of the First Nation will not abide a Council which overstays its term of office. Second, and most importantly, such a course of action avoids situations such as the one in this case. By seeking a writ of quo warranto as the first step, there is never any ambiguity as to who actually speaks on behalf of the members of the First Nation. Failing to do so, Mr. Sawdo has not demonstrated to the court that he had the authority to hold an election in the face of a different Council already holding office which did not participate in the 1996 election. In my view, the burden was his to establish such authority. Because Mr. Sawdo has not demonstrated that he had the proper authority, the court is unable to declare that the 1996 election was valid and therefore unable to give Mr. Sawdo the declaration he seeks.
[22] With respect to the first argument, viz. that the procedure alone validates the election, I point out that the lack of authority to institute the proceedings in the first place is fatal. Furthermore, the paragraph from Mr. Sawdo's affidavit which describes the manner in which the election was announced is insufficient. The applicant fails to name where and when these advertisements were placed. The only copy of a purported advertisement with respect to the 1996 election appears in the Record of the respondent and it fails to state the time and place of the election. Even if the applicant had submitted sufficient evidence with respect to the advertising of this meeting and election, it does not cure the above noted defects. Thus, the failure of proceeding with a writ of quo warranto is fatal to the applicant.
[23] This leaves me to determine whether the respondents are validly in office. I pause here to discuss the court's jurisdiction to pronounce on the validity of the respondents holding office in light of counsel for the applicant's contention that, as no cross-motion was brought by the respondents, it was not within the jurisdiction of the court to make any findings with respect to the validity of Council No. 1 or its successor Council.
[24] In the Originating Notice of Motion dated September 23, 1997, paragraph 9 asks for:
Such further and other relief as this Honourable Court may deem fair and just in the circumstances
In my view, in the interests of resolving all of the issues which these parties dispute, it is incumbent on this court to make factual findings and to render "further and other relief" which is "fair and just in the circumstances".
[25] When elected in 1992, Council No. 1 had a mandate for two years. Subsequently to their election, Council No. 1 adopted Electoral Code #93-001 which extended their term of office to four years. However, this Code was revoked by Resolution of Council on January 29, 1995. Thus, the Council had overstayed its mandate by almost a year, as the only Code which had not been revoked was the original Code by which they had been elected. Thus, the situation in 1995 was that Mr. Chapman and his Councillors were holding office without legitimate authority. However, Council No. 1 continued to conduct the business of the First Nation.
[26] As I stated earlier, at this point, or any point subsequent, Council No. 1 could only be removed from office by voluntarily stepping down, by calling an election or by someone seeking a writ of quo warranto against them. None of these events in fact occurred.
[27] In 1995 discussions were apparently held among the members of the First Nations and a new Custom Leadership Selection Code was drafted along with Referendum Regulations and a draft Financial Administration Law. By referendum of the First Nation the Custom Leadership Selection Code was allegedly adopted by the First Nation.
[28] Counsel for the applicant submits that, with only 73 votes validly cast, it is not possible to state that the Selection Code was adopted according to the criteria established in Bone at 141-142:
In the words of Justice Strayer, a band's custom must "include practices for the choice of a council which are generally acceptable to members of the band, upon which there is a broad consensus".
The issue is whether the Selection Code is generally acceptable and whether it is supported by a broad consensus.
[29] 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.
[30] After the new Selection Code had been adopted by referendum of the First Nation, a Selection process was conducted in accordance with that new Code, according to the affidavit of Mr. Peter Kelos, sworn March 30, 1998. According to Mr. Kelos, who was appointed as referendum officer and subsequently as electoral officer, a package was mailed to the known eligible voters which included an electoral package which gave a detailed explanation of the nomination and voting procedures. By the close of nominations 12 members of the First Nation stood for nomination, however only one member, Mr. Ron Bachmier, had met the requirement of filing evidence of support for the candidacy of at least 15 voters. The result was that Mr. Bachmier was acclaimed.
[31] Nominations were then re-opened for the two remaining positions of Councillor and at the close ten members of the First Nation stood for nomination but none had shown evidence of support of 15 voters. This resulted in a third round of nominations wherein two members met all of the requirements and thus Elizabeth Boucher and James Nayanookeesic were also acclaimed.
[32] After these three rounds for the nomination of Councillors, Mr. Kelos sent out information regarding the Leadership Review of Chief Lawrence Chapman which was to take place on December 15, 1996. However, the review was postponed until December 17 due to inclement weather. At the close of the review only 17 voters had cast ballots and the results were 16 votes in favour of Chief Chapman and one against. Subsection 10(d) of the Custom Leadership Selection Code requires that, in order to remove a Chief, 60 votes must be cast against the incumbent. After carefully reviewing the Selection Code and the procedure followed, it is my finding that the process was in accordance with the Selection Code and was therefore valid and proper.
[33] What deserves mention at this juncture is that, despite the clear evidence that Chief Chapman evaded service of documents and despite the interim "election" of Council No. 2 and despite the legitimate attempts by Mr. Sawdo to discredit Chief Chapman during the time leading up to the referendum and the selection, very few votes were cast in the leadership selection and only one was cast against Chief Chapman. This is surprising, to say the least. Counsel for the applicants suggested to the Court that it was simply too much to expect that anyone could have maintained interest in the procedure as this was the fourth round of balloting in only a few months and this review was held just before Christmas. However, given the circumstances which occurred between 1992 and 1996 and the allegedly widespread mistrust of Chief Chapman and his Council, one would have expected more participation even on a fourth ballot. There is no evidence to suggest that the procedure followed was in any manner flawed, given the adoption of the Selection Code.
[34] In the result, I find that the respondents Lawrence Chapman, Elizabeth Boucher, Ron Bachmier and James Nayanookeesic 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. Accordingly, this motion is dismissed.
[35] There shall be no Order as to costs.
OTTAWA, ONTARIO B. Cullen
June 4, 1998. J.F.C.C.
[36]
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2078-97
STYLE OF CAUSE: LAC DES MILLE LACS FIRST NATION and RODERICK SAWDO
v.
LAWRENCE CHAPMAN, ELIZABETH BOUCHER, RON BACHMIER and JAMES NAYANOOKEESIC
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MAY 12, 1998
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE CULLEN
DATED: JUNE 4, 1998
APPEARANCES
MS. EMILY COMDR FOR APPLICANTS
MR. FRANCIS J. THATCHER FOR RESPONDENTS
MS. MARY BIRD
SOLICITORS OF RECORD:
EMILY COMDR FOR APPLICANTS OTTAWA, ONTARIO
BIRD & THATCHER FOR RESPONDENTS THUNDER BAY, ONTARIO
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