Date: 20101209
Docket: T-1762-09
Citation: 2010 FC 1266
Ottawa,
Ontario, December 9, 2010
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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SONYA OAKES AND JOE DANIELS
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Applicants
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and
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CHIEF ALICE PAHTAYKEN,
BRANDY BUFFALO CALF,
ELVIE STONECHILD,
CHRISTINE MOSQUITO,
DENNIS CALLIHOO, ELEANORE SUNCHILD
AND DARREN WINEGARDEN
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
parties to this application are all members of the Nekaneet First Nation
(Nekaneet) situated near Maple Creek, Saskatchewan.
[2]
The
Respondents, Chief Alice Pahtayken, Brandy Buffalo Calf, Elvie Stonechild, and
Christine Mosquito are the elected leaders of Nekaneet. The Respondents, Dennis
Callihoo, Eleanore Sunchild and Darren Winegarden are appointees to the
Nekaneet Appeal Body established under the Nekaneet Constitution. The Nekaneet
Appeal Body is charged with the responsibility for resolving conflicts or
violations relating to the laws of Nekaneet.
[3]
The
Applicants, Sonya Oakes and Joe Daniels, seek declaratory and other prerogative
relief with a view to compelling the Respondents to proceed with a band election
in accordance with the terms of the Nekaneet Constitution.
[4]
The
underlying history of this governance dispute is described in detail in the
reasons of my colleague, Justice James Russell in Pahtayken et al. v. Oakes
et al., 2009 FC 134 and that history need not be repeated here. It is
sufficient for present purposes to observe that Nekaneet continues to be a
divided community with two factions vying for control of the Band Council.
[5]
The
Applicants argue that the Nekaneet Constitution requires a band election in the
event of a failure by the Chief and Council to appoint the three members of the
Nekaneet Appeal Body within 60 days of a band election, provided that 35% of
the eligible voters of Nekaneet sign a declaration to that effect. The Applicants
contend that the necessary conditions for an election have been established, but
the Chief and Council have failed in their constitutional duty to convene one.
[6]
The
Chief and Band Councillors maintain that the prerequisites for proceeding with
a band election have not been met and that they are lawfully entitled to serve
out their electoral mandates until the next band election in March, 2011.
I. Background
[7]
Following
a band election on March 28, 2008 Alice Pahtayken was elected as Chief and
Brandy Buffalo Calf, Elvie Stonechild, and Christine Mosquito were elected as
Councillors of Nekaneet with terms of office running until March, 2011. It was the
2008 election that was at the centre of the previous application to this Court
which was resolved by Justice Russell in favour of the incumbent Chief and
Councillors. Needless to say, this earlier litigation was substantially
disruptive to the business of Nekaneet. Nevertheless, the Chief and Council
began the process of appointing three members to the Nekaneet Appeal Body and
on May 26, 2008 three Band Council Resolutions were passed appointing Dennis
Callihoo, Darren Winegarden and Eleanor Sunchild as members of the Appeal Body.
[8]
According
to the Affidavit of Alice Pahtayken, each of the above appointees had provided
her with their verbal acceptances before May 26, 2008 but it was not until some
time in June that their formal written acknowledgements were requested.
[9]
The
record indicates that all three of the appointees to the Appeal Body did sign
and return their acceptances. Mr. Callihoo responded promptly but Ms. Sunchild
and Mr. Winegarden took several months to do so.
[10]
According
to the affidavit of Joe Daniels, on April 24, 2009 he delivered a declaration
to the Band Council signed by 107 members of Nekaneet calling for a new
election. The declaration cited Article 8 of the Nekaneet Constitution, and stated
that the “Nekaneet Government has violated the Nekaneet Constitution or a law
of Nekaneet by causing no members to be appointed to the Nekaneet Appeal Body
and the Nekaneet Government is therefore removed from office”.
[11]
When
the Band Council refused to accede to this demand for an election the
Applicants brought this application to compel that outcome.
II. Issues
[12]
Whether,
on the facts presented, the Nekaneet Constitution requires the holding of a
band election?
[13]
Having
regard to the pending band election in March, 2011 should the Court exercise
its discretion in favour of the Applicants?
III. Analysis
[14]
Neither
party addressed the issue of the Court’s jurisdiction to deal with this matter
but I accept that it falls within the scope of s. 18 of the Federal Courts
Act, R.S., 1985, c. F-7: see Sparvier v.
Cowessess Indian Band, [1993] 3 F.C. 142, 63 F.T.R. 242.
[15]
This
application turns on the interpretation of provisions of the Nekaneet
Constitution, issues which are subject to review on the standard of
correctness.
[16]
The
principal constitutional provisions that apply to this case are Articles 8.03,
8.04 and 8.07 which respectively state:
8.03 A member of the Nekaneet Appeal Body
is appointed by written resolution of the then current Nekaneet Government
setting out the term and the manner of compensation and such appointment shall
become effective on the day and date that the Nekaneet Appeal Body member
accepts such appointment in writing.
8.04 The appointment of the initial
Nekaneet Appeal Body shall be made no later than sixty (60) days from the date
of the Nekaneet 2008 Election.
[…]
8.07 In the event the Nekaneet Government
should fail to appoint or fill vacancies in the Nekaneet Appeal Body in
accordance with this Nekaneet Constitution or the laws of Nekaneet, resulting
in there being no Nekaneet Appeal Body, then the Nekaneet Government shall
cease to hold office the day and date that a declaration is signed by a minimum
of 35% of the eligible voters of Nekaneet stating:
(a) The Nekaneet Government has violated
this Nekaneet Constitution or a law of Nekaneet by causing no members to be
appointed to the Nekaneet Appeal Body and the Nekaneet Government is therefore
removed from office;
(b) A General Election is called;
(c) The date of the General Election,
the date of the nomination meeting and the naming the Chief Electoral Officer
and the Deputy Electoral Officer for the General Election;
In such event, the then Nekaneet
Government shall cease to hold office effective on the date such declaration,
or a copy thereof is delivered to the then Chief or to at least two of the then
Councillors, and the General Election shall proceed under the charge of the
Chief Electoral Officer who shall have the full power to run the General
Election and the fees and expenses associated with such General Election shall
be a debt due and payable by Nekaneet.
[17]
The
Applicants argue that the constitutional prerequisites for the holding of a
band election have been established; the Respondents say that they have not.
At the centre of the controversy is whether there has been a failure by the
Band Council to appoint the Appeal Body in violation of the Nekaneet
Constitution thereby giving rise to a right of election upon the demand of at
least 35% of the eligible voters of Nekaneet.
[18]
The
evidence establishes that Band Council made a decision within 60 days of the
2008 election to appoint the members of the Nekaneet Appeal Body but the
written acceptances of those members were only later received. The Applicants
contend that an appointment to the Nekaneet Appeal Body is not made until all
of the signed acceptances have been tendered by the appointees and that this
must be done within 60 days of a band election. The Respondents say that the
required appointments are made at the date of the appointment decision by Band
Council in the form of appropriate resolutions.
[19]
The
interpretation of provisions of this type is informed by their intended purpose
and with an eye to the preservation of democratic principles and outcomes: see
Samson Indian Band v. Bruno, 2006 FCA 249, 352 N.R. 119 at para. 43.
[20]
Some
constitutional provisions are, of course, fundamental to Band governance and
must be strictly observed, sometimes to the point of nullifying band elections
or other band decisions. Other provisions are considered to be directory such
that their non-observance will not be fatal to the processes to which they
pertain. The electoral will of the majority is, after all, not a thing to be
readily ignored on the basis of real or perceived technical procedural lapses.
[21]
I
accept Mr. Stodalka’s point that the Nekaneet Constitution places great
importance on the work of the Appeal Body. It is in recognition of that
importance that Article 8.07 provides a mechanism for compelling an election
where the Band Council fails to appoint members to the Appeal Body. It is,
however, the failure by Band Council to fulfill its constitutional obligation
that is the triggering event under this provision and not the failure of one or
more of the appointees to formally acknowledge their appointment. Article 8.03
makes a clear distinction between the making of an appointment to the Appeal
Body by the Band Council and the appointment later taking effect upon written
acceptance from the appointee. It could not have been the intent of the
drafters of the Nekaneet Constitution that the results of a band election could
be undermined because a willing appointee to the Appeal Body neglected to sign
and return an acceptance within 60 days of the election. In my view, the
obvious intent of the drafters of the Nekaneet Constitution was to make Article
8.07 effective where Band Council neglected its constitutional obligation to
make these appointments. This interpretation is also consistent with Article
8.01 which stipulates that the “Nekaneet Government shall forthwith appoint the
Nekaneet Appeal Body”. This language is inconsistent with the Applicants’
argument that the subsequent failure by an appointee to confirm the appointment
could trigger the drastic relief provided for in Article 8.07. The fact that
an appointment is not effective until a written acceptance is received does not
mean that, for other purposes, the appointment has not been made.
[22]
Even
if I am wrong in this interpretation, there is another reason why this
application must fail. Article 8.07 is only effective where there has been a
failure to appoint “resulting in there being no Nekaneet Appeal Body”. It is
only where the Nekaneet Appeal Body has not been appointed that the further
prerequisite for presenting a membership declaration arises. It is clear on
the evidence that all of the members of the Appeal Body had perfected their
appointments before the membership declaration was presented to the Band
Council and before any matter had arisen requiring the Appeal Body to act. It is
inconceivable to me that Article 8.07 was intended to confer a right of
election in circumstances where no actual prejudice arose from the delay in
giving effect to the appointments. Because the Appeal Body was properly
constituted before the declaration of electors was presented to the Band
Council this additional prerequisite to the application of Article 8.07 was not
met. Furthermore, even if the failure by two of these appointees to return
their signed acceptances on a timely basis was a technical lapse it would not justify
the consequences urged upon the Court by the Applicants: see Sweetgrass
First Nation v. Gollan, 2006 FC 778, 294 F.T.R. 119 at paras. 29-30.
[23]
Finally,
even if I had accepted all of the Applicants’ interpretation arguments, this is
not a situation where prerogative relief is warranted. There will be a band
election in the ordinary course in March of 2011. There are a number of
procedural requirements for convening a band election including a Call for
Election and the convening of a nomination meeting. Under Article 6.01 of the
Nekaneet Constitution, the holding of a nomination meeting shall not be less
than 28 days before the election. Presumably a Court ordered election could not
proceed before sometime in February, 2011.
[24]
It
seems to me that no practical purpose would be served by ordering a new
election at this late stage in the normal electoral cycle. Indeed the place for
resolving the political differences that have divided the Nekaneet community is
more properly at the ballot box than in the courtroom. If the Applicants have
the support of a majority of the members of Nekaneet then they presumably will
prevail in the upcoming election. If they do not have that support, it would be
a good opportunity for them and their supporters to respect the political will
of the community and to let the Nekaneet Band Council get on with its important
work in serving their constituents.
[25]
In
the result, this application is dismissed. The Respondents are entitled to
their costs which I fix in the amount of $2,500.00 inclusive of disbursements.
This award of costs is payable jointly and severally by the Applicants.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application is dismissed with costs payable
jointly and severally by the Applicants to the Respondents in the amount of $2,500.00.
“ R. L. Barnes ”
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