Date:
20120928
Docket:
T-623-12
Citation: 2012
FC 1153
Ottawa, Ontario,
September 28, 2012
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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HENRY JOSEPH
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Applicant
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and
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PARTNER SCHIELKE AND
YEKOOCHE FIRST NATION
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
I. OVERVIEW
[1]
The
subtext of this judicial review is that the Yekooche First Nation (an Indian
Band under the Indian Act, RSC, 1985, c I-5, s 2(1)) is a troubled
community where the latest elections are a battleground pitting brother against
sister and neighbours and families against each other.
[2]
The
third place finisher, the individual Respondent, in the September 28, 2011
election for Chief used the Recall Rules to oust the validly elected Chief and
then won the by-election resulting from the recall – an election in which the
recalled Chief, the Applicant, was not entitled to run.
[3]
This
is a judicial review to declare the Recall Rules invalid and to declare the
Applicant to be Chief.
II. BACKGROUND
[4]
The
Yekooche First Nation [YFN] operates in accordance with custom election rules
and has a custom election code. The Yekooche First Nation Election Code
[Election Code] has been in place since July 1999 and has been amended once.
YFN also has a Policy and Procedures Manual which is separate from the Election
Code.
[5]
The
Election Code provides that a band council member’s position becomes vacant if
the person misses three (3) consecutive Council meetings without Council
authorization or if the person is convicted and sentenced for an
indictable offence.
8.1 A Chief or Councillor’s position on the Band
Council may become vacant if, while in office:
a) the Chief or
Councillor in [question] misses three (3) consecutive regular Council meetings
without authorization from quorum of Council; or
b) the Chief or
Councillor in question is convicted of an [indictable] offense and has been
sentenced for that offense.
Yekooche First Nation Election Code (May 16, 2000)
[6]
The
term of office for YFN Chief and councillors is two years.
[7]
While
the Election Code specifies instances of termination of office, there is
nothing that suggests any other form of termination including a recall.
[8]
The
Election Code does, however, contain a detailed provision for amendment of that
Code including a) notice to all Band Members, b) the requirement for one
(1) month for Band Members to consider the amendment, and c) a secret vote of
the “electors” if anyone challenges a proposed amendment. There are also
provisions to put in place administrative rules which were relied on by the
Respondents to attempt to legitimize the Recall Rules. The relevant Election
Code provision is:
10.1 Any proposed changes to this Code must be
presented to the Band Council which shall notify the proposed changes to all
Band Members and give them at least one month to consider the proposed changes.
Any Band [M]ember who wants to challenge those changes must do so in writing,
to the Band Council within the one month period. If a challenge is received,
then to take effect, a meeting of the electors must be held and a vote by
secret ballot must be taken where a majority of those who vote agree to the
proposed changes. Notice of this meeting must be posted in the Band Office and
at other prominent places in the community at least one week prior to the
meeting. If no challenge is received, then to take effect, the proposed changes
must be approved by the Council after the end of the one month period.
10.2 The Chief and Council may approve, by Band
Council Resolution, any procedures (including the Oath of Office and procedural
rules for meetings of Band Council), forms, and other administrative rules for
the better administration of this Code.
Yekooche First Nation Election Code (May 16, 2000)
[9]
On
July 29, 2011 a Band Council Resolution (BCR) was passed enacting the Recall
Rules [Rules]. Despite being an amendment to the election regime, these Rules
were not written into the Election Code but were incorporated into the YFN
Policy and Procedures Manual.
[10]
The
Recall Rules are set out below but their salient features are that if 40% of
those eligible to vote sign a recall petition, the elected official is removed
from office and cannot run for elected office for two scheduled election
periods – effectively four years.
1. Any registered Yekooche Band member over 18 years
of age (called an “eligible voter”) at the last election can start a petition
to recall any elected member of Council by submitting to the Electoral Officer
a signed and witnessed statement of 200 words or less detailing why, in the
opinion of the applicant, the chief or [councillor] should be recalled. This
statement must be submitted along with a non-refundable processing fee of $25
to the Yekooche Electoral Officer.
2. After receiving the submitted statement and
verifying that the applicant is an eligible voter, the Electoral Officer will
initiate, within two days, the drafting of a petition to recall an elected
official.
3. The applicant will have 20 days to collect
signatures of more than 40% of individuals who were eligible to vote in the
last Yekooche election. Volunteers when canvassing for signatures may help the
applicant and once all the signed petition sheets are submitted, the Electoral
Officer has two days to verify that enough eligible voters have signed the petition.
4. If enough valid signatures are on the petition
sheets the member of Council being recalled will cease to hold office
immediately and a by-election must be called and held within 30 days.
5. Any member of Council who ceases to hold office
as a result of the recall process cannot run for an elected position again for
a minimum of two scheduled election periods.
6. Any member of Council who is the subject of a
recall petition cannot submit a recall petition against any other current
member of council.
Yekooche First Nation, Band Council Resolution, July
28, 2011
III. FACTS
[11]
The
YFN is located 240 kilometres northwest of Prince George, British Columbia.
There are 215 registered members and 149 registered voters.
[12]
The
Recall Rules passed by the then Band Council in July 2011 were “enacted” at a
time when the vast majority of the community was on the land, away from home,
engaged in hunting, fishing and gathering.
[13]
On
September 28, 2011, in the Chief and Council election, Henry Joseph received 37
votes (virtually 50% of the 78 votes cast) while Partner Schielke came third
with 17 votes. A voter turnout of 50% is considered a high turnout
historically.
[14]
The
election was immediately challenged on the basis of alleged corrupt election
practices engaged in by the Applicant. The Yekooche First Nation Election
Appeal Board unanimously dismissed the challenge and on January 11, 2012
Henry Joseph was sworn in as Chief.
[15]
Three
days later, the Band Chief Electoral Officer received a request for a recall
petition in accordance with the Recall Rules.
[16]
Miranda
Joseph (the surname “Joseph” is extremely common in this Band) spearheaded the
petition and obtained 69 signatures which represented over 40% of the
registered voters.
[17]
On
January 20, 2012 the Band Chief Electoral Officer wrote to the YFN confirming
receipt of the recall petition, citing the more than 40% support to establish
the recall and setting of a by‑election 30 days hence.
[18]
The
Applicant says that he neither received notice of the petition nor of its results
nor did he know that the Recall Rules existed. However, he did know that a new
election was called but took no steps to challenge the recall or new election
process, claiming that he believed the by-election to be invalid.
[19]
At
the by-election held on February 16, 2012, only two people ran and Partner
Schielke won. The Applicant was not a candidate nor more importantly could he
have been a candidate in this new election under the Recall Rules. Thereafter
Partner Schielke took on the Chief’s position.
[20]
The
Applicant continued to work at the Band office until the RCMP required him to
leave on the basis that Partner Schielke was now the Chief.
[21]
The
genesis of the Recall Rules is curious. Apparently Cynthia Hill, not a member
of the Band, who worked in the Band office, decided that the YFN did not have a
sufficiently “accountable” governance system and developed the Recall Rules
modelled somewhat on the British Columbia recall process, found in the Recall
and Initiative Act, RSBC 1996, c 398. She persuaded the then Band council
to pass the BCR and to enact the Recall Rules under s 10.2 of the Election Code
as an administrative rule in the Policy and Procedures Manual.
[22]
In
the tussle which ensued around the recall, the Applicant locked out Band
administrative staff and fired Cynthia Hill. Allegations against the Applicant
have been made by the disaffected faction including allegations of misuse of
Band funds. A claim to that effect was recently filed in the British Columbia
courts.
[23]
This
judicial review is the challenge to the Recall Rules and of the by-election
resulting from the recall.
IV. ANALYSIS
[24]
The
main issue in this judicial review is whether the Recall Rules were properly
enacted. The issues are divided as follows:
·
Were
the Recall Rules validly enacted under the YFN Election Code as an amendment?
·
Are
the Recall Rules validly part of the custom election law of the YFN?
·
Does
the Recall Rules’ prohibition against running for office offend s 2(b)
of the Charter and if so, is it saved by s 1?
A. Standard of Review
[25]
The
case turns on the interpretation of the Election Code and on the existence of
YFN customary law which may be used to inform the Election Code. In Jackson v Piikani Nation, 2008 FC 130, I held that the standard of review
for jurisdiction and statutory interpretation is at the core of the Court’s
work and therefore the standard is correctness. Likewise in respect to whether
these Recall Rules reflect custom and were validly incorporated, the standard
must be correctness. Neither party has disputed the standard of review.
B. Validity of Enactment
[26]
The
first concern of the Court is whether the Recall Rules were validly enacted
pursuant to the appropriate provision in the Election Code. To suggest, as the
Respondents have, that the Recall Rules are administrative rules, and therefore
may be added to the Election Code under s 10.2, is without merit. The Recall
Rules fundamentally alter the Election Code depriving a duly elected person
(and their supporters) of the right to hold office and to even seek that office
for two election periods.
[27]
The
Applicant pointed out in argument that the effect of the Recall Rules is to
potentially frustrate the wishes of the majority. In a close race, 40% of
voters could frustrate the will of the majority by removing the duly elected
person and then putting the person “on ice” by preventing that person from
running again in a subsequent by-election and in the next election.
[28]
In
my view, at the very least, this change to the governance process must be
enacted under the amendment provisions of s 10.1 of the Election Code. A recall
seriously affects the whole structure of the Band’s election process. It is not
merely a matter of administrative detail as contemplated by s 10.2.
[29]
The
fact that there was no s 10.1 amendment is obvious from the fact that the
Recall Rules were placed in the Policy and Procedures Manual as administrative
rules and not in a revised Election Code.
[30]
The
Respondents also say that in any event s 10.1 was followed because (a) Band
Councillors were instructed to talk to Band members who were on the land; and
(b) the Recall Rules were available for review and comment at a Band Annual
General Meeting in October 2011. At no time was there any objection which would
have triggered a vote on the amendments.
[31]
Despite
the Respondents’ position, there is little, to no, evidence to substantiate the
argument that, as required by s 10.1, “all Band members” were notified. All
Band members must mean all Band members eligible to vote – 149 people. There is
little evidence that the Councillors spoke to any, much less all,
eligible Band members while they were out on the land.
[32]
In
respect of the Annual General Meeting, there is no evidence that there was
notice of the Recall Rules being considered at the meeting. The Respondents did
not even produce the formal Notice of Annual General Meeting or any agenda
indicating that the Recall Rules were available for review.
[33]
It
is even unclear when the “one month” period to consider the Recall Rules
commenced.
[34]
The
requirement for notice and a period to consider a change to the Election Code
is not some technical picayune provision. Those requirements are substantial,
leading potentially to a vote on whether the amendment should be adopted. The
will of the Band, as represented by the Code, must be respected and it was not.
C. Recall Rules as
Customary Law
[35]
The
test for what constitutes custom law is well described in Bigstone v Big
Eagle, 52 FTR 109, 1992 CarswellNat 721 (FC) at paragraph 20:
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 reestablished 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.
[36]
It
is recognized that customs are not fixed in time and may evolve in response to
changed circumstances (McLeod Lake Indian Band v Chingee, 153 FTR 257,
1998 CarswellNat 1629 (FC)). However, that does not mean that custom blows with
the current wind or that custom is ad hocery.
[37]
The
overriding consideration for the Court is whether what is advanced represents
the genuine will of the band members broadly considered. Technical
irregularities may be forgiven if a Court is satisfied that the will of the
people is reflected. It is for the Band to determine how it wishes to govern
itself.
[38]
The
Respondents’ dilemma is that it cannot establish that there was or is a custom
of recall. The genesis of the Recall Rules was not rooted in the enshrinement
of a band custom; it was a modification of the BC legislation based on a
perceived inadequacy in the existing Band governance.
[39]
The
affidavits filed in this proceeding are replete with references to seeing the
Recall Rules for the first time as a result of these proceedings and to
expressions of no prior knowledge that the YFN had recall rules or even
opportunity to consider such rules (see Affidavits of Henry Joseph, Brenda
Joseph, Matthew Joseph, William Joseph, Bessie Joseph, Sandra Beausejour and
Carol Beausejour).
[40]
Even
the Respondents’ affiants confirm that the Recall Rules had to be explained to
them. None expressed the view that recall had been a part of Band custom except
one affiant. In that single incident, the affiant had a vague memory that a
chief had been recalled in the past but there were no specifics nor
corroboration. As evidence it is of little persuasive value.
[41]
There
is no broad consensus that recall was a part of Band custom. This fact is
evident from the nature and content of the affidavits filed by both sides.
[42]
Where
an election code substantially addresses issues of misconduct, removal,
suspension or other such matters, it is said that the code “covers the field”
of removal and cannot be supplemented by evidence of other practices. The
Respondents argue that the existing Election Code does not “cover the field”
with respect to removal from office. They argue that therefore there is room
for customary practices of the Band to develop a recall regime not written in
the custom Election Code.
[43]
The
Respondents are correct that the current removal provisions (failure to attend
meetings/conviction of indictable offence) do not “cover the field” for loss of
elected position. The removal provision is sparse. It does not cover other
areas of disqualification often seen in election codes. Moreover, there is no
evidence that the Band considered these other areas and rejected them. Absent
such evidence, the Court concludes that the Band did not purport to “cover the
field” for removal.
[44]
However,
even with that limited removal provision, the Respondents’ argument that a
modern custom can arise, to alter the Election Code provision, cannot be
sustained. Such an argument flies in the face of the notion of a “custom” and
in the face of the amendment provisions of the Election Code.
[45]
The
Election Code provision on amendments is well developed. It best reflects the
will of the Band where changes to the electoral process are to be implemented.
[46]
There
is insufficient evidence of a Band custom of recall in the past and there is
insufficient evidence that there is a broad consensus that one has developed as
the Respondents have suggested.
V. CONCLUSIONS
[47]
Therefore,
there is no valid written recall provision nor is there a YFN custom of recall
that is unwritten in the Election Code. The Recall Rules were never validly
enacted and the customary practice has not been established in evidence.
[48]
It
is unnecessary and undesirable to address the Charter arguments given
the Court’s conclusions on the validity of the Recall Rules. The prohibition
against a person running for two consecutive elections is moot.
[49]
The
ongoing dispute as to Henry Joseph’s actions while Chief can be left to other
legal processes.
[50]
The
Court will issue a declaration that:
·
the
Recall Rules are invalid;
·
any
recall of Henry Joseph is unlawful and of no force and effect;
·
the
by-election of February 16, 2012 is unlawful and of no force and effect;
·
Henry
Joseph is to be reinstalled as Chief of the Yekooche First Nation with the
effective date of January 11, 2012; and
·
the
Band is to advise Aboriginal Affairs and Northern Development Canada forthwith
of the re-instatement of Chief Joseph.
[51]
The
Applicant’s costs are to be paid by the Respondents who are liable jointly and
severally for such costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
the
Recall Rules are invalid;
2.
any
recall of Henry Joseph is unlawful and of no force and effect;
3.
the
by-election of February 16, 2012 is unlawful and of no force and effect;
4.
Henry
Joseph is to be reinstalled as Chief of the Yekooche First Nation; and
5.
the
Band is to advise Aboriginal Affairs and Northern Development Canada forthwith
of the re-instatement of Chief Henry Joseph.
“Michael L. Phelan”
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