Docket: T-1964-11
Citation: 2012 FC 103
Ottawa, Ontario, January 26,
2012
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
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CHIEF VICTOR YORK AND
THE LOWER NICOLA INDIAN BAND AS REPRESENTED BY CHIEF V. YORK
AND COUNCILLOR HAROLD JOE
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Applicants
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and
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"THE COUNCIL" AS REPRESENTED
BY MOLLY TOODLICAN, LUCINDA STEWART, JOANNE LAFFERTY, JR., MARY JUNE COUTLEE,
STUART JACKSON AND ROBERT STERLING
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Respondents
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REASONS FOR ORDER AND ORDER
I. Introduction
[1]
Chief
Victor York and Councillor Harold Joe were elected to their respective offices
for three year terms by the members of The Lower Nicola Indian Band (the First
Nation) at a general election held on October 2, 2010 pursuant to its
Custom Election Rules. They were removed from their respective offices by a
Band Council Resolution at a meeting held on November 1, 2011. The
Chief and Councillor Joe say that meeting was unlawfully held. They filed, on November
30, 2011, a judicial review application in this Court challenging their
removal.
[2]
In
the interim, they seek an interlocutory injunction from this Court, by motion
dated December 22, 2011, which would enjoin the holding of a by-election
of the First Nation to fill the seats of Chief of the First Nation and that of
Councillor Joe pending a decision by this Court on the merits of their case.
The by-election is scheduled to take place on Saturday, January 28, 2012.
II. Background
[3]
The
Lower Nicola First Nation (the First Nation) is a small Band of approximately
1,100 members (800 electors) centered in and around Merritt, BC but with a
large component of members living off-reserve. It has been a deeply divided
First Nation for approximately ten years now. In the past and at present it has
been and is plagued by several court actions which, in the view of this Court,
have done nothing to heal those divisions and will continue to exacerbate them
despite pleas by judges of this Court that it resolve outstanding disputes themselves
assisted by mediation.
[4]
That
plea was reiterated several times, without success, during the hearing of this
interlocutory motion held on January 9, 2012, in Vancouver, at which
several members of the First Nation forming part of its leadership were present
and again at the videoconference hearing of January 23, 2012.
[5]
I
summarize below the main legal proceedings before this Court which evidence the
paralysis.
1. Basil v The Lower Nicola Indian
Band
This judicial
review application resulted in a decision of Madam Justice Danièle Tremblay-Lamer
reported at 2009 FC 741. It actually reviewed several decisions made by the
then Chief and Council, all of which were connected to a decision by an Elders
Investigation Committee (the EIC) established by Chief Moses after the 2007 general
election. The aim of the EIC was to investigate the receipt of funds
by those who held office during the October 2004 to 2007 term. The EIC
reported in February 2009. It found each of the investigated councillors (three in
number) to be in breach of fiduciary duties. Two of those councillors were Mary June
Coutlee and Stuart Jackson. The EIC impeached the three councillors (and
others) and declared them ineligible for future election; the EIC also directed
that a by-election be held. As will be seen, this issue has yet to be resolved
as it must.
[6]
It
is interesting to note that on March 10, 2009, the applicants in that case,
which included councillors Coutlee and Jackson, moved the Court for an interim
injunction seeking their reinstatement as councillors until a final determination
could be made by the Court. All parties consented to the motion; the
impeached councillors were allowed to function as councillors subject to
certain conditions.
[7]
Ultimately,
Justice Tremblay-Lamer quashed the EIC’s impeachment based on lack of jurisdiction
under the Custom Election Rules. However, she found that the EIC had
jurisdiction to investigate the councillors’ alleged wrongdoing, was entitled
to make the findings it did, and was allowed to report its findings to Council.
She suggested a referendum of the First Nation be held to resolve the issue of
the eligibility of the three Councillors to hold office. This never happened.
2. Chief
Moses et al v “The Council Table” – Court File T-209-10
[8]
This
was a judicial review of a February 23, 2010 Band Council Resolution
(the BCR) (passed at a Band Council meeting whose composition included some
respondents in the proceeding before me) suspending Chief Moses during
an audit of the Band’s finances. He challenged that decision in this Court.
[9]
On
consent,
the BCR was declared to be invalid and therefore quashed.
[10]
Justice
Douglas Campbell, in his order of June 4, 2010, issued a permanent
injunction which (1) prohibited the respondents in that case from acting on
the BCRs of January 24 and February 23, 2010; (2) prohibited all
parties from otherwise suspending or removing Chief Moses or any Councillor
from office for the balance of his or her term without leave of the Court; and (3)
making decisions in secret for the balance of Council’s term of office. His
order also set aside the BCR dated January 19, 2010 impeaching Aaron Sam
and Yvonne Basil (two of the then respondents).
[11]
It
is to be noted in that case that amongst the respondents were Aaron Sam and
Yvonne Basil, Councillors Joanne Lafferty, Molly Toodlican and Lucinda Seward.
Amongst the applicants was Connie Joe.
3. Basil v Lower
Nicola First Nation, 2009 FC 1039 [Docket: T-1531-09]
[12]
In
this case, Justice Robert Barnes of the Federal Court was seized of an
application for an interim injunction to prevent the holding of a by-election
to fill Band Council vacancies that arose from deemed resignations of several
Councillors following an August 13, 2009 Band Council Resolution signed
by Chief Moses and two Councillors that purported to declare ineligible several
past members of the Band Council from presenting themselves as candidates at
the scheduled by-election to be held on October 24, 2009. That decision
was subsequently endorsed by the Electoral Officer.
[13]
Justice
Barnes dismissed the application prohibiting the holding of the by-election.
He wrote as follows:
The only evidence before me of irreparable harm and balance
of convenience is that some of the Applicants will lose the opportunity to
stand for election and the others will lose the right to vote for them. This
evidence must be weighed in the context of a full Band election to be held in
2010 and a right of appeal from the impugned decision to a council of Elders.
In Sweetgrass First Nation v. Gollan, 2006 FC 778 (CanLII),
2006 FC 778, 294 F.T.R. 119, I made the point that the Court should be
cautious about treading unduly into the political affairs of a First Nations
band. These Applicants have not exhausted their internal rights to
challenge this decision through the council of Elders. While there
may be some inconvenience associated with a process of appeal that takes
place after the election, it is, nevertheless, a process that should not be
usurped collaterally by seeking an interim injunction through the Court. If
an appeal is successful the by-election can be re-held. It seems to
me that the circumstances of this case are far less compelling than those
addressed by Justice Edmond Blanchard in Gopher v. Saulteaux First Nation,
2005 FC 481 (CanLII),
2005 FC 481, 138 A.C.W.S. (3d) 989, and where an interim injunction was
similarly refused.
[Emphasis added]
4. Lower Nicola
Indian Band v Joe et al [Docket T-2128-11] 2011 FC 147 dated
February 8, 2011
[14]
This
is a decision by Justice Simon Noël dated February 8, 2011 in respect of
an application before him for interim relief pending the hearing and
determination of a judicial review application of the December 1, 2010 decision
of the Lower Nicola Indian Band Elders Council deciding election appeals
from the First Nation’s October 2, 2010 election at which Chief Victor
York and councillor Harold Joe and the Respondents were elected.
[15]
The
Elders Council decreed that the elections of Mary June Coutlee, Stuart Jackson
and Robert Sterling (the elected councillors) vacant on the ground
of their being not eligible to run as candidates for office and had appointed
Charlene Joe, Marcy Garcia and David Clayton who had been defeated (the named
Councillors) retroactively as councillors.
[16]
The
interim order sought by the First Nation was an order staying or suspending the
operation of the decision made by the Elders Council pending the determination
of the underlying judicial review application which argued the Elders Council’s
decision was contrary to the First Nation’s Customs Election Rules.
To preserve the status quo of the October 2, 2010 election, the First
Nation also sought an order prohibiting the named Councillors from holding
themselves out and acting as Councillors and thereby “declaring” that the other
respondents, Mary June Coutlee, Stuart Jackson and Robert Sterling Jr. (the
elected Councillors) are or shall continue to sit as Councillors pending the
determination of the application. Justice Noël issued an interim order but
not the one requested by the First Nation.
[17]
Justice
Noël noted the First Nation’s Band Council made up of the Chief and seven (7)
councillors “is in a power struggle” and three (3) Councillors’ seats
are at play. He noted that four (4) of the seven (7) seats on Council and
the Chief’s office are not in question. He further noted that the
underlying application for judicial review “stems from the political uncertainly
that has nearly paralyzed the governance structures of the First Nation.”
He observed that “what is at play in the present litigation is the balance
of power to be exercised at Council meetings. He referred to the Basil
decision “as background information on this struggle”.
[18]
Justice
Noël stated the underlying judicial review application was an attack on the
Elders Council’s decision because it was alleged that there was a reasonable
apprehension of bias in its composition in that some of the members of the
Elders Council who made the appeals decision were family related to some of the
elected Councillors or named Councillors or had sat on the EIC itself.
[19]
Examining
the three-part conjunctive test which must be established by those seeking the
injunction, Justice Noël wrote on the first factor of the existence of a
serious issue:
There is no doubt that serious issues
arise from the present litigation. Governance of the LNIB and transparency are
at pay. Being divided as the respondents are and also the Band Council, the
interest of the Band as a whole is not adequately served with the
preservation of the status quo. Indeed, the status quo, as is
indicated in the parties’ representations of the facts, is one of tension and
uncertainty as to who holds valid office.
The underlying application raises
serious issues in regards to, among other issues, the scope of the Elders
Council’s powers as well as the validity of the October 2, 2010 election
results. This aspect of the test is thus clearly met.
[Emphasis added]
[20]
On
the second factor of irreparable harm, he stated:
Harm clearly arises from this situation: as Joanne Lafferty’s
affidavit indicates, at para 45, several important matters of governance and
negotiations are to be monitored and decided upon by the LNIB Council. Among
these issues are negotiations and activities of a commercial nature that are
essential to the interests of the LNIB.
…
Irreparable harm is not qualified as
“irreparable” because of the scope or importance of the harm caused.
Rather, what must be shown is that, but for the injunctive relief sought,
the harm caused could not later be compensated through damages (White v
E.B.F. Manufacturing Ltd., 2001 FCT 1133 (FC), at para 13). Madam
Justice Tremblay-Lamer has noted the particular implications of the loss of
elected office and how it differs to the normal employment context in Gabriel,
above. This was cited approvingly by Mr. Justice Kelen in Prince,
above, in the context of the dismissal of Councillors, a situation not unlike
the case at bar. Justice Kelen noted in all clarity at paragraph 32 that:
Removal from this office means that the
applicants cannot speak out on behalf of those policies for which they were
elected, either at Council meetings or within the community at large. Such a
situation not only irreparably harms not only the applicants themselves, but
also those individuals who elected them as their representatives (…)
However, in this case, the Court
distinguishes the scope of Justice Kelen’s dicta, as without proper nuance,
the present Interim application may skew the underlying application. Here,
the irreparable harm is not to be interpreted as being personal to any named
person or the Council in particular. Rather, it is common to all Parties, but
more importantly, it is the members of the LNIB who suffer irreparable harm by
having such conflict and uncertainly in their power structures.
[Emphasis added]
[21]
On
the third issue of balance of convenience, he was of the view any order
he issued must not favour the interest of one party or another. He stressed
again that “an untenable political situation has befallen the Council”
and that an equitable solution must be reached and in the case before him the
aim is to remedy the potential prejudice which would occur if the validity of
any member of Council affected the important decisions to be made by that
institution.
[22]
Justice
Noël stressed that an interim injunction required the Court to exercise its
equitable jurisdiction and that in the unique circumstances before him the remedy
the Court crafted had to be fair for all concerned. He underlined again the
important matters that the Chief and Council had to deal with in the near
future and that those matters went beyond the interest of Council members. He
repeated again at paragraph 36 of his reasons it was the First Nation “which
is being irreparably harmed by the loss of certainty in the authority and
legitimacy of Council decisions relating to both its internal members and staff
and to its external dealings with governments and business.” [Emphasis
added] It was that uncertainty and paralysis in the government structures of
the First Nation which he tried to remedy.
[23]
Justice
Noël also noted that the two factions i.e. the elected Councillors and the
named Councillors derived their power from legitimate sources (the elected
Councillors from the election notwithstanding their eligibility was contested
and the named Councillors by appointment of the Elders Council). “They [the
elected Councillors] are presumed legitimate until the matter at hand is
resolved by way of judicial review.” [Emphasis added]
[24]
Before
setting out his equitable solution he wrote the following at paragraph 32:
While it remains clear that the Court should thread
cautiously in intervening unduly in the political affairs of First Nations (Sweetgrass
First Nation v Gollan, 2006 FC 778 (CanLII),
2006 FC 778), the remedies sought on an interim basis clearly call for a
direct intervention in a difficult political situation. In light of the best
interests of LNIB membership pending determination of the application, the
Court orders the following on an interim basis. This Order sufficiently
mitigates the “balance of convenience” aspect of the tripartite test.
[Emphasis added]
[25]
That
solution consisted in creating a two tier decision making structure. Certain
decisions would be taken by the Council as it was elected on October 2, 2010,
but with a limited right of participation by the three Councillors appointed by
the Elder Council. Those matters are described as day-to-day administrative
matters, the provision of essential services, ordinary accounts payable,
management of administrative staff, urgent acts to safeguard the rights of the
membership, subscribing of insurance and like matters.
[26]
In
respect of important matters which involved long term interests of the First
Nation spelled out at paragraph 35 of his reasons a “Special Council” was
created in which decisions are to be made at duly constituted meetings of
Chief and Council composed of both the elected and named Councillors.
[27]
Justice
Noël had this to say about Chief Victor’s Office:
It is clear that Chief York will need to fully assume the
leadership responsibilities entrusted to him by the LNIB membership, who
undoubtedly expect no less than an effective and proactive resolution of the
present issues. The Lower Nicola Indian Band – Chief and Council Policy and
Guidelines clearly recognize leadership functions to the Chief, for
example to convene Council, act as spokesperson, act in a supervisory capacity
to other Council member’s activities, as well as making decisions as necessary
for good government.
Respect for Chief York’s functions and
role is mandatory.
He will have to manoeuvre a difficult political situation. However, his Office
is not debated or at issue in the present application for judicial review. As
such, his authority and functions are not contested, as are the three elected
“Councillors” and three named “Councillors” hypothetical functions are. As
such, his legitimacy is manifest, but needs to be exercised with proper
consideration of the LNIB’s membership’s interests. These interests go above
and beyond the resolution of the present matter. Surely, no one will be
satisfied by the present Order and its consequences. However, the Order
transcends the Parties wishes in order to fully address the needs of the LNIB
membership in terms of good governance and transparency during the resolution
of the application.
[Emphasis added]
5. Lower Nicola
Indian Band v Joe [Dockets T-2127-10 and T-2128-10] 2011 FC 1220
[28]
It
was on September 23, 2011 that Justice John O’Keefe of this Court
decided the merits of two underlying judicial review applications which had
been consolidated into one. Court file T-2128-10 was the judicial review
application which underpinned Justice Noël’s interim order.
[29]
The
decision which Justice O’Keefe had to make was whether the Elders’ Council’s
appeals decision in respect of the challenge to the election of some of the
Councillors elected on October 2, 2010 was properly reached at law. He
decided that the Elders’ Council’s appeals decision was not lawful because some
of its members who participated in the decision raised a reasonable apprehension
of bias they could not fairly decide the appeals on account of family
relationship or previous participation in the 2009 EIC.
[30]
In
the result, Justice O’Keefe quashed the Elders’ Council’s December 1, 2010
decision which as noted had found three elected Councillors not eligible to
stand for election. He referred back to a new Elders’ Council for
determination the allegations in the election petition that he labelled as the
“Joe Appeal”. In other words, the eligibility of the three elected Councillors
is still to be decided by a new Elders’ Council panel selected in accordance to
the First Nation’s Council Election Rules, i.e. through a draw. In the
meantime the contested Councillors have exercised their offices sitting as
Councillors.
[31]
On
October 25, 2011, Justice O’Keefe provided lengthy reasons for his
September 23, 2011 judgment. They are reported at 2011 FC 1220. Justice
O’Keefe’s decision was not appealed to the Federal Court of Appeal. The
information which this Court has is that the Elders’ Council directed to be
formed by Justice O’Keefe has yet to be constituted.
III. Other Federal Court Applications
[32]
If
this litany of legal proceedings was not sufficient, the list is not complete.
Other proceedings have been commenced. I note Court file T-1731-11 filed on
October 25, 2011 by Chief Victor referring to a September 28, 2011
meeting of the First Nation’s Council at which he was suspended for a period of
30 days.
IV. Is the test for the grant of an
interlocutory injunction met
[33]
Counsel
for the Respondents concedes because of its low threshold, the existence of one
or more serious issue to be tried dealing with the proper interpretation of the
Band Custom Rules and, in particular, the ability of the Council to remove the
Chief and the validity of the meetings called by the Respondents at which the
three contested Councillors participated.
[34]
In
terms of irreparable harm, counsel for the Respondents argued there was
no evidence before me that either Chief York or Councillor Joe would suffer
irreparable harm if the by-election was held. In particular, he argued that
both individuals could have been nominated and, in any event, this judicial
review challenging their removal will continue and if they succeed, will have
their remedy of regaining office.
[35]
I
do not agree for the following reasons that the notion of “irreparable harm”
can be narrowly drawn as counsel for the Respondents seeks to do:
a. The substance
of the dispute within this First Nation is in fact a continuation of the
challenges surrounding the validity of the election of the Councillors whose
eligibility to run is still being disputed. Justice Noël in his February 8,
2011 decision wrote eloquently about the nature of the struggle with the First
Nation and the irreparable harm which each member of the First Nation will
suffer by having such conflict and uncertainty in their power structure,
particularly, the tension and uncertainty as to who holds valid office. That
ambiguity and detriment will be further exacerbated if the by-election to fill
their seats is held and if Chief Victor York and Councillor Joe are successful
in their judicial review.
b.
Justice
Noël’s analysis in Lower Nicola Indian Band v Joe is directly
transferable to the situation facing this Court. See also Duncan v Behdzi Ahda
First Nation 2002 FCT 581 (Duncan); Francis v Mohawks of Akwesasne Band of Indians [1993] FCJ
No 369 (Francis); and Martselos
v Salt River First Nation #195, [2007] FCJ No 832 (Martselos), particularly at
paragraph 15 on the concept of irreparable harm suffered by a Chief when
removed.
[36]
In
my view, the balance of convenience favours the Applicants. As stated in Duncan relying on Francis
the Court must take into account the public interest which must be assessed by
considering the need and the best interest of the First Nation (see Martselos,
Justice Blanchard’s paragraphs m to p).
[37]
In
Gopher
v Saulteaux First Nation, 2005 FC 481 Justice Edmond Blanchard drew
upon Francis for the proposition that where the evidence shows that it
would be “immeasurably worse” for an election to be held and subsequently be
declared invalid than to postpone it, it should be enjoined to maintain the
status quo. That is the situation here.
[38]
I
close by stating that in reaching this decision to suspend the holding of the
by-election I am very aware of the charge aimed at Chief Victor that for over a
year now he has not called a meeting of Council and has not participated in
such meetings. In other words, he has been an absentee Chief. The evidence on
this point is conflicting. Chief York was not cross-examined on his
affidavit. He paints a somewhat different picture. Moreover, I refused Chief
York the ability to reply to the affidavit of Joanne Lafferty who was
cross-examined. He should have a full opportunity to tell his side of the
facts when the merits of the judicial review applications are decided.
[39]
In
the end what troubles this Court is the inability or unwillingness of the
parties to compromise as they had done in the past. The case in which Chief
Moses was involved is one example. Another is the consent in the Basil
case to an interim injunction moved by some of the Respondents who were
reinstated as Councillors pending decision on the merits. The case before me
shows the power struggle is deteriorating for lack of willingness to reach
accommodations which is in the highest interest of the First Nation as a
whole. The interim injunction now ordered by this Court is by far not an ideal
result but, in the circumstances, is the best of a bad situation.
ORDER
THIS
COURT ORDERS that:
1.
The
by-election to fill the Offices of Chief of the First Nation held by Chief York
and the Office of Councillor held by Harold Joe is stayed pending the
determination of the underlying judicial review application.
2.
The
removal of Chief Victor York and Councillor Joe is likewise stayed.
3.
The
hearing of the underlying judicial review application shall be scheduled for Vancouver, B.C. at the
earliest possible available date to be determined by the Judicial Administrator
(likely in mid-May 2012).
4.
The
Court will hold a telephone conference call with the parties on Friday,
February 3, 2012 to discuss compliance with Rules 306, 307 and 308 of the Federal Courts
Rules (SOR/98-106).
5.
This
proceeding shall be continued as a specially managed proceeding and presided by
a judge and/or prothonotary of this Court selected by the Chief Justice.
6.
During
the interim period, in matters concerning such as the day-to-day administration
of the First Nation as spelled out at paragraph 25 of these reasons shall be decided
by the Chief and Council, as elected on October 2, 2010 and in accordance with
the Lower Nicola Indian Band – Chief and Council Policy and Guidelines. For
other decisions, Chief and Council shall operate by consensus.
7.
Chief
York is entitled to his costs related to his application for the interlocutory
injunction.
“François
Lemieux”
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