Date: 20091207
Docket: T-1868-07
T-2054-07
Citation: 2009 FC 1250
Ottawa, Ontario, December 7,
2009
PRESENT: The Honourable Mr. Justice Barnes
Docket: T-1868-07
BETWEEN:
ELTON MITCHELL DIABO
Applicant
and
WHITESAND
FIRST NATION
BAND
COUNCIL,
CHIEF
ALLAN GUSTAFSON
AND
COUNCILLORS
ANGELA
NODIN,
RENE
WILSON SR.,
NORMAN
MATINET,
JAMES
NAYANOOKEESIC,
DOUGLAS
SINOWAY JR.
and FRANCIS NODIN
Respondents
Docket: T-2054-07
BETWEEN:
CHIEF
ALLAN GUSTAFSON,
as
representative of the
band
council of
Whitesand
First Nation, and
WHITESAND FIRST NATION
Applicants
and
ELTON
MITCHELL DIABO,
and
HER MAJESTY
THE
QUEEN IN RIGHT OF CANADA
as
represented by
THE
ATTORNEY GENERAL OF CANADA
and
THE MINISTER OF INDIAN &
NORTHERN AFFAIRS CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In
the first of these proceedings (docket number T-1868-07), Elton Mitchell Diabo
seeks declaratory and other prerogative relief in connection with a decision
taken by the Respondents to remove him from the list of members of the
Whitesand First Nation (Whitesand).
[2]
In
the corresponding proceeding (docket number T-2054-07), Whitesand and
Chief Allan Gustafson seek declaratory relief to invalidate earlier
Band Council Resolutions (BCR) which purportedly granted membership status in
Whitesand to Mr. Diabo. Because these
proceedings have a common factual history
and involve overlapping legal issues, they were consolidated by Order of
Prothonotary Roza Aronovitch issued on December 11, 2008.
a.
Background
[3]
The
precise historical background to this dispute is difficult to unravel from the
records produced by the parties. This can be explained, in part, by the
passage of time but, in some measure, it is the result of poor or absent record
keeping by Whitesand. What is clear from the documentary and affidavit
evidence produced is that Mr. Diabo sought to become a member of Whitesand
in 1995 on the strength of his 1992 marriage to a member of Whitesand, Esther Rita
Lachinette-Diabo. The couple have two children, the older of whom is a member
of Whitesand. Their younger child is a member of the Mohawks of Kahnawake,
which is the First Nation of Mr. Diabo’s birth.
[4]
The
Respondents’ record contains a BCR dated August 4, 1995 signed by the then
Chief and two Band Councillors by which Mr. Diabo was accepted into membership
of Whitesand. This evidence is confirmed by a BCR of the Mohawk Council of
Kahnawake dated September 18, 1995 noting Mr. Diabo’s acceptance as a
member of Whitesand and removing him from its membership registry.
Mr. Diabo’s affidavit states that in 2001 he was asked to resubmit an
application for membership to Whitesand ostensibly because the earlier records
of the transfer of membership from the Mohawks of Kahnawake had been misplaced.
[5]
Mr. Diabo’s
membership in Whitesand is again reflected in a BCR dated November 20, 2004
signed by the then Chief and three Band Councillors. That BCR stated in part:
WHEREAS: Elton
Mitchell Diabo was accepted by the Whitesand First Nation as a member effective
August 4, 1995; and
WHEREAS: the Chief and
Council of the Whitesand First Nation executed a Band Council Resolution dated
August 4, 1995 confirming acceptance; and
WHEREAS: Elton Mitchell
Diabo was subsequently released by the Mohawks of Kahnawake; and
WHEREAS: the documentation
was received by the Membership Administrator of the Whitesand First Nation in
order to process the membership transfer with the Indian Register maintained by
the Department of Indian Affairs & Northern Development; and
WHEREAS: the transfer
remains incomplete due to the misplacement of documentation;
THEREFORE BE IT RESOLVED THAT:
The Chief & Council of the Whitesand
First Nation hereby reaffirm the acceptance of Elton Mitchell Diabo
as a member of the Whitesand First Nation; and
FURTHER BE IT RESOLVED THAT:
The Chief and Council of the Whitesand
First Nation request the Department of Indian Affairs & Northern
Development to execute the transfer in the Indian Register forthwith.
APPROVED AND PASSED BY THE CHIEF AND COUNCIL
OF WHITESAND FIRST NATION ON THE 20TH DAY OF NOVEMBER, 2004 AT THUNDER BAY IN THE PROVINCE OF ONTARIO.
[6]
On
June 27, 2005, Mr. Diabo received a Certificate of Indian Status from the
Department of Indian and Northern Affairs Canada identifying him as a member of
Whitesand.
[7]
In
2005, Mr. Diabo ran for election as Chief of Whitesand and lost to Chief
Gustafson. In May 2006, he was named to a committee mandated to pursue a
settlement with Ontario Hydro for losses occasioned by flooding in the
Whitesand traditional territory. Mr. Diabo’s affidavit states that he was
removed from that committee by a decision of the Band Council because of his
opposition to the proposed terms of settlement with Ontario Hydro.
[8]
On
August 21, 2007, Mr. Diabo wrote to Chief Gustafson and the Band Council
expressing non-confidence with respect to their handling of a number of issues
including the negotiations with Ontario Hydro. It is apparent from the
evidence that Mr. Diabo was positioning himself to seek election to Band Council
in an upcoming election scheduled for October 2007.
[9]
In
late August 2007 Chief Gustafson and the Band Council received two letters
signed by three members of Whitesand questioning Mr. Diabo’s membership
status. According to Chief Gustafson’s affidavit, this led to a
discussion at a meeting of the Band Council on August 28, 2007 during
which it was “decided to investigate Mr. Diabo’s transfer…”. That affidavit
further states that “[if] the transfer was not done properly the Band Council’s
decision was to have Mr. Diabo’s name taken off the Band List”. Chief
Gustafson’s affidavit does not state exactly what was done to investigate
Mr. Diabo’s membership, but it does refer to a Band Council meeting on
September 9, 2007 “where it was decided that Mr. Diabo should be removed
from the Band List”. The justification for that decision was, in part, said to
be the absence of meeting minutes to support the earlier decision by Band
Council to confer membership on Mr. Diabo and because of a supposed historical
freeze on membership transfers. Mr. Diabo’s evidence is uncontradicted
that he was given no notice of this meeting of the Band Council nor provided
with an opportunity to participate in the process leading up to the decision to
remove him as a member of Whitesand.
[10]
The
BCR dated September 24, 2007 which documents Mr. Diabo’s removal as a band
member states:
WHEREAS: the Chief and
Council are the elected representatives of the Whitesand First Nation; and
WHEREAS: the Whitesand
First Nation has a Band Custom Membership Code entitled The Membership Code
of the Anishinabek of the Whitesand Indian Band (“Code”) that governs who
may be a member and on the band list for the Whitesand First Nation and this
Code has been passed and accepted by the community and remains in force as of
today and is recognized by Indian and Northern Affairs Canada; and
WHEREAS: the Chief and
Council have been requested to review the status of Elton Mitchell Diabo’s,
born on August 25, 1961, membership; and
WHEREAS: Elton Mitchell
Diabo is not entitled to be a member in accordance with the aforementioned
Code; and
WHEREAS: the previous
Chiefs and Councils were acting outside their jurisdiction by passing Band
Council Resolutions supporting the inclusion of Elton Mitchell Diabo to the
Band List without complying with the community’s Code; and
WHEREAS: the Code provides
in section 8 that “the band may at any time add to or delete from the band
list maintained by it the name of any person who, according to the rules of the
band, is entitled or not entitled, as the case may be, to have his name
included in that list”.
THEREFORE BE IT RESOLVED THAT:
The Chief and Council revoke any previous Band Council Resolutions supporting
Elton Mitchell Diabo’s membership and addition to the Band List.
BE IT FURTHER RESOLVED THAT: The
Chief and Council declare that Elton Mitchell Diabo is to be removed from the
band list pursuant to section 8 of the Code, and direct Indian and Northern
Affairs Canada to remove his name from the band list forthwith.
BE IT FURTHER RESOLVED THAT: the Chief
and Council declare that Elton Mitchell Diabo is not to have any involvement
concerning the affairs of the Whitesand First Nation and its membership.
[11]
Mr. Diabo
was only notified of the Band Council’s decision to revoke his membership when
the BCR was sent to him on September 24, 2007. It is this decision that
is the subject of Mr. Diabo’s application for relief. The Respondents’
competing claim to prerogative relief concerns the validity of the 1995 BCR that
conferred membership on Mr. Diabo. The Respondents contend that the
unlawful or ultra vires conferral of membership could not form the basis
of a demand for fairness when that status was later revoked.
II. Issue
[12]
Did
the Respondents breach the duty of fairness in the process followed to revoke
Mr. Diabo’s membership in Whitesand and, if so, should relief be denied to
him on the basis that he has an adequate alternative remedy?
III. Analysis
[13]
No
issue is raised in this proceeding with respect to the Court’s jurisdiction
over this dispute and it is clear that the Court has the legal authority to
resolve it: see Ermineskin v. Ermineskin Band Council (1995), 96 F.T.R.
181, 55 A.C.W.S. (3d) 888 (F.C.T.D.).
[14]
It
is apparent that the Band Council made its decision to remove Mr. Diabo as
a member of Whitesand by ostensibly acting under the authority of Article 8.1
of the Membership Code of the Anishinabek of the Whitesand Indian Band
(Membership Code). Article 8.1 of the Membership Code states:
8.1 The band may at any time add to
or delete from the band list maintained by it the name of any person who,
according to the rules of the band, is entitled or not entitled, as the case
may be, to have his name included in that list.
[15]
The
Respondents rely upon a BCR dated May 6, 1987 confirming the apparent
ratification of the Membership Code by the band on an unspecified earlier date
and a confirmation letter dated September 1, 1987 from the Minister of Indian
and Northern Affairs Canada.
[16]
Mr. Diabo
contends that the Membership Code was never properly ratified by the band and
the affidavit of former Chief Ernest Wanakamik speaks to that issue. Mr. Diabo’s
affidavit asserts that the Membership Code was never before used by the band to
determine membership issues and he points to another constitutional document
titled The Constitution of Whitesand Reservation (Constitution) which he
believes establishes the conditions for holding band membership and the
processes for acquiring or losing it. The Respondents dispute the validity of
the Constitution despite the existence of a letter from Whitesand legal counsel
at the time, Michael McDonald, to the Department of Indian Affairs and Northern
Development (as it was then called) stating that the Constitution “has been
filed, accepted and approved by the Department” and “complies fully with the Indian
Act (Canada) in all respects”.
[17]
Needless
to say, the Membership Code and the Constitution are not compatible on the
issue of band membership and the Court was asked to make a determination as to
which of these documents was in force at the date of the decision to revoke
Mr. Diabo’s membership. The central issue raised by these applications
is, however, whether that decision was taken in breach of the duty of
fairness. This is an issue which must be assessed on the standard of
correctness: see Canadian Union of Public Employee (C.U.P.E.) v. Ontario (Minister of
Labour), 2003
SCC 29, [2003] 1 S.C.R. 539.
[18]
For
the reasons which follow, I am not in a position to determine whether the
Membership Code, the Constitution, both or neither of these documents were lawfully
constituted at the time of the Band Council decision to revoke Mr. Diabo’s
membership. In examining the issue of procedural fairness, I will proceed on
the assumption that the Respondents are correct in their assertion that the
Membership Code provided the constitutional basis for that decision.
[19]
The
BCR that purported to remove Mr. Diabo from the band list is a surprising
document. In its recitals, the Band Council claimed to be acting in conformity
with Article 8 of the Membership Code which accords to the band a
discretion to revoke the membership of any person who is not entitled to be a
member of Whitesand.
There is nothing in Article 8 of the Membership Code which authorizes the Band
Council to make such a decision and, indeed, that Code very deliberately
assigns the determination of membership issues to three non-partisan bodies,
namely:
(a) to
a membership committee;
(b) to
a membership court; and
(c) to
the band itself.
Under the Membership Code, only the band,
presumably acting by majority decision at a duly constituted band meeting, is
authorized to revoke the membership of a person whose name has been entered on
the band list. A decision by the band to revoke membership may be appealed in
succession to the membership committee and to the membership court. The
membership committee is defined by Article 10.1 of the Membership Code and
consists of two members, one of whom is appointed by the Band Council. Article
12.1 of the Membership Code dictates that the membership court shall be
comprised of four members – two of whom must be Elders of the band. Presumably
the initial authority over membership revocation was assigned to the entire band
because of the significance of the decision to the individual and to the band, and
as an attempt to isolate such matters from the realm of band politics.
[20]
The
evidence that the Band Council decision to revoke Mr. Diabo’s membership was
politically motivated is, as to be expected, circumstantial. Nevertheless,
those circumstances suggest that the Chief and Band Council were attempting to
silence Mr. Diabo by preventing him from challenging their authority and from
running for office. In that regard, it is noteworthy that the September 24,
2007 BCR not only purported to revoke Mr. Diabo’s membership, but it also
declared that he was “not to have any involvement concerning the affairs of the
Whitesand First Nation and its membership”. This effectively blacklisted Mr.
Diabo from any participation in the affairs of Whitesand and went well beyond
the scope of his membership status. The motives of the Chief and Band Council
are also rendered highly suspect by the timing of the decision coming only days
before a nomination meeting for an upcoming band election in which Mr. Diabo
was intending to offer as a candidate. The fact that the Band Council, on the
eve of a band election, very deliberately usurped an authority accorded to the
band under the Membership Code that it was purporting to apply is highly
suspicious and it represents a disturbing conflict of interest.
[21]
What
is potentially even more disturbing is Mr. Diabo’s evidence that upwards of 20
other members of the band acquired membership in circumstances similar to his own.
If that is true – and this evidence was not challenged by the Respondents – it
indicates that Mr. Diabo was singled-out presumably in response to his
opposition to the band leadership. It is not necessary to determine what may
have motivated the Band Council to act as it did, but these concerns prove the
wisdom of assigning the authority over the revocation of band membership to the
entire band.
[22]
Counsel
for the Respondents attempted to minimize the legal significance of the Band
Council’s revocation decision of September 9, 2007 by arguing that the
effective decision was made much earlier during a 2004 band meeting. It is
noteworthy that this argument was not made in the Respondents’ written
submissions.
[23]
The
evidence relied upon by the Respondents about the 2004 band meeting is
contained in the affidavits of Deborah Nodin and Douglas Sinoway Jr., where they
respectively deposed:
Deborah Nodin
7. Later in December of 2004 we,
the Chief and Council, advised the membership at a band meeting that there was
a freeze on band membership. I believe this freeze on band membership is still
in place. At this same meeting Mr. Diabo was requested to leave the
meeting by the membership since he was not a member at that time.
Mr. Diabo was requested to produce a Whitesand Status card by band members
in session. Mr. Diabo left the meeting because he could not produce a
card to which he claimed to have.
Douglas Sinoway Jr.
7. Later in December of 2004 we,
the Chief and Council, advised the membership at a band meeting that there was
a freeze on band membership transfers. I believe this freeze on band
membership transfers is still in place. At this same meeting Mr. Diabo
was requested to leave the meeting by the membership since he was not a member
at that time and could not produce an Status Card proving he was.
Not one of the Respondents’ affidavits
referred to the revocation of Mr. Diabo’s membership by the band in 2004
and, indeed, the impugned BCR clearly states that the decision was taken by
Band Council on September 9, 2007. No evidence was put forward that
Mr. Diabo’s membership was ever considered by the band at this meeting,
let alone voted on. At most, this evidence shows that Mr. Diabo’s band
membership was challenged by someone at a band meeting and he was told to
leave. In argument, counsel for Mr. Diabo made the salient point that even if
Mr. Diabo had been given notice that his membership was in issue at this
meeting (and there is no evidence of this) his removal would represent an
egregious breach of the fairness duty to be told the case against him and to
have a meaningful opportunity to respond. The Respondents’ argument that the band
made a decision to revoke Mr. Diabo’s membership in 2004 is disingenuous and it
merely serves to highlight the jurisdictional and procedural deficiencies that
surrounded the Band Council decision to revoke his membership in 2007.
[24]
It
is undisputed that the decision by the Band Council to revoke Mr. Diabo’s
membership was made without notice to him, thereby depriving Mr. Diabo of the
opportunity to be heard. The Respondents argued that there was nothing legally
wrong with this because the evidence established that his membership had been
acquired illegitimately and because, under the terms of membership established
by the Membership Code, he had no legal right to membership in the first place.
[25]
The
evidence in the records concerning the means by which Mr. Diabo obtained band
membership is not particularly clear. The affidavits relied upon by the
Respondents do suggest that there may have been irregularities in the process
that was followed. On the other hand, it appears from the Applicant’s Record
that the process for dealing with Mr. Diabo’s application for membership may
have been consistent with other membership transfers at that time. Indeed, Mr. Diabo’s
affidavit attested to this and this evidence was not directly challenged by the
Respondents.
[26]
Much
of the Respondents’ evidence on this point is couched in language that attests
only to a lack of recollection or to the absence of corroborating records.
This is not particularly persuasive evidence particularly in the context of lax
band governance practices and poor record keeping. It is not entirely obvious
that Mr. Diabo did not qualify for band membership because not only is it
unclear whether the Membership Code applied at that time, but the conditions of
membership under the Membership Code are open to interpretation. There is also
considerable doubt raised on the evidence before me about whether the
provisions relied upon by the Respondents were ever applied in this way to any person
other than Mr. Diabo. Nevertheless, whether there were deficiencies in the
process of Mr. Diabo acquiring membership is not an answer to whether he was
treated fairly when that membership was subsequently revoked.
[27]
Mr.
Diabo resigned his membership in the Mohawk Council of Kahnawake in order to
acquire membership in Whitesand and his name was added to the Whitesand’s
membership list. His membership could not be revoked by the whim of his
political adversaries acting without apparent authority and without notice. The
means by which Mr. Diabo acquired his membership in Whitesand was a matter
that he had a right to address and the denial of that right represents a profound
breach of the duty of fairness. This is not a case like Sandberg v. Norway
House Cree Nation Band (2005), 2005 FC 656, 272 F.T.R. 221 where the applicant produced no evidence
that his name was on the band list or that he was ever a member of the band.
Even at that Justice Judith Snider made the explicit point at paragraph 12 that
“[m]embership should neither be granted nor taken away randomly on the whim of
a few but, rather, should be subject to systematic and fair assessment”. See also
Sparvier v. Cowessess Indian Band, [1993] 3 F.C. 142, [1993] F.C.J. No.
446 (QL) (F.C.T.D.) at paragraph 47.
[28]
The
Respondents argue that any deficiencies in the decision-making process are
properly remedied through the appeal mechanisms available to Mr. Diabo under
the Membership Code. Even if the Band Council did not have the authority to
revoke Mr. Diabo’s band membership and breached a duty of fairness by
failing to provide him with the right to be heard, these problems, they say,
can be fully addressed by the membership committee acting under Article 8.3 of
the Membership Code.
[29]
The
Respondents are correct that the existence of an adequate alternative remedy
may be a bar to an application for prerogative relief, but this is a matter of
discretion. In determining whether Mr. Diabo should be required to pursue
an appeal from the Band Council decision, several factors must be considered
including the nature of the alleged error, the scope of the right of appeal,
the convenience of the alternative remedy, and the nature of the appellate
body: see Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R.
3, [1995] S.C.J. No. 1 (QL) (S.C.C.) at paragraph 37.
[30]
Here
there are at least two compelling reasons why an appeal to the membership
committee is not an adequate alternative remedy. The first of these is that if
the Membership Code applied to the revocation decision, Mr. Diabo was
deprived of the right to have his membership status fairly determined by the band.
The second is that under the Membership Code the membership committee does not
undertake an appeal unfettered by the first decision. Article 8.3 of the Membership
Code requires Mr. Diabo to prove that there are grounds for
reinstatement. The result is that Mr. Diabo is faced on appeal with the
burden of overturning a first-instance decision which was made unfairly and
without any lawful authority. I would add that there is no evidence that a
membership committee has ever been struck by Whitesand and, in these
circumstances, I am concerned that the authority to now do so rests, in part,
on the authority of the Band Council. What Mr. Diabo thus faces is the
substitution of a two-member appeal committee (one member of whom is appointed
by the Band Council) not sitting de novo for a first-instance hearing
that presumably should have involved the entire band. This is a situation very
similar to that described by Justice Yves de Montigny in Okemow-Clark
v. Lucky Man Cree Nation (2008), 2008 FC 888, 169
A.C.W.S. (3d) 1, where he dealt with the issue of a potential appeal at
paragraph 27 in the following way:
[…] One cannot help but being left with
the impression that the applicants had no other option than to resort to the
courts; either the membership list was drawn by a committee which had no proper
legal existence, or it was made by the Review Committee established by the Membership
Code without prior input from the Chief and Council. In both cases, the
procedure was a nullity and the applicants were totally justified in coming to
the Court for relief.
I agree with the above views and reject the
Respondents’ argument that Mr. Diabo’s appeal option is a form of adequate
recourse that should be exhausted before judicial relief is available.
[31]
Because
the breach of fairness is determinative of these applications, I need not
decide whether the Membership Code or the Constitution governed the decision to
revoke Mr. Diabo’s membership in Whitesand. On the deficient record
before the Court, it would also be unwise to do so because the Department of
Indian and Northern Affairs Canada may have better and perhaps irrefutable
evidence concerning this point in its records. It is enough to say that the
inability of the Respondents to easily and conclusively prove the validity of
the Membership Code under which the Band Council purported to revoke
Mr. Diabo’s membership does not engender confidence in Whitesand’s
administrative or record keeping practices.
[32]
As
noted above, I am satisfied that whatever the rules of membership in Whitesand
may have been, the process followed here by the Respondents was deeply flawed.
In the result, the Band Council decision to revoke Mr. Diabo’s membership
in Whitesand as recorded in the BCR dated September 24, 2007 must be set aside
and Mr. Diabo must be reinstated as a full member of Whitesand.
[33]
I
am in no position on the evidence presented to determine whether Mr. Diabo
acquired his membership in Whitesand in accordance with its rules or practices
at that time and, indeed, the Respondents’ challenge to the legality of a
decision made more than 12 years earlier cannot now be entertained by the Court.
It follows that the Respondents’ claim for declaratory relief in connection
with those earlier decisions must be denied. I would only add that any
decision to revoke Mr. Diabo’s membership on the basis of alleged
irregularities in the process followed at the time he acquired it would require
considerably better evidence than the Respondents have produced in this
proceeding.
[34]
It
may well be the case that no single valid membership code exists for Whitesand
or that the membership rules are uncertain or inconsistent with past band practices.
In light of this, it may be prudent for the band to revisit the conditions for
band membership by way of a fresh consultation and vote. That, however, is a
matter for the band and not for the Court to decide.
[35]
Both
parties requested that the matter of costs be dealt with by way of written
submissions. I will allow Mr. Diabo 10 days to make his submission on
costs not to exceed 10 pages in length. The Respondents will have 10 days
thereafter to make their submission not to exceed 10 pages in length.
JUDGMENT
THIS COURT ADJUDGES that the application of Elton Mitchell Diabo in docket number T-1868-07
is allowed and the decision of the Band Council of Whitesand First Nation to
revoke Mr. Diabo’s membership made on September 9, 2007 and recorded in a
Band Council Resolution dated September 24, 2007 is set aside.
THIS COURT
FURTHER ADJUDGES AND ORDERS that the Respondents forthwith reinstate Elton
Mitchell Diabo to full membership in Whitesand First Nation and take all steps
required to confirm that status with the Department of Indian and Northern Affairs
Canada.
THIS COURT
FURTHER ADJUDGES that the application of Chief Allan Gustafson acting
as a representative of the Band Council of Whitesand First Nation and Whitesand
First Nation is dismissed.
THIS COURT
FURTHER ADJUDGES that the issue of costs is reserved pending further
written submissions from the parties.
“ R. L. Barnes ”
Email this Content