Date: 20090210
Docket:
T-999-08
Citation: 2009 FC 134
Toronto, Ontario, February 10, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
CHIEF PAHTAYKEN, BRANDY BUFFALO CALF,
ELVIE STONECHILD and CHRISTINE MOSQUITO
Applicants
and
LARRY OAKES, JORDIE FOURHORNS,
RUSSELL BUFFALO CALF, LINDA OAKES
and GLEN OAKES
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
THE APPLICATION
[1]
The
Applicants are seeking judicial review of administrative action pursuant to
section 18.1 of the Federal Courts Act, R.S.C. 1985, c.F-7 and a writ of
quo warranto pursuant to section 18(1) of the Federal Courts Act,
R.S.C. 1985, c.F-7 concerning the right of the Respondents to hold office as a
band council of Nekaneet, with Larry Oakes, as Chief, and Jordie Fourhorns,
Russell Buffalo Calf, Linda Oakes and Glen Oakes as Councillors.
[2]
This
application concerns two separate elections which took place on March 28, 2008,
notionally creating two separate Nekaneet band councils elected pursuant to two
different band customs. The purpose of the application is to determine which
band custom governs band council elections at Nekaneet and which of the two band
councils legitimately holds office.
[3]
The
election of the Applicants occurred in an election based upon a band custom
passed at a referendum vote (Referendum Vote) of the eligible voters of
Nekaneet held on February 25, 2008. The Referendum Vote approved the Nekaneet
Constitution and Nekaneet Governance Act, which together formed the Referendum
Band Custom. The Referendum Band Custom was intended to replace any previous
band customs of Nekaneet and can only be amended, repealed or replaced by a
subsequent referendum.
[4]
The
election of the Respondents was not based on the Referendum Band Custom but was
based on a band custom (Second Band Custom) passed at a meeting of members of
Nekaneet by a show of hands on or about March 14, 2008.
[5]
The
Department of Indian Affairs and Northern Development (INAC) has refused to
acknowledge either the Applicants or the Respondents as the official Nekaneet
band council. INAC regards the dispute as an internal matter and has suggested
mediation or an application to this Court to resolve the impasse. Mediation was
rejected as an option since mediation cannot change Nekaneet band custom law. The
deadlock has caused significant problems at Nekaneet and needs to be addressed
as quickly as possible.
[6]
Specifically,
the Applicants are seeking:
1.
A
declaration that the custom for band elections at Nekaneet is made up of the Nekaneet
Constitution and the Nekaneet Governance Act as passed by the Referendum
Vote of the eligible voters of Nekaneet held on February 25, 2008;
2.
A
declaration that the Applicants elected as the Chief and Councillors of
Nekaneet under the Nekaneet Constitution and the Nekaneet Governance
Act in the Nekaneet election of March 28, 2008 are the Chief and
Councillors of Nekaneet;
3.
A
writ of quo warranto to the effect that the Respondents have no right to
hold office as Chief or Councillors, as the case may be, of Nekaneet;
4.
In
the event of a decision or order made by the Respondents, more than thirty days
before the date of this application, an order for an extension of time to
permit the within application pursuant to section 18.1(2) of the Federal
Courts Act, R.S.C. 1985, c.F-7;
5.
An
order that the Respondents, jointly and severally, pay the legal costs of the
Applicants;
6.
Such
further and other relief as this Court deems fit.
BACKGROUND
[7]
Nekaneet
is an indian band under the Indian Act and conducts its elections for chief
and council under the band custom method.
[8]
The
election of the Applicants as the band council of Nekaneet was based on a band custom
passed at the Referendum Vote of the eligible voters of Nekaneet residing both
on and off reserve and held on February 25, 2008. The Referendum Vote approved
the Nekaneet Constitution and the Nekaneet Governance Act which
together formed the Referendum Band Custom which was intended to replace any
previous band customs of Nekaneet. The Referendum Band Custom further required
that it could only be amended or repealed by a subsequent referendum held in
accordance with the Nekaneet Constitution.
[9]
The
election of the Respondents as the band council of Nekaneet was based on the
Second Band Custom passed by a show of hands at a Nekaneet band meeting called
for such purpose and held on March 14, 2008.
[10]
The
Referendum Vote was conducted under the charge of Mr. Walter Wenaas as
Referendum Officer, who was independent of Nekaneet.
[11]
Nekaneet
has approximately 418 band members, of which 267 were eligible voters at the
material time. Of the 267 Nekaneet eligible voters, 136 ballots were cast under
the Referendum Vote. Of the 136 ballots cast, 113 voted in favour of the Nekaneet
Constitution and 21 against, and 114 also voted in favour of the Nekaneet
Governance Act, and 21 voted against.
[12]
Prior
to the Referendum Vote, all previous band customs of Nekaneet were passed by
way of show of hands at a meeting of members called for such purpose.
[13]
The
passing of the Referendum Band Custom was intended to create a new approach to government
at Nekaneet whereby legislation of Nekaneet would be passed by way of
Referendum (Article 9.05 of the Nekaneet Constitution). It also
identified ten core laws of Nekaneet to ensure standards for good government
and accountability (Article 9.07 of the Nekaneet Constitution). Further,
it also confirmed the Rule of Law for Nekaneet.
[14]
Article
11.02 of the Nekaneet Constitution provides that Nekaneet lands and
resources are held for the communal benefit of all citizens of Nekaneet.
[15]
Section
5.02 of the Nekaneet Governance Act requires that a candidate running
for office not be indebted to Nekaneet if such debt is outstanding for more
than 90 days prior to the relevant nomination meeting.
[16]
The
Nekaneet Governance Act also contains formal election rules (sections
1-11) and governance provisions setting out standards of good government,
conflict of interest rules, and accountability and transparency rules (sections
12-18).
[17]
The
Nekaneet Constitution brings into being an independent Nekaneet appeal
body. The Nekaneet Governance Act, under section 19, sets out the rules
for applications to the appeal body.
[18]
The
Respondents, who opposed the Referendum Band Custom initiative, instituted a
counter measure to pass a different band custom for Nekaneet. This was the Second
Band Custom.
[19]
The
Second Band Custom was passed, not by referendum in accordance with the
February 25, 2008 Referendum Band Custom, but by way of a show of hands at a
meeting of members called for such purpose on March 14, 2008.
[20]
It
is not known how many band members were in attendance or otherwise participated
in the meeting that created the Second Band Custom.
[21]
A
General Election was called under section 3.04 of the Nekaneet Governance
Act. The Nomination Day was February 29, 2008 and the Voting Day was March 28, 2008.
[22]
Mr.
Gordon Alger, of Meadow Lake, Saskatchewan, was
appointed the Chief Electoral Officer to conduct the Nekaneet General Election
of 2008 under the Nekaneet Governance Act.
[23]
The
nomination meeting of February 29, 2008 proceeded and Ms. Alice Pahtayken, one
of the Applicants, was elected by acclamation as chief. Four persons were also nominated
for the three council positions.
[24]
One
of the four nominated for a councillor position was Mr. Steven Richard Buffalo
Calf. He withdrew on March 10, 2008 as a candidate, causing
the remaining three candidates for council to be elected by acclamation. They
were the three other Applicants.
[25]
No
appeal under the Nekaneet Governance Act has been filed on the election
of March
28, 2008
conducted under the Referendum Band Custom.
[26]
However,
a second election occurred for chief and council of Nekaneet on the same voting
day of March
28, 2008.
This election was based on the Second Band Custom and resulted in the election
of the Respondents.
[27]
INAC
has refused to acknowledge either the Applicants or the Respondents as the
official Nekaneet chief and band council and regards the dispute as an internal
matter.
[28]
A
timely resolution of the dispute is necessary because the refusal of INAC to
acknowledge the Applicants’ band council elected under the Referendum Band
Custom or the Respondents’ band council elected under the Second Band Custom means
that non-INAC programs at Nekaneet cannot be managed.
[29]
Both
the Applicants and the Respondents acknowledge that the impasse must be
resolved as quickly as possible and they both ask the Court to decide who is
the rightful chief and band council of Nekaneet.
ISSUES RAISED
[30]
The
Applicants have identified the following issues for the Court to decide:
1.
Is
this application appropriate having regard to the preconditions in the Federal
Court Act and Federal Courts Rules and the existence of Federal
Court Action No. T-481-08 commenced by Statement of Claim. This brings up several
specific issues:
a. Is the within
application under section 18(1) of the Federal Courts Rules appropriate?
b. Is a decision
of the Respondents, as a tribunal, required as a pre-condition for the within
judicial review application?
c. Does the
action commenced by Statement of Claim in Federal Court Action T-481-08 constitute
a bar to the within judicial review proceedings?
2.
Which
of the Referendum Band Custom passed by the Referendum Vote of February 25,
2008 and the Second Band Custom passed on March 14, 2008 by way of a show of
hands at a meeting of the Nekaneet membership is valid? This seems to involve
the following specific issues:
a. If the
Referendum Band Custom was validly passed, does it invalidate the Second Band
Custom because the Second Band Custom did not come about in accordance with the
process contained in the Nekateet Constitution?
b. Must a referendum
vote for a band custom be initiated by a resolution of the incumbent band
council and was Nekaneet limited to band customs passed by a show of hands at a
meeting called for such purpose?
c. Did the
Referendum Band Custom satisfy the test of being generally acceptable to the
members of the Nekaneet First Nation on which there was a broad consensus?
d. Did any of
the acknowledged irregularities in the conduct of the Referendum Vote
invalidate that vote?
ANALYSIS
Appropriateness of
Application
[31]
In
Salt River First Nation 195 (Council) v. Salt River First Nation 2003
FCA 385, the Federal Court of Appeal set out what should happen in cases such
as the present where, strictly speaking, a decision of a band council is not
being challenged but where the application seeks to challenge the right of a
public office holder to hold office:
18 Pursuant
to paragraph 18(1)(a) of the Federal Court Act, the Federal Court
has jurisdiction to issue a writ of quo warranto or to grant declaratory
relief. I see no reason why declaratory relief which, in substance, is in the
nature of quo warranto, cannot be granted. That procedure appears to have been
approved in Lake Babine Indian Band et al. v. Williams et al. (1996),
194 N.R. 44 (F.C.A.). Robertson J.A. states at paragraphs 3 and 4:
3. It is to be noted at the outset that the
appellants do not dispute the jurisdiction of the court to address the issues
herein. The respondents seek declaratory and injunctive relief, which in these
circumstances essentially amounts to a request for a writ of quo warranto. Quo
warranto allows a challenge of an individual's right to hold a particular
office...
4. There is no doubt therefore that there is
jurisdiction per se, an Indian Band Council being a “federal board, commission
or other tribunal” within the meaning of ss. 2 and 18 of the
Act....Accordingly, this Court has jurisdiction to address the issue but it can
do so only in the context of a s. 18 application not in the context of an
action initiated by way of statement of claim.
19. In
the present case, the matter proceeded by way of application and the objection
in Lake Babine to the procedure by way of statement of claim
is not relevant.
20. While normally judicial
review is conducted with respect to a decision of a federal board, commission
or tribunal, there will be occasions where relief may be granted in the absence
of a decision. An application for a writ of prohibition is an obvious example.
Quo warranto or a declaration in the nature of quo warranto where the challenge
is to the right of a public office holder to hold office directly is another.
That is what has occurred here. For these reasons, the second ground of appeal
must be rejected.
[32]
In
light of this guidance from the Federal Court of Appeal, I regard the
application before me as legitimately engaging the Court’s jurisdiction under
the Federal Courts Act and the Federal Courts Rules.
[33]
Nor
do I see Federal Court Action No. T-481-08 as a bar to the present application.
The basic relief sought in that action differs from the relief sought here and
both sides agree that a timely resolution to the issues raised in this
application is imperative.
[34]
Both
sides in this dispute also agree that the impasse between them needs to be
resolved as quickly as possible in order to avoid negative consequences for the
Nekaneet First Nation as a whole and they have asked the Court to render a
decision under this application.
The Second
Band Custom
[35]
The
application for quo warranto, or a declaration in the nature of quo
warranto, which the Applicants seek is aimed at the Second Band Custom
under which the Respondents were purportedly elected on March 14, 2008.
However, whether or not the Respondents were properly elected involves a
consideration of Nekaneet customs for band council elections and whether those
customs have been replaced by the Referendum Band custom under the Nekaneet
Constitution and the Nekaneet Governance Act.
[36]
The
election of the Respondents as the chief and band council was based upon a band
custom passed by a show of hands at a band meeting called for that purpose and
held on March 14, 2008. This means that the Respondents may have no right to
hold office as the Nekaneet band council either because:
a. Their
election was not in accordance with Nekaneet custom as such custom existed
prior to the passing of the Nekaneet Constitution and the Nekaneet
Governance Act; or
b. Their
election did not take place in accordance with the Nekaneet Constitution and
the Nekaneet Governance Act if those instruments have superseded any
prior custom regarding the election of chief and band council.
[37]
The
Applicants have, however, conceded that should the election of the Applicants
in accordance with the Referendum Band Custom under the Nekaneet
Constitution and the Nekaneet Governance Act not be valid, then the
election of the Respondents under the Second Band Custom should be regarded as
valid, even though it could have been challenged on other grounds.
[38]
This
being the case, I think that the easiest way to approach these issues is to
decide whether the Nekaneet Constitution and the Nekaneet Governance
Act now govern Nekaneet chief and band council elections and, if they do,
whether the Respondents rightly occupy their offices in accordance with the
relevant provisions. If they do not then, provided the Nekaneet Constitution
and the Nekaneet Governance Act can be considered as valid and as
governing the election of chief and band councils within the Nekaneet First
Nation, the Applicants will be the rightful chief and band council because
there is no evidence or allegation before me that they were not elected in
accordance with the Referendum Band Custom under the Nekaneet Constitution and
Nekaneet Governance Act.
[39]
I
agree with the Applicants that there is no requirement under the Indian Act
or any other legislation that has been brought to the Court’s attention that
requires a referendum band custom process to be initiated or passed in a specified
way. The issue is whether the Nekaneet Constitution and Nekaneet Governance
Act have been adopted by, and are acceptable to, a broad consensus of the
Nekaneet First Nation, as “broad consensus” is defined by the governing
jurisprudence. If it has been so adopted and accepted then the Nekaneet people
have decided that it will govern future chief and band council elections, and
elections that do not comply with the relevant provisions will not be valid.
[40]
Further,
the absolute number of voters who participated in the Referendum Vote was significant,
being 136 of a possible 267 eligible voters, and 83% of the majority of the
eligible voters who participated in the Referendum Vote voted in favour of the Nekaneet
Constitution and the Nekaneet Governance Act, even though the
Respondents and their families and friends boycotted the whole process.
[41]
No
evidence has been led by the Respondents to suggest that participation by 136
eligible voters was low. In fact it exceeded one half of all of the eligible
voters of Nekaneet in a situation where the Respondents, together with their
supporters, refused to participate.
[42]
In Lac
des Mille Lacs First Nation v. Chapman, [1998] 4 C.N.L.R. 57 (F.C.T.D.), a “Custom
Leadership Selection Code” was adopted by referendum under which the respondents
in that case were acclaimed as band councilors. The applicants in Lac des
Mille Lacs argued that the Selection Code’s practices were not generally
acceptable to band members and that there was no broad consensus that favoured
them. Justice Cullen disagreed. Making reference to the pattern of general
non-participation among band members, he held that the participation of 86
voting members out of a population of 300 band members (of which the location
of only 130 was known), with a large majority of the 86 in favour of the
Selection Code, was a sufficiently broad consensus to constitute the Selection
Code as a band custom.
The Evidence
[43]
There
is some conflict in the evidence before me in this application. This is
inevitable given the different approaches to governance that each side
represents. The Applicants see themselves as bringing a new, more transparent
and more accountable approach to governance of the Nekaneet First Nation. The
Respondents, on the other hand, see themselves as the embodiment of traditional
custom and practice that does not need the new approach found in the Nekaneet
Constitution and the Nekaneet Governance Act. In fact, the
Respondents regard these instruments as being totally at odds with traditional
custom and practice and as detrimental to the identity of the Nekaneet First
Nation.
[44]
Notwithstanding
the different views of appropriate governance found in the evidence, and
notwithstanding the conflicts in the evidence, after reviewing the record as a
whole I believe the following general patterns are clear:
a.
Although
the Respondents seek to preserve the status quo at Nekaneet and claim to embody
traditional custom and practice, they have, by and large, been unwilling to
allow governance issues to be decided by the Nekaneet people themselves. They
have simply resisted, and attempted to thwart, the new initiatives put forward
by the Applicants. In the end, the rules of governance at Nekaneet should be
decided by the First Nation and it is the will of the Nekaneet people as a
whole that matters. The evidence suggests to me that the Respondents have been
more concerned to preserve the status quo – and, in particular, the way the chief
and band councils are elected and function – than with ascertaining what is the
general consensus of the Nekaneet First Nation on appropriate rules of
governance. Whatever irregularities arose in the referendum procedure and the general
approach of the Applicants, it is at least apparent that their purpose has been
to ascertain the will of the Nekaneet people. The new constitution and rules of
governance bring no apparent personal advantage to the Applicants, while the
Respondents, in their efforts to thwart consensus seeking, are tainted by a
strong suggestion of self-interest regarding the control of communal lands and band
resources. I think that a party or a group that thwarts attempts to ascertain
the general consensus, and simply relies upon traditional custom and practice
to justify its own position in a situation where governance has become
dysfunctional, invites suspicion;
b.
The
Respondents have been clearly aware that community consensus is the true
legitimizing factor because, in one very telling way, they have attempted to
give themselves that legitimacy. At the second election organized by the
Respondents under the Second Band Custom a petition was signed by 113 persons
which had the following written above the signatures:
I believe and trust in the
Nekaneet Election Procedure of March 28, 2008. Nekaneet Elections have chosen
their spokes persons [Band Council members] under the Band Custom process since
elections were used on Nekaneet.
The petition
is attached to the affidavit of Mr. Dale Mosquito and the only explanation he
offers for it is as follows:
At the time of the conduct of
the custom election at Nekaneet, band members were also given the opportunity
to sign a petition confirming their commitment to our band custom process. This
document was signed by 113 band members. One of the Applicants, Christine
Mosquito, and a person who had worked on the Governance Committee, Doreen
Oakes, signed this petition. A copy of the petition is attached hereto and
marked as Exhibit “G” to this my affidavit.
There is no
evidence that it has been Nekaneet custom to have members sign such petitions
at election time, and such a petition can only be understood in the context of
this dispute. There would be no need to have people sign such a petition unless
the Respondents wanted to use it to dispute the legitimacy of the Referendum
Vote and the earlier election which took place under the Referendum Band Custom.
The petition is the Respondents’ attempt to demonstrate community support for
the status quo which they profess to embody. It is their answer to the
Applicants’ Referendum Vote.
The strange
thing about this is that the criticisms that the Respondents level against the
Applicants’ Referendum Vote to try and demonstrate that it did not yield a
consensus of the Nekaneet First Nation in favour of the new regime are, in
fact, true of the petition. There is no evidence to reassure the Court that
this petition has any value or legitimacy as an expression of the understanding
or the will of the people who signed it. What was the procedure for signing it?
What was the information and educative process that preceded it? What were the
safegrounds surrounding the signing? Who authorized it? Who organized it? What
means did they use to secure the signatures or to ensure that the signators voted
freely in accordance with their consciences? We know most of these things about
the Referendum Vote. We know none of them about the petition.
The
Respondents take a strong position in this application that the Nekaneet First
Nation did not understand what was at stake under the Referendum Vote. They say
the Nekaneet people were not properly informed and that the Referendum Vote was
unsafe because of mistakes in the process. They appear to feel no obligation to
reassure and demonstrate to the Court that the petition has the legitimacy that
they say the Referendum Vote lacks. But without those reassurances, there is
little weight that the Court can attach to the petition as an expression of the
will of the Nekaneet First Nation.
What is more,
the very existence of such a petition undermines some of the basic tenets of
the Respondents’ position. They say that the governance issues that led to the Referendum
Vote were little understood at Nekaneet. Yet they present the Court with a
countervailing petition that can only have a significance and a meaning in the
context of the governance debate. If these people do not understand what is at
stake, why would they be signing a petition so obviously intended to counter
the Referendum Vote and the first election? The Court cannot accept that the
people who signed the petition understood its significance and what was at
stake while the people who participated in the Referendum Vote were not
sufficiently informed to know what they were doing. The petition is strong
evidence of the Applicants’ position that the governance issues at stake in the
Referendum Vote were widely known and debated in the Nekaneet community;
c.
The
governance debate at Nekaneet is between those who wish to preserve a status
quo that has led to significant problems for the community as a whole. The
Respondents insist that all band council initiatives require a consensus of
council members. The problem with this is that it can only work where no
self-interest enters into the picture. Any band council business that threatens
the personal, family or friendship interests of a councillor can be thwarted by
absenteeism and/or veto. The evidence reveals ongoing dysfunction at the band
council level in recent years that has led to warnings from Nekaneet’s auditors
and INAC. Tradition and custom have been summoned by the Respondents’ group to
justify a traditional consensual approach, but it is obvious from the evidence
that self-interest has sullied custom and that if a new approach to governance
is not found, those who control communal assets may continue to prosper at the
expense of the Nekaneet First Nation as a whole. There is a great deal of personal
bitterness in the evidence and the somewhat extreme measures used by the
Respondents to boycott, thwart and nullify the referendum process, rather than
seek the consensus of the Nekaneet community as a whole, suggest that some
individuals at least have much to lose from the new governance regime. There is
evidence of nepotism on the Applicants’ side too, but the Applicants are not
seeking to extend the opportunities for personal and family gain. The new
constitution will pinch them just as much as the Respondents and will make both
groups much more accountable to the Nekaneet membership;
d.
I
have carefully reviewed the affidavits provided by both sides. While there is
considerable contradiction on some key points, it is clear that the affidavits
of Ms. Pahtayken, Ms. Millar and Mr. Buffalo Calf for the Applicants are, for
the most, fact-based and present evidence within their personal knowledge.
Their affidavits are also supported by solid documentation that addresses the
key issues in this dispute. The affidavits of Mr. Wenaas and Mr. Alger for the
Applicants come from experienced and impartial observers and participants and
are strongly supportive of the Applicants’ position. The affidavits from the
Respondents speak well and convincingly of tradition and custom at Nekaneet,
and of the special history of the Nekaneet people. But they are much less
convincing when it comes to the key issues in this application. Apart from
defending personal positions, they are very thin on acceptable evidence
concerning the referendum process, and the knowledge of the community as to
what was at stake. There is considerable resort to hearsay, vagueness and
personal opinion on key points. As an example, when I examine the affidavit of
Mr. Dale Mosquito, for Respondents, it is evident that Mr. Mosquito does speak
to some matters of personal experience, but much of what he says is generalized
opinion or argument, often on points that are not relevant to the central issue
of concern in this application. In addition, when he does get down to the
principal issues, Mr. Mosquito reveals a lack of objectivity. He is willing to
opine to things of which he has no personal knowledge in order to discredit the
Applicants and bolster the Respondents case:
40. Members of the Governance Committee
travelled to various locations both in Canada and the United States to meet with some band members on an
individual basis. I am advised by Santana and Belinda Stanley, by two of my
sisters-in-law, that they were approached to vote by Harry Buffalo Calf and
Cheryl Stanley. One of the two did cast a ballot when she agreed to vote in
favour of what the Governance Committee was proposing. When the second
individual indicated she was not in favour, these individuals would not take
her ballot. I am advised however that the persons picking up the ballots did
not discuss specifics of what members were being asked to vote on. This does
not appear to be an isolated occurrence. I have been advised by other band
members that members of the so-called Governance Committee or those working
with them, visited members in several locations.
41. I have spoken to one member of the
Nekaneet First Nation who indicated to me that he voted in favour but did not
understand what he was voting for.
[45]
I
do not wish to suggest that Mr. Mosquito’s evidence is all like this but, on
this important and relevant issue, what he says is of little assistance to the
Court. For example, the Court needs to know:
a.
When
and how he was advised by his sisters-in-law, and what is the context that gives
what they told him some credibility?
b.
Why
can’t he remember which of his sisters-in-law agreed to vote in favour?
c.
Why
is this presented as hearsay and why have the sisters-in-law not provided
direct evidence on point?
d.
Who
advised him that the persons picking up the ballots did not discuss the
specifics of what members were being asked to vote on? Why don’t we have an
affidavit from this person and how can Mr. Mosquito generalize on this point
the way he does?
e.
How
does Mr. Mosquito know this is not an isolated occurrence?
f.
Who
are the other band members who have told him that Members of the Governance
Committee, or those working with them, visited members in several locations?
Why does Mr. Mosquito not name these other band members? And what, precisely, does
Mr. Mosquito say transpired on these other occasions, and how does he know, and
how many occasions is he talking about?
g.
Why
doesn’t Mr. Mosquito name the band member he spoke to in paragraph 41 and why
has that band member not provided an affidavit?
[46]
This
is not persuasive evidence on the key issue of the legitimacy of the Referendum
Vote. Most of it is hearsay about people who are not even named. The purpose of
such evidence is clear. Mr. Mosquito wants to create the impression that people
were pressured into casting a favourable vote at the referendum, that the
Governance Committee personally interfered to ensure that negative votes were
excluded, and that people who did vote in favour did not know what they were
doing. But it is all hearsay and innuendo. What is more, the suggestions
contained in this evidence are obviously not consistent with facts that are
clearly established. For example, not everyone who participated in the Referendum
Vote voted in favour of the new regime. The “yes” vote of 113 was 83% of the
136 votes cast. The number of eligible voters was approximately 267. The
Respondents organized a petition of 113 votes which they say comes from people
who want to continue with the traditional custom of voting. No evidence is
provided as to how many of these people voted in the referendum, but the
Respondents and their group have been very careful to boycott the whole
referendum process in order to deny it legitimacy, so that it is reasonable to
suppose that a good number of the petition signers did not participate in the
Referendum Vote. All in all, it seems that a significant proportion of eligible
voters at Nekaneet have, in one way or another, if the Respondents’ own
evidence is accepted, participated in recording their views on the governance
debate, even though there is no evidence that gives the petition figure a
legitimacy as a free vote.
[47]
I
do not want to suggest that all of the Respondents’ evidence is problematic in
this way, but other affidavits do have similar problems on key points.
[48]
As
regards conflicts in the evidence, I think the Court has to take into account
the fact that the Applicants have tried their best to put the governance issues
before the Nekaneet First Nation so that the whole community can express
itself. There were negative votes in the referendum. That suggests an informed
community that knew what it was doing and made a free choice. It is telling
that the Respondents petition is presented as though there was no dissent, and
that raises doubts about how informed and free the petition process was. Either
that or it suggests a block of people who have a vested interest in ensuring
that the status quo continues at Nekaneet.
[49]
It
also has to be kept in mind that the process adopted by the Applicants and the
new regime endorsed by the Referendum Vote gives rise to no obvious conflicts
of interest on the part of the Applicants. Transparency and accountability in
governance are something that will apply to the Applicants as much as to the
Respondents. But the Respondents want to retain a status quo that, on the
evidence, greatly troubles a great many people at Nekaneet who believe it
promotes unfairness, nepotism and the pursuit of self-interest over communal
well-being. The evidence suggests that the Respondents have a personal interest
in the status quo, and this has to affect the way the Court views their
evidence and their interpretation of events that lead to the Referendum Vote.
[50]
There
is no way that the Court can identify, parse and discuss every problem in the
evidence and get this decision out in a timely way. Suffice it to say, that I have
reviewed the full record and find the Applicants’ evidence much more factual, relevant
and substantiated than that of the Respondents on the key points at issue. What
is more, there is a taint of self-interest and conflict in the Respondents’
evidence that cannot be left out of account. The Respondents are obviously
wedded to the status quo and have vehemently resisted having governance issues
decided by the Nekaneet First Nation as a whole. The Applicants, on the other
hand, obviously wish to assume power, but they want to do so under a new system
of governance that brings no obvious personal benefit to them and that is an
attempt to introduce accountability and transparency to Nekaneet so that
dysfunction, self-interest and nepotism can become a thing of the past. Their
methodology and process may not have been perfect, but they have been willing
to draw the mistakes they made to the Court’s attention and, notwithstanding, I
believe they have established that a new custom now exists at Nekaneet that is
embodied in the Nekaneet Constitution and the Nekaneet Governance Act.
[51]
The
key point for the Court is whether, notwithstanding the mistakes, formal
disagreements, and evidentiary conflicts, it can be safely concluded that the
Nekaneet First Nation has expressed a sufficiently broad consensus in favour of
the new governance regime and the rules for the election of chief and band
councils set forth in that regime. On the evidence before me, I believe that
consensus has been established.
The Central
Issue
[52]
With
these general comments in mind, the central issue for the Court is whether
evidence shows that a sufficient consensus at Nekaneet has brought into being
the new regime embodied in the Nekaneet Constitution and the Nekaneet
Governance Act so that chief and band council elections must take place in
accordance with the Referendum Band Custom unless and until it is amended.
[53]
Nekaneet
has approximately 418 band members, of which 267 were eligible voters at the
time of the referendum. One of the problems with a group of people of this size
is that loyalties will inevitably divide along family and friendship lines.
This makes a clear and overwhelming consensus well nigh possible. As can be seen
in the present case, there is a marked polarization between those who want to
preserve the status quo and those who want a new approach to governance.
[54]
The
jurisprudence on what will constitute a sufficient consensus is somewhat sparse,
but I think the relevant principles upon which to resolve the present impasse
are clear. In Bigstone v. Big Eagle (1992), [1993] 1 C.N.L.R. 25
(F.C.T.D.) at p. 24, Justice Strayer had the following to say of general
import:
Unless otherwise defined in respect of a
particular band, “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 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?
[55]
Justice
Strayer’s decision in Bigstone appears to assume that there is no legal
requirement that the majority consensus be ascertained in any particular way.
The Court must look for political, rather than legal legitimacy.
[56]
This
position is confirmed by Justice Reed in McLeod Lake Indian
Band v. Chingee (1998), [1999] 1 C.N.L.R. 106 (F.C.T.D.) at paragraph 17
where she refers to what is “fairly established in the jurisprudence,” and this
is that “the custom of the band is the practices for selecting the council of
the band that are generally acceptable to members of the band, upon which there
is a broad consensus.”
[57]
More
recently, in Kanesatake v. Mohawk of Kanesatake (Council), [2003] 3
C.N.L.R. 86 (F.C.T.D.) Justice Martineau was called upon to resolve a dispute
between competing factions. He confirmed that the Indian Act does not
set out guidelines as to how a band custom is to be identified and his approach
is consistent with the words of Justice Strayer in Bigstone and Justice
Reed in McLeod
Lake. He points
out that practices related to the choice of council must be generally
acceptable to members of the band on a broad consensus. Significantly, Justice
Martineau concluded that such practices may be established either through
repetitive acts over time, or through a single act such as the adoption of an
electoral code. He says at paragraph 37 that “whether a particular band
resolution, decision or an adopted electoral code reflects the custom of the
band can be framed as follows: is the resolution, decision or code based on a
majority consensus of all those who, on the existing evidence, appear to be members
of the band, regardless of residence?”
[58]
Applying
these principles to the present case, I think the Court must decide whether the
Referendum Band Custom passed at the Referendum Vote of eligible Nekaneet
voters residing both on and off reserve and held on February 25, 2008 approving
the Nekaneet Constitution and the Nekaneet Governance Act (which
together form the Referendum Band Custom), and which replaced any previous band
customs at Nekaneet for chief and band council elections, had the support of a
sufficiently broad consensus of both resident and non-resident band members.
Put simply, the Court needs to decide whether the new regime for electing
councils is generally acceptable to the Nekaneet First Nation based upon the
evidence before me in this application.
[59]
The
evidence before me establishes that a majority of Nekaneet band members
participated in the Referendum Vote and a substantial and clear majority voted
in favour of the Nekaneet Constitution and the Nekaneet Governance
Act.
[60]
The
hard facts are that, out of a total of approximately 267 eligible voters, 136
participated in the Referendum Vote and, of these, 113 (83%) voted in favour of
the new rules.
[61]
Given
the fact that the Respondents and their supporters refused to participate in
the referendum process and the Referendum Vote because that would have meant
consenting to something they wished to thwart, this seems to me to be a
remarkably high turn out and a clear endorsement of the new regime as a custom
of the Nekaneet First Nation.
[62]
I
note that, in Lac des Mille Lacs First Nation, Justice Cullen held that
the participation of 86 voting members out of a population of 300 band members,
with a large majority of the 86 in favour of a Custom Leadership Selection Code,
was a sufficiently broad consensus to render the code a band custom.
[63]
Instead
of putting their position to the whole community, the Respondents held their
own election in accordance with traditional custom and, more importantly,
organized the petition of 113 signatures as a way of undermining the consensus
reflected in the Referendum Vote.
[64]
The
problem for the Court is that the Respondents have provided no evidence that
would allow the Court to gauge the significance or the legitimacy of the
petition as an indicator of band consensus on the issues before the Court. They
simply attempt to undermine the legitimacy of the Referendum Vote and place the
petition before the Court as a means of doing this. Based upon the record as a
whole, the Court must remain highly sceptical of this tactic.
[65]
Had
the Respondents been truly concerned with ascertaining the general will of the
Nekaneet First Nation on the matters in dispute, they would have placed the
issues squarely before the Nekaneet people and either participated in the
referendum or found some other way to allow the Nekaneet First Nation to decide
these issues for itself. Rather than allow the community to express its will in
a fair and transparent way, the Respondents have attempted to thwart the
referendum process in order to preserve a status quo that, the evidence
suggests, is more conducive to their personal interests. Bearing in mind this
general pattern, the Court cannot accept the petition as an indication of how
all of the people signing it would have voted in a free and transparent process.
It is obvious that the Respondents have family and supporters who will always
vote with them. But I do not think the Respondents can have it both ways. They
cannot snipe at, and complain of, defects in the referendum process, and then
bring forward a petition that was organized and obtained in a way that is not
transparent on the evidence. The Respondents cannot boycott and thwart a
referendum process aimed at ascertaining the general will at Nekaneet and then
offer a petition that has no fair and due process attached to it to support
their own legitimacy in the community.
[66]
In
my view then, the Referendum Vote satisfies, on its face, the jurisprudence for
establishing a broad consensus at Nekaneet for the new governance regime and an
abandonment of the old ways. The next question is whether the Referendum Vote was
the result of a fair and open election in which the voters knew what they were
doing when they adopted the new governance regime as custom at Nekaneet.
Criticisms of
Respondents
[67]
The
Respondents say that the Referendum Vote was defective and that the people who
voted did not understand the significance of the changes they were voting to
bring about.
[68]
Once
again, however, the Respondents’ own actions and evidence would seem to belie
the assertion that the changes were not sufficiently understood to make the Referendum
Vote meaningful. Obviously, the Respondents and their followers knew precisely
what was at stake and what the changes would mean. They knew this so well (and
they had legal advice) that they were aware they had to boycott and thwart the
referendum process to stand a chance of preserving the status quo. They knew it
so well that they organized a petition that they say supports the old ways of
electing the chief and band councils. So it is pretty hard for the Court to
accept as a general proposition that the Respondents and their followers knew
what was at stake and, in effect, petitioned against it, but that those
Nekaneet people who participated in the Referendum Vote did not. What is more,
I believe that other evidence adduced does not support the Respondents’
position on this issue. The Applicants’ evidence on this issue suggests that,
although members of the community may not have understood all of the detail in
the documentation that was distributed and which eventually became the Nekaneet
Constitution and the Nekaneet Governance Act, they were certainly
aware that they had a choice to make between a dysfunctional status quo that
allowed too much scope for self-interest, and a new governance regime that
would bring much more transparency and accountability to Nekaneet in a way that
would benefit the community as a whole.
[69]
Justice
Rouleau alluded to the necessity of some degree of information being provided
prior to a vote on band custom at paragraph 47 of Salt River First nation
195 (Council) v. Salt River First Nation 195, [2003] 3 C.N.L.R. 332
(F.C.T.D.), where he stated at paragraph 45 that “[c]ontrary to the
respondent’s position, the customary electoral practices of the SRFN cannot be
changed on an ad hoc basis at a meeting where there has been no notice
given that a proposal to change electoral custom is to be discussed.” The test
is whether the band custom has been changed by the broad consensus of the band
which, as Justice Rouleau put it in Salt River, “requires a
manifestation of the will of the band members to be bound by a new set of
rules.”
[70]
In
addition to the voting results, the process associated with the development and
approval of the Referendum Band Custom is relevant to the issue of whether
there was a “broad consensus” and, in that regard, the following should be
noted, even though the Respondents take issue with some of these facts:
a.
The referendum
process commenced on February 23, 2007 and ended with the Referendum Vote on
February 25, 2008;
b.
Approximately
60 band members who were in attendance at the band meeting of February 23, 2007
initiated the governance committee initiative;
c.
Thirty-four
written responses from members were provided naming prospective persons to sit
on the governance committees;
d.
The
Nekaneet Governance Committee held five meetings;
e.
Two
questionnaires with 46 responses from the membership on the Nekaneet
Constitution and 46 responses on the Nekaneet Governance Act
(initially called the Nekaneet Election Act), reveal that the contents of the
majority of responses are aligned with the core ingredients of the Nekaneet
Constitution of the Nekaneet Governance Act relating to the
accountability and transparency;
f.
Two
consultation meetings were held with the membership, one held in Regina,
Saskatchewan and the other held on Nekaneet Reserve, where the members were
given an opportunity to provide verbal input;
g.
The
draft Nekaneet Constitution and the draft Nekaneet Governance Act
were circulated prior to the Referendum Vote;
h.
An
Information Document regarding the subject of the vote was circulated prior to
the Referendum Vote;
i.
An
Information Meeting was held on February 4, 2008 giving the Nekaneet Membership
an opportunity to discuss the matters of concern regarding the Nekaneet
Constitution and the Nekaneet Governance Act;
j.
The Nekaneet
Constitution and the Nekaneet Governance Act and the associated
Referendum Vote were widely discussed and hotly debated within the Nekaneet
Community;
k.
The
use of an independent and impartial Referendum Officer;
l.
Band
members residing off reserve participated in the vote through a mail-in
process;
m.
136
of 267 eligible voters participated in the Referendum Vote, and 83% of those
who voted were in favour of the Referendum Band Custom.
[71]
A
helpful account of what amounts to being sufficiently informed is found in McLeod
Lake Indian Band v. Chingee (1998), [1999] 1 C.N.L.R. 106 (F.C.T.D.).
There, the terms of the McLeod Lake Indian Band’s band custom were purportedly
adopted at a general meeting of the band convened with notice. An election was
subsequently held in accordance with those terms. The defendants argued that
the election was invalid because the terms adopted at the meeting did not
actually reflect band custom. In considering this argument, Justice Reed made
the following observations at paragraphs 18 and 19:
18 The question that
remains is whether "broad general consensus" equates to a
"majority decision of the Band members attending a general meeting of the
Band convened with notice". In my view, it may do so, or it may not,
depending upon a number of factors. If for example, the general meeting was
held in a location or at a time when it was difficult for a number of members
to attend, and there was no provision for proxy voting, it may not meet the
broad consensus test. If the notice was not adequate in not providing
sufficient detail of what was proposed, or was not given sufficiently in
advance of the meeting to allow people a realistic opportunity to attend then it
would not be.
19 There are also
situations in which those who do not vote may be signaling a willingness to
abide by the majority decision of those who do. I am of the view that approval
by a majority of the adult members of the Band is probably a safe indication of
a broad consensus (the age of majority being a matter for the band to
determine). Whether a majority decision by the Band members attending a general
meeting demonstrates a broad consensus depends on the circumstances of that
meeting.
Madam Justice Reed’s statement, which has been
quoted in a number of subsequent judgments, confirms that whether information
provided is sufficient will depend on the circumstances. If the information
documents sent to the membership of Nekaneet provided “sufficient detail of
what was proposed,” and the information meetings were held at a relatively
convenient time and place, with reasonable notice having been given, then it
can likely be said that the membership was sufficiently informed.
[72]
As
the Applicants point out, other cases are less explicit about the level of
information required for a vote as to band custom. In Bigstone, for
example, copies of the proposed constitution and other information had been
sent to the band members, a meeting was held with some discussion as to the
constitution, and individual interviews with the band members were conducted.
Although Justice Strayer did not specifically consider the sufficiency of this
information in his analysis, he did ultimately decide that there was no basis
for the Court to intervene with respect to the band custom that had been
adopted.
[73]
The
Applicants in the present case also acknowledge that there were irregularities
in the conduct of the Referendum Vote:
a.
The
ballots were not initialled prior to the Mail-in Voting Packages being sent
out. The mail-in ballots all had accompanying completed declarations of
identity and both the completed and signed declaration and the ballot were
placed in a sealed envelope as provided in the Mail-in voting Package, and such
sealed envelope was either sent by mail or delivered to the Referendum Officer.
On opening each sealed envelope the Referendum Officer confirmed the
identification of the voter as contained in the signed declaration, then
proceeded to initial the ballot and put the ballot in the ballot-box. No
evidence has been led to show that such irregularity would have materially
affected the result;
b.
The
Referendum Officer permitted Nekaneet band members to attend and pick up the
sealed envelopes containing the completed and signed declarations and ballots
as an equally acceptable process to mailing the ballots to the Referendum
Officer. The band members who picked up the ballots included members of the
Nekaneet Governance Committee. The Referendum Officer had the authority, under
the voting rules, to make his own rules as to matters of procedure in
administering the Referendum Vote. No evidence has been led that such procedure
constituted an irregularity that would have materially affected the results.
Further, no evidence has been led that a voter was denied the right to vote
either in person or by placing their mail-in ballot in the mail in the usual
course.
[74]
There
are a number of other minor items that have been raised, such as sending two
mail-in packages to the same voter and listing a mentally disabled person as a
voter, which person did not vote. But no evidence has been led to establish
that such irregularity materially affected the results.
[75]
In
order to undermine the referendum process and the Referendum Vote the
Respondents raise numerous points. I have reviewed each of them in turn against
the evidence presented. While it is true that mistakes were made and that
differences of opinion and conflicts of evidence exist, there is nothing that,
taken either singly or cumulatively, convinces me that the hard facts of the Referendum
Vote do not reflect a broad consensus of what the Nekaneet First Nation truly
wants, and that, in my view, is the central issue. I believe that the process
leading to the Referendum Vote, if not perfect, was sufficiently informative
for the Nekaneet First Nation to know what was at stake and what they were
voting for. And I also believe that the voting process itself, notwithstanding
the mistakes that were made, allowed a consensus to emerge, even in the face of
the obstructive, and sometimes hostile, tactics of the Respondents, which shows
that the Nekaneet First Nation favour the transparency and accountability
embodied in the Nekaneet Constitution and the Nekaneet Governance Act
over the dysfunctional and partisan situation that many members think exists at
Nekaneet and that favours some individuals and groups over others. It looks to
me as though the Nekaneet people have spoken and that a broad consensus does
not favour the Respondents’ position on these governance issues.
[76]
As
the Applicants point out, it is not always necessary to strictly construe the
provisions of an election code, and non-compliance does not necessarily
invalidate the election process. (Brian A. Crane, Robert Mainville and Martin
W. Mason, First Nations Governance Law (Markham, Ont.: LexisNexis
Butterworths, 2006) at 200). Therefore, if the Nekaneet Governance Committee
terms of reference, for example, were not strictly followed, that does not
necessarily invalidate the Referendum Vote.
[77]
A
vote will generally not be rendered invalid as a result of irregularities
unless such irregularities would have materially affected the results. A
succinct statement of this principle may be found at paragraph 20 of Ta’an
Kwäch’än Council
(Re),
[2006] Y.J. No. 139, 2006 YKSC 62:
20 The
general common law principle is that the will of the people as expressed in an
election will not be set aside unless the irregularity or non-compliance with
election law or practice is such that the outcome would have been materially
affected. Obviously any irregularity affects the election process in some way.
Unless it materially affects the validity of the election results, courts will
not set aside the decision of the voters.
[78]
The
Applicants have referred the Court to Camsell v. Rabesca, [1987]
N.W.T.R. 186 (S.C.), which has received subsequent positive judicial
consideration, as an example of a case in which a vote was upheld despite
significant irregularities in the voting process because there was no evidence
that the irregularities materially affected the result. The petitioners in that
case sought to have a liquor plebiscite, in which the majority of the community
had voted in favour of prohibition, declared void. Irregularities in the voting
process included the late opening of a polling station, the manner in which the
election lists were compiled (namely, the addition and deletion of names from a
municipal election list by the returning officer assisted by an individual
familiar with the community members), the failure to provide interpreters at
the polling stations in accordance with the plebiscite regulations, a lack of
clarity as to the residence requirement for participation in the vote, the
failure to meet the requirement of holding an advance poll, discrepancies
between the number of ballots cast and the number recorded, the failure of the returning
officer to take an oath, and the failure to initial the ballots in accordance
with the applicable legislation.
[79]
The
plebiscite regulations in Camsell provided that the provisions of the Municipal
Act applied to the vote, “with such modifications as the circumstances
require[d]” (paragraph 6). Justice Marshall noted that two of the
irregularities resulted from the Returning Officer applying such modifications
due to the limited time available in preparing for the vote. He then reviewed
the applicable authorities, noting that elections “should not be too easily
overturned,” and noting that irregularities will virtually always occur in an
election in one form or another (paragraph 52). He then summarized the law in
this way at paragraph 55:
So the rule then, on a review of these
authorities and subject to statutory modification, could be stated, in my view
as follows: That the vote should be vitiated, only if it is shown that there
were such irregularities that, on a balance of probabilities, the result of the
election might have been different. And, secondly, that the vote could not be
said to have been a vote, that is, that it was not conducted generally in
accordance with electoral practice under existing statutes.
Justice Marshall held
that the election in Camsell was conducted generally in accordance with
the principles for conducting such an election. He also held that the
petitioners had failed to establish, on a balance of probabilities, that
because of the irregularities which occurred, there might have been a different
result. His reasoning with respect to the non-initialling of ballots,
particularly relevant in the present circumstances, was as follows, at
paragraph 27:
The petitioners tendered evidence that
none of the ballots were initialled, as required by s. 51(j) of the Municipal
Act, and, therefore, they contend that under a strict interpretation of
that Act, again none of the ballots should count. The purpose of the process is
to ensure that the ballots are legitimate. The requirement, in my view, is
directive, not mandatory. There is considerable authority for this
interpretation [Footnote: See Blackburn v. Moss (1986), 12 O.A.C. 387 (Div. Ct.), and Morgan v. Simpson,
[1974] 3 All E.R. 722 at 725 (C.A.)]. Again, in this regard,
there was no evidence that the practice had led to any impropriety in the
casting or recording of the vote, which might otherwise have changed the vote.
Justice Marshall added
at paragraph 63 that “…[w]ith regard to the failure to initial the ballots,
there is not a shred of evidence that this affected the result in any way.”
Justice Marshall
concluded that, as there was no evidence that the irregularities affected the
result of the vote, the petition should be dismissed and the election upheld.
[80]
As
the Applicants point out, this latter point has formed the basis of a number of
decisions upholding election votes. This is seen, for example, in Samson
Indian Band v. Cutknife (2003), [2004] 1 C.N.L.R. 330 (F.C.T.D.). There,
the Electoral Supervisor of a councillors’ election granted an extension of 24
hours for candidates to deliver the required notarized photographs, and for one
of the candidates to submit the required election fees. This formed the basis
of an appeal of the election to the Election Appeal Board, which found that the
Electoral Supervisor had acted without authority in making the extensions, and
ordered a new election. In an application for judicial review, Justice
Martineau quashed the Appeal Board’s decision. He noted that the Electoral
Supervisor has broad general authority to conduct the administration and
process of the election, which included the ability to make decisions
respecting procedure. He held that granting the extensions was within the
Electoral Supervisor’s authority, and that doing so was consistent with, and
did not defeat, the purpose of the Election Law.
[81]
Similar
conclusions were reached in Simon v. Samson Cree Nation (2001), [2002] 1
C.N.L.R. 343 (F.C.T.D.), where the Electoral Supervisor removed the applicant’s
name from the list of candidates for council. The applicant argued that the
Electoral Supervisor exceeded his jurisdiction in disqualifying her and
removing her name from the list of candidates; the Electoral Supervisor
submitted that his broad authority over procedure permitted him to do so.
Justice Blais rejected the applicant’s argument that all provisions in band
election laws must be strictly construed, and held that the Electoral
Supervisor’s position was “the most consistent with the purpose of the Election
Law and the intention of its drafters” (paragraph 32). He also referred to the
resources that would be wasted if another election had to be held.
[82]
Similarly,
in the present case, Mr. Walter Wenaas had authority under the voting rules to
make rules as to matters of procedure. He was entitled to take the steps that
he did in administering the referendum. This argument is particularly strong
with respect to measures that he took which could be said to have furthered the
electoral process, such as allowing band members to have their completed
ballots picked up rather than requiring them to mail the ballots back. This was
“consistent with the purpose” of the referendum rules, and should not affect
the validity of the vote.
[83]
I
agree with the Applicants that, in order for a vote to be invalidated, the
irregularities would have to be more significant that the ones that in fact
occurred in this case. In Keefe v. Pukanich (2007), [2008] 4 W.W.R. 112,
2007 NWTSC 90, for example, Justice Vertes would not have set aside an election
as a result of numerous irregularities if one of them had not amounted to an
abdication of the returning officer’s duty, taking the election out of compliance
with the statutory requirements.
[84]
Lac
des Mille Lacs First Nation v. Hogan (2000), 198 F.T.R. 48 (T.D.) is another case in
which an election was held to be void, but again it involved more serious
irregularities than the procedural matters in the case at bar. In concluding
that the leadership review and election were of no force and effect, Justice
Gibson stated as follows at paragraph 21:
None of these unique features of the Selection Code was respected
in the process leading up to and including the leadership review and election
purportedly conducted on the 29th of April, 2000. There was no evidence before
me that notice of the events scheduled for the 29th of April was broadly
distributed among members of the First Nation. Similarly, there was no evidence
whatsoever that those members of the First Nation who would likely be unable to
attend a meeting in Thunder Bay would be accommodated by communication
processes or voting processes that would allow them to effectively take part.
In other words, the election in that case was
voided not because of mere procedural irregularities, but because
non-compliance with the Selection Code resulted in certain members losing the
opportunity to vote. It does not appear to me that any of the steps taken by
Mr. Walter Wenaas in the present case would have had the effect of
disenfranchising any of the members of Nekaneet; rather, it appears that he was
simply attempting to, in the words of Justice Vertes, “facilitate the right to
vote.”
Conclusions
[85]
Generally
speaking, this application reveals a personal and ideological struggle at
Nekaneet over governance issues. Behind the legalities lie common tensions over
such things as custom and accountability, on-reserve and off-reserve interests,
traditional spirituality and Christianity, personal interest and community
benefit. This kind of summary proceeding cannot address in detail these
extremely complex cultural and political flashpoints. In the end they all boil
down to the issue of what a consensus of the Nekaneet First Nation wants for
itself. A full consensus is impossible over such divisive issues in such a
small community. Polarization has led to dysfunctional government, and
dysfunctional government has caused problems for the First Nation membership
and has begun to deprive the community of the resources it needs to provide
services to the people of Nekaneet. It is impossible to please everyone. The
only solution is to determine whether there is a sufficient consensus for
change.
[86]
I
do not believe that my conclusions prevent the Respondents from asserting what
they regard as traditional interests. The Nekaneet Constitution and the Nekaneet
Governance Act have clear provisions for amendments and change. If the
Respondents represent a sufficiently broad traditional faction in the
community, they can invoke the amending provisions and attempt to win community
support for their way of doing things. But the new constitution does ensure
that community support is needed and that governance is a matter for the
Nekaneet First Nation as a whole and cannot be controlled by an entrenched
interest group from either side of the cultural and political divide.
[87]
I
render judgment in this case with some reluctance because I am, in effect,
pronouncing on the collective will of the Nekaneet First Nation as expressed in
a broad consensus vote. That feels presumptuous to me, to say the least. The
will of the Nekaneet people, in my view, is a matter for the Nekaneet First
Nation. However, counsel for both sides have informed me that the present application
is the only viable way of resolving the impasse at Nekaneet over governance in
a timely way. I have simply reviewed the materials placed before me and
attempted to formulate what I believe those materials reveal concerning what
the people of Nekaneet want to happen in terms of governance. I am well aware
that Court applications do not reveal everything, particularly summary
proceedings such as this judicial review application. Hence, my conclusions
will not please everyone at Nekaneet. But taking into account the method of
resolution selected in this case, this is the best I can do for the Nekaneet
First Nation and I hope that it will bring some respite from the divisiveness
that has been hampering the community.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
band custom of Nekaneet is made up of the Nekaneet Constitution and the Nekaneet
Governance Act as passed by a referendum vote of the eligible voters of
Nekaneet held on February 25, 2008;
2.
The
Applicants elected as the Chief and Councillors of Nekaneet under the Nekaneet
Constitution and the Nekaneet Governance Act in the Nekaneet
election of March 28, 2008 are the Chief and Councillors of Nekaneet;
3.
A
writ of quo warranto is granted to the effect that the Respondents have
no right to hold office as Chief or Councillors, as the case may be, of
Nekaneet;
4.
The
Applicants shall have their costs of this application, which shall be paid
jointly and severally by the Respondents.
“James
Russell”
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