Date: 20090224
Docket: T-396-08
Citation: 2009
FC 196
Ottawa, Ontario,
February
24, 2009
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
STANLEY LAURENT
Applicant
and
PAULINE GAUTHIER and the
FORT MCKAY FIRST NATION
Respondents
REASONS FOR ORDER AND ORDER
[1]
On
February 11, 2008, Mr. Laurent filed his nomination papers with Ms. Gauthier,
the Returning Officer of the Fort McKay First Nation, as the first step in his
bid to be elected Chief in the election scheduled for February 25, 2008. However,
Ms. Gauthier rejected Mr. Laurent’s papers because, under the Fort McKay
First Nation Election Code dated December 22, 2004 (Code) she was
administering, he did not qualify for election. The main focus of the present
Application is a challenge to Ms. Gauthier’s jurisdiction to reject Mr.
Laurent’s qualification because the Code under which she acted is,
itself, of no force and effect because it was not properly approved by the
members of the Fort McKay First Nation. For the reasons which follow I find
that Mr. Laurent’s jurisdiction challenge is successful.
[2]
Mr.
Laurent also argues that his equality rights under s. 15 of the Charter
have been offended by his rejection as a candidate. As a result of my finding
on the jurisdiction issue, I find it is unnecessary to address the Charter
argument.
I. Evidentiary Background
[3]
The
controversy arising from Mr. Laurent’s bid to run as Chief in February 2008, is
inextricably linked to his life circumstances as an Aboriginal Person. The key
feature of Mr. Laurent’s rejection as a candidate is that, by the Code which
purportedly governed the election, a candidate for office must be a “lifelong
member” of the Fort McKay First Nation which means that he or she must have
been born to a member of the Fort McKay First Nation; Mr. Laurent does not meet
this qualification.
[4]
I believe
it is important to understand Mr. Laurent’s background, which speaks loudly to
why he brings the present Application:
Personal History
2. I was born in 1965. My father
was a member of the Fond Du Lac Denesuline Nation, as I became on birth. Fond Du Lac is 160 miles north-east of Fort McKay. Both communities are comprised of Dene
people, and both are in the Treaty 8 territory.
3. My great-grandfather Doo-Doo
Laurent was Chief of Fond Du Lac for 35 years until he passed away in 1972.
4. My great great grandfather
Dizedan Laurent signed the Fond
Du Lac adhesion
to Treaty 8 on July 27, 1889 as a headman.
5. Eligibility for the positions
of Chief and Councillor is part of our “traditional mode and way of life” is
protected by Treaty 8, which is attached as Tab 1 to Exhibit “A”. Attached as
Tab 2 to Exhibit “A” is the Report of the Treaty Commissioners that explains
some of the oral promises made.
6. There are strong historical
and family ties, including intermarriage, that exist between the Fond Du Lac
Nation and the Fort McKay First Nation.
7. In 1989, I moved to Fort McMurray for work. Soon after, I met
Cheryl McDonald, a member of the Nation. In 1990, I moved to the Ft. McKay Reserve to live with Cheryl and
her six month old child at her parents’ house. In 1991, Cheryl and I, and her
son, moved into our own house and have lived in our own house on the Reserve
ever since. I informally adopted Cheryl’s young child, and Cheryl and I
subsequently had 3 other children- in 1993, 1996 and 1997.
8. When I moved to the Reserve in
1990, I became involved in many aspects of the Nation’s community activities.
When my children became older, I coached hockey, an activity I still pursue for
younger chidren today. In 1990, I was elected chief of the volunteer fire
department, a position I held until 2001 when I retired from the post. In my
capacity as fire chief, I did extensive training in firefighting and emergency
first aid, and responded to over 20 fires on the Reserve. In 2003, Ft. McKay was evacuated due to a nearby
forest fire. At that time I was appointed by the Nation as Director of Disaster
Services.
9. After I moved to the Ft. McKay Reserve in 1990, I was employed
for two years with Golosky Trucking as a heavy equipment operator at the
Syncrude site. After that, I worked for three years for Ft. McKay General
Contracting, which is owned by the Nation, as supervisor of its Suncor site
labour crew. After that, I worked for two years for the Nation as the Employment
and Career Development Coordinator. In 1997, I started my own business with my
wife Cheryl which we operate from the Reserve, as described in paragraph 7 [sic]
below.
10. My training in firefighting and
first aid led to my formation of a business that provided emergency medical
services to the oil and gas sector in Ft.
McMurray area, as well as wildland fire suppression throughout Alberta and elsewhere. This business
is known as Ft. McKay Enterprises Ltd., which
was incorporated in 1997. My wife and I operate the business together, and over
the years have employed approximately 50 members of the Nation. Our business
presently has 18 employees, which will increase to 50 after freeze-up allows
for more construction and drilling activity.
Transfer to the Nation
11. In 1995, I transferred my Band
membership to the Nation. In order to do so, I had first to relinquish my
membership in Fond
Du Lac, and then
post a notice in the Nation’s office for 30 days of my wish to transfer. The
notice allowed any member to oppose my joining the Nation. No member of Fort
McKay First Nation opposed my transfer.
Candidate in Past Elections
12. In 1999, I ran for and was
elected as a Councillor of the Nation. My term was two years.
13. In 2002 and 2004, I ran for Chief,
but in both cases I lost to Jim Boucher. In both Elections, I was the only
other candidate for Chief. In 2004, I lost by a margin of 167 to 96.
(Applicant’s Application Record, pp. 17 –
19)
[5]
The undisputed
facts which underlie the present Application are as follows.
[6]
Elections
of the Fort McKay First Nation are governed by custom. Prior to the development
of the Code, there was no written code. A Band Council Resolution dated
January 16, 2002, with respect to the proposed election to occur on February
15, 2002, speaks to the custom respecting eligibility to run for office at that
time:
Therefore be it resolved that: The Fort
McKay First Nation wishes to implement the following in governing the 2002
elections:
1.
The
Election date to be set for February 15, 2002, the poll being opened from 12
p.m-10p.m. The polling station is to be located in the Multi-Plax Hall in the
community of Fort
McKay, Alberta.
2.
Nomination
procedures will be by application form and they are to be submitted to the
Electoral Officer between the hours of 2:00 p.m.-4:00 p.m. on February 1, 2002,
at the Band Office in the community of Fort McKay, Alberta.
3.
All
Fort McKay First Nation members whose names appear in the Fort McKay First
Nation members list of Eligible Voters; and who are of eighteen (18) years of
age prior to the election date will be eligible to vote, as well as seek
nomination for the position of Chief, or Councillor.
4.
The
Election Regulations according to the Indian Act will be used as a
discretionary guide by the Electoral Officer for conducting the election for
the Fort McKay First Nation since the Band Custom does not have their own
regulations in place to date.
5.
No advance
polls will be required.
6.
The Fort
McKay First Nation hereby appoints Pauline Gauthier as the Electoral Officer
for this election. [Emphasis added]
(Applicant’s Application Record pp. 41 -
42)
Therefore, by custom, age was the only restriction on
running for office.
[7]
In 2004, the
Fort McKay First Nation was under third party administration and, thereby, its
leadership was composed of the Chief, two Councillors, and two co-receiver
managers. In order to resolve a dispute then under mediation by this Court, a
new written custom election code was proposed for approval by the membership by
referendum. It is agreed that the leadership had authority to issue a Notice of
Referendum as a preliminary step to gaining the approval for the new code which
contained new restrictions on running for office; it reads as follows:
FORT McKAY FIRST NATION
NOTICE
OF REFERENDUM
TUESDAY, FEBRUARY 8, 2005
On January 8, 2005, Jim Boucher, Mike Orr
and Gerald Gladue agreed to a process for the return of Chief and Council.
Under the terms of the agreement, a new election code will be reviewed and
voted upon by the Band Members of the Fort McKay First Nation by a referendum
on February 8, 2005.
The new election code is available at the
Administrative Offices of the Fort McKay First Nation if you have not received
your copy in the mail. Every Band Member is strongly encouraged to review
the proposed New Election Code as it contains many new provisions which are a
departure from what the Band practice has been to prior elections.
TIME and PLACE:
Location: Administrative
Office in the Trailers at the Fort
McKay First Nation
Date: February 8, 2005
Time: 10:00 AM to 8:00 PM
REFERENDUM QUESTION:
DO YOU APPROVE OF THE PROPOSED ELECTION
CODE FOR THE FORT MCKAY FIRST NATION FROM THIS
DAY FORWARD?
INFORMATION SESSIONS ON ELECTION CODE:
Elders Session
Location :
Fort McKay Elders Centre
Date :
February 1, 2005 (Luncheon Provided)
Time:
12:00 PM (Elders will be picked up at 11:30 AM)
Community Session
Location:
Fort McKay School
Date:
February 1, 2005
Time:
7:00 PM
The
Fort McKay First Nation Election Code, Section 106 states:
106
Coming into Force
106.1.
This Code is in force and effective as of the date that it has been approved
by the electors at a special meeting at which at least (50%) of the electors
are in attendance.
[Emphasis
added]
(Applicant’s
Application Record, p. 43)
[8]
During a consultative
process with the members of the Fort McKay First Nation a number of drafts of
the new code resulted in a final draft proposed for approval by referendum. There is no
evidence of which version of the proposed code was sent to the membership or
was available for perusal in the administration office. However, it is agreed
that the final draft of the new code purportedly put into effect after the
referendum, and referred to in these reasons as the Code, is found at
pages 48 to 84 of the Applicant’s Application Record.
[9]
It is
important to note that the Code does not contain the s. 106.1 provision
cited in the Notice of Referendum. However, with respect to the conditions of
its approval, it contains the following preamble and statement:
WHEREAS the Fort McKay First Nation has
inherent aboriginal and Treaty rights and authority to govern relations among
its members and between the Fort McKay First Nation and other governments; and
WHEREAS the aboriginal and Treaty right
of the Fort McKay First Nation to self-government was recognized and affirmed
in Treaty No. 8 entered into between Her Majesty the Queen and the Fort McKay
First Nation and confirmed by section 35 of the Constitution Act, 1982;
and
WHEREAS the Election Code is an exercise
of the aboriginal and Treaty right to self-government and nothing in the
Election Code may be construed as to abrogate or derogate from any aboriginal
and Treaty rights of the Fort McKay First Nation; and
WHEREAS the electors of Fort McKay First
Nation empower the Chief and Council through democratic elections trusting that
the Chief and Council will act lawfully and in the best interest of Fort McKay
First Nation; and
WHEREAS the culture, values, and
flourishing of the Fort McKay First Nation is best advanced by the values of democracy
and the selection and removal of leadership on the basis of democratic
principles;
NOW THEREFORE THE FORT MCKAY FIRST NATION, by the consent
of the majority of the electors of Fort McKay First Nation pursuant to a vote
conducted on January ___, 2005, enact as follows:
[Emphasis added]
(Applicant’s Application Record, p.47)
[10]
The Code
contains the following provision with respect to new limits on who can run for
Chief and Council:
Qualification of candidates
9.1 A person may be nominated as a
candidate in any election under this Code if, on the nomination day, the
person:
9.1.1 is a member of the first nation;
9.1.2 is at least 18 years of age or
older;
9.1.3 is not employed by the first
nation or any related business corporation or other entity which is owned or
controlled, in whole or in part, by the first nation;
9.1.4 has not been convicted of any
indictable criminal offenses.
9.1.5 has not been found liable in a
civil court or pursuant to criminal proceedings in a respect of any matter
involving theft, fraud or misuse of property belonging to the first nation or
any related business corporation or other entity which is owned or controlled,
in whole or in part, by the first nation;
9.1.6 does not have a debt payable for
which payment was demanded in writing 90 days prior to the nomination day,
including without limitation salary or travel advances, rent, or loans, to the
first nation or any related business corporation or other entity which is owned
or controlled, in whole or in part, by the first nation;
9.1.7 has not been removed from the
office of chief or councillor pursuant to s. 101.3 of the Code during the
preceding term of office; and
9.1.8 is a lifelong member of the first nation
who has never held membership with any other first nation.
(Applicant’s Application Record, pp. 53 –
54)
[11]
In
addition to the specific voting provision regarding putting the Code
into effect, the Code also contains specific voting provisions regarding
amendment:
106 Amendments
106.1 This Code may be amended only on
the following basis:
106.1.1 If within 60 days of a
ratification of this Code, a meeting of the membership is held to determine
whether s. 9.1.8. of this Code should be struck from this Code, and if, at a
secret ballot at that meeting of the membership, 50% plus 1 or more of the
voters who cast votes at that meeting vote to strike s. 9.1.8, then s. 9.1.8
stands removed; or,
106.1.2 in all other circumstances, if
the council has made a resolution including or attaching a copy of the proposed
amendment; and if
106.1.3 the amendment proposed in the
resolution has been approved by at least sixty (60%) percent the electors [sic]
in a referendum vote then,
106.1.4 such amendments
stand.
(Applicant’s Application
Record, p. 84)
[12]
However,
with regard to the specific voting provision regarding putting the Code
into effect, the undated Referendum Guidelines – Approval of Election Code
applied in relation to the referendum vote, contains the following provision:
9 Determination of the
Referendum Question
9.1 The determination of the
Referendum Question shall be by simple majority of the Electors who have
participated in the Referendum Vote. [Emphasis added]
(Respondents’ Record, pp. 216 – 219)
Thus, a conflict exists between the Code’s provision
regarding putting the Code into effect, and the Referendum Guidelines.
[13]
The
referendum vote took place on February
8, 2005. The
result was that 90 people voted to approve the Code and 69 people
opposed the Code. The Voter’s List as at February 8, 2005 indicates that
there were 362 eligible voters, and, according to the Notice of Results, 159
eligible electors voted; therefore, 44% of the eligible electors voted. As a
total of all electors, 24.86% approved the Code.
[14]
The Code
was put into effect by the leadership following the referendum and governed the
election for Chief and Counsellors proposed for February 25, 2008. With respect
to the election, nominations for office were required to be filed by February
11, 2008. Mr. Laurent submitted his nomination papers to Ms. Gauthier for the
office of Chief but he was advised by her that he was ineligible to run as
stated in the following passage from Ms. Gauthier’s letter dated February 11,
2008, but received by Mr. Laurent on February 20, 2008:
Upon reviewing your nomination papers you
do not meet the following requirements:
1.
You are
not a lifelong member of the Fort McKay First Nation as required in Section
9.1.1
2.
You have
not provided us with a Criminal Record Check section 9.1.5
3.
You have
not provided us with a letter from the Finance Officer of the Fort McKay Group
of Companies
Based on this we are returning your
nomination papers and your name will not appear on the ballot the general
election [sic] held on February 25, 2008.
(Applicant’s Application Record p. 95)
[15]
As a
result, on February
11, 2008, Ms.
Gauthier acclaimed Mr. Jim Boucher, the incumbent Chief, as the successful
candidate.
II. The Challenge
[16]
In the
present Application, Mr. Laurent requests a judicial review in respect of the
alleged promulgation of the Fort McKay First Nation Election Code on February
8, 2005, and Ms. Gauthier’s February 8, 2008, decision to reject his nomination
and acclaim Mr. Jim Boucher as Chief. It is unclear as to which exact
provisions of the Code are addressed in Ms. Gauthier’s rejection, but,
as they affect Mr. Laurent’s candidacy, I find that Ms. Gauthier’s rejection is
grounded in sections 9.1.3 to 9.1.6 and section 9.1.8.
[17]
The primary
argument advanced by Mr. Laurent is all about jurisdiction. He argues that Ms.
Gauthier lacked jurisdiction to decide to reject his candidacy, and,
consequently, to decide to acclaim Mr. Boucher as Chief because the leadership of
the Fort McKay First Nation lacked the jurisdiction to put the Code into
effect following the February 8, 2005 referendum. I find that the standard of
review with respect to Mr. Laurent’s primary argument is correctness.
[18]
I find
that for the purposes of the present judicial review Ms. Gauthier made one two-part
decision. The first part is the decision to reject Mr. Laurent, and the second part
is the decision to acclaim Mr. Boucher. The latter could not be made without
the former, and the latter had to be made because of the former, because only
Mr. Laurent and Mr. Boucher were contenders for the office of Chief. Therefore,
the two parts constitute a whole decision with respect to the governance of the
Fort McKay First Nation.
[19]
Counsel
for the Fort McKay First Nation presents two arguments against accepting Mr.
Laurent’s arguments on judicial review. First, Counsel argues that I do not
have jurisdiction to go back in time and make a jurisdictional determination
with respect to the leadership’s decision to put the Code into effect
because a judicial review application with respect to this issue was not
brought within 30 days of notice of the referendum vote as required by s. 18.1
(2) of the Federal Courts Act. Second, Mr. Laurent should have made his
complaints according to the appeal provisions of the Code.
[20]
With
respect to the time limitation issue, no request for an extension of time was
made in the Notice of Application with respect to the jurisdiction arguments. There
is no dispute that the present challenge to Ms. Gauthier’s decision was brought
well within the required 30-day time limitation. Therefore, I find that my
jurisdiction over this decision is complete. And further, because Ms.
Gauthier’s jurisdiction to make the challenged decision pursuant to the Code
is directly linked to the leadership’s jurisdiction to put the Code into
effect, I find I have jurisdiction to review the leadership’s jurisdiction to
do so. Therefore, I dismiss Counsel for Fort McKay First Nation’s limitation argument.
[21]
With
respect to the argument that Mr. Laurent’s complaints about the conduct of Ms.
Gauthier should have been taken to appeal under the Code rather than by
the present Application, in my opinion two critical elements to the appeal
process, taken together, exclude such a possibility. The “permitted grounds of
appeal” are contained in s. 81.1 of the Code as follows:
81 Permitted grounds of appeal
81.1 A candidate or elector who voted
in the election, may appeal an election on the basis that:
81.1.1
the
returning officer made an error in the interpretation or application of the
Code which affected the outcome of the election;
81.1.2
a person
voted in the election who was ineligible to vote and provided false information
or failed to disclose information relevant to their right to vote and their
participation affected the outcome of the election;
81.1.3
a
candidate who ran in the election was ineligible to run and provided false
information or failed to disclose information relevant to the validity of their
nomination;
81.1.4
a
candidate engaged in conduct contrary to section 23 and the candidate’s conduct
affected the outcome of the election; or
81.1.5
a
candidate was guilty of a corrupt election practice or benefited from and
consented to a corrupt election practice.
(Applicant’s Application Record, p. 73)
The authority granted to an appeal arbitrator is contained
in sections 88 and 89 of the Code as follows:
88 Powers of appeal arbitrator
88.1 The appeal arbitrator has the
following powers:
88.1.1 to determine questions
of law arising in the course of the appeal hearing;
88.1.2 to rule on any objections
made in the appeal hearing;
88.1.3 to order production of
documents which are material and relevant to the appeal;
88.1.4 to determine the
procedure to be followed having regard for fairness and equality between the
parties to the hearing;
88.1.5 to determine the
manner in which evidence is to be admitted and the appeal arbitrator is not
bound by rules of evidence and, within the limits prescribed by section 84.2,
has the power to determine admissibility, relevance and weight of any evidence;
88.1.6 to determine the time,
place and date of the appeal hearing; and
88.1.7 to determine whether
the appeal hearing is open to members and who may or may not attend the appeal
hearing.
88.2 The appeal arbitrator does not
have the power:
88.2.1 to subpoena any
witness or compel any person to give evidence at an appeal hearing excepting
that the returning officer is a compellable witness; and
88.2.2 to order any relief
not specifically permitted by this Code
88.3 Neither the Arbitration Act
of Alberta or the Commercial
Arbitration Act of Canada or any other like
legislations applies to the appeal arbitrator or to appeal hearings under this
Code
89 Determination of Appeals
89.1
The appeal
arbitrator shall dismiss any appeal which does not meet the requirements of
sections 82 and 83.
89.2
Within 5
days of the appeal hearing, the appeal arbitrator shall render a decision and
provide written reasons in support. The appeal arbitrator may:
89.2.1 dismiss the appeal;
89.2.2 grant the appeal, but deny any
corollary relief on the basis that the grounds established by the appellant did
not effect the election result; or
89.2.3 grant the appeal and order
corollary relief which may include a new election.
89.3 If the appeal
arbitrator determines that an appeal was so lacking in merit as to constitute
an abuse of the appeal process he or she may order the appellant to pay the
costs of the appeal hearing or the cost of the affected candidates or both.
(Applicant’s Application
Record, pp. 74 – 75)
[22]
I find
that s. 81.1.1 assumes that Ms. Gauthier’s actions are made within
jurisdiction. Therefore, with respect to Ms. Gauthier’s conduct as Returning
Officer preceding the February 2008 election, I find that Mr. Laurent’s
jurisdiction arguments could not be brought under the appeal provisions of the Code
because the permitted grounds of appeal are very specific and questioning Ms.
Gauthier’s jurisdiction is not one of them.
[23]
As a
result, I find that Mr. Laurent’s only access to justice for resolution of his jurisdictional
challenge is by bringing the present Application to this Court.
III. The Referendum Vote
Irregularities
[24]
Counsel
for Mr. Laurent argues that because the referendum was not passed by the
required vote of the Fort McKay First Nation membership, it could not have, and
does not have, force and effect. In response, Counsel for the Fort McKay First
Nation argues that any vote irregularities are cured by the election custom of
the Fort McKay First Nation.
[25]
With
respect to the circumstances of the referendum, the evidence tendered by the
Fort McKay First Nation is contained in the Affidavit of Mr. Larry Hewko, dated
June 27, 2008. Mr. Hewko is a chartered accountant and the Chief Financial
Officer of the Fort McKay First Nation, but prior to taking this position he
began employment in March 2004 with one of the co-receiver managers which at
that time had responsibility for the governance of the Fort McKay First Nation.
In 2004 this Court was engaged in mediation with the Fort McKay First Nation. Mr.
Hewko’s evidence with respect to this engagement and the catalyst for the
development of the Code is as follows:
4. The matters in Federal Court
No. T-558-04 came about as a result of a leadership dispute following the 2004
Fort McKay First Nation general election. In 2004, the First Nation was
operating under an unwritten election law that generally followed the Indian
Act as a guideline for rules governing the voting process. The Council was
comprised of 3 with 1 Chief and 2 Councillors.
5. In 2004, Chief Jim Boucher was
reelected and Councillors Gerald Gladue and Mike Orr were elected to Council.
The particulars of the governance dispute are contained in the records for
Federal Court No. T-558-04. To the best of my knowledge, these involved a
division in the Council between Councillors Orr and Gladue on the one hand and
chief Boucher on the other. Chief Boucher applied to the Court and the Court
granted the request of Chief Boucher to have an administrator appointed to run
the affairs of the First Nation while this dispute was ongoing.
6. Late in 2004, following many
months under third party administration, the Council addressed a resolution of
the governance dispute in order to restore the normal day to day business of
the First Nation. The result of those discussions was the Fort McKay First
Nation Election Code which is the subject of Stanley Laurent’s application to
this Court.
7. My understanding of the
Election Code was that it was a document which had been worked on prior to the
2004 election starting in about 2002. The draft document was brought forward
but with some important changes to address the governance dispute and the
litigation.
8. Section 92.1 of the Election
Code was specifically added to address the issues that had lead to the
litigation. This section requires that Council decisions be based on consensus
rather than majority rule. Section 92.3 says that where there is no consensus
the matters go to membership for a vote. The effect of these sections was to
ensure that factions on Council did not frustrate the decision making process.
9. It has been my observation as
a senior employee with Fort McKay First Nation, that these sections (92.1 to
92.3) have been effective in ensuring that Council works cooperatively and in
the best interests of the First Nation. The day to day operations and business
of the Council have been positive, cordial, and effective since the
implementation of the Election Code. This was a significant change from the
situation which immediately preceded the Election Code.
10. The second major change that
was made to the draft Election Code was section 106.1.1. It is my
understanding that the nomination requirement of lifelong membership in section
9.1.8 had been in earlier drafts of the Election Code but this new section (106.1.1)
was added as a result of the further discussions that led up to the December
22, 2004 draft Election Code.
11. The third major change was the section dealing with
ratification of the new Election Code. Older versions of the Election Code had
contained provisions requiring a majority. I recall that there was some
dispute about what that meant. The receiver managers took the view that a
simple majority of those who voted should be sufficient to ratify the Election
Code. The receiver managers had an understanding that there were no laws or
Indian Affairs policies that determined ratification requirements for passing
election laws. The receiver managers decided that if the Council was not in
agreement about what version to put forward to the members, then there was
already a process in place in terms of the ongoing litigation and they could
fight it out there.
12. The Council agreed to remove
the section which is referred in the notice which is attached as Exhibit “A”
tab 4 to the Affidavit of Stanley Laurent.
13. Based on my work experience since 2004 with Fort McKay First
Nation, I would say the general process for passing the Election Code was
consistent with the practice of the First Nation for passing other laws or
policies. In the normal course, such laws or policies are prepared by the
Chief and Council in consultation with administration and legal counsel. There
is no community based consultation process at the drafting stage. However,
final drafts are reviewed with membership at regular or specially scheduled
Band meetings. If necessary, the law or policy is voted on but in most cases
the Council will gauge the feedback from members, make decisions on any
necessary changes or further revisions, then pass or not pass the law or policy
in question.
14. Though I was not in attendance
at the community meeting when the proposed Election Code was reviewed I was
later told by Elders and Band Member employees that Stanley Laurent did come to
the meeting and spoke against the proposed Election Code.
15. I do not know where the ratification officer obtained
information respecting the old draft Code and its ratification provisions.
16. The Election Code was voted on and implemented February 8, 2005.
Attached and marked as Exhibit “A” to this my Affidavit is a copy of the
Referendum Guidelines which were used in relation to the vote.
17. Following the implementation of
the new Election Code a by-election was held on April 6, 2005.
18. Councillors Cecilia Fitzpatrick
and Raymond Powder were elected in the April 6, 2005 by-election. There were
no appeals.
(Respondents’ Record, pp. 203 – 205)
A. The potential effect of
the “s. 106.1” statement in the Notice of Referendum
[26]
It is
important to note the request stated in the Notice of Referendum that “every
Band Member is strongly encouraged to review the proposed New Election Code as
it contains many new provisions which are a departure from what the Band
practice has been in prior elections”.
[27]
As
mentioned, the Code is the final result of a consultative process in
which a number of drafts were produced. Relying on Mr. Hewko’s evidence,
Counsel for the Fort McKay First Nation argues that the inclusion of the s.
106.1 statement in the Notice of Referendum was just a mistake resulting from
the consultative process. That is, s. 106.1 was a provision in an early draft
of the new custom election code and should not have been quoted in the Notice
of Referendum because the Code proposed for ratification does not
contain that provision. The argument is directed at the point that the mistake
is of no real importance.
[28]
Whatever
the explanation for the discrepancy, it should have been obvious to the
leadership that the misleading information could affect the attendance at the
referendum meeting. Indeed, Mr. Laurent, who opposed the ratification of the Code,
did not vote because, since a majority of the electors of the Fort McKay First
Nation were required to attend the ratification vote meeting, his failure to attend
constituted a negative vote (Applicant’s Application Record, p.20, para. 21).
B. The decision-making
respecting the vote required
[29]
The
evidence supplied in paragraph 11 of Mr. Hewko’s affidavit is important. Mr.
Hewko acknowledges that older versions of the Code “contained provisions
requiring a majority”, which read together with his paragraph 15, can be taken
to mean that in those earlier versions at least a majority of the electors of
the Fort McKay First Nation was required to approve the new written custom election
code. However, by paragraph 11 of Mr. Hewko’s affidavit, it appears that there
was a dispute between the elected leadership, being the Chief and two
Councillors, and the two third-party managers, with respect to the referendum
results necessary to give authority to the leadership to put the Code
into effect. It appears that the managers won the argument: s. 9.1 of the Referendum
Guidelines produced only requires that “the determination question of the
Referendum Question shall be by simple majority of the Electors who have participated
in the Referendum Vote”; and paragraph 12 of Mr. Hewko’s affidavit confirms
that “Council”, being the Chief and the two Councillors, agreed to remove the
more stringent s. 106.1 provision from the Code. However, the terms of
the Code itself speak to a completely different vote being required.
[30]
It must be
remembered that the development of the written custom election code was the
result of a consultation with the Fort McKay First Nation membership. Thus, regardless
of the nature of the internal leadership debate as described, the terms of the Code
itself must be taken as an expression of the will of the membership of the Fort
McKay First Nation that the referendum was required to be passed by a majority
of the electors of the Fort McKay First Nation. There is no evidence that the
membership provided the leadership with any authority to deviate from this
expression of will.
[31]
I find it
is fair to say that the creation of s. 106.1 at some time during the
consultative process leading up to the referendum vote is evidence of the high
importance given by the Fort McKay First Nation electors to the changes to the
governance custom of the Fort McKay First Nation, including the qualifications
required of candidates running for office. By s. 106.1, a majority of the
electors of the Fort McKay First Nation would be required to attend a
referendum vote meeting, and the referendum would only be passed by a majority
vote of that voting body. Indeed, the statement in the Code that a
majority vote of the Fort McKay First Nation electors is required to put the Code
into effect, while not requiring the majority of the electors to attend a
referendum vote meeting, is further evidence of the high importance of the
proposed changes. In contrast, there is no evidence on the present record of
any authority granted by the electors to the issuance of the contrary voting
provision stated in the Referendum Guidelines that the Code can
be put into effect merely by a simple majority of the votes cast in a
referendum vote.
C. The leadership’s
jurisdiction to act on the referendum results
[32]
In my
opinion, the leadership of the Fort McKay First Nation was reckless in its
execution of the referendum vote. It knew of the s. 106.1 misleading vote
requirement statement in the Notice of Referendum and must have known its
potential impact on voter attendance, and the leadership must be taken to have
known of the majority of the electors of the Fort McKay First Nation
requirements stated in the Code itself, and yet, the approval of only
24.86% of the electors of the Fort McKay First Nation was used to put the Code
into effect.
[33]
As a
result, unless an overriding saving provision can be demonstrated based on the
custom of the Fort McKay First Nation, there is no question that the leadership
had no jurisdiction to put the Code into effect, and, as a result, Ms.
Gauthier had no jurisdiction to reject Mr. Laurent’s nomination papers. The
issue now is whether Fort McKay First Nation custom supplies such a saving
provision.
IV. Fort McKay First Nation Custom as a
Saving Provision
[34]
Counsel
for the Fort McKay First Nation makes the following legal argument in support
of custom as a saving provision:
Customary Practices Generally Acceptable
To Band Members
A number of decisions respecting
customary election laws have said that the Court, in endeavouring to ascertain
a First Nation’s customary law, should consider whether the practices are
generally acceptable to the Band Members and upon which there appears to be a
broad consensus. [Bone v. Sioux Valley
Indian Band No. 290
(1996) 107 F.T.R. 133 at para. 28]
Courts have expressly rejected the notion
that changes in customary law must be voted on and passed by a majority of
electors [Bone v. Sioux
Valley Indian Band
No. 290 (1996) 107
F.T.R. 133 at paras. 28 to 33]
Evidence of generally accepted practices
and a broad consensus are based on all of the evidence and not just evidence of
a referendum process. The conduct of the Band in acquiescing in the use of a
customary law is an important indicator of consensus and sufficient evidence to
satisfy the Court that there is a broad consensus. [Bone v. Sioux Valley
Indian Band No. 290
(1996) 107 F.T.R. 133 at para. 65 and Bigstone v. Big Eagle
(1992) 52 F.T.R. 109 at paras. 23 and 24]
(Respondents’ Record, p. 1904)
[35]
Respecting
this argument, in Bone v. Sioux Valley Indian Band No. 290 at paras. 28 to 33, Justice
Heald does not specifically address the majority vote issue but endorses the
statement of Justice Strayer in Bigstone v. Big Eagle at pages 117 and
118 that “unless otherwise defined in respect of a particular band, ‘custom’
must I think include practices for the choice of a council which are generally
acceptable to members of the band upon which there is a broad consensus”.
Paragraph 65 of Bone v. Sioux Valley Indian Band No. 290 expresses the
conclusion that, in that case, where a nomination, election, and subsequent
appeal was conducted according to the election code, and “approximately 50% of
the eligible voters participated in the March 14, 1994 election”, and there
being “no evidence that at any time before or during the election any Band
member objected to the manner in which the election by Band custom was
proceeding”, there was sufficient evidence to satisfy the test set by Justice
Strayer in Bigstone.
[36]
The
evidence of the circumstances in the present case supplied by the affidavit
evidence of Mr. Hewko is as follows:
19. Since 2005 there have been no
governance related disputes within Fort McKay First Nation which have
interfered with the normal day to day business of the First Nation. The
implementation of the Election Code resolved the earlier governance dispute and
established a new direction for the Council. The new Election Code requires
that decisions be made on a consensus basis and in my experience the Council
has achieved consensus on its decisions. I am not aware of any matters that
have had to go to a vote of the membership with the exception of matters which
are required to go to a vote under provisions governing the Fort McKay Heritage
Trust.
20. The First Nation holds regular Membership meetings as
required by the Election Code. Membership have been advised of Mr. Laurent’s
litigation but the feedback received from Members to date has indicated no
general interest in re-opening the Election Code for reconsideration or
returning to the Council procedures that applied before the implementation of
the Election Code. In fact, I have heard some Elders say that Mr. Laurent
should consider seeking office at his own Reserve rather than Fort McKay’s.
21. With respect to the history of section 9.1.8 of the Election
Code, the information which I have received from Members is that this section
was added to the Election Code to address concerns respecting people who did
not have a historical connection to Fort McKay. This section has been understood
and applied by Fort McKay First Nation as restricting people who have made a
deliberate choice to change their membership status and transfer from another
First Nation. These individuals may not have a historical connection to the
Fort McKay First Nation and would not have been raised within the Fort McKay
First Nation’s culture and traditions. As such section 9.1.8 is generally
regarded as a means to protect and preserve Fort McKay First Nation’s culture,
traditions, and values.
22. I have been at Fort McKay First
Nation for both the elections held under this Election Code and section 9.1.8
has never been used to restrict the candidacy rights of those members who
regained their status under the law known as Bill C-31. Those individuals
would not have held membership with any other First Nation and were denied
their status as a result of laws and policies of Canada and not by their own choice.
23. Mr. Laurent has correctly
identified Councillors Cecilla Fitzpatrick and Raymond Powder as individuals
who were impacted by Bill C-31. However, both these Councillors have
significant roots in the First Nation and a family history that goes back to the
origins of the First Nation. It is my understanding that neither of these
Councillors were ever members of another First Nation.
24. In addition, section 9.1.8 has
never been used to restrict the candidacy rights of persons born before 1954
when Fort McKay was first recognized as a
Band. Mr. Laurent’s mother in law, Clara Boucher, ran in both the 2005
election and the 2008 election and, I believe, she was born prior to 1954.
(Respondents’ Record, pp. 206 – 207)
[37]
With
respect to Fort McKay First
Nation custom, on
the basis of Mr. Hewko’s evidence quoted from his affidavit, Counsel for Fort McKay First Nation argues as
follows:
In
the circumstances of the case at bar, the following facts are relevant:
a.
The process for
review and passage of the Election Code was undertaken in accordance with Fort McKay’s usual practices.
b.
A significant number
of electors participated in the referendum of the Election Code and a majority
of these voted to approve the Election Code.
c.
The Election Code has
been in force since February
8, 2005 and its
implementation was not challenged.
d.
The Election Code was
implemented while Federal Court proceedings were ongoing. The Receiver
Managers were not discharged until after the April 2005 elections but no one
raised any objection in those proceedings.
e.
No one challenged the
election held in April 2005 or the election result for two new Council
positions though the prior custom of the First Nation only allowed for a
Council of three.
f.
The Chief and two
Councillors were elected under customary law which allowed for a term of two
years. That term was extended to four years under the Election Code. No one
challenged the right of these members of Council to continue to hold office.
g.
Fort McKay has been operating on a day to day basis
under the governance provisions of the Election Code since its implementation
in February 2005. No one has challenged any step or proceeding undertaken by
Council in accordance with the Election Code.
h.
Membership has been
advised of these proceedings but has demonstrated no interest in setting aside
or revising the Election Code. No Member has come forward to participate in or
support the Applicant in these proceedings.
(Respondents’ Record, pp. 1904 – 1905)
[38]
It is
clear that custom is conduct from which conclusions can be drawn. It is also
clear that the quality of the evidence tendered to prove conduct is critical to
determining custom. The import of the Fort McKay First Nation custom argument
is that the evidence of membership conduct after the referendum vote is proof
that its passage by only 25% of the electors of the Fort McKay First Nation is acceptance
of such a vote.
[39]
In the
analysis of this argument a primary question to ask is: is there direct evidence
that it is a Fort McKay First Nation custom to act on a referendum vote passed
by only 25% of the electors of the Fort McKay First Nation? The answer is “no”.
[40]
A second
question is: is there any cogent evidence from which to infer that there is a consensus
of acceptance of the leadership’s failure to follow the standard for referendum
approval stated in the Code as above described? It is important to
remember that the Code is an expression of Fort McKay First Nation
custom, and, by that custom, there are clear provisions regarding putting the Code
into force and effect, and for amending it. In the present case, the custom
election consensus of the membership of the Fort McKay First Nation, as
expressed in the Code itself, is to have the Code passed by a
majority of the electors; this consensus was apparently disregarded by the
leadership. Thus the question becomes: is this disregard acceptable by custom?
Finding an answer to the question is all about the quality of the evidence.
[41]
Therefore,
in my opinion, the application of the Bigstone principle to the
“acquiescence” observed in Bone v. Sioux Valley Indian Band No. 290 has
no value as precedent in the circumstances of the present case because the
facts in that case are very different from the facts in the present case. Therefore,
the answer to the question depends on the weight to be given to Mr. Hewko’s evidence
concerning conduct of the members after the Code was purportedly put
into effect by the leadership.
[42]
I do not
give Mr. Hewko’s evidence sufficient weight to prove the existence of a Fort McKay First Nation custom to accept
the fact that the Code was validly put into effect contrary to its own
terms. In particular, Mr. Hewko’s statement in paragraph 20 of his affidavit
concerning “feedback received from Members” and “some Elders say” gives no
basis upon which a conclusion can be drawn of any consensus of the membership. The
statements are hearsay evidence coming from a direct participant in the
decision-making presently under review, and, to my observation, are only
directed to generating support for the contentious decision-making of the
leadership. In particular, there are no dates, names, or numbers provided in
the statement to give any basis for arriving at a conclusion on membership
consensus. The fact that, as stated in paragraph 19, there have been “no
governance related disputes” proves nothing with respect to membership
consensus because this statement does not directly refer to the contentious
referendum vote question. And further, given the time, trouble, and expense of
taking legal action to challenge the leadership decision to disregard the
consensus respecting voting practices, to have no such action taken does not
prove that the disregard has achieved acceptance in the post-referendum period.
In my opinion, the evidence relied upon to prove that, by custom, the disregard
has been accepted is so weak as to be of no value.
[43]
It is
important to note that the Code expresses that democratic values must
govern. The evidence goes to show only that there has been no objection to the
terms under which the Code went into effect, and there is no movement to
change it. The question is: can this evidence be accepted as some form of
custom to save an obvious failure to follow what must be considered election
custom which was merged into and expressed in the Code? That is, can it
be said that this inaction is a retroactive consensus expressed by the
membership condoning the actions of the leadership not to follow the voting
terms of the Code? If the answer is yes, one can see a situation arising
where the leadership simply makes a decision not to follow the Code, and
if there is inaction by the membership after the action is taken, it can be
assumed that there is a consensus that breaching the Code creates a new
custom code. This form of practice would be in sharp conflict with democratic
principles accepted in the Code as governing features of the Fort McKay First
Nation. My answer to the question is “no”.
[44]
I find
there is no cogent evidence of consensus to condone by custom the failure of
the leadership to follow the terms of the Code which they so carefully
prepared. In my opinion, it is unfair to all members of the Fort McKay First
Nation to allow those in control to simply change the rules as they consider
expedient. On the evidence, this is what occurred here.
V. Conclusion
[45]
Because
the leadership had no jurisdiction to put the Code into effect following
the referendum vote, I find that all actions taken under the Code with
respect to the February 25, 2008 election were taken without jurisdiction.
Specifically with respect to Mr. Laurent’s challenge to the actions taken by
Ms. Gauthier, I find that she had no jurisdiction to reject his nomination
papers, and had no jurisdiction to declare Mr. Boucher as Chief of the Fort
McKay First Nation.
ORDER
For the reasons provided, pursuant
to s. 18.1 (3) (b) of the Federal Courts Act, I declare that the Fort
McKay First Nation Election Code dated December 22, 2004 is invalid. As a
result, I further declare that, for want of jurisdiction, Ms. Gauthier’s
decision of February 11, 2008 rejecting the nomination of Mr. Laurent and
acclaiming Mr. Boucher as Chief of the Fort McKay First Nation is invalid.
“Douglas
R. Campbell”
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