Date: 20090527
Dockets: T-1587-08
T-610-09
T-660-09
Citation: 2009 FC 548
T-1587-08
BETWEEN:
TEMAGAMI FIRST NATION, Gary
Potts, Peter McKenzie
Annette
Polson, Sherwood Becker Jr. and Thomas Friday Sr.
Applicants
and
JOHN TURNER, JAMIE SAVILLE, ROXANE
AYOTTE,
JOHN MCKENZIE, STEVEN LARONDE AND ARNOLD
PAUL
Respondents
AND BETWEEN:
T-610-09
TEMAGAMI FIRST NATION as represented by Chief Roxane Ayotte,
Second Chief John McKenzie, and
Councillors, Arnold Paul, Marty Pridham,
Jamie
Saville,
and Steven Laronde
Applicants
- and –
GARY POTTS, PETER MCKENZIE, ANNETTE POLSON, THOMAS FRIDAY, SR., AL MARQUETTE, and DOUG McKENZIE and all those
purporting to be Chief, Second Chief, and/or Councilor of Temagami First Nation
Respondents
AND BETWEEN:
T-660-09
TEMAGAMI FIRST NATION as represented by first chief FIRST CHIEF GARY
POTTS, SECOND CHIEF PETER McKENZIE and COUNCILLORS ANNETTE POLSON and THOMAS FRIDAY SR.
Applicants
- and -
ROXANE AYOTTE, JOHN MCKENZIE, JAMIE SAVILLE, MARTY PRIDHAM, STEVEN
LARONDE AND ARNOLD PAUL
Respondents
REASONS FOR
JUDGMENT
HUGHES J.
[1]
These
Reasons pertain to three separate applications brought in this Court:
T-1587-08; T-610-09; and T-660-09. The first, T-1587-08, was heard April 27,
2009, the latter two T-610-09 and T-660-09 were heard together, pursuant to an
Order issued on consent, on May 13, 2009. Having heard these applications I
agreed not to release any Reasons or Judgments until after completion of a
mediation process conducted by another Judge of this Court, Justice Mandamin.
Only if the mediation was unsuccessful would I release these Reasons and
deliver Judgment. Regretfully that is what I must do.
THE PARTIES
[2]
The
Applicants and Respondents in each of these proceedings, depending on which
proceeding is being considered, claim to represent the Temagami First Nation,
an aboriginal First Nation Band located in the vicinity of Bear Island, Lake
Temagami,
Ontario. Each of the two groups claims to be the Chief, Second Chief and
Councillors of the Temagami First Nation. While to some extent the Applicants
and Respondents in each application differ in the addition or omission of
certain persons it is generally convenient, for simplification, to call each
group by the name of the person in that group claiming to be Chief. Thus in
T-1587-08 the Potts Group is the Applicant and the Ayotte Group is the
Respondent. In T-610-09 the Ayotte Group is the Applicant and the Potts Group
is the Respondent. In T-660-09 the Potts Group is the Applicant and the Ayotte
Group is the Respondent. However in T-610-09 two persons who were elected to
the Potts Council as a result of a by-election, Al Marquette and Doug McKenzie,
were not part of the original Potts Group and are not represented by the
lawyers representing that group. They are unrepresented. Al Marquette spoke on
his own behalf at the May 13 hearing. Doug McKenzie was not present.
[3]
At
the outset of the Respondents’ argument at the hearing of application T-1587-08
their Counsel raised an objection as to the propriety of the naming and persons
constituting the Applicants and Respondents to that proceeding. This objection
had not previously been raised whether by way of a notice of motion or in the
Respondents’ written factum. Further, a consent Order was made by Prothonotary
Tabib very recently, on March 14, 2009, amending the style of cause by removing
and adding certain parties as Applicants and Respondents. Surely if there had
been any serious issue as to who should be the proper party or parties an
objection should have been raised at that time. Since no earlier objection had
been raised, I refused to hear belated submissions raised orally for the first
time at the hearing as to the propriety of any party to that proceeding
T-1587-08.
THE RELIEF CLAIMED
[4]
In
T-1587-08 the Applicants, the Potts Group, seek the following relief:
1. A
declaration that the results of the general election held on June 12, 2008 are
valid;
2. An
order that the two resolutions moved and seconded on August 2, 2008 and termed
“Resolution #1: TFN Community Ruling and Directive” and “Resolution #2: TFN
Constitutional Amendment” are invalid, unlawful and without authority or
effect;
3. A
declaration that the purported election held on September 20, 2008 was invalid,
unlawful and without authority or effect;
4. A
declaration that any steps taken since June 12, 2008 respecting the purported
amending of the Temagami First Nation Tribal Constitution are invalid, unlawful
and without authority or effect;
5. Costs of this
application on a solicitor-and-client basis; and
6. Such
further and other relief as to this Honourable Court may seem just.
[5]
In
application T-610-09 the Applicants, the Ayotte Group, seek the following
relief:
1.
a
writ of quo warranto pursuant to section 18(1) of the Federal Courts Act, R.S.C.
1985, c.F-7 concerning the claimed right of the Respondents to hold office as
the Band Council of Temagami First Nation;
2.
a
writ of quo warranto to the effect that the Respondents have no right to hold
office as Chief and/or Councillors;
3.
a
declaration in the nature of quo warranto that the Respondents do not have the
right to hold the offices of chief or councillor, as the case may be;
4.
an
injunction enjoining the Respondents from holding themselves out as the Chiefs
and Council of the First Nation or otherwise interfering with the lawful
exercise of the powers of Chief and Council by the Applicants;
5.
an
injunction enjoining the Respondents from access to, dissipation of, conversion
of, or appropriation of Band assets for their personal use, including, but not
limited to legal fees in relation to the judicial review application before the
Federal Court (Temagami First Nation v. John Turner et al. Court Number
T-1578-08);
6.
costs
of this application payable by the Respondents personally on a full indemnity
scale (solicitor and client costs); and,
7.
Such
further and other relief as to this Honourable Court may deem just.
[6]
In
application T-660-09 the Applicants, the Potts Group, seek the following
relief:
1.
A
declaration that the petition dated February 3, 2009 and provided to the
applicants on February 23, 2009 and the motions dated March 14 and 29, 2009 are
invalid, unlawful and without authority or effect;
2.
A
declaration that the justifications relied upon by the respondents in their
petition as reasons for impeachment of the applicants are without merit,
unreasonable and perverse;
3.
A
declaration that the steps taken by the respondents to assume control of
governance of Temagami First Nation based on the petition and motions are
invalid, unlawful and without force or effect;
4.
A
writ of quo warranto against the respondents concerning their claimed right to
hold office as Chiefs and Council of Temagami First Nation;
5.
A
declaration of the results of the June 12, 2008 general election remain valid
and that the Chiefs and Councillors elected at the time and who have not
resigned are entitled to remain in elected office;
6.
An
Order consolidating this application under Rule 105 with the application
bearing court file no. T-610-09 (brought by the respondents to this application);
7.
Costs
of this application on a solicitor-client basis; and
8.
Such
further and other relief as to this Honourable Court may seem just.
[7]
It
is noted that the prayers for relief in each application are directed to a
number of different matters, albeit related. No objection has been made by any
party at any time as to the number of matters raised, and nor will I.
[8]
Counsel
for the Applicants in T-610-09, the Ayotte Group, in addressing this Court at
the hearing held on May 13, 2009 stressed that it was not the intention of the
Applicants’ (Ayotte Group) to have the Court make any Judgment or declaration
that would legitimize the Ayotte Group’s claim to be Chief and Counsel.
Essentially all that these Applicants wished would be for the Court to determine
that the most appropriate relief would be to hold a new election. To this
extent therefore the relief requested in paragraph 3 in application T-1587-08
and in paragraphs 3 and 4 in application T-660-08 are unnecessary. The relief
requested in paragraph 6 in application T-660-08 has already been granted on
consent.
ISSUES
[9]
The
issues in those three applications can be simplified and restated as follows:
1.
Are the
results of the June 12, 2008 election in which the Potts Group was elected as
Chief and Council of the Temagami First Nation valid.
2.
If these
results were valid were the attempts to impeach the Potts Group as Chief and
Council valid and effective for that purpose.
3.
Should an
injunction issue to restrain the Potts Group Council from expending any further
funds in T-1587-08.
ONTARIO PROCEEDINGS
[10]
Note
must be taken of other proceedings involving many of the same parties in the
Ontario Superior Court of Justice, CV-08-471-00. In those proceedings the
Temagami First Nation represented by what I have called the Potts Group is
named as plaintiff and many of the same persons as I have called the Ayotte
Group are named as defendant. Much of the same relief as is claimed in
application T-1587-08 in this Court is claimed in that action. An appearance has
been entered in that action but no further steps have been taken. I am advised
by Counsel for the parties here that the Ontario action has
been put “on hold” pending the disposition of proceedings in this Court.
ORGANIZATIONS AND
PERSONS INVOLVED
[11]
There
are many organizations and persons involved in the matters at issue. Some of
them are:
TFN: Temagami First Nation
INAC: Indian and Northern Affairs Canada
Roxane Ayotte: Elected Councilor on June 12, 2008.
She claims to be First Chief based on elections held in the fall of 2008.
John McKenzie: Chief of Teme-Augama Anishnabai, the
land claims negotiation organization. He was a candidate for Second Chief in
the June 12, 2008 election and lost by one vote. He was elected Second Chief
of the Ayotte Group in the fall of 2008.
Al Marquette: elected as a Councilor in a by-election
to the Potts Group Council. He represented himself and spoke in these
proceedings.
Virignia Paul: Secretary/Membership Clerk for the
Band Council. She was the Elections Officer in all elections held from
approximately 1994 to June 12, 2008.
Gary Potts: Claims to be First Chief based on the
June 12, 2008 election.
Desire Snef: TFN member and individual who delivered
the February 2009 impeachment petitions.
Elizabeth Taylor: Ayotte Group Electoral Officer.
John Turner: Ayotte Group member.
CHRONICLE OF EVENTS
[12]
The
events relating to these three applications are complex but, except where
noted, are largely not contradicted. I list them more or less chronologically
with a brief explanation. The first list is derived from the evidence in
T-1587-08:
|
Date
and Activity
|
Detail
|
|
March 19, 2008
|
TFN Community meeting where the issue of ceasing the land
claims negotiations was voted on. The resolution passed, but not by a
majority, and therefore a second vote was required.
|
|
May 1, 2008
TFN Council calls a general election
|
Ms. Paul is appointed as the Band’s Electoral Officer.
She is the sister of the then Chief.
|
|
May 22, 2008
Notice of
meeting and election
|
Ms. Paul gave notice to the electors of TFN that a
nominations meeting was to be held on May 29, 2008 followed by a general
election on June 12, 2008.
|
|
May 23, 2008
Voters list is posted
|
The voters’ list was posted at three publicly-accessible
locations.
|
|
June 5, 2008
June MacInnes added to voter list
|
June MacInnes applied to be on the voters’ list. The
Electoral Officer met with Ms. MacInnes and reviewed the eligibility criteria
with her. The Electoral Officer determined that Ms. MacInnes was eligible to
vote and she swore an affidavit to that effect. Ms. MacInnes was added to
the list.
|
|
May 29, 2008
Nomination meeting
|
Four members of the TFN are nominated for first Chief,
three for second Chief, and eight members nominated for the four Councilor
positions.
|
|
June 12, 2008
General election
|
The Electoral Officer was assisted by two Assistant
Electoral Officers, Lillian Birtch and Jennifer Potts Paul.
Charles Laronde, a member of the TFN who was not on the
voters’ list, was allowed to vote on election day. He provided a drivers
license to prove that he lived on Bear Island. The Electoral Officer and
Assistants were satisfied that he was eligible to vote; he swore an affidavit
and was added to the list.
Three others, Trevor Laronde, Briana Nelles and Simone
Twain, attempted to vote but were not added to the list. The Election
Officer determined they were not eligible as they lived off the Tribal
Ancestral Hunting Lands and did not meet any of the exceptions in the Tribal
Constitution.
The original number on the voters’ list was 187. The
final total number of voters on election day was 187, factoring in the
addition of June MacInnes and Charles Laronde.
The polls were closed and the ballots counted by the
Electoral Officer, the Assistants and twelve scrutineers. They all agreed on
any unclear or spoiled ballots.
|
|
June 12, 2008
Results of the general election
|
It was a tie for first Chief as both candidates, Alexander
Paul and Gary Potts, received 51 votes. The Electoral Officer was related to
both candidates. Based on s. 8-3(p) of the Tribal Constitution the Electoral
Officer shall give a casting vote in the event of a tie. Ms. Paul had stated
in the past that she would break any tie by flipping a coin, which she did.
Based on the coin toss she cast the deciding vote in favour of Gary Potts.
Peter McKenzie was elected second Chief (by one vote over
John McKenzie) and Roxane Ayotte, Sherwood Beker Jr., Thomas Friday Sr. and
Annette Polson were elected as the four Councilors.
The Electoral Officer prepared the proscribed results
forms and faxed them to various agencies and submitted an elections report to
INAC. On June 25, 2008, INAC confirmed the selection of the Chiefs and
Council.
A recount was held on June 16, 2008 and the vote results
were confirmed.
|
|
June 27 - July 11, 2008
Election appeals are filed
|
Election appeals were filed by John Turner, Jamie Saville,
John McKenzie, and Alex Paul Sr. and six other TFN members.
The appeals centered on the issue of voting – specifically
that some members who did not meet the eligibility criteria voted while
others who met the criteria were denied. They claimed that the Electoral
Officer was in a conflict.
The Elections Officer wrote “denied – no grounds” on the
petitions and returned them to the sender. If the appeal did not meet the
requirements under the Tribal Constitution, the Electoral Officer explained
the requirements.
The first Chief and the elected Councilors were not
consulted in the handling of the election appeals.
|
|
July 9, 2008
Correspondence from John McKenzie
|
In a letter from John McKenzie to Chief Potts, John
McKenzie asks the Councilors not to conduct any meetings as the election
results were being appealed.
|
|
July 29, 2008
Council receives a petition
|
The Potts Group received a petition signed by voting and
non-voting members “directing” the Council to hold a community meeting on
August 2, 2008 during which members the TFN would be allowed to vote on a
resolution to declare the positions of First Chief and Second Chief vacant
and hold a new election.
The Chiefs and Council responded via letter on the same
day stating that they did not endorse the community meeting and that the
petition was not in accordance with the Tribal Constitution. They affirmed
the fall community meeting scheduled for September 20-21, 2008.
One Councilor, Roxane Ayotte, disagreed with the Chiefs
and Councilors on this issue and later resigned.
|
|
August 2, 2008
First Ayotte Group community meeting
|
Two resolutions were presented at the August 2 Ayotte
Group meeting:
Resolution #1: TFN Community Ruling and Directive:
requiring a new general election for all TFN Council positions.
Resolution #2: TFN Constitutional Amendment: to remove
many of the criteria for voter eligibility.
The resolutions did not receive majority support of
eligible voters at the meeting, as set out in the Tribal Constitution, and
were deferred for a second vote.
|
|
August 17, 2008
Second Ayotte Group community meeting
|
On a second vote the two resolutions were passed. It is
unclear who voted.
|
|
August 28, 2009
|
John McKenzie issued a news release stating that the
Teme-Augama Anishnabai Council did not recognize the current Chiefs and
Council of the TFN.
|
|
September 7, 2008
|
Notice of the Ayotte nomination meeting and election
posted on TFN letterhead.
|
|
September 12, 2008
|
Roxane Ayotte resigns as a June 12, 2008 elected
Councilor.
|
|
September 14, 2008
|
Ayotte Group nomination meeting, results posted on TFN
letterhead.
|
|
September 20 -21, 2008
Community meeting and Ayotte Group elections
|
Ayotte Group elections, results posted on TFN letterhead.
Roxane Ayotte was elected First Chief, John McKenzie Second Chief, and Jamie
Saville, John Turner, Steven Laronde, Arnold Paul as Councilors.
The election took place at the same time as the scheduled
fall community meeting.
On the 21st a “compromise resolution” was put
forward at the meeting to disregard the June 12 and September 20 elections
and hold a new election. The majority of meeting attendees, regardless of
voting status, voted in favour of the resolution: 41 in favour, none against,
3 abstentions.
|
|
October 7, 2008
Communication from Potts Group to the community
Communication from John Turner to the community
|
The Potts Group sent a letter to the community cancelling
the scheduled October 11th meeting and stating that they were
going to apply to the Federal Court for resolution of the issues.
John Turner distributed his own notice stating that the
meeting would go ahead.
|
|
October 11, 2008
Ayotte Group community meeting
|
A community meeting was held by the Ayotte Group. Both
Resolutions 1 and 2 passed, as did the “compromise resolution” to hold
another election. It is unclear who voted.
Elizabeth Turner was appointed Electoral Officer. A Council
of Elders was also appointed.
|
|
October 12, 2008
Notices posted
|
Notice of the Ayotte Group elections, with nominations to
be held on the 20th and elections on the 26th, was
posted.
100 people attend the polls, but their voting status was
not determined.
|
|
October 12-14, 2008
Protest Camp
|
A protest camp was set up outside the Band Office.
|
|
October 15, 2008
|
Application for Judicial Review filed in the Federal Court
of Canada (Court File No. T-1587-08) by the Potts Group.
|
|
October 17, 2008
|
A Statement of Claim was filed in Ontario Superior Court
by the Potts Group.
|
|
October 26, 2008
Ayotte Group election
|
Ayotte Group election. The same people were elected as on
September 20th, except that Marty Prindham was elected as Council
instead of John Turner. John Turner did not run in the second election.
|
|
October 27, 2008
|
Ayotte Group attempted to assert their leadership at the
Band Office.
|
|
November 6, 2008
|
An injunction motion is filed by the Applicants. The
motion is dismissed by Justice Noel on November 11, 2008.
|
[13]
Further
evidence was adduced in T-610-09 which, on consent of the parties, applies also
to T-660-09. The following is a chronology of those events:
|
Date
and Activity
|
Detail
|
|
February 23, 2009
Petitions delivered to the TFN Band Office
|
Desiree Senf delivers petitions to the Band Office. The
petitions take three different forms. The First Petition stated:
·
That the Chiefs and Council (Potts) put themselves in a
conflict of interest in bringing the Judicial Review application in T-1787-08
to protect their interests and that this action was in conflict with
resolutions called and voted on at the September 20 and October 11, 2008
meetings;
·
That Chief and Council (Potts) acted beyond their powers of
office by filing the Judicial Review and naming individual community members
without obtaining the support of the community through a vote;
·
A Band meeting must be called to vote on and decide the above
charges.
The Second petition is dated February 2009 and has
additional text to the First. The Second petitions are signed by one person
per page and include text to the effect that their signature is without
prejudice to any position they may take in another forum.
While the Third petition is similar to the text of the
First and Second, this petition, dated February 1, is more specific. It
addresses: money spent on the Judicial Review, changes to the Rama Revenues
Committee, suspension of the Land Claims Negotiations, and using the Judicial
Review process to “usurp the community process”. No explanation for the
differences was provided.
A covering letter accompanying the petitions stated:
·
51% of eligible voters (as on the list compiled for June 12th)
had signed the petition in accordance with the impeachment provision in the
Constitution (s. 5-1 H);
·
That 9 specified members should be added to the voters list as
they met the qualifications as of June 12, 2008 and also signed the
petition.
·
A Band meeting would be held at the Bear Island Recreation
Centre on Saturday March 14, 2009 at 10 am.
A receipt was provided with a photocopy of the original
petition.
|
|
March 10-12, 2009
Communication via letter between Chief Potts and Ms. Senf
|
A letter from the Potts Group was sent to Ms. Senf. In it
the Chief and Council stated that the petitions did not comply with the
requirements of the Tribal Constitution and therefore a community meeting
would not be scheduled. They stated some of the problems with the petitions
were:
·
There were 88 personal signatures, not sufficient to meet the percent
required by the Tribal Constitution.
·
Forty-six signatures were from non-eligible voters;
·
The documents had different wording;
·
Many of the “signatures” were in electronic form or were not on
the actual petition.
Ms. Senf responded on March 12 stating that she did not
accept their position and that a meeting must be held.
Ms. Senf sent a second letter on March 12 adding four more
signatures to the petition. It is not indicated if they were eligible voters
as of June 12, 2008.
|
|
March 10, 2009
Open letter from the Potts Group to the Community
|
In the letter the Potts Group stated that there were
problems with the petition, no community meeting would be called, denied any
allegation of a conflict of interest, and defended their position.
|
|
March 14, 2009
Community meeting
|
Three resolutions were put to the Community to vote on.
The voting was performed by secret ballot, Ms. Turner was the polling
officer, and different colored ballots were used. A total of 117 ballots
were cast on all three resolutions. The proper classification of those into
eligible and non-eligible voters is disputed.
Resolution #1 Therefore, be it resolved that Temagami
First Nation finds Chief Gary Potts, Second Chief Peter McKenzie and
Councilors Annette Polson, Sherwood Becker Jr. and Thomas Friday to be in a
conflict of interest and are removed from office pursuant to Section 5-1 of
the Temagami First Nation Tribal Constitution.
Resolution #1 passed with 115 votes in favor, 0 against, 1
abstention, and 1 spoiled.
Resolution #2: Therefore be it resolved that the
Temagami First Nation hereby revokes all administrative and executive
authority, including signing authority of Gary Potts, Peter McKenzie, Annette
Polson, Sherwood Becker Jr. and Thomas Friday.
Resolution #2 passed with 116 votes in favor, 0 against,
and 1 abstention.
Resolution #3: Therefore be it resolved that Temagami
First Nation directs the Minister of Indian and Northern Affairs Canada to
immediately recognize Chief Roxane Ayotte, Second Chief John McKenzie and
Councilors Steve Larond, Marty Pridham, Arnold Paul and Jamie Saville as the
duly elected representatives who hold the administrative and executive
authority of the Temagami First Nation.
And that the Temagami First Nation directs Chief Roxane
Ayotte, Second Chief John McKenzie, Councilors Steve Laronde, Marty Pridham,
Arnold Paul and Jamie Saville to take the necessary action and inform all
staff members, Indian and Northern Affairs officials, Bank of Nova Scotia,
Banks, Ontario Government official, Chiefs of all First Nations organizations
in Ontario that Gary Potts, Peter McKenzie, Annette Polson, Sherwood Becker
Jr. and Thomas Friday do not represent the Temagami First Nation and have no
authority to authorize payment to legally bind the Temagami First Nation.
Resolution #3 passed with 115 votes in favor, 0 against,
and 2 abstentions.
|
|
March 26, 2009
By-election for the Potts Group
|
Two Councilor seats were vacant due to resignations. Ms.
Ayotte had resigned in the fall of 2008 and Sherwood Becker Jr. resigned
March 10, 2009. In the by-election the two successful candidates were Doug
McKenzie and Al Marquette.
|
|
March 29, 2009
Second vote on the three resolutions
|
The results are as follows:
Resolution #1: 79 in favor, 0 against, 0 abstentions
Resolution #2: 79 in favor, 0 against, 0 abstentions
Resolution #3: 79 in favor, 0 against and 0 abstentions
|
|
March 30 - April 6, 2009
Correspondence with INAC
|
Ayotte reported the results of the three resolutions to
INAC and requested that INAC update their records accordingly.
INAC took the position that they cannot determine the
legitimate leadership for the First Nation. Therefore, the leadership of TFN
would be listed as “indeterminate pending an internal resolution or
consensus, or pending a determinative ruling by the courts on the substantive
issues. Accordingly, INAC does not currently recognize any of the disputing
parties or factions as Chief and Council of the Temagami First Nation and we
will take the necessary steps, if required, to ensure the delivery of
essential services.”
|
|
March 30 - April 13, 2009
Correspondence with the TFN’s Bank
|
Ayotte sent the results of the three resolutions to the
Bank and instructed them to change the signing authority.
The Bank refused to accept changes to the signing
authority as directed by the Ayotte Group. The Bank took the position that
there was a hearing scheduled for April 27 and they would await the outcome
of the hearing before making any changes.
|
|
April 9, 2009
Open letter from Chief Potts to the Community
|
Potts sent a letter to update the Community on
“information that [they] may not be aware off…” He stated that he met with
INAC officials on April 3 and INAC confirmed that they had not recognized the
Ayotte Council. The letter also states that the Potts Council had discussed
the situation with the Bank. He quoted paragraph 11 of the November 17, 2008
reasons of Noel J. in which the injunction motion was refused as the Band
was still able to operate.
|
|
April 14, 2009
Open letter from Chief Ayotte to Potts Council
|
In response to the April 9 letter the Ayotte Group took
the position that INAC did not recognize the Potts Group, that the reasons of
Noel J. did not state that Potts was the Chief, and addressed issues with the
Bank. They also argued that the impeachment issue was “wholly separate” from
the issues raised in the Judicial Review application (T-1578-08).
|
|
April 17, 2009
Ayotte Group filed a Notice of Application in T-610-09
|
Application for quo warranto for the Potts Group
and injunctions enjoining them from holding themselves out as Chief and
Council of the TFN and enjoining them from access, dissipation, conversion or
appropriation of the Band assets for personal use including funds for
T-1578-08.
|
|
April 23, 2009
Potts Group filed a Notice of Application in T-660-09
|
Applications for quo warranto for the Ayotte Group
and several declarations to the effect that the impeachment was invalid, that
the justifications relied on in the impeachment are not valid, and that the
June 12, 2008 election remains valid.
|
CUSTOM
[14]
The
parties are agreed that the Temagami First Nation is what is known as a “custom
band”. It has a written Constitution. However, in considering the
interpretation of that Constitution and in respect of matters not dealt with in
the Constitution, consideration must be given to customary practices of the
Band.
[15]
Justice
Martineau of this Court has given careful consideration as to the question of
custom in his decision in Francis v. Mohawk Council of Kanesatake,
[2003] 3 C.N.L.R. 86. At paragraph 21 of that decision, he found that the
jurisprudence has established that it is incumbent on the party asserting the
existence of a certain custom to establish what it is and the derivation
thereof. He wrote:
21 The jurisprudence has established
that it must be incumbent upon those who are relying upon "custom" to
at least establish what it is and the derivation thereof: McArthur v.
Saskatchewan (Registrar, Department of Indian Affairs and Northern Development)
(1992), 91 D.L.R. (4th) 666 [ [1992] 4 C.N.L.R. 33] (Sask. Crt. Q.B.)
("McArthur"). However, while the Act allows for the selection of the
"council of the band" by the custom of the Band, it does not set out
guidelines as to how that custom is to be identified.
[16]
At
paragraph 23 he summarized the constituent elements of custom:
23 The constituent
elements of custom may therefore be summarized as follows:
1)
"practices" for the choices of a council;
2)
practices must be "generally acceptable to members of the band"; and
3)
practices upon which there is a "broad consensus".
[17]
At
paragraph 24, he found that the jurisprudence defines custom as having two
components; the first involves practices which have been established through
repetitive acts in time or by a single act such as adoption of a code. At
paragraph 25 he recognized that custom can vary from time to time. At
paragraph 26 he addressed the second component of custom, general acceptance by
a broad consensus of the members of the Band. Thereafter he reviewed the law
as to how a practice may become a custom. At paragraph 36 he concluded that in
order to be a custom, a practice must be firmly established, generalized and
followed consistently and conscientiously by a majority of the community thus
evidencing a broad consensus as to its applicability. He wrote at paragraph
36:
36 For a rule to become
custom, the practice pertaining to a particular issue or situation contemplated
by that rule must be firmly established, generalized and followed consistently
and conscientiously by a majority of the community, thus evidencing a
"broad consensus" as to its applicability. This would exclude
sporadic behaviors which may tentatively arise to remedy certain exceptional
difficulties of implementation at a particular moment in time as well as other
practices which are clearly understood within the community as being followed
on a trial basis. If present, such a "broad consensus" will evidence
the will of the community at a given time not to consider the adopted electoral
code as having an exhaustive and exclusive character. Its effect will be to
exclude from the equation an insignificant number of band members who
persistently objected to the adoption of a particular rule governing band
elections as a customary one.
[18]
Counsels
are agreed that this decision correctly states the law.
THE CONSTITUTION AND
CUSTOM
[19]
Since
September 26, 1978 the Temagami First Nation has had a written Constitution.
It has been amended four times as of this date. Counsel are agreed that the
determination of the issues in these applications is to be made on the basis of
what is set out in that Constitution subject to interpretation and augmentation
by the custom of that Nation as established in evidence.
[20]
Important
in considering the issues at hand are the following provisions of the
Constitution and customs:
a. Section 2
defines persons eligible to vote as being those on the Band Membership List of
eighteen (18) years of age or older and resident on Tribal Ancestral Hunting
Lands (subsection D to I and K to N to provide further definitions as to
residency)
A)
Must
be on Band Membership List
B)
Must
be 18 (eighteen) years of age or older
C)
Resident
on tribal Ancestral Hunting Lands
b. Subsection 2
(J) provides that, except in close votes, a small number of unqualified voters
does not affect the result of a vote.
J) It should be noted that a
small number of unqualified voters will not result in an election being set
aside unless the number of unqualified voters is large enough to have affected
the results. For example, if a councillor was elected by a majority of ten
(10) votes over his next opponent, then up to nine (9) unqualified persons
voting would not affect the election and the election would stand, but if ten
(10) or more unqualified persons voted then the election of the councillor
would be set aside. This might not affect the election of any other councillor
or of the Chief of the same election.
c. Section 3
provides for a Council comprising a Head Chief, a Second Chief and a number of
Councillors. A three year fixed term is provided by an amendment made May 22,
2008:
Section 3 Political
Representation
One (1) Head Chief, one (1)
Second Chief, and one (1) Councillor for every fifty band members meeting
resident guidelines. There should be no more than two (2) Councillors and no
more than nine (9) Councillors. Before additional Councillors are added to the
Council 1/3 of the fifty (50) band members must be resident, i.e., 117 members
instead of 101.
The First Chief, the Second
Chief and all Councillors will be voted in for the same three (3) year term at
the General Election to be held in the month of June, commencing June 2008.
d. Section 5-1(B)
provides for the general responsibilities for Chiefs and Councillors to
represent the TFN policies, By-Laws, and Political Issues and concerns for the
good of TFN.
Section 5-1 Chiefs and
Councillors:
The Chiefs and Councillors
responsibilities are to represent Temagami First Nation members on Band
Policies, Laws, Bylaws, and Political Issues & Concerns for the good of
Temagami First Nation members on N’Daki Menan.
e. Section
5-1(H) provides for a charge of conflict of interest to be made against the
Chief or a Councillor. A 51% vote is required. The parties are agreed that
the custom of the band is to provide for two stage voting as set out in section
5-2 (B) should 51% not be achieved at a first meeting. A charge of conflict of
interest is commenced by a petition signed personally by 51% of eligible
voters.
Should the Chief of member of
Council be charged with a conflict of interest or acting beyond their powers of
office, a petition for a Band Meeting stating clearly the charge, must be
signed personally by 51% of eligible voters and presented to the Band Office.
A receipt will be given to the person bringing in the petition along with a
photocopy of the original. Then a date will be set for a Band Meeting not
before fourteen (14) clear days when the petition was handed in at the Band
Office and not later than twenty-one (21) clear days. Should the Councillor or
Chief be found in conflict of interest He or She shall be removed from office
by 51% of Band Members voting for that purpose, should 51% vote that person is
innocent, then the person shall retain their official position.
f.
Section
5-2(B) provides for voting at Band Member Meetings. A first vote is held
which, if it fails to gain 51% is set for a second vote at a subsequent meeting
held, on notice within a stipulate time. A simple majority prevails at the
second vote.
B) 51% of eligible voters must
be in favour or against a motion before it can be passed or defeated. Excepted
as stated in the following clause.
g. Section 6
provides that the Council can propose bylaws, section 6-1 incorporates
provisions of the Indian Act as to subject matter, none pertinent here.
The Council can propose bylaws
for any or all of the following purposes to maintain and improve the quality of
life on Bear
Island
Reserve.
h. Section 7
makes it mandatory that Council shall appoint a Council of Elders whose
function is to advise as to Tribal Traditions and render final judgment on
election appeals.
Section 7 Council of Elders
A)
Shall
be appointed by Council to advise Council in Tribal Traditions
B)
Shall
render final judgments on election appeals.
i.
Section
8-2 provides for voting including a voters list: I reproduce 8-2 (A) (B) and (C):
A)
The
Electoral Officer shall prepare a voters list containing the names, in
alphabetical order, of all electors.
B)
The
Electoral Officer shall post one or more copies of the voters in conspicuous
place in the section.
C)
Any
elector may apply to have the voters list revised on the ground that the name
of an elector has been omitted therefrom or the name of a person not qualified
to vote is included therein.
j.
Section
8-3(L) gives the Electoral Officer the power to add a qualified voter to the
list
L) An elector whose name does
not appear on the voters list may vote at an election, providing that the
Electoral Officer or his/her deputy is satisfied that such person is qualified
to vote.
k. Section 8-3(O)
and (P) provide that the Electoral Officer shall declare the results of an
election, if there is a tie the Electoral Officer has a casting vote. The
evidence is that it is the custom of the TFN in the event of a tie that the
Electoral Officer’s vote is determined by a coin toss.
O) Immediately after the
completion of the counting of the votes, the Electoral Officer shall publicly
declare to be elected the candidate or candidates having the highest number of
votes and he/she shall also post in some conspicuous place a statement signed
by him showing the number of votes cast for each candidate.
P) Where it appears that two
or more candidates have an equal number of votes, the Electoral Officer shall
give casting vote for one or more of such candidate, but the Electoral Officer
shall not otherwise be entitled to vote.
l.
Section
8-5 provides for Election Appeals. The process includes a report to be made by
the Electoral Officer to the Council of Elders. The evidence is that such a
report, by custom, consists of something like a simple line through the claim document
with the addition of a word such as “Denied”. There was however no Council of
Elders at the time of the June 2008 election or thereafter. There is no
evidence to indicate that there was any custom to dispense with the Council of
Elders.
i.Within
thirty days after an election any candidate at the election or any elector who
gave or tendered his vote at the election who has reasonable grounds for
believing that:
1. there was corrupt practice in
connection with the election;
2.there was a violation of the
Act or these regulations that might have affected the result of the election;
or
3.a person nominated to be a
candidate in the election was ineligible to be a candidate;
may lodge an appeal by
forwarding by registered mail to the Electoral Officer particulars thereof duly
verified by affidavit.
ii.Where
an appeal is received by the Electoral Officer pursuant to subsection one, the
electoral officer shall within seven days of the receipt of the appeal forward
a copy of the appeal together with all supporting documents be registered mail
to the Elders and to each candidate in the electoral section.
iii.Any
candidate may within fourteen days of the receipt of the copy of appeal forward
to the Electoral Officer by registered mail a written answer to the particulars
set out in the appeal together with any supporting documents relating thereto
duly verified by affidavit.
iv.All
particulars and documents filed in accordance with the provisions of this
section shall constitute and form the record.
v.
1) The
Electoral Officer may, if the material that has been filed is not adequate for
deciding the validity of the election complained of, conduct such further
investigation into the matter as he or she deems necessary in such manner as he
or she deems expedient;
2) Such investigation may be
held by the Electoral Officer or by any person designated by the Electoral
Officer;
3) Where the Electoral Officer
designates a person to hold such an investigation, such person shall submit a
detailed report of the investigation to the Electoral Officer for
consideration.
vi.Where
it appears that:
1) there was corrupt practice in
connection with an election;
2) there was a violation of the
Constitution or these regulations that might have affected the result of an
election or;
3) a person nominated to be
candidate in an election was ineligible to be a candidate, the Electoral Office
shall report to the Council of Elders accordingly.
CONSIDERING THE RELEVANT
EVENTS
a) Historical
Removal of Chiefs
[21]
Prior
to the events now at issue there have been two circumstances in which Chiefs of
the TFN have left office before the expiry of their terms. The first was in
1993 when First Chief Joseph Katt and a Councillor were removed from office.
The evidence of Virginia Paul, which is not contradicted on this point, is that
a petition was circulated alleging improper conduct. A community meeting was
held at which the Chief and Councillor were present and given an opportunity to
defend themselves. A vote was held, the Councillor resigned voluntarily, the
vote favoured removal of the Chief, a motion to that effect was made by Council
and the Chief was removed.
[22]
In
2002, according to the evidence of Virginia Paul, the then first Chief Raymond
Katt was charged with acting beyond his powers of office. A petition was
circulated, and then a community meeting was held where Raymond Katt was
present and answered the charge. A motion calling for his removal was made and
passed but a second vote was required. According to the Affidavit of Arnold
Paul, Chief Katt attempted to cancel the second meeting but was unsuccessful.
At the second meeting the vote to remove Katt was ratified.
[23]
I
derive from this evidence that it is the custom of the TFN to initiate a
process of removal by petition, then by a community meeting where the persons
charged with misconduct are expected to be present to explain their actions. A
vote is held which, if it fails to secure 51% of the eligible voters, proceeds
to a second vote at a subsequent meeting. If the second vote approves removal,
Council is expected to hold a meeting and pass a motion approving removal of
the person in question.
b) The
June 12, 2008 Election
[24]
Prior
to June 12, 2008 the Constitution had provided for staggered three year terms
of Office for the Chiefs and Councillors of the TFN. The June 12 election was
the first for which all of the Chiefs and Councillors would be elected at the
same time, all for three year terms.
[25]
There
is no dispute as to procedures leading up to the election. However it is
important to note that there was no Council of Elders in place. There had been
no Council of Elders since 2006. No reason for this omission has been put in
evidence. There is evidence that in 2006 a Council of Elders was in place and
did review election appeals which is one of the functions of that Council.
[26]
An
election was held on June 12, 2008 for Chiefs and Councillors. The original
number of eligible voters was said to be 187, two more were added making the
number 189. Three others applied to be added to the voters’ list but their
applications were denied by the Electoral Officer. The ballots were cast and
counted, then recounted. The result was that each of the two candidates for
Chief, Alexander Paul and Gary Potts, received the same number of votes, 51. Following
what appears to be the custom, the Electoral Officer flipped a coin, the result
was in favour of Potts, thus the Electoral Officer voted in favour of Potts as
Chief.
[27]
Following
the announcement of the results, some members of the TFN appealed on the basis
that certain persons who had voted were ineligible and some of those who were
not allowed to vote were eligible. Given the tie for Chief it is clear that a
difference of even one vote could have a material effect on the result of the
vote for Chief.
[28]
It
is at this point that I take issue with what the Electoral Officer, Virginia
Paul, did. In paragraph 38 of her Affidavit of November 5, 2008 she lists
three reasons upon which an appeal could be granted. She says:
38. Section 8-5, Part F of the
Tribal Constitution provides that where it appears that there was (1) corrupt
practice, (2) a violation of the Tribal Constitution that might have affected
the election results, or (3) a nominee was ineligible to be a candidate, the
Electoral Officer must report to the Council of Elders. I found none of these
three things. The appeals were therefore denied.
[29]
This
is where things went wrong. It was not for the Electoral Officer to deny the appeal,
which is the function of the Council of Elders. What the Electoral Officer
must determine is, with respect to point (2), determine if there is an alleged
violation that might have affected the result. If there is such an allegation,
it must be referred to the Council of Elders for determination on the merits.
The allegation must not simply be denied by the Electoral Officer.
[30]
What
the Electoral Officer did, according to paragraph 39 of her affidavit, is
simply draw at line through the letter of appeal, write “denied”, and return
the letter to its sender. This was not correct. If the allegation might have
affected the outcome of the voting, and here even one vote could have done
that, then the Council of Elders must decide upon the merits of the allegation.
[31]
The
election of June 12, 2008 was flawed from the beginning because there was no
Council of Elders in place to deal with appeals. Even after the election was
held no Council of Elders was created to deal with appeals. The Electoral
Officer has no power to deal with allegations of voting irregularities, the
Officer’s job is to determine if the alleged irregularities “might” have
affected the results of the election, if so the matter as to irregularities, in
this case voter eligibility, is for the Council of Elders to decide.
[32]
Therefore
I find that the result of the elections of June 12, 2008 is a nullity. A new
election must be held prior to which time a Council of Elders must be in place.
c) The
July / August 2008 Resolutions
[33]
In
late July a number of TFN Band members circulated and signed a petition calling
for a meeting on August 2, 2008 to vote on the following resolution:
Resolution: “TFN Community
Ruling and Directive”
Whereas, the members of the
Temagami First Nation do not accept the results of the June 12th,
2008 elections for the positions of Chief and Second Chief due to legitimate
election appeals being denied without appropriate and fair consideration.
Whereas, the elections of all
councillors at the June 12th, 2008 elections, are considered to be
legitimate for the reason that their positions had all been won by significant
margins generally not of concern within the appeals.
Therefore be it resolved that,
effective immediately, the positions of Chief and Second Chief shall be vacant,
and new elections for these positions will be held on Saturday August 30th
2008, with a poll on Bear Island to be open from 9:00am to 8:00pm.
[34]
The
Potts Group Council responded by an open letter dated July 29, 2008 stating:
Attached is a letter and
petition received at the Band Office July29, 2008 from John Turner, James
Saville, Alex Paul and John McKenzie.
Reference 1: to the third sentence in part
which reads “…the petition resolution in accord with our Constitution”.
Reference 2: from first paragraph third
line of petition: Resolution: “TFN Community Ruling and Directive”
“…legitimate election appeals
being denied without appropriate and fair consideration.”
Reply to Reference 1: Our Constitution considers a
petition only in Section 5 regarding Chief and Councillors Responsibilities of
Office.
Conclusion: This petition is not in
accordance with our Constitution.
Reply to Reference 2: In our Constitution, the
Electoral Officers since September 26, 1978, namely Laura McKenzie, Linda
George Mathias and our present Electoral Officer, Virginia Paul have sole
authority to deny or accept an appeal. No Council or Individual members can
override the Constitutional Authority of the Electoral Officer.
The Petition Resolution, “TFN
Community Ruling and Directive”, is not in accordance with our Constitution.
The letter and petition
received July 29, 2008 is noted for the record.
[35]
The
confusion arises as a direct result of the fact that no Council of Elders was
in place to deal with election appeals. The Potts responding letter above is
wrong in saying that the Electoral Officers decide appeals as to voting, they
do not. However the petition is also wrong in attempting to set aside the
election by declaring the positions at a meeting of the community held to vote
on that matter. The proper course would have been to appoint a Council of
Elders, even at that late date, to determine the question of voter
eligibility. If the Council of Elders decides that even a few persons who
voted were not eligible or a few who were refused the opportunity to vote
should have been eligible the election of Potts as Chief should have been set
aside.
[36]
The
meeting ultimately held to vote on the petition was improper; it has no basis
in the Constitution or in custom. As a result the so-called second election
where the Ayotte Group was elected as Chief and Councillor was invalid.
[37]
There
was a second resolution voted on at the meeting of August 2, 2008 which would
have the effect of removing most restrictions on voter eligibility particularly
as to residence. The evidence indicates that this would increase the number of
eligible voters from under 200 to over 670. A second meeting was held on
August 17, 2008 at which both resolution 1, to set aside the Potts Council, and
resolution 2, to increase voter eligibility, were passed.
[38]
I
have already addressed resolution 1, it was improper. Resolution 2 would amend
the Constitution in a profound respect going to the very heart of voter
eligibility and increasing the number of eligible voters by over three times
the original number. I accept the evidence of Virginia Paul at paragraph 46 of
her affidavit of November 5, 2008 where she says that all Constitutional
amendments in the past were voted upon at a community meeting called by the
Chiefs and Council for that purpose. At the time of this resolution the Potts
Group were ostensibly the Chiefs and Council, although I have held their
election to be invalid, and should have, upon receipt of the petition, called a
meeting and attended the meeting. They should not have refused to attend. It
was their duty to call and allow a meeting on the second resolution, even if
not the first. Even though they were not validly elected, out of necessity it
was their duty to respect the petition and guide the community through this
obvious crisis.
d) The
Ayotte Group Election
[39]
In
September 2008 an election was purportedly held as a result of which the Ayotte
Group was elected Chiefs and Council. Again, no Council of Elders was in place.
[40]
From
what Counsel for the Ayotte Group has said to this Court, I understand that
this Group is no longer claiming to be Chief and Councillors, subject to a new
election being called. Since I have determined that a new election is the most
appropriate course of action I do not need to dwell on this matter further.
e) The
February /March 2009 Resolutions
[41]
In
February 2009, those persons largely aligned with the Ayotte Group circulated a
petition among TFN Band members. That petition stated essentially that the
petitioners alleged that the Potts Group Council had acted in a position of
conflict of interest in taking Federal Court proceedings T-1587-08 and
requested that a Band meeting be called to decide upon the allegation. In
particular it said:
Whereas Chief Garry Potts, Second
Chief Peter McKenzie and Councillors Annette Polson, Sherwood Becker Jr. and
Thomas Friday have placed themselves in a conflict of interest by participating
in decisions and taking actions to involve Temagami First Nation in a Federal
Court Action of October, 2008. The Federal Court action is purely a process to
protect their own interest, which is to remain as Chief and Council. This is
in direct conflict with resolutions that called for a new general election that
were tabled at the Community Meeting of September 20, 2008 and passed by a
final vote on October 11, 2008.
And Whereas Chief Garry Potts, Second
Chief Peter McKenzie and Councillors Annette Polson, Sherwood Becker Jr. and
Thomas Friday have acted beyond their powers of Office by filling the Federal
Court action initiating the Judicial Review in October, 2008 and naming
individual community members as respondents in the action without obtaining the
support of the community through a vote at a community meeting. This is
contrary to Section 5-1(i) Tribal Constitution, and/or contrary to the spirit
and intent of this section. The Tribal Constitution does not provide Chief and
Council with the powers to suppress the community decisions nor the political
voice of community members by using Colonial institutions.
Therefore we the undersigned support
this petition and call of a Band meeting with proper notice according to the
Temagami First Nation Tribal Constitution so that Band Members can vote and
decide on the charges against Chief Gary Potts, Second Chief Peter McKenzie,
and Councillors Annette Polson, Sherwood Becker Jr., and Thomas Friday.
[42]
Much
dispute has arisen as to who was eligible to sign such a petition and whether
the correct form of petition was signed and whether signatures provided by
electronic and facsimile could be considered acceptable. A further
complication arose since a few persons who were part of the Ayotte Group signed
the petition with added language to the effect that they were doing so without prejudice.
A yet further complication arose since a few more people signed a petition that
contained different wording including a further complaint against the Potts
Group.
[43]
At
the hearing before me in May, Counsel for each of the parties reviewed the question
of persons eligible to vote, acceptance of facsimile and electronic signatures
and, the differences in wording of the petitions. I will disregard the
differently worded petition with additional charges against the Potts Council,
only three persons appear to have signed this form of petition and their
numbers make no difference to the calculations. Taking the remainder, if calculated
as the Ayotte Group would urge, the number of petitioners exceeds the 51%
requirement. Taking the Potts Group position the number are just below that
requirement.
[44]
In
considering whether the petition has met the threshold number guidance can be
taken from the Constitution, in particular the opening words and sections 2(J)
and (K):
The Temagami First Nation’s
political guidelines under the Tribal custom require updating and
clarification. The main consideration being the interests of the majority of
Band Members must be served by the elected Political representatives.
…
J) It should be noted that a
small number of unqualified voters will not result in an election being set
aside unless the number of unqualified voters is large enough to have affected
the results. For example, if a councillor was elected by a majority of then
(10) votes over his next opponent then, up to nine (9) unqualified persons
voting would not affect the election and the election would stand, but if ten
(10) votes or more unqualified person voted then the election of the councillor
would be set aside. This might not affect the election of any other councillor
or of the Chief at the same election.
K) Subject to other provisions
of this section. The question as to where a person is or shall reside at any
material time or during any material period shall be determined by reference to
all the facts of the case.
[45]
The
Courts have expressed a similar attitude. The Courts are critical of those who
reject petitions and the like based on fine points raised in respect of alleged
irregularities. That attitude is wrong. I quote Russell J. in his recent
decision in Nekaneet First Nation v. Oakes, February 10, 2009, 2009 FC
134 at paragraphs 76 and 77:
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 Kwach'an 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.
[46]
Overall
consideration must be given to the fact that a considerable proportion of the
TFN Band has expressed concerns with the Potts Group Council and want to have a
meeting to discuss those concerns and if necessary, vote on them. A fair and
generous approach should have been given in considering the eligibility of
those entitled to sign the petition. Electronic and faxed copies of signatures
should have been accepted. The “without prejudice” petitions should have been
accepted. This was not a vote, it was a request that a meeting to be held.
[47]
I
find that the Potts Group improperly rejected the petition and improperly
refused to hold a meeting.
[48]
As
it turns out a meeting was held in any event. Largely, it appears, supporters
of the Ayotte Group turned out. Supporters of the Potts Group, including
members of that Group itself, boycotted the meeting. The Potts Group justify
their boycott on the basis that it was their view that the meeting was
illegal. Their Counsel cites MacKay J. in Linklater v. Peter Ballantyne
Cree Nation, [2001] 1 C.N.L.R. 156 at paragraph 26:
26 Treating that question as a general
issue, without reference to the specific facts of this case and without passing
judgment on whether or not custom was followed by those who arranged the
by-election, I answer that question "Yes". In my view it warrants a
response since the issue raised is basic to the legal regime under which the
Peter Ballantyne Cree Nation or any other is governed. There can be no doubt,
in my opinion, that the Chief and Council of the nation can ignore the results
of a local by-election that does not follow "custom" which is
applicable to the election. In so doing the Chief and Council exercise their
responsibility to uphold the law, i.e., the custom, of the nation where it is
applicable. If they be wrong in interpreting custom they may be subject to
account, but they cannot avoid their responsibility.
[49]
As
I have held, the Potts Group Council was wrong to ignore the petition. That
Group was free to attend the meeting or not. It would have been better of they
did. The issues needed to be discussed, not ignored. As MacKay J. said, they
cannot avoid their responsibility, if they were wrong, and if they were, they
may be subject to account.
[50]
A
first meeting was held March 17, 2009. A total of 117 ballots were cast in
respect of three resolutions. The results were recorded as follows:
Resolution #1: Therefore, be
it resoled that Temagami First Nation finds Chief Gary Potts, Second Chief
Peter McKenzie and Councillors Annette Polson, Sherwood Becker Jr. and Thomas
Friday to be a conflict of interest and are removed from office pursuant to
Section 5-1 of the Temagami First Nation Tribal Constitution.
Resolution #1 passed with 115
votes in favour, 0 against, 1 abstention, 1 spoiled.
Resolution #2: Therefore it be
resolved that the Temagami First Nation hereby revokes all administrative and
executive authority, including signing authority of Gary Pots, Peter McKenzie, Annette
Polson, Sherwood Becker Jr. and Thomas Friday.
Resolution #2 passed with 116
votes in favour, 0 against, and 1 abstention.
Resolution #3: Therefore be it
resoled that Temagami First Nation Directs the Minister of Indian and Northern
Affairs Canada to immediately recognize Chief Roxane Ayotte, Second Chief John
McKenzie and Councillors Steve Larond, Marty Pridham, Arnold Paul and Jamie
Saville as the duly elected representatives who hold the administrative and
executive authority of the Temagami First Nation.
And that the Temagami First
Nation directs Chief Roxane Ayotte, Second Chief John McKenzie, Councillors
Steve Laronde, Marty Pridham, Arnold Paul and Jamie Saville to take the
necessary action and inform all staff members, Indian and Northern Affairs
officials, Bank of Nova Scotia, Banks, Ontario Government official, Chiefs of
all First Nations organizations in Ontario that Gary Potts, Peter McKenzie,
Annette Polson, Sherwood Becker Jr. and Thomas Friday do not represent Temagami
First Nation and have no authority to authorize payment to legally bind the
Temagami First Nation.
Resolution #3 passed with 115
votes in favour, 0 against, and 2 abstentions.
[51]
It
was determined that, notwithstanding the overwhelming majority voting in favour
of the resolutions at the meeting, the required 51% of the eligible voters was
not met and a second meeting with a second vote was required.
[52]
Section
5.2-B (B) of the TFN Constitution requires notice of a second meeting be given,
but does not say what form that notice should take. In the present case it is
clear that at least the 117 persons at the first meeting would have had notice
of the second meeting. The evidence, particularly that of John Turner, is that
notice was given by a variety of methods including Canada Post, by hand, and by
e-mail, as well as other means. There is no evidence as to any custom
developed by the Band for giving notice. The Potts Group Counsel argues that
the Canada Post notice was inadequate given the time it would take to sort and
deliver the mail. There is, however, no evidence from anyone to the effect that
they got notice too late or that they had no notice at all. I find on the
evidence that adequate notice of the second meeting was given.
[53]
At
the second meeting held March 29, 2009 all three resolutions were noted upon
and in each 79 voted in favour with 0 against and 0 abstentions. It is not
entirely clear whether those voting included eligible voters as calculated on
narrower or broader criteria. Keeping in mind that an earlier resolution
passed by the Ayotte Group might have expanded the eligible voters from about
just under 200 to about 675 or more it is impossible, on the evidence, to tell
from what group the 79 voters who attended the second meeting came. Given the
lack of evidence on this point, I find that the resolutions adopted at the
second meeting cannot be considered to be valid.
[54]
The
Potts Group raises a second concern with respect to the resolutions. They
argue that there can be no conflict of interest, as alleged, simply because the
Chiefs and Council decide to refer a matter of controversy to the Courts. I
agree. Freedom of access to the Court system should not be inhibited by
challenges based on alleged conflict of interest.
[55]
The
Ayotte Group argues, however that the Potts Group Council funded the Court
application out of TFN Band funds and should have sought general Band approval
before doing so. They say that since it was the personal position of the Potts
Group members as Band Council that was being challenged; they should have paid
for it personally. That, the Ayotte Group argues, is the conflict.
[56]
If
this is the true conflict, it was not clearly set out in the petition. The
petition makes reference to the institution of the Court proceedings, not how
they were to be funded. I agree that this may be a nicety but it is an
important one. That matter could have been discussed more fully at a Band
meeting with the Potts Group present.
[57]
The
Constitution of the TFN section 5-1 (H) sets out that the petition must be one:
“…stating clearly the charge”
[58]
It
is important to do so for at least two reasons. First, impeachment of a Chief
or Councillor is a serious matter. They should know clearly and unequivocally
what the charge made against them is. Second, those attending the meeting should
know clearly what is to be discussed.
[59]
I
find, therefore, that these three resolutions cannot be considered valid, first
because the petition does not clearly state the charge, and second because the
evidence does not clearly state who voted at the second meeting.
CONCLUSIONS AND COSTS
[60]
With
respect to the matters at issue, I have concluded, in summary:
1.
The
election of June 12, 2008 wherein the Potts Group was elected as Chiefs and Councillors
is invalid; and
2.
The
resolutions sponsored by the Ayotte Group to have the June 12, 2008 elections
held invalid and to enlarge voter eligibility are invalid.
[61]
This
then requires consideration of the third issue namely what are the remedies.
[62]
Section
18(1)(a) of the Federal Courts Act R.S.C. 1985, c.F-7 gives this Court
the power to grant a declaration in the nature of a write of quo warranto.
Section 18.1(3) of that Act permits this Court declare a matter invalid
and return it for new a determination with directions as to how that best might
be done. I note that in Sparvier v. Cowessess Indian Band No. 73 [1993]
3 F.C. 142, Rothstein J. (as he then was) was reluctant to issue a final
Judgment without giving the parties and their Counsel adequate time to consult
with each other and formulate appropriate recommendations. This should not
dissuade the Court from making a remedial order if required as stated by Phelan
J. in Jackson v. Piikani Nation, February 1, 2008, 2008 FC 130 at
paragraph 37:
37 The Court has authority to fashion
the appropriate remedy. The Court should not "read in" wording where
the Band can deal with its true intentions more directly. However, to reflect
what the evidence of intent is and to prevent confusion in the future, I will
make a remedial order.
[63]
It
is important to have some interim continuity, therefore in a caretaker role
only, the present Potts Group Council (including McKenzie and Marquette) should
continue, but only briefly, until the new election is held. This Council shall
not make any important decisions during this time.
[64]
I
therefore request that Counsel consult with their clients and within 30 days
provide in writing their recommendations as to an appropriate Judgment
including a draft Judgment, that will do the following:
1. Immediately
put in place a Council of Elders;
2. Hold new
elections for the position of Chief, second Chief and Councillors of the
Temagami First Nation within a very few days after the Council of Elders has
been put in place;
3. Set aside the
election results of June 12, 2008;
4. Set aside all
purported resolutions by the Ayotte Group;
5. Maintain in
the interim the Potts Group and Chief and Councillors (including Marquette and
McKenzie as elected in the by-election) in a caretaker role only until the
final results of the new election are determined.
[65]
Each
party in each application should bear its own costs, therefore there will be no
order as to costs in any application. However the TFN should provide funds to
compensate the Ayotte Group in the same way that the Potts Group has been
funded.
[66]
Judgment
will be reserved until receipt of Counsels’ written submissions.
"Roger
T. Hughes"
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