Date: 20090916
Docket: T-1516-08
Citation: 2009 FC 919
BETWEEN:
COUNCILLOR ALBERT DEAN LAFOND
AND
COUNCILLOR CLIFF TAWPISIN, JR.
Applicants
and
CHIEF
GILBERT LEDOUX
Respondent
REASONS FOR
JUDGMENT
PHELAN
J.
I. INTRODUCTION
[1]
The
events surrounding this case and its procedural history are convoluted. The status
of some of the parties has changed significantly but the problem of the
approvals voted on by the Muskeg Cree Nation (Band) remains and may be binding on
the Band until otherwise determined. For this reason and bearing in mind the
criteria in Borowski v. Canada (Attorney General), [1989] 1
S.C.R. 342, the Court will determine the issue of the legality of a vote
conducted authorizing certain actions to be carried out by the Band.
[2]
The
Court has been advised by counsel that Cliff Tawpisin (one of the original
Applicants) is now the Chief of the Band and that Chief Ledoux (who was a
Respondent by virtue of his office) no longer holds that office. There has been
no motion to change the style of cause but in order to avoid further procedural
issues, the Court will not do so.
[3]
As
the real point of this litigation is to grant relief in the nature of
declaration so that the Band is aware of the legal status of the vote and
approvals in issue, pursuant to Rule 55, this Court will add the Band as a
Third Party so that the style of cause shall read:
Councillor Albert Dean Lafond and
Councillor
Cliff Tawpisin, Jr.
Applicants
- and -
Chief Gilbert
Ledoux
Respondent
- and -
Muskeg Cree
Nation
Third
Party
[4]
The
Court was advised by the McKercher firm, solicitors of record for the
Respondent, that they had no instruction from the Band and that they would not
appear at the hearing of this judicial review.
[5]
The
Court notes that the McKercher firm was listed as counsel for Chief Ledoux and
that no motion had been made to be removed as solicitors of record pursuant to
Rule 125. The law firm had known since at least February that it had no
instructions yet it took no further steps regarding removal. As officers of the
Court, it was surprising that as reputable a firm as this one, it took no steps
for removal and did not have the courtesy to be present or send an agent to
address any questions as to status that the Court might have. In any event, the
firm remains on the record.
[6]
Although
there were no opposing arguments presented, the issues are not moot and thus the
Court ought to pronounce judgment on the issues raised.
II. BACKGROUND
[7]
This
matter is a judicial review related to a vote taken by the Band on September
29, 2008. The Applicants alleged that the vote was unfair and conducted without
jurisdiction – being contrary to the Community Land Code (Land Code) of the
Band. The essence of the relief requested is an order that the vote is quashed
and declared improper as contrary to law. The law relied upon is principally
the Band’s Land Code but s. 35 of the Constitution Act, 1982, and
various provisions of the Canadian Charter of Rights and Freedoms have
also been pleaded.
[8]
The
Band consists of approximately 1,200 members, most of whom live off the
reserve. There are two reserves, a rural one near Marcelin, Saskatchewan and an urban
one in Saskatoon. The land at
issue in this proceeding is that which is in Saskatoon.
[9]
The
Band is governed by an elected Chief and Council. At the time of the impugned
vote, the Respondent was the Chief and the Applicants were council members.
[10]
In
about 2003, the Band withdrew its land from the Indian Act, R.S., 1985,
c. I-5 pursuant to the First Nations Land Management Act, 1999, c. 24.
It then declared the Land Code in 2005 which provides for the approval of
various land matters including the leasing and financing of buildings on the
reserve.
[11]
Under
the Land Code there is a Land Advisory Committee of which the Chief is not a
member but is entitled to sit in on the Committee’s meetings.
[12]
At
issue in this proceeding are motions approving the following: a) negotiations
of a financing package for a wellness centre; b) the lease with TDL Group Corp.
(Tim Horton’s); and c) a mortgage on the leasehold interest of Stor All
Mini Storage.
[13]
The
Land Code requires approval of these matters at a Community Meeting. Following
the Land Advisory Committee’s notice to members of the Band and an
informational session, a Community Meeting was held on August 27, 2008.
[14]
In
accordance with the requirements in the Land Code, the vote on the three
motions was conducted by a show of hands. The motions were defeated.
[15]
Subsequent
to the vote, on September 2, 2008, a group consisting of Chief Ledoux, Lester
Lafond, a consultant, the Band administrators and possibly others (the precise
composition and nomenclature of the group is not clear) had a meeting at which
they determined that a new vote had to be conducted using a different method of
voting.
[16]
The
voting method required that each individual’s vote was to be conducted in
private and witnessed by three non-band members. A voter was required to sit
behind a curtain in front of the witnesses, indicate whether they were for or
against the motions and to put their initial beside the written entry of their
vote made by the witnesses.
[17]
The
voting, using this new method, was conducted over September 19, 20, 21 and 27,
2008 at Edmonton, Muskeg Cree Nation Gymnasium, Prince Albert and Saskatoon. The three
motions, this time, were approved.
[18]
The
essential issue is whether this voting method, and hence the vote itself,
complies with the Land Code.
III. ANALYSIS
[19]
While
the issue of standard of review was not addressed, the issue is one of law as
to compliance with the voting methods approved by the Band. As such, it is a
matter to be decided on a standard of correctness. To the extent that the issue
engages procedural rights and fairness, these too are governed by a standard of
correctness.
[20]
The
Applicants raised numerous grounds of voting irregularity. These included that
more votes were cast than was possible to do given the time taken to vote; that
voters were turned away; that there were voting counting irregularities; and
that voters were required to respond orally to whether they were for or against
the motions. While any one of these allegations might be sufficient to overturn
the vote, this matter can be resolved by reference to the Land Code itself and
the method of voting set by the group on September 2, 2008.
[21]
The
Land Code states that certain decisions (such as the ones in issue) must be
approved by a majority of members present at a Community Meeting. The Land Code
goes on to outline procedures for the meeting, voting processes and notice and
informational requirements.
[22]
Most
specifically, s. 13.7 of the Land Code provides:
Decisions are to be made by a majority
vote of the Eligible Voters present at a Community Meeting, by a show of hands
or in such other method determined by Land Law.
[23]
The
voting method at issue does not comply with s. 13.7. The first vote, which was
never challenged, shows how a “show of hands” vote is conducted – in a group
setting by the raising of hands indicating the vote. The requirement to go
behind a curtain and to face three people to indicate the person’s vote (a
scene reminiscent of something from the Cromwellian era), even if to do so by
raising their hand (although evidence indicated that many people had to respond
orally), bears no resemblance to a “show of hands” voting procedure. The
requirement to initial the record of their vote is just further confirmation
that the vote was not in accordance with the Land Code.
[24]
It
is no response to argue that the Land Code contemplated other voting methods.
Any method other than the “show of hands” vote would have to be approved
specifically in the Land Code, not by some group of individuals even if they
were the Land Advisory Committee. There is a method for altering provisions of
the Land Code established in the Land Code. The stipulated method was not
followed; therefore, the Land Code was not amended to authorize the voting
method used in the second vote.
[25]
In
these circumstances, it is unnecessary to determine the constitutional and Charter
issues. It is also unnecessary to decide the other claims of voting process
irregularities. The vote approving the motions was not lawful and the vote must
be quashed.
“Michael
L. Phelan”
Ottawa, Ontario
September
16, 2009
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