Date: 20090930
Docket: T-927-09
Citation: 2009 FC 968
Ottawa, Ontario, September 30, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
CHIEF BEVERLY BELLEGARDE
Applicant
and
ALMA POITRAS, LEO DESNOMIE,
LAMBERT STONECHILD, INEZ DEITER,
GLORIA DEITER, ELAINE PINAY,
ELWOOD OSCAR PINAY, DELMA POITRAS,
FREDA EVELYN DESNOMIE, GREGORY BRASS,
AVEN ROSS, EVELYN POITRAS,
MARTINE DESNOMIE, HOWARD DESNOMIE,
ENOCH POITRAS AND GERALD DESNOMIE
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
parties to this application are among the approximately 2,500 members of the
Peepeekisis First Nation (the Peepeekisis or the First Nation). The Peepeekisis
is a signatory to Treaty 4.
[2]
It
is fair to say that consensus has recently been lacking among the members of
the First Nation relating to its leadership. This has resulted in political
instability, conflict between the two factions that have developed, and many
applications to this Court to set aside or quash decisions made regarding the
leadership of the Peepeekisis. The present application asks the Court to set
aside decisions that removed the applicant as Chief of the Peepeekisis and
which prevent her from any elected office for the next 10 years.
[3]
For
the reasons that follow, the application is granted.
BACKGROUND
[4]
First
nations may elect their governing councils by custom or pursuant to the Indian
Act, R.S.C. 1985, c. I-5. The election of the Peepeekisis is governed by
the Peepeekisis First Nation Custom Election Act, (the Election Act)
revised and ratified by the Peepeekisis on November 1, 2006. The First Nation
is governed by the Governing Council which is comprised of the Chief and four Headpersons.
Council
of Elders
[5]
Only
the Council of Elders has authority under the Election Act to remove a Chief or
Headperson from office. Article 7C of the Election Act provides that the
office of Chief “shall become vacant when the person who holds that office … is
found by the Council of Elders to be guilty of corrupt election practice,
accepting a bribe, dishonesty or malfeasance within the office.” Article 7D
further provides that the Council of Elders may declare a person who ceases to
hold office by virtue of the Election Act to be ineligible to hold office for a
period of up to 10 years.
[6]
“Council
of Elders” is defined in the Election Act as “the body of persons recognized by
Tradition in the community for their wisdom and ability by reason of their age
and experience.” There is nothing in the Election Act that sets out how the Council
of Elders is selected or its size.
[7]
There
are two competing councils of elders, each claiming to be the Council of
Elders set out in the Election Act.
[8]
A
meeting of elders and members of the Peepeekisis was held on January 6, 2006.
The minutes of that meeting indicate that the purpose of the meeting was to
“expand on the existing Elders Council and move forward, to share insight and
knowledge, review the terms of reference, and start working on the community
governance structure.” Although the minutes indicate that the Council of
Elders was to be comprised of 12 elders, it then lists 15 elders selected for
the Council: Tom Desnomie, Elwood Pinay, Doris Bellegarde, Evelyn Desnomie,
Anita McLeod, Mary Keewatin, Albert Daniels, Thomas Bellegarde, Alice Sangwais,
Charlie Desnomie, Lucy Daniels, Fran Ironquil, Gilbert Keewatin, Ben Stonechild
and Leo Desnomie. Chief Bellegarde then wrote to Indian and Northern Affairs
Canada setting out the “current” members of the Council of Elders in the form
of a resolution. There is no indication where this resolution came from or
whether it was passed. This list contains 12 names: Tom Desnomie, Tom
Bellegarde, Wayne Pinay, Glen Goforth, John B. Desnomie, Margaret (Larose)
Stonechild, Lucy Daniels, Frieda Bellegarde, Gloria Jean Stonechild, Mona
Dieter, Anita McLeod and Doris Bellegarde. Thomas Desnomie provided an
affidavit in this proceeding in which he swears that these 12 elders constitute
the current Council of Elders. This group will be referred to as the Thomas
Desnomie Council of Elders.
[9]
On
October 25, 2008, a meeting of the Peepeekisis was held. Its approved agenda
listed the following items for discussion and/or decision at the meeting:
1.
Adoption
of Agenda
2.
Dates of
Nominations
3.
Appointment
of Chief Electoral Officer
4.
Appointment
of Deputy Electoral Officer
5.
Clarification
of process of Council of Elders (Discussion and Motion)
6.
Appointment
of Council of Elders to govern this process (Election) as per Peepeekisis
Custom Election Act
7.
Open
Discussion
8.
Closing Prayer.
[10]
Under
heading 5 above, Evelyn Poitras brought a motion to remove the Council of
Elders from the Election Act on the basis that elders should be advisory only.
That motion was denied as it would be an amendment to the Election Act. Under
heading 6 above, a motion was passed that read: “Appointment of Council of
Elders who identify themselves as such to take part in appeal if there
is one.” (emphasis added). The council of elders chaired by Alma Poitras that
passed the resolution removing the applicant as Chief and that banned her from
office claims that it is the Council of Elders under the Election Act as a
consequence of this resolution. This group, the composition of which changed
for each of the relevant meetings but which included a few, if any of the
members of the Thomas Desnomie Council of Elders, will be referred to as the
Alma Poitras Council of Elders.
Events
Leading to the Removal of Chief Bellegarde
[11]
The
respondent, Evelyn Poitras, is a member of a group called the Peepeekisis Kiskimanacihk
Treaty Enforcement Group (PKTE). It is a non-elected body. Evelyn Poitras
describes the PKTE as a “community-based organization interested in taking
steps in the best interest of Peepeekisis with respect to good governance,
indigenous lawmaking and treaty enforcement.” At paragraph 6 of her affidavit
filed in this application she describes her concerns with the applicant as
follows:
I was concerned that Bellegarde was not
speaking on behalf of the Band, her actions in removing the Headmen, Brian
Desnomie and Lambert Stonechild, were personally and politically motivated and
she was using a Council of Elders that was not recognized by Peepeekisis to
accomplish these ends. I am not aware of the Band approving or being consulted
with respect to either of the Applications commenced by Bellegarde.
The applications
referenced by Evelyn Poitras are Court Files T-202-08 and T-502-08 which are
described below. I note that these very same concerns were raised by Evelyn
Poitras and are set out in her affidavit sworn May 22, 2008, filed in T-502-08.
The present circumstance is rooted in the past.
[12]
As
a consequence of her concerns Evelyn Poitras wrote an open letter to the
membership of the Peepeekisis on April 23, 2008, in which she set out her
concerns with the conduct of the applicant. That letter states on its face
that it is from “Evelyn Poitras on behalf of her mother Marie Alma Poitras and
Family” and is signed by Evelyn Poitras, Marie Alma Poitras, and others. Marie
Alma Poitras is Alma Poitras, a respondent in this application and the person who
chaired the meetings of elders which removed the applicant as Chief and banned
her from office for 10 years.
[13]
Receiving
no response from the applicant, although none was asked for, she wrote directly
to the applicant on September 22, 2008 and again on October 20, 2008. No
response to these letters was provided by the applicant. Evelyn Poitras also
states that she brought her concerns forward at two First Nation meetings at
which Chief Bellegarde was present but she received no response.
[14]
On
February 3, 2009, Evelyn Poitras presented a resolution from the PKTE to the
Alma Poitras Council of Elders which, if adopted, would remove Chief Bellegarde
from office. The minutes of that meeting indicate that Inez Deiter, Delma
Poitras, May Desnomie, James Poitras, Gregory Brass, Alice Sangwais and Evelyn
Desnomie each supported the motion. Mabel George indicated that “if I am able
to support resolution, I’ll go for it” while Alma Poitras, as Chair, not having
a vote, made no statement. Evelyn Poitras in her cross-examination stated that
this group wanted her to consider a few things, but otherwise there was
unanimous support for the resolution she presented. The applicant was given no
notice of this meeting nor that her removal was being considered by the elders.
[15]
On
March 28, 2009, this resolution was brought back to the Alma Poitras Council of
Elders, in the absence of the applicant and without notice to her. A motion was
passed calling for the immediate removal of the applicant from her office of
Chief of the Peepeekisis. On April 3, 2009, the same group, but after notice
to the applicant, passed a motion affirming that the “motion from March 28,
2009 still stands as submitted.” A further meeting of this group was held on
May 15, 2009 at which a motion was passed that the applicant “will be
ineligible to hold office as Chief or Headperson for a period of ten (10)
years.”
[16]
On
May 21, 2009, Band Council Resolution No. 589 was passed by another group
purporting to constitute the Governing Council establishing the appointment of
the Chief and Deputy Electoral Officers, the dates of the nomination and
by-election for the positions of Chief and Headman, and requesting a voter’s
list from Indian and Northern Affairs Canada. By agreement, no election has
taken place as a consequence of this application.
[17]
By
application to this Court filed June 5, 2009, the applicant sought review of
the decisions of the purported Council of Elders and of the purported Governing
Council all of which are directed at her removal from office, her
disqualification from re-election and the setting of by-election procedures and
dates. Specifically, the applicant seeks the following relief:
1. Relief in the
nature of a Declaration that the applicant is the Chief of Peepeekisis First
Nation;
2. Relief in the
nature of an Order quashing the motion passed by the respondents at the meeting
on May 15, 2009;
3. Relief in the
nature of an Order quashing Band Council Resolution No. 589 passed by the
respondents on May 21, 2009;
4. Relief in the
nature of an Injunction preventing the nomination meeting scheduled for June
16, 2009 and the by-election scheduled for July 2, 2009 and July 3, 2009;
5. Relief in the
nature of an Injunction preventing the respondents, the respondent MARTINE
DESNOMIE and anyone else from failing to recognize the authority of the
applicant as Chief of Peepeekisis First Nation, and requiring the respondents
and the respondent MARTINE DESNOMIE to immediately cease and desist from any
and all actions that undermine the applicant’s authority including, but not
limited to:
a.
Restoring
signing authority of the applicant, and other powers that rightfully belong to
the applicant;
b.
Allowing
the applicant to regain full access to Peepeekisis First Nation records, materials,
documents, offices;
c.
Restoring
and maintaining office procedures and protocol; and
d.
Such
other actions as may be required to restore order and good government to the
Peepeekisis First Nation.
6. Relief in the
nature of a Declaration that the respondents are not the current Elders of the
Council of Elders for Peepeekisis First Nation;
7. Relief in the
nature of a writ for quo warranto requiring the respondents to prove by
what authority they had to decide on May 15, 2009 to set and call a nomination
meeting and a by-election, and by what authority they had to decide that the
applicant would be ineligible to hold office as Chief, and, prohibiting the
respondents from purporting to exercise authority as the Council of Elders of
the Peepeekisis First Nation;
8. Relief in the
nature of Abridgement of time for service of this application, and abridgement
of time for reply and for the timelines for this proceeding generally.
Previous
Litigation
[18]
A
brief summary of the recent political turmoil of the Peepeekisis as has been
litigated in this Court is appropriate. I do so as a backdrop for the present
dispute and in the hope that the membership of the Peepeekisis and their
leaders may gain some appreciation for the personal and financial cost these
disputes have caused.
[19]
Throughout
the hearing of this matter the respondents took the position that the
Peepeekisis is a self-governing nation opposed to the intervention of this
Court. Perhaps the following history of litigation will show why this Court’s
intervention has been sought out so often in recent years. Perhaps also, this
judgment, coupled with that past history, will provide some guidance to the First
Nation in arranging its internal affairs so that this Court’s intervention is
not required, or is not so frequently sought in the future.
Court
File T-1759-05: Lyle Desnomie v. Peepeekisis First Nation
[20]
Former
Chief Lyle Desnomie was sent a letter dated July 26, 2005, informing him that the
Peepeekisis Governing Council had permanently removed him from his position as
Chief for breaches of his fiduciary duties to the First Nation. The members of
the Governing Council, other than Chief Desnomie were Maurice Nokusis, Allan
Bird, Lambert Stonechild and Brian Desnomie. Chief Lyle Desnomie brought an
application to the Federal Court for judicial review of the decision to remove
him. Justice Blais of this Court, as he then was, in Desnomie v.
Peepeekisis First Nation, 2007 FC 426, quashed the decisions of the
Governing Council removing Chief Desnomie from office and ordering a
by-election. He did so primarily on the basis that the Governing Council had
no authority to remove a Chief from office, as under the Election Act, only the
Council of Elders could remove a Chief or Headman from office. Although the
decision to remove him as Chief was subsequently ratified by a purported
Council of Elders and the Peepeekisis membership, this Court found that this
failed to cure the deficiency of the original decision to remove Chief
Desnomie.
[21]
Justice
Blais made a number of other findings that are directly relevant to the present
application:
1. No proper
Council of Elders was ever created following the adoption of the Election Act
although this had been identified as an issue at First Nation meetings held in
January and February 2005.
2. When it was
thought that there were grounds to remove Chief Desnomie from the office of
Chief, a process was followed to create a Council of Elders. However, Chief
Desnomie objected to the process selected to create a Council of Elders as not
every possible elder was informed that such a Council was being formed, nor
were they informed as to why it was being formed (namely to deal with his
removal). He submitted that the Council thus selected represented only a
minority of the Peepeekisis membership.
3. There is
nothing in the Election Act that sets out how the Council of Elders is to be created
and there was no evidence filed to support that the process that was followed
was in keeping with the customs of the Peepeekisis. Therefore, the Court
looked to the principles of procedural fairness to determine whether the rights
of Chief Desnomie were violated and whether the process used to create the
Council of Elders raised a reasonable apprehension of bias.
4. Other than
expediency, there was no valid reason why all of the elders of the Band were
not asked to participate in the Council of Elders. In that case the decision
was made by a Council of only three elders. The Court observed that
“elementary prudence and fairness commanded that they try to gather the largest
possible audience of elders, considering the importance of the decision for the
applicant.”
5. The
invitation to Chief Desnomie to answer the charges after the decision was made
to release him was insufficient as “it did not remove the obligation of the Council
of Elders to invite the Chief to respond to the allegations in the context
of their deliberations.” (emphasis added). “[T]o meet the test of
procedural fairness, there is, at a minimum, an obligation to provide the
person with adequate notice and an opportunity to respond when serious
allegations of wrongdoing are raised, which could have serious consequences,
such as in this case, the release of the applicant from his position as Chief.”
[22]
The
Court set aside the decision to remove Chief Desnomie. However, in the interim,
the present applicant had been elected Chief in a by-election in September 2005
held as a result of the removal of Chief Desnomie. She was subsequently
re-elected by the Peepeekisis at a regularly scheduled election in December 2006,
and but for the events under review, she would have remained Chief until December
2010.
Court File T-202-08: Bellegarde v.
Lambert Stonechild, Brian Desnomie and Gerald
Desnomie
[23]
On
November 26, 2007, at a meeting of the Peepeekisis membership, a motion was
made, supported by the 18 members present, to remove Beverley Bellegarde from
her office as Chief. On November 28, 2007, three Headmen passed Band Council
Resolution No. 540 adopting the membership resolution. Chief Bellegarde was actually
removed from her office on December 17, 2007. Chief Bellegarde then brought an
application asking this Court to set aside Band Council Resolution No. 540 on
the basis that it had no authority under the Election Act to remove the Chief from
office. On April 17, 2008, with the consent of Lambert Stonechild, Brian
Desnomie and Gerald Desnomie, the application was allowed without costs and the
decision to remove Chief Bellegarde was quashed and a declaration issued that
Chief Bellegarde was the Chief of the Peepeekisis First Nation.
Court File T-502-08:
Bellegarde v. Lambert Stonechild and Brian Desnomie
[24]
On
March 27, 2008, Chief Bellegarde commenced an application for judicial review
asking under what authority Lambert Stonechild and Brian Desnomie continued to
exercise their authority as Headmen in light of the decision on March 14, 2008
by the Thomas Desnomie Council of Elders to remove them from their positions.
This application was discontinued by Chief Bellegarde, with the consent of Lambert
Stonechild and Brian Desnomie, without costs, on April 21, 2009.
ISSUES
[25]
The
issues raised in this application by the parties are the following:
I.
Whether
this Court has jurisdiction under the Federal Courts Act, R.S.C. 1985.
c. F-7 to review the decisions at issue in this application;
II.
What
are the decisions under review and whether the Court should exercise its
discretion under Rule 302 to hear the application if it is not limited to a
single order;
III.
Whether
the application is out of time and, if so, whether the Court should extend the
time and hear the application; and
IV.
Whether
the proper procedure was followed in this case to effect the removal of the
applicant as Chief and to ban her from office for 10 years.
I. Jurisdiction
of the Federal Court
[26]
The
respondents submit that this Court has no jurisdiction over the subject matter
of the application - a decision of a council of elders. They submit that the
Council of Elders, as defined in the Election Act of the Peepeekisis, is not a
“federal board, commission or other tribunal” under section 18(1) of the Federal
Courts Act as is required if this Court is to have jurisdiction.
[27]
This
argument has previously been raised and has been dealt with by the Federal
Court of Appeal in Minde v. Ermineskin Cree Nation, 2008 FCA 52. The
facts there are on all-fours with the facts in this case. The Ermineskin Cree
Nation Elder’s Council passed a resolution declaring that Chief Minde had
vacated his office as Chief. That resolution was approved and enforced by the
Band Council. Mr. Minde submitted to the Federal Court of Appeal that the
Elders Council was not a federal board, commission or other tribunal and that
its decision was not subject to review by this Court. The Court of Appeal at
paragraph 33 of its decision found otherwise:
With respect to Mr.
Minde's preliminary argument that the Elders Council, if it was the decision-maker,
is not amenable to judicial review because it is not a federal board,
commission or other tribunal within the meaning of section 18 of the Federal
Courts Act, I need only say that the jurisdiction of the Federal Court
under section 18 does not depend on form, but is based on the authority to
decide. To the extent that the Elders Council is empowered to and did
terminate Mr. Minde as Chief pursuant to the Band Constitution, its decision
can be reviewed pursuant to section 18. (emphasis added)
[28]
Accordingly,
this Court has jurisdiction to review decisions of the Council of Elders made
under the Election Act.
II. What
Is Under Review
[29]
The
respondents, at paragraph 47 of their memorandum, raise the question as to what
or which decisions are under review:
It
is unclear from the Applicant’s material exactly what decision is being
attacked by the Applicant:
(a) Is it the decision of the
Council of Elders to remove the Applicant as Chief and prohibit her from
serving in office for a period of ten years?
(b) Is it the decision of the
Peepeekisis General Band Membership to hold the elections, filling her position
as Chief?
(c) Is it the Band Council Resolution
to fix the dates for the nomination and election in accordance with the results
of Peepeekisis General Band Membership Meeting?
[30]
This
“concern” was raised for the first time in the respondents’ memorandum filed on
July 29, 2009. Apparently, the respondents had a clear enough understanding of
the decision(s) being attacked to file responding affidavits and to conduct
cross-examinations of the applicant’s affiants.
[31]
It
is clear to the Court from the notice of application that the applicant is
seeking judicial review of all of these decisions.
[32]
The
respondents correctly point out that Rule 302 of the Federal Courts Rules
requires that “unless the Court orders otherwise, an application for judicial
review shall be limited to a single order in respect of which relief is
sought.” Here the applicant is seeking judicial review of four orders: (1) the
March 28, 2009 decision of the Alma Poitras Council of Elders removing the
applicant from her office as Chief, (2) the May 15, 2009 decision of the Alma
Poitras Council of Elders banning the applicant from holding office for 10
years, (3) the May 15, 2009 decision of the Alma Poitras Council of Elders recommending
a by-election, and (4) the May 21, 2009 decision of three Headmen setting the
dates and procedures for the by-election.
[33]
In
my view, this is one of those exceptional circumstances where the interests of
justice requires that the Court exercise its discretion to permit all of these
decisions to be subject to this single application for judicial review. In my
view, this is warranted for two basic reasons. First, the parties filed
evidence and cross-examined the affiants on all of these decisions, and so
there is no prejudice to either party if all decisions are under review.
Second, the latter decisions flow directly from the former decisions. If the
decisions of the Alma Poitras Council of Elders do not stand, then the
applicant remains Chief and the subsequent two decisions cannot stand.
III. Extension
of Time
[34]
The
respondents submit that the first decision, the decision of the Alma Poitras
Council of Elders removing the applicant as Chief made on March 28, 2009, is
the date from which the 30 day period in section 18.1(2) of the Federal
Courts Act commences. That provision permits a judge of this Court to fix
or allow further time for the filing of an application for judicial review
before or after the expiration of the 30 days. Therefore, assuming the respondents
are correct and that the time for challenging at least one of the decisions
under review expired before this application was filed, an extension of that
time may be permitted by this Court.
[35]
Generally,
this Court has permitted extensions when necessary to ensure that justice is
done between the parties taking into consideration whether the applicant has an
arguable case, whether the applicant had a continuing intention to challenge
the decision, whether the applicant offered a reasonable explanation for the
delay in initiating the application, and whether there will be undue prejudice
to the responding party.
[36]
I
am satisfied that the applicant has an arguable case and that there is no
prejudice to the respondents in permitting an extension for the filing of the
application for judicial review. With respect to the other factors, I consider
the following facts to be relevant. Although the first decision of the Alma
Poitras Council of Elders was made on March 28, 2009, Chief Bellegarde was only
denied access to her office from and following June 10, 2009. On that same
date she was denied remuneration and compensation as Chief, which she had
received previously, notwithstanding the March decision. Further, it was on
that date that she was denied signing authority as Chief. These actions
implemented and brought home to the applicant that the decisions of the elders
were being acted upon, as did the mid-May decisions to hold a by-election. In
these circumstances, the delay, if there was one, in filing this application
was understandable.
[37]
For
these reasons the Court exercises the discretion provided in the Federal
Courts Act and extends the time for filing the within application for
judicial review.
IV. Whether
Proper Procedure Was Followed
[38]
I
find that I am in the same position Justice Blais was in 2007. There is no
evidence that the Thomas Desnomie Council of Elders is or was properly
constituted in accordance with the Election Act or by custom. Equally, there
is no evidence that the Alma Poitras Council of Elders is or was properly
constituted in accordance with the Election Act or by custom.
[39]
The
question of custom was considered by the Court in Francis v. Mohawk Council
of Kanesatake, [2003] 4 F.C. 1133 at paragraph 21. The party relying on
custom has the burden of establishing what that custom is. The Court further
held at paragraph 23 that the constituent elements of custom, in the selection
of a council in that case, are (1) "practices" for the
choices of a council, (2) practices that are "generally acceptable to
members of the band", and (3) practices upon which there is a "broad
consensus".
[40]
With
respect to the Peepeekisis Council of Elders it is clear that there was no
practice prior to 2007 when Justice Blais rendered his decision. Since that
time there have been at least two councils “selected” and both by different
means. It is therefore impossible to say that there has been a “practice” or
that it has been generally accepted by the Peepeekisis members. The fact that
there are two purported councils proves that the “practice”, if there had been
one, is not one on which there is broad consensus.
[41]
Although
the Alma Poitras Council of Elders appears to have the endorsement of the
membership at a meeting, the documentary record does not indicate that it was
authorized to make decisions other than decisions on appeals under the Election
Act.
[42]
If
it is the intention of the Peepeekisis that for all purposes under the
Election Act, including the removal of a Chief, that the Council of Elders
established under the Election Act is to be comprised of everyone who considers
himself or herself to be an elder then, at a minimum, a clearly worded
resolution to this effect, passed at a meeting of the Peepeekisis having
broad-based attendance, after proper notice to all of the motion to be
considered, would be required. If it is the intention of the Peepeekisis that the
elders eligible to be on a Council of Elders must be recognized by the Peepeekisis
as such, then one would expect to see some confirmation of the composition of
the Council of Elders perhaps at a broad-based meeting of members at which
elders are recognized for this purpose, after proper notice to all of the
matter under consideration.
[43]
The Court has been struck by the discrepancy within the
Peepeekisis between the process followed in an election for Chief and in the
removal of an elected Chief. The record shows that elections are contested and
taken very seriously by all of the electors. It appears that while there are
some sharp divisions among the membership as to the best candidate, there is a
good turn-out of electors such that it can be said that there is a broad
support for the election process, even when the successful candidate has only a
plurality and not a majority of the votes cast.
[44]
Having established such a democratic process for an election,
including rights of appeal, one would expect to see an equally fair process
having broad based support and an appeal opportunity when considering the
removal of a duly elected official. Regrettably, that has not been the case in
recent years. Partly because of the historical composition of the First Nation,
partly because of the fact that its members are spread over a large territory, and
partly because of a lack of detailed notice, the attendance at meetings of
elders and at membership meetings has not been significant. Just as custom
requires a broad support for the custom if it is to be recognised as such,
broad support should be evident when considering the removal from office of a
democratically elected leader.
[45]
It is not clear from the record that the elders of the Peepeekisis
even wish to have the power to remove its Chief. Indeed, Evelyn Poitras
brought forward a motion to the membership to remove that power. Thomas
Desnomie, an elder of the First Nation, in his cross-examination states that
the traditional role of the elders is to guide and advise, not to engage in
politics. As long as the elders have this political role, then its decisions
to remove a Chief must, in keeping with custom and tradition, have broad-based
support. Similarly, if that role is removed from the elders and given to the
membership as a whole, decisions to remove should have as much of a broad-based
support and be reached as fairly as election decisions. If not, the
Peepeekisis will continue to be subject to having their elected officials
removed by a small number of members aligned in a faction without the overall
support, or perhaps without even prior knowledge of the First Nation
membership.
[46]
In
this case, even if the Alma Poitras Council of Elders was properly constituted
as the Council of Elders under the Election Act, its decisions with
respect to the applicant would have been set aside on the ground that
procedural fairness and natural justice were not observed, unless it could be
established that it is the custom of the Peepeekisis not to observe those principles.
[47]
In
this case the applicant was given no notice at all of the meeting in March at
which the resolution was approved removing her from office. She was not
provided with any opportunity to address the elders or to defend herself to
them prior to the decision made on March 28, 2009. In my view, the subsequent
meeting at which she was given an opportunity to address the issues was not
sufficient to cure that original error for the decision had already been made.
There is no evidence at all that the group was prepared to seriously reconsider
its decision. The suggestion made at the hearing that the previous letters
from Evelyn Poitras constituted proper notice is equally without merit. They
do not alert the applicant to the action subsequently taken to remove her from
office.
[48]
Moreover,
the Alma Poitras Council of Elders failed to observe the principles of natural
justice and procedural fairness in other ways. First, the group is chaired by
Alma Poitras, the mother of Evelyn Poitras, the person who brought the proposal
for the removal of the Chief to the group. This family relationship, in
itself, may not be sufficient to create an impression of conflict of interest
or perceived bias as was alleged by the applicant. However, the basis and
support for the motion was a letter written by Evelyn Poitras on behalf of her
mother and their family in opposition to the Chief. It was written prior to
the decision of the elders. In light of that letter, Alma Poitras appears to
have pre-judged the issue and this gives the appearance of bias. Even if she
made no comment or tendered no vote, she should not have chaired the meeting at
which the decision was made.
[49]
Second,
the motion to remove the Chief was previously brought before the Alma Poitras
Council of Elders for their review and comment. It is clear from the record,
indeed from the statement of Evelyn Poitras herself, that there was unanimous
support for the motion to remove the Chief. Therefore, it can hardly be said
that the decision made on March 28, 2009 was made afresh. The record indicates
that the decision had already effectively been made and thus the
decision-makers cannot be said to have exercised independent decision-making.
They had pre-judged the issue.
[50]
Lastly,
even if the Alma Poitras Council of Elders is the established Council of Elders
and even if it is accepted that any elder could serve on it, the record
indicates that the meetings under review were conducted by Alma Poitras calling
“some” of the elders to advise them of the meeting. They may or may not have
been given notice of the purpose of the meeting. Regardless, if the
composition of the Council of Elders is open to all elders, then all
elders, not just some, must be given notice of the meeting and the matters to
be discussed at it, otherwise it cannot be said that the composition of the
group was fair, broad-based, or in compliance with the requirements of the
Peepeekisis.
[51]
As
noted above, there is no evidence that the rules of procedural fairness and
natural justice do not apply to the Council of Elders. In fact, there is
evidence that they are to be followed. The appeal provisions of the Election
Act provide that appeals are heard by the Council of Elders. The Election Act
provides that appeals “will take the form of a formal public inquiry” at which
the person who is the subject of the complaint is to be present, as well as the
person who has brought the appeal. It further provides that each member of the
Council of Elders hearing an appeal “must agree to act impartially and must
appear to be unbiased.” If this respectful and fair process is followed by the
Peepeekisis in appeals from elections why would a lesser standard be suggested
as acceptable when proposing the removal of the duly elected Chief?
[52]
For
all of the foregoing reasons this application is allowed. The applicant is
entitled to her costs of this application. The Court will remain seized with
respect to the question of costs. If the parties cannot agree upon the
disposition of costs within 10 days, then the applicant is to serve and file
her submissions within 5 days and the respondents are to serve and file their
submissions within 5 days after receiving the applicant’s submissions. The
applicant shall have a further 5 days to reply.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
- The
application is granted;
- The
March 28, 2009 decision of the Alma Poitras Council of Elders removing the
applicant from her office as Chief, the May 15, 2009 decision of the Alma
Poitras Council of Elders banning the applicant from holding office for 10
years, the May 15, 2009 decision of the Alma Poitras Council of Elders
recommending a by-election, and the May 21, 2009 decision of three Headmen
setting the dates and procedures for the by-election are set aside;
- As a
result of paragraph 2 of this Judgment, the Court declares that Beverly Bellegarde
is the Chief of the Peepeekisis First Nation and she is entitled to
receive forthwith all wages and compensation that were not paid as a
consequence of the decision made on June 10, 2009 to cease her
compensation; and
- Costs are reserved.
“Russel W. Zinn”
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