Date: 20110110
Docket: T-1064-10
Citation: 2011 FC 17
Ottawa, Ontario, January 10,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
|
|
YVETTE METANSININE
|
|
|
|
Applicant
|
|
and
|
|
|
ANIMBIIGOO ZAAGI’IGAN ANISHINAABEK
FIRST NATION AND
CHIEF THERESA NELSON AND COUNCILLORS
PRISCILLA GRAHAM, MORRIS THOMPSON AND
DOROTHY RODY, AS REPRESENTATIVES OF THE
BAND COUNCIL OF ANIMBIIGOO ZAAGI’IGAN ANISHINAABEK FIRST NATION
|
|
|
|
Respondents
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application by Yvette Metansinine challenging a decision to remove her as
the Chief of the Animbiigoo Zaagi’igan Anishinaabek First Nation (AZA) and the
concomitant election of the Respondent, Theresa Nelson, to fill the vacated position.
The other personal Respondents are the members of the AZA Band Council who made
the decision to remove Chief Metansinine from office.
Background
[2]
AZA
is a First Nation with a reserve situated north-east of Thunder Bay,
Ontario.
Interestingly, for historical reasons none of the approximately 380 members of
AZA live on the reserve lands, but rather live in or near Thunder Bay. Thunder Bay is also
where most Band elections and meetings take place.
[3]
AZA
is presently governed under the terms of its Master Policy, which sets out the
terms and conditions of membership, band elections and financial management.
Band governance is provided by an elected Chief and three councillors who hold
office for a term of three years. Article 8.1 of the Master Policy provides
that a position on Council becomes vacant “when [t]he official is absent from
three (3) consecutive Council meetings without authorization from a quorum of
Council”. When the position of Chief is vacated, Article 8.2 requires the Band
Administrator to convene an emergency community meeting to fill the position. Article
7.1(i) stipulates that the Band Administrator shall give notice of the required
emergency meeting where nominations will be accepted and a by-election held.
[4]
Chief Metansinine
was first elected as Chief of AZA in 1997 and has continuously held office
since then. She was most recently re-elected in a March 6, 2010 general Band
election where she defeated her opponent, Theresa Nelson, by a margin of 100
votes to 83 votes.
[5]
On
April 24, 2010 the Band met to discuss possible amendments to the Master Policy
and to discuss matters arising out of the March 6th election.
According to the Minutes of that meeting, Theresa Nelson made a number of
accusations about the conduct of Chief Metansinine including misuse of a
Band credit card and vehicle, as well as election irregularities. This was
followed by a lengthy discussion among the membership focussed largely on the
conduct of the Chief and which included some calls for her resignation. At
about the same time, a petition was circulated within the AZA membership
calling for revisions to the Master Policy and the calling of a new election.
[6]
As
a result of the allegations made at the April 24th Band meeting,
Chief Metansinine sought medical attention for the onset of anxiety. On
April 26, 2010 she was examined at the Nipigon Hospital and
diagnosed with depression and anxiety. She was also advised to take a medical
leave of absence from Band duties and was referred to counselling. On May 5,
2010 Chief Metansinine provided a medical note from her physician to the
Finance Officer for AZA which stated that she would be off work indefinitely
because of severe, acute anxiety and depression.
[7]
Band
Council continued to function in the absence of Chief Metansinine and
meetings were convened on May 5th, 19th and June 1st,
2010. The Minutes of the May 5th meeting note the unauthorized
absence of Chief Metansinine along with information about her health
status. Those Minutes also indicate Council’s agreement to keep her updated by
email and reflect a detailed discussion about the validity of the March 6th
election. At this meeting, Council also agreed to convene a Band meeting on
June 6th with a view to discussing possible changes to the AZA
Master Policy. The proposed Band meeting is described as “a workshop style
format with round tables” where election code issues would be discussed.
[8]
The
Minutes of the May 19th, 2010 Band Council meeting note Chief Metansinine’s
continued unauthorized absence as well as the pending Band meeting in Thunder Bay scheduled
for June 5th.
[9]
The
Minutes of the June 1st, 2010 Band Council meeting indicate that
Chief Metansinine was again “absent without authorization” and include a
further update on the upcoming Band meeting in Thunder Bay.
[10]
The
Minutes of the Band meeting on June 5th confirm the adoption of an
agenda and a discussion about the appropriate membership of a proposed Policy
Committee, the mandate of which was to recommend changes to band policies.
During roundtable discussions many proposals for electoral reform were advanced
and duly noted. This was followed by an open forum discussion where the
medical absence of Chief Metansinine was raised. One member called for
criminal action against the Chief and another called for a new election.
Theresa Nelson is reported as saying that another election would lead to a
delay of four months but that, with the approval of Band Council, an election
for Chief could be held that day.
[11]
As
a result of the comments of some band members during the open forum discussion,
the Band meeting was recessed in order for the Band Council to deliberate.
When the open forum resumed, the Band Council announced that they had decided
to vacate the position of Chief due to Chief Metansinine’s unauthorized
absences from its three previous meetings. It also authorized an immediate
emergency community meeting for the purpose of holding a by-elelction. This
decision was later ratified in the following June 7, 2010 Band Council Resolution:
WHEREAS The Animbiigoo Zaagi’igan Anishinaabek
select their leadership under a custom Election Code, dated October 28, 2006;
and
WHEREAS the custom Election Code also provides
for determination of vacating a position on Council under Section 8.1; and
WHEREAS Section 8.1 states that a position on
Council becomes vacant when:
I. The official resigns their
position; or
II. Becomes deceased; or
III. The official has
been convicted of a criminal offence; or
IV. The official is
absent from three (3) consecutive Council meetings without authorization from a
quorum of Council; or
V. The official is
convicted of election fraud, or corrupt practices and
WHEREAS Yvette Marie Metansinine has been absent
from three (3) consecutive Council Meetings on May 5, 2010, May 19, 2010 and
June 1, 2010; and
WHEREAS a quorum of Council has confirmed on
June 5, 2010 that the absences from the Council Meetings have been without
authorization;
THEREFORE BE IT RESOLVED that Yvette Marie Metansinine
has vacated the position of Chief with the Animbiigoo Zaagi’igan Anishinaabek
effective June 5, 2010.
THEREPORE BE IT FURTHER RESOLVED that the Council of Animbiigoo
Zaagi’igan Anishinaabek authorized the Band Administrator to immediately convene
an emergency meeting as per Band Custom to fill the position on June 5,20l0.
[12]
The
Band meeting was then concluded with a motion to adjourn to be followed by the
immediate convening of an “emergency meeting for the purposes of filling our
leadership position here today”. An emergency meeting of the Band was
convened and nominations to fill the vacated position of Chief were called.
Theresa Nelson and another candidate were nominated and in the ensuing vote Ms.
Nelson was elected by a margin of 49 to 41.
[13]
It
is not a point of dispute that Chief Metansinine was never notified that
her position as Chief was in jeopardy during any of the meetings noted above.
In particular, it is clear on the record that she was never told that Band
Council contemplated her removal from office because of three consecutive
absences from its meetings. Indeed, Chief Metansinine has deposed that
she was never notified of the meeting of Band Council held on May 5th,
that being one of the three supposedly unauthorized absences that were relied
upon by Band Council to remove her from office. This evidence is not
contradicted by the Respondents and, in fact, Theresa Nelson deposes that the
May 5th meeting “was scheduled verbally at the office, as is the
common practice of Council”. Unlike the two subsequent meetings of Band
Council where written notice to Chief Metansinine was provided, the record
contains no evidence of any kind of notice being sent to her about the May 5th
meeting. It is also common ground that Chief Metansinine did not seek
formal authorization from her political colleagues for the absences from
Council meetings that were subsequently relied upon to remove her as Chief.
Issues
[14]
Was
the Band Council decision to remove Chief Metansinine from elected office
and to conduct a Band by-election carried out in conformity with the principles
of procedural fairness and in keeping with the election provisions of the AZA
Master Policy or its prevailing customary practices, if any?
Analysis
[15]
The
parties agree that the Court has jurisdiction over this matter and I agree that
it falls within the well-accepted parameters for judicial review of a band
council decision of the sort made here: see Sparvier v Cowessess Indian
Band, [1993] 3 FC 142, 63 FTR 242.
[16]
The
fundamental issue raised on this application is one involving procedural
fairness which is reviewable on the standard of correctness: see Giroux v Swan River First Nation, 2006 FC
285, 288 FTR 55 at para 31. Effectively, the same argument has been advanced
as to the proper construction of the AZA Master Policy. Because the factual
underpinnings of that argument are not in dispute and can be isolated from the
legal issues of interpretation advanced by the Applicant, it too must be
assessed on a standard of correctness.
[17]
There
is no doubt on the record before me that Chief Metansinine was given no
notice that Band Council was contemplating her removal from office before it
took that decision on June 5th, 2010. That was not an issue that
was raised in any of the previous meetings of the Band Council nor was it the
subject of any proposed item for decision at the scheduled Band meeting of June
5th. According to the Minutes of the June 5th Band
meeting, the possibility of Chief Metansinine’s removal first arose during
an open forum discussion and proceeded from there.
[18]
Chief Metansinine
says that, as a matter of fairness, she was entitled to express notice of any
meeting where her continued tenure as Chief was at risk. She argues that
notice of such a meeting is required both under the common law and in
accordance with the spirit and language of the AZA Master Policy.
[19]
The
Respondents say that the election provisions of the Master Policy do not
explicitly require that notice be given to a member of Band Council whose
position is vacated under Article 8.1. This provision, they say, is
automatically invoked upon proof that the member is absent from three
consecutive Council meetings. In the case of Chief Metansinine, it was
pointed out that she was well aware of Article 8.1 and had participated in its
similar application in other situations where a position on Band Council had
been vacated. This prior history is said to have established a band custom
supporting the summary disposition of such matters followed immediately by the
convening of an emergency community meeting to fill the vacancy. The
Respondents further contend that, in the case of the position of Chief being
vacated, the necessary by-election can proceed without notice to members of the
Band who are not present for the emergency meeting. In other words the
Respondents argue that a regular Band meeting called for some other declared
purpose can be converted on the spot to an emergency community meeting in
support of an unannounced by-election and that only those present are entitled
to nominate candidates and to vote.
[20]
All
of the above is, of course, precisely what happened in the case of Chief Metansinine.
Notwithstanding the fact that she had won election as Chief over Theresa Nelson
by a margin of 100 to 83, she was put out of office three months later in an by-election
for which she and many others members of the Band had no notice and no
opportunity to run or to vote. In that election Theresa Nelson won the
position of Chief over George Nayanookesic by a margin of 49 to 41 with the
total of votes cast representing less than half of the votes cast in the
preceding Band election.
[21]
I
do not accept the Respondents’ arguments that the approach taken for the
removal of Chief Metansinine and the election of Theresa Nelson as her successor
was procedurally fair or in keeping with the AZA Master Policy.
[22]
The
requirement for explicit notice to a person whose rights are in jeopardy is a
fundamental component of the duty of fairness: see Sparvier, above.
The requirement to give notice of an election to all eligible voters is equally
fundamental to the proper exercise of the rights of the electorate in any
democratic institution. What took place in this instance was a profound breach
both of Chief Metansinine’s right to argue against her removal by the Band
Council and of the rights of those members of the Band who were effectively
disenfranchised by the failure to give them notice of the resulting
by-election. This process allowed Theresa Nelson to run again for election as Chief
without the need to face Chief Metansinine as an opponent and presumably
in the absence of many voters who had supported Chief Metansinine in the
previous election. Such a process invites the potential corruption of the
political process by permitting a minority of the electorate to undercut the
will of the majority by stealth and has no place in any democratic process.
[23]
I
reject entirely the Respondents’ contention that Chief Metansinine was
not entitled to notice that the Band Council intended to consider the invocation
of Article 8.1 to remove her from office. What took place was not in keeping
with how the Band Council had dealt with absences of members from meetings in
the past, including Chief Metansinine. Band Council was well aware of the
reason for Chief Metansinine’s absences and, by the indications given to
her, those absences did not represent a problem. In fact, in the Minutes of
the meeting of Band Council for May 5, 2010 it was reported that Chief Metansinine
would be off work indefinitely and “[c]ouncil agreed that they would continue
to send emails to her so that she could continue to be updated…”.
[24]
It
is also of considerable significance to the decision to later remove Chief Metansinine
that, according to her affidavit, she did not receive advance notice of the May
5th meeting. That meeting was nevertheless counted as one of the
three meetings she had missed as a prerequisite to her removal. There is no
evidence presented on behalf of the Respondents to contradict Chief Metansinine’s
account on this critical point and Theresa Nelson’s affidavit provides some
corroboration by stating that the “May 5, 2010 meeting was scheduled verbally
at the office, as is the common practice of Council”. Having regard to the
presence in the Record of two email notices sent to Chief Metansinine
concerning the other two pending Council meetings of May 19th and June
1st, I can only conclude that Chief Metansinine was never
notified of the May 5th Band Council meeting and, in the result, did
not miss three meetings without authorization.
[25]
The
argument that Article 8.1 of the Election Code could still be invoked against Chief Metansinine
because she later became aware that Band Council considered her absence on May
5th to be unauthorized is wholly without merit. A person cannot be
penalized for failing to attend a meeting for which no notice was provided.
But, in any event, this is precisely why Chief Metansinine was entitled to
be informed that her position as Chief was in issue at the Band Council and community
meetings later held on June 5th. Had she been given notice, she
could have made the case that the prerequisite for invoking Article 8.1 had not
been met and that any attempt to declare her position vacant was unlawful.
[26]
I
also do not accept that Article 8.1 provides for an automatic removal from
office upon proof of three unauthorized absences from Council meetings. By its
very terms Article 8.1 permits Band Council to excuse absences of this kind.
By failing to give notice to Chief Metansinine that her position was at
risk, she was deprived of an opportunity to make that case as well.
[27]
Nothing
turns on Chief Metansinine’s failure to seek prior authorization for her
medical absences. She was still entitled to express notice that her status of
Chief would be under review by Band Council before any decision was taken to
remove her.
[28]
The
Respondents’ argument that Band custom allowed for this type of process is
equally unmeritorious. What they have put forward as evidence of band custom
is nothing more than anecdotal accounts of largely dissimilar events which are,
in themselves, troubling from a fairness perspective. Customs of a band are
historical practices which are generally acceptable to its members and for
which there is a broad consensus: see Prince v Sucker Creek First Nation,
[2008] FCJ No 1613, 2008 FC 1268 at para 28. The evidence that was presented
falls well short of what is required to prove a customary practice.
[29]
It
is noteworthy that the Master Policy governing the events relevant to this case
was adopted by the Band in 2006 and after the events relied upon by the
Respondents in proof of band custom. Article 1.5 of the Master Policy states
that it is based upon and incorporates band customs and traditions. There is
nothing whatsoever in the Master Policy which would support an argument that
Band Council can invoke Article 8.1 without notice to the person affected.
Indeed, the Master Policy contains numerous provisions which require notice in
a variety of situations and, in particular, with respect to by-elections.
[30]
The
suggestion that what occurred on June 5th was consistent with the
broad consensus of the Band is also belied by evidence in the record that some
of those present opposed the process. While the approach taken here might have
been acceptable to individuals with a vested interest in its outcome, I do not
agree that any objective and fair-minded member of the Band would find it
acceptable.
[31]
Even
if the Respondents are correct that the Master Policy is not exhaustive of the
election customs of AZA, I do not accept that any procedural gaps can be filled
by the fundamentally unfair practices that were followed on June 5th,
2010: see Sparvier, above.
[32]
There
is no doubt that the by-election undertaken by the Band on June 5th
was in clear violation of the notice requirements for replacing the Chief. I
do not agree that Article 8.2 permits a by-election for the Chief without
notice to all of the members of the Band. Article 8.2 is subject to the
general requirement in Article 7.1 that notice of an emergency community
meeting to fill any vacancy be sent to all members of the Band. Anything short
of this effectively disenfranchises those electors who would have wanted to
vote and it precludes the nomination of members who would have sought the
vacated office had they been aware of the election.
[33]
This
is also not a situation where, because of extraordinary intervening events,
prerogative relief in the form requested ought to be refused. Chief Metansinine
is entitled to reinstatement.
Conclusion
[34]
For
the foregoing reasons the Band Council Resolution purporting to remove
Chief Metansinine from office dated June 5th, 2010 and the
resulting election of Theresa Nelson as Chief of AZA are set aside.
Chief Metansinine is entitled to a declaration that she continues to be
the lawfully elected Chief of AZA.
[35]
The
parties have requested that I reserve my decision on costs. If they cannot
agree on costs, I will accept written submissions from them not to exceed 10
pages in length with the Applicant’s submission to be filed within 30 days of
this decision. The Respondents’ submission may be filed within 14 days and the
Applicant will have 3 days to reply with the further submission not to exceed 3
pages in length.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. the June 5, 2010 decision of the AZA Band Council,
ratified by the June 7, 2010 Band Council Resolution purporting to remove the
Applicant from office, and the subsequent election of Theresa Nelson as Chief
of AZA are hereby set aside;
2. the
Court declares that the Applicant continues to be the lawfully elected Chief of
AZA; and
3. the
issue of costs is reserved pending further submissions from the parties.
“ R. L. Barnes ”
Email this Content