Date: 20070704
Docket: T-829-07
Citation: 2007
FC 705
Winnipeg, Manitoba, July 04, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
THUNDERCHILD
FIRST NATION APPEAL TRIBUNAL, and JOSEPH JIMMY and ALLAN SNAKESKIN
Applicants
and
DALE
AWASIS, GARRY FRENCHMAN, WILTON ANGUS, MELVIN THUNDERCHILD, ALBERT MEETOOS, LEONARD PADDY,
JOHN B. NOON, RICHARD STAR, CHARLIE PADDY, SR., VIOLET WEEKUSK, MARY
THUNDERCHILD, ANDREW WAPASS, LESLIE ANGUS, EUGENE OKANEE, and JAMES STANDING
WATER
Respondents
REASONS FOR ORDER
[1]
This is a
motion by the Applicants for
An injunction ordering the
Respondents to refrain from purporting to exercise any jurisdiction or
authority concerning appeals made in relation to or disputes concerning the
election that took place on March 26, 2007, or the recount that took place on
April 2, 2007 at Thunderchild First Nation, until such time as the Appeal
Tribunal has had the opportunity to hear and decide on those appeals and
disputes;
together
with costs and an order for substituted service. Substituted service is no
longer an issue that needs to be determined. For the reasons that follow, I am
dismissing this motion and the request to set aside the appointment of an
Expanded Appeal Tribunal without costs to any party.
[2]
The
Applicants Jimmy and Snakeskin purport to constitute the Thunderchild First
Nation Appeal Tribunal, being the remaining members of that Tribunal as constituted
at a meeting of the Chief and Council of the Thunderchild First Nation held
August 9, 2006. The Respondents Awasis et al. are persons purportedly elected as
Chief and Counsellors (Headmen) of the Thunderchild First Nation by an election
held March 26, 2007 together with members of what is called an Expanded Appeal
Tribunal appointed by the Chief and Councillor Respondents.
[3]
The
Thunderchild First Nation is a Cree First Nation located in north western Saskatchewan. In August 2004, it adopted
a written Constitution which provides for among other things, an Appeal
Tribunal and incorporates by way of a schedule, the Thunderchild First
Nation Election Act. That Act contains detailed provisions as to
the election of a Chief and Council, the manner in which voting is to be
conducted, it provides for Electoral Officers to preside and it provides for an
appeal to an Appeal Tribunal which, according to section fourteen of that Act,
hears all appeals in respect of an election and makes a final and binding
decision from which there is no further appeal.
[4]
To recount
briefly some of the events leading up to the current dispute, the Constitution,
including the Election Act of the Thunderchild First Nation was put in
place August 12, 2004. In the spring of 2006, the elected Chief of the
Thunderchild First Nation was Walter Jimmy. He, together with the Council, appointed
members of the Appeal Tribunal as contemplated by the Elections Act. At
that time, August 9, 2006, the Applicants Joseph Jimmy and Alan Snakeskin were
appointed to that Tribunal, along with Maria Linklater. On October 16, 2006, an
election was held and Winston Weekusk was apparently elected as Chief. That
election was challenged and the Appeal Tribunal was asked to determine the
matter. On November 16, 2006, Maria Linklater resigned from the Tribunal
leaving just the Applicants Jimmy and Snakeskin. On January 22, 2007, the
Appeal Tribunal determined that a new election should be held. That election
occurred on March 26, 2007. The Chief and Council applied to the Federal Court
before the election was held for a stay of that determination. The stay was
refused by a decision of this Court dated February 22, 2007 cited as Weekusk
v. Thunderchild First Nation (Appeal Tribunal), 2007 FC 207.
[5]
In the
election conducted on March 26, 2007, one relative of the Applicant Jimmy ran
unsuccessfully, for Chief and another, unsuccessfully for Council. A relative
of the Applicant Snakeskin ran unsuccessfully for Council. These circumstances,
the Respondents allege, create a situation where the Applicants Jimmy and
Snakeskin can no longer occupy positions with the Appeal Tribunal. However, if
they were to recuse themselves, there would be no persons remaining to
constitute that Tribunal. This allegation was made by the Respondents but not vigorously
perused on the basis of bias.
[6]
On the
evening of March 26, 2007 and into the morning of the next day, the ballots for
the election were counted in a process observed by about 200 members of the
Thunderchild First Nation. As a result of this count it was announced that the
Respondent Dale Awasis had been elected Chief and some of the Respondents,
Richard Star, Garry Frenchman, Melvin Thunderchild, Walton Angus, Albert Meetoos,
Leonard Paddy and John B. Noon had been elected as Councillors (Headmen). This
election was recognized by the Department of Indian and Northern Affairs by
letter dated April 18, 2007, however, that letter recognized that the Appeal
Tribunal might consider the matter.
[7]
The Chief Electoral
Officer conducting the election received oral and subsequently two written
requests for a recount. A meeting was held with that Officer and the Appeal
Tribunal, comprising the Applicants Jimmy and Snakeskin, as a result of which
it was determined by the Chief Electoral Officer that a recount should take
place. It was determined that the recount to take place on April 2, 2007 and
the Department of Indian and Northern Affairs was so notified. It is important
to observe that the Elections Act does not provide for a recount. It
does provide for an appeal to the Appeal Tribunal however, no appeal of the
March 26, 2007 election was ever invoked under the provisions of the Elections
Act.
[8]
In the
meantime, the apparently newly elected Chief, Dale Awasis and newly elected
Councillors appointed a new Appeal Tribunal of 8 persons not including the
Applicants Jimmy or Snakeskin. The new Chief, by letter dated March 29, 2007,
purported to terminate the Applicants Jimmy and Snakeskin as members of the
Tribunal. Two of the new Appeal Tribunal, Paddy and Weekusk, by a letter dated
March 29, 2007, instructed the Electoral Officer not to conduct a recount.
This Electoral Officer says that she did not read the letter until April 3, 2007,
the day after the recount was conducted.
[9]
On April
2, 2007, the Electoral Officer conducted a recount in the presence of about 150
members of the Thunderchild First Nation. The Respondents allege that this
recount was irregular in that certain ballots that they say were properly
marked were rejected. As a result of the recount, the Electoral Officer
declared that Delbert Wapass (and not Dale Awasis) had been elected as Chief
and that all of the Councillors said to have been elected as of March 26, 2007
were again said to be elected except for Ira Horse who was said to be elected
instead of Leonard Paddy. The Applicants Jimmy and Snakeskin, in a letter dated
April 7, 2007, said that they accepted the results arising from the recount and
if the matter was appealed, they would review the matter.
[10]
Dale
Awasis wrote a letter dated April 19, 2007 to each of the Applicants Jimmy and
Snakeskin saying that the letter of March 29, 2007 purporting to terminate
their membership in the Appeal Tribunal should be disregarded and that they
were reinstated as members of the Appeal Tribunal along with the additional eight
members. This group of ten constituted the so-called Expanded Appeal Tribunal.
[11]
The Expanded
Appeal Tribunal wrote a letter to the Electoral Officer dated April 30, 2007,
questioning the validity of the recount. The Applicants, through their
solicitor wrote to the Thunderchild First Nation on May 2, 2007, expressing
concern as to the actions of Dale Awasis and the purported removal of the
applicants from the Appeal Tribunal and appointment of others to that
Tribunal. On that same day, May 2, 2007, the purported newly constituted Appeal
Tribunal met and determined that the recount of April 2, 2007 was not in
accordance with the Elections Act. The Applicant Jimmy initially met
with the Expanded Appeal Tribunal but quickly left. The Applicant Snakeskin
never met with the Expand Appeal Tribunal.
[12]
This
motion was filed May 18, 2007.
THE ISSUES
[13]
The
essential issue in these application proceedings as a whole is who is to
evaluate appeals in respect of the election for Chief and Councillors of the
Thunderchild First Nation held on March 26, 2007 and the purported recount of
April 2, 2007. Is it to be the “old” Appeal Tribunal consisting of the
Applicants Jimmy and Snakeskin or the “Expanded” Appeal Tribunal in which those
persons are included along with eight others chosen by the Chief and
Councillors purportedly elected on March 26 2007?
[14]
In this particular
motion the Court is asked to restrain the Respondents, who include the Chief
and Councillors of March 26, 2007 and members of the Expanded Appeal Tribunal
appointed by them, from acting until the members of the “old” Appeal Tribunal,
Jimmy and Snakeskin have heard and determined the propriety of these matters.
THE STATUS QUO
[15]
This is an
application for an interlocutory injunction the function of which is to
preserve the status quo, that is, to keep matters in the state as they existed
at the time of that the motion for an interlocutory injunction was brought.
This motion was filed May 18, 2007; therefore, the state of matters as of that
date must be examined.
As of May 18, 2007:
1. An
election had been held March 26, 2007 the result of which was that Dale Awasis
and seven Councillors (Headmen) (including Leonard Paddy) were declared to have
been elected by the Chief Electoral Officer.
2. No
challenge by way of an appeal under the Election Act has ever been taken
in respect of the election of March 26, 2007.
3. A
recount of the March 26 ballots was undertaken by the Chief Electoral Officer,
after conversation with the Applicants Jimmy and Snakeskin, on April 2, 2007.
Having conducted the recount Dale Wapass was declared to have been elected as Chief
and Isabelle (Ira) Horse was declared to have been elected as a Headman in
place of Leonard Paddy. All other Headmen remained the same.
4. Dale
Awasis and the March 26 Headmen had appointed an Expanded Appeal Tribunal
consisting of ten persons including the Applicants Jimmy and Snakeskin.
5. The
Expanded Appeal Tribunal, absent the Applicants Jimmy and Snakeskin, on an
Appeal, ruled that the April 2 recount was not done in accordance with the Election
Act.
[16]
Counsel
for the Applicants conceded in argument that the evidence does not show that
any further activity by the Expanded Appeal Tribunal or Chief and Council, that
is, the Respondents, is anticipated in respect of the March 26, 2007 election
or the April 2, 2007 recount. To that extent therefore, the subject matter of
the injunction sought does not exist. Applicants’ Counsel however sought the
indulgence of this Court under Rule 3 of the Federal Court Rules 1998 and
sections 18 and 18.1 of the Federal Courts Act to consider the propriety
of the purported appointment of the Expanded Appeal Tribunal and the purported
decision by that Tribunal that the April 2, 2007 recount was not in accordance
with the Election Act and to set them aside. Respondents’ Counsel
opposed this request. In order to bring some finality to this matter I will
grant the request of the Applicants and consider that they have requested a
determination as to whether the Chief and Council as elected on March 26, 2007
could appoint new members to the Appeal Tribunal and whether such Tribunal
could consider an appeal as to the recount of April 2, 2007.
TEST FOR INTERLOCUTORY
INJUNCTION
[17]
Counsel
for both sets of parties were agreed that the appropriate test to be applied in
considering whether an interlocutory injunction should be granted is that as
set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311 namely:
1. Is there a serious
issue to be trial?
2. Will
the moving party suffer irreparable harm if the injunction is not
granted?
3. Does
the balance of convenience favour the granting of an injunction?
Each of these criteria will be considered.
SERIOUS ISSUE
[18]
Counsel
for the parties agree that the standard for establishing a serious issue on a
motion such as this is low. There must, however, be such a standard. Here,
where there is no evidence that there is anything left to be enjoined, there
cannot be said to be a serious issue. The Respondents’ before the motion
papers were filed on May 18, 2007 had done what they were going to do with
respect to the March 26, 2007 election, which was nothing. The April 2, 2007
recount was appealed to the Expanded Appeal Tribunal which Tribunal had
declared the recount not to be in accordance with the Election Act
before May 18, 2007.
[19]
There is
no evidence that anything further is threatened or anticipated.
[20]
I will
consider subsequently, because Applicants’ Counsel requested that I do so, the
propriety of the appointment of the Expanded Appeal Tribunal, but that is not
the subject of the motion for an interlocutory injunction.
IRREPARABLE HARM
[21]
The
Applicants claim that their appointment to the Appeal Tribunal in August 2006
was largely influenced by the respect that they had achieved as elders within the
Thunderchild Nation. They say that not only does the Constitution of 2004
govern the affairs of that Nation but also the traditional laws and customs
which are entrenched in the preamble to the Constitution.
[22]
The
Applicants argue that any attempt to supplant them as the only Appeal Tribunal
is not only offensive to traditional laws and the Constitution but also will
create chaos and confusion in the community and with those dealing with the
community. This position is articulated principally in the affidavit of Dale
Noon, a member of the Thunderchild Nation and operator of that Nation’s radio
station.
[23]
The
Respondents argue that they have acted responsibly and within the laws and
Constitution of the Thunderchild Nation. Any chaos, they argue, is that caused
by the Applicants. They argue that continued funding from the federal
government may be prejudiced and that yet another election at this time will
prove very costly.
[24]
I find
that no harm of an irreparable nature has been made out by the Applicants, who
bear the burden in this regard. The evidence of Annette Jimmy and J. Albert
Angus filed late in these proceedings but on consent of the parties shows that
serious efforts are being made to clarify the whole issue as to constitution of
the Appeal Tribunal by way of referendum as to the implementation of a new Act
in that regard.
[25]
There is
no irreparable harm made out in respect of the Applicants Jimmy and Snakeskin
personally. Any harm to the community at large is in the course of being
rectified and cannot be seen to be irreparable.
BALANCE OF CONVENIENCE
[26]
An
interlocutory injunction is intended to preserve the status quo until the
proceedings can be finally resolved. Here the status quo is that no further
activity by the Respondents in respect of the March 26 election or April 2
recount is anticipated. The Thunderchild Nation is going about its usual
business in other matters.
[27]
The
balance of convenience does not favour the granting of an interlocutory
injunction.
AS TO AN INTERLOCUTORY
INJUNCTION
[28]
Therefore,
in applying the three part test, I find that the Applicants have not met any of
the three criteria. The motion for an interlocutory injunction will be
dismissed.
AS TO SETTING ASIDE THE
EXPANDED APPEAL TRIBUNAL
[29]
As
previously indicated in these Reasons, Applicants’ Counsel asked for leave to
include in the request made for an order, an order as to setting aside the
purported appointment of an Expanded Appeal Tribunal and their decision as to
the April 2 recount. I fully appreciate that it is not usual that such a
request be considered on a motion of this kind, particularly when opposed by
the Respondents. However, given that the Applicants’ according to their
Counsel, are persons of limited means, and that there is an interest in seeking
finality in these matters. I agree to Applicants request to make such a
determination. I find that the appointment of the Expanded Appeal Tribunal by
the Chief and Council as elected March 26, 2007 was in accordance with the
Constitution and Election Act of the Thunderchild Nation and that their
decision as to the April 2 recount was proper. To the extent that the laws and
customs of that Nation are also to be considered as they were put before me in
the Applicants’ evidence, I find nothing in that evidence that is inconsistent
with my findings.
[30]
The
Constitution provides in Article Seven for an Appeal Tribunal. The
Constitution does not stipulate the number of persons to constitute such
Tribunal. Article 7.05 contemplates that legislation will be passed which will
set out more precisely various matters in respect of that Tribunal and, in the
meantime, the Chief and Council may appoint members for a term not exceeding
two years. It says:
7.05 Until such time as
legislation of Thunderchild First Nation is passed governing the Appeal
Tribunal, the appointment of the Appeal Tribunal members shall be made by the
Chief and Council on an interim basis for a term not exceeding two (2) years
and on reasonable terms and conditions consistent with the Thunderchild First
Nation Constitution.
[31]
The
appointment of the Applicants Jimmy and Snakeskin to the Appeal Tribunal
(together with Maria Linklater) is reflected in minutes of the meeting of the
Chief and Council at the time on August 9, 2006. Motion #3 reads:
Chief and Council hereby move
to appoint the following individuals as members of the New Thunderchild Appeal
Tribunal (and thereby replacing the previous members): Joe Jimmy Sr., Allan
Snakeskin, and Maria Linklater.
Motion by: Charlie Paddy
Second by: Arnold J. Wapass
Motion Carried.
[32]
There is
nothing else in evidence as to their appointment. No term is mentioned,
however whatever the term was, it cannot exceed two years as stipulated by
Article 7.05 of the Constitution.
[33]
An
election was held on March 26, 2007. The votes were counted and the Chief
Electoral Officer, in accordance with Section 8.02 of the Election Act
declared that Dale Awasis had been elected as Chief together with seven
Councillors (Headmen). As stated by Cheryl Wapass, Chief Electoral Officer, at
paragraph 24 of her affidavit these new Chief and Councillors were sworn in on
March 27, 2007 and, in accordance with section 9 of the Election Act the
results of the election were delivered to them. At that point, the functions
of the Chief Electoral Officer are complete. Section 10.01 of the Act provides
only that she is to retain the ballots for a period of thirty (30) days in the
event of an appeal. No provision for a recount is made, only a provision for
an appeal. No appeal was taken.
[34]
If an
appeal were to be taken, it is to the Appeal Tribunal in accordance with
section fourteen of the Election Act. The process is begun by a
candidate or voter who must submit an affidavit setting out one or more of the various
stipulated grounds for appeal. No such appeal was launched in respect of the
March 26, 2007 election. Thirty days have gone by. That election is final.
[35]
The newly
elected Chief and Council as of March 27, 2007 were in a position, in
accordance with Article 7.05 to appoint members to the Appeal Tribunal. There
is no stipulated number of members. The appointment of eight new members
selected from various groups within the community is not unreasonable. There
is no provision to dismiss a member of the Appeal Tribunal save and except perhaps
article 7.02 which requires among other things good character, impartiality and
no criminal record. However, no such circumstance has been alleged here.
Respondents’ equivocation as to bias is noted but it has not been vigorously
urged in oral argument. The purported dismissal of the Applicants Jimmy and
Snakeskin was, in any event, revoked. Thus the final Expanded Appeal Tribunal
is not inconsistent with the Constitution and the Chief and Council appointing
the Expanded Appeal Tribunal were duly elected in accordance with the Election
Act.
[36]
The
purported recount of April 2 was found by the Expanded Appeal Tribunal to be
not in accordance with the Election Act. They had the power so to
find. In any event, I agree with the finding. The Act makes no
provisions for a recount, the remedy is an appeal. No appeal was sought.
[37]
Therefore,
I find that the appointment of the Expanded Appeal Tribunal, including the
Applicants, does not offend the Thunderchild Nation Constitution or Election
Act.
COSTS
[38]
The
Respondents have been successful on the motion, including in respect of the
relief sought orally on the motion. Applicants’ Counsel points out that the
Applicants have limited means and brought the motion in a genuine endeavour to
seek clarity and regularization in respect of a chaotic matter. To that
extent, I agree that clarity is desirable and the matter has been chaotic.
[39]
I award no
costs to any party.
"Roger T. Hughes"
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