Date: 20070720
Docket: T-1082-06
Citation: 2007 FC 765
Québec, Quebec, the 20th
day of July 2007
PRESENT:
THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
MARC AWASHISH
DENIS WEIZINEAU
NOËLLA CHACHAI
NATHALIE AWASHISH
CLÉMENT CLARY
Applicants
and
OPITCIWAN ATIKAMEKW BAND COUNCIL
JEAN-PIERRE MATTAWA
FERNAND DENIS-DAMÉE
RÉGINA CHACHAI
MARTINE AWASHISH
BONIFACE AWASHISH
CHARLES JEAN-PIERRE
ANNIE CHACHAI
Respondents
and
SIMON AWASHISH
Intervener
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review made pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, by which the applicants are asking the
Court to quash the elections held at Opitciwan on May 30 and 31 and June 1,
2006; to issue a writ of quo warranto divesting of their duties the
members of the Opitciwan Band who were illegally elected to the Opitciwan
Atikamekw Band Council (the Council); and ordering that new elections be held
in accordance with the rules of the [TRANSLATION] Opitciwan Atikamekw
Council Electoral Code (the Electoral Code) adopted by the Council in May
2005.
RELEVANT
FACTS
[2]
On
September 24, 2002, the Council adopted resolution No. 2002-09-24-075, setting
up a study group to review the electoral by-laws and create a proper electoral
code. At that time, the members of the Opitciwan community elected their chief
and Council members in accordance with customary rules, some of which were
written down. This resolution also provided for the submission of a draft
electoral code to the Council, its posting and publication in the community,
consultation of the community on major points in the draft, and the adoption of
the Electoral Code by referendum.
[3]
On
May 19, 2005, a special general public assembly was convened at which a
proposal was made by Paul-Yves Weizineau to the Council to amend resolution No.
2002-09-24-075 by repealing the referendum procedure contemplated for adoption
of the new Electoral Code. As a majority of the members present agreed, the
proposal was adopted. The members present at the assembly then recommended that
the Council adopt the Electoral Code and that it come into effect as soon as
approved. This proposal was unanimously adopted.
[4]
The
respondents alleged that another public assembly was held on May 30, 2005, at
which resolutions for amendments to the Electoral Code were adopted, but the
transcript of that meeting still cannot be found and the amendments were not
reflected in the version adopted by the Council.
[5]
On
May 31, 2005, the Council adopted resolution No. 2005-05-31-016, which provided
for the adoption of the Electoral Code as submitted at the assembly of May 10,
2005, and its application in the forthcoming general elections.
[6]
On
July 18 and 19, 2005, elections were held at Opitciwan and Jean-Pierre Mattawa,
Martin Awashish, Maria Chachai, Régina Chachai, Paul Awashish, Fernand
Denis-Damée and Boniface Awashish were declared elected.
[7]
Following
these elections five complaints were filed with the appeal board formed
pursuant to section 19 of the Electoral Code. In its decision of September 15,
2005, the appeal board concluded that the elections in question should be
quashed, new elections held and, in the meantime, the former Council should be
responsible for governing the Band. Following this decision, a general assembly
was convened by the election board on September 21, 2005, at which the members
present rejected the appeal board’s decision and declared the elections of July
18 and 19 valid.
[8]
On
October 21, 2005, Simon Awashish, former chief of the Opitciwan Atikamekw Band
defeated in the 2005 elections, filed an application for judicial review in the
Federal Court (T-1846-05) from the decision of September 21, 2005, together
with a motion for an order of interlocutory injunction, seeking inter alia
a writ of quo warranto divesting of their duties the members of the
Council elected in 2005 and conferring the duties of the Council members on the
individuals who were members of the Council prior to the 2005 elections until
new elections were held.
[9]
In
a decision dated December 16, 2005, Madam Justice Danièle Tremblay-Lamer
allowed the motion, ordering inter alia that the status quo existing
before the September 21, 2005 decision be restored and accordingly that the
Council members elected on July 18 and 19, 2005, be divested of their duties
and the applicant, as well as the former Council members, be reinstated until
the Court ruled on the application for judicial review.
[10]
On
December 22, 2005, a meeting of the Grand Council of Elders of Opitciwan was
held at which the Federal Court judgment and the validity of the Electoral Code
were discussed. It is clear from reading the minutes of that meeting that there
was some confusion among the elders, who mentioned inter alia the
difficulty of participating in assemblies, which were held in French, when
several of them did not speak the language. In the respondents’ submission, and
as set out in the petition discussed in the following paragraph, the elders
apparently decided at that meeting that the Electoral Code should be suspended.
According to the applicants’ submission, however, the elders never made such a
decision.
[11]
The
only passage from the minutes in which the Electoral Code question was raised
reads as follows:
[TRANSLATION]
Elizabeth Aw. Mentioned that if you take
the judgment and the code – as she has read the Electoral Code several times,
and she is for the judgment as the code is authentic, then she asked why
they did not want to have the Code, there was something blocking them regarding
the Electoral Code, and it is true there is something blocking them.
Gabriel. I also read the Code in
Atikamekw and I thought the document was valid, I even think that Antoine
does not know what the Code contains, I will go and see Antoine to have the
Code read. They wondered why they do not want this Code.
PYW. A Council of Elders should be
formed, if you say it is difficult to make a decision, we should have a Council
of Elders before the elections, within two months.
JCH. I think that we cannot take a
decision today; he asked William to leave it as such for the moment.
PYW. Mentioned that the judgment is
valid as there is no decision. He explained that the judgment and Code would be
in suspense on January 16 at the general assembly. He asked again for a
Council of Elders to be formed. Annie 32 replied how can you think that people
today will listen to us when they don’t want to even listen to the elders
anymore.
PYW. Proposed that if ever things were
very bad in our community, we would organize another meeting and his proposal
was accepted. Also suggested that the present situation be left as it is,
and asked Simon, Jean Pierre and Paul to proceed to communicate by radio to
calm tensions before the elections. If PY hears of troublemaking, he will
intervene with the elders.
PYW. Asked elders to think about the
formation of the Council of Elders.
JCH. Asked what would become of the
election board and PYW replied there would be no new board and he re-read the
agenda once again, explaining the procedures for the next general assembly.
I asked PYW who the leaders would be and
he replied in accordance with the court judgment.
[Emphasis added.]
[12]
Following
this meeting, a petition was circulated and signed by over 400 members of the
community. The petition supported the following proposal:
[TRANSLATION]
Pursuant to the decisions taken by the
elders at their meeting on December 22, 2005.
It was decided that the present Electoral
Code should not be implemented for the next elections and that election
procedures should follow custom.
We, the members of the Opitciwan
Atikamekw community, support their decisions.
[13]
A
series of public assemblies were held between January and May 2006 at which the
Federal Court judgment, the decision of the elders, the formation of a new
election board and the Electoral Code were discussed. At the same time Nicole
Bérubé, now counsel for the respondents in this case, was instructed by certain
members of the community to enter into negotiations with Martin Dallaire,
counsel for the applicants in docket T-1846-05, with a view to resolving the
political crisis in Opitciwan.
[14]
On
February 6, 2006, the Council adopted resolution No. 2006-02-01-001,
recognizing the new election board appointed at the general assembly of January
18, 2006.
[15]
At
a special assembly held on February 16, 2006, the Council members reinstated by
the judgment of Tremblay-Lamer J. announced their withdrawal from the Council
for reasons of public and personal safety. That said, seven of the eight
Council members present at the assembly later indicated that they expected to
remain in their positions until the new Council was elected at a general
election.
[16]
On
March 1, 2006, the Council adopted resolution No. 2006-03-01-008, directing the
election board to convene a general assembly of members of the community to
initiate the electoral process in accordance with the Electoral Code.
[17]
On
March 17, 2006, several members of the community sent a letter to the acting
chief, asking him to suspend application of the Electoral Code for the
forthcoming elections.
[18]
On
March 21, 2006, a public assembly was held at which suspension of the Electoral
Code for the 2006 elections was proposed. The result of the vote on this
proposal was as follows: 76 in favour, 3 against and 2 spoiled ballots.
[19]
On
April 10, 2006, the Council adopted resolution No. 2006-04-10-020, recognizing
the difficulties of implementing the Electoral Code and the need to hold other
elections as soon as possible. The Council thus agreed to suspend the Electoral
Code and to submit to the assembly the application of certain standards for the
elections, namely, the composition of an election board, the definition of
eligibility for elections under clause 7.1 of the Electoral Code, the number of
positions to be filled (1 chief and 6 councillors), the length of the future
Council’s mandate (two years), the appointment of an arbitrator rather than an
appeal board, a process for members residing outside the reserve to vote and
the date of the elections.
[20]
That
said, this resolution was signed only by the chief and four councillors, which
did not constitute a majority of the Council. It should also be noted that the
resolution followed not only a series of general assemblies but also
negotiations between Ms. Bérubé and Mr. Dallaire on behalf of their respective
clients.
[21]
On
April 27, 2006, a general public assembly was held pursuant to resolution No.
2006-04-10-020. Some 180 persons were present and voted on the points raised by
the resolution in question. Another general assembly was held on May 3, 2006,
at which the by-laws used for the 2003 elections were reviewed and updated for
the 2006 elections.
[22]
On
May 30 and 31 and June 1, 2006, elections were held in Opitciwan and 770 of the
1,352 electors on the electoral roll exercised their right to vote. Jean-Pierre
Mattawa, Fernand Denis-Damée, Régina Chachai, Martine Awashish, Boniface
Awashish, Charles Jean-Pierre and Annie Chachai were declared elected.
[23]
By
a letter June 15, 2006, to the Opitciwan returning officer, ten members of the
community challenged the results of the elections and contended that the
Electoral Code was still legally in effect and had not been observed. Receiving
no reply to their complaint, the applicants filed this application for judicial
review, alleging inter alia infringements of the Electoral Code
regarding notice of elections, the nomination process, the electoral process,
voting procedures, the code of conduct of those elected and the voting process
for members not residing in Opitciwan.
[24]
In
the proceeding at bar, the applicants are asking the Court to quash the
elections held at Opitciwan on May 30 and 31 and June 1, 2006, issue a writ of quo
warranto divesting of their duties the members of the Opitciwan Band
illegally elected to the Council in the elections, issue an order of injunction
directing that new elections be held consistent with the Electoral Code and
ordering the provisional enforcement of the judgment to be rendered,
notwithstanding appeal.
[25]
On
January 19, 2007, the applicants in docket T-1846-05 officially discontinued
their application, following an agreement giving Simon Awashish intervener
status in the case at bar.
PRELIMINARY
ISSUE
[26]
To
begin with, I must discuss an application made by counsel for the respondents
the day after the hearing held at Roberval on June 13, 2007.
[27]
First,
I note that the parties submitted their arguments during the day on June 13 and
that the case was taken under advisement that same evening. It is unusual to
ask the Court to re-open the proceeding during the advisement to hear allegedly
fresh evidence.
[28]
I
have reviewed the correspondence received from the parties and I do not think
there is any reason to re-open the argument, since the parties have a duty to
ensure that all available, relevant and probative evidence is filed with the
Court at the proper time and in accordance with the rights of the other
parties.
[29]
Accordingly,
I consider it as not consistent with the interests of justice to re-open the
matter, and consequently the application to re-open the proceeding is
dismissed.
ISSUES
[30]
Essentially,
the following issues were raised in this matter:
1. Was
the adoption of the Electoral Code by the Opitciwan Atikamekw Council valid?
2. If
so, was the suspension of the Electoral Code by the Opitciwan Atikamekw Council
valid?
3. If
the Electoral Code were still in effect, did the evidence before the Court
establish that there were one or more breaches of the Electoral Code that would
justify the Court quashing the 2006 elections?
ANALYSIS
(1) Was the adoption of
the Electoral Code by the Opitciwan Atikamekw Council valid?
[31]
The
respondents submit first that the 2006 elections should not be quashed by this
Court for an infringement of the Electoral Code since the Electoral Code was
not and never was valid, as a result of the absence of a consensus to indicate
that the Electoral Code reflected Band custom. This argument was based on the
fact that the Council held no referendum, as it had initially undertaken to do,
and on the absence of any evidence regarding the way in which the preparation
and consultation process preceding adoption of the Electoral Code took place.
The respondents further alleged that the Electoral Code was adopted in haste,
since the Council’s mandate was nearing its end and elections were to be held
as soon as possible.
[32]
The
respondents object to the procedure used for adoption of the Electoral Code,
when it was proposed that the Council repeal the referendum procedure initially
agreed upon, it was recommended that the Council adopt the Electoral Code and
the latter was in fact adopted by the Council, all at one assembly. The
respondents further maintain that we cannot regard adoption of the Electoral
Code by at most 30 individuals out of a possible 1,352 on the electoral roll as
indicating that the Code was the subject of a broad consensus. The respondents
add that no evidence was presented regarding notices convening the assembly of
May 19, 2005, and if there was no reasonable notice so that members of the
community could exercise their voting rights, the rules of natural justice were
infringed.
[33]
Finally,
the respondents maintain that it is for the applicants to prove that the
Electoral Code represents custom.
[34]
The
applicants and the intervener Simon Awashish maintain that the Electoral Code
is valid, emphasizing that the Electoral Code was the result of a long process
of consultation to create a structure that would enable members of the
community to vote freely and in an orderly manner, consistent with established
custom and practice in the community. The applicants further submit that the
respondents are unfounded in law in saying that the Electoral Code does not
apply because it had not been the subject of a referendum when it was adopted.
[35]
The
applicants further submit that this argument regarding the validity of the
Electoral Code was made within a completely unreasonable period of time, and
moreover by persons claiming to be elected in September 2005 following
elections held under the Electoral Code.
[36]
The
applicants further rely on the order made by Tremblay-Lamer J. in docket
T-1846-05, Awashish v. Opitciwan Atikamekw Band, 2005 FC 1703, in which
she acknowledged the prima facie validity of the Electoral Code, in
particular at paragraphs 6 and 7:
Contrary to what the respondents
allege, there is strong evidence showing that the Electoral Code represents
the custom of the Band.
¶ 7
The applicable custom when a Band Council is to be chosen in cases not governed
by section 74 of the Indian Act, ibid., “must include practices for the
choice of a council generally acceptable to members of the band upon which
there is a broad consensus”: Bigstone v. Big Eagle (1992), 52 F.T.R. 109; Bone v. Indian Band No. 290 of Sioux Valley (1996), 107 F.T.R. 133. In this case, the Electoral Code was validly adopted by resolution
following consultations with the community on May 31, 2005.
[37]
In
Bigstone v. Big Eagle (1992), 52 F.T.R. 109, Mr.
Justice Strayer noted the following:
Unless otherwise defined in respect of a
particular band, “custom” must I think include practices for the choice of a
council which are generally acceptable to members of the band, upon which there
is a broad consensus. . . . The real question as to the validity of the new
constitution then seems to be one of political, not legal,
legitimacy: is the constitution based on a majority consensus of
those who, on the existing evidence, appear to be members of the
Band? This is a question which a court should not seek to answer in
the absence of some discernable legal criteria which it can apply. While
there might be some other basis for judicial supervision if there were clear
evidence of fraud or other acts on the part of the defendants which could
clearly not be authorized by the Indian Act, there is no evidence of any
such activities before me.
[38] At
present, it seems clear that the Electoral Code is a matter of controversy
within the Opitciwan community. However, the respondents did not establish that
this was true when it was adopted in 2005. Further, although the Council had
initially undertaken to proceed by referendum, and though it probably would
have been better to proceed in that way in order to ensure the existence of a
broader consensus before the Electoral Code was adopted, I am not persuaded
that such a procedure was necessary to make adoption of the Code valid.
[39] In Bone v. Sioux Valley Indian
Band No. 290 (1996), 107 F.T.R. 133, Mr.
Justice Heald adopted the analysis of Strayer J. in Bigstone, supra,
and elaborated on certain points. He wrote the following:
¶ 27
In the words of
Justice Strayer, a band’s custom must “include practices for the choice of a
council which are generally acceptable to members of the band, upon which there
is a broad consensus”. I agree with this characterization of a band’s
custom. However, determining what is generally acceptable to members
of the band gives rise to difficulties, as is exemplified by this
litigation. Justice Strayer further stated the validity of the
constitution in that case was a question of political legitimacy, and was a
question the court should not seek to answer in the absence of some
“discernible legal criteria”.
¶ 28
The Respondents
submitted that the objective legal criteria sought by Justice Strayer could be
found in subsection 2(3)(a) of the Indian Act. This
section reads as follows:
2. (3) Unless the context otherwise
requires or this Act
otherwise provides,
(a) a power conferred on a band
shall be deemed not to be exercised unless it is exercised pursuant to the
consent of a majority of the electors of the band; and . . .
¶ 29
The Respondents
submitted that it is the Band that has the power to determine what the
constitution, or electoral procedures, of the Band are, and that this power
must be exercised in accordance with subsection 2(3)(a), as set out supra. I
agree that it is the Band itself, not the Band Council, that has the power
to determine what constitutes the Band's custom. However, I disagree with
the Respondents’ submission that this is a “power conferred on a band” as is
contemplated by subsection 2(3)(a) of the Indian Act.
[40] Although Heald D.J. acknowledged
that custom must be determined by the Band, not the Council, he refused to
apply paragraph 2(3)(a) of the Indian Act, which provides that
the consent of a majority of the electors must be obtained before proceeding. By
the same logic, I do not think it was necessary for the Council to proceed by
referendum in order to ensure that it had the support of a majority of the
public before adopting the Electoral Code. This is not a situation in which the
Electoral Code was developed and adopted in secret. The public was consulted
throughout the process and the Electoral Code was adopted at a public assembly.
[41] The most persuasive aspect of the
applicants’ argument regarding the validity of the Electoral Code is that it
was used for the 2005 elections, in which a large number of electors in the
community took part, and that the Code’s validity was not questioned before or
during the elections. The validity of the Electoral Code was only questioned
for the first time in reply to the allegations raised in connection with the
application for judicial review in docket T-1845-06.
[42] In Bone, supra,
Heald D.J. was confronted by a situation similar to the one at bar, as
illustrated by the following passage from his judgment:
¶ 54 The next event that is
relevant to the Applicant’s submission that the Code reflects the Band’s custom
is the March 14, 1994, election itself. It is not disputed that the
election was held in accordance with the Code, and following the election the Election
Appeal Board was appointed in accordance with the Code and adjudicated the
Applicant’s appeal in a manner consistent with the Code. In fact,
everything seemed to transpire in accordance with the Code until the Elections
Appeal Board rendered its order, at which time the Respondents refused to
comply with the order.
[43] Faced with evidence that
supported “no more than a weak inference that the Code received the support of
the Band membership”, Heald D.J. turned to the election which followed adoption
of the Code, concluding as follows at paragraphs 64 and 65 of his decision:
I think the answer is to be
found in the conduct of the Band in relation to the March 14, 1994, election
and the events that followed. The Band conducted the nomination proceedings,
the election and the subsequent election appeal, all in accordance with the
Code. According to the Affidavit of the Respondent Hall, there were 478 votes
cast for the election of the Band Chief. Although neither party led evidence as
to the total number of eligible voters at the time of the election, the
Respondent Hall deposed that at the time of the plebiscites there were 964 Band
members of voting age, including non-residents. Thus, it can be said that
approximately 50 % of the eligible voters participated in the March 14,
1994 election. There is no evidence that at any time before or during the
election any Band member objected to the manner in which the election by Band
custom was proceeding. In my view, the conduct of the Band in acquiescing in the
use of the Code, is sufficient evidence to satisfy the requirement of Justice
Strayer, as set out in Bigstone, supra, that it was “generally
acceptable to members of the band, upon which there is a broad consensus”, and
therefore reflects the Band’s custom.
¶ 65
Accordingly, I declare that the Code was in force as of March 14, 1994.
[44] By the same reasoning, I note
that 649 electors exercised their right to vote in the first poll, and 701
electors in the second poll, out of a possible 1,352 on the electoral roll,
according to the information supplied by the respondents. As noted earlier, no
evidence was presented of an objection before or during the elections, except
for the refusal by Fernand Denis-Damée to sign the resolution adopting the Electoral
Code, because the resolution was not consistent with the resolution providing
that the Code would be adopted by referendum. Accordingly, I am satisfied that
the community’s acquiescence in use of the Electoral Code in the 2005 elections
is sufficient evidence to establish that the Electoral Code reflected
“practices for the choice of a council which are generally acceptable to
members of the Band, upon which there is a broad consensus” (Bigstone, supra).
(2) Was the suspension
of the Electoral Code by the Opitciwan Atikamekw Council valid?
[45] As I have found that adoption of
the Electoral Code in 2005 was valid, I must now consider whether the
suspension of it in 2006 was as well.
[46] In support of their argument that
the 2006 elections was illegal, the applicants maintain that the elections
should have been held according to the procedure set out in the Electoral Code.
In the event of disagreement with certain provisions of the Electoral Code, the
amendment procedures set out in the Code should have been used, and this was
not done. The applicants maintain that the process used to suspend the
Electoral Code was unlawful and thus that the Electoral Code remained in effect
for the 2006 elections.
[47] The applicants argue that the
respondents manipulated members of the community by arranging a large number of
assemblies and resolutions to set aside the Electoral Code and to establish an
anti-democratic process that would guarantee their speedy election. The
applicants contend that the respondents submitted a petition to the community
to support the opinion expressed by the Council of Elders that the Electoral
Code should be set aside, when the Council of Elders had said nothing of the
kind. The applicants accordingly conclude that no weight should be given to
this petition, since people subscribed to it spontaneously out of respect for
what they thought was the opinion of the community’s elders.
[48] The applicants further maintain
that members of the Council, who were reinstated following the Court’s order,
and those of the election board elected in 2005, were gradually sidelined and
that the months leading up to the 2006 elections were characterized by
intimidation, pressure and verbal violence and members of the community finally
voted in the greatest possible confusion.
[49] The respondents, for their part,
maintain that the 2006 elections were legal since the Electoral Code had been
suspended and replaced by the by-laws in effect in the 2003 elections,
accompanied by certain amendments approved at general assemblies on April 27
and May 3, 2006. The respondents further contend that, as suggested by
Tremblay-Lamer J. in her order, the parties had reached agreement in order to
encourage a political settlement to the crisis at Opitciwan, and a board had in
fact been empowered to review the Electoral Code, which would then be submitted
to community members for approval by referendum.
[50] The respondents further note that
the signatories of the letter of June 15, 2006, did not dispute that the
Electoral Code had been sidelined once the elections in which they participated
had been held.
[51] Unlike the situation when the
Electoral Code was adopted, the respondents note that the decision to suspend
the Electoral Code and the electoral rules adopted by the community was the
subject of a broad consensus. The respondents allege that participation in the
process of suspending the Electoral Code in 2006 was greater than in the
process of adopting it in 2005.
[52] The respondents further submit
that several of the applicants criticized the process of suspending the
Electoral Code without taking part and without being aware of the efforts made
to arrive at the agreement, as indicated by the examinations of the applicants
Clément Cleary and Nathalie Awashish, and of the intervener Simon Awashish.
[53] Finally, the respondents argue
that, pursuant to the negotiations undertaken to establish the process for the
2006 elections, the decision to suspend the Electoral Code was approved by the
Council in resolution No. 2006-04-10-020.
[54] To begin with, I have
considerable reservations regarding the interpretation placed by the
respondents on the “so-called” decision of the Council of Elders made at the
meeting of December 22, 2005. After reading the transcript of that meeting
carefully, I have to say that the position taken by the Council of Elders on
the question of the Electoral Code seems somewhat unclear. Reading the
transcript, which was prepared in good faith and the content of which is not
disputed in Court, leads me to conclude that nothing was decided by the
elders at this meeting of December 22, 2005. It was instead a meeting at which
participants discussed many matters, including the Electoral Code, but it
appears to the Court that opinions varied and that no decision was taken on
whether the Electoral Code applied. The only clear decision appears to have
been to postpone the discussion to a new meeting of the Council of Elders after
the holidays in early January 2006.
[55] The petition which circulated to support
suspension of the Electoral Code, and the letter dated March 17, 2006, which
clearly stated that it reflected the elders’ position that the Electoral Code
should be suspended, appear to the Court to be an inducement: that is,
incorrect information was used in the wording of the petition to obtain general
agreement of members of the Band that the Electoral Code should be rejected.
[56] Circulating incorrect information
in order to get the support of a majority of citizens, though regrettable, is
not new in aboriginal municipal politics and is not sufficient to vitiate the
electoral process. What I regard as unacceptable is making people believe that
the Council of Elders, consisting in fact of the Band’s elders, made a decision
when that apparently was not the case.
[57] It is the Band’s elders, meeting
on occasion in what is called the Council of Elders, who approve the changes
made from time to time to any code of conduct adopted by the Band. This
procedure is not unique and is to be found in all Indian bands in Canada. In
fact, younger members of the aboriginal communities feel reassured in adopting
a code of conduct which has received the approval of the Council of Elders.
This procedure of having major decisions affecting management of band councils
approved by the elders is part of any decision-making process.
[58] In the case at bar, this approval
process was clearly flouted and everyone, including the elders themselves,
allowed themselves to be manipulated and ended by believing that they agreed
with rejection of the Electoral Code.
[59] What member of the Band would
dare to refuse to sign a petition to reject the Electoral Code when he or she
believed that the elders had themselves rejected it? It was clearly the weight
of the opinion of the Council of Elders which led people to sign the petition
spontaneously, as it falsely claimed to be implementing the decision of elders
to reject the Electoral Code.
[60] It may also fairly be assumed
that the same elders who were concerned about divisions within the Band at the
meeting of December 22, 2005, and hoped that some calm would prevail after the
holiday period, would have been ill advised to support the Electoral Code when
a majority of members appeared to reject it.
.
[61] It is also true that there were
several public assemblies and that the Council adopted a resolution reflecting
the apparent consensus among members of the community that the Code should be
suspended. This resolution was followed by two further general assemblies at
which procedures for the 2006 elections were adopted. The general elections
went forward on May 30 and 31 and June 1, 2006 and 770 of the 1,352 electors on
the electoral roll exercised their right to vote.
[62] I now come to the formal decision
to “suspend” the Electoral Code. First, the Electoral Code exists and is valid,
as discussed earlier. Accordingly, the question is whether it is possible under
the same Electoral Code to suspend its application. After considering this
point, I do not think that is the case.
[63] I can understand and accept that
people were upset following the events that occurred in 2005 and 2006, and in
particular successive elections which had a decisive effect on Band members. I
also understand that members were anxious to find some stability and that the
Electoral Code appeared to be causing certain problems.
[64] It appears from the evidence
submitted that the effect of the Electoral Code was to prevent the Band Chief,
respondent in the case at bar, from running for office in the elections in 2006
since he had been charged with a criminal offence, and this made him
ineligible. Suspension of the Electoral Code accordingly allowed him to run for
office, which is an important point in view of the situation which led to the
“suspension” of the Electoral Code and the motivations of the parties involved.
[65] I also understand that the
respondents to some extent used the Electoral Code as a “lightning rod”,
holding it responsible for the Band’s problems. I am unable to see what is so
dangerous in the application of the Electoral Code and what makes it so
objectionable. Any electoral code is just a code which sets out rules to be
followed in the electoral process.
[66] I also note that the process used
in suspending the Electoral Code did not comply with the rules of the Electoral
Code itself, as well as abusing the process for approval by the elders. What
good can an electoral code be if its application is suspended when elections
are held?
[67] I have reviewed in detail the
transcripts of the meetings held between January and April 2006, and I
feel that it is excessive to say the least to maintain that these meetings
constituted a broad consultation on the need to suspend the Electoral Code. It
was more a question of the choice of the members of the election board and the
legality of replacement of individuals elected in the preceding year. There
also appears to have been a wish to have elections as soon as possible. The
provisions of the Electoral Code and the rules for replacing it, if necessary,
were discussed very little at these meetings.
[68] Accordingly, I have no hesitation
in concluding that the resolutions adopted at various times between January 18,
2006, and April 2006 did not have the effect of amending the existing Electoral
Code or of suspending its application, pursuant to the existing rules of law
for doing so which were set out in the Electoral Code in effect.
[69] I therefore consider that the
elections held at Opitciwan on May 30 and 31 and June 1, 2006 were held
illegally and should accordingly be quashed.
[70] I also feel that the members of
the Council elected at these elections were illegally elected, and I issue a
writ of quo warranto to divest of their duties the members of the
Opitciwan Band elected to the Atikamekw Band Council, namely, Jean-Pierre
Mattawa, Fernand Denis-Damée, Régina Chachai, Martine Awashish, Boniface
Awashish, Charles Jean-Pierre and Annie Chachai.
[71] Finally, I order that new
elections be held in accordance with the rules of the Electoral Code.
(3) If the Electoral
Code were still in effect, did the evidence before the Court establish that
there were one or more breaches of the Electoral Code that would justify the
Court quashing the 2006 elections?
[72] In view of my conclusions on the
foregoing points, it will not be necessary to answer this question.
[73] Having said that, I would add
that, in view of the fact that a political crisis has been occurring in the
Opitciwan community since 2005 and the results of the last two elections have
been challenged in this Court, it would be desirable to have the controversy
surrounding the Electoral Code resolved once and for all. Band members should
realize that the rules of conduct governing the electoral process are only a
means of ensuring a democratic election. However, those elected, whoever they
may be, cannot assume the right to alter the existing rules.
[74] The applicants established that
the process for adopting the Electoral Code was followed and that it is valid.
The respondents, for their part, were not able to show that the Electoral Code
had been legally amended or set aside.
[75] Any future attempt to amend or to
substantially alter the electoral process should be made in accordance with the
existing Code, and I would suggest that the process should be transparent and
be the subject of broad consultation so that people know what they are voting
for.
[76] Finally, although use of judicial
review to ensure the legality of elections is a legitimate procedure, the fact
remains that it would be desirable for the next elections to be held in a more
harmonious atmosphere and to lead to results which are not challenged in this
Court, so as to enable those elected to concentrate on the community’s other
needs.
[77] The application for judicial review
at bar is accordingly allowed.
JUDGMENT
The
Court orders that:
(a)
the
elections held at Opitciwan on May 30 and 31 and June 1, 2006 be quashed;
(b)
a
writ of quo warranto be issued divesting of their duties the members of
the Opitciwan Band illegally elected to the Opitciwan Atikamekw Band Council,
namely, Jean-Pierre Mattawa, Fernand Denis-Damée, Régina Chachai, Martine
Awashish, Boniface Awashish, Charles Jean-Pierre and Annie Chachai;
(c) new
elections be held in accordance with the Electoral Code of the Opitciwan
Atikamekw Council and within the deadlines therein specified;
(d)
the
judgment be given effect on a provisional basis, notwithstanding appeal;
(e)
with
costs to the applicants against the respondents.
“Pierre Blais”
Certified
true translation
Susan
Deichert, Reviser
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