Date: 20080201
Citation: 2008 FC 130
Ottawa, Ontario, February 1, 2008
PRESENT: The Honourable Mr. Justice Phelan
Docket: T-8-07
BETWEEN:
BRIAN JACKSON, DANIEL NORTHMAN,
ROD NORTH PEIGAN, and JANET POTTS
Applicants
and
REBECCA YELLOW WINGS, in her Capacity
as Chief Electoral Officer of the PIIKANI
NATION,
and the PIIKANI NATION NO. 436
Respondents
and
Docket: T-477-07
BETWEEN:
BRIAN JACKSON, DANIEL
NORTHMAN,
ROD NORTH
PEIGAN, and JANET POTTS
Applicants
and
PIIKANI NATION ELECTION
APPEALS BOARD,
and the
PIIKANI NATION NO. 436
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a dispute concerning the nomination process for an Indian band election. The
Applicants, Brian Jackson, Daniel Northman, Rod North Peigan and Janet Potts
challenge both the decision of Rebecca Yellow Wings, the Band’s Chief Electoral
Officer (CEO) and that of the Piikani Nation Election Appeals Board (Board),
both of which concluded that the Applicants were ineligible to stand for
election as Band councillors in the Piikani Nation Band council election of
January 4, 2007. This dispute was part of an internal conflict concerning Band
affairs. The two judicial review applications were heard together.
[2]
The
background of these proceedings was the application of a traditional Band
principle of behaviour (PIIKANISSINI) into the consideration of the Applicants’
eligibility to run for office, which resulted in their disqualification for
candidacy. The central issues are whether this tradition can be imported into
the qualification for candidacy in the election and, if not, what is the
appropriate remedy in the circumstances.
II. BACKGROUND
[3]
The
Piikani Nation is an Indian band in Alberta which elects its Chief
and Band council according to its custom rather than according to the
provisions of the Indian Act. To this end, in 2002, the Piikani Nation
implemented the Piikani Nation Election By-law and Regulations
(collectively referred to as the “Election Code”).
[4]
Three
of the four Applicants had been elected as councillors on January 7, 2003 for a
four-year term. This was a troubled period of time in the Band’s history as
detailed later.
[5]
In
late November 2006, the Chief and council established January 4, 2007 as the
date for the next Band council election. The nomination meeting was held on
December 14, 2006 and nominations closed at 4:00 p.m. on December 21, 2006.
[6]
Rebecca
Yellow Wings, as the CEO, was responsible for the preparation of lists of
eligible candidates from the nominees and receiving notices from any electors regarding
the ineligibility of a nominee. If a notice of ineligibility is received, the
CEO must convene a hearing on the issue.
[7]
The
Applicant Peigan was nominated for the position of Chief and the other
Applicants were nominated to run as councillors. An unofficial list of nominees
which included the Applicants was publicly posted in early December 2006.
[8]
Shortly
after the posting of the list, Yellow Wings received two letters on the
stationery of the Elders of the Piikani Nation. The first letter referred to
the “disgraceful and shameful conduct” of the then-Chief and of the four
Applicants. The second letter added another councillor, Peter Yellow Horn, to
the same allegations.
[9]
The
allegations of disgraceful and shameful conduct concerned the mishandling of
Piikani Nation funds and the breach of a Trust Agreement. A copy of a Statement
of Claim against the named persons was attached to the first letter. The thrust
of the complaint is that the conduct dishonoured and brought shame on the
Piikani Nation, that the individuals conducted corrupt practices contrary to
the principles of PIIKANISSINI and had negatively affected the dignity and
integrity of the Piikani Nation. The result is that under tribal custom, as
particularly enshrined in the principles of PIIKANISSINI, these individuals
were ineligible to be nominated for or hold Band offices.
[10]
Yellow
Wings conducted a hearing for
each of the Applicants to deal with their eligibility for nomination.
There was some difficulty contacting all of the Applicants. Three of the Applicants,
Peigan, Jackson and Potts, attended at the electoral office to submit their
required background checks and the hearings on their eligibility were conducted
at the same time. The Applicant Northman did not have a hearing.
[11]
Yellow
Wings informed the three Applicants who had attended the hearing that their
names would be removed from the candidates’ list. The basis for the decision
was the letter from the Elders and the violation of the principles of
PIIKANISSINI.
[12]
On
December 22, 2006, six of the eleven then-councillors (the four Applicants, the
Chief and Peter Yellow Horn) attempted what can only be described as an end-run
around the planned election. At their self-styled “emergency meeting” of
Council, they passed a resolution to remove the CEO, her deputy and other
assistants, move the planned January 4 election to February 8 and set up a new
nomination date.
[13]
The
Applicants, having failed to file a Statement of Defence in the legal action
against them, were noted in default on January 2, 2007. As of the date of this
Court’s hearing, no action had been taken to set aside what is, in effect, a
judgment against the Applicants as to their “disgraceful and shameful conduct”.
[14]
This
Court dismissed an injunction to prevent the January 4, 2007 election and the
election proceeded as planned without the Applicants as candidates.
[15]
The
Applicants then appealed the CEO’s decision to the Band council, who then
referred it on to the Board. The Board conducted a hearing and upheld the CEO’s
decision to strike the Applicants from the candidates’ list.
[16]
The
Election Code, its interpretation and application and the role of the
principles of PIIKANISSINI are central to this case. There are four central
features of the Election Code relevant to this judicial review:
1. The
preamble status that the Piikani Nation governs itself in accordance with its
customs and traditions evolved over time as expressed in its declaration
entitled “PIIKANISSINI”.
2. Section
6.02 of the By-law outlines the basis upon which a person is ineligible
to be nominated or hold office. These grounds relate to conduct ranging from
criminal conviction to unapproved resignation. Violation of the principles of
PIIKANISSINI is not listed as a ground.
3. A
person may be found ineligible to continue to hold office and these grounds
include conducting corrupt practices as determined by the principles of
PIIKANISSINI and abuse of office such that the conduct negatively affected the
dignity and integrity of the Piikani Nation or its Council (s. 10.05.02 of the By-law).
4. The
Board does not deal with the issue of whether a person is eligible to run for
the office of Chief or councillor (s. 20.08 of the Regulations).
III. ANALYSIS
[17]
The
issues in this judicial review involved procedural fairness and the
interpretation of the Band’s Election Code. Neither the CEO nor the Board
possess any particular expertise that the Court does not possess. The issues
before the Court deal with jurisdiction and statutory interpretation; the core
of a court’s work. I adopt Justice Russell’s analysis in Okeymow v. Samson
Cree Nation, 2003 FCT 737, that for these issues, the standard is
correctness.
[18]
It
was accepted -- and even if not accepted, I would have found -- that the Board
did not have the authority to deal with the issue of refusal to list a person
as eligible to run for office. Whether the process was fair is not relevant,
its decision to uphold the CEO’s decision is without legal force and effect.
[19]
The
central issue is whether the CEO could declare the Applicants ineligible to run
for office on the grounds of a breach of the principles of PIIKANISSINI and the
disgrace and shame their conduct has brought to the Piikani Nation.
[20]
The
Respondents acknowledge that on a strict interpretation of the Election Code,
the grounds for ineligibility do not include either of these grounds. However, the
Court is urged to read these grounds in by virtue of the preamble which should
be considered as an overarching principle.
[21]
While
I have some sympathy for the CEO’s plight, faced with prime facie
indication of disreputable conduct and the advice of Elders as to the
Applicants’ suitability for office, the Election Code cannot be properly read
as she would have me do.
[22]
The
principles of PIIKANISSINI are noble principles. The evidence is that
PIIKANISSINI mandates a conduct of loyalty and honesty towards the Piikani
Nation. It was also established that as part of both PIIKANISSINI and the
customs and traditions of the Piikani Nation, the Elders are a senate and have
a governing voice in the community. Their wisdom and direction are to be
respected and followed.
[23]
It
may well be, and the evidence suggests it, that the people believed that the
Elders could invoke PIIKANISSINI and declare a person ineligible to stand for
election. The Elders who wrote to the CEO thought so and the CEO thought so.
But this conclusion is at odds with the Election Code.
[24]
Customs
and traditions may evolve but this takes time. It is important to note that the
Election Code is a modern document; it was enacted in 2002.
[25]
The
Piikani Nation in adopting the Code turned its attention specifically to the
role of the principles of PIIKANISSINI, the grounds for ineligibility, limited
only to certain conduct, and the grounds for removal from office, which
included disgraceful conduct and the violation of the principles of
PIIKANISSINI. It would be inconsistent with the evidence of intent as to the
grounds for ineligibility to read in grounds specifically stated elsewhere. The
old Latin phrase “expressio unius est exclusio alterius” is perhaps apt
here.
[26]
It
is important to note also that in the case of removal, where this higher standard
of conduct is relevant, the procedures are more stringent than that of an
ineligibility ruling. The two processes are not so synonymous that the
principle flows between them seamlessly.
[27]
The
Court is also asked to read in to the Election Code the authority of the Elders
to voice opinion and have that opinion followed. The evidence on this point is
tenuous. Certainly some Elders (it is unclear if all were involved) thought
that they had a role and that the CEO thought that their opinion was binding.
There is, however, insufficient evidence of the role of Elders, their
authority, its acceptance and many other issues for this Court to conclude that
this authority should be read in.
[28]
Therefore,
I must find that the CEO’s decision declaring the Applicants ineligible for the
election was made without proper authority.
IV. REMEDY
[29]
The
next question is what remedy, if any, should be granted. The Court has a
residual discretion not to grant relief even where there has been an error. It
is a discretion which should be exercised rarely and carefully. This is one of
those circumstances where the broad interests do not justify overturning the
CEO’s decision and consequently the election.
[30]
The
Piikani Nation has had a difficult recent history. The allegations made against
the Applicants were part of an internal division in the Band. There is little
merit in re-opening the wounds.
[31]
Moreover,
the Applicants do not come before this Court with clean hands. The allegations
of improper conduct, their failure to challenge the suit in the Court of
Queen’s Bench and the default judgment against them speak volumes as to the
equity of their position. So does their attempt to do an “end-run” around the
process rather than confronting the election process head-on.
[32]
Also
of particular importance is that there is no evidence that the election did not
truly reflect the will of the people. This reflection of the will of the people
is of paramount importance when contrasted against the technical flaw in the
CEO’s decision.
[33]
There
is no evidence that the Applicants truly lost an opportunity to sit as
councillors. In a small band, 600 people petitioned for the removal of the then-Band
council (of which the Applicants were members) and to have an election. None of
the incumbents who ran in the election were successful. The Applicants seem to
have simply lost an opportunity to lose.
[34]
There
is precedent in this Court’s jurisprudence for upholding the results of a
flawed election process, although technically, the Applicants have not asked
for that relief. Rather, they only sought a quashing of the CEO’s decision and
the placing of their names on a Nomination List, which no longer exists.
[35]
In
Ominayak v. Lubicon Lake Indian Nation, 2003 FCT 596, Justice Dawson set
out the discretionary factors in not issuing an order quashing election
results. Although the time period that the council had had been in place in
that case longer than in the instant case, the same principles apply. In particular, I have
significant concern that unjustified disruption within the Band would occur if
a new election were ordered.
[36]
Similar
results occurred in Thompson v. Leq’a:mel First Nation, 2007 FC 707 and
in Sparvier v. Cowesses Indian Band (T.D.), [1993] 3 F.C. 142.
[37]
The
Court has authority to fashion the appropriate remedy. The Court should not
“read in” wording where the Band can deal with its true intentions more
directly. However, to reflect what the evidence of intent is and to prevent
confusion in the future, I will make a remedial order.
[38]
It
was evident that the grounds for removal from office were the same as those used
by the CEO for ruling the Applicants ineligible to run in the election. The Piikani
Nation will be ordered to amend the By-law to incorporate at least
paragraph (c) of s. 10.05.02 into s. 6.02 within six (6) months of this
judgment or else be required to pay the Applicants’ costs of this matter on a
solicitor-client basis.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
this
judicial review is granted in limited part.
2.
the
decision of the Chief Electoral Officer will be quashed if the amendments to
the Piikani Nation Election By-Law, 2002 mandated in paragraph 38 are
not made.
3.
the
Piikani Nation No. 436 shall indemnify the Applicants their costs (including
disbursements) on a solicitor-client basis.
4.
the
decision of the Piikani Nation Election Removals Board is quashed.
5.
the
Piikani Nation No. 436 shall amend the By-law to incorporate at least
paragraph (c) of s. 10.05.02 into s. 6.02 within six (6) months of this
judgment or else be required to pay the Applicants’ costs of this matter on a
solicitor-client basis.
6.
the
parties shall bear their own costs except as otherwise provided herein.
“Michael
L. Phelan”
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