Date: 20080620
Docket: T-853-07
Citation: 2008
FC 771
Ottawa, Ontario, June 20, 2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
CHIEF BILLY GOODTRACK,
WILLIAM PICKENS, TERRY GOODTRACK,
LORRI MACKINTOSH, CLIFF LECAINE AND
CAROLINE LECAINE-KERR
Applicants
and
ELLEN BERNADETTE LECAINE,
PRESTON LECAINE, LEONARD LETHBRIDGE SR.,
ROSS LETHBRIDGE, DAVE OGLE
Respondents
REASONS FOR ORDER AND ORDER
[1]
Who is
chief of Wood Mountain First Nation, Billy Goodtrack or Ellen LeCaine? Each
claims to be elected in accordance with band custom; Chief Goodtrack and his
four councillors by acclamation on 16 through 19 March 2006, and Chief LeCaine
and her four councillors on 24 March 2006. Each acknowledges that band custom
was codified. Chief Goodtrack relies upon the Wood Mountain Band Custom Code
said to be in force since 1992, as well as the Band Custom Election
Regulations and Band Custom Procedures. Chief LeCaine relies upon
the Wood Mountain Lakota Nation Election Act which came into
force in 2005, and had the effect of repealing what, if anything, preceded it.
[2]
Chief
Goodtrack says that the 2005 Election Act is illegal, null and void. Chief LeCaine
says there is insufficient evidence to establish that the 1992 Code was ever in
place, but if it was, its own amending procedure was followed in repealing and
replacing it with the 2005 Act. In the alternative, if the amending procedure
was not followed, a broad consensus had developed which had the effect, in
virtue of custom, of amending the written amending procedure.
[3]
This is an
application by Chief Goodtrack and his councillors by quo warranto. They
ask by what authority Chief LeCaine and her councillors purport to hold office.
If I hold that the 2005 Act is validly in place, then Chief LeCaine and her councillors
are presumptively in office. Subsidiary allegations that, in any event, Chief
LeCaine and councillors had not been elected in accordance with proper
procedure under the 2005 Act were previously struck by Prothonotary Lafrenière.
[4]
I hold
that the Wood Mountain Lakota Nation Election Act was validly in force
and effect in March 2006 and that, therefore, Chief LeCaine, and her
councillors, are presumptively in office. It is not necessary to reach a
definitive conclusion as to whether the 1992 Code and related documents were in
place. If they were, the amending procedure was followed. If they were not, the
2005 Act reflected a broad consensus within the band.
BACKGROUND
[5]
Except
for a very brief spell, Chief Goodtrack had been band Chief from 1968 through 2006.
At the previous election held in 2002, he was re-elected as Chief. Ellen LeCaine,
Caroline LeCaine-Kerr, Ross Leftbridge and Loretta Leftbridge were elected to
the four councillor positions. Some seventy band electors voted. The term of
office for all five ran from 1 April 2002 to 31 March 2006.
[6]
Shortly
thereafter, there was a sharp divide with Chief Goodtrack and Caroline
LeCaine-Kerr forming one group, and Ellen LeCaine, Ross Leftbridge and Loretta
Leftbridge the other. In fact, matters had so deteriorated that by the end of
2002 they would not meet together.
[7]
The band
is quite small. No more than approximately 11 to 15 reside on its reserve
lands. It has a total of about 217 members dispersed primarily throughout
southern Saskatchewan, but also throughout Canada
and the United
States. At the
time of the March 2006 election there appear to have been 171 qualified band
electors.
[8]
Ellen
LeCaine, Ross Leftbridge and Loretta Leftbridge were minded to put a new election
act in place. Although Chief LeCaine was shaken on cross-examination as to
exactly what she knew was in place before the 2005 Act, she was at least aware
of the Band Custom Election Regulations. Indeed, they were a sore point
in that they provided that the Chief must reside on the reserve, that
councillors must reside in Canada and that only those who had been
a councillor during the past 10 years were eligible to run for chief. The
Wood Mountain Band Custom Code, said to go back to 1992, is divided into
various sections. The last section entitled “Amendment” provides:
1.
No part of
the Band Custom Code shall be amended unless 30 days written notice of such
amendment, change, addition or deletion to said Band Custom Code is given to
all band members either personally or by registered mail at the Band member’s
last known address and unless the amendment, change, addition or deletion to
Band Custom Code is first affirmed by a vote by an absolute majority of the
Band electors.
[9]
I do not
accept Chief Goodtrack’s contention that the amendment had to be approved by
the Chief and council. The amendment section of the Code stands alone.
[10]
The Band
Custom Election Regulations also dealt with amendments as follows:
Every 6 (six) years, this Band Custom
Election Regulation may be reviewed and revised by a majority of duly notified
eligible band members entitled to vote at a band election.
[11]
Even on
Chief Goodtrack’s evidence, and he was also shaken on cross-examination, it is
not clear exactly when these Regulations came into force. Certainly, there is no
evidence that there had been any review or revision in the six years prior to
the 2005 Election Act coming into place. I hold that the review and revision
procedure was no bar to what Chief LeCaine and the others did.
[12]
The
evidence is that there had been at least thirty days written notice given to
all band members. Some, such as Chief Goodtrack, ignored the process by refusing
to take up their registered mail. According to Chief LeCaine, the first
approval was at an open meeting at which about forty electors attended. They
were unanimous in their support. Thereafter, a resolution was sent to those who
had been unable to attend the general meeting. They were asked if they approved
the adoption of an immediate implementation of the Act. They had to identify
themselves by name, address, treaty number, answer either yes or no, and sign.
This procedure spread out over at least two months. A total of eighty-six voted
“yes”; no one voted “no”. This represents an absolute majority of Band
electors. It may be that even more approved the measure. However, since there is
no record of who voted at the open meeting, and since they may then have later
affirmed in writing, I am not taking that meeting into account. Apart from
Chief Goodtrack and his councillors, there is no evidence as to how many of
those who chose not to vote were purporting to boycott the process.
[13]
Chief Goodtrack
and his councillors were acclaimed in March 2006 for a new term. There is no
evidence as to how many electors acclaimed them over what was a four-day
election period. The results of the election on 24 March 2006 are that there
were 171 eligible voters of whom 88 voted.
[14]
These latter
results were sent to the Department of Indian and Northern Affairs, who on
31 March 2006 recorded the results of that custom election in accordance
with the Wood Mountain Lakota Nation Election Act of 2005, with a term
of office commencing 1 April 2006 and expiring 31 March 2010.
[15]
In April
2006, Chief Goodtrack and his councillors took proceedings in this Court against
the Department, and others, in judicial review of the recording of the 24 March
2006 election results. However the position of the Department, as upheld by Mr.
Justice Strayer (Wood Mountain First Nation v. Canada (Attorney General),
2006 FC 1297, 55 Admin. L.R. (4th) 293), is that its role in band elections by
custom, as opposed to under the Indian Act, is simply to record results.
That recording was not a decision subject to judicial review. It also offered
to mediate, but that was rejected.
DISCUSSION
[16]
The
leading case dealing with band custom is Bigstone v. Big Eagle, 52
F.T.R. 109, [1992] F.C.J. No. 16 (QL). That was a difficult case in that it
dealt with a newly re-established band, a band which had been dissolved some ninety
years earlier. In discussing what had to be “contemporary custom”, Mr. Justice
Strayer was of the view that the validity of a new constitution is one of “political,
not legal, legitimacy”. He asked, “…is the constitution based on a majority
consensus of those who, on the existing evidence, appear to be members of the
band”?
[17]
The following
statement of his has been followed time and time again:
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.
[18]
Obviously,
custom may differ from one band to another, but as Madam Justice Reed noted in McLeod
Lake Indian Band v. Chingee, 153 F.T.R. 257, [1998] A.C.F. no 1185 at paragraph
19:
I am of the view that approval by
majority of the adult members of the Band is probably is a safe indication of a
broad consensus (the age of majority being a matter for the band to determine).
[19]
It is fair
to say that on the one hand an absolute majority of the band supported the 2005
Election Act, and not a single band member voted against it. The amending
procedures called for a vote. However, a vote is simply a means of signifying a
choice, an indication that one approves or disapproves, accepts or rejects. The
band voted and their voice shall be heard. Furthermore, in the election held
pursuant to that Code the following year, an absolute majority of band electors
again voted.
[20]
On the
other, the Code, upon which Chief Goodtrack relies, also called for amendments
by a majority of eligible electors. He can hardly argue that custom actually
required something more.
ORDER
UPON APPLICATION for judicial review and quo
warranto in respect of the respondents purporting to exercise authority
with respect to the Wood Mountain First Nation No. 160, calling upon them to
prove the authority with which they act, and for a declaration that they have
no such authority;
THIS COURT ORDERS that:
1. The application is dismissed.
2. It is declared that the Wood
Mountain Lakota Election Act was validly adopted by the Wood Mountain First
Nation No. 160 in 2005, and that the respondents hold office by virtue of an
election held 24 March 2006 pursuant to that Act which election remains valid
until proved otherwise.
3. The whole with costs.
“Sean Harrington”
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