Docket: T-718-15
Citation:
2015 FC 1374
Edmonton, Alberta, December 9, 2015
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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DANIEL MERCREDI
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Applicant
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and
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MIKISEW CREE
FIRST NATION
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Respondent
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JUDGMENT AND REASONS
[1]
The present Application concerns the resignation
by a Councillor of the Mikisew Cree First Nation, and whether the conduct of
the Council with respect to the resignation was reasonable.
I.
The Resignation Scenario
[2]
The following facts are uncontested: on March
17, 2015, in the course of a Council meeting, Councillor Coutoreille gave oral
notice that he was resigning as a Councillor effective April 17, 2015; on March
31, 2015, he submitted a written notice confirming his oral notice; and on
April 15, 2015, in the course of a Council meeting, he withdrew his written
notice of resignation, and, as a result, the Council removed the agenda item to
set a By-election for his seat.
[3]
Thus, on the evidence, the Council took the
position that the submission of Councillor Coutoreille’s written resignation
did not immediately result in his removal from office. This is so because,
after the written notice was submitted he remained on Council, attended the
April 15th meeting, and during the course of that meeting, withdrew
his resignation and the Council accepted the withdrawal. As a result, the
resignation scenario had no effect on Councillor Coutoreille’s tenure on
Council; he remained in office throughout.
[4]
By the present Application, the Applicant, who
is a Councillor of the Mikisew Cree First Nation, challenges “the decision dated on or about April 15, 2015 rescinding the
letter of resignation from Councillor Edward Courtoreille” (Notice of
Application, p. 3). The Applicant argues that once a resignation is given
by written notice, a By-election must immediately occur and, therefore, the
failure of Council to call a By-election upon receiving Councillor
Coutoreille’s written resignation had the effect of rescinding that written
resignation.
[5]
The Council argues that an interpretation of the
legislation approved by the members of the Mikisew Cree First Nation which
governs its elections supports a finding that the Council’s actions were
reasonable.
II.
The Customary Election Regulations of the
Mikisew Cree First Nation (1996) (Regulations)
[6]
The Regulations is the legislation which
is at the centre of both the Applicant’s and the Council’s arguments.
[7]
The Preamble to the Regulations reads as
follows:
The Mikisew Cree First Nation has the
inherent Aboriginal right and authority to govern relations among the People of
the Mikisew Cree First Nation and between the First Nation and other
governments;
The Aboriginal Right of the Mikisew Cree
First Nation to Self-government was recognized and affirmed in Treaty No. 8
entered into between Her Majesty The Queen in The Right of Canada and the Mikisew Cree First Nation;
The customs, traditions, and practices of
the Mikisew Cree First Nation in regard to Self-government have been
established with the consent and participation of the People of the Mikisew
Cree First Nation;
The current customs and traditions of the Mikisew
Cree First Nation require democratic, fair, and open elections for the
leadership;
The Mikisew Cree First Nation now desires
that the customs and traditions of the Nation in relation to the Election of
the Chief and Councillors be incorporated and recorded in written customary
elections regulations and procedures; and
On April 1, 1998, the electors met in the
community of Fort Chipewyan and a majority of the Electors present approved by
vote the adoption of the Customary Election Regulations of the Mikisew Cree
First Nation as outlined herein;
The MIKISEW CREE FIRST NATION, by and with
the advice and consent of its members, enacts as follows: […]
[Emphasis added]
[8]
The following are the provisions of the Regulations
which address resignation by a Council member:
13.0 RESIGNATIONS
13.1 Notice of Resignation
The Chief or a Councillor may resign from
office by submitting a Written Notice of Resignation to Council.
13.2 The Notice of Resignation must state
the effective date of the resignation, but in any event, it must not be more
than thirty (30) days from the date the Notice is delivered to the Council.
[…]
2.0 DEFINITIONS
Unless otherwise expressly stated, in these
regulations:
[...]
b) "By-electlon" means an election
held for the office of Chief or Councillor to replace a person who has died, resigned
or has been removed from that office.
16.0 BY ELECTIONS
16.1 Date of By-election
a) Subject to s. 16.1 (b) [inapplicable], in
the event the Chief or a Councillor dies, resigns or is removed from
office and there is more than ninety (90) days remaining in his or her term of
office, the Council will:
(i) Within five (5) days of the effective
date of the resignation or removal, set the date for the By-election to fill
the vacant office and appoint an Electoral Officer to conduct the
By-election.
(ii) The By-election must be held within
twenty one (21) days of the effective date of the death, resignation, or
removal of the Chief or Councillor.
[Emphasis added]
[9]
At this juncture, it is necessary to confirm
that, in determining the present Application, the Council’s conduct will be
judged only according to the content of the Regulations.
[10]
In argument, the Council asserts that, in
addition to the Regulations, unwritten customs and traditions govern the
resignation of Councillors from the Council. Relevant to the present
Application, the Council maintains that, once the Council receives a written
notice of resignation from a Councillor in accordance with the Regulations,
the Council must pass a motion accepting the resignation of the Councillor for
the resignation to take effect. On the evidence, in each of 2005 and 2006, the
Council passed such a motion accepting the written resignation of a Councillor
(Memorandum of Fact and Law of the Respondent, paras 4 and 5).
[11]
Given that the Preamble to the Regulations
expresses that the Regulations are a complete codification of the
customs of the Mikisew Cree First Nation, an issue arises as to whether the
unwritten custom advanced by the Council is enforceable. I find that it is
inappropriate to pass judgment on the issue because the unwritten custom was
not applied in the present case. On March 31, 2015, when Councillor Coutoreille
submitted his written notice of resignation, the Council did not formally
adhere to the custom it advances by passing a motion of approval (Memorandum of
Fact and Law of the Respondent, para 9).
III.
The Applicant’s Argument
[12]
The Applicant argues that, being a third level
of government recognized by s. 35 of the Constitution Act, 1982, the Mikisew
Cree First Nation is analogous to Federal, Provincial and Municipal Governments
and, by the terms of the Regulations, has committed itself to the
principles of democracy in the Canadian Constitution. As a result, democracy
requires that a Councillor act independently to represent the people who
elected him or her. The voters are the persons that the resignation affects and
the Council cannot interfere with the democratic principles by somehow having
the right to determine if a resignation is effective or not. This would
improperly violate each voter's democratic rights. Thus, once a resignation is
given, the provisions of s.16 of the Regulations apply and a By-election
must occur.
[13]
Support for the argument is the fact that the
democratic principle advanced is enforced, by statute, with respect to
officials elected to the Parliament of Canada, the Legislatures of the
Provinces, and Municipal governments.
IV.
The Council’s Argument
[14]
In response to the mandatory democratic
principle argument advanced by the Applicant, the Council takes the position
that the First Nation is in a different position from government entities in Canada for the following reason:
Unlike Government entities in Canada, MCFN
is a recognized Band under the Indian Act, RSC 1985, C 1-5, the
Government of Canada has recognized the inherent right of self-government as an
existing Aboriginal right pursuant to s. 35 of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. The right
of MCFN to self-government was recognized and affirmed in Treaty No.8 entered
into between Her Majesty the Queen in Right of Canada and MCFN.
The Indian Act is the primary
legislative instrument applicable to the governance and management of Indian Bands.
Chief and Council elections may be governed by the provisions of the Indian Act
or by Band custom. Section 74(1) of the Indian Act gives the Minister of
Indian and Northern Affairs (now known as The Minister of Indigenous and
Northern Affairs) the statutory authority to require a Band to conduct
elections in accordance with the procedures prescribed in the Indian Act.
This declaration must be done by way of a Ministerial Order. Those Bands not
subject to a Ministerial Order, such as MCFN, are free to select their Chief
and Council in accordance with their own customary election procedures and
regulations. MCFN chose to partially codify their election procedures in its
Customary Election Regulations ("CER") leaving all non-codified
governing policies and procedures to be decided pursuant to Chief and Council's
inherent powers, along with application of unwritten custom, tradition and the
common law. (Crow v Blood Band, 107 FTR 270, 1996 CarswellNat 53 (FCTD)
at paras 4, 9, 10,11,17 and 18)
(Supplemental Memorandum of Law of the
Respondent (SMLR), paras 10 and 11)
[15]
The Council takes the position that the Regulations
support its conduct in the resignation scenario by deriving the ordinary and
plain meaning of the terms used (see: Testawich v Duncan’s First Nation
Chief and Council, 2014 FC 1052 at para 23):
The words and language utilized in section
13.2 of the CER are precise and unequivocal: a resignation must state the
effective date of the resignation and that date cannot be more than thirty days
from the date of delivery of the written notice of resignation to Council. By
its clear and unambiguous language this section contemplates a date for
delivery of a written notice of resignation to Council and an effective date of
the resignation, and that these dates may differ. To attempt to argue that the
effective date is the same as the delivery date, or that a Councillor has
resigned immediately despite stating a later effective date of resignation in
his or her written notice of resignation, would ignore the plain and ordinary
meaning of the wording of the CER, the applicable principles of statutory
interpretation and would result in a contradiction that would create an
entirely illogical interpretation of what was intended. If the "effective
date" and the "date the Notice is delivered to Council" were
meant to be one and the same event resulting in an immediate resignation of a
Councillor, only one phrase would be used in the CER, rather than two different
phrases, each with a specific meaning and distinct purpose.
[…]
The 18 day gap between Councillor Edward
Courtoreille's written notice of resignation and the effective date of his
resignation is not merely an administrative or transitionary period, because
the use of the phrase "effective date" has a specific meaning,
separate and apart from the use of the phrase "date the Notice is
delivered to Council". This is further supported by the wording of section
16.1 (a)(i) of the CER, which states that a date for a by-election cannot be
set by Council until five days after the "effective date" of
resignation, not five days after "the date Notice is delivered to
Council". If the "effective date" merely permitted an
administrative or transitory period, a by-election could be called within five
days after "the date the Notice is delivered to Council", rather than
five days after "the effective date" of resignation when the
Councillor had actually resigned. To fail to distinguish between the
"effective date" and "the date the Notice is delivered to
Council" would not accord with the plain and ordinary meaning of the clear
and unequivocal language utilized in the CER.
(SMLR, paras 18 and 20)
[16]
Indeed, Councillor Courtoreille understood the Regulations
provided that his resignation would actually take place on the date he selected
as its “effective” date. The written notice of resignation states: “I will continue to fulfill my commitment to the Mikisew Cree
First Nation until the effective date stated in this notice of resignation”
(Exhibit “C” to the Affidavit of Edward Courtoreille, Respondent’s Record, p.
82).
V.
Conclusion
[17]
With respect to decisions related to the
interpretation of First Nation election regulations, the standard of review is
reasonableness (Testawich v Duncan’s First Nation Chief and Council,
2014 FC 1052 at para 16 citing Fort McKay First Nation v Orr, 2012 FCA
269 at paras 10 - 11; D’Or v St Germain, 2014 FCA 28 at paras 5 - 6.). I
find that the Council’s conduct is a reflection of its interpretation of the Regulations.
Therefore, the issue is whether the Council’s conduct was reasonable.
[18]
I do not accept the mandatory constitutional
argument advanced by the Applicant. I agree that the Mikisew Cree First
Nation’s elections are to be conducted according to democratic principles, but
I do not agree that the content of those principles must include the existing
practice of written resignation leading to immediate By-election created by
Federal and Provincial statutes as argued by the Applicant. While the Mikisew
Cree First Nation is a third order of government in Canada, it has the right
and responsibility to determine its own democratic governance structure. In the
present case that structure is created by the Regulations and,
therefore, if a reasonable interpretation of the Regulations can be
found, there is no need to search further for precedents that might offer
assistance in finding a reasonable interpretation. In my opinion, a reasonable
interpretation exists in the argument advanced by the Council.
[19]
As a result, I find that the Council’s conduct
with respect to Councillor Courtoreille’s resignation was reasonable.
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