Docket: T-1640-13
Citation: 2015 FC 1305
Vancouver, British
Colombia, November 23, 2015
PRESENT: The Honourable Mr. Justice Campbell
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BETWEEN:
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VICTOR COUTLEE
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Applicant
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and
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LOWER NICOLA
INDIAN BAND
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Respondent
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JUDGMENT
AND REASONS
[1]
The present Application is framed as a challenge
of the June 6, 2013 decision of the Electors of the Lower Nicola Indian Band
(LNIB) to amend the Custom Election Rules of the Lower Nicola Indian Band (1998)
(Rules) to remove from the governance structure of the LNIB the Council
of Elders that officiates over election appeals. However, the central issue for
determination is whether, as a required precursor to a decision of the Electors,
the procedure required by the Rules for amending the Rules was
followed by the LNIB Chief and Council in office at the time (Council). Indeed,
the conclusion on the central issue depends on the answer to the following
question: was the Council’s interpretation of the amending provisions of the Rules,
and the action taken on the interpretation, reasonable. For the reasons which
follow, I find that the answer is “yes”.
I.
The Amending Provisions of the 1998 Rules
[2]
The amending provisions under consideration are
as follows:
31. These Rules
may be amended by the passing of a Band Council Resolution calling for a
special Band Meeting to be held for that purpose no later than 60 days after
the date of that resolution, which resolution must be issued forthwith upon
a Council being presented with a written petition setting out the proposed amendment
along with the signatures of at least 30% of the Electors shown on the most
recent Electors list.
32. A special information meeting of the
Band to review the proposed amendments shall be held within 30 days of the
issuance of the Band Council Resolution identified in Section 31. Notices of
the information meeting shall be posted in at least two conspicuous places and
shall set out the proposed amendment.
33. An amendment proposed pursuant to
Section 31 above must be approved by a two-thirds majority of those Electors
voting at the special Band meeting convened for that purpose.
[Emphasis added]
(Application Record of the Applicant, pp. 43
– 47)
The interpretation of Section 31 is a key
element of the present dispute.
[3]
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.).
Reasonableness is described by the Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 at paragraph 47 as follows:
In judicial
review, reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
[4]
In York v Lower Nicola Indian Band, 2013
FCA 26 at paragraphs 5 and 6, Justice Stratas indicated the type of an analysis
that is required in determining whether an interpretation of a provision is
reasonable:
This article is
the only way in which a Chief can be removed. It is precise and clear. No
provisions in the Custom Election Rules allow for a relaxation of the mandatory
30 day notice period set out in article 34(c). Another governing document, the
Policy and Procedures of Chief and Councillors (1997), provides for the suspension
of a Chief, but not removal.
There is no indication that Council
attempted to interpret article 34(c) and discern its requirements and so the
reasonableness standard that normally applies to Band interpretations of
provisions in election codes (e.g., Fort McKay First Nation v. Orr, 2012
FCA 269) does not apply here. Simply put, there is no interpretation to which
this Court can defer. Further, decisions concerning
the content of procedural fairness are subject to correctness review: C.U.P.E.
v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at
paragraph 100. In my view, on either standard of review, Council's resolution
cannot be sustained in light of article 34(c) and the common law of procedural
fairness.
[Emphasis added]
Thus, in the present case, the standard of
reasonableness requires an evaluation of the actual decision-making which took
place at the time the amending provisions were interpreted and acted upon by
the Council. Specifically, a critical feature of this approach is to discern
the quality of the Council’s effort to arrive at a conclusion on the interpretation
of Section 31.
A.
The Applicant’s Position on
Interpretation
[5]
Under the Rules prior to the amendment
under consideration, the Council of Elders served an appellate function with
respect to LNIB elections. The Applicant argues that, because an amendment to
the Rules to remove the Council of Elders is effectively a
constitutional change to the governance structure of the LNIB, wide community
support is required before the amending process is engaged. Accordingly, the
Applicant argues that the amending provisions require the Council to follow a
set of sequential steps in order to so amend the Rules:
A resolution
proposed by way of petition from 30 percent of the entire electorate of the
LNIB,
which would then be endorsed by way of Band
Council Resolution (BCR) to hold an initial special meeting no later than 60
days from the date of the resolution,
with conspicuous notices of a Special
Meeting in at least 2 locations, citing the specific amendments proposed,
with a special information meeting after the
resolution has been passed within 30 days,
and then a special meeting of the band to
adopt those resolutions.
(Written Representations of the Applicant,
para 46)
[6]
In support of the interpretation of Section 31
advanced, the Applicant places emphasis on the use of the word “which”, not being disjunctive and used rather than the
word “or”, requires the provision to be read as
providing only one available means for amending the Rules: a petition
requiring a resolution to be issued.
B.
The Respondent’s Position on Interpretation
[7]
The Respondent argues a position very different from
that taken by the Applicant:
Applying the
plain, ordinary meaning of the words used in the first clause of section 31, […]
it is clear that Council may, on its own volition, start the formal amendment
process by passing a resolution calling for a special Band Meeting to be held.
The only restriction imposed on Council is that the special Band Meeting must
be held "no later than 60 days after the date of that resolution".
There is no other restriction on Council's power to call the special Band
Meeting in the first clause of section 31.
Applying the plain, ordinary meaning to the
words used in the second clause of section 31, it is equally clear that Council
can be forced to call the special Band Meeting to vote on proposed amendments
to the Custom Election Rules if it receives a petition signed by 30% of the
Electors. However, grammatically this second clause is a "non-restrictive
related clause", one that does not in any way restrict the plenary power
of Council under the first clause to call a special Band Meeting on its own
volition. Had the intention of the drafters been to restrict Council's power to
calling a special Band Meeting only after receiving a petition," they
should have used the word "that", instead of the word
"which" after the comma; or alternatively, they should have made the
first clause expressly "subject to" the second clause.
Legal and Legislative Drafting, Paul
Salembier (LexisNexis Canada Inc. 2009), pages 176 – 178; Legal and Legislative
Drafting, Paul Salembier (LexisNexis Canada Inc. 2009), pages 260 – 264.
(Respondent’s Memorandum of Fact and Law,
paras 55 and 56)
[8]
In support of the interpretation advanced,
Council for the Respondent argues that, pursuant to Section 31, the Council is
at liberty to come to its own political decision on the need for an amendment
to be made to the Rules and, pursuant to Section 32, upon giving due notice
of the decision, it is entitled to place the decision before the Electors of
the LNIB to gain the approval stated in Section 33.
II.
The Process Leading to the Amendment of
the Rules on June 6, 2013
[9]
The following chronology is not in dispute.
[10]
An early event in the amending process occurred
in 2010 when a full review of the Rules was conducted by legal counsel, Mr.
Cliff Thorstenson, resulting in a report submitted to the Council at the time
dated March 25, 2010 (Respondent’s Record (RR), pp. 232 - 243). The report
included a number of proposed amendments to the Rules, including extending
the membership of the Council of Elders to include non-elders (RR, p. 236). The
report also included advice to the Council on the procedure to be followed for gaining
approval from the Electors.
Next Steps
Band Council Resolution
Section 31 of the current [1998] Rules
states:
[…]
Accordingly, a BCR is required to
initiate the amendment process. I understand that
you are having considerable difficulty achieving quorum at Council meetings. A
BCR is not valid in the absence of quorum, and this could leave the amendment
process at an impasse.
This creates a significant problem for the
Band. The current requirement for in-person nominations and voting are probably
contrary to law. If LNIB runs an election under the letter of the Rules, the
results could be challenged in court. If it allows for mail-in nominations and
ballots without changing the Rules, the results could be challenged in court.
One option would be for Band Members to
obtain the petition described in section 31. This
would mean that Council must issue the BCR under section 31, though how
you would handle this if a quorum of Council still does not meet is something
you would have to discuss with the Band’s legal counsel. Also, I understand
that 30% of the Band electors is about 300 people, and it might be very
difficult to get that many signatures in support of the comprehensive proposed
amendments.
If you are able to get the required Band Council
Resolution, please be aware of the timetable required to have the amendments in
place for the upcoming General Band Election on October 2, 2010. […]
[Emphasis added]
(RR, p. 241)
[11]
In the preparation phase of Mr. Thorstenson’s
report, community meetings were held on November 16, December 7, 2009, and
January 4, January 18 and February 1, 2010 to discuss amending the Rules.
On April 26, 2010, Councillors Joanne Lafferty, Lucinda Seward, and Molly
Toodlican reviewed the amendments and advice provided by Mr. Thorstenson, each
of whom were re-elected to Council on October 2, 2010 and signed the May 14,
2013 Resolution presently under consideration (RR, p. 12, para 35, and RR, p.
476).
[12]
Community meetings to discuss amendments to the
Custom Election Rules resumed on January 10, 2013. Community meetings were held
thereafter on January 21, February 4, February 18 and March 4, 2013. Following
the March 4, 2013 meeting, Mr. Thorstenson drafted proposed amendments to the Rules
and a survey of all LNIB members, based on the draft amendments, was conducted
by CopperMoon Communications in April, 2013 (RR, pp. 19 – 21, paras 59 – 73).
[13]
At the February 4, 2013 Special Meeting, held for
the membership of the LNIB to share their ideas about a proposed revision to
the Rules, the record of the discussions that took place notes that:
The current rules
providing for an [sic] Council of (LNIB) Elders to determine an election appeal
has been problematic. It has been sometimes been [sic] hard on the Elder
participants and it is difficult to find Elders who are not connected in some
way with one or more of the candidates. […] The suggestion is that a single
arbitrator with experience with First Nations issues be appointed by the BC
Arbitration and Mediation Institute. This will (a) reduce costs, (b) ensure competency,
and (c) negate any perception of conflict of interest.
(RR, p. 391, Note 6)
[14]
On May 14, 2013, following consideration of the
final report on the survey and a final working draft of the proposed amendments,
the Council passed the following Resolution:
BE IT RESOLVED
THAT:
A Special Information Meeting of the Lower
Nicola Indian Band shall be held on Thursday, the 30th day of May
2013, between the hours of 6pm and 9pm, to review the proposed amendments to
the Lower Nicola Indian Band Custom Election Rules.
BE IT FURTHER RESOLVED THAT:
A Special Band Meeting of the Lower Nicola
Indian Band shall be held on Thursday, the 6th day of June 2013, between the
hours of 6pm and 9pm, to vote on amendments to the Lower Nicola Indian Band
Custom Election Rules.
The current Lower Nicola Indian Band Custom
Election Rules and the proposed amendments to them are attached to this Band
Council Resolution for reference.
This resolution is supported by the
undersigned and passed this 14th day of May, 2013.
(RR, p. 476)
The Resolution was signed by Chief Victor
York, and Councillors Lucinda Seward, Molly Toodlican, Mary June Coutlee,
Joanne Lafferty, and Robert Sterling.
[15]
With respect to compliance with Section 32 of
the Rules, following the issuance of the Resolution, the Council
directed that the Final Working Draft of the proposed amendments be circulated
to the membership for discussion at a Special Information Meeting to be held on
May 30, 2013. The “Final Working Draft” of the
proposed amendments to the Rules was delivered house to house on the
LNIB reserves and mailed to non-resident members on May 16 and May 17, 2013
(RR, p. 21, para 73). The content of the “Final Working
Draft” delivered included: a detailed description of the proposed amendments
(RR, pp. 477 – 489); notice of the information meeting to be held on May 30,
2013 and notice of the Special Band Meeting to be held on June 6, 2013 (RR, p.
490); and an explanation of the proposed amendments (RR, pp. 490 – 495).
[16]
The Special Information Meeting set for May 30,
2013 took place, as did the June 6, 2013 Special Band Meeting in which the vote
was taken to amend the Rules.
III.
The Reasonableness of the Council’s
Interpretation and Actions
[17]
In my opinion, there is ample evidence that the
Council made a concerted effort to interpret Sections 31, 32 and 33 of the Rules
to discern their requirements. The Council sought and followed the 2010 advice
of legal counsel, Mr. Thorstenson, in reaching a decision on the meaning of Section
31. On this point it is important to note that continuity exists on the part of
the Council in receiving Mr. Thorstenson’s advice in 2010 and following it in
passing the Resolution under consideration: Councillors Joanne Lafferty,
Lucinda Seward, and Molly Toodlican were engaged in both activities.
[18]
In my opinion, Mr. Thorstenson’s advice meets
the test for reasonableness. The opinion is transparent and intelligible in advising
that Section 31 provides a choice to be made by Council with respect to
amending the Rules: pass a resolution either on your own motion, or pass
a resolution upon receiving a petition from the Electors. In following Mr.
Thorstenson’s advice, the Council chose to pass the Resolution on its own
motion. In my opinion, this decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the Rules.
As a result, I find that the Council’s interpretation of Section 31 is
reasonable.
[19]
I find that the requirements of Section 32 of
the Rules were clearly understood by the Council and were met. The required
Special Information Meeting took place on May 30, 2013. As to the requirement
of the physical posting of notices of the meeting in two conspicuous places, I
find that this requirement was met and surpassed by the delivery door to door of
notice as described in paragraph 15 of these reasons. In my opinion, there can
be no question that the persons who received the delivery were fully informed
that the information meeting set for May 30, 2013 and the Band meeting set for
June 6, 2013 concerned the removal of the Council of Elders from the Rules.
[20]
In my opinion, the Council’s decision to issue
the Resolution was justified. A lengthy consultation process took place with
respect to the amendments to be made to the Rules, including the removal
of the Council of Elders from the governance structure of the LNIB. As
evidenced by the present Application, the removal amendment was contentious. In
any event, the amendment was passed by the Electors by a two-thirds majority of
those Electors voting at the special Band meeting convened for that purpose on
June 6, 2013 as required by Section 31 and Section 33 of the Rules.
IV.
Result
[21]
I find that Council’s interpretation of the
amending provisions of the Rules, and the action taken on the
interpretation, was reasonable.
V.
Costs
[22]
As to an award of costs, given that the present
Application addressed the content and scope of the authority of the Council of
the Lower Nicola Indian Band, the issue arises as to whether the Respondent
should make a contribution towards the Applicant’s costs.
[23]
In Knebush v. Pheasant Rump Nakota
First Nation, 2014 FC 1247, Justice Mandamin reviews precedents with
respect to costs awards in First Nations litigation where a settlement is
reached. At paragraph 24, the rule on awarding costs is stated: “in a litigated proceeding, the general rule is costs follow
the event, that is, the successful party is awarded costs unless there is
reason for [doing] otherwise” [Emphasis
added]. As to the existence of such a reason Justice Mandamin makes the following
comments at paragraphs 57 to 60:
Certainty in First
Nations governance law is an important benefit for a First Nation community. In
this respect, where the result is a better appreciation and commitment to
observance [of] the First Nations governance law, it is appropriate to consider
whether that [sic] the costs ought to be borne by the First Nation.
First, costs have been awarded against the
First Nation where the respondent in fact acts for the First Nation. Bellegarde v Poitras, 2009 FC 1212. In that decision,
Justice Russell Zinn was satisfied the First Nation had paid for some of the
costs of the legal fees of the respondents. He found the Court had jurisdiction
to award costs against a non-party (see para 9).
There is also the question of the imbalance
between an individual member of a First Nation who brings a judicial review to
have a First Nation's laws be observed and the respondents who are the
governing body of the First Nation. Such respondents, usually chiefs and
councillors, are in a position to have their legal costs reimbursed by the
First Nation. If a judicial review application properly addresses a question
of the First Nation's law, it seems to me that, on the basis of public
interest, individual applicants may be similarly entitled to look to the First
Nation for costs [Emphasis added].
I should think a reasonable costs award on a
public interest basis against a First Nation that has benefited by having
clarity brought to its governance laws avoids any adverse inference of winners
and losers. The public interest served would be having the issue resolved in a
manner and form that is in keeping with the sensibilities of the First Nation.
[Emphasis added]
[24]
In my opinion, the present Application has
resolved an important governance question being the interpretation of the Custom
Election Rules of the Lower Nicola Indian Band (1998), in particular with
respect to Section 31. I find that this resolution is in the interests of the
members of the Lower Nicola Indian Band. As a result, I find that it is fair
and just for the Respondent to make a payment towards the Applicant’s costs.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The present Application is dismissed.
2.
I award costs in the lump sum of $10,000 in
favour of the Applicant, payable by the Respondent, forthwith.
“Douglas R. Campbell”
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