Docket: T-242-16
Citation:
2016 FC 1191
Ottawa, Ontario, October 26, 2016
PRESENT: The
Honourable Madam Justice McVeigh
|
BETWEEN:
|
|
CYNTHIA SPENCE
in her capacity as CHIEF OF PEGUIS FIRST NATION and GLENNIS SUTHERLAND in her
capacity as COUNCILLOR OF PEGUIS FIRST NATION
|
|
Applicants
|
|
And
|
|
MARY TYLER
BEAR, DARLENE BIRD and WADE SUTHERLAND, each in their capacity as COUNCILLORS
OF PEGUIS FIRST NATION
|
|
Respondents
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of Peguis
First Nation Band Council Resolution 91 FY 2015/16-91 [the election resolution].
The Application was brought by Chief Cynthia Spence and Councillor Glennis
Sutherland [the Applicants] against Councillors Mary Tyler Bear, Darlene Bird,
and Wade Sutherland [the Respondents]. The Respondents signed the election
resolution on February 5, 2016, which attempted to postpone trustee elections
of February 11, 2016 [the election]. As a result of an injunction application,
the election proceeded as scheduled but the votes were not counted.
[2]
The Applicants originally had asked that a second
decision regarding the elimination of the Peguis School board dated June 10,
2016 be reviewed. Pursuant to Federal Courts Rules, SOR/98-106, Rule 302
[the FCR], only the decision regarding the election of the trustees was
reviewed.
[3]
There was no compliance with Rule 317 of the FCR
so there was no Certified Tribunal Record [CTR] before the Court. However,
the material that was before the Respondents as decision makers was provided to
me in materials filed by the parties. Arguments contained in affidavit material
filed by the parties and any material that was not before the Respondents at
the time of their decision has not been considered.
II.
Preliminary
[4]
The style of cause has been amended by agreement
of the parties to reflect their proper capacities.
III.
Background
[5]
The Peguis First Nation is the largest First
Nation in Manitoba, with a population of approximately 10,000 members spread
across nine reserves. The members of Peguis First Nation are of Saulteaux
(Anishinaabe) and Cree descent. They are a Treaty 1 First Nation which was signed
in 1871. In 1907, Canada signed but did not honour terms for the surrender of
land by the Peguis First Nation. This breach led to the October 2010 Surrender Claims
Trust Agreement [SCTA] between the government of Canada and the Peguis First Nation.
The sum of the settlement proceeds totaled more than $126,000,000.00.
[6]
The SCTA was established to receive, invest,
manage and administer settlement proceeds from the government of Canada. The
SCTA requires five community fund trustees, all of whom must be elected, and
seven financial trustees, five of whom must be elected and two appointed by
Council. The SCTA sets out all eligibility requirements including a requirement
that at least three of the community trustees and four of the financial trustees
ordinarily reside on reserve.
[7]
In March 2015, Cynthia Spence was elected Chief
of the Peguis First Nation and the Councillors named as both Respondents and Applicants
were elected. At the time of their election, there were only three community
trustees (two short of the required number) and four financial trustees (three
short of the required number).
[8]
In October 2015, a trust nominating committee was
formed for the purposes of soliciting applications to fill the SCTA trustee
vacancies. In November 2015, Council unanimously passed a resolution calling
for trustee elections and appointed a person to act as electoral officer.
[9]
On November 13, 2015, the nominating committee advised
the Chief and Council that there was a lack of eligible candidates necessary to
fill the trustee vacancies. After two calls and twenty applicants, only one was
deemed eligible to stand for election under the SCTA. The SCTA does not address
how or whether a trustee may be acclaimed. Following SCTA procedure, a trustee
election date was scheduled for February 11, 2016.
[10]
On January 29, 2016, the Respondents requested
that the election be postponed until a later date. Chief and Council sought a
legal opinion on their ability to postpone elections after they received the
list from the nominating committee. On January 22, 2016, a lawyer advised Chief
and Council in writing that the SCTA did not contemplate a postponement of
elections. Solicitor-client privilege attached to the opinion was waived as the
material was provided to the Court and reproduced in public documents.
[11]
Due to band member concerns, the Respondents
sought a meeting to deal with the postponement of the election. The Chief put
the matter on the agenda for the next general meeting that was held February 4,
2016. A discussion was held at that meeting regarding the election as reflected
in the minutes. After discussion, the Chief took the election resolution for
legal advice and set the matter over to the next meeting on February 8, 2016.
[12]
On February 5, 2016, the Respondents held a meeting
and passed the election resolution postponing trustee elections indefinitely; it
was the only business conducted at that meeting (see Appendix A). In the minutes,
it resolved that the election scheduled for February 11, 2016, be “modified to ensure that more than one name appears for each
vacancy on the list for members to choose from.” It postponed the
election until a “list” of candidates could be
produced as required in section 9.7 of the SCTA (see Appendix B).
[13]
At the regularly scheduled meeting on February 8,
2016, the Chief and Councillor Glennis Sutherland tried to convince the two
other Councillors present to stop trying to postpone the election. The Councillors
refused and proceeded with implementing the election resolution.
[14]
An injunction motion resulted in an order by
Madam Justice Roussel dated February 10, 2016, that ordered the election to
proceed on February 11, 2016. The electoral officer was directed to not count
the ballots but to hold them until this judicial review could be heard. According
to this order, if the judicial review is allowed then ballots are to be counted
and a declaration made regarding the results.
IV.
Issue
[15]
The issue that I must determine is whether the
Council meeting – special or otherwise – of February 5, 2016, was duly
convened?
V.
Standard of Review
[16]
The Applicants submit that aboriginal governance
issues should be reviewed on a standard of correctness (Gamblin v Norway
House Cree Nation Band Council, 2012 FC 1536 at para 27).
[17]
This matter is a mix of procedural fairness and
interpretation of governance issues. I must interpret the procedural rules of
governance that Council and Chief must follow on a correctness standard to which
no deference is owed (Laboucan v Little Red River Cree Nation No 447,
2010 FC 722 at paras 20-21 (appeal to FCA dismissed) citing Martselos v Salt
River Nation #195, 2008 FCA 221 at paras 28-32).
VI.
The Law
[18]
To better understand the matter before me we
must look at the pertinent sections of the SCTA as well as the Indian Act,
RSC 1985, c I-5 [the Indian Act] and the Indian Band Council
Procedure Regulations, CRC c-950 [the Procedure Regulations]. The
applicable sections are set out below and in appendixes.
[19]
According to the Indian Act, paragraph 2(3)(b),
unless the context otherwise requires or the Act otherwise provides:
…
b) a power conferred upon the Council of a
band shall be deemed not to be exercised unless it is exercised pursuant to the
consent of a majority of the Councillors present at a meeting of the Council
duly convened.
[20]
For a meeting – special or otherwise – to be
duly convened, notice must be given to each member of Council including the
day, hour, and place of the meeting (Procedure Regulations 3(1), 4 and 5)
(see Appendix C).
[21]
Under section 31 of the Procedure Regulations,
Council may create their own procedures which are not inconsistent with those Procedure
Regulations. In particular, section 15 of the Council Procedures requires
notice from the Peguis Chief Operating Officer of the day, hour and place of a
duly convened meeting. Section 16 of the Council Procedures requires public
notice on the Peguis Mall Bulletin Board at least 24 hours in advance of any
special meeting (see Appendix C & D).
[22]
To have a duly convened meeting the Chief and
Councillors must have notice. This is to ensure that a group of Councillors
cannot exclude others to ensure their interests are met (Balfour v Norway House
Cree Nation, 2006 FC 213 at paras 49 and 52).
[23]
Paragraph 9.7(b) of the SCTA directs the
nominating committee to provide Council with a list of the names of not more
than three nominated applicants for each of the vacancies for Community Fund
Trustees and Financial Trustees positions (see Appendix B).
[24]
The SCTA at paragraph 9.7(d) indicates that
within 30 days after the receipt of the list from the nominating committee,
that council shall post the list of potential candidates and conduct a
vote by the members (see Appendix B).
VII.
Analysis
[25]
A voluminous record was submitted along with
conflicting evidence on several issues. It is often difficult to unravel all of
the events and sort out what is required on judicial review. For reasons
already described in the introduction, the election resolution is the only
issue currently under review.
[26]
Unlike many matters that come before the Federal
Court, each party in this case were doing what they thought was best for the Peguis
First Nation they were elected to represent. However, there continues to be
vacant trustee positions and therefore neither party is truly successful. The
cost of an election has already been incurred and the votes are ready to be
counted or destroyed depending on my decision.
[27]
I have decided to grant the application, allow
the votes to be counted and the results of the election to be determined. My
reasons for granting this application are as follows.
[28]
The Applicants argue that the meeting on
February 5, 2016 was not duly convened as required by paragraph 2(3)(b) of the Indian
Act (see paragraph 19 above). The Applicants characterize the meeting as an
attempt to usurp Council and attack Chief Spence. They submit that if the
Respondents were unhappy with the slate of trustee candidates that instead of
proceeding as they did the Respondents could have brought a mandamus
application to postpone elections or brought an application to judicially
review any of the nominating committee’s decisions.
[29]
The Applicants submit that a requirement of a duly
convened meeting is advance notice to all members of Council. Since no notice
was given to either the Chief or Councillor Glennis Sutherland of the meeting,
it was not duly convened. Therefore, any resolution passed at this meeting is
null and void (Prince v Sucker Creek First Nation #150A, 2008 FC 1268 at
para 38 (FCA appeal dismissed); Orr v Fort McKay First Nation, 2011 FC
37 at paras 2 and 4).
[30]
To bolster their position, the Applicants put
forward that even if the Respondents characterize the February 5 meeting as a
special meeting of Council, it would have to be done in accordance with section
4 of the Procedure Regulations. This section states that only the Chief
of the Band (or the Superintendent of Indian Affairs) may summon a special
meeting of Council when requested to do so by a majority of the members of
Council. Since neither the Chief nor the Superintendent of Indian Affairs called
the meeting, it could not be a special meeting (see Appendix C).
[31]
On the issue of a duly convened meeting, advance
notice to Chief Spence is of central importance. The Respondents say the
meeting required urgency as the election was scheduled for six days later and
the Chief had not called a special meeting. I do not doubt there was urgency
but there was already a meeting regularly scheduled for February 8, 2016 that
included the election resolution on the agenda. The election resolution was put
over from the February 4 meeting so the Chief could seek further legal advice. The
minutes of the Regular General Council Meeting held February 4 show that the
election resolution was mentioned as follows:
4. Letter from Councillors Wade, Darlene and
Tyler regarding Trustees Election
a. Councillor Bird began discussion on this
issue with Chief and other Council members
b. BCR # 91 (AANDC) and BCR # 22 (IN HOUSE)
were presented to Chief Spence
** Chief and Council had a discussion on
the Trustee Election and BCRs – recorder absent she was directed by Chief
Spence to do BCR 93 Regional Health Survey for review and signing today (left
for about 45 mins to hour and returned at 11:16 a.m.)
UPDATE: After returning to meeting
Councillor Bird stated that Chief Spence has the two BCRs # 22-IN HOUSE and #
92-AANDC and is seeking legal advice and will discuss on Monday, February 8,
2016 with Council members.
…
6. Letter re SCT Eligibility Criteria Review
and Followed by authorization to proceed for a SCT vote to fulfill vacancies
and seek name for alternatives – ON HOLD until Council meets again on
Monday, February 8, 2016 in Peguis as per Chief Spence
[Emphasis in original]
[32]
There appears to be a typo in the minutes as the
update says BCR 92 (AANDC) and not 91. The fact that the minutes should read
BCR 91 and not BCR 92 is strengthened by the fact that in the minutes BCR 92
(PCH) was already signed off at the meeting: “BCR 92
PCH Project – Elva McCorrister; a. Presented and Signed by Chief and Council
present” (Regular Council Meeting, Thursday, February 4, 2016).
[33]
The Respondents all filed affidavits saying the
Chief after the February 4 general meeting, took the physical copy of the
election resolution to seek further legal advice or they would have signed it
at that meeting. From the minutes of the meeting the minutes show there was no
motion and the election resolution was not passed. As a result, the Respondents
had another election resolution printed at the February 5 meeting so they could
sign it.
[34]
I conclude on the evidence before me that notice
was not given to all the members of Council for the February 5 meeting. Nor did
the Chief call any special meetings in accordance with section 4 of the Procedure
Regulations.
[35]
To make this determination, I rely on both the
affidavit of Glennis Sutherland and the transcript of the February 10 hearing
before Madam Justice Roussel which reads:
THE COURT: But did you give Notice of the
meeting on February 5th I understand that you emailed the [election
resolution]. But did you give notice to the Chief that you were going to be
holding a meeting on the 5th to discuss the [election resolution]
and to sign the [election resolution].
COUNCILLOR BIRD: No we did not.
[36]
By coincidence Councillor Glennis Sutherland was
at the band office on February 5 and was invited to join but declined as it was
not a duly convened meeting. It is noted that the Chief only votes if there is
a tie and even if Councillor Glennis Sutherland had attended the meeting and
voted against the election resolution, the majority still would have carried. With
this in mind there was absolutely no justification for the Respondents having a
meeting without proper notice as it appears that the majority would have carried
the vote at a duly convened meeting. The rules of notice, quorum, and recording
of meetings must be respected by all members of Council as well as the Chief.
[37]
Justice Rothstein in Long Lake Cree Nation v
Canada (Minister of Indian and Northern Affairs), [1995] FCJ No 1020,
understood that conflicts often arise on Band Councils which can become
personal. These conflicts can be between individuals or groups on Council. He states
(at paragraph 31) that “[t]he people entrust the
Councillors to make decisions on their behalf and Councillors must carry out
their responsibilities in a way that has regard for the people whose interest
they have been elected to protect and represent.” In the same paragraph,
he says that Councillors must operate according to the written law, customary
law, the Indian Act or whatever law is applicable and cannot take
matters into their own hands. It is for the protection of the band members and
not the protection of the Chief and Council that following the rule of law is
sacred.
[38]
I understand the Respondents thought they were
carrying out the will of the people they represent. However, by proceeding
behind the Chief’s back they weakened the democratic process and band members’
trust in them. It would have been prudent and wise for the Councillors to have
waited until February 8 instead of the ill-conceived meeting of February 5.
[39]
On these facts, the Respondents – with the best
of intentions – did not follow the rule of law. This does not mean that the
laws, in this case the STCA, may need amendments to address some situations not
covered in the current STCA. However, the fact remains that the law that was
before them was not followed as the meeting was not a duly convened meeting.
[40]
The Respondents argue that the Chief breached a
number of rules leading up to the February 5 meeting. Therefore, the Court should
take into consideration that she does not appear with clean hands. Without
making a finding as to whether the Chief breached procedural fairness prior to
the February 5 meeting, I will restate what I have just said. Namely, that in
positions of trust, all members of Council as well as the Chief must follow the
rules, band council guidelines (both written and customary) and statutory laws
so that the membership can see that their trust is well placed in the
individuals elected to these positions.
[41]
These positions must be held with honour while
avoiding personal conflicts which could influence their role as Chief or Councillor.
Decisions – no matter how well intended – cannot be made without an adherence
to the rule of law. It is the principle of the matter on these facts and as
Justice Rothstein stated, the rule of law must be followed.
[42]
I found that the determinative issue was whether
there was a duly convened meeting at which the election resolution was passed
that purported to adjourn the election for the vacant trustee positions of the
SCTA. The parties presented other issues that are not determinative though I
will comment briefly on some of them.
VIII.
Other Issues
A.
Council’s power to postpone a SCTA election past
the 30 days once the list is provided by the Trustee Nominating Committee
[43]
The Applicants rely on a legal opinion provided
to Council to argue that it is outside Council’s jurisdiction to postpone
elections. The legal opinion, dated January 22, 2016, was asked for and
provided to Chief and Council after the nominating committee had already
provided their list pursuant to paragraph 9.7(d). This opinion said that the SCTA
does not contemplate postponing elections. However, postponing elections is not
explicitly prohibited either (see Appendix B)
[44]
The SCTA states in subsections 9.1 and 9.2 that “there shall at all times be” five community fund trustees
and seven financial trustees. The language under paragraph 9.7(d) is mandatory
as it states that within 30 days after the receipt of the list from the nominating
committee that council shall post the list of potential candidates and
conduct a vote by the members. The Respondents argue that postponing trustee
elections is within the power of Council as an extension of democratic
principles. No case law is included to support this position or reference to
statute provided (see Appendix B).
[45]
I do not see given 9.7(d) how Council could
postpone an election once the nominating committee provides them with a list.
Certainly in the SCTA, before the nominating committee provides a list there is
nothing that mandates when the election is to be held other than the fact there
are not to be vacancies so a postponement of an election at the stage before
the list is given is possible.
[46]
The Respondents bolstered their position by
suggesting that the nominating committee never provided a “list” of qualified candidates to Council. Their
argument is based on the common definition of the word “list”
which implies multiple candidates. Since only one candidate was proposed for
election it could not constitute a list.
[47]
I disagree that a list of candidates was not
given to Council by the nominating committee. Subsection 9.7 of the STCA uses
singular language of “nominee”. It states not
more than three nominees and does not say “but not one”.
Furthermore, in 2011 elections were held and some of the positions were not
contested so there must have been a list for certain positions that only contained
one person. I see no reason that this election should fail because the list had
only one eligible candidate.
[48]
Further, the Respondents argue the election
ballots have to be in the form of a yes or no vote. As there was only one
nominee the election ballot was not in the yes or no form the Respondents say
is necessary. This argument must fail. The necessity for a yes or no vote
pertains to surrender or designation under the Procedure Regulations and
not to filling a trustee vacancy under the SCTA.
[49]
In conclusion, the Applicants are trying to fill
vacancies on a trust that is vital to their community that have sat vacant for
far too long. The Respondents are trying to ensure that meaningful elections
can be held rather than acclaiming the only trustee eligible to stand. My hope
is that the First Nation, Chief and Council move forward to meet both of their
objectives.
[50]
As there has been a breach of procedural
fairness, I grant the judicial review and quash the election resolution. The
ballots from the February 11, 2016 trustee election that were the subject of an
injunction dated February 10, 2016 by Madam Justice Roussel are to be counted
as per her order.
IX.
Costs
[51]
Peguis First Nation Band Council Resolution 106 states
that legal counsel for both the Applicants and the Respondents will be paid for
by the Peguis First Nation. With this in mind, I will not order costs to either
party.
APPENDIX A
APPENDIX B
PEGUIS FIRST NATION SURRENDER CLAIM TRUST AGREEMENT
9.6 Application
and Assessment of Qualifications
(a) The Trustee Nominating Committee shall
consider applications from Members to act either as a Community Fund Trustee or
a Financial Trustee.
(b) The Trustee
Nominating Committee shall have authority to recommend suitable and reasonable
eligibility criteria, and to amend such criteria from to time to time, to apply
in the consideration of applications for election to the position of Trustee by
the committee, not contrary to this Agreement. The eligibility criteria shall
be set out in writing and shall be approved by Ordinary Resolution at any
general meeting of Members called in accordance with Section 12.2. For greater
certainty, it shall not be necessary for the eligibility criteria to be the
same for both the offices of Financial Trustee and Community Fund Trustee.
9.7 Nomination and Election
(a) The Trustee Nominating Committee shall,
by consensus, and failing consensus, by Ordinary Resolution, nominate for
election those applicants it considers most qualified to assume the duties and
responsibilities in relation to the offices of Financial Trustee or Community
Fund Trustee, as the case may be, from among the applications submitted to
stand for election by the Members, providing summary reasons for nomination of
each candidate nominated for election, including the qualifications of each
nominee.
(b) In the event of one or more vacancies
or contemplated vacancies in the office of Community Fund Trustees, the Trustee
Nominating Committee shall provide the Council with a list setting out the
names of not more than three (3) applicants nominated for election for each vacancy
in the office of Community Fund Trustees and in the event of one or more
vacancies or contemplated vacancies in the office of Financial Trustees, the
Trustee Nominating Committee shall provide the Council with a list setting out
the names of not more than three (3) applicants nominated for election for each
vacancy in the office of Financial Trustees, together with summary reasons for
nomination of each candidate nominated for election.
(c) The Trustee
Nominating Committee shall provide the Council with the list referred to in
Paragraph 9.7(b):
(i) In the case of contemplated vacancies
arising from the replacement of the initial Trustees, within six (6) months of
the Members’ approval of the eligibility criteria referred to in Paragraph
9.6(b); and
(ii) In all other
cases, within sixty (60) days of the Members’ approval of the eligibility
criteria referred to in Paragraph 9.6(b).
(d) Within thirty (30) days after the
receipt of the list or lists of nominations, the Council shall post such list
or lists in the administrative offices of Peguis and shall conduct a vote by
Members in a manner similar to the Indian Referendum Regulations made
under the Indian Act, with such modifications thereto as determined by
the Council to be necessary or advisable, for the election of Community Fund
Trustees or Financial Trustees, or both, as the case may be, including, where
applicable, the election of up to three (3) alternate Financial Trustees and up
to two (2) alternate Community Fund Trustees.
(e) The Members shall cast their vote by
ballot for the election of Community Fund Trustees or Financial Trustees, or
both, as the case may be, and the nominee or nominees having the highest number
of votes shall be elected Community Fund Trustees or Financial Trustees, as the
case may be, and the nominee or nominees having the following highest number of
votes shall be elected alternate Financial Trustees or alternate Community Fund
Trustees (collectively the “Alternate Elected Trustees”, and
individually “Alternate Elected Trustees”), as the case may be. Each
person elected as an Alternate Elected Trustee shall be eligible, for a period
of two (2) years from the date such individual was elected as an Alternate
Elected Trustee, to be appointed by Council to fill a vacancy in the office of
Financial Trustee or Community Fund Trustee, as the case may be, in accordance
with the provisions of Section 9.11.
(f)
Notwithstanding any of the foregoing, there shall not at any time be more than
three (3) Alternate Elected Trustees eligible to be appointed to the office of
Financial Trustee and more than two (2) Alternate Elected Trustees eligible to
be appointed to the office of Community Fund Trustee.
APPENDIX C
Indian Band
Council Procedure Regulations, CRC c-950
|
3(1) The first meeting of the council shall be held not later than one
month after its election, on a day, hour and place to be stated in a notice
given to each member of the council, and meetings shall thereafter be held on
such days and at such times as may be necessary for the business of the
council or the affairs of the band.
|
3 (1) La première assemblée du conseil se tiendra dans un délai d’un
mois au plus tard après l’élection, au jour, à l’heure et à l’endroit qui
seront indiqués à l’avis communiqué à chacun des membres du conseil, et les
assemblées subséquentes se tiendront au jour et à l’heure déterminés, selon
ce que requièrent les affaires du conseil ou les intérêts de la bande.
|
|
4 The
chief of the band or superintendent may, at any time, summon a special
meeting of the council, and shall summon a special meeting when requested to
do so by a majority of the members of the council.
|
4 Le
chef de la bande ou le surintendant peut en tout temps convoquer une
assemblée extraordinaire du conseil et doit convoquer une telle assemblée
s’il en est requis par la majorité des membres du conseil.
|
|
5 The
superintendent shall notify each member of the council of the day, hour and
place of the meeting.
|
5 Le
surintendant doit notifier à chaque membre du conseil le jour, l’heure et
l’endroit de l’assemblée.
|
|
31 The
council may make such rules of procedure as are not inconsistent with these
Regulations in respect of matters not specifically provided for thereby, as
it may deem necessary.
|
31
Le conseil peut, s’il l’estime nécessaire, établir tout règlement interne,
qui ne soit pas en contradiction au présent règlement, en ce qui concerne des
points qui n’y sont pas spécifiquement prévus.
|
APPENDIX D
Council
Procedures: Peguis First Nation
15 The
Chief Operating Officer shall notify each member of the council of the day,
hour and place of the meeting.
16 The
Chief Operating Officer shall give public notice of a special meeting by
posting a notice at the Peguis Mall Bulletin Board at least 24 hours before the
date of the meeting.
Email this Content