Date: 20100623
Docket: A-130-09
Citation: 2010 FCA 169
CORAM: EVANS J.A.
PELLETIER
J.A.
STRATAS J.A.
BETWEEN:
LARRY OAKES, JORDIE FOURHORNS,
RUSSELL BUFFALO CALF, LINDA OAKES
AND GLEN OAKES
Appellants
and
ALICE PAHTAYKEN, IN HER CAPACITY AS
CHIEF,
BRANDY BUFFALO CALF, IN HER CAPACITY AS
COUNCILLOR, ELVIE STONECHILD, IN HER
CAPACITY
AS COUNCILLOR, AND CHRISTINE MOSQUITO, IN
HER CAPACITY
AS COUNCILLOR
Respondents
Heard at Calgary, Alberta, on June 17, 2010.
Judgment delivered at Ottawa,
Ontario, on June 23, 2010.
REASONS FOR JUDGMENT BY: PELLETIER
J.A.
CONCURRED
IN BY: EVANS
J.A.
STRATAS J.A.
Date: 20100623
Docket: A-130-09
Citation: 2010 FCA 169
CORAM: EVANS
J.A.
PELLETIER
J.A.
STRATAS
J.A.
BETWEEN:
LARRY OAKES, JORDIE FOURHORNS,
RUSSELL BUFFALO CALF, LINDA OAKES
AND GLEN OAKES
Appellants
and
ALICE PAHTAYKEN, IN HER CAPACITY AS
CHIEF,
BRANDY BUFFALO CALF, IN HER CAPACITY AS
COUNCILLOR, ELVIE STONECHILD, IN HER
CAPACITY
AS COUNCILLOR, AND CHRISTINE MOSQUITO, IN
HER CAPACITY
AS COUNCILLOR
Respondents
REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
This is an
appeal from the decision of Mr. Justice Russell ( the Judge) of the Federal
Court reported as Nekaneet First Nation v. Oakes, 2009 FC 134, [2009]
F.C.J. No. 183, in which the Federal Court was asked to declare which of two
slates of chief and councillors, elected in two separate elections, was lawfully
elected. The dispute arose because a group of band members initiated a process
leading to a referendum on the adoption of the Nekaneet Constitution
and Nekaneet Governance Act. Following an independently supervised
secret ballot, the referendum passed. The respondents were elected chief and
councillors pursuant to the election procedure set out in the Nekaneet Constitution
and Nekaneet Governance Act.
[2]
Another
group of band members opposed the referendum initiative and expressed their
opposition by boycotting the process as well as the referendum itself. They
organized a band council election in accordance with the pre-existing band
custom, at which time the appellants (applicants in the Federal Court) were
elected as Chief and band councillors.
[3]
The Judge
decided that the election of the respondents was lawful and that they lawfully
occupied the offices of chief and councillors.
[4]
Numerous
affidavits were filed both in support of and in opposition to the appellants’
application for judicial review. There were numerous issues of fact as well as
issues of credibility. In careful, detailed reasons, the Judge made findings of
fact and credibility which he justified by reference to the material before him.
Given the nature of the application before him, the Judge was the primary
fact-finder. In those circumstances, the standard of review for findings of
fact, and factual inferences, is that set out at paragraph 25 in Housen v.
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235: palpable and overriding
error. I have not been persuaded that the Judge made any such error.
[5]
The
legal test which the Judge was to apply to the facts was that of “broad
consensus” as set out in the jurisprudence: Bigstone v.
Big Eagle [1992] F.C.J. No. 16, [1993] 1
C.N.L.R. 25 (F.C.T.D.), McLeod Lake Indian Band v.
Chingee, [1998] F.C.J. No. 1185, [1999] 1
C.N.L.R. 106 (F.C.T.D.). That test was articulated by Stayer J. in Bigstone,
cited above, as follows:
Unless otherwise defined in
respect of a particular band, "custom" must include practices for the
choice of a council which are generally acceptable to members of the band, upon
which there is a broad consensus ... . The real question as to the validity of
the new constitution then seems to be one of political, not legal, legitimacy:
is the constitution based on a majority consensus of those who, on the existing
evidence, appear to be members of the Band?
[6]
The
Judge concluded that where 136 of 276 eligible voters participated in the
referendum, and of those, 113 voted in favour of adoption of the proposed Nekaneet Constitution and Nekaneet
Governance Act, there was sufficient evidence of a broad consensus in
favour of those measures, and by extension, of the election of the chief and
councillors elected pursuant to the new constitution. The Judge was mindful
that this participation rate occurred in the face of an organized boycott of
the referendum by those opposed to the adoption of the Nekaneet Constitution
and Nekaneet Governance Act. He discounted the petition signed by 113
band members who participated in the subsequent band election on the ground
that he did not have sufficient credible evidence as to its circumstances to
accord it much weight.
[7]
Like the
Judge, I cannot help but note that this community is deeply divided, a
regrettable situation. Nonetheless, his task was to determine if there existed
a broad consensus in favour of a change in band governance. It is true that the
process which was undertaken by the respondents was not sanctioned by the
existing council. But it is also true that the process was undertaken by a significant
number of band members; it was undertaken publicly and with notice to all band
members. It offered band members the opportunity to participate in the work of
the Governance Committee, either in person or by providing responses to
questionnaires circulated to band members. The proposed changes were put before
band members at two public meetings, one on the reserve and the other in Regina. The proposed changes are
broadly in line with current notions of open and transparent democratic
practices. Finally, the Nekaneet Constitution and Nekaneet
Governance Act were adopted in a vote by secret ballot under
independent supervision. It is apparent that both the process and the result
of the vote satisfied the Judge that, notwithstanding the boycott, there
existed a broad consensus in favour of the change in governance and the
subsequent election of the respondents.
[8]
The
parties agreed that the Judge applied the correct legal test, that of “broad
consensus”. The application of that test to the facts is a question of mixed
fact and law for which the standard of review, once again, is that of palpable
and overriding error: see Housen v. Nikolaisen, previously cited, at
paragraph 36.
[9]
I have not
been persuaded that the Judge committed a palpable and overriding error in
concluding, as he did, that there was a broad consensus in favour of the
adoption of Nekaneet Constitution and Nekaneet Governance Act
and, by extension, the election of the respondents as the chief and councillors
of the Nekaneet First Nation.
[10]
I would
therefore dismiss the appeal with costs.
"J.D. Denis
Pelletier"
“I
agree.
John
M. Evans J.A.”
“I
agree.
David
Stratas J.A.”
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