Date:
20070313
Docket: A-133-06
Citation: 2007 FCA 108
CORAM: DESJARDINS J.A.
LÉTOURNEAU
J.A.
RYER J.A.
BETWEEN:
SWAN RIVER FIRST
NATION, ALBERTA
Appellant
and
JOHN GIROUX
CHARLES CHALIFOUX
THERESA WILLIER, LEON CHALIFOUX, DARRYL SOUND,
CLAYTON TWIN
COUNCILLORS OF THE SWAN RIVER FIRST NATION
BUDDY GIROUX
GERALD GIROUX JUNIOR
RON SUNSHINE, ELECTORAL OFFICER
Respondents
Heard at Edmonton,
Alberta, on March 12,
2007.
Judgment delivered from the Bench at Edmonton, Alberta, on March 13, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS
J.A.
LÉTOURNEAU
J.A.
RYER
J.A.
Date:
20070313
Docket:
A-133-06
Citation: 2007
FCA 108
CORAM: DESJARDINS
J.A.
LÉTOURNEAU
J.A.
RYER J.A.
BETWEEN:
SWAN RIVER FIRST
NATION, ALBERTA
Appellant
and
JOHN GIROUX
CHARLES CHALIFOUX
THERESA WILLIER, LEON CHALIFOUX, DARRYL SOUND,
CLAYTON TWIN
COUNCILLORS OF THE SWAN RIVER FIRST NATION
BUDDY GIROUX
GERALD GIROUX JUNIOR
RON SUNSHINE, ELECTORAL OFFICER
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered
from the Bench at Edmonton, Alberta, on March 13, 2007)
[1]
This
appeal relates to paragraph 2 of the order of the Federal Court (Dawson J.)
dated March 3, 2006, which reads:
2. The
matter is remitted for redetermination in accordance with these reasons by a
differently constituted Election Appeal Committee of the Swan River First
Nation, constituted as an independent body composed of three individuals with
electoral and legal knowledge in accordance with the decision of the Band
Council as set out in the excerpt of the letter from Indian and Northern
Affairs Canada that the respondents filed with the Court as Exhibit B and the
statement of the Elders filed as Exhibit A.
[2]
Since
no “differently constituted Election Appeal Committee of the Swan River First
Nation” may be constituted except pursuant to the Customary Election
Regulations of the Swan River First Nation as amended on the 5th
day of February 2002, and since one was already in existence, the applications
Judge had no other option but to remit the matter to the Election Appeal
Committee of the Swan River First Nation (the “Committee”) constituted under
the above cited Regulations (see Chief Peter Bill et al. v. Pelican Lake
Appeal Board et al., 2006 FCA 397, paras. 5 to 9).
[3]
The
Federal Court order will therefore be modified to reflect this conclusion.
[4]
This
disposes of the appeal.
[5]
With
regard to the cross-appeal, counsel for the respondent, Mr. John Giroux, has
asked us not to return the matter to the Committee but instead, to declare the validity
of Mr. Giroux’s election. The Federal Court judge declined to do so and could
not have done so considering that she was sitting in judicial review.
[6]
We
also decline considering that the Committee is the only one in a position to
make the findings at the basis of the requested conclusion (see paragraphs 64
and 68 of the Reasons for Order of the Federal Court).
[7]
Counsel
for the respondent, Mr. John Giroux, has also asked us to order that the
Committee determine and fix the entitlements payable to Mr. John Giroux, should
the Committee find that he was duly elected. Those entitlements would be in the
form of salary, regular travels and meetings fees and be retroactive to March
11, 2005. Section 12.9 of the Customary Elections Regulations which
specifies the powers of the Committee does not grant to the Committee the power
to entertain such claims.
[8]
During
the course of argument, counsel for the appellant brought to our attention
recent amendments entitled the Swan River First Nation Customary Election Regulations
and suggested that the matter be returned to the Election Appeal Committee to
be constituted pursuant to these new amendments.
[9]
Counsel
for the respondent, Mr. John Giroux, objected. She submitted that these recent
amendments may be subject to approval by the federal authorities before they
can be enforced and that they may not be retroactive. Counsel for the
appellant in turn expressed doubt that the federal authorities need give
approval to these amendments.
[10]
We
indicated in court that this case should be governed by the Regulations that
were in force at the time the election took place. But counsel did not submit
any view to the contrary.
[11]
A Judgment
will therefore issue along the following terms:
The appeal is
allowed in part only with costs and the cross-appeal is dismissed without
costs.
The Order issued by
the Federal Court on March 3, 2006, is modified by replacing the second
paragraph of that Order with the following:
2. The
matter is remitted for redetermination by the Election Appeal Committee as
defined in paragraph 12.5 of The Customary Election Regulations of the Swan
River First Nation (as amended on February 5th, 2002) within the
time frame established by paragraphs 12.6 to 12.10 of said Regulations. The
period of fourteen (14) days in paragraph 12.6 within which the Election Appeal
Committee must convene a meeting runs from the day the appellant receives a
copy of the present judgment. The present judgment shall be posted in
accordance with paragraph 12.4 of the Regulations, and, for the purpose of
paragraph 12.7 of the Regulations, the notice of the meeting shall be posted in
the same manner as this judgment.
“Alice
Desjardins”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-133-06
(APPEAL FROM A JUDGMENT OR ORDER OF THE HONOURABLE JUSTICE
ELEANOR R. DAWSON DATED MARCH 3, 2006, DOCKET NO. T-719-05)
STYLE OF CAUSE: SWAN RIVER FIRST NATION, ALBERTA AND JOHN GIROUX ET AL
PLACE OF HEARING: EDMONTON, AB
DATE OF HEARING: MARCH 12 AND 13, 2007
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS, LÉTOURNEAU, RYER, JJA.
DELIVERED FROM THE BENCH BY: DESJARDINS, J.A.
APPEARANCES:
|
MR. JEFFREY R.W.
RATH
MR. PETER GRABURN
|
FOR THE APPELLANT
|
|
MS. CHANTELL
M. GHOSH
|
FOR THE RESPONDENT (JOHN GIROUX)
|
SOLICITORS OF RECORD:
|
RATH & COMPANY,
PRIDDIS, ALBERTA
|
FOR THE
APPELLANT
|
|
MILLER THOMSON
LLP
EDMONTON, AB
|
FOR THE
RESPONDENT (JOHN GIROUX)
|
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