Date: 20040611
Docket: A-392-03
Citation: 2004 FCA 229
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
SANDY BAY OJIBWAY FIRST NATION, as represented
by CHIEF JOHN SPENCE, and Councillors, RAYMOND BEAULIEU,
HERMAN RICHARD and THOMAS RICHARD,
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by THE MINISTER OF INDIAN AND
NORTHERN AFFAIRS,
Respondent
and
SANDY BAY OJIBWAY FIRST NATION, as represented by
CHIEF IRVIN McIVOR and Councillors HERMAN RICHARD,
THOMAS RICHARD, DENIS McIVOR and RUSSELL BEAULIEU
Intervener
Heard at Winnipeg, Manitoba, on June 2, 2004.
Judgment delivered at Ottawa, Ontario, on June 11, 2004.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
PELLETIER J.A.
Date: 20040611
Docket: A-392-03
Citation: 2004 FCA 229
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
SANDY BAY OJIBWAY FIRST NATION, as represented
by CHIEF JOHN SPENCE, and Councillors, RAYMOND BEAULIEU,
HERMAN RICHARD and THOMAS RICHARD,
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by THE MINISTER OF INDIAN AND
NORTHERN AFFAIRS,
Respondent
and
SANDY BAY OJIBWAY FIRST NATION, as represented by
CHIEF IRVIN McIVOR and Councillors HERMAN RICHARD,
THOMAS RICHARD, DENIS McIVOR and RUSSELL BEAULIEU
Intervener
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] This is an appeal from a decision of Rouleau J. of the Federal Court staying a decision of the Minister of Indian and Northern Affairs Canada (the Minister) which ordered the appellant First Nation to hold an election.
The facts
[2] It is common ground that the Election Regulations of the appellant First Nation have been seriously flawed for many years, since there is no workable appeal process in place. As a result, appeals dealing with the election held on November 19, 2002 could not be disposed of.
[3] After protracted negotiations with the Chief and Council of the First Nation, the Minister, on December 13, 2002, sent the following letter to the Chief and Council:
...
As you are aware, I am in receipt of correspondence indicating that the Sandy Bay Ojibway First Nation is stalemated in dealing with the appeals resulting from the election on November 19, 2002. I acknowledge your recognition that the Sandy Bay Ojibway First Nation Band Council Election Regulations (the "Regulations") are flawed, and I commend your intention to remedy the flaws by amending the Regulations.
However, as you are also aware, this is not the first time that election problems have arisen at the Sandy Bay First Nation (the "First nation") as a result of the Regulations. As early as February 1998, the department was made aware of problems with the Regulations, and at that time, the problems specifically related to there being no provision in the code for non-confidence votes.
In March 1998, the Band scheduled an election which was not contemplated by the Regulations. The department advised that the result of that election would be unenforceable. In October of 1998, officials in the Manitoba Regional Office raised the possibility of providing the First Nation with funding to assist with the redrafting of the Regulations. They also provided a template for new or amended regulations. In June of 1999, the department again offered to provide funding to the First Nation for this purpose, and in fact, made available $15,000.00 to the First Nation.
Around the same time an election was held, despite a Federal Court injunction to prevent it and no authority in the Regulations to hold one. The injunction was obtained on the basis of an illegal nomination meeting being held. In October 2000, the department was again made aware of election problems and the failure to resolve them because no appeal board was constituted. Eight irregularities, including vote buying, were alleged in a sworn affidavit.
Now again, in 2002, it is apparent that the First nation is faced with election problems as a result of the ongoing failure to address the problems with the Regulations. Again allegations of vote buying have been made. In each of the last four elections on the Reserve problems have arisen related to deficiencies in the Regulations.
Once again, the Manitoba Regional Office is able to provide a reasonable financial contribution to assist you in resolving this matter in an expeditious manner. Please contact Martin Egan, director of Lands and Trust Services, at (204) 983-6889, should you wish to avail yourselves of this assistance.
In any event, I need to hear from you by February 14, 2003, that the flaws in the Regulations have been remedied and that the current stalemate is resolved. If this does not happen, I will consider alternate ways of remedying the situation, including invoking my authority under section 74(1) of the Indian Act to call an election. If an order under s. 74(1) is made I will also direct department officials to take any additional incidental steps, such as appointing a third party manager until the election is completed.
[A.B. vol. 1, pp. 88-89]
[4] On January 31, 2003, the Executive Director of the First Nation sent a letter to the Department informing it that
... we are experiencing interference and intimidation from a number of band members who are trying to force our working group to suspend their meetings and work on the elections regulations.
...
We will be continuing our work on February 5, 6 & 7 ...
The continuing harassment and intimidation makes it difficult for our working group to complete their task and bring the process to a satisfactory solution.
[A.B. vol. 1, p. 94]
[5] That same day, i.e. on January 31, 2003, Mr. Dhir, the Director of the Funding Services, Manitoba Region, of the Department, sent to the Chief and Council a copy of an amendment to the comprehensive funding arrangement which he wanted the Council to sign and return "in a timely manner" (A.B. vol. 1, p. 95). In article 2.5(a) of the amendment, which deals with the "Band Custom Election Act Revision," the Co-Manager of the First Nation is informed that he
"shall
- submit a brief written progress report to be provided on January 31, 2003 and February 28, 2003; and
- a copy of the confirmed Revised Sandy Bay Ojibway First Nation Band Custom Election Act Regulations by March 31, 2003."
[A.B. vol. 1, p. 97]
[6] On February 13, 2003, the Executive Director of the First Nation sent the following letter to the Department:
It has been a number of weeks since we started the election regulations revision process for the Sandy Bay Ojibway First Nation.
Our working committee has advised us that it is very difficult to make continued progress due to constant interruption by a small number of people. Due to this circumstance there are many people who are unwilling to attend and participate in the process.
Because of the continued frustration encountered we propose to conduct further workshops on the reserve by area and invitation to family and community groups. We will also request that several agencies participate in individual workshops to get their participation and opinion.
We feel that further workshops that are open to all areas and participants will only result in frustration and confrontation. Once we have met with and received response and participation of a good representation of the community, a referendum will be organized and voted upon by the community.
[A.B. vol. 1, p. 99]
[7] On February 25, 2003, counsel for the Chief and Council informed the Minister that
"The Chief and Council have not been able to meet [his] deadline of February 14, 2003"
and suggested "March 31, 2003 as the target date" (A.B. vol. 1, p. 101).
[8] On February 26, 2003, the Minister sent the following letter to the Chief and Council. This letter is the decision attacked in these proceedings:
This is to advise you that I have not received confirmation from the Sandy Bay First Nation that the election regulations have been remedied and the stalemate resolved. Rather, I understand that the stalemate continues and the regulations remain flawed. As you are aware, in my letter dated December 13, 2002, I had provided you an opportunity to resolve these issues by February 14, 2003. In January 2003, departmental officials again committed to provide you with funding to amend the regulations. This has been an ongoing problem since 1998. To date no tangible progress has been made. You have asked that I postpone the February 14, 2003 date for a resolution of this problem. I see no basis to conclude that any extension of this date would be useful. The history indicates that the opposite is true. Therefore, I cannot accede to your request.
I hereby give notice that I am invoking my authority under section 74(1) of the Indian Act which states: "Whenever he deems it advisable for the good government of a band, the Minister may declare by order that after a day to be named therein the council of the band, consisting of a chief and councillors, shall be selected by elections to be held in accordance with this Act."
As of this date, a third party manager will be appointed to administer programs and services on behalf of the Department of Indian and Northern Affairs Canada to the membership of the First Nation.
[A.B. vol. 1, p. 103]
[9] An application for judicial review of the Minister's decision was then filed. It seeks the following relief:
(i) a declaration that Sandy Bay is not in default of its obligations to INAC to complete the revision of its Band Custom Election Regulations of 1974, ("the Regulations") by February 14, 2003, and that there is no legal or equitable ground to invoke Section 74(1) of the Act to suspend the office of chief and council and to hold an election of chief and council of Sandy Bay pursuant to Section 74 of the Act;
(ii) a declaration that the actions of INAC against Sandy Bay are contrary to the principles of natural justice;
(iii) a writ of certiorari quashing the decision of INAC to invoke Section 74(1) of the Act to suspend the authority of Chief and Council of Sandy Bay and to conduct an election of Chief and Council under Section 74 of the Act;
(iv) a writ of certiorari quashing the decision of INAC to impose third party management on Sandy Bay;
(v) a writ of mandamus requiring INAC to negotiate in good faith and complete an agreement with Sandy Bay respecting the revision of the Regulations; ...
[A.B. vol. 1, pp. 15-16]
[10] The application with respect to the holding of the election on June 16, 2003 was heard on an expedited basis on June 12, 2003. The hearing with respect to the appointment of a third party manager was adjourned sine die. At the beginning of the hearing, Rouleau J. reminded the parties that
"... my directions were that I would issue a decision without reasons. There may be a few verbal reasons but I don't intend to sit back and reserve on this."
[Transcript, pp. 1-2]
Counsel for the appellant agreed:
And that's perfectly satisfactory with us. We understand that.
[Transcript, p. 2]
[11] At the conclusion of the hearing, Rouleau J. rendered an oral decision. The relevant extracts are as follows:
... I'm going to try and find a practical solution to your problems. I have heard enough of these matters across the country now for the past 22 years, and there's no doubt that here we have a Band council that elects by way of custom. And they themselves chose to adopt within their custom a procedure that would allow for election appeals. Now the procedure that they have adopted required, I think, the appointment of people that were almost impossible to get to act in the appeals process, and this was the major problem I would suspect.
The next problem is there's no doubt in my mind, that the Chief is not co-operating one bit, and it's good for his own Band and for his own community that this thing should not have been rectified many years ago. Now I don't want to comment with respect to the Minister's decision, because I think that what he has adapted here, perhaps drastic in the circumstances, but necessary, but I think on the other hand, to let the Minister's decision go ahead at this stage is depriving the Band of electing it's own council as it chooses according to its custom, every two years, because what the Minister's really doing here, he set aside a valid election that occurred last November, September without considering I think, all the consequences by putting them under 74.
So I'm proposing the following. I'm going to stay the Minister's Order. I have the power under 18(3) to restrain. I'm going to restrain and stay the Minister's Order that the Band council shall within 30 days draft an appeal process that within the next 30 days it be publicized and it should go to referendum before the Band members as a whole. The failure to comply, the Minister's Orders will be restored and an election shall take place on the second Monday of September, 2003.
Now this is for the good of everybody. It's for the good of the Band, it's for the good of the council, it's for the good of the Minister, and I think it's the only sensible solution. There has to be a resolution of this matter, and I think that's the only thing that makes sense to me at this stage.
[Transcript, pp. 95-97]
I'm staying the effect of the Minister's Order, that's what I'm doing. I'm restraining it under 18(3), and I think that's the only sensible solution. It'll force the Band to do something. If not, they'll kick them out come September. So they have 30 days in which to provide a proper appeals procedure with some bite to it I'm hoping, so that the people who are going on this appeal committee have a right to enquire and look into matters. And then 30 days after that, it's put to the membership by way of a referendum, and it's got to be advertised and circulated as soon as it's passed by the Band.
[Transcript, p. 98]
... All I'm doing is staying the Minister's Order so that they remain in office, but they've got to follow these instructions or if they don't, the Minister's Order will be restored, and I'm setting the election now for the second Monday in September.
[Transcript, p. 99]
Mr. Forbes: Mr. Justice Rouleau, in the event that there's a problem between now and September for example -
The Court: Right.
Mr. Forbes: - are we able to come back before you?
The Court: I'm around, but officially I'm not sitting. The only problem I can see is to get some agreement on how this appeal process should be drafted, okay? Now I think you take the best of what the Indian Affairs rules provide for appeals and work them in. The only thing that would need to be brought up to date is part of the appeals process and get them to do their job. Because to have somebody from Indian Affairs and the RCMP to be on the appeals process does not make sense. No wonder that Mrs. Houle couldn't get a committee together if none of these people are going to accept and participate.
Mr. Davis: The Band has that in their draft code already.
The Court: If there's a problem, it will be of the Band's own, Band Council's own creation, because all I'm directing them to do is provide a process whereby appeals processes are going to be met. And if you can't instruct them, somebody should be able to. There's a draft here that doesn't look too bad to me. And they've got 30 days in which to make any amendments and changes. And if they don't in 30 days and publicize it thereafter, and have a referendum on it within their own population, my stay Order is set aside and the election proceeds on the second Monday of September. I hope that brings this thing to a close once and for all.
Mr. Forbes: I have one more question, Mr. Justice Rouleau. In the event that the referendum fails, what would happen in that event?
The Court: That's another problem. But why wouldn't they want an appeals process? Why wouldn't they vote for it? Does it make any sense that they would vote against their own appeals process? It doesn't make sense.
[Transcript, pp. 101-103]
[my emphasis]
[12] This oral order was confirmed in writing on June 13, 2003 (A.B. vol. 1, p. 8). The formal order reads as follows:
By letter dated February 26, 2003, the Minister of Indian Affairs and Northern Development advised the Chief and Council of the Sandy Bay Ojibway First Nation that in light of their failure to remedy their election regulations he invoked his authority under subsection 74(1) of the Indian Act that a new chief and councillors were to be elected pursuant to and in accordance with the Indian Act and regulations made thereunder and determined that an election is to be held June 16, 2003. The Minister's directive set aside a valid and duly elected Council.
In the same letter the Minister advised that as of that date a third party manager was to be appointed to administer programs and services on behalf of the Department to the membership of the Sandy Bay Ojibway First Nation.
Subsequent to the letter, an Order in Council was proclaimed on March 27, 2003 confirming the Minister's actions.
Thereafter the applicants herein initiated proceedings by way of a judicial review application and sought a hearing before this Court on an urgent basis.
Pursuant to an order dated May 23, 2003, the two issues arising out of the decision of the Minister dated February 26, 2003 were bifurcated in that the Court was to entertain on an urgent basis at Winnipeg on June 12, 2003, an application to either vary or set aside the Minister's directive that an election be held on June 16, 2003 in accordance with the Indian Act and the regulations thereunder. The issue with respect to third party management imposed by the Minister was to be determined at a later date.
The Court entertained this application at Winnipeg on June 12, 2003 and rendered an oral decision which is now being confirmed in writing. Pursuant to the discretion granted the Court under paragraph 18(3)(b) of the Federal Court Act, the Court is hereby restraining the Minister from imposing an election of a new Chief and Band Council on June 16, 2003 upon the following terms and conditions:
That the Sandy Bay Band Council be granted 30 days from June 12, 2003 to draft an Election Appeals Process which has been lacking for a number of years;
That within 30 days thereafter the drafted Appeals Process shall be distributed among members of the Band at large and advertised; that a referendum be conducted within the 30 day period following the advertisement and distribution;
Failure to comply, the Minister's directive shall be restored and be in full force and effect and an election for the Chief and Band Council shall be held in accordance with the Indian Act and regulations on September 8, 2003;
This order does not set aside the Minister's decision and more particularly it does not interfere with the directive with respect to third party management appointed to administer programs and services on behalf of the Department of Indian Affairs and Northern Development to the membership of the Sandy Bay Ojibway First Nation. The Chief and Council are empowered to meet in order to comply with this order for the purpose of drafting an Election Appeals Process.
[A.B. vol. 1, pp. 8-11]
[13] Clarifications of the Order were sought by the appellant on June 16, 2003 and on June 19, 2003. None of these related to the holding of the referendum or to its effect. The appellant otherwise accepted the terms of the Order and undertook the steps necessary to comply with it. An appeal process was drafted and publicized. A referendum was held on July 28, 2003. A majority of the members of the First Nation rejected the draft appeal process proposed by Council.
[14] On July 29, 2003, the Honourable A.C. Hamilton, who had been appointed as Independent Elections Officer to supervise the referendum, prepared his report on the referendum. The report contains the following paragraph:
16 people told the poll clerks they did not understand the ballot and they were referred to me. I showed them the existing by-law provision for an appeal board and pointed out that those named either no longer existed or did not want to be involved in the election process. I then went over the wording on the ballot and told them their choice was between amending the by-law to provide for an appeal board made up of band members or having the election and election appeals run by Indian Affairs. I said to mark YES if they wanted a local appeal board and to mark NO if they wanted Indian Affairs.
[A.B. vol 5, p. 1427]
[15] On August 5, 2003, counsel for the Minister filed a letter with the Registry which she wished be brought to the attention of Rouleau J. Here are relevant extracts:
On July 31, 2003, the Applicants provided our office with a copy of the final "Report on Referendum" [...]. The results of the referendum evidence that more than fifty percent (50%) of the Sandy Bay electorate do not support nor have they ratified the Custom Code in its revised form. As a consequence, the evidence does not support a conclusion that the members of Sandy Bay have been able to resolve the custom appeal process by a broad consensus.
Counsel for the Applicants have advised that in their view the Applicants have complied with the June 13, 2003 Order, such that regardless of the referendum results, the Minister's decision under ss. 74(1) of the Indian Act, remains indefinitely stayed.
On February 26, 2003, the Minister, according to the legislative power conferred upon him pursuant to ss. 74(1), deemed it advisable for the good government of Sandy Bay that the "council of the band" shall be selected by elections held in accordance with the Indian Act. For the purpose of giving effect to ss. 74(1), the Governor in Council pronounced the Sandy Bay Band Council Method of Elections Regulations. Following the publication of these regulations, the department then set the election for June 16, 2003.
By Order dated June 13, 2003, the court restrained "the Minister from imposing an election of a new Chief and Band Council on June 16, 2003", thereby enabling the electorate of Sandy Bay a final opportunity to resolve and ratify a revised custom appeal process by way of referendum. The June 13, 2003 order also made it clear that "this order does not set aside the Minister's decision".
In accordance with the Order of June 13, 2003, which scheduled an election for September 8, 2003, it is, in the circumstances, the intention of the Department of Indian Affairs and Northern Development to proceed with the said election.
[A.B. vol. 5, pp. 1424, 1425]
[16] On August 20, 2003, in reply to the Minister's counsel's letter dated August 5, 2003, Rouleau J. issued the following directive:
I wish to acknowledge receipt of correspondence from counsel representing the Minister of Indian and Northern Affairs dated August 5, 2003. In light of the report on referendum which was provided by the Honourable A.C. Hamilton, Independent Elections Officer, it is apparent that the applicant Sandy Bay Ojibway First Nation have rejected the proposed amendment to the Band's custom Elections Regulations.
My Order of June 13, 2003 is not ambiguous and the election should proceed as directed on September 8, 2003 in accordance with the Indian Act and Regulations as directed by the Minister in his letter dated February 26, 2003.
[A.B. vol. 5, p. 1429]
[17] On August 23, 2003, the First Nation filed a Notice of Appeal with respect to the Court Order dated June 13, 2003. The filing was done within the time limits set out in paragraph 27(2)(b) of the Federal Courts Act as days in July and August are not to be counted. It is doubtful, though, that the appellant could still by then challenge the validity of the Minister's decision, as it had attempted to comply with Rouleau J.'s decision. The appeal, I suspect, relates more to the direction issued by the Judge on August 20, 2003. Be that as it may, I will treat these proceedings as if the appellant was not estopped from attacking the Minister's decision.
[18] On September 5, 2003, I dismissed a motion for a stay of the Court Order dated June 13, 2003 and for an order enjoining the Minister from proceeding with the September 8, 2003 election (2003 FCA 328). Counsel for the Minister had agreed at the hearing on September 5, 2003 that, should the appeal proceed, the Minister would not argue mootness and that, should the appeal be allowed, the First Nation would be restored to the position it was in before the September 8, 2003 election.
[19] The election was held on September 8, 2003. A new Council was elected. It was allowed to participate in these proceedings as an intervener on December 10, 2003.
The arguments
[20] Counsel for the appellant essentially argues that the Order was clear, that the First Nation complied with it in drafting an appeal process and holding a referendum, that the Minister's order dated February 26, 2003 had been permanently stayed by the holding of a referendum whatever its results, that the September 8, 2003 election was null and void and that the Council elected on November 19, 2002 should be restored.
[21] As the argument goes, Rouleau J. never formally ruled on the certiorari which had been sought by the appellant and this Court should now rule on it and grant it on the basis that the Minister's decision dated February 26, 2003 was patently unreasonable. In addition, counsel submits, rules of procedural fairness were infringed, the Minister's decision having been made prior to the expiration of the deadline which, according to counsel, had been extended to March 31, 2003.
Relevant legislation
[22] Subsection 74(1) of the Indian Act reads as follows:
| 74. (1) Whenever he deems it advisable for the good government of a band, the Minister may declare by order that after a day to be named therein the council of the band, consisting of a chief and councillors, shall be selected by elections to be held in accordance with this Act.
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74. (1) Lorsqu'il le juge utile à la bonne administration d'une bande, le ministre peut déclarer par arrêté qu'à compter d'un jour qu'il désigne le conseil d'une bande, comprenant un chef et des conseillers, sera constitué au moyen d'élections tenues selon la présente loi.
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Analysis
[23] The Order and Reasons for Order appear ambiguous at first blush. However, when read in context, it is clear that the purpose and effect of the Order was to give the appellant a last chance to adopt a workable appeal process within its own custom, failing which the stay of the Minister's decision would be lifted and the certiorari denied.
[24] The whole purpose of the exercise held before Rouleau J. was to resolve the impasse resulting from the absence of a workable appeal process. The learned Judge was of the view that before holding an election and taking the appellant out of its customary electoral system, a remedy he found to be "perhaps drastic in the circumstances but necessary," the First Nation should be given the opportunity, through a referendum, to define for itself a new appeal process. The referendum was but the means to achieve the end result, i.e. a new appeal process. It is implicit, in that context, that in ordering the holding of a referendum, the learned Judge was ordering the holding of a referendum which would result in a new appeal process being approved and put in place. The Hamilton Report is evidence that this is how the Judge's Order was interpreted and understood by those concerned.
[25] One also has to remember that the hearing before Rouleau J. had been expedited and that the Judge himself had alerted counsel that, as the election was to be held in four days, he had no time to reserve. Everyone knew what the issues were. Everyone knew or should have known what it was that the Judge was seeking to achieve. Everyone knew or should have known that should the less drastic remedy ordered by the Judge fail, the more drastic remedy chosen by the Minister would be applied. In these circumstances, the microscopic reading of the words used by Rouleau J. suggested by the appellant is unwarranted and would distort their true meaning.
[26] I conclude that the impugned Order dated June 13, 2003 is an order staying the Minister's decision to hold an election on June 16, 2003 pending the holding of a referendum leading to the adoption of a workable appeal process, combined with an order confirming the Minister's decision should no workable appeal process be adopted and denying the certiorari. This is precisely what Rouleau J. confirmed in his August 25, 2003 direction. It will be useful to add that a judge, in an application for judicial review under section 18.1 of the Federal Courts Act, has full discretion to order the remedy or to impose the conditions that he considers to be appropriate in the circumstances.
[27] What remains to be seen is whether Rouleau J. erred in a reviewable way in deciding as he did.
[28] Dealing first with the alleged extension by the Minister of the February 14, 2003 deadline, I find no fault in Rouleau J.'s decision that there was no such extension granted by the Minister. The uncontradicted evidence of the Regional Director Lands and Trusts Services of the Department, Mr. Egan, is that he was asked by the Council, on December 23, 2000, to extend the deadline and that he
"advised them that only the Minister had the authority to extend the deadline he had set, and that if they wanted an extension they should write to the Minister, request an extension, and propose a process by which the difficulties with their Custom Regulations could be remedied."
[A.B. vol. 4, p. 957]
For the appellant now to rely on a date found on a proposed and unsigned amendment routinely sent on January 31, 2003 by an officer of the Department (see above, para. 5), is to ignore Mr. Egan's advice, to ignore the letter sent by its Council to the Minister on February 25, 2003 (see above, para. 6) in which it is recognized that the Chief and Council had been unable to meet the Minister's deadline of February 14, 2003 and to ignore the very words of paragraph (i) of the appellant's application for judicial review (supra, para. 8), which seek "a declaration that Sandy Bay is not in default of its obligation to [the Department] to complete the revision of its Band Custom Election Regulations of 1974 by February 14, 2003" (my emphasis).
[29] Dealing now with the exercise of the Minister's discretion, it is common ground between the parties that the standard of review to be applied by Rouleau J. was that of patent unreasonableness. I am satisfied that Rouleau J. applied the proper standard and made no palpable or overriding error in finding that there was evidence upon which the Minister could be satisfied that the time had come for him to exercise his discretionary powers under subsection 74(1) of the Indian Act. The impasse was subsisting, the Chief was not cooperating and time was running out for the appeal process to be determined through custom. The fact that Rouleau J. made a last attempt to save the band custom can in no way be seen as a condemnation by him of the Minister's decision or a finding by him that the Minister's decision was patently unreasonable. The fact that the remedy chosen by the Minister was "perhaps drastic" does not make it patently unreasonable. Indeed, Rouleau J. found the remedy to be "necessary" but, in an attempt to be pragmatic, he tried to avoid what ended up being inescapable, i.e. the implementation of the very remedy chosen by the Minister.
[30] The appellant suggests that the Minister failed to apply his own written policy which states that recourse to section 74 should only be had "as a last resort, in a situation where a community is in chaos and it is impossible to get agreement to mediation or arbitration" (A.B. vol. 1, p. 29). Section 74 confers a discretion upon the Minister, which he is to exercise "whenever he deems it advisable for the good government of a band." That discretion cannot be constrained by a policy prepared by senior management. The policy may represent the management's view as to the circumstances in which the discretion may appropriately be exercised, but it cannot bind the Minister. In any event, I would not be prepared to find that the Minister had failed to apply the policy. He could well have formed the opinion that there were no other practical options left, as the democratic process had been for many years, and still was, in jeopardy.
Disposition
[31] The appeal should be dismissed, without costs in the circumstances as there is no point imposing on the presently duly elected Council and the members of the First Nation costs incurred by the previous Council.
"Robert Décary"
J.A.
"I agree.
Gilles Létourneau, J.A."
"I agree.
J.D. Denis Pelletier, J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-392-03
(APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED JUNE 13, 2003,
DOCKET NO. T-368-03).
STYLE OF CAUSE: Sandy Bay Ojibway First Nation et al v. Her Majesty the Queen et al
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: June 2, 2004
REASONS FOR JUDGMENT: Décary J.A.
CONCURRED IN BY: Létourneau J.A.
Pelletier J.A.
DATED: June 11, 2004
APPEARANCES:
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Harvey Pollock
Wayne Forbes
Winnipeg, Manitoba
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FOR THE APPELLANTS
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Glynnis Hart
Darrin Davis
Department of Justice
Winnipeg, Manitoba
Norman Boudreau
Winnipeg, Manitoba
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FOR THE RESPONDENTS
FOR THE INTERVENER
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SOLICITORS OF RECORD:
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Pollock & Company
Barristers and Solicitors
Suite 1120 - 363 Broadway
Winnipeg, Manitoba R3C 3N9
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FOR THE APPELLANTS
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Morris Rosenberg
Deputy Attorney General of Canada
Booth Dennehy
Winnipeg, Manitoba
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FOR THE RESPONDENTS
FOR THE INTERVENER
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