Docket: T-978-16
Citation:
2017 FC 364
Ottawa, Ontario, April 12, 2017
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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ERIC SHIRT,
SHANNON HOULE, VALERIE STEINHAUER, AND GREG CARDINAL
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Applicants
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and
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SADDLE LAKE
CREE NATION, SADDLE LAKE CREE NATION APPEAL COMMITTEE AND RON LAMEMAN,
ELECTORAL OFFICER FOR SADDLE LAKE CREE NATION
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Respondents
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JUDGMENT AND REASONS
I.
Introduction
[1]
Eric Shirt, Shannon Houle, Valerie Steinhauer
and Greg Cardinal [the Applicants], challenge a decision by the Saddle Lake
Cree Nation [SLCN] which removed each of the Applicants’ nomination for Chief
and Council of the SLCN. For the reasons that follow. I am granting the
application and sending their eligibility determinations back to be
re-determined.
II.
Background
[2]
The SLCN is a “band”
as defined by the Indian Act, RSC 1985, c I-5 [Indian Act]. It is
a Treaty 6 nation, located in eastern Alberta. Their official language is Cree
and their elections are carried out in accordance with the Saddle Lake Tribal
Custom Elections Regulations [the Election Regulations]. The Election Regulations
were taken from band meetings held in 1955 and 1960.
[3]
This Court would prefer not to interfere with the
democratic process of the SLCN out of respect for their right to determine their
own elections. However, sometimes it is necessary and it can be helpful to hear
what you already know. The Election Regulations have not changed since 1960 and
though they may have been sufficient at the time, they are certainly lacking
now.
[4]
The Federal Court has supervisory jurisdiction
over the election process including electoral bodies such as an appeal
committee and electoral officers (Algonquins of Barriere Lake v Algonquins
of Barriere Lake (Council), 2010 FC 160 at paras 105-106).
[5]
On March 8, 2016, an “election
committee” was appointed by then Chief Leonard Jackson. On or about March
15, 2016, SLCN Chief and Council contracted Ron Lameman of Beaver Lake Cree
Nation to act as electoral officer for the 2016 election. The election committee
was selected to assist him in the 2016 election. Notice of a nomination meeting
was made and then held on June 1, 2016, overseen by Ron Lameman.
[6]
After the nomination meeting, a deadline for
submitting eligibility protests was set for June 7, 2016. Several written protests
were submitted relating to nominated candidates who allegedly did not meet the
requirements of the Election Regulations. The written protests were all given
to the election committee. Despite being the electoral officer in charge, Ron
Lameman took no part in deciding candidate eligibility.
[7]
The election committee met on June 6 and 7,
deciding to remove the Applicants from the official candidates list. The
Applicants allegedly failed to meet residency requirements or were in a
common-law marriage in contravention of the Election Regulations. No decision
or reasons were provided to the candidates. The official candidates list
(without the names of the Applicants) was posted later in the day on June 9,
2016.
[8]
The election committee met with Greg Cardinal,
but his submissions were not considered as the official candidates list had
already been sent to the printers. Eric Shirt wrote a letter to Chief, Council
and the election committee which was dated June 10 and emailed on June 13, 2016.
He did not receive a reply. Shannon Houle, who was running for re-election,
protested her removal from the list as well. Her nominator, Dr. James Makokis, wrote
asking for an explanation on June 9, 2015. No consideration was given to these
submissions as the official candidates list was already sent for printing.
[9]
The responses from Ron Lameman uniformly stated
that any questions should be addressed and directed to the election committee. He
provided Cora Houle, Carl Cardinal and Lena Cardinal’s contact information to
anyone that had inquired or protested.
[10]
Elections were held for the positions of
Councillor on June 15, 2016, and election for Chief was held on June 22, 2016.
III.
Issues
[11]
The points in issue as presented by the parties
are as follows:
- Were the
decisions of the election committee procedurally fair?
- Was the election
committee properly appointed and did it have authority to make nomination
eligibility decisions?
- Were the
decisions of the election committee reasonable?
[12]
If the answer is yes to both, I will then
determine if the decisions to remove the Applicants from the election list were
reasonable.
IV.
Standard of Review
[13]
The procedural fairness and constitution of the
election committee issues will be reviewed on a correctness standard as they
involve questions of law, jurisdiction and procedural fairness (Weekusk v Thunderchild
First Nation Band Council, 2014 FC 845 at para 10; Felix v Sturgeon Lake
First Nation, 2014 FC 911 at para 35 [Felix]). The decisions to
remove the Applicants from the electoral list will be reviewed on a reasonableness
standard.
V.
Analysis
[14]
The Election Regulations are very short; consisting
of only three sections (see Appendix A). The Election Regulations do not
address many election issues before the Court including the formation of an election
committee, appointment of an electoral officer or what to do if there is a
protest of the nominations or election results.
[15]
The Applicants argue that there is no provision
for an election committee in the Election Regulations and that a Chief cannot appoint
a committee on their own. Further, the Applicants submit that the Chief
appointed the individuals to the election committee without any criteria or
mandate. The election committee then removed nominees – including the Applicants
– from the nomination list making it a reviewable matter.
[16]
The Applicants say that even if the Chief could
appoint an election committee the committee members when making their
determinations only relied on information from family members and neighbours
while ignoring statutory declarations, all of which makes their decisions
reviewable. Further contentions are that it was the electoral officer’s obligation
to take the nominations and determine their validity. The Applicants suggest
the electoral officer took no steps to address any of the nomination complaints;
instead, forwarding them to the election committee.
[17]
As well, the Applicants argue – as they
attempted to do before the election committee – that they could not be removed from
candidacy on the basis of residence since this was found to be unconstitutional
by the Supreme Court of Canada (Corbiere v Canada (Minister of Indian and
Northern Affairs), [1999] 2 S.C.R. 203). It was equally advanced that the bar
on common-law relationships is a Charter breach and therefore cannot be used to
make a candidate ineligible.
[18]
The Election Regulations indicate that anything
not covered by the regulations is governed by sections 74-78 (formally ss.
73-78 of RSC 1952) of the Indian Act. Therefore, the Applicants argue
that under “Special Nomination Meeting Procedures”
of the Indian Band Election Regulations, CRC c 952, which is expressly
included in section 75(1) of the Indian Act, their nominations were
valid and improperly removed.
[19]
The Applicants submit that they were eligible since
Shannon Houle was a Councillor from the previous term and swore a statutory
declaration that she was a resident. Despite this, the decision makers failed to
contact Ms. Houle and removed her name without further evidence. Similarly, an
allegation was made that Valerie Steinhauer was in a common-law marriage
contrary to the Election Regulations and that the electoral committee failed to
contact Ms. Steinhauer. The only evidence presented to validate the allegation
against her was an unidentified man who answered the door of her residence and
a comment from Ms. Steinhauer’s mother from the patio next door stating “I told
her not to run”.
[20]
The Respondents counter that it has been
longstanding custom that the sitting Chief and Council appoint electoral
officials. Further, they say that the election committee has evolved out of
necessity to deal with nomination protests since as early as 1984 when Canada
advised SLCN that election disputes had to be resolved internally. The
Respondents argue the current custom is that an election committee decides
whether nominees meet the qualifications in the Election Regulations. They
argue this custom was established in the 2010 election.
[21]
The Respondents submitted that the situation is
analogous to Simon v Samson Cree Nation, 2001 FCT 467, in which a
nominee was removed from the candidates list despite no procedure existing to
do so. The consequence of allowing the judicial review, they say, is to allow ineligible
nominees to stand without any recourse for their removal.
[22]
The Respondents’ position was that any reference
in the Election Regulations to section 75(1) of the Indian Act has no
authority. Rather, the band’s own custom is the final authority on how band
elections are held.
[23]
The Respondents’ argument is that no objections
were made during the nomination meeting indicating that the nomination process
was held in conformity with their custom. Furthermore, the Respondents declared
it was not open to the sitting Chief and Council to postpone the election or
extend their time in office as the Applicants requested. There had to be a
method of dealing with nomination protests; the method they chose was through
the election committee and their decisions were reasonable.
[24]
According to the Respondents, the election
committee attempted to contact each of the named Applicants upon receiving
letters of protest against them. Two of the Applicants (Shannon Houle and
Valerie Steinhauer) were given notice. The other two Applicants (Eric Shirt and
Greg Cardinal) were made aware of the eligibility requirements and that
nominations may be subject to protest.
[25]
The Respondents advise the Court that all of the
Applicants were given the opportunity to speak with the election committee
regarding their respective protest. They refused to avail themselves of this
opportunity. The position of the Respondents is that when procedural fairness
is offered but refused, it cannot then be later claimed as unfair. The election
committee sought out and obtained information confirming the protests against
Eric Shirt, Greg Cardinal, and Valerie Steinhauer, making their decisions
reasonable.
A.
Do the Indian Band Election Regulations apply to
this band?
[26]
When Indian and Northern Affairs Canada [INAC]
was contacted regarding the SLCN election they wrote back in a letter dated
June 1, 2016. INAC indicated that their only role regarding the custom band’s elections
was the recording of the successful candidates. The last paragraph reads: “when a dispute arises concerning a community or custom
election process, it must be resolved in accordance with the related provisions
in a community’s election code, or by the courts.”
[27]
I acknowledge that this band has had election
regulations governing elections of Chief and Council for a significant length
of time. Section 74 of the Indian Act and the Indian Band Election
Regulations therefore do not apply (Bone v Sioux Valley Indian Band No
290, [1996] FCJ No 150, 107 FTR 133 at para 103 [Bone]).
B.
Unwritten election customs
[28]
The parties agree that there is no provision under
the Election Regulations for the appointment of an election committee or how criteria
of how they operate. Neither is there a provision for the roles and
responsibilities of an electoral officer. The parties further agree that the
band election customs have never been passed by a Band Council Resolution [BCR]
or a majority of the members.
[29]
The Court was provided evidence that the band
has formed an electoral reform committee in the past to amend the Election Regulations.
To date no amendments have successfully been passed by the band membership.
[30]
Past jurisprudence has confirmed that band
custom regarding band elections do not always have to be in writing. The Indian
Act “gives no guidance as to how that custom is to
be identified” (Heald DJ. in Bone, above, at para 27, quoting
Strayer J. in Bigstone v Big Eagle, [1992] FCJ No 16, 52 FTR 109).
[31]
Madam Justice Strickland has addressed on in two
recent decisions what is required to establish unwritten band customs. She
concluded that the establishment of band customs requires evidence demonstrating
that the action was “firmly established, generalized
and followed consistently and conscientiously by a majority of the community,
thus evidencing a broad consensus” (Gadwa v Kehewin First Nation,
2016 FC 597 at para 62; Beardy v Beardy, 2016 FC 383 at para 97 [Beardy],
citing Francis v Mohawk Council of Kanesatake, 2003 FCT 115 at paras
21-30; Prince v Sucker Creek First Nation #150A, 2008 FC 1268 at para
28; Metansinine v Animbiigoo Zaagi’igan Anishinaabek First Nation, 2011
FC 17 at para 28; Joseph v Yekooche First Nation, 2012 FC 1153 at paras
36-39).
[32]
In Kahkewistahaw First Nation v Taypotat,
2015 SCC 30, it was held that a First Nation can elect leaders according to
custom but it must meet certain fundamental requirements. For example, a majority
of a band’s members must recognize the custom, not just Chief and Council. The
band members must not only agree as a community to the new custom, the
community must know they have agreed. In this case the majority of the membership
would have had to agree that the Chief, acting alone, would appoint three
people to an appeal committee that would determine whether nominees met the
nomination criteria.
[33]
Further, a majority of the membership would have
had to agree that deliberation on the nominees’ qualifications would not be
shared with the nominees, they would not be allowed to respond to the
allegations against them, and they would not receive reasons as to why they
were removed from the nomination list.
[34]
The Respondents suggest that an unwritten custom
can be established if the band has conducted itself in the same way over
several elections. I agree with the proposition that a custom can be unwritten-but
I do not agree that the SLCN election committee is a custom. Using the two
components described in McLeod Lake Indian Band v Chingee, [1998] FCJ
1185, 153 FTR 257 [McLeod], the SLCN election committee has not been
repetitively created nor was it adopted through a single act (like through amendment
of the Election Regulations).
[35]
The affidavit of Finlay Moses, including a 2010
nomination meeting agenda, was submitted as evidence that the election
committee is an established custom. The agenda states that “[p]rotests on the question of candidates being allowed to
run should be presented in writing and in person.” The minutes from the
2013 nomination meeting state that the Election Regulations from 1955/1960 are
still followed. It goes on to state the following:
Any protests to any candidate if any protest
of any band member must be in writing and delivered in person and any protest
on any candidate that letter must be submitted no later than Friday, May 31,
2013. Submit to the office in envelope sealed with their name on it. Any
candidates running must bring in to any of the electoral team, Clifford, Dean
and Finlay. Criminal record check to be handed in no later than Friday at 3:00
p.m. On Election day on the counting of ballots must be done by hand.
[36]
A detailed letter, marked “Urgent”, was sent on June 13, 2016, regarding the
irregularities in the Election Regulations. It states in the first paragraph:
We, as united nêhiyawak relations, bring an
urgent matter to your attention to ensure that major issues in the Tribal
Customs Election be immediately addressed. Procedural unfairness in the current
election has created ambiguity. There is an urgent need to address these major
issues to ensure transparency and accountability. This letter spells out these
irregularities and provides compelling recommendations for resolution.
[37]
This is the latest of a number of documents regarding
band membership meetings and awareness that the Election Regulations need to be
updated. Filed as evidence are minutes of a meeting dated September 20, 1984,
where the interpretation of eligibility to be nominated was in question even
then as well as other election related uses.
[38]
Evidence is in the Certified Tribunal Record [CTR]
that an Elections Law Committee meeting was held on October 25, 2012. Many
considerations were discussed on how to move forward but the one that is
important to the matter at hand is the section headed “Appeals”.
It records as follows:
- Do we have an appeals Tribunal?
- Do we put a price tag on appeals? It
is quite a costly process
- Legal council must be sought
- For example: at Samson Cree Nation they had an appeal that cost
$750,000.00.
[39]
The evidence in the above paragraphs proves that
the band is aware and discussing election criteria which the band needs. Further
records discuss whether the SLCN should extend the duration of election terms from
three to four year and how to set criteria for the positions of Chief and
Council. The minutes include a survey questionnaire for the members in order to
update their election laws. Further notes, minutes and notices indicate the
elections committee continued discussions but no record was presented of any
change to the Election Regulations as a result.
[40]
All of this demonstrates that the band does not
have a generally accepted custom supported by a majority of the members. The
evidence shows the band is trying to develop election regulations that reflects
what the members want but that they are not there yet.
[41]
I have insufficient proof that what occurred in
this election was custom as set out in the jurisprudence. What I do have is
evidence that the election reform committee could not reach agreement on many
issues including the formation of an election committee.
[42]
Even if the Respondents prove that the election
committee has been created for several elections (which is contradicted by the
meeting minutes of the electoral reform committee mentioned in Finlay Moses’
affidavit), it fails on the second, subjective component from McLeod.
The subjective component relies on a band meeting or other means to demonstrate
that there is consensus on the new custom. There is no evidence that the SLCN membership
approved of the election committee structure used in this election. The
Respondents point to a lack of objections at the nomination meeting as a sign
of implicit approval. It is possible that the SLCN membership didn’t know what
procedures were in place to resolve nominee disputes. The meeting minutes from
the nominee meeting provide no information to confirm that protest procedures
were presented to the membership or discussed.
C.
How the appeal committee was appointed
[43]
In a letter dated June 29, 2016, the Chief wrote
“As Chief of Saddle Lake Cree nation. I did reply to a
text from Shannon Houle, as per following. ‘I appointed the committee not
Sheila cuz it was hard to get approved by council as we always ran into
difficulty getting a quorum.’” Following the letter is a hand written
note dated Moi (possibly May or March) 23, 2016 which says the acting Chief
Lenny J Jackson appointed Lena Cardinal to be a member of the election
committee. Councillor George Cardinal named Carl H Cardinal to be a member. Cora
Houle was appointed to the election committee at a March 8, 2016 band council
meeting. The CTR contains oaths of confidentiality signed by each of the election
committee members dated June 3, 2016. The oaths were witnessed by Ron Lameman.
[44]
The evidence before the Court is the Chief alone
doing the appointing of Carl and Lena Cardinal with no direction for minimum
requirements of the board’s composition (such as how many members, requirements
of an elder, etc.). On these facts there is not even any public notice of what
their role is or how they are to function or operate.
[45]
The appointment of the individuals to an election
committee by the Chief alone cannot be seen as band custom. The fact it was
done in the 2010 and 2013 elections and no one complained may be evidence of moving
towards a custom but is not a definitive answer. A majority of the band
membership must agree for there to be a new custom and the membership must know
about it. I have an affidavit from Finlay Moses who says this is SLCN custom. Again,
this is insufficient evidence that a majority of the membership approved and
knew of this custom.
[46]
There is no provision in the Election Regulations
for a “protest” of a candidate’s nomination no
less the creation of an election committee. Band members were entitled to know
the criteria, role, and process for the appointment of an election committee.
[47]
I find that the 2016 SLCN election did not
follow a custom approved by the majority of band members who knew of the new
custom. In fact the evidence is that there is no consensus of how the elections
should be governed.
[48]
The resulting situation is unfortunate as
everyone was trying to do the best for their nation. The problem is that the Election
Regulations from 1955 and 1960 are inadequate and the alleged election customs
have not developed with the support and approval of the community at large.
[49]
Even if I am wrong in the above analysis, there
were breaches of procedural fairness which I will now address.
D.
Procedural fairness
[50]
In Desnomie v Peepeekisis First Nation,
2007 FC 426 at paragraph 19, Justice Blais had a matter where the First Nation
election code did not “offer any guidance as to how
such a Council of Elders ought to have been formed, so that it cannot be
determined whether the procedure followed was in accordance with the
legislation.” He went on to find that “we must
look to principles of procedural fairness to determine whether the applicant’s
rights were violated by the Council of Elders, and whether the process followed
to create the Council of Elders raises a reasonable apprehension of bias.”
[51]
Decisions that are administrative in nature and
affect “the rights, privileges or interests of an
individual” will trigger the application of the duty of fairness (Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at p
836 [Baker], referencing Cardinal v Director of Kent Institution,
[1985] 2 S.C.R. 643 at p 653). This case involved a final administrative decision
having significant impact on rights, privileges and interests, thus procedural
fairness was required (Foster v Canada (Attorney General), 2015 FC 1065
at paras 28 and 30). The parties do not dispute that the Applicants were owed a
duty of procedural fairness; the question is the content of that duty.
[52]
To determine what procedural fairness is
necessary in this situation I could apply the factors set out in Baker,
above, at paragraphs 23-27. However, I do not believe a comprehensive Baker
analysis is required as the Federal Court of Appeal [FCA] provided guidance in Samson
Indian Band v Bruno, 2006 FCA 249 [Samson], which is applicable to
the facts before me.
[53]
In Samson, above, the trial judge
concluded that a disqualified nominee for band Council was denied natural
justice since the appeal board denied them the opportunity to be heard. The FCA
agreed that at a minimum the board should have given the nominee an opportunity
to make submissions given the importance of a negative decision to the
individual. In that case it did not mean the applicant was entitled to a full
oral hearing. However, they should have been provided an opportunity to know
the case against them and make submissions so that the board’s determination would
be based on a full and fair consideration of the record.
[54]
The law is well established that custom cannot
ignore or trump principles of natural justice or the duty of fairness (Beardy,
above, at para 126; Felix, above, at para 76). However, the content of
this duty is context specific and should include judicial respect for relevant
custom (Samson, at para 20).
[55]
As noted above, I do not have sufficient
evidence to determine that the appointment process of two election committee
members by Chief alone is custom. Even if it is custom, appointments made without
transparency or procedure for the committee to follow were procedurally unfair.
[56]
This applies equally to the procedure followed
by the electoral officer. His role was set out in a contract but had not been
agreed upon by the membership. The contract itself clearly points out that it
is the electoral officer’s role to determine who meets eligibility
qualifications in the election code. Yet the evidence is he had nothing to do
with nomination determinations as he merely forwarded all protests and concerns
to the election committee.
[57]
Just as in Samson, the Applicants here
were affected personally by the decision to refuse their nomination for Chief
or Council. The Applicants were entitled as a minimum to notice, an opportunity
to make submissions and a full and fair consideration of those submissions.
[58]
Cora Houle’s evidence is that according to SLCN custom
the protest letters are kept secret and not shared with anyone outside the
committee. She says that if a protested nominee could be contacted “[a]n opportunity was given to meet in person with the
Committee to address the grounds of protest.” She also says that the
committee made efforts to verify the protested nominees’ eligibility by
contacting other members of the community.
[59]
Cora Houle indicates that the decision to remove
the protested nominees’ names was unanimously made at meetings held June 6 and
7 at the SLCN administration building. The decisions to remove Eric Shirt,
Shannon Houle, Valerie Steinhauer and Greg Cardinal were made on June 7, 2016
shortly after noon. The official candidates list without the Applicants was posted
on June 9, 2016.
[60]
Cora Houle’s evidence is that they did not
contact Eric Shirt because they had no contact information to reach him. Cora
Houle spoke to her own sister to determine that he does “not have a house in Saddle Lake to run his business out of”.
[61]
A number of protest letters were submitted
against Shannon Houle. Cora Houle’s evidence is that the election committee told
Shannon Houle in person on June 6, 2016 that “the
committee needed to discuss her nomination.” Cora Houle’s evidence is
that Shannon Houle said she would be right there but never appeared. Her office
was locked and she refused to meet the committee.
[62]
Greg Cardinal was not contacted as they had no
contact information for him. Cora Houle indicated that another individual knew
he did not live in Saddle Lake and that she spoke to a neighbour of Greg
Cardinal’s sister. The neighbour allegedly confirmed he did not live with his
sister and so they removed his name. After the decision was made the committee
met with Greg Cardinal on June 9, 2016 and listened to his explanation.
However, since the official candidates list was already at the printers without
his name, his representations were not fairly considered.
[63]
Protests were submitted against Valerie
Steinhauer for being in a common law marriage. Cora Houle’s evidence is that
she and Carl Cardinal went to Valerie Steinhauer’s house on June 7, 2016 but
she was not at home. They left a message with a man who answered the door that
Valerie Steinhauer should call them. She called the election committee and was told
that her common-law spouse was at home when they visited. Valerie Steinhauer
then hung-up the phone.
[64]
In each of the four cases, the election
committee abdicated any alleged responsibility in favour of bare accusations. Issues
such as an inability to reach candidates can be easily fixed moving forward to
avoid some of the issues identified. When the parties are nominated they should
provide their contact information including phone, email, address or other
methods of contacting them as part of their nomination.
[65]
The election committee’s procedures for
determining the residency of Eric Shirt, Shannon Houle, and Greg Cardinal did
not meet the minimum requirements of notice, opportunity to make submissions
and a full and fair consideration of those submissions. This is a breach of
natural justice given the importance of the decision to each of the Applicants.
The ineligibility of Valerie Steinhauer was based on her common-law
relationship which I find was procedurally unfair for the same reasons as the
other three Applicants. However, she also objects to the common law requirement
as a breach of her section 15 Charter rights which I will address below.
[66]
Even if I am wrong in this, the election
committee’s complete lack of reasons leads me to believe that their negative
determinations were unreasonable. The reasons included in affidavit evidence
are so arbitrary and vague as to be meaningless.
E.
Charter
[67]
There was no evidence produced concerning
whether the Election Regulations are Charter compliant. I do not need to make
that determination as I have already found that the determinations were not
procedurally fair. I will only observe that a provision preventing nomination
for election based on marital status alone would seem to be a discriminatory
practice and unconstitutional.
[68]
Nor will I address the other issues raised by
the parties since I am granting the application.
VI.
Conclusion
[69]
This Court does not wish to interfere in
leadership determinations of any First Nation out of respect for their right to
govern their own elections. However, if a band has exhausted all internal
opportunities for a remedy, the Federal Court remains ready to assist in a
final determination.
[70]
Recognition of new customs through membership
consensus or amendment of the Election Regulations is required. The membership
must know how Chief and Council are elected.
[71]
I was asked by the Respondents whether I would
stay my determination until the next band election in 2019 should the
application be granted. There remains an underlying belief by the Respondents that
the same problems will occur if I send the application back for a new election.
I disagree. I have faith in the Saddle Lake Cree Nation that they will craft
and implement a transparent, procedurally fair, and unbiased nomination and
election process given their experience overseeing their own elections for more
than 60 years.
[72]
The decision to remove the Applicants from the
official candidates list is quashed. Because the integrity of the nominee
process was undermined, their eligibility must be properly determined. If any
of the Applicants are deemed eligible, a new election must be held.
[73]
I observe that an electoral officer has been
hired as the designated person overseeing band elections and his contract of
employment specifies he is to determine eligibility of nominees. A strong case
would be made that the electoral officer could make eligibility decisions as
was the outcome of Samson. I would suggest that it could be reasonably
open to the Chief and Council to have the electoral officer determine disputes.
If this is the case, the electoral officer’s authority to do so should be
explicitly contained in meeting minutes and/or a BCR with the entire membership
knowing the procedures and his role and responsibilities.
[74]
In the alternative – and much more reliably –
the band by majority can decide on criteria for the composition of an election
committee including how they are appointed, by whom, for how long, their duties,
and a procedure to follow regarding nomination disputes as well as other
electoral disputes. Then notice of the procedure to be followed must be given
to the band members.
[75]
I am not directing how the election regulations
are to be structured and these are only guiding principles for the membership
that will determine the way to hold their election.
[76]
If a new election must be held, it must be done
in accordance with the Election Regulations and/or a custom that has the
support of the majority of band members. Any process chosen by the band must be
procedurally fair including a transparent process known to all members. If a
nominee is protested they must be notified and given an opportunity to respond.
Any decision to remove a nominee due to a protest must be made by an unbiased
decision maker(s) who gives full and fair consideration to the protest and
nominee’s submissions. Since none of these processes are currently defined in
the Election Regulations they must either be amended to reflect the above or a
custom must be approved by a majority of the band membership. The current Chief
and Council will remain in place until and if the new election is needs to be held
because one or more of the applicants become eligible.
[77]
Both parties sought costs. The Respondents
provided me another election case where costs in the amount of $10,000.00 were
awarded on the basis that it was in the public interest. The Applicants
strenuously disagree that $10,000.00 was appropriate given there has never been
a challenge to the Election Regulations before and to award that amount would
be inequitable.
[78]
I will award a lump sum of costs. It is
remarkable that for as long as the Election Regulations have been used that
this is the first dispute that could not be resolved by the SLCN. That bodes
well for the future of the band coming to an agreement on new election
regulations. This was a matter of public interest but the Applicants had costs
to bring the matter forward and their costs were not reimbursed by the band. I
will award costs in the total amount of $2,000.00. The total costs ($2,000.00)
are to be divided in equal shares to each of the Applicants and are to be payable
forthwith by the respondent to each Applicant separately.
APPENDIX A
SADDLE LAKE TRIBAL CUSTOMS
THE FOLLOWING HAS
BEEN TAKEN FROM THE MINUTES OF THE BAND MEETINGS HELD ON THE SADDLE LAKE
RESERVE IN 1955 AND 1960. ALL AREAS NOT COVERED BY THE OUTLINE HEREIN SHALL BE
COVERED UNDER THE INDIAN ACT, AS SPELLED OUT IN SECTION 73 TO 78.
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Section (1):
Eligibility for Nomination:
(a) No person who is a Civil Servant shall
be eligible to be nominated.
(b) No person can be nominated for an
election if absent, unless he/she has signified in writing his/her acceptance of
the nomination.
(c) No person living in a Common Law
marriage shall be eligible for nomination.
(d) No person who maintains his/her home off
the Reserve shall be eligible for nomination. (If he/she has his/her main place
of residence or his/her family on the Reserve and works off the Reserve, he/she
shall become eligible. However, he/she is allowed to miss only one regular
meeting except for illness.
(e) No person convicted under the Criminal
Code of Canada shall be eligible for nomination.
(f) No person under the age of 21, as of the
day of the nomination, shall be eligible to nominate or be nominated.
(g) No nomination is valid without a
seconder.
Section (2):
Voting Regulations:
(a) Any Band member, over the age of 21
years, on the day of the election, whether living on the Reserve or not, shall
be eligible to cast a vote; with the exception of Red Ticket Indians.
(b) Residents of the Goodfish Lake Reserve
shall not be allowed to vote for Chief or Councillor on the Saddle Lake
Reserve.
(c) Residents of the Saddle Lake Reserve
shall not be allowed to vote for Chief or Councillor on the Goodfish Lake
Reserve.
(d) A person who is not a resident of either
Reserve, but who is a member of the Band, may vote once on the Reserve of
his/her choice.
Section (3):
Election Procedural Regulations:
(a) Chief and Councillor are elected for a
three-year term.
(b) There shall be nine Councillors for the
Saddle Lake Reserve.
(c) There shall be four Councillors for the
Goodfish Lake Reserve.
(d) The election of the Chief shall be held
pursuant to the election of the Councillors and the Chief shall come from among
the elected Councillors.
(e) There shall be an interpreter* (one for
the Saddle Lake Reserve and one for the Goodfish Lake Reserve) appointed at a
Band meeting for both the nomination and election days.
(f) A Councillor or Chief guilty of improper
conduct who has had a petition requesting his/her removal, signed by 60& of
the resident members of the Reserve, shall be so dismissed by the Encumbent
Electoral Officer and a bi-election shall be called to fill the vacancy.
(g) The District Supervisor is the permanent
Electoral Officer and it shall be his responsibility for the calling of
elections at the end of each three-year term. His method of conducting
nomination meetings (except for the closing of it), the secret ballot, the
opening, closing, and counting of the ballots shall be the same as set forth in
the Band Election Act, Section 73, of the Indian Act, as long as they do not
conflict with any regulations, rules or ordinances passed by the Band. The
Electoral Officer is authorized to appoint Poll Clerks, and authorized to pay
the cost of the election from Band funds after the count has been submitted to
Council and approved.
* Interpreter: shall be a person who
can effectively interpret from the Cree language into English language and from
the English language into the Cree language. This person shall not be a member
of the Saddle Lake Band. He/She shall be paid at a rate set by the Band
Council.
Special Nomination
Meeting Procedures
No person other than
an elector who resides in a section may be nominated for the office of
councillor to represent that section on the council. Indian Act. Section 75,
sub, “1”.
No person may be a candidate for election as
chief or councillor unless his name is set in nomination and seconded by
persons who are themselves eligible to be nominated. *Indian Act Section 75,
sub “2”, R.S., c 149, s 74.
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