Date: 20030514
Docket: T-875-99
Citation: 2003 FCT 596
BETWEEN:
MICHAEL OMINAYAK, JAMES OMINAYAK, BETSY OMINAYAK,
PAUL OMINAYAK, KIM OMINAYAK, EDNA OMINAYAK, DENISE
OMINAYAK, VIOLET OMINAYAK, TRUDY WHITEHEAD, VERONICA
WHITEHEAD, MARINA CARDINAL, NORA LABOUCAN, JUNE
OMINAYAK, IDA CHRISTIAN, HARVEY RIVARD, GLORIA
OMINAYAK, GLADYS CALLIOU, MARTHA OMINAYAK, EDITH
RIVARD, PETER CALLIOU, SONIA HAMELIN, LORNA HAMELIN,
ELSIE HAMELIN, LORI AUGER, LORNA VERHAGE, DELMA
SUPERNAULT, MARLENE SUPERNAULT, DENNIS LABOUCAN,
HELEN CALLIOU, MARINA CALLIOU (GLADUE), BILLY JOE
LABOUCAN, BARB OMINAYAK, JUANITA LABOUCAN, KENNY
LABOUCAN, YVONNE BUC, RICHARD SUPERNAULT, DARCY
OMINAYAK, VIOLA SUPERNAULT, VERNA SUPERNAULT, ISABEL
SUPERNAULT, AUGUST SUPERNAULT, BRIAN SUPERNAULT,
MELVIN OMINAYAK, LISA OMINAYAK, GERALD LABOUCAN,
BRIAN LABOUCAN, DALE LABOUCAN, RAMONA LABOUCAN,
RALPH LABOUCAN and CORRINE LABOUCAN,
Plaintiffs
(Applicants)
- and -
SHARON VENNE, in her capacity as RETURNING OFFICER for the
LUBICON LAKE INDIAN NATION ELECTION HELD ON APRIL 25TH, 1999
and CHIEF AND COUNCIL OF THE LUBICON LAKE INDIAN NATION
Defendants
(Respondents)
REASONS FOR ORDER
DAWSON J.
[1] On April 25, 1999, the Lubicon Lake Indian Nation held an election for the positions of Chief and Band Councillors. During the course of the election the Chief Electoral Officer, the respondent Sharon Venne, determined that 32 individuals were ineligible to vote. It is alleged in this application for judicial review that in so declaring the Chief Electoral Officer erred. In consequence, the applicants seek an order:
i) setting aside the election;
ii) declaring that they were on April 25, 1999 members of the Lubicon Lake Indian Nation and entitled to vote in the election;
iii) setting dates for a nomination meeting and a new election;
iv) directing the appointment of a Chief Electoral Officer and directing the said Chief Electoral Officer to prepare a voters list to be used at the election; and
v) directing the new election to take place by secret ballot.
[2] This relief is sought on the following grounds:
i) the Chief Electoral Officer erred by disqualifying eligible voters;
ii) the Chief Electoral Officer erred by allowing individuals to vote who were not qualified to vote; and
iii) the Chief Electoral Officer was biased in her application of the rules relating to the eligibility of voters.
BACKGROUND FACTS
[3] Prior to the election of April 25, 1999 a group of Lubicon Lake Indian Nation members had unsuccessfully petitioned the Minister of Indian Affairs and Northern Development for the formation of a new band to be called the Little Buffalo Cree Band. This was to be a break-away band from the Lubicon Lake Indian Nation.
[4] In September of 1996 a number of the applicants in this proceeding commenced a proceeding in this Court ("the 1996 proceeding") seeking, among other things, a declaration that they were an Indian Band as defined under the Indian Act, R.S.C. 1985, c. I-5 and a declaration that the Federal Minister acted unlawfully by failing or refusing to approve their application to form the Little Buffalo Cree Band.
[5] It is admitted that in an affidavit sworn in 1996 and filed in this Court Michael Ominayak swore that:
"In September of 1994 the Applicants and I decided to form a new Indian Band called the Little Buffalo Cree Band. I have always understood that it is our right under Treaty 8 to choose who we wish to be associated with and who should represent us. We have always viewed ourselves as a community which stands apart from the Lubicon Lake Indian Band and we decided as a group that we wanted to negotiate our treaty and land claim entitlements separately and independently of the Lubicon Lake Indian Band."
and:
"As with the Woodland Cree Band and Loon River Band, we have always viewed our group as a distinct community from the Lubicon Lake Indian Band."
[6] The 1996 proceeding was never set down for hearing. By letter dated April 12, 1999, in response to a notice of status review, counsel advised the Court that the issues raised in the application might be resolved by the April 1999 election. Counsel requested an extension until June 1, 1999 to file submissions in response to the notice of status review. That extension was granted.
[7] Following the election no submissions were ever filed in response to the notice of status review. By order dated June 24, 1999, the 1996 proceeding was dismissed for delay.
[8] In March of 1999, Ms. Venne was appointed Chief Electoral Officer for the April 25, 1999 election by the Chief and Council of the Lubicon Lake Indian Nation. She was made aware of the 1996 proceeding and she received and reviewed copies of documents filed in Court in that proceeding.
[9] The Lubicon Lake Indian Nation conducts its elections under custom, and not under the Indian Act. Traditionally, the nomination and election process for the positions of Chief and Council members is conducted in an open community meeting held on one day. The custom has been largely codified in two documents, one entitled "Government of the Lubicon Lake People" ("Governance Document"), the other entitled "Membership Code of the Lubicon Lake Indian Nation" ("Membership Code"). The Governance Document provides that an initial membership list of the Lubicon Lake People would be drawn up by the Chief and Council of the band and then ratified by the members. The Membership Code then provides that:
4.) Criteria to be employed in adding people to or deleting them from the initial membership list of the Lubicon Lake Indian Nation are as follows:
a.) persons eligible for enrollment as members of the Lubicon Lake Indian Nation following establishment of the initial membership list of the Lubicon Lake Indian Nation must qualify under the criteria established in Section 2.) and be ordinarily resident in the traditional Lubicon territory as of January 04, 1989;
b.) persons enrolled as members on the Lubicon Lake Indian Nation membership list but choose instead to become a member of either another Indian Nation or "Band" under the Indian Act shall be removed from the membership list of the Lubicon Lake Indian Nation and shall not be members of the Lubicon Lake Indian Nation;
[...]
4.) [sic] A person whose claim to membership is in dispute is entitled to be heard by the elected Chief and Council of the Lubicon Lake Indian Nation within 30 days of requesting such a hearing. If after being heard by the elected Chief and Council of the Lubicon Lake Indian Nation, that person is still not satisfied with the determination of his/her status, he/she is entitled to be heard by the qualified electors of the Lubicon Lake Indian Nation in attendance at an open General Meeting, notice of which has been posted on the wall of the central administrative office of the Lubicon Lake Indian Nation not less than 20 clear days before the day on which the meeting is to be held.
[10] With respect to elections, the Governance Document provides that:
19.) Eligibility of Electors
A recognized member of the Lubicon Lake people who is eighteen years of age or older and who is normally resident on the traditional lands of the Lubicon Lake people is qualified to vote in elections for Chief and Councillors.
[...]
21.) Election of Chief and Councillors
Election of Chief and Councillors shall be decided by simple majority vote of qualified electors at a duly called meeting of qualified electors, notice of which has been posted on the wall of the Band office at a point reserved for the posting of public notices not less than twenty clear days before the day on which the election meeting is to be held. Elections shall be decided by a show of hands unless a poll is required or demanded, either by the chairman of the meeting or any ten qualified electors. A poll so required or demanded shall be taken in a manner directed by the chairman; each qualified elector shall be entitled to one vote; and the result of the poll shall be the decision of the members.
[11] Given that the Governance Document requires that a person be a "recognized member of the Lubicon Lake people" to be qualified to vote, the Chief Electoral Officer was concerned, on the basis of the affidavits filed in this Court in 1996 that " if people were making the decision not to be members of the Lubicon and to be a member of another community called Little Buffalo Cree, that they would not be eligible as electors".
[12] This concern was acted upon by the Chief Electoral Officer at the election.
[13] Following the election, the Chief Electoral Officer prepared a detailed final report as to the conduct of the election ("Final Report"). The following excerpts capture the essence of what transpired as is relevant to this proceeding:
Sharon Venne said that she had been made aware of a legal action that people in the room had signed saying that they want to be a member of another band. In order to proceed, she said, she had to satisfy herself that those present in the room are eligible to vote and can run for Chief and Council.
Sharon Venne briefly explained the nature of the legal action and read aloud the sections of it which stated that the people involved are not Lubicons and want to create another band. If a person makes a choice to belong to another band, she said, they are not eligible under Lubicon election rules to vote in a Lubicon election.
[...]
Sharon Venne said there are people who have signed affidavits as part of this legal action saying that they are not Lubicons and that they have chosen to join another band. She said these people are not qualified to vote or run under Lubicon elections rules. If you want to vote in this election, she said, these people will have to sign an affidavit stating that you do not want to be a part of this legal action and reaffirming that you want to be a member of the Lubicon Nation.
Sharon Venne said that the legal action also includes a list of people who call themselves the Little Buffalo Cree Band and say that they are not Lubicon. Sharon Venne said that the people on this list are not qualified to vote. If need be, she said, she'd read the list and if you're on it, you will not be qualified to vote.
[...]
Sharon Venne said that people who didn't want their names to be part of the Little Buffalo Cree Band list can sign an affidavit reaffirming their membership in the Lubicon Lake Nation. She said that she would then be prepared to qualify them as electors in the Lubicon election. However, she said, people should be aware that there can be consequences to signing an affidavit pertaining to an action before the courts if you don't honour that affidavit.
[...]
During the course of the afternoon the Chief Electoral Officer sought to determine whether the people whose names are associated with this legal action were prepared to disassociate themselves from it and reaffirm their membership in the Lubicon Nation. This process was complex and is set out in detail in this report to give the chain of events leading to the ruling of the Chief Electoral Officer to disqualify certain individuals who had signed affidavits and/or whose names appeared in a legal action stating that they are not Lubicons and seeking the creation of a new band called the Little Buffalo Cree Band.
Billy Joe Laboucan said, "My name is on that list (of people participating in the legal action) and I'm a full member of the Lubicon Band. You have no legal right to deny me the right to vote". The only way you can get rid of me" he said, "is by killing me". He asked "Do you want to kill me?"
Sharon Venne said, "Did you sign an affidavit saying you want to join another band?"
Billy Joe said, "It doesn't matter what I signed. I'm a full member and I have a right to vote. That document you're reading from was never accepted by the federal government. Are you prepared to accept the split? Are the Chief and Council prepared to sign a letter saying that you recognize the split?"
Sharon Venne said, "Did you sign this affidavit saying that you want to join another band?"
Billy Joe said, "I signed it but it doesn't mean I opted out of the Lubicon band. We were not recognized. If you want to sign a letter saying you recognize the split, fine."
Sharon Venne said, "If you signed an affidavit saying that you're not a Lubicon, then - -"
Billy Joe interrupted by saying "Are you going to recognize us? Otherwise, I have to do my civic duty and vote. We want to see the membership list."
Voice from the floor "That action is not recognized".
Sharon Venne said, "I'm trying to find out who are the electors - - "
Billy Joe said, "You're evading my question. Can I see the membership list?"
Sharon Venne said, "This is an open election in the community. We don't need a membership list."
Someone said, "You say we need to be on the list."
Sharon Venne said, "I've got a list of people who are part of the court case."
Someone said, "The court didn't recognize us."
[...]
Sharon Venne said, "I'm not here to discuss anything other than who qualifies to be an elector in this election. If you signed an affidavit saying that you have chosen to join another band, are you prepared to sign an affidavit renouncing that legal action?"
Billy Joe asked, "Are you prepared to give me a letter saying that you recognize the split?"
Sharon Venne said, "I'm not writing a letter right now. I'm running an election. If you signed an affidavit saying that you want to join another band, you don't qualify as an elector in this election. I will be writing a report spelling out my decisions on eligibility".
[...]
After showing Mike Ominayak and Billy Joe Laboucan copies of their affidavits, Sharon Venne returned to the front of the room. She said "Mike Ominayak and Billy Joe Laboucan have affirmed that these are their signatures on these affidavits. I have been informed by their legal counsel that this new band has not been recognized as a new band."
Sharon Venne said "Let me draw your attention to two points. In the affidavit it says, 'In September of 1994 the Applicants and I decided to form a new Indian Band called the Little Buffalo Cree Band.'"
[...]
Sharon Venne continued "The Lubicon Membership Code provides that 'persons enrolled as members on the Lubicon Lake Indian Nation membership list but who choose instead to become a member of either another Indian Nation or 'band' under the Indian Act shall be removed from the membership list of the Lubicon Lake Indian Nation and shall not be members of the Lubicon Lake Indian Nation'. It does not say a band recognized by the state of Canada. It says where a person chooses to join another band they do not qualify as a member and are (therefore) not entitled to vote in this election".
Sharon Venne said "I'm going to rule that people who signed this affidavit as part of this legal action... - whether the state of Canada recognizes this (new) band is not at issue - are not entitled to vote in this election."
[...]
Sharon Venne said, "Your name is part of this legal action stating that you want to join another band. If you're not prepared to sign an affidavit saying that you don't want to be part of this legal action, I'm going to rule that you're not eligible to vote in this election".
Yvonne Buc said, "I will not sign an affidavit because I support the separate band. I would love to be a separate band. But I'm a member of this one. Give me a letter stating that you recognize the Little Buffalo Cree Band."
Sharon Venne said, "I'm going to rule that you're not a qualified elector."
[...]
Sharon Venne said, "I'm going to go through the list (of the applicants to the legal action). If you want to be qualified, you have to sign an affidavit saying that you're not associated with the federal court action. My inclination is that the affidavit will then be forwarded to the federal court."
[...]
Sharon Venne then proceeded to read the names of the other people of voting age who appear as applicants in the legal action as members of the Little Buffalo Cree Band. Each person was asked the same question. Did they want to sign an affidavit disassociating them from the legal action and reaffirming their membership in the Lubicon Lake Indian Nation? People who signed an affidavit disassociating themselves from the legal action and reaffirming their membership in the Lubicon Lake Indian Nation were declared eligible to vote in the Lubicon election. Persons who refused to sign a affidavit disassociating themselves from the legal action and reaffirming their membership in the Lubicon Lake Indian Nation were ruled ineligible to vote in the Lubicon election. [underlining added]
[14] In the end, 32 people were declared ineligible to vote in the election because they were parties to the Federal Court action and refused to sign an affidavit renouncing and disassociating themselves from that legal action, as well as re-affirming their membership in the Lubicon Lake Indian Nation. Nine persons signed affidavits renouncing or disassociating themselves from the legal action and re-affirming their membership in the Lubicon Nation. They were ruled eligible to vote in the election.
[15] After the people declared ineligible to vote left the election hall, the vote proceeded. The applicants allege that some persons remained who were not qualified to vote.
[16] The result of the election was that Bernard Ominayak was the only person nominated for Chief with "[m]ost of the people in the room" voting to close the nomination for Chief. Bernard Ominayak was therefore declared re-elected by acclamation by the Chief Electoral Officer. Seven persons were nominated for the five vacancies on council. The result of the voting was:
Candidate Number of Votes
Larry Ominayak 108
Walter Whitehead 98
Dwight Gladue 95
Steve Noskey 92
John Letendre 91
John Auger 61
George Whitehead 33
The five candidates with the highest number of votes were declared elected. There were 129 electors noted to the present at the time of voting (although as people entered and left, the totals were accounted at 128 at one point and 130 at another).
ISSUES
[17] In addition to the three issues raised by the applicants, the respondents raise two additional issues relating to the status and motive of the applicants, and to the scope of available relief. Therefore, the issues to be addressed are:
1. Do the standing of the applicants, the evidence adduced and the orders sought demonstrate that the applicants are misusing the Court for political purposes?
2. Did the Chief Electoral Officer improperly disqualify qualified voters from voting?
3. Did the Chief Electoral Officer improperly allow non-qualified persons to vote?
4. Was the Chief Electoral Officer biased in her application of the rules relating to voter eligibility? and
5. What remedies can or should be awarded?
ANALYSIS
(i) Do the applicants have standing and are they misusing the Court process?
[18] The respondents advance three arguments in support of this issue.
[19] The respondents first argue that 30 of the 50 applicants in this proceeding should be removed as applicants because they were too young to vote, were not present during the election, were registered members of other bands, were resident outside of the traditional lands of the Lubicon Lake People, were not the subject of a ruling with respect to voter eligibility, or are persons who no longer wish to be applicants. The respondents say that the inference to be drawn from this is that 30 of the 50 applicants wished to be applicants for purely political reasons.
[20] Second the respondents argue, in the words of counsel for the Chief and Council in oral argument, that the applicants attended the election "lying in wait to set a trap". That is, they decided the night before the election not to sign any document which might be required to register them as voters, and that the 20 affected applicants "could readily have voted and made nominations for the election, had they sworn [proffered] clarifying affidavits". This is said to further evidence mala fides.
[21] Finally, the respondents argue that the applicants are asking the Court to alter Lubicon Nation custom.
[22] In response to those arguments, I note first that while the respondents argue that 30 applicants should be struck from the proceeding, no formal motion to that effect was made at the time the application for judicial review was argued on its merits. Given that 20 of the applicants unquestionably have status to bring this application as a result of their disqualification from voting, that the applicants were all represented by the same counsel so that no additional costs were incurred, and that no motion to strike as contemplated by the Rules of the Federal Court was made, I see no need to strike any of the applicants. In these circumstances no practical purpose would be served by striking some of the applicants.
[23] The answer to the balance of the respondents' concerns are twofold in my view. First, at least 20 of the applicants were entitled to proceed on their understanding of their legal rights. Having put forward their position, and the Chief Electoral Officer having responded to that position, it is the right of the applicants to seek adjudication upon the propriety of the response. The evidence does not establish that the issues raised in this proceeding are frivolous or vexatious, or that the proceeding is so bereft of any possibility of success, that it can be said to have been motivated for an improper purpose.
[24] Second, any concern that the Court is being asked to alter the custom of the Lubicon Nation is subsumed in the argument with respect to the scope of available relief.
(ii) Did the Chief Electoral Officer improperly disqualify qualified voters?
[25] In oral argument both the applicants and the Chief and Council proceeded on the basis that the decision of the Chief Electoral Officer with respect to voter eligibility should be reviewed on the standard of patent unreasonableness. I am prepared to accept, without deciding, that to be the applicable standard of review because on the view I take of this issue the result would be the same no matter what standard of review is applied.
[26] Turning now to the decision of the Chief Electoral Officer, it is helpful to review the salient precepts of the customary leadership selection system. To vote, one must be a recognized member of the Lubicon Lake People. As the Chief Electoral Officer observed, however, meeting the criteria for membership set out in the Membership Code is by itself not enough to qualify one as an elector. Once the initial membership list was established, persons eligible for enrollment must be added to the list following the criteria set out in the Membership Code. Deletions from the membership list are similarly to be made pursuant to the criteria set out in the Membership Code. Importantly, persons whose claim to membership is in dispute are entitled to be heard at a hearing before the Chief and Council and, potentially, at a further hearing before the qualified electors of the Lubicon Lake Indian Nation. This right to a hearing reflects that, within an autonomous process for electing band governments, minimum standards of natural justice or procedural fairness must still be met. See: Sparvier v. Cowessess Indian Band, [1993] 3 F.C. 142 (T.D.) at paragraph 48.
[27] Against this customary election system, it is difficult to see how the Chief Electoral Officer could conduct the election without using the membership list to determine whether a proposed voter was a recognized member of the Lubicon Lake People. There is no doubt, on the basis of the cross-examination of band councillor Gladue, that no membership list was present at the election.
[28] The Chief and Council, prior to the election, understood the importance of the membership list. This is reflected in their memo of April 15, 1999 to members of the Lubicon Lake Indian Nation which stated in part:
On April 25, 1999, Lubicon elections will be held according to the normal Lubicon election process. On that day any Lubicon members who have not made prior arrangements to view the membership list will also have an opportunity to do so.
[29] It is argued here that Lubicon election custom does not require the presence of the membership list at an election. However, as a matter of law, those who rely upon custom are obliged to establish the custom and its derivation. Any custom with respect to the absence or irrelevance of a membership list was not properly established by the evidence. Further, the content of the memorandum of the Chief and Council quoted above appears to contradict the existence of any such custom, because custom requires that the practices be generally acceptable to members of the band and be practices upon which there is a broad consensus. See: Mohawk of Kanesatake v. The Mohawk Council of Kanesatake, 2003 FCT 115 where Mr. Justice Martineau recently canvassed the general principles applicable to band custom at paragraph 20 and following.
[30] With respect to the ruling made by the Chief Electoral Officer, she swore in her affidavit filed in this proceeding that "I had to satisfy myself that [the applicants] qualified as electors in the Lubicon Election". It appears from the Chief Electoral Officer's Final Report that the Lubicon membership clerk was present at the election. When an individual asked the Chief Electoral Officer if she (the individual) was qualified to vote, the Chief Electoral Officer checked with the membership clerk and was informed that the inquiring person had applied for membership in the Lubicon Nation and had been accepted. The Chief Electoral Officer then advised the individual that "You're [sic] been accepted as a member. You can vote". However, no similar inquiry was directed with respect to the applicants, and when one applicant asked to see the membership list, the request was denied. The Chief Electoral Officer said "We don't need a membership list [...] I've got a list of people who are part of the court case".
[31] Instead of inquiring whether in the three year period which followed the commencement of the 1996 proceeding any of the applicants had been removed from the membership list on the ground they had chosen to become a member of another Indian Nation or band, a process that would have carried with it a right to one or more hearings, the Chief Electoral Officer circumvented the process contemplated in the Membership Code by simply ruling a number of the applicants to be ineligible because they had chosen to become a member of another Indian band.
[32] The decision of the Chief Electoral Officer to disqualify some of the applicants because they chose to become a member of another band without regard to the membership list is problematic in at least two further respects.
[33] First, in my respectful view it was patently unreasonable to conclude that applicants had become members of another Indian band within the contemplation of the Membership Code when no such band existed. The Chief Electoral Officer read documents filed in the 1996 proceeding and so knew or ought to have known that no such band existed. At the election she was advised by counsel for the applicants that no band had been formed. Faced with this, the Chief Electoral Officer concluded the non-existence of such a band to be irrelevant. This is reflected in the following portion of her cross-examination upon her affidavit:
Q Are you aware if there was, in fact, ever a legal Band called the Little Buffalo Cree Band created?
A That is not my concern.
Q So it doesn't matter to you whether or not this Band is in legal existence or not?
A It doesn't say that in here, in the Lubicon law.
Q Let me just ask you a question. Your interpretation of the Lubicon law, then, is that it doesn't matter whether or not there was a legal Band called the Little Buffalo Cree Band?
A That's right.
[34] The consequence of this approach was to disenfranchise a person from voting in the band election because the person cherished a hope or expectation that a new band might be created.
[35] The view that the existence of a band is irrelevant is inconsistent with the express wording used in article 4(b) of the Membership Code which refers to choosing "to become a member of either another Indian Nation or band under the Indian Act [...]". The word "band" is defined in the Indian Act and the reference to the Indian Act in article 4(b) of the Membership Code means, in my view, that the intent was that to lose one's membership in the Lubicon Nation one must choose to join an entity that is a band as defined in the Indian Act.
[36] Band is defined in subsection 2(1) of the Indian Act to mean:
a body of Indians
(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after the 4th day of September, 1951,
(b) for whose use and benefit in common, moneys are held by Her Majesty, or
(c) declared by the Governor in Council to be a band for the purposes of this Act.
[37] Thus, even if the Chief Electoral Officer was entitled to disqualify potential electors who were on the membership list of the Lubicon Lake People, before doing so the Chief Electoral Officer was obliged to determine that the elector was a member of an entity that fell within the statutory definition of a "band". This consideration was not irrelevant as the Chief Electoral Officer concluded.
[38] Before leaving this issue, the Chief and Council argue that what the applicants had, in fact, done was to form an "Indian Nation" so that the Chief Electoral Officer was entitled to declare them to be ineligible because they had become a member of another Indian Nation. While I acknowledge that a band is not the same thing as a First Nation (see: Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development) (1999), 171 F.T.R. 91 (T.D.) at paragraph 25), this submission is not grounded in the evidence of this case. Without doubt, the Chief Electoral Officer did not direct herself to consider whether persons should be disqualified on the basis that they had joined another Indian Nation. Rather, the Chief Electoral Officer was concerned as to whether they had formed a new band. This is amply established in paragraphs 6 and 8 of the affidavit of the Chief Electoral Officer, as well as in the excerpts of the Chief Electoral Officer's Final Report set out above and underlined.
[39] As for the second problematic aspect of the approach of the Chief Electoral Officer, for a person associated with the 1996 proceeding to be found to be qualified to vote, the Chief Electoral Officer required that he or she sign an affidavit by which they both re-affirmed that they wanted to be a member of the Lubicon Nation and disassociated themselves from the legal proceeding. The Chief Electoral Officer in her report characterized this second requirement in the following terms "This affidavit says you do not want to be part of this legal action". The importance of this requirement to the Chief Electoral Officer was such that she said she was inclined to forward such affidavits to the Federal Court of Canada.
[40] Even if the Chief Electoral Officer was entitled to proceed without specific regard to the membership list, the requirement that persons renounce the 1996 proceeding in an affidavit was a requirement not rationally connected to the Membership Code. To be eligible for inclusion on the membership list one must meet the criteria contained in the Membership Code. Those criteria relate to known aboriginal ancestry, family and historic ties and any decision as to membership ultimately is to be made by the Chief and Council or the eligible electors.
[41] The Chief Electoral Officer erred in requiring persons to withdraw from participation in a legal proceeding as consideration for being allowed to exercise their right to vote, because that action by itself could not restore membership to anyone who had been properly stripped of membership.
[42] Accordingly, for these reasons, by failing to have regard to the membership list of the Lubicon Lake Indian Nation, by disqualifying persons from voting on the basis that they had joined another legal band which did not exist, and by applying an irrelevant criteria to the issue of voter eligibility, the Chief Electoral Officer committed reviewable errors which require the intervention of this Court.
(iii) Did the Chief Electoral Officer improperly allow non-qualified persons to vote?
[43] The applicants say that when they were asked by the Chief Electoral Officer to leave the room so that the election could be conducted, individuals remained in the room who they believe were ineligible to vote. They say, in the words of both Violet Ominayak and Loreen Ominayak, that they believe those persons "may have been allowed to vote".
[44] This evidence does not establish that the then remaining individuals voted, or that they were actually ineligible to vote. In the absence of evidence establishing that unqualified individuals actually voted, there is no basis for challenging any action of the Chief Electoral Officer in this regard.
(iv) Was the Chief Electoral Officer biased in her application of the rules re: voter eligibility?
[45] The applicants argue that the election was a sham and say that the following matters demonstrate bias or a reasonable apprehension of bias on the part of the Chief Electoral Officer:
i) She is a personal friend of the Chief, two councillors, the membership clerk and the Band's consultant;
ii) Her interpretation of the Membership Code is absurd. That absurdity is underscored by the fact that the Chief Electoral Officer is legally trained;
iii) She determined before the election was held that she would disqualify those who had expressed the desire to set up a new band;
iv) She ignored requests to see the membership list, and did not herself request to see it;
v) She demonstrated unquestioned deference to the Chief at one point when the Chief advised that a person had not submitted a formal request for membership; and
vi) She abdicated her duty to determine voter eligibility by relying upon persons present at the election to draw to her attention any unqualified voters.
[46] Dealing with each of those items, the evidence failed to establish any close personal friendship between the Chief Electoral Officer and any of the Chief, councillors, membership clerk or band consultant. The Chief Electoral Officer had known the band consultant for 20 or 25 years and knew others as "people I would sit down and have coffee with". Disqualification for bias does not normally result from prior business or professional relationships, and the evidence does not support any conclusion as to a close personal relationship.
[47] As for the Chief Electoral Officer's interpretation of the Membership Code, her position with respect to the membership list, and her reliance upon challenges from people present, such actions are equally consistent with a bona fide interpretation of the Lubicon election custom. While I do not share that interpretation, error by itself does not equate to, or establish, bias.
[48] With respect to the complaint of pre-judgment, to disqualify a decision-maker on grounds of pre-judgment, the evidence must lead to a reasonable inference that the decision-maker had so made up her mind that any representation at hearing was unlikely to be effective. The evidence fails to satisfy me that the Chief Electoral Officer was not open to persuasion at the election. No submissions were addressed to her as to the propriety of the scope of the affidavits she required (that is, no one complained that the affidavit went too far in requiring disassociation from the 1996 proceedings as opposed to simply re-affirming membership). The balance of her decision was in substance a legal interpretation of the proper application of the Membership Code. Holding firm to that interpretation does not necessarily establish pre-judgment.
[49] Finally, the one instance relied upon falls short of establishing unquestioned deference to the Chief. The Chief Electoral Officer accepted on one occasion the Chief's advice as to a matter of fact within his knowledge. No one contradicted that advice.
[50] Having reviewed briefly the evidence relied upon by the applicants in support of their assertion of bias, I turn to the legal principle to be applied. The test for bias requires that the Court ask what would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude? Applying that test, I am not satisfied that a reasonable and informed person, viewing the matters asserted by the applicants realistically and practically, and thinking the matter through, would conclude that the Chief Electoral Officer was biased or that there was a reasonable apprehension of bias.
(v) The appropriate relief to be granted.
[51] As Mr. Justice Muldoon observed in Grand Rapids First Nation v. Nasikapow (2000), 197 F.T.R. 184 at paragraph 79, the jurisprudence of this Court demonstrates that the Court may fashion a remedy appropriate to the circumstances. This reflects the fact that remedies available on judicial review are discretionary.
[52] An application for judicial review is a public law proceeding. Therefore, the relief granted by the Court should further the public interest. See: Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (T.D.) at paragraph 220 and following.
[53] In the exercise of that discretion, I consider the most important fact to be that the impugned election took place four years ago. The applicants commenced this proceeding in May of 1999. In January of 2000 a Notice of Status Review was issued by the Court requiring the applicants to show cause why the application should not be dismissed for delay because 180 days had elapsed since issuance of the notice of application and no requisition for hearing had been filed. While the matter was subsequently allowed to proceed, a requisition for hearing was not filed until January of 2002, two years after the notice of status review and two and three quarter years after the election. No request was made that the proceeding or the hearing date be expedited.
[54] Further, given that by custom, elections take place every five years, the next election will likely take place within the next year. (The election previous to the one at issue took place on May 24, 1994).
[55] As well, while there is no evidence directly on this point it is a reasonable inference that in the intervening four years since the election the Chief and councillors have made a number of decisions, the validity of which might be questioned if the election was set aside. Third parties, including the Chief and Council and members of the Lubicon People, may well have acted upon the decision of the chief electoral officer to their detriment.
[56] In view of the lengthy period of time that has elapsed since the election, the imminence of the next election, and the disruption that would ensue from quashing the result of the election four years after the fact, I am not prepared to quash the result of the 1999 election. It follows that no relief is necessary or appropriate with respect to the process to be followed in any new election necessitated by the quashing of the 1999 election. In any event I am satisfied that relief such as declaring voter eligibility in a future election, requiring the preparation of a voter's list and ordering that the election be by secret ballot, should not be granted for the following reasons. With respect to future voter eligibility, it may be that factors such as residence and membership have changed or may change, making any such declaration inaccurate now or at the time of a future election. The further relief sought with respect to a voter's list and a secret ballot would be contrary to the evidence before the Court in this proceeding as to the applicable band custom.
[57] I am not prepared to declare as requested that the applicants were members of the Lubicon Lake Indian Nation on April 25, 1999. This is an issue to be determined pursuant to the custom of the Lubicon People. It is sufficient for the purpose of this proceeding to state that the Chief Electoral Officer erred in finding persons not to be qualified to vote on the basis stated by the Chief Electoral Officer. In any event, that there is no evidence as to whether all of the applicants otherwise met the membership criteria on April 25, 1999, i.e. for example, did they all live on traditional Lubicon lands.
[58] The sole order to be issued will be an order quashing the decision of the Chief Electoral Officer declaring individuals to be ineligible to vote in the Lubicon election because they were parties to the 1996 proceedings and refused to sign an affidavit dissociating themselves from that legal action.
COSTS
[59] At the hearing counsel requested the opportunity to make written submissions as to costs after the release of these reasons. Accordingly, counsel for the applicants may serve and file written submissions as to costs within 14 days of receipt of these reasons. Thereafter, counsel for the respondents may serve and file responsive submissions within 14 days. The applicants may then serve and file reply submissions within 7 days of receipt of the submissions served on the respondents' behalf.
[60] Following consideration of those submissions, an order will issue as described above and disposing of the issue of the costs of the application.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
May 14, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-875-99
STYLE OF CAUSE: MICHAEL OMINAYAK ET AL.
V. SHARON VENNE ET AL.
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: December 2, 2002
REASONS FOR ORDER BY
THE HONOURABLE MADAM JUSTICE DAWSON
DATED: MAY 14, 2003
APPEARANCES:
Mr. Ronald Johnson APPLICANTS
Mr. Richard Gariepy RESPONDENTS/Sharon Venne
Ms. Nancy Kleer RESPONDENTS/Chief and Council
SOLICITORS OF RECORD:
Mr. Ronald Johnson APPLICANTS
Barristers and Solicitors
Edmonton, Alberta
Mr. Morris Rosenberg RESPONDENTS
Attorney General of Canada
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