Wanderingspirit v. Marie, 2003 FCT 670

Date: 20030529

Docket: T-2007-02

                                                 Citation: 2003 FCT 670

BETWEEN:

             Melvin Wanderingspirit, Delphine Beaulieu,

            Toni Heron, Raymond Beaver and Sonny McDonald

          in their capacity as Councillors of the Salt River

             First Nation 195, elected August 30, 2002

                                                               Applicants

AND:

           Victor Marie uncontested Chief and Norman Starr

      uncontested duly elected Band Counsel Member, Nora Beaver,

     David Gowans, Connie Benwell, Michel Bjornson, Harvey Lepine,

    and Don Tourangeau, purportedly elected Band Councillors at a

       meeting held November 3, 2002, and Jeannie Marie-Jewell,

                     acting as Interim Band Manager

                                                              Respondents

                      REASONS FOR ORDER AND ORDER

ROULEAU, J.

[1]                 This application for judicial review is concerned with an election held on November 3, 2002 by the Salt River First Nation 195 ("SRFN") at a special meeting held by a number of the band members whereby the applicants, all duly elected councillors of the SRFN, were purportedly terminated in their office as band councillors and were replaced by the respondents Nora Beaver, David Gowans, Connie Benwell, Norman Starr, Michel Bjornson, Harvey Lepine and Don Tourangeau.

[2]                 The applicants seek a declaration that they are the duly elected councillors of the SRFN; an order in the nature of certiorari quashing the election held on November 3, 2002 at the SRFN special meeting purporting to set aside the election of councillors duly elected in August, 2002; and finally an injunction restraining the respondents from holding themselves out as duly elected band councillors and that they be prohibited from dealing with assets and conducting affairs of the SRFN.

[3]                 Chief and councillors of the SRFN are elected by custom and are not subject to any order under section 74 of the Indians Act or the Indian Band Elections Regulations. Elections were generally held every two years.

[4]                 It is alleged by these applicants that at the meeting of November 3, 2002, contrary to band custom, the voting was not by secret ballot; that no notice was given to the band members at large that an election of new councillors was to be held; that the meeting was chaotic and disruptive and in fact ended up under the stewardship of Jeannie Marie Jewell who disregarded all procedure and custom that had prevailed for years in the election of officials of the SRFN.

[5]                 It was agreed from the outset that the relief being sought would not affect respondents Victor Marie, the chief of the band, or Norman Starr who had been a duly elected councillor at the August, 2002 elections.

[6]                 The Salt River First Nations 195 are an aboriginal band located at Fort Smith, NT, made up of approximately 550 registered band members of which some 170 reside in the town of Fort Smith, others in the surrounding area, and approximately 100 residing in each Yellowknife and Edmonton.

[7]                 It is of interest to note that the SRFN entered into a settlement agreement dated November 13, 2001 with Her Majesty the Queen in the Right of Canada in respect of Land Entitlement. Following discussions, it entered into a settlement trust agreement on March 4, 2002 with the Royal Trust company acting as trustees; certain funds accepted by the SRFN and paid by the Government of Canada as part of the settlement of their Treaty Land Entitlement Claim are presently being held in an amount exceeding $60,000,000 all under the terms of the trust agreement. In passing, may I say that a number of beneficial activities have been initiated by the applicant Band Council and undoubtedly having input into the use of such a large sum of money has become an issue of considerable importance among the factions within the SRFN.

[8]                 The settlement came about after many years of negotiations between previous band councils and Her Majesty the Queen in the Right of Canada.

[9]                 James Schaeffer, a former chief of the SRFN elected February 3, 2000, remained in office until August, 2002 when an election was held at which time he was replaced as chief by Victor Marie. In his affidavit he advises that the agreement with Her Majesty the Queen was ratified by a vote of the SRFN in December, 2001 but the implementation and formal signing was not to take place until June 22, 2002. As a result, the Council extended its term which otherwise would have ended in February; this was to provide the necessary continuity to see the agreement through to completion. The elections were therefore delayed until August 30, 2002. He swears that the extension of his term in office was not an election but just a practical solution to ensure that the agreement was properly implemented.

Events leading up to the November 3, 2002 election

[10]            In August, 2002, as a result of an election held according to custom, chief Victor Marie was victorious along with the respondent councillor Norman Starr as well as all applicants who were elected as councillors. They officially took office and began administering the Band's affairs. Shortly after the elections, chief Victor Marie appointed his sister Jeannie Marie Jewell as interim band administrator. Her services were retained and her remuneration was fixed at $300.00 per day and $86.00 an hour for overtime.

[11]            Shortly after being retained in her new post, it is alleged that Jeannie Marie Jewell undertook a number of actions without the authorization of Council. At a meeting convened October 9, 2002, and as a result of concerns that the Council was having with respect to the manner in which she was conducting Band affairs, all Council members except chief Victor Marie, in a formal resolution, voted to terminate her position.

[12]            During a lunch break, chief Victor Marie approached the then interim financial officer advising her she was fired. Following the resumption of the meeting the councillors advised the chief that only they could terminate employees. Chief Victor Marie, no doubt feeling admonished, left the meeting and refused to return.

[13]            Chief Victor Marie failed to respect the resolution of the Council dismissing his sister, Jeannie Marie Jewell, as a result a lack of confidence in the chief was brought up and a resolution to remove him was formally introduced and passed.

[14]            Following these incidents, the chief continued to occupy the Band office, changed locks on the doors and prohibited the duly elected councillors from attending. They nevertheless met; councillors became aware that Jeannie Marie Jewell continued to have access to the Band's offices and records. A formal resolution by the councillors on October 17, 2002 indicating their intention to remove the chief was ratified. They proceeded to circulate among the band members a letter outlining their concerns about the chief and his sister, Jeannie Marie Jewell.

[15]            A formal notice was drafted and sent to band members; as well it was advertised on local radio and television that a meeting was to be held on November 3, 2002 at Uncle Gabes' Friendship Centre, Fort Smith, and it outlined an agenda:

"1) Opening prayer - Lena Paul

2) Welcome - Raymond Beaver

3) BCR of October 9, 2002 - removal of Chief Victor Marie"

[16]            Following this formal notice the respondent Jeannie Marie Jewell contacted band members in Yellowknife and Edmonton, retained the services of organizers in each local to recruit support for the Chief and urged members to attend the meeting of November 3, 2002. She then arranged to charter an aircraft out of Yellowknife and buses out of Edmonton to transport band members to Fort Smith to attend the meeting in support of her brother, Chief Victor Marie.

[17]            The councillors, having learned of this initiative, cancelled the charters. Nevertheless Jeannie Marie Jewell, along with her sisters, advised the organizers of the two locals, Yellowknife and Edmonton, that they would personally undertake the payment of the charters as well as hotel accommodation in Fort Smith.

[18]            Following the purported election of November 3, 2002 in which the applicant councillors were voted out of office, the evidence reveals that the charters were paid out of band funds, the organizers in Yellowknife and Edmonton receiving $1,700.00 each, all hotel bills were paid and those who travelled to Fort Smith to attend the meeting were paid honorarium of $100.00. In fact, the sum expended from band funds was between $20,000.00 and $24,000.00.

[19]            In one of her sworn affidavits in these proceedings, Jeannie Marie Jewell describes herself as follows:

"I was the first status Aboriginal female in Canada to be appointed as a speaker in a Legislative Assembly, having been voted in by all the elected MLA's for the position of Speaker of the North West Territory Legislative Assembly.

I was also the first Treaty Dene woman to hold various Cabinet posts with the Territorial Government as Minister of Social Services, Minister of Personnel, Minister of the Status of Women, Minister of the Workers' Compensation Board, and Minister of the Highway Transport Board.

I have been an elected member of both the town council, the town of Fort Smith, and an elected councillor for the Salt River First Nation Band."

[20]            Jeannie Marie Jewell had met in the past with considerable political success and no doubt was a highly talented individual. It is obvious that she would exercise considerable influence in her milieu and nowhere was it more evident than in events leading up to as well as during the meeting held November 3, 2002 at Uncle Gabe's Friendship Centre.

[21]            For a more precise statement of the facts as to what occurred at the meeting, the Court relies on the evidence of one Clayton J. Burke, who is a resident of Fort Smith and appointed Chairman of the meeting, who swore an affidavit in these proceedings which is dated December 16, 2002.

[22]            The following is a brief explanation as to how Mr. Burke was selected as Chairman of the meeting. He resides on the Reserve but is not a band member. He is a well respected businessman and acceptable to all factions who may have divergent views as to how the band's business should be conducted. He had in the past been invited and had chaired various meetings of the SRFN. The councillors approached him and invited him to chair the meeting and he accepted out of courtesy to the members. In his affidavit he goes on to swear that he has no allegiance or any animosity towards any of the factions within the SRFN; I accept his evidence without reservation. His affidavit is supported by notes he made at the meeting as well as a transcript of a voice recording taped during the meeting.

[23]            I briefly summarize the affidavit. The meeting began at approximately 2:00 p.m. and ended at approximately 7:30 p.m. on Sunday, November 3, 2002. The agenda which was circulated by way of notice was posted in the foyer of the Uncle Gabe's Friendship Centre.

[24]            Mr. Burke's perception was that the meeting was "clearly disrupted and highjacked" by the supporters of chief Victor Marie.

[25]            As he relates it, the purpose of the meeting was to hold a vote by secret ballot on a motion to accept the band council's resolution to remove Victor Marie as chief. When the motion was put to the floor, bedlam erupted. Supporters of Victor Marie sat on one side of the hall and began heckling and shouting when the band council spoke to explain why the meeting had been called. Before long it was out of control. Before any voting actually occurred, many SRFN members had left in disgust.

[26]            Mr. Burke lost control of the meeting and Jeannie Marie Jewell took over. He attempted to restore order and was told that he would be removed if he persisted. He was satisfied that the meeting had been highjacked but did not leave since he felt it would be discourteous.

[27]            Supporters of chief Victor Marie refused to vote using the ballots and ballot box which had been provided by the band council. A few suggested that the ballots were confusing - Do we vote yes to support the resolution or not? Without attempting to offer any explanation, Jeannie Marie Jewell intervened and called for vote by a show of hands. She then suggested that each group would stand on either side of a line on the floor to indicate either their support for or opposing the motion to remove the chief. During this time, Mr. Burke swears that at least 50 members left the hall without voting.

[28]            Finally, it was agreed that those who would vote would advance to the head table and indicate their preference as to whether they were for or against the motion. The result: 65 members in support of the motion and 85 members against. After hearing the result, supporters of the chief began heckling those who had supported the motion and at this point more than half the people left, including the members of the band council except Mr. Starr.

[29]            There remained in the meeting hall after this incident only supporters of the chief which numbered approximately 50 people; during the remainder of the meeting other motions were tabled. It was Mr. Burke's perception that mob rule dictated the results of the rest of the meeting.

[30]            A review of affidavits filed in support of this application, including that of Mr. Burke and other attendees as well as former members of band council and other residents, revealed that approximately 200 members were initially in attendance at the opening; after the defeat of the motion to remove chief Victor Marie it became apparent that Jeannie Marie Jewell effectively took control of the meeting. She then put forward a motion to remove the legitimately elected August, 2002 council. The motion was carried. Then seven new councillors were to be elected - motion carried. Each new band councillor was proposed individually by way of motion and elected. It was then proposed that all individuals who came from out of town for the meeting should have their honorarium, rooms, meals and gas, bus or air fares covered by the band - this motion was also carried.

[31]            Other incidental motions were passed; it was suggested and approved that a new policy be put in place for the adoption of an election code; that the chief and council would hold office for two years.

[32]            All motions, other than the resolution to remove the chief, including the election of new councillors were voted on by way of show of hands.

History and procedure followed by the SRFN for elections

[33]            From the affidavit evidence as well as documents filed in support, It appears that the procedure that has been followed by the SRFN band council for elections has been almost uniform since approximately 1990. James Scheaffer, a former chief, swears that before the August, 2002 election a band resolution was passed that a notice of election would be sent out approximately one month in advance along with information regarding nominations for those who wished to stand for election. Additional notices were posted about two weeks in advance that outlined the date, time and place of the meeting and confirmed the list of candidates. Referring to his own election in February, 2000, he confirms that it was conducted by secret ballot and this method of voting was introduced in the mid-1990's. He swears that three essential elements had been in place for years for every election: a) a notice of the election was given at least a month beforehand; b) all candidates were to be from the Fort Smith community and had resided there for at least one year; and c) voting took place by secret ballot.

[34]            As far as Mr. Scheaffer was concerned, as early as 1992 secret ballots had become the norm. Documentary evidence from the Salve River Journal of June, 1990 confirms this evidence of formal public notice being issued with respect to elections.

[35]            Mr. Ken Laviolette, a SRFN resident of Fort Smith and a former councillor, states that in the early 1990's elections were held every two years by show of hands at a general meeting which was usually held in early summer at Treaty time. Even in those days, notice of an election was given, named those running and for what office. He confirms that some time during 1990 the chief and council instituted a new system of voting by secret ballot and that this has become part of their election custom. He also confirms that custom requires notice of the date, time and place of the election, that notice of the candidates' names be posted, that the candidates be residents of Fort Smith and that the election be held by secret ballot.

[36]            Raymond Beaver, who was chief of the SRFN from 1981 to 1986 and a councillor for many years, confirms that even when meetings were held on Treaty Day the entire membership was aware that during the meeting an election would be held. He recalls membership always had some notice in advance. He swears that in early 1990's the SRFN began using secret ballots and that this custom has prevailed at every election since.

[37]            In the present proceedings, a number of SRFN minutes of meetings and resolutions dating back to 1992 were filed. A resolution dated June 15, 1994 confirming an election that was held on June 13 of the same year reveals that the election and nominations were advertised. A band resolution of May 16, 1995 confirms that nominations for chief and councillors closed May 12, 1995, that the elections were conducted on May 15 and that these had been advertised. A band resolution of May 26, 1997 confirms that elections were to take place on September 11 of that year, that notice of the election and date for receiving nominations were to be posted 30 days prior to election day; that the election would be conducted by way of secret ballot. A band resolution dated May 12, 1998 confirms that nominations for chief and councillors had been advertised and had ceased on May 1, 1998; that the election was held on May 8, 1998. A band resolution of October 7, 1999 confirms the election of three new councillors by way of secret ballot. A band resolution dated February 3, 2000 confirms they advertised for council, that nominations had ceased January 28, 2000 and that the election had been held February 3, 2000.

[38]            In a statement of policy, a band council resolution of February 8, 2002 confirms and I quote: "The customs and traditions of the SRFN require democratic, fair and open elections of the leadership". It was further resolved at that meeting that the next election would be subject to an election code and constitution. Such an election policy was drafted on August 30, 2002 and forms part of the minute book in which is recorded the resolutions and day to day business of the SRFN. It is written that this proposed policy contains in draft form the customs followed by the SRFN for elections. The date of the election is advertised as well as the date for nominations and the closing of nominations. Following the close of nominations the election committee distributes a notice revealing the candidates who would stand for election. Voting is to be done by secret ballot. Though this was not officially and formerly adopted by the membership as a whole and though it contains considerably more details and expanded regulations, I have only summarized what is essential and what was the intent of the SRFN.

[39]            Based on these facts, the applicants commenced an application in this Court seeking a declaration that the purported election on November 3, 2002, is void and of no effect on the grounds that it was contrary to the custom of the SRFN for selection of council and in breach of the principles of natural justice and fairness. They also seek a declaration that the applicants and Norman Starr are the duly elected councillors of the Salt River First Nation.

[40]            Before turning to the merits of the application, I wish to dispose of the respondents' argument that Clayton Burke should have been named as a party in the application for judicial review. I do not agree. Mr. Burke is not a band member. He was brought in as an independent chairperson of the November 3, 2002 meeting. He did not make any decisions or rulings at that meeting but simply took notes of what transpired. In short, he is not a decision-maker over which this Court has jurisdiction in its judicial review function.     

[41]            The central issue before the Court here is straightforward. The Indian Act sets out two ways in which a grand chief and councillors of a band can be elected. The first method is the procedure set out in section 74 of the Act and the second is by custom wherein band members themselves determine who may vote and the election procedure which will be followed. In Bone v. Sioux Valley Indian Band No. 290 Council, [1996] 3 C.N.L.R. 54, Strayer, J. held that:

Unless otherwise defined in respect of a particular band, "custom" must I think include practices for the choice of a council which are generally acceptable to members of the band, upon which there is a broad consensus.

[42]            To be custom therefore, "the practice pertaining to a particular issue or situation contemplated by that rule must be firmly established, generalized and followed consistently and conscientiously by a majority of the community, thus evidencing a "broad consensus" as to its applicability."^[1]

[43]            In the present case, there is unequivocal evidence that the Salt River First Nation had a well-defined election custom in place. The settled practices have included elections approximately every two years; notice of an election; nominations closed in advance of the election; election by secret ballot; council comprised of a chief and six or seven councillors; and, members must be eighteen years of age to vote.

[44]            The evidence before the Court also clearly shows that these practices were not followed at the purported election of November 3, 2002. That event took place according to a procedure that was entirely inconsistent with the contemporary custom of the band in that there was no prior notice of an election given to members, there were no nominations in advance of the election and the voting was not done by secret ballot. Furthermore, this highly unusual "election" occurred at a meeting in which no more than fifty or sixty of the over five-hundred electors were actually present.     

[45]            It is true that "custom" is not frozen in time and may be changed. However, any change requires a broad consensus of the members of the band. Unless and until an established custom for the selection of chief and councillors has been changed the established custom continues to apply. An election conducted in a manner inconsistent with the pre-existing custom will, therefore, be invalid unless there is proof that the pre-existing custom has been changed by the broad consensus of the band. Such a consensus requires more than a simple majority. It requires a manifestation of the will of the band members to be bound by a new set of rules.

[46]            There is simply no evidence here of a broad consensus of the SRFN to change the election custom which had been followed consistently since the time that Jerry Paulette was chief in the early 1990's and which was followed in the August 30, 2002 election. The respondents maintain that because SRFN election custom has not been codified there is no applicable and continuing body of election law. They agree that customs and traditions require democratic, fair and open elections, but argue that a simple majority of a quorum of forty electors at a meeting called for any purpose by the band council prevails over any pre-existing custom. According to the respondents, twenty-one out of forty electors attending such a meeting could determine to hold an election on the spot.

[47]            This is an erroneous view based upon a misconception of the meaning of the term "custom". Election custom does not need to be codified or written in any form. Custom can be established by unwritten election practices followed consistently in prior elections without complaint from band members. Furthermore, "custom" within the meaning of the Indian Act is a body of law and as such it continues to exist until it is changed by due process. Contrary to the respondent's position, the customary electoral practices of the SRFN cannot be changed on an ad hoc basis at a meeting where there has been no notice given that a proposal to change electoral custom is to be discussed.

[48]            Not only was the purported election of the respondents on November 3, 2002 not conducted in accordance with the election customs of the SRFN, the entire process breached the most fundamental principles of natural justice and fairness. It is imperative that reasonable notice be given to the members of a First Nation of an election of its leaders. Where notice is not given the effect is to disenfranchise the electors who do not happen to be at the place of the election at the relevant time. That is what happened here. The will of the SRFN members is demonstrated by their adherence to principles of fairness and democracy and, in particular, elections by secret ballot after due notice, throughout the 1990's. What occurred on November 3, 2002, was the exercise of the will of a small rump group of the SRFN who took advantage of the absence of the vast majority of the members. By holding an election without notice they effectively disenfranchised the members who were not in attendance.

[49]            For all of these reasons, the purported removal of the applicants from office as councillors of the SRFN at the meeting of the members held on November 3, 2002, is void and of no effect. The purported election of the respondents Nora Beaver, David Gowan, Connie Benwell, Norman Starr, Michel Bjornson, Harvey Lepine and Don Tourangeau at the said meeting is equaly void and of no effect. The applicants and Norman Starr are the duly elected councillors of the Salt River First Nation. Although the applicants have requested that the Court enjoin Jeannie Marie Jewell from entering the offices or other buildings of the SRFN, I have no jurisdiction to grant such a remedy in the context of this judicial review application. The actual Band Council has already put forward a motion of this nature and it is now up to them to resolve the matter internally. Costs to the applicants.

[50]            On January 10, 2003, the Court ordered that a trust account being administered by RBC Investments, Aboriginal Services in Winnipeg, Manitoba be frozen until further order of this Court; it further ordered that two corporate bank accounts 4991NT Ltd. and 4992NT Ltd. Operating with the Bank of Montreal in Forth Smith, NT remain frozen until further order of this Court; it was also ordered that various other bank accounts operated by the Band also at the Bank of Montreal, Forth Smith Branch, NT be limited and authorized to clear payments that pertain to payroll and certain other transactions. This outstanding order is to remain in effect until the expiry of the appeal period, thirty days from the date of this order. Should any instructions of authorizations be required in this regard, the parties may apply to the Court and conference calls may be arranged in order that good governance of Band affairs can continue.

     JUDGE

OTTAWA, Ontario

May 29, 2003

                                                                                 FEDERAL COURT OF CANADA

                                                                                               TRIAL DIVISION

                                                         NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:              T-2007-02

STYLE OF CAUSE:

Melvin Wanderingspirit, Delphine Beaulieu, Toni Heron, Raymond Beaver and Sonny McDonald in their capacity as Councillors of the Salt River First Nation 195, elected August 30, 2002

- and -

Victor Marie uncontested Chief and Norman Starr uncontested duly elected Band Council Member, Nora Beaver, David Gowans, Connie Benwell, Michel Bjornson, Harvey Lepine, and Don Tourangeau, purportedly elected Band Councillors at a meeting held November 3, 2002, and Jeannie Marie-Jewell, acting as Interim Band Manager

PLACE OF HEARING:                          Edmonton, Alberta

DATE OF HEARING:                            April 23, 2003

DATED:                                   May 29, 2003

APPEARANCES:

Mr. Christopher Harvey, Q.C. and                                                          FOR THE APPLICANTS

Mr. Kevin G. O'Callaghan

Mr. Robert A. Philp, Q.C.                                                                          FOR THE RESPONDENTS

SOLICITORS OF RECORD:

MacKenzie Fujisawa

1600 - 1095 West Pender Street

Vancouver, British Columbia

V6E 2M6                                                                                                        FOR THE APLICANTS

Fasken Martineau DuMoulin LLP

2100 - 1075 West Georgia Street

Vancouver, British Columbia

V6E 3G2                                                                                        FOR THE APPLICANTS

Philp Law Office

114 - 7 St. Anne Street

St. Albert, Alberta

T8N 2X4                                                                                                        FOR THE RESPONDENTS