Date: 20051025
Docket: T-629-05
Citation: 2005 FC 1430
Ottawa, Ontario, this 25th day of October, 2005
Present: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
CHIEF ARCHIE CATHOLIQUE
Applicant
and
THE BAND COUNCIL OF LUTSEL K'E FIRST NATION
Respondent
AND
Docket: T-718-05
BETWEEN:
CHIEF ARCHIE CATHOLIQUE
Applicant
and
THE BAND COUNCIL OF LUTSEL K'E FIRST NATION,
BRENDA MICHEL, TERRI ENZOE, RICHARD MARLOWE,
ADDIE JONASSON, DAVID NATAWAY and ALBERT BOUCHER
Respondents
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The applicant, Archie Catholique, says that as the heart of this matter is the need to maintain stable government for the Lutsel K'e First Nation, he is entitled to serve the remainder of his term as Chief. The respondents, the current members of the Band Council, submit that what is at stake is respect for the band's customary practice in which the members may vote to remove their Chief from office when they are dissatisfied with the Chief's performance.
FACTS
[2] The Lutsel K'e First Nation is one of the Akaitcho Dene First Nations and a "band" as defined in section 2 of the Indian Act, R.S.C. 1985, c.I-5 (the "Act"). There are currently no reserves in the Akaitcho traditional territory. The Lutsel K'e band is based at the community of Lutsel K'e, formerly known as Snowdrift, located on the south shore of the east arm of Great Slave Lake, Northwest Territories. The 2000 Federal census gave the population of the settlement at that time as 377. The membership of the First Nation on the register maintained by the Department of Indian and Northern Affairs Canada was 670 when these proceedings were initiated. Some of the band members live in Yellowknife, in other communities or on the land.
[3] The Chief and Council of the Lutsel K'e Dene First Nation are elected by the custom of the band and not in accordance with section 74 of the Act. Until fairly recently, elections were conducted by a show of hands among the elders gathered at the treaty days in June of each year.
[4] As attested to by Ray Griffith, acting Band Manager and long-time resident of the community, a process to develop organizational and governance policies for the band began with the aid of a consultant in 1999-2000. Workshops were conducted and draft policies evolved which were compiled in a document entitled the Lutsel K'e Dene Band Organizational Policies Manual. None of these policies was formally adopted by Band Council or the membership. Included among them was an Interim Customary Election Code developed for use in the council elections scheduled for June, 2001. It is not clear from the band's records whether this Code was in fact used to conduct the elections that year.
[5] Mr. Catholique was elected as Chief, along with six councillors, in the 2001 elections.
[6] A report submitted to Council in September, 2001 pointed to some problems with the Interim Customary Election Code, including that it contained an election balloting procedure that was not, in fact, customary or traditional and that there was a need for better integration of traditional approaches, including the role of the elders, before it could be revised and formally passed before the next election.
[7] An attempt was made to consult the elders and other members of the community on the proposed Election Code. Brenda Michel attests that she received a contract to conduct the consultations and report to Council in advance of the elections slated for 2003. Ms. Michel states that very few of the recommendations made by the elders she reported upon were included in the version of the Election Code developed for use in the 2003 elections.
[8] The provisions of the 2003 draft Election Code were approved at a public meeting of the band on June 9, 2003, by a vote of 28-1, to serve as a guide to the elections of the Chief and Councillors set to take place a month later. Among the recommendations adopted were arrangements for non-residents to vote in Yellowknife, or by fax if not in Lutsel K'e or Yellowknife on election day; presumably in response to the decision of the Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 recognizing the right of non-resident members to vote in band elections.
[9] Chief Catholique was returned to office in the July 2003 elections. As provided for in the version of the Lutsel K'e First Nation Customary Election Code dated June 19, 2003, which is attached to his affidavit, the duration of the term of office of the Chief was set at four years.
[10] The June 19th 2003 Election Code states that it "is in effect until the Lutsel K'e First Nation Annual General Assembly in September of 2003". The minutes of the June 9, 2003 public
meeting indicate that revisions to the draft Code were to be presented at the annual assembly. Thus it appears that the draft Code adopted in June, 2003 was not intended to be final until ratified by the band membership at the annual assembly. According to Mr. Griffith's affidavit, there is no indication in the minutes of the 2003 annual general assembly that the draft Code was discussed or adopted at that time.
[11] The 2003 draft Code, among other things, provides that the Chief and Councillors shall be elected separately and shall remain in office for four years unless he or she:
- resigns;
- is convicted of an indictable offence while in office; and
- is removed from office through a vote of non-confidence by the Lutsel K'e Dene Council due to serious violations of the Code of Conduct.
[12] The Code of Conduct referred to does not form part of the draft Election Code but a copy is attached as an exhibit to the affidavit of Steven Nitah, a member of the First Nation and resident of the settlement of Lutsel K'e. Mr. Nitah is General Manager of a corporation owned by the band and was, for a short period during the events addressed in these proceedings, also a member of Council.
[13] The Code of Conduct appears as section 3.1.1 of the Lutsel K'e Dene First Nation Organizational Policies Manual. It sets out nine principles to govern the behaviour of the Chief
and Councillors such as working cooperatively to serve the membership and acting as a role model within the community. For breach of these principles, section 3.1.2. calls for progressive disciplinary measures including reprimands leading to a vote of non-confidence by the Council.
[14] There are some differences in the evidence on the record as to the sequence and nature of the events that followed Chief Catholique's re-election in 2003. Counsel for the applicant has explained that as Chief Catholique has not had access to Band records for some time, the records attached to his affidavits are incomplete. Where there are differences between his recollection and recording of events and those of Mr. Nitah and other witnesses for the respondents, I prefer the latter as they are more detailed and complete.
[15] Mr. Nitah describes Archie Catholique's second term in office as "tumultuous" as concerns arose over his leadership style, management of the band's financial affairs, alleged nepotism in staffing band positions and lack of consultation with the elders in decision making. Dissatisfaction led to an attempt to remove him from office in July 2004 by a petition signed by 117 members of the community. Mr. Nitah says that the petition was not brought to the attention of Council due to its inability to form a quorum at that time. A forest fire had required the evacuation of many residents of the community to Yellowknife.
[16] Due to the fire, there was no annual general meeting in 2004 and, hence, no opportunity to air the concerns addressed in the petition with the Band membership as a whole. In particular, no opportunity for the membership to review the Band's financial statements. Decisions made by the Council attracted criticism as did the Chief's frequent travel outside the community.
[17] Matters came to a head following a decision by the Council on January 23rd, 2005 to discontinue water delivery and sewage collection from the homes of those who had overdue accounts with the Band. Shortly thereafter, a meeting of Band members, at a special assembly on January 28, 2005, adopted a resolution to remove the Chief from office.
[18] Notice of the January 28, 2005 meeting had been given only earlier that day. It appears from minutes attached to Mr. Nitah's affidavit that 42 Band members were in attendance including three Councillors and the Chief. Another count, by Emily Saunders, was that 63 members attended at least in part. Mr. Nitah, who had just earlier that month been elected to fill a vacancy on the Council was invited to chair the meeting. Chief Catholique participated actively in a lively discussion about the concerns with his leadership. At the conclusion of the meeting, 37 members voted in favour (5 abstained) of instructing the Council to remove the Chief and to order a forensic audit of the band's finances.
[19] On the following day, January 29th 2005, the Band Council, acting in accordance with the understanding that the Election Code required them to confirm the resolution of the special assembly, voted unanimously to remove Archie Catholique from his office as Chief, to remove
his sister, Rita Catholique, from her position as the Band's senior administrative officer and to request a forensic audit of the Band's finances.
[20] Chief Catholique was not present at the January 29th meeting, but met with Council the next day, January 30th, along with the Band's solicitor who provided advice on the Band's election procedures. It appears that there was some confusion over this question as the draft Election Code had never been formerly ratified by the Band membership at a general assembly, the Code of Conduct did not form part of the Election Code and there was a further document, described as the Lutsel K'e Constitution ("draft Constitution and Bylaws"), the status of which was also uncertain, which appeared to govern the removal of the Chief and Councillors.
[21] Section 10.3 of the draft Constitution and Bylaws states that any vote by 60% of the voting members in attendance at a Special Assembly is sufficient to remove the Chief and Councillors.
[22] Accordingly, at the January 30th meeting the councillors decided to call a Band membership Special Assembly to revisit the membership and council resolutions calling for the Chief's removal. For this Special Assembly, Council decided that 7 days notice would be required. Accordingly posters were put up in the community and arrangements were made to have announcements aired on territorial radio stations that the assembly would take place on February 7th .
[23] Noeline Villebrun, National Chief of the Dene Nation, chaired the meeting on February 7th and the draft Constitution and Bylaws were followed as to procedure. At this assembly, following lengthy debate in which the Chief challenged the allegations against him, the membership present (estimated at 95-97), in a vote of 67-23 with 2 spoiled ballots, adopted a resolution to remove the Chief and Councillors from office. Additional resolutions were adopted to manage the Band's affairs until new elections could be held, which were scheduled for February 24, 2005.
[24] Mr. Griffith attests that in his 25 years in the community he has attended most of the annual general meetings, general membership meetings and special assemblies in the community. Attendance at those meetings usually varied from approximately 20-40 persons. Occasionally there would be as many as 60. The February 7th meeting with 97 reported members in attendance was the largest such assembly he had encountered. He says that notice of special assemblies and the annual general meetings is normally posted at the Band office and Co-op store and announced on territorial radio stations.
[25] Mr. Nitah says that none of the Councillors holding office at that time contested the decision nor the subsequent election of the new Councillors who are respondents to this application. It appears from the evidence that, initially at least, the applicant was also prepared to accept the Band's decision, subject to satisfactory terms being reached, including an
appointment to a salaried band position as a treaty negotiator or, to being paid his salary for the remainder of his term.
[26] Under the terms of the draft Election Code, the vote of the membership to remove the Chief had to be ratified by Council. The Councillors acceptance of their own removal made that impractical, at least until a new council was elected. However, the Band's draft Constitution and Bylaws did not require ratification of the decision. Instead, it provides that removal can be effected by Council or by a Special Assembly of the Band membership.
[27] The election of new Councillors took place, as scheduled, on February 24th. The election for the Chief's position was postponed as the sole candidate, a former Chief, withdrew at the last moment. A subsequent scheduled election date was also postponed due to the death of a respected community elder.
[28] To forestall a further attempt to elect a new Chief slated to take place on April 14, 2005, Mr. Catholique brought an application for injunctive and declaratory relief. The application in court file T-629-05 is to enjoin the band from holding the April 14, 2005 election or any further election for the Chief's position and for judicial review of the process to replace the applicant (and some of the Councillors, though those Councillors are not parties to the application). The requested relief is an order declaring that the applicant remains the Chief unless and until removed in accordance with the Custom Election Code. The application in file T-718-05 makes
the same requests for relief in respect of an election which was subsequently scheduled for May 13, 2005 and adds a request for a writ of quo warranto against the current Band Council office holders.
[29] On April 12, 2005 Justice Campbell issued an Order enjoining the Band from holding any election until further Order of the Court and directing the hearing of a motion for further injunctive relief on May 12, 2005. Justice Rouleau heard that motion on May 12th and issued Orders granting the interlocutory injunctions, denying the applications for declaratory relief and directing that a date for the hearing of this judicial review application be fixed peremptorily. Justice Rouleau further ordered these actions consolidated and, on May 27th ordered the reinstatement of Mr. Catholique's salary as Chief pending final disposition of these proceedings and subject to an undertaking that Mr. Catholique would reimburse the Band if unsuccessful in the outcome.
JURISDICTION
[30] It is well settled that a band council is a "federal board, commission or other tribunal" as defined by subsection 2(1) of the Federal Courts Act, 1998 when it acts pursuant to the Indian Act: Canatonquin v. Gabriel [1980] 2 F.C. 792, [1981] 4 C.N.L.R. 61 (C.A.). Jerome A.C.J., determined in Ermineskin v. Ermineskin Indian Band Council, (1995) 96 F.T.R. 181, [1995] F.C.J. No. 821(QL) (F.C.T.D.) that the authority exercised by a Band Council over its membership is derived from the Indian Act, and the exercise of that authority is thus subject to judicial review.
[31] It is less clear that decisions by Band membership assemblies are subject to this Court's jurisdiction, however the respondents have not raised any objection to these proceedings on that ground. Neither has any issue been raised with respect to the legitimacy of the process by which Chief Catholique was elected in 2003. The respondents accept that the draft Code served at least as a guideline for the 2003 election but contend that it is not exhaustive of the Band's customary practice.
[32] Jurisdiction to issue a writ of quo warranto is also within the jurisdiction of this Court: Federal Courts Act, 1998, section 18(1)(a):
18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal;
STANDARD OF REVIEW
[33] The issues in these proceedings relate to the fairness and natural justice of the process employed to remove Chief Catholique from office. Though the courts have recognized that the duty of fairness is flexible depending on the circumstances, these questions are decided on a
correctness standard. A pragmatic and functional analysis of the standard is not required when questions of procedural fairness are at issue: Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1. S.C.R. 539, 2003 SCC 29">2003 SCC 29.
ISSUES
[34] Much of the evidence filed in these proceedings addressed the merits of whether Chief Catholique should have been removed from office. However, as argued by the parties at the hearing, the legal dispute is whether under Band custom a Chief of the Lutsel K'e can be removed through direct action by the community or only through action taken by the Band's elected representatives on Council under the terms of the draft Election Code.
[35] I would frame the issues as follows:
1. Does the draft Customary Election Code reflect the custom of the Lutsel K'e?
2. Was the removal of Chief Catholique procedurally fair ?
3. Is a writ of quo warranto available in this case?
ANALYSIS
1. Status of the Draft Customary Election Code
[36] In his written submissions, the applicant's position was that the draft Code should govern the procedure for his removal. As he was elected under the draft Code, he should be removed under it as well. The Code was intended to be the codification of Band custom and as such, should govern. At the hearing, counsel for the applicant was less certain that the draft Code was still operative and submitted that there were three possible conclusions:
1. The draft code remains valid and thus the Chief could only be removed under its terms;
2. The code is invalid and the procedure to remove him was according to Band custom and valid; and
3. The code is invalid and the custom for removing a chief is unknown.
[37] Counsel acknowledged that the third option was the least desirable as it would lead to the conclusion that there was no means to remove the Chief prior to the expiry of his term. He suggested, nonetheless, that it might apply in these circumstances as the Band's customary election practices were still evolving. Alternatively, counsel suggested, under Band custom, the Chief could only be removed by a meeting of the elders and that was not done.
[38] The respondents' position is that the draft Code was never ratified by the full Band membership. Although Band members voted to use it as a guideline in the 2003 election, it is still in draft form and does not in any case represent Band custom. Under Band custom as reflected in the draft Constitution and Bylaws, the Chief could be removed by the vote of a special meeting of the membership. Chief Catholique was removed by a sufficient majority to constitute a broad consensus of the membership.
[39] I think it is clear from the minutes of the June 9, 2003 Band meeting filed by both parties, which differ slightly but not in substance on this point, and from the document itself, that the draft customary Election Code was a work in progress intended to be approved or revised by the Band membership at a subsequent annual general meeting. There is no evidence that such approval took place. In my view, therefore, adoption of the draft Code for the elections of July 2003 did not bind the Band membership to accept the procedure that it sets out so as to preclude the removal of Chief Catholique and the Band Councillors from office by other means.
[40] What constitutes Band custom for the Lutsel K'e First Nation is, I think, still in a process of evolution. The practices which constitute custom may evolve, are not frozen in time, and may change in response to changed circumstances: McLeod Lake Indian Band v. Chingee, (1998) 153 F.T.R. 257, [1998] F.C.J. No 1185 (QL) (F.C.T.D.) at para 10.
[41] As described in the affidavit of Antoine Michel, in the early days after the signing of Treaty 8 with the Federal Government, the Chief was chosen by the elders. This was usually done by a show of hands during a feast at someone's home, at Treaty time in July. Pierre Marlowe, 73 years old, attests in his affidavit to how this was done from the 1940's through the 1990's.
[42] Angelina Lockhart-Lantz attests to her own experience as a Chief who was asked to step down by the community. This was at a public meeting in June of 1993 after she had been only 6 or 7 months in office. She says that was the custom of the Lutsel K'e First Nation of which she was taught by her grand-father, a much honoured chief in the 1950s. She showed her respect for the community, especially the elders, by accepting their decision.
[43] Ray Griffith, from his long exposure to the community, offers the view that the people of Lutsel K'e have retained authority over major decisions affecting the community, including leadership reviews. Representative government has not been well established and the band members regularly call for membership meetings on even minor issues.
[44] In order to determine what Band custom may be at any given time, one must have regard to the views of the community. In Bigstone v .Big Eagle, (1992) 52 F.T.R.109, [1993] 1 C.N.L.R. 25, Strayer J. held at paragraph 20 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." This statement was cited with approval by Reed J. in McLeod, supra at paragraph 10.
[45] How does one determine whether the practices for choice of a council are "generally acceptable" or enjoy a "broad consensus" among the members of the Band? This involves a subjective determination. One of the clearest articulations of the requisite subjective element for the establishment of the custom of a Band is found in McLeod, supra at paragraphs 18-19:
¶ 18 The question that remains is whether "broad general consensus" equates to a "majority decision of the Band members attending a general meeting of the Band convened with notice". In my view, it may do so, or it may not, depending upon a number of factors. If for example, the general meeting was held in a location or at a time when it was difficult for a number of members to attend, and there was no provision for proxy voting, it may not meet the broad consensus test. If the notice was not adequate in not providing sufficient detail of what was proposed, or was not given sufficiently in advance of the meeting to allow people a realistic opportunity to attend then it would not be.
¶ 19 There are also situations in which those who do not vote may be signalling a willingness to abide by the majority decision of those who do. I am of the view that approval by a majority of the adult members of the Band is probably a safe indication of a broad consensus (the age of majority being a matter for the band to determine). Whether a majority decision by the Band members attending a general meeting demonstrates a broad consensus depends on the circumstances of that meeting.
[46] In this case, the evidence indicates that seven days notice of the meeting was provided, efforts were made to notify members living outside the settlement, the meeting was held at a central location, the community centre, and a large proportion of the adult population of Lutsel K'e attended. Interpreters were appointed to provide translation to and from English and Chipewyan (Dene) for the Elders.
[47] As indicated by Mr. Griffith, it was the largest such assembly in many years. There is no evidence on the record that the meeting was held at a location or time when it was difficult for members to attend. I recognize that it may have proved difficult for band members who lived in Yellowknife or elsewhere to attend but the applicant has not put forward any evidence to suggest that such members who may have wished to were unable to participate.
[48] No provision was made for proxy voting but I note that when this question was raised at the June 9, 2003 band meeting that approved the arrangements for the elections that year, it was not endorsed. Arrangements for voting by fax and at a poll in Yellowknife were approved but neither would have been practical in the circumstances for the special assembly. Such measures were employed for the subsequent election of the new slate of councillors voted into office.
[49] Angelina Lockhart-Lantz attests that of the 436 registered members who were eligible to vote in Lutsel K'e First Nation elections as of February, 2005, only 173 currently reside in the community. Thus the 90 plus in attendance at the February 7th meeting was a clear majority of the residents and those most directly affected by the outcome. I am satisfied that the vote which took place on that occasion reflected the broad consensus of the adult members of the band.
[50] The respondents have established that the draft Customary Election Code did not fully reflect the custom of the Lutsel K'e First Nation and that the custom of the band in February
2005 included the practice of removal of a Chief and Councillors from office by an expression of the consensus of the community through the vote of a special assembly.
2. Procedural Fairness
[51] The applicant submits that basic procedural fairness was not followed at the meeting in which he was voted out of office. He was not given notice of the reasons why members wanted him removed from office and was not given an adequate opportunity to respond to the concerns about his leadership. Further he submits that there was no proper interpretation for the elders who understood only Chipewyan, at the meeting.
[52] The respondents' position is that Chief Catholique was fairly removed from office by the Band membership according to Band custom.
[53] As stated by Justice Rothstein in Sparvier v. Cowessess Indian Band [1993] 3 F.C. 142, (1993) 63 F.T.R.242 at paragraph 47, while the courts should be reluctant to interfere in band election processes, the principles of natural justice and procedural fairness must be observed.
While I accept the importance of an autonomous process for electing band governments, in my opinion, minimum standards of natural justice or procedural fairness must be met. I fully recognize that the political movement of Aboriginal People taking more control over their lives should not be quickly interfered with by the courts. However, members of bands are individuals who, in my opinion, are entitled to due process and procedural fairness in procedures of tribunals that affect them.
[54] The Supreme Court of Canada has stated that the content of the duty of fairness will vary according to several factors. These include: the nature of the decision and the decision-making process employed; the importance of the decision to the individuals affected; the legitimate expectations of the party challenging the decision; and the nature of the deference accorded to the body: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999) 174 D.L.R. (4th) 193; Congrégation des témoins de Jéhovah de St-Jérome v. Lafontaine (Village), [2004] 2 S.C.R. 650, 2004 SCC 48">2004 SCC 48.
[55] While considerable deference should be accorded decisions of the band membership affecting their own governance, Chief Catholique was entitled to be treated fairly as an individual and member of the band. The decision to remove him would have an immediate effect on his income and the respect and prestige which he had previously enjoyed as Chief. It is questionable, however, given my findings about the band's customary practices that he had a reasonable expectation of maintaining his position until the conclusion of his term.
[56] Whether the principles of procedural fairness and natural justice were observed in this instance requires an assessment of whether sufficient notice was given to the interested parties and whether an adequate opportunity to be heard was provided to Chief Catholique and any other affected party.
[57] In Duncan v. Behdzi Ahda First Nation (2003) 242 F.T.R. 135, 2003 FC 1385 the removal of the Chief and a Band Councilor was quashed after the applicants were not present or given notice of the meeting at which the vote to remove them was held. As stated by Justice Gibson at paragraph 20:
There was a duty of fairness on the Councilors who purposed to dismiss Chief Duncan and Councilor Duncan from office and the content of the duty of procedural fairness on the facts of this matter was at least¼notice and an opportunity to make representations.
[58] In this case, the band membership meeting of January 28th and Council meeting of January 29th did not conform to the duty of fairness as the applicant was not given either adequate notice or a sufficient opportunity to be heard. The same does not apply to the February 7th Special Assembly. In my view, the applicant was given sufficient notice of the purpose of that meeting and the allegations against him (set out in the January 30th Council resolution) and was provided the opportunity, which he exercised, to make representations at the assembly to challenge the allegations. The allegations had also been aired at the meeting of January 28th which the applicant attended, albeit on short notice.
[59] I have carefully read the applicant's comments to the February 7th meeting. He made no complaint at that time about the quality of the interpretation services or the lack of an opportunity for non-residents to participate. As noted above efforts were made to notify non-resident members although it is not clear from the evidence that those efforts were successful.
The interpretation services provided, while informal, appear from the minutes of the assembly to have been adequate.
[60] The applicant's statements at the meeting were focussed on what he considers, not unjustifiably, to be the weakness of the case for his removal. In his view, he had not committed any breach of the Code of Conduct that would justify his removal and accordingly, was entitled to serve out his term. Unfortunately, a majority of the residents of the community reflecting a broad consensus thought otherwise.
[61] There are no grounds, in my view, to conclude that the applicant was denied procedural fairness or natural justice in his removal from office.
3. Availability of Quo Warranto
[62] At the hearing, counsel for the applicant advised that quo warranto was sought "out of an abundance of caution" to prevent the Councillor, currently designated as sub-chief, from carrying out the Chief's duties until the expiry of the term Mr. Catholique was elected to in July 2003. Alternatively, the applicant seeks a declaration that the sub-chief may not exercise those duties.
[63] The test for quo warranto relief and the additional considerations appropriate for the Court to consider when this remedy is requested were set out in Jock v. Canada, [1991] 2 F.C. 355, (1991) 41 F.T.R. 189 (T.D.) at para. 46 citing from de Smith's Judicial Review of Administrative Action (4th ed. by J.M. Evans, 1980). Among them are that the office in question must be one of a public nature and the purported holder must have already exercised the office; a mere claim to exercise it is not enough. Other considerations to be taken into account include whether all internal relief avenues have first been exhausted.
[64] The respondent submits that the applicant has failed to demonstrate that he has exhausted all of his internal relief avenues. In this context, that would have been to appeal the election of the current Band Councillors, including the Councillor acting as sub-chief, through the Band's election appeals procedures. However, it is his own removal that he has objected to not the election of the Councillors, and as there has not yet been an election to replace him, those appeal provisions can have no application.
[65] The respondent does not address what I see as the issue fatal to the application for quo warranto: there is no current Chief of the Lutsel K'e Band against whom this writ could issue, purporting to exercise the office of which the applicant claims to have been improperly deprived. The acting sub-chief is simply a Band councillor taking on additional responsibilities, not the duly elected (or not) Chief. Thus, the second of the Jock criteria has not been met.
[66] In any event, as I have found that the removal of the applicant from his office was conducted in accordance with band custom and was not procedurally unfair, he has no claim to the writ.
CONCLUSION
[67] As indicated above, I have concluded that Mr. Catholique was removed from office according to the custom of the Lutsel K'e First Nation and that his applications for relief from this court can not be granted. Nonetheless, the court recognizes that the applicant has been sincere in expressing the legitimate concern that constant recourse to the electoral process to resolve grievances within the community may contribute to its instability. This view was shared by a Council of Elders quoted in the Report of the Royal Commission on Aboriginal Peoples, vol.2, 1996 at p.149:
We are greatly concerned that Aboriginal people are increasingly equating "democracy" with the act of voting.
COSTS
[68] The applicant submits that he has paid his own expenses in bringing this application and that if he is unsuccessful in the outcome the court should not award costs against him as the respondents' costs are being borne by the Band. Respondent's counsel did not object to that
position. The airing of these issues may serve a useful purpose for the Band. Accordingly, it would not be appropriate to impose costs on the applicant.
ORDER
THIS COURT ORDERS that the applications for judicial review in court files T-629-05 and T-718-05 are hereby dismissed. A copy of these reasons for order and order shall be placed on each file. The parties shall bear their own costs.
" Richard G. Mosley "
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-629-05 and T-718-05
STYLE OF CAUSE: CHIEF ARCHIE CATHOLIQUE
and
THE BAND COUNCIL OF LUTSEL
K'E FIRST NATION
AND
CHIEF ARCHIE CATHOLIQUE
and
THE BAND COUNCIL OF LUTSEL
K'E FIRST NATION, BRENDA MICHEL,
TERRI ENZOE, RICHARD MARLOWE,
ADDIE JONASSON, DAVID NATAWAY
and ALBERT BOUCHER
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: August 9-10, 2005
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: October 25, 2005
APPEARANCES:
Steven L. Cooper FOR THE APPLICANT
Garth L. Wallbridge
Melissa Stappler
William M. Rouse FOR THE RESPONDENTS
SOLICITORS OF RECORD:
STEVEN L. COOPER FOR THE APPLICANT
GARTH L. WALLBRIDGE
MELISSA L. STAPPLER
Ahlstrom Wright Oliver & Cooper
Sherwood Park, Alberta
WILLIAM M. ROUSE FOR THE RESPONDENTS
Field LLP
Yellowknife, Northwest Territories
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