Clifton v. Hartley Bay (Electoral Officer), 2005 FC 1030

Date: 20050725

Docket: T-2422-03

Citation: 2005 FC 1030

Ottawa, Ontario, this 25th day of July , 2005

PRESENT:    THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

HEBER CLIFTON, CLARENCE ANDERSON, WALTER ROBINSON,

LORRAINE BOLTON, CATHY CLIFTON, CLARK CLIFTON, LUCY P. CLIFTON,

MEAGAN CLIFTON, ROBIN CLIFTON, SEAN CLIFTON, MARY DANES,

PAUL H. DUNDAS, TRINA EATON, THERESA FAULKNER, RUBY J. KINGSHOTT,

MILDRED LEASK, DARLENE LELAND, KAARLENE LINDSAY,

JESSICA McDONALD, ELINOR MASON, PHIL NYAKIS, MAISIE A. PAHL,

JOHN W. PAHL, VERONICA PAHL, GLENN REECE, PERRY REECE,

SHELLY REECE, EDNA RIDLEY, FRED RIDLEY, HARVEY RIDLEY,

JOHN RIDLEY, LESLIE RIDLEY, ALLAN ROBINSON, BRIAN L. ROBINSON,

DELORES ROBINSON, DOUGLAS ROBINSON, EUGENE T. ROBINSON,

JULES ROBINSON, MALCOLM S. ROBINSON,

MARIE M. ROBINSON, ANNE SUPRINA, and LAWRENCE WILSON

Applicants

- and -

DAVID BENTON in his capacity as the HARTLEY BAY ELECTORAL OFFICER

THE HARTLEY BAY VILLAGE COUNCIL, and

THE HARTLEY BAY INDIAN BAND

Respondents

REASONS FOR ORDER AND ORDER

NOTE: STYLE OF CAUSE AMENDED AS PER TRANSCRIPT

O'KEEFE J.

[1]    This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c.F-7 as amended, of the following, which the applicants have referred to collectively as the "Decisions":

1.          A decision, order, act or proceeding of the Hartley Bay Electoral Officer or the Hartley Bay Village Council or both, dated on or about December 8, 2003, permitting the elections for the Hartley Bay Village Council (the "2003 elections") to proceed.

2.          A decision, order, act or proceeding of the Hartley Bay Electoral Officer dated on or about December 8, 2003, declaring the result of the 2003 elections.

3.          A decision, order, act or proceeding of the Hartley Bay Electoral Officer or the Hartley Bay Village Council (the "Village Council") or both, dated in or about November 2003, the particulars of which are better known to the respondents, declaring the Hartley Bay Band Custom Election Regulations (the "Regulations") applicable to the 2003 elections.

4.          A decision, order, act or proceeding of the Hartley Bay Electoral Officer made on or about November 24, 2003, that members of the Hartley Bay Indian Band (the "Band") who do not reside on the Hartley Bay Band Reserve (the"Reserve") or who had not resided on the Reserve for six months prior to the 2003 election, are not eligible to be nominated as candidates for the position of Chief or Councillor or both of the Council in the 2003 elections.

5.          A decision, order, act or proceeding of the Hartley Bay Electoral Officer made on or about November 28, 2003, that members of the Hartley Bay Indian Band who do not reside on the Reserve or who had not resided on the Reserve for six months prior to the 2003 elections are not eligible to be nominated as candidates for the position of Chief or Councillor or both of the Hartley Bay Village Council in the 2003 elections and are not eligible to vote in the 2003 elections.

6.          A decision, order, act or proceeding of the Hartley Bay Electoral Officer or his delegate made on or about December 8, 2003, refusing to allow members of the Hartley Bay Indian Band who do not reside on the Reserve or who had not resided on the Reserve for six months prior to the 2003 elections to vote in the 2003 elections.

[2]    The applicants request:

1.          An order in the nature of certiorari pursuant to paragraph 18.1(3)(b) of the Federal Courts Act, supra, quashing or setting aside the Decisions or one or more of them;

2.          An order pursuant to paragraph 18.1 (3)(b) of the Federal Courts Act, supra, declaring the 2003 elections to be invalid as:

(i)          contrary to subsection 15(1) of the Constitution Act, 1982; and

(ii)         further, or in the alternative, not in accordance with the custom of the Band as accepted by a broad consensus of the membership of the Band.

3.          An order in the nature of certiorari pursuant to paragraph 18.1(3)(b) of the Federal Courts Act, supra, quashing or setting aside the result of the 2003 elections;

4.          An order pursuant to paragraph 18.1 (3)(b) of the Federal Courts Act, supra, or section 52 of the Constitution Act, 1982, or both, declaring the Regulations to be invalid on one or more of the following bases:

(i)          the Regulations are contrary to subsection.15(1) of the Constitution Act, 1982;

(ii)         the Regulations were not accepted by a broad consensus of the membership of the Band;

(iii)        the Regulations are not acceptable to a broad consensus of the membership of the Band; or

(iv)        the Regulations are contrary to the custom of the Band;

5.          An order pursuant to subsection 24(1) of the Constitution Act, 1982, amending the definition of Elector in the Regulations by striking out paragraph 2(c)(iv) of those Regulations which reads:

"Resides on Hartley Bay Band Reserve six months prior to election"

6.          In the alternative, an order in the nature of mandamus pursuant to paragraph 18.1 (3)(a) of the Federal Courts Act, supra, directing the Village Council to amend the Regulations or enact new Band Custom Election Regulations, by a date to be set by the Court, that:

(i)          comply with the Constitution Act, 1982, and , in particular, that permit members of the Band who do not reside on the Reserve but who are otherwise qualified to vote in Council elections to vote for all positions on the Council, to stand as candidates for any and all positions on the Council; and

(ii)         are based on the custom of the Band as accepted by a broad consensus of the membership of the Band;

7.          An order in the nature of mandamus pursuant to paragraph 18.1(3)(a) of the Federal Courts Act, supra, directing the Council to hold a new election for all positions on the Village Council pursuant to the Regulations as amended or replaced pursuant to paragraphs (e) or (f) above by a date to be set by the Court;

8.          In the alternative, an order in the nature of quo warranto pursuant to subsection 18.1(3) of the Federal Courts Act, supra, removing the members of the Council from office;

9.          An order that this Court retain jurisdiction of this matter until the Regulations are amended or replaced in accordance with paragraph (e) or (f) above and an election is held pursuant to paragraph (g) above;

10.        Costs; and

11.        Such further and other relief as this Honourable Court may seem just.

Background

[3]    The people of Hartley Bay belong to the Gitga'at Tribe of the Tsimshian Nation. There are currently approximately 644 Band members. Of those, approximately 455 live off-reserve. The traditional territory of the Gitga'at Tribe encompasses 5,500 square kilometres of land along the coast and coastal islands of British Columbia.

[4]    Hartley Bay is a reserve located on the Douglas Channel, near the Inside Passage. The governance of the Gitga'at is through both the hereditary Clan system (the "Clan Council") as well as the Village Council, elected pursuant to the Regulations, under subsection 2(1) of the Indian Act, R.S.C. 1985, c. I-5.

[5]    The Regulations were adopted by resolution of the Band in 1979 and approved by an Order amending Order in Council P.C. 3692. There were minor amendments to the Regulations in 1981.

[6]    Only an elector as defined by the Regulations may vote in an election, stand as a candidate, or nominate candidates for the election. One requirement to be an elector is that a person must reside on the Reserve six months prior to the election.

[7]    The election which prompted this judicial review application was held on December 8, 2003.

[8]    David Benton ("Benton") was the Hartley Bay Electoral Officer for the Village Council elections held on December 8, 2003 (the "2003 elections"). Benton applied the Regulations to the 2003 elections. The same Regulations (or substantially the same Regulations) applied in respect of the 2001 election for Village Council.

[9]    On or about November 24, 2003, a nomination meeting was held, pursuant to the Regulations, for the purpose of nominating candidates for the positions of Chief and Councillors for the 2003 elections. At that meeting, Benton would not accept the nomination of persons who had not resided on the Reserve for six months prior to the election. In previous elections, nominations for persons who had not met the six month residency requirement had been accepted, and in some instances, the person was elected.

[10]                        On or about November 28, 2003, Benton issued a written decision regarding the qualifications of certain persons to participate in the 2003 election as candidates and electors. He ruled that:

1.                                                                      the Regulations apply in respect of the 2003 election;

2.                                                                      persons who are members of the Band but who are not ordinarily resident on the Reserve are not "electors" under the Regulations;

3.                                                                      persons who do not meet the definition of "elector" under the Regulations are not entitled to be a candidate for the position of Chief or Councillor in the 2003 election, and are not entitled to vote in the 2003 election.

[11]                        On December 8, 2003, based on the results of the 2003 election, Benton declared Patricia Sterritt acclaimed for the position of Chief and Edward Robinson, Ellis Clifton, Cameron Hill and Bruce Reese elected Councillors for the Band.

Issues

[12]                        The issues as framed by the applicants are:

1.                                                                      The Regulations violate the equality rights of the applicants contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the "Charter") and this violation is not saved by section 1 of the Charter; and;

2.                                                                      The Regulations do not reflect the custom of the Band as supported by a broad consensus of the Band membership.

[13]                        The issues as framed by the respondents are:

1.                                                                      Whether the Gitga'at's two-tiered system of governance violates subsection 15(1)

of the Charter; and;

2.          Whether the Regulations reflect the custom of the Band.

Applicant's Submissions

[14]                        Issue 1

The applicants submitted that the Regulations violate their right to equality under subsection 15(1) of the Charter, by preventing them from participating in Band governance for reasons based on immutable characteristics. The Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs) [1999] 2 S.C.R. 203 held that the Indian Act, supra, and Indian Band Election Regulation, which excluded off-reserve members from participating in Band elections discriminated against off-reserve members and was contrary to section 15 of the Charter. The infringement was found to not be justified under section 1 of the Charter.

[15]                        The applicants submitted that this case is identical in all material respects to Corbiere, supra, except for one factor: the Hartley Bay Band is a custom Band whereas the council in Corbiere, supra, was elected under the Indian Act, supra. Accordingly, the only issue regarding the lawfulness of the of Regulations is whether Corbiere, supra, applies to Bands whose councils are chosen in accordance with the custom of the Band. This Court has suggested in numerous cases that Corbiere, supra, should apply to custom bands (see Scrimbitt v. Saskimay Indian Band Council, [1999] F.C.J. No. 1606, Gabriel v. Mohawk Council of Kanasatake, [2002] F.C.J. No. 635).

[16]                        The applicants submitted that whether the Village Council is acting according to custom or the Indian Act, supra, its decisions are ultimately made pursuant to its authority under the Indian Act, supra, and are therefore subject to the Charter (see Frank v. Bottle, [1993] F.C.J. No. 670 (F.C.T.D.), Horse Lake First Nation v. Horseman, [2003] 2 C.N.L.R. 193 (Alta. Q.B.)).

[17]                        The applicants submitted that the Regulations wholly exclude off-reserve members from participating in Band elections. The discrimination cannot be justified because the Regulations do not create a minimal impairment of the applicants' rights. Rather, they preclude off-reserve members from participating in Band governance at all, with no regard for possible avenues of recommendations. A minimal impairment must make at least some accommodation of the right to participate in matters that affect off-reserve members.

[18]                        The applicants submitted that the Village Council is responsible for the governance of the affairs of the Band. The applicants submitted that the evidence shows that the powers of the Village Council extend well beyond the needs of on-reserve members. For example, the Village Council is responsible for:

(a)        control over infrastructure and local governance;

(b)        control of access to on-reserve housing;

(c)        management and allocation of reserve land;

(d)        management of the finances and capital assets of the Band;

(e)        control over economic development initiatives and the benefit of the Band;

(f)          administration of post-secondary education funding for all Band members;

(g)        administration of health funding and programs for all Band members;

(h)         control of surrender of Band lands;

(i)          management and development of the natural resources on the property and within                                   the traditional territory of the Band;

(j)          engagement in and funding of the treaty process; and

(k)         management and protection of aboriginal rights and title both on and off reserve                                     lands.

[19]                        The applicants submitted that with respect to the hereditary chief system, the Clan Council is inadequate and cannot constitute accommodation of the applicants' rights and interests. There is no evidence before the Court as to, for example, whether notices of meetings are sent to off-reserve band members, how the Clan Council is chosen, how off-reserve members participate in meetings and decision-making, and how the Clan Council and Village Council resolve conflicts and whose decisions prevail in the case of a conflict.

[20]                        The applicants submitted that the Village Council is the only entity legally recognized by Canada, and the only entity that has the full legal and political authority to manage rights and interests of the off-reserve members of the Band; the Clan Council could have no actual power to govern the Band. For that reason, the applicants must have active and real participation in the election and functions of the Village Council.

[21]                        The applicants submitted that the Regulations are not based on the broad consensus of the Band. Therefore, the Regulations cannot constitute a justifiable limit on the applicants' rights "as prescribed by law", as required pursuant to section 1 of the Charter.

[22]                        Issue 2

The applicants submitted that the Regulations were adopted without the broad consensus of the membership of the Band and do not presently enjoy the support of the broad consensus of the membership. A Band's custom must include practices for the choice of council which are generally acceptable to members of the Band upon which there is a broad consensus (see Bone v. Sioux Valley Indian Band No 290, [1996] F.C.J. No. 150 (T.D.)(QL)). It is Band membership as a whole that must make this determination, not the Council alone and not just the on-reserve members (Mohawk of Kanasatake v. Mohawk of Kanasateke (Council), [2003] F.C.J. No. 156 (F.C.T.D.)).

[23]                        The applicants submitted that when the Regulations were adopted in 1979, they were intended to reflect the Indian Act, supra, model in place at the time, not the custom of the Band. There is no evidence that there was any discussion about traditional Band custom at the time the Regulations were drafted. There is also no evidence that the off-reserve membership was invited or even notified of the meetings at which the Regulations were discussed.

[24]                        The applicants submitted that in the alternative, if the 1979 Regulations did reflect the custom of the Band at that time, the circumstances have changed significantly since then, particularly with the decision in Corbiere, supra, such that it can no longer be said that the Regulations enjoy the support of a broad consensus of the membership, including off-reserve members.

Respondents'Submissions

[25]                        The respondents submitted that this case is distinguishable from Corbiere, supra, in that the Gitga'at have a two-tiered governance system which is well-established and facilitates the participation of all Band members regardless of their residency, in Gitga'at governance.

[26]                        The respondents submitted that section 15 of the Charter, supra, is not violated in this case. In Corbiere, supra, the concurring judgments of McLachlin J. (as she then was) and L'Heureux-Dubé J. both held that not all forms of differential treatment between on-reserve and off-reserve members constitutes discrimination. It is only when off-reserve members are completely excluded from participation in Band governance that a clear violation of subsection 15(1) of the Charter has occurred.

[27]                        L'Heureux-Dubé J. in Corbiere, supra, made it clear that identical voting rights between on-reserve members and off-reserve members is not required by section 15. The respondents submitted that a system of governance and representation exists in the Band such that the interests of off-reserve members are fully protected for Charter purposes.

[28]                        The respondents submitted that recognition by Canadian governments does not determine where power and authority lie within the Gitga'at Tribe, based on their traditions, lands and customs. The fact that the Village Council is legally recognized means that it is the "formal" partner empowered to enter into agreements, but does not mean it is the "substantive" decision-maker on all, or many, matters.

[29]                        The respondents submitted that the Clan Council has jurisdiction over non-reserve issues which affect all members - including aboriginal rights and title, protection of Gitga'at traditional territory, and treaty negotiations. The Clan Council is actively involved in economic development initiatives and has created the Gitga'at Development Corporation, in which the governing Board reflects the hereditary system of the Gitga'at, so that off-reserve members are fully represented and receive benefits equal to on-reserve members.

[30]                        By contrast, the Village Council's jurisdiction is related to the Indian Act, supra, Department of Indian Affairs' policy, and to local matters of direct interest to Band members living on-reserve. Where the Village Council is required to act - by virtue of the Indian Act, supra, or Department of Indian Affairs policy - in areas under the jurisdiction of the Clan Council, the Village Council acts at the direction of the Clan Council.

[31]                        The respondent submitted that:

1.          The Village Council has been able to secure the equivalent of 17 salmon gillnet licences which are available to on- and off-reserve members, and in fact, the vast majority of them are held by off-reserve members;

2.           The eco-tourism initiatives are led by the Clan Chiefs;

3.           With regard to treaty negotiations, the Clan Council gives the Village Council a mandate to participate in the treaty processes;

4.           The Clan Council is the guardian of the collective rights and title of the Gitga'at people; and

5.           Off-reserve members serve as Clan Chiefs. For example, Albert Clifton lives off-reserve and is the Clan Chief of the Gispudwada Clan.

[32]                        The respondents submitted that while there is differential treatment between on-reserve and off-reserve members, this differential treatment does not amount to discrimination. Far from a complete exclusion from band governance, off-reserve members are represented, participate and hold leadership positions in relation to the fundamental issues which impact their life and well-being as members of the Gitga'at.

[33]                        Absent any evidence of particular disadvantage, no violation of subsection 15(1) can be said to exist. In this case, unlike Corbiere, supra, the applicants have not shown any particular disadvantage as a result of the Regulations.

[34]          Minimal Impairment

The respondents submitted that if discrimination is found to exist in this case, the only issue is whether the Regulations minimally impair the right to representation. L'Heureux-Dubé J. specifically commented on a two-tiered system in Corbiere, supra. Accordingly, any violation of subsection 15(1) is saved by section 1 of the Charter as the equality rights of the applicants have only been minimally impaired by the Gitga'at two-tier form of Band governance. As the Court held in Corbiere, supra, excluding non-residents from voting is rationally connected to the objective. In this case, the Regulations ensure that those with the most direct and immediate interest - the residents- maintain voting control over the decisions that will affect the future of the Reserve. However, as the existence of the two-tiered governance system provides off-reserve residents with meaningful participation in the governance of the Band, any impairment resulting from restrictions in the Regulations is minimal.

[35]          Issue 2

Preliminary Objection

The respondents submitted that the Regulations were adopted over 25 years ago. A challenge to the Regulations in 2004 is barred by the applicants' excessive delay in commencing an application. A delay of twenty-five years in bringing judicial review of the decision to adopt the Regulations is clearly unreasonable. To allow the applicants to attempt to now establish that the Regulations were not based on a broad consensus of the Band creates substantial prejudice.

[36]          There is insufficient evidence for the Court to make a conclusive finding as to whether there did or did not exist a broad consensus of the Band membership at the time the Regulations were adopted. The only evidence before the Court is that at a meeting of the Band membership in 1979, the Regulations were approved by the unanimous vote of those in attendance at the meeting. The subsequent minor amendments to the Regulations were also overwhelmingly adopted by those in attendance at the meeting.

[37]          The respondents submitted that there is also no evidence as to the number of Band members in 1979, the number of Band members added to the Band list after Bill C-31 in 1985, the names and residency of those who participated in meetings adopting the Regulations and their amendments, and the broader context of the adoption of the Regulations.

[38]          Acquiescence

The respondents submitted that the applicants have acquiesced to both the Regulations being the "custom of the Band", and specifically, to the 2003 election being held in accordance with the Regulations. From 1979 until 2002 , a period covering approximately thirteen Village Council elections, there were no complaints from any of the applicants concerning the Regulations. The pattern of acquiescence from 1979 until 2002 is a bar to the applicants now challenging the Regulations.

[39]          Custom Regulations

The respondents submitted that the Regulations are valid within the Indian Act, supra, framework. A Band's customs include practices for the choice of a council which are generally acceptable to members of the Band, upon which there is a broad consensus (see Bone, supra). For Indian Act, supra, purposes, a Band electoral "custom" is dynamic (see McLeod Lake Indian Band v. Chingee, [1998] F.C.J. No. 1185).

[40]          In the case at bar, the Band has always had a two-tiered system of governance, comprised of both a Clan Council and a Village Council. Since the early 1950s, the Village Council has been elected pursuant to either the Indian Act, supra, or custom. The Clan Council has been selected, since time immemorial, by designation and inheritance.

[41]          The respondents submitted that on the question of whether the complaints lodged since 2002 concerning the Regulations illustrate the loss of a broad consensus, this is not a representative action. There are 44 applicants from Prince Rupert who are challenging the Regulations. There are over 600 Band members, approximately 200 who live in Prince Rupert. Given two decades of acquiescence to the Regulations, this constitutes a small and vocal group, but not the loss of a broad consensus.

[42]          Given that the determination of the "custom" to be used in a custom election is something within the expertise of the Band, the decision to choose councils based on custom is a choice which should be shown considerable deference. The Court should give weight to the fact that the Band and the Village Council are currently engaged in an inclusive process to amend their electoral process.

[43]          The respondents requested that the application for judicial review be dismissed with costs.

Relevant Statutory Provisions

[44]                        Subsection 2(1) of the Indian Act, supra, states in part as follows: