Gros-Louis v. Nation Huronne-Wendat, docket T-1657-00

        

Date: 20000913

Docket: T-1657-00

    

Between:

     MAX GROS-LOUIS

     -and-

     ANDRÉ DUCHESNEAU

     -and-

     NORMAND LAINEY

     -and-

     MAURICE VINCENT

     -and-

     RAYMOND SIOUI

     -and-

     LUC LAINÉ

     Applicants

     AND:

     LE CONSEIL DE LA NATION HURONNE-WENDAT

     -and-

     ROGER VINCENT, in his capacity as director of finance

     and administrator of the Conseil de la Nation Huronne-Wendat

     -and-

     GERMAIN PAUL, in his capacity as the new electoral

     officer appointed by the Conseil on August 30, 2000 by

     resolution no. 5163

     -and-

     EDDY JENNIS, in his capacity as electoral officer duly

     appointed under the Code de représentation de la

     Première Nation Huronne-Wendat

     -and-

     ATTORNEY GENERAL OF CANADA

     Respondents

---

     REASONS FOR ORDER

PINARD J.

[1]          These are the reasons for the order I made on this date on the motion by the applicants under rule 18.2 of the Federal Court Rules, 1998.

[2]          The following facts were alleged by the applicants and were supported by the evidence:

-      From 1951 until very recently, the Minister had ordered that elections of members of the Conseil de la Nation Huronne-Wendat were to be held in accordance with the Indian Act;

-      The Huron-Wendat First Nation embarked on a lengthy discussion and consultation process regarding its electoral system, and as a result the Conseil adopted the Code de représentation de la Première Nation Huronne-Wendat, which was approved by referendum;

-      On July 19, 2000, the Minister of Indian and Northern Affairs declared by ministerial order under s. 74(1) of the Indian Act that elections to the Conseil de la Nation Huronne-Wendat would no longer be held under the Indian Act in order that this First Nation could elect its council in accordance with its own customs;

-      Accordingly, effective July 19, 2000, the Indian Bands Council Elections Order was amended to remove the name of the Nation Huronne-Wendat from the list of First Nations which may hold their elections under the Indian Act;

-      Pursuant to the Code de représentation, the Conseil de la Nation Huronne-Wendat appointed the respondent Eddy Jennis as electoral officer for the election to be held on September 27, 2000;

-      After he was appointed, the respondent Jennis set the electoral process in motion, which process included the holding of public meetings of each family circle so that each of the family circles could nominate candidates, with the last three meetings being held on Saturday, August 26, 2000;

-      When the nomination process had been completed, the respondents Normand Lainey and Maurice Vincent were elected by acclamation for the Cercle familial Picard/Lainé and the Cercle familial Vincent/Romain/Paul, respectively. In addition, candidates were nominated for the other elected offices, with the exception of the office of Chef familial for the Cercle familial Sioui/Savard/Dumont, an office for which no members of the First Nation had stood as a candidate;

-      The Conseil de la Nation Huronne-Wendat, by resolution no. 5163 passed by majority vote on August 30, 2000, claimed that it was voiding the entire electoral process that had been followed under the Code de représentation in effect, and was removing the electoral officer, the respondent Eddy Jennis, from office, and replacing him with the respondent Germain Paul;

-      In addition, the Conseil moved the date of the election ahead so that it would be held on September 15, 2000, following a procedure that was in breach of the Code de représentation in effect, a so-called customary procedure that was similar to the one provided in the Indian Act and the regulations under that Act. The nomination period for that election was then scheduled for September 8, 2000, according to a notice given to the population by the respondent Germain Paul.

The serious issue

[3]          The applicants' argument that resolution no. 5163 passed by the Conseil de la Nation Huronne-Wendat on August 30, 2000, is an abuse of power and is illegal seems to me to be very serious, having regard to the following evidence:

(a)      the order made by the Minister of Indian and Northern Affairs on July 19, 2000; and

(b)      the Code de représentation de la Première Nation Huronne-Wendat, and particularly sections 168 to 180, which was requested and approved by resolutions of the Conseil and adopted by the members of the Première Nation Huronne-Wendat in a referendum held in accordance with a policy of the Department of Indian and Northern Affairs respecting the adoption of a community electoral system, and the results of which were adopted by the Conseil.

                    

Irreparable harm

[4]          At this stage, allowing effect to be given to resolution no. 5163 of August 30, 2000, would void the election of the applicants Normand Lainey and Maurice Vincent, who were declared elected by the electoral officer, and who are therefore entitled to sit as members of the Conseil, as Chefs familiaux of the Cercle familial Picard/Lainé and the Cercle familial Vincent/Romain/Paul, respectively. Even more importantly, giving effect to the resolution would deprive all members of the Première Nation Huronne-Wendat who live off the reserve of the right to vote that they are given by the Code de représentation in effect, the provisions of which, in this respect, are plainly consistent with the spirit of the decision in Corbiere v. Canada, [1999] 2 S.C.R. 203.

[5]          In my view, this would amount to substantial and irreparable harm.

Balance of convenience

[6]          I believe that it is in the general interest of the members of the Première Nation Huronne-Wendat that the election of their next council be conducted in accordance with the Code de représentation which, again, was requested and approved by resolutions of their previous council and approved by the members themselves in a referendum held democratically, the results of which were adopted by that previous council. I believe that the "principle of democracy" which was considered by the Supreme Court of Canada in Corbiere, supra, to be one of the important factors that guide the courts in the exercise of their remedial discretion operates in favour of making an order suspending the disputed resolution no. 5163 of August 30, 2000, which was adopted by a band council that was about to lose its legal existence, solely on the basis of low participation in the nomination meetings and alleged irregularities which could, and should, if they were so significant and it were so urgent, have been raised in a judicial proceeding to prevent the election then scheduled for September 27, 2000, from taking place.

[7]          Obviously the brevity and concision of these reasons are necessitated by urgency and time constraints.

     Yvon Pinard

     J.

Montréal, Quebec

September 13, 2000

Certified true translation

Mary Jo Egan

        

Date: 20000913

Docket: T-1657-00

MONTRÉAL, QUEBEC, THIS 13TH DAY OF SEPTEMBER 2000

PRESENT:      THE HONOURABLE MR. JUSTICE PINARD

BETWEEN:

     MAX GROS-LOUIS

     -and-

     ANDRÉ DUCHESNEAU

     -and-

     NORMAND LAINEY

     -and-

     MAURICE VINCENT

     -and-

     RAYMOND SIOUI

     -and-

     LUC LAINÉ

     Applicants

     AND:

     LE CONSEIL DE LA NATION HURONNE-WENDAT

     -and-

     ROGER VINCENT, in his capacity as director of finance

     and administrator of the Conseil de la Nation Huronne-Wendat

     -and-

     GERMAIN PAUL, in his capacity as the new electoral

     officer appointed by the Conseil on August 30, 2000 by

     resolution no. 5163

     -and-

     EDDY JENNIS, in his capacity as electoral officer duly

     appointed under the Code de représentation de la

     Première Nation Huronne-Wendat

     -and-

     ATTORNEY GENERAL OF CANADA

     Respondents

---

     Motion by the applicants asking this Court:

[-]          TO RELIEVE the applicants from the requirement of giving two days' notice before the hearing of the motion as provided by Rule 362(1) of the Federal Court Rules, 1998;

[-]          TO ORDER that the proceeding be managed as a specially managed proceeding in order that the times provided by the Federal Court Rules, 1998, may be abridged;

[-]          TO MAKE an interim order to preserve the rights of the applicants, during the proceeding, so as to:

a)          SUSPEND resolution no. 5163 adopted by the Conseil de la Nation Huronne-Wendat at the meeting on August 30, 2000;

b)          SUSPEND the appointment of the respondent Germain Paul to the office of electoral officer;

c)          ORDER the respondent Roger Vincent, director of finance for the Conseil de la Nation Huronne-Wendat and appointed as administrator of that First Nation by reason of the expiry of the term of the Grand Chief and members of that council on September 3, 2000 at midnight, to recognize the authority of the respondent Eddy Jennis in the office of electoral officer in the electoral process already initiated under the Code de représentation or, in the event that the respondent Jennis resigns, to recognize the authority of his replacement, appointed on the recommendation of the Cercle des sages;

d)          ORDER the electoral officer, the respondent Eddy Jennis, to hold the election that was to be held on September 27, 2000, on Friday, October 20, 2000 or on such later date as may be chosen by the Court in accordance with the Code de représentation de la Première Nation Huronne-Wendat, to allow for compliance with the twenty-day period provided in sections 87 et seq. of the Code de représentation to enable the electoral officer to mail the voting kit to all electors who do not reside in Wendake or in the immediate region of Québec;

e)          ORDER the electoral officer, the respondent Eddy Jennis, to continue the electoral process already initiated under the Code de représentation de la Première Nation Huronne-Wendat, taking into account the steps that have already been taken, and for that purpose, to hold the election for the office of Grand chef and the elections for the offices of Chef familial for the family circles which have nominated candidates, with the exception of the Cercle familial Picard/Lainé and the Cercle familial Vincent/Romain/Paul for which the applicants Normand Lainey and Maurice Vincent have already been declared elected by acclamation;

f)          ORDER the respondent Germain Paul not to do anything within the authority of the electoral officer, and more specifically, without restricting the generality of the foregoing, PROHIBIT him from receiving nominations on September 8, 2000 and from holding an election on September 15, 2000 to fill the offices of members of the Conseil de la Nation Huronne-Wendat by following a procedure that is in breach of the Code de représentation;

[-]          MAKE such other order as may be deemed appropriate and just in the circumstances in order to ensure compliance with the Code de représentation de la Première Nation Huronne-Wendat;

[-]          WITH costs.

     [Section 18.2 of the Federal Court Act and

     Rules 8(1), 364(2) and 385 of the Federal Court Rules, 1998]

     O R D E R

         The motion, which was ultimately heard one day later than the applicants had requested, is allowed in part.

         Resolution no. 5163 adopted by the Conseil de la Nation Huronne-Wendat at the meeting on August 30, 2000 is suspended, as is the appointment of the respondent Germain Paul to the office of electoral officer, and accordingly the elections that were scheduled for September 15, 2000, pursuant to that resolution, shall not be held.

         IT IS ORDERED that the respondent Roger Vincent, director of finance for the Conseil de la Nation Huronne-Wendat and appointed as administrator of that First Nation by reason of the expiry of the term of the Grand chef and members of that council on September 3, 2000 at midnight, recognize the authority of the respondent Eddy Jennis in the office of electoral officer in the electoral process already initiated under the Code de représentation or, in the event that the respondent Jennis resigns, recognize the authority of his replacement, appointed on the recommendation of, or where necessary by, at least a majority of the elders already selected under the authority of the Code de représentation de la Première Nation Huronne-Wendat as members of the Cercle des sages.

         IT IS ORDERED that the electoral officer, the respondent Eddy Jennis, or, where applicable, his replacement appointed in accordance with this order, continue the electoral process already initiated under the Code de représentation de la Première Nation Huronne-Wendat, in respect of the election to be held on September 27, 2000, taking into account the steps that have already been taken, and for that purpose, hold the election for the office of Grand chef and the elections for the offices of Chef familial for the family circles that have selected candidates, with the exception of the Cercle familial Picard/Lainé and the Cercle familial Vincent/Romain/Paul for which the applicants Normand Lainey and Maurice Vincent have already been declared elected by acclamation.

         IT IS ORDERED that the electoral officer, the respondent Eddy Jennis, or, where applicable, his replacement appointed in accordance with this order, hold the election that was to be held on September 27, 2000, on Friday, October 20, 2000 or, if that does not allow for the applicable times as provided in the Code de représentation de la Première Nation Huronne-Wendat to be complied with, for the rest of the electoral process, on the nearest subsequent date that will allow for compliance with those times. Throughout that process, the electoral officer shall exercise all such discretion as is conferred on him by the Code de représentation de la Première Nation Huronne-Wendat in consultation with at least a majority of the elders already appointed in accordance with that Code as members of the Cercle des sages.

         ANY PARTY WITH AN INTEREST in the application for judicial review in this proceeding shall be at liberty to make a fresh motion for this application for judicial review to be managed as a specially managed case.

         COSTS in the cause.

     Yvon Pinard

     J.

Certified true translation

Mary Jo Egan

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:              T-1657-00

STYLE OF CAUSE:      MAX GROS-LOUIS,

     ANDRÉ DUCHESNEAU,

     NORMAND LAINEY,

     MAURICE VINCENT,

     RAYMOND SIOUI,

     LUC LAINÉ,

     Applicants

     AND:

     LE CONSEIL DE LA NATION HURONNE-WENDAT,

     ROGER VINCENT, in his capacity as director of finance

     and administrator of the Conseil de la Nation Huronne-Wendat,

     GERMAIN PAUL, in his capacity as the new electoral

     officer appointed by the Conseil on August 30, 2000 by resolution no. 5163,

     EDDY JENNIS, in his capacity as electoral officer duly

     appointed under the Code de représentation de la

     Première Nation Huronne-Wendat,

     ATTORNEY GENERAL OF CANADA,

     Respondents

PLACE OF HEARING:          Montréal, Quebec

DATE OF HEARING:          September 12, 2000

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD

DATED:                  September 13, 2000

APPEARANCES:

Pierre Giroux and Stéphane Rochette              FOR THE APPLICANTS

Carole Robitaille                      FOR THE RESPONDENT

                             ROGER VINCENT

Eddy Jennis                          FOR HIMSELF (RESPONDENT)

---

Michel Miller                          FOR THE ATTORNEY

                             GENERAL OF CANADA

                             (RESPONDENT)

SOLICITORS OF RECORD:

TREMBLAY BOIS MIGNAULT LEMAY          FOR THE APPLICANTS

Sainte-Foy, Quebec

LABRECQUE, ROBITAILLE, ROBERGE          FOR THE RESPONDENT

ET ASSOCIÉS                          ROGER VINCENT

Québec, Quebec

MORRIS ROSENBERG                  FOR THE ATTORNEY

DEPUTY ATTORNEY GENERAL OF CANADA      GENERAL OF CANADA

Ottawa, Ontario

FEDERAL COURT OF CANADA

TRIAL DIVISION

Date: 20000913

Docket: T-1657-00

    

Between:

     MAX GROS-LOUIS,

     ANDRÉ DUCHESNEAU,

     NORMAND LAINEY,

     MAURICE VINCENT,

     RAYMOND SIOUI,

     LUC LAINÉ,

     Applicants

     AND:

     LE CONSEIL DE LA NATION HURONNE-WENDAT,

     ROGER VINCENT, in his capacity as director of finance

     and administrator of the Conseil de la Nation Huronne-Wendat,

     GERMAIN PAUL, in his capacity as the new electoral officer

     appointed by the Conseil on August 30, 2000

by resolution no. 5163,

EDDY JENNIS, in his capacity as electoral officer duly

appointed under the Code de représentation de la

Première Nation Huronne-Wendat,

ATTORNEY GENERAL OF CANADA,

Respondents

REASONS FOR ORDER