Lameman v. Cardinal, docket T-2755-96

                                     T-2755-96

BETWEEN:

     ALPHONSE LAMEMAN

     AND GABE GLADUE

                                     Applicants,

     - and -

     GEORGE CARDINAL, EMILE CARDINAL,

     GABE CARDINAL AND GEORGE GLADU

                                     Respondents

     REASONS FOR ORDER

GIBSON J:

     These reasons arise out of an application for judicial review of a decision of the respondent, George Cardinal (the "Appeals Officer"), whereby he set aside the election held by Beaver Lake First Nation on November 27, 1996, directed that the Chief and Council holding office immediately before that election, being the respondent Emile Cardinal, Gabe Cardinal and George Gladu, would remain as Chief and Council of Beaver Lake First Nation pending the results of a new election and directed that a new election be held on January 8, 1997 with a nomination meeting to be held on December 16, 1996. The decision under review is dated the 1st of December, 1996. The applicants are the Chief and one band councillor purportedly elected in the election held by Beaver Lake First Nation on November 27, 1996.

     In their Originating Notice of Motion, the applicants request the following relief:

An Order setting aside a decision [setting aside] of the Respondent, George Cardinal, made on or about the 1st day of December, 1996, wherein the aforesaid Respondent, George Cardinal, did set aside the election held at Beaver Lake First Nation on November 27, 1996; did direct that the Respondents Emile Cardinal, Gabe Cardinal and George Gladu would remain as Chief and Council of Beaver Lake First Nation pending the results of a new election; and did direct the said election to be held on January 8, 1997, with a nomination meeting to be held on December 16, 1996.

A declaration that the election held on November 27, 1996, wherein Alphonse Lameman was elected Chief of the Beaver Lake First Nation and Gabe Gladue and Rosaire Bugle were elected as Councillors of Beaver Lake First Nation was a valid election.

An injunction against the holding of any further nomination meetings or general elections at Beaver Lake First Nation until hearing of this within Judicial Review application.

Any other relief the Honourable Court deems just.

BACKGROUND

Order in Council PC 3692 dated August 6, 1952 provided that, on and after August 15, 1952, the Council of Beaver Lake First Nation, consisting of a Chief and Councillors, should be selected by elections to be held in accordance with the Indian Act¹. On the 29th of May, 1986, to facilitate the choice of Chief and Councillors of the First Nation according to its custom, reflecting the consensus of electors of the First Nation who attended a meeting on the 4th of December, 1984, the Order in Council was repealed. The people of the First Nation enacted the Beaver Lake Tribal Election Law and, pursuant to that law, the Chief and Council of the day enacted the Beaver Lake Customary Election Regulations to supplement the Beaver Lake Tribal Election Law.

On the 29th of October, 1996, in another matter before this Court concerning the governance of Beaver Lake First Nation,² Campbell J. issued an order, on consent, settling that litigation. His order reads in part as follows:

IT IS HEREBY ORDERED AND ADJUDGED:

1.      That the decision to remove the Applicants [including the Applicant herein Alphonse Lameman] from their respective positions as Chief and Council of Beaver Lake First Nation is hereby set aside;

2.      That the present Chief and Council of Beaver Lake First Nation will call an [sic] general band meeting to be held no later than October 31, 1996, the purpose of said meeting will be to move and pass a motion to hold a band election;

3.      That the nomination meeting for the said general election will be held two weeks after the date of the general band meeting referred to in paragraph 2 herein;

4.      That the election will be held at a date two weeks subsequent to the date of the nomination meeting referred to in paragraph 3 herein;

....

     On the 13th of November, 1996, a nomination meeting was held in accordance with the order of Mr. Justice Campbell. The applicant Alphonse Lameman and the respondent Gabe Cardinal were among the nominees for Chief. The applicant Gabe Gladue was among the nominees for the two positions of Councillor. The respondent George Cardinal was selected as Appeals Officer. Helen Bull was selected as Electoral Officer. Jim Ruller was selected as Returning Officer.

     The election was duly held on the 27th of November with the applicant Alphonse Lameman being elected Chief and the applicant Gabe Gladue, together with Rosaire Bugle, being elected Councillors.

     The provision of the Beaver Lake Tribal Election Law relating to election appeals reads as follows:

XI.      The Tribal Member Responsible for Election appeals may set aside the election of the Chief and Council if after investigation he or she is satisfied that:

(a)      there was corrupt practise in connection with an election, or

(b)      a person nominated to be a candidate in the election was ineligible to be a candidate.          [underlining added by me for emphasis]

     The related provisions of the Beaver Lake Customary Election Regulations read as follows:

REGULATIONS RESPECTING ELECTION APPEALS:

1.      At least one month prior to a Tribal Election, the Chief and Council shall select a "Tribal Member Responsible for Election Appeals". As provided in section 11 of the Beaver Lake Tribal Election Law.

2.      All persons on the voters list may challenge an Election on the basis of the Tribal Election Law.

3.      Election Appeals must be in writing submitted to the Tribal Member Responsible for Election Appeals no later than ten working days after the Election and must indicate the basis of the appeal.

4.      The decision of the Tribal Member Responsible for Election Appeals, on any appeal shall be sent in writing to the person making the appeal within two weeks of the appeals being submitted.

     By Letter dated the 28th of November, 1996, three persons submitted to the Appeals Officer an appeal in respect of the election of November 27. The letter was apparently received by the Appeals Officer on the 29th of November. It was not in dispute before me that the persons submitting the appeal were qualified to do so. The letter of appeal was in the following terms:     

We the undersigned do hereby Request an appeal, throughout these proceedings there were several inconsistencies. The ones we have list below were the most prominent and damaging to the candidates for the various reasons.

1.      The voters list was not properly prepared, as there were additions to the list without proper affidavits prepared and signed by who were added, point being these people were unable to vote without affidavits or declaration being prepared. The count of the individuals was approximately 14 which would have had a significant impact on the outcome to warrant a new election.

Under the Voting Procedures section (14) it sates" at the request of any candidates or his agent or any elector, an oath or affirmation in the form prescribed as to his rights to vote shall be administered to any person tendering his vote at any election." This procedure was not followed. The point being that on the afternoon of November 26, 1996 in the Band Administrators office the instruction was given to both the Returning Officer (Jim Ruller) and the Appeals Officer (George Cardinal) that all additions to the voters list were to supply an affidavit or affirmation. This request was presented to the Above mentioned officers by the Administrator (Ben Nornberg) in behalf of the Band.

2.      In reviewing the election by-law on the poll section (12) which state:

"Every elector who is inside the polling place at the time fixed for closing the poll shall be entitled to vote before the poll is closed." There were three people that were not allowed to vote but were in the building at the time of poll closing. At the specific request of Alphonse Lameman who did tell the Electoral Officer to close the polls at which time the Returning Officer announced the polls closed but the three people were at that time discussing the matter with the electoral officer and where refused. The outcome would again been changed. Request a new election of these grounds.

3.      Section (6) of the poll procedure states "While any voter is in the compartment for the purpose of marking his ballot paper no other person shall, except as provided in section (7), be allowed in the same compartment or be in any position from which he can see the Manner in which such voter marks his ballot paper." This was violated when Alice Mountain proceeded to enter the compartment and talk with Sylvia Sharon Gladue in regards to voting, Irvin Conrad Gladue proceeded to tell Alice Mountain to get away from there, but her ballot was not disqualified which it should have been declared spoiled. Again reason for new election.

4.      One questionable voter was found to have voted being Roxann Joeanne Boucher who's status is or has not been determined at this point in time but upon the request again of Alphonse Lameman was allowed to vote again without any affirmation or affidavit. Once again grounds for a new election.

These issues brought forward in this appeal any one of which is sufficient to warrant a new election. Therefore it is the request of Rosaire Bugle who has the largest amount of votes in his favour, Ernst Cardinal who had only one vote short of being elected and Percy Albert Thompson who also was only short 7 votes, that another election be held as soon as possible. The outcome of this election would have been different had these violation not occurred. Therefore it is our consciences that the people of Beaver Lake First Nation are not properly represented in these proceedings.

We look forward to the only true response of a new election.

     The Appeals Officer, George Cardinal, one of the respondents, considered the appeal. In an affidavit filed in this matter he attested in part:

....

5.      I was asked by the membership of the First Nation, in furtherance of my responsibilities as the Appeals Officer, to attend and I did attend from the hour of 9:00 a.m. to the hour of 7:00 p.m. at the single polling station at the Beaver Lake Reserve No. 131 on the 27th day of November, 1996.

...

7.      On Friday, the 29th day of November, 1996, I received a letter dated the same day which I accepted as an appeal against certain practices or events which the Appellants characterized as corrupt practices and which they stated occurred during the Election Day.

8.      Upon receiving the letter of appeal, I reviewed the Custom Election Regulations of the Beaver Lake First Nation, and I noted that paragraph XI stated that upon the receipt of an appeal, I was required to complete an investigation and determine whether in my opinion a corrupt practice or practices occurred during the Election and whether the Election should be set aside.

9.      When I reviewed the letter of Appeal, I thought about what I had heard and what I saw during the day I spent at the polling station and concluded that what I had heard and what I had seen was clear and unambiguous.

10.      Because I was present at the polling station and was clear on what I saw and heard first hand I did not believe it necessary to hold any inquiry or interview any candidate or scrutineer. Consequently, I did not believe any notice of the Appeal taken needed to be circulated or posted.

11.      After much deliberation, I also concluded that the interests of the membership could or would be preserved without giving that notice of the Appeal to a candidate or conducting any inquiry or completing any interviews of any candidate or scrutineer. Rather I believed what was required of me in my investigation of the matters raised on Appeal was simply to confirm my observations made at the Election and otherwise to satisfy myself that the irregularities which I observed at the elections and which now form a part of the appeal had in fact occurred.

12.      During the time I spent at the polling station, I observed several irregularities which I duly noted; in particular, in the morning, Mr. Alphonse Lameman approached the table where I, Jim Ruller and Helen Bull sat and gave to me and Jim Ruller a list of 11 names, and he asked that the names be added to the Electors list. Jim Ruller stated that the names could be added. I stated that the names could only be added if the statutory declarations or affidavits were sworn. Alphonse Lameman stated that they were members and did not need to sign the statutory declarations or affidavits - "...they should be able to vote." Later, Mr. Alphonse Lameman came with an additional three to five persons whose names were not on the voters list. Mr. Lameman said "...these people vote... I can vouch for their being members..." and Helen Bull asked for their names. After acceding to Mr. Alphonse Lameman's request and after adding the names of the persons to the Electoral List, Helen Bull gave each of them a ballot as they presented themselves. I noted that none of the persons whom Alphonse Lameman asked to be added to the Electors List signed a declaration or an affidavit attesting to their entitlement as electors of the Beaver Lake First Nation to vote in the election.

13.      On the morning of November 27, 1996 at the polling station, Mr. Cliff Cardinal as a representative of Gabe Cardinal, a candidate and Gabe Cardinal asked that all persons who were allowed to vote but whose names were not on the voters list must be asked to swear an affidavit that they are Electors. I acknowledged that I would advise Jim Ruller of this request which I did.

14.      In the early afternoon, my attention was drawn to a polling booth where I saw an older woman, whom I later identified as Alice Mountain, have her hand on the shoulder of a younger woman who appeared to be agitated while standing at the polling booth. When people protested the presence of Mrs. Mountain in the voting area, she left. It was stated to me by Jim Ruller that Mrs. Mountain was attempting to influence Ms. Gladue to vote for the persons Mrs. Mountain felt were the right candidates.

15.      In completing that investigation which I believed was required, either to confirm my observations or to provide detail I did not obtain at the election, I confirmed that none of the 16 to 17 persons whom Mr. Lameman requested be allowed to vote or any other person whose names did not originally appear on the voters' list approved by the membership signed the required statutory declaration or affidavit as requested by Cliff Cardinal and Gabe Cardinal and as then required by paragraph 14 of the regulations respecting voting procedure passed pursuant to the Custom Election Procedures of the Beaver Lake First Nation.

16.      Further, in completing my investigation, I was informed and do verily believe that as Sylvia Gladue was about to cast her ballot, Mrs. Mountain placed her hand on the young woman's shoulder and said words to influence who the young woman should vote for, contrary to the provisions of paragraph 6 of the Regulations respecting secrecy of voting.

17.      In my investigation, I spoke with Cpl. Russ Langston, Lac La Biche RCMP Detachment, who observed that the three women entered the polling station at about 6:00 and after asking a few people as to where to obtain their ballots, they proceeded to the table at which Helen Bull was seated to obtain their ballots.

18.      In my investigation, I spoke with Helen Bull about the three women who were denied a ballot or the right to vote. Helen Bull told me and I do verily believe that immediately after Jim Ruller stated that the polls were to close, three women approached her and asked to vote. As she was about to ask the women their names and give them a ballot, she heard a man say in a loud voice "...the elections are over. These women can't vote."

19.      On Election Day, I had seen these women approach Helen Bull. As the three women moved past Mr. Alphonse Lameman, he quickly moved to where Helen Bull sat and said in a loud voice "...the elections are over; these women can't vote." I saw Helen Bull look to Jim Ruller and Jim Ruller then said "The polls are closed." Helen Bull informed the women that they would not be entitled to vote because it was too late. I noted after these discussion occurred that it was just past 6:00 o'clock in the afternoon. Given the distance from the entry to the table where Helen Bull sat and the timing of the announcement and their arrival in from of Helen Bull, I concluded that the women had to physically be in the building before 6:00 o'clock as required by paragraph 2 (14) of the Regulations.

20.      During the day for elections, Mr. Alphonse Lameman, on several occasions approached Jim Ruller or Helen Bull or myself with requests that they do certain things for certain people. I observed that on each occasion, Jim Ruller or Helen Bull appeared to agree to his request as though they felt obligated or compelled to accept his decision.

21.      The only issue on Appeal which I believed required classification was the time at which the three women entered the polling station having regard to paragraph 2(14) of the Regulations with respect to the Poll which form a part of the Custom Election Procedure.

22.      I formed the opinion that the corrupt practices which I found to have occurred had the probable result of influencing the outcome of the Election in that only a few votes separated a candidate being elected from one who was not and most certainly resulted in an election which was not fair. Accordingly, I allowed the appeal and ordered the Election set aside in accordance with paragraph XI of the Custom Election Procedures of the Beaver Lake First Nation, and now shown to me and attached as Exhibit "D" to this my affidavit is a copy of my decision.

23.      Based on what I saw and heard and the information gathered in my investigation, I concluded that the events complained of by the Appellants did occur in fact. I further concluded that one or more of the matters complained of by the Appellants, having regard to the fact that they occurred in the polling station, may have influenced the vote of an elector or electors and therefore I believe they were corrupt practices.

     The Appeals Officer issued his decision, the decision here under review, on the 1st of December, 1996. It is in the following terms:

Dear Candidates & Beaver Lake Voters

Please be advised that an appeal was received by myself on November 29, 1996. The appeal was received in accordance with the Beaver Lake Tribal Election Law, Part XI and the decision was based on the same Election Laws. The final decision is as follows based on my investigation.

1.      Section (14) where it sates "at the request of any candidates or his agent or any elector, an oath or affirmation in the form prescribed as his rights to vote shall be administered to any person tendering his vote at any election." This was not done and therefore the appeal stands.

2.      Section (12) which states "every elector who is inside the polling place at the time fixed for closing the poll shall be entitled to vote before the poll is closed." There were three ladies not allowed to vote but were on the premises at the time the polls closed therefore the appeal shall stand.

3.      Section (6) Poll Procedures states "while any voter is in the compartment for the purpose of making his ballot no other person shall, except as provided in section (7), be allowed in the same compartment or be in any position from which he can see the manner in which such voter marks his ballot paper." This violation was made by Alice Mountain with respect to Sylvia Sharon Gladue. The appeal therefore stands on this point as well.

Due to Section XI(a) there was corrupt practise in connection with this election. For these reasons A NEW NOMINATION AND ELECTION is to be held. A proper Voters list is to be drawn up from the membership list immediately. A new nomination meeting to be held as soon as possible. Nominations on December 16, 1996 and Election on January 08, 1997.

THE ELECTION OF NOVEMBER 27, 1996 HAS BEEN SET ASIDE.3

     This application for judicial review followed.

     On an application for interlocutory relief, on the 27th of December, 1996, Mr. Justice Campbell issued an order in the following terms:

I FIND THAT:

A decision of George Cardinal, acting as the Tribal Member Responsible under s.XI of the Beaver Lake Tribal Election Law, is a decision of a federal board, commission or other tribunal under s.18.1(2) of the Federal Court Act.

AND I HEREBY ORDER THAT:

1)      Each of the applicants and respondents, ... are prohibited from doing any act to call, officiate over, promote, or in any way carry out or participate in, an election for Chief or Counsellor of the Beaver Lake First Nation until further order of this Court.

2)      Jim Ruller and Helen Bull, as returning officers of the Beaver Lake First Nation, are prohibited from doing any act to call, officiate over, promote, or in any way carry out or participate in, an election for Chief or Counsellor of the Beaver Lake First Nation until further order of this Court.

AND I HEREBY DECLARE THAT:

The Chief and Counsellors elected on November 27, 1996 are entitled to carry out the powers and duties of their respective offices.

     The Order of Mr. Justice Campbell has been appealed.⁴ The appeal, to the date of hearing of this application, had not been heard.

ISSUES

     The jurisdiction of this Court with respect to this matter was raised on behalf of the respondent, George Cardinal in the application record filed on his behalf. The issue turns on the question of whether or not the Appeals Officer, in making the decision that he did, was acting as a "federal board, commission or other tribunal" within the meaning assigned to that term by section 2 of the Federal Court Act⁵. That issue would appear to be effectively disposed of, subject to appeal, in the finding in the Order of Mr. Justice Campbell of the 27th of December, 1996, that is quoted above⁶. Quite properly, the issue was not argued before me.

     Before me, counsel for the applicants urged that the Appeals Officer failed to observe a principle of natural justice, procedural fairness or other procedure that he was required by law to observe in conducting the "investigation" that he did, and erred in law in arriving at the decision that he did or based that decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before him.

     The Court, during the course of the hearing, gave notice to the parties that it was concerned that the Appeals Officer exceeding his jurisdiction in ordering that a new nomination and election be held and, in the interim, reinstating the Chief and Council of the First Nation who held office immediately prior to the election of the 27th of November, 1996. That this issue was a live one is reflected in the Order of Mr. Justice Campbell of the 27th of December, 1996.

     Finally, counsel for the applicants urged that, if I should decide in favour of the applicants, I should not refer the matter back for reinvestigation but rather should make the decision that the Appeals Officer should have made. Counsel for the respondents questioned my authority to substitute my decision for that of the Appeals Officer.

POSITIONS OF THE PARTIES AND ANALYSIS

     Counsel for the applicants urged that the Appeals Officer, in conducting the limited investigation that he did, as reflected in the paragraphs quoted from his affidavit above, failed to fulfil the duty of procedural fairness that he was required by law to observe. In effect, counsel urged, that the Appeals Officer simply failed to conduct the investigation that he was required by the Beaver Lake Tribal Election Law to conduct.

     Counsel for the respondents pointed out that neither the Beaver Lake Tribal Election Law nor the Beaver Lake Customary Election Regulations provides any guidance as to the scope of the "investigation" that an Appeals Officer is required to conduct and that, given the presence of the Appeals Officer at the sole polling place throughout the time when the poll was open, his recollections on his own observations and the confirmation of his recollections by the limited consultations that he carried out following receipt of the appeal constituted an adequate "investigation" as contemplated by the Beaver Lake Tribal Election Law. That a limited investigation such as that here conducted by the Appeals Officer is all that was contemplated by the Beaver Lake Tribal Election Law was, it was urged, reflected in the requirement in the Regulations respecting election appeals that a decision on an appeal be sent in writing to the person or persons making the appeal within two weeks of the appeal being submitted. Thus, it was urged, a broader "investigation" was effectively precluded, particularly in circumstances where the Appeals Officer, as here, was resident outside the lands of the First Nation and had other on-going responsibilities.

     In Cardinal v. Director of Kent Institution⁷, Mr. Justice LeDain, for the Court, wrote at page 653:

This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of the legislative nature and which affects the rights, privileges or interests of an individual:...[citations omitted]

That an Appeals Officer duly appointed in respect of an election for a Chief and Councillors of a First Nation is a "public authority" within the scope of the above quotation is, I am satisfied, beyond question. The decision of the Appeals Officer here under review is, at the very least, an "administrative decision". Certainly, it is not a decision that is "legislative" in nature and equally certainly, it is a decision which "affects the rights, privileges or interests of an individual" and indeed, of many individuals. Thus, I conclude, that there was a duty of procedural fairness lying on the Appeals Officer in the conduct of his investigation flowing from the appeal received by him.

     In Shah v. the Minister of Employment and Immigration⁸, Mr. Justice Hugessen stated:

It is a common-place that the content of the duty of fairness varies according to the circumstances.

In the circumstances of this matter, I am satisfied that only a minimal duty of fairness is owed. Minimal fairness is consistent with the procedure and time-frame established for the Appeals Officer, by law, to carry out his function. Such a summary procedure and limited time frame is consistent with minimization of the period of uncertainty and paralysis in government that flows from an election that is made the subject of an appeal. Thus, I cannot conclude that the duty of fairness on an appeal such as the one here at issue would extend to an obligation to conduct a public hearing. However, I conclude that, at the least, the Appeals Officer had an obligation to notify those most directly impacted by the appeal, that is to say the candidates at the election and the election officials, of the filing of the appeal and of the bases of the appeal and to provide them with an opportunity, however limited, to make representations to him in respect of the appeal. Here, the investigation conducted by the Appeals Officer fell far short of meeting this minimal duty of fairness. In the circumstances then, on this ground alone, I am satisfied that this judicial review application must be allowed.

     The evidence before me discloses substantial difference of opinion as to what transpired in the polling place for the Beaver Lake First Nation's election for Chief and Councillors on the 27th of November, 1996. It also discloses that election officials would have had substantial difficulty in administering "...and oath or affirmation in the form prescribed as to his right to vote..." as apparently requested in respect of certain voters in accordance with the Beaver Lake Customary Election Regulations because no form of oath or affirmation had in fact ever been "prescribed". That being said, there is no question that the evidence before me discloses the existence of "questionable" practices at the polling place on election day. I find no basis on which I could conclude, on the evidence before me, that the decision reached by the Appeals Officer that those practices constituted, in the terms of the Beaver Lake Tribal Election Law, "...corrupt practice in connection with an election..." constituted an error of law or was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the evidence available. Similarly, I find no basis in law upon which I could conceivably substitute a different decision for that of the Appeals Officer, even if I had jurisdiction to do so.⁹

     As indicated earlier in these reasons, at the hearing of this matter, the Court expressed concern about the breath of the relief accorded by the Appeals Officer in his decision here under review. In addition to declaring that there was a corrupt practice in connection with the election and setting the election aside, he directed that a new election take place and, in the interim, in a supplementary document entitled "Notice of Nomination and Election", dated the 2nd of December, 1996 declared that the Chief and Councillors in place immediately prior to the election would remain in office.¹⁰

     The Beaver Lake Tribal Election Law clearly empowers an Appeals Officer, where he or she, "...after investigation... is satisfied that there was corrupt practice in connection with an election...", to set aside the election. However, it makes no provision whatsoever for an Appeals Officer to order a new election and to reinstate an earlier elected Chief and Council. I can only conclude from a careful reading of the Beaver Lake Tribal Election Law and the related Regulations that these are powers reserved to the people of the First Nation themselves. Thus, I conclude that the Appeals Officer acted without jurisdiction or acted beyond his jurisdiction in ordering a new election and declaring the Chief and Councillors in office immediately prior to the election of the 27th of November, 1996 to continue in office pending the outcome of the new election. On this ground as well, I conclude that this application for judicial review must be allowed.

CONCLUSION

     On the basis of the foregoing, this application for judicial review will be allowed. The decision of the Appeals Officer under review will be set aside and the appeal in respect of the election of Chief and Councillors for Beaver Lake First Nation held on the 27th of November, 1996 will be referred back to the Appeals Officer for reinvestigation and redetermination in accordance with the Beaver Lake Tribal Election Law, the Beaver Lake Customary Election Regulations and these reasons.

     The respondent George Cardinal will be entitled to his costs of these proceedings on a solicitor/client basis out of funds of Beaver Lake First Nation. There will be no order as to costs in respect of the other parties to this proceeding.

SUPPLEMENTARY MATTERS

     Following the hearing of this application for judicial review, at Edmonton on the 21st of October, 1997, at which a number of members of Beaver Lake First Nation were present, I indicated to counsel and to others in the courtroom what my decision would be if it became apparent that a decision from this Court was required. I expressed the view that resolution of the matters here at issue by the members of the First Nation themselves, and in the interests of all members of the First Nation, would be far preferable to a decision of this Court in this matter which, by its nature, would not resolve all of the issues underlying the difficulties as to governance that Beaver Lake First Nation is experiencing. I indicated to counsel and to others present in the courtroom that I would remain in Edmonton, for the balance of the day of the hearing and the full following day for consultation if it were concluded that consultation would be helpful.

     Although counsel for the Appeals Officer advised the Court on the following day that a consultation was desired, it proved impossible to make appropriate arrangements. In the result, the consultation took place on Tuesday of the following week by teleconference. During the teleconference, all counsel expressed their support for inclusion in these reasons of a procedure to govern the reinvestigation and redetermination of the election appeal. Counsel appeared to the Court to be optimistic that agreement on an appropriate procedure could be reached and a proposal provided to the Court at a reasonably early date. An agreed procedure was conveyed to the Court on Wednesday, November 5. It is attached to these reasons as Schedule A and, for the purposes of my Order in respect of this matter, is part of these reasons although I am in no sense its author.

     Counsel for the respondents Emile Cardinal, Gabe Cardinal and George Gladu raised two issues before me. First, counsel pointed out, as was disclosed in part by the material before me, that, from his perception, one of the councillors elected on the 27th of November, 1996, Rosaire Bugle, following the Order of Mr. Justice Campbell of the 27th of December, 1996, had been effectively excluded from carrying out the powers and duties of his office as councillor. The implication was that this exclusion was at the instance of the applicants herein, the Chief and other councillor elected on the 27th of November, 1996. Further, I was advised that Mr. Bugle alleges that he has not received his salary as councillor since he received a cheque on or about the 28th of April, 1997.

     I was also advised that certain of the members of the First Nation, who were in attendance before the Court, and who are apparently employees of the First Nation, were advised that they would lose their employment if they attended to observe the proceedings before the Court.

     Neither of these matters are properly before me on this application for judicial review. At the same time, if the allegations are true, and at least in respect of the allegations of Rosaire Bugle, I had before me sworn evidence to support the allegations, they represent manifestations of the difficulties in governance of the First Nation that are indeed unfortunate. I take no position with respect to the allegations since they are not properly before me. However, I cannot help but express personal concern if the allegations are indeed justified. I go further with respect to the allegations regarding Rosaire Bugle. I draw the attention of all members of the First Nation to the portion of the Order of Mr. Justice Campbell where he declares that the Chief and Counsellors elected on November 27, 1996, which would include Rosaire Bugle, are "...entitled to carry out the powers and duties of their respective offices." I sincerely hope that no action is taking place that would be in contravention of this aspect of an Order of this Court.

                 __________________________

                     Judge

Ottawa, Ontario

November 10, 1997

---

     SCHEDULE "A" TO REASONS FOR ORDER IN

     ALPHONSE LAMEMAN

     AND GABE GLADUE

                                                             Applicants,

     - and -

     GEORGE CARDINAL, EMILE CARDINAL,

     GABE CARDINAL AND GEORGE GLADU

                                                             Respondents

It is anticipated that governance of the Beaver Lake First Nation may be regularized if the appeal of the election brought by Rosaire Bugle et al were investigated or re-investigated by the Appeals Officer adopting the process or procedure following:

1.      A copy of the Appeal taken by the members Rosaire Bugle et al. of the election be posted at the Tribal Administration Offices within 24 hours of the receipt by legal counsel of the Judgment of Justice Gibson to the Federal Court in Edmonton ("Judgment Day");

2.      Any Elector of the Beaver Lake First Nation for the November 27, 1996 election or any election official for that election or any solicitor on that Elector's or officer's behalf will be entitled to make a written submission to the Appeals Officer on or before 4:30 p.m. on the fourth day following the Judgment Day by addressing the submission to the Appeals Officer by name and leaving the same with the offices of Ackroyd, Piasta, Roth & Day, 1500, 10665 Jasper Avenue, Edmonton, AB T5J 3S9, or by leaving a written submission at the Tribal Administration Building on the Beaver Lake Reserve prior to 1:00 p.m. on the fourth day following Judgment Day; such written representations to be delivered by overnight courier to the Appeals Officer at the offices of Ackroyd, Piasta, Roth & Day in Edmonton, Be [by] the Beaver Lake First Nation. An Appeals Supervisory Committee consisting of Rosaire Bugle and a representative of the Applicants will oversee the recording of all written submissions filed at the Beaver Lake Tribal Administration Building and ensure their safekeeping and their delivery to a courier for transportation to the offices of Ackroyd, Piasta, Roth & Day.

3.      On the fifth day after Judgement Day, every Elector or election officer or their counsel may obtain a copy of any or all written submissions from the Appeals Officer.

4.      Any Elector or an Election Official of the Beaver Lake First Nation or their solicitor may then make a reply to any of the written submissions and such reply shall be delivered prior to 4:30 p.m. on the ninth day to the Appeals Officer by name and leaving the same at the offices of Ackroyd, Piasta, Roth & Day, 1500, 10665 Jasper Avenue, Edmonton, AB T5J 3S9, or by leaving a written submission at the Tribal Administration Building on the Beaver Lake Reserve prior to 1:00 p.m. on the ninth day following Judgment Day, such written representations to be delivered by overnight courier to the Appeals Officer at the offices of Ackroyd, Piasta, Roth & Day, by the Beaver Lake First Nation.

5.      The Appeals Officer will post and will make copies of his decision available to all Election Officials and at the Tribal Administration Building on the 14th day following Judgment Day.

6.      Notice of the proposed procedure above suggested be posted on the Beaver Lake Reserve immediately following Judgment Day. A form of the proposed Notice is attached.*

7.      The costs of the Appeals Officer will be borne by the Beaver Lake First Nation.

For the purposes of these directions, Election Officers will include the Returning Officer, Electoral Officer, Appeals Officer, Interpreter, and the scrutineers.

* The proposed form was not provided to the Court.

__________________

     ¹      R.S.C. 1985, c. I-5, as amended

     ²      Court file: T-20-96

     ³      This quotation is taken from an exhibit to the affidavit of George Cardinal, the Appeals Officer, sworn the 20th of December, 1996 and forming part of the Application Record filed on behalf of George Cardinal, Emile Cardinal, Gabe Cardinal and George Gladu. Another version annexed as an exhibit to an affidavit of Alphonse Lameman sworn the 6th of December 1996 and forming part of the Application Record filed on behalf of the Applicants, includes a second page, dated December 2, 1996 entitled "Notice of Nomination and Election" that includes the following: "UNTIL THE NEW ELECTION IS OVER THE CHIEF AND COUNCIL OF EMILE CARDINAL CHIEF, GABE CARDINAL COUNCILLOR AND GEORGE GLADU COUNCIL ARE STILL IN POWER."

     ⁴      See Court Files A-9-97 and A-374-97.

     ⁵      R.S.C. 1985, c. F-7, as amended.

     ⁶      To similar effect, see Frank v. Bottle et al (1993), 65 F.T.R. 89 at 94 and 95

     ⁷      [1985] 2 S.C.R. 643 (not cited before me)

     ⁸      (1994), 170 N.R. 238 (F.C.A.),(not cited before me).

     ⁹      See: subsection 18.1(3) of the Federal Court Act ; Orelian v Canada [1992] 1 F.C. 592 at 607 (C.A.); Thibaudeau v. M.N.R. [1994] 2 F.C. 189 at 224 (C.A.)( reversed: [1995] 2 S.C.R. 627 on other grounds); Xie v. M.E.I. (1994), 75 F.T.R. 125; and Jencan v. Canada (1997), 215 N.R. 352 (C.A.).

     ¹⁰      Supra, note 3