Wapass v. Thunderchild Band Council, docket T-1058-96

Date: 19971125

Docket: T-1058-96

BETWEEN:

     DELBERT WAPASS, ELDON OKANEE, JERRY OKANEE,

     JAMES SNAKESKIN AND DWAYNE NOON

     Applicants

     - and -

     THUNDERCHILD BAND COUNCIL, WINSTON WEEKUSK SR.,

     JOSEPH JIMMY SR., CHARLES PADDY SR., GORDON

     THUNDERCHILD AND MARIA LINKLATER

     Respondents

     REASONS FOR ORDER

REED, J.:

[1]      This is an application seeking an order in the nature of quo warranto declaring that the offices held by Band Councillors Joseph Jimmy Sr., Charles Paddy Sr., Maria Linklater, and Chief Winston Weekusk Sr., are vacant. A declaration is also sought that the Thunderchild Band Election Act (the "Election Act") is the applicable law governing the matters in question, and that a by-election be held in accordance with that Act to fill the vacancies.

[2]      The Election Act uses two terms to describe the councillors: "headmen/councillors". For ease of reference I will use the latter. One of the respondents, Gordon Thunderchild, is now deceased. Thus the application relates to the positions of only the four above-mentioned respondents.

Background

[3]      The four respondents were elected to their offices on December 8, 1994. The five applicants were each unsuccessful candidates in that election. A number of band members appealed the election results. That appeal was made to a Commission of Appeal chosen pursuant to section 7(g) of the Election Act and the Thunderchild Band Election Regulations. On March 17, 1995, the Commission dismissed the appeal and held that the election results were valid.

[4]      The Election Act was adopted, only recently, by the Band, in October 1994. The issues raised by this application arise because of the newness of that Act. It is to be expected that the need for refinements in its text will be discovered over time, as experience with its use increases.

[5]      By July 1995, no Band meetings had been called by the Chief and Councillors that had been elected on December 8, 1994. A number of band members wrote to the Chief and Council asking that a Band meeting be convened. A Band meeting was sought in order to provide the Chief and Councillors with an opportunity to inform the band membership about current issues and to ensure that the Chief and Councillors were accountable to that membership. It was asked that a meeting be called prior to August 11, 1995. No meeting was called.

[6]      By September, one of the pressing issues facing the Band was a declining enrolment in the Thunderchild Community School. A Band meeting was called for September 28, 1995. At that meeting a motion was passed stating that a review of the Chief's leadership should be undertaken at the next Band meeting.

[7]      The Election Act, as well as setting out election procedures, establishes a code of conduct for elected officers, their terms of office and a procedure for removing them. Under that Act a discipline Tribunal (hereinafter called the "Elder's Tribunal" or the "Tribunal") is to be created by the Chief and Council after they are elected. The Tribunal has a term of two years and if there are complaints about a Chief or Councillor's conduct these are to be taken to the Tribunal.

[8]      Sections 10 and 11 of the Election Act provide:

STANDARD OF CONDUCT FOR THE CHIEF AND HEADMEN

10.      The elected Chief and Headmen, as trustees of the Sacred obligations granted by the Creator and as elected representatives of all members of the Thunderchild Band are obligated to:

a)      Implement, apply, enforce and protect our rights, including rights related to the treaties, our lands and resources.

b)      Uphold the declaration as stated in the Preamble to this Act (Part 1).

c)      Provide credible and strong leadership which a majority of the membership will respect and support.

d)      Communicate and consult with and hear the concern of the membership in matters affecting the collective and/or individual interests of the Thunderchild Band members.

e)      Demonstrate and practice fairness, honesty, courage, honour, respect, justice and display acceptable conduct at all times.

f)      Uphold honesty and work towards the elimination of rumour, deceit, distortion of facts and conflict while holding office.

g)      Enhance and safeguard laws within the jurisdiction of the Thunderchild Band of the Cree Nation.

REMOVAL FROM OFFICE

11.      Once duly elected by members of the band, the Chief and Headmen are politically and financially accountable to all members of the Thunderchild Band and as such the said Chief and Headmen may be removed from office if they:

i)      Fail to uphold the standards of conduct as stated in Sections 10 (a) to (g) of this Act.

ii)      Are absent from two (2) consecutive band assemblies or duly convened council meetings without justified cause.

iii)      Bring disregard and dishonour upon themselves, their office, or other members of the band through actions unbecoming a Chief and Headman.

iv)      Are convicted of any serious offence(s).

v)      Are fraudulent or criminal in their actions and are convicted of same.

vi)      Create conflict among other elected officials and/or band members through slander, deceit, or misinformation.

vii)      Fails to uphold his/her responsibilities of their portfolio.

[9]      On October 27, 1995 a memorandum signed by the applicant Jerry Okanee, on behalf of a number of concerned Band members, was submitted to the Elder's Tribunal. The memorandum called for a review of the Chief's leadership. It referred to the motion that had been passed at the September 28, 1995 Band meeting. The memorandum alleged that the Chief and Councillors had failed to call Band meetings and that the Chief had a drinking problem. It was alleged, for example, that he had arrived at the Band meeting of September 28, at 11:30 a.m., intoxicated and had only stayed for a brief time. Another Council member was acting as chairman and continued to chair the meeting. The Chief was quoted as having said that he did not keep regular office hours. The memorandum alleged that his tardiness, absence from duties and failure to oversee the Band's business was a poor role model for Band employees; it alleged that his drinking and poor work ethic was a poor role model for the Band children.

[10]      On December 14, 1995, a Band meeting was held. At the opening of that meeting the Chief announced that he would resign at the end of March 1996. He also announced that he would hold regular Band meetings at the end of each month. Another Band member, Albert Angus, was chosen as chairman for that day's Band meeting.

[11]      On December 19, 1995, a letter was sent to all band members, under the Chief's signature, advising among other things that proposed amendments to the Election Act would be considered at the Band meeting to be held on January 31, 1996:

... any proposed amendments to ... the Election Act must be submitted in writing to the Chief and Council no later than midnight the 24th of January 1996.

All written submissions will be presented and voted on during a General Band meeting scheduled for 10 a.m. Wednesday the 31st of January 1996.

[12]      On January 23 and 24, 1996, letters were received by the Chief and Council from two of the three member Elder's Tribunal. The third member of the Tribunal is reported to have expressed orally the same opinion as that found in the letters. The letters state that the writers think that the Chief should finish his four year term. No substantive assessment was made of the allegations that were set out in the October 27, 1995 memorandum, i.e., whether or not the Chief had observed the code of conduct that the Band had set for its leaders. The interpretation of the two letters will be discussed further, later in these reasons.

[13]      At the Band meeting of January 31, 1996, a motion was passed that Delbert Wapass be the chairman for that day's meeting. A motion was then adopted adding leadership review to the agenda. A motion was subsequently made and carried "that Chief Winston Weekusk be removed from office of Chief immediately". The record shows that 19 votes were cast in favour of this resolution and 10 against; there was one abstention. Also passed at the meeting was a motion that individuals over the age of sixty-five would not be eligible to run for (or hold) office as Chief or Councillor. There is debate as to the content of this resolution, which will be discussed below.

[14]      Since January 31, 1996, no Band meetings have been held and the Chief has not left office. The Councillors named as respondents also remain as such. The applicants, therefore, commenced the present proceeding.

Issues

[15]      The issues raised by this proceeding are three in number. The first is whether the Chief has ceased to hold office, either because he resigned on December 14, 1995, or because he was removed from office on January 31, 1996. The second is whether the councillors who are over the age of sixty-five, Joseph Jimmy Sr. and Charles Paddy Sr., ceased to hold office on January 31, 1996 because of the motion that was adopted, on that date, establishing a maximum age qualification for the Chief and Councillors. The third is an issue not arising from the background facts set out above. It is whether councillor Maria Linklater ceased to hold office because she has not complied with the residency requirements of the Election Act.

Resignation or Removal of the Chief

[16]      I will deal first with the argument that the Chief's statement on December 14, 1995, constituted a resignation that would become effective on March 31, 1996. Counsel for the applicants states that the statement must be considered in the light of the circumstances in which it was given. The Chief was facing criticism as a result of what was considered to be inappropriate conduct. He decided to deal with this by announcing his resignation. Counsel argues that this would be understood by his critics as a firm decision and they modified their behaviour accordingly. Counsel argues that the statement should be interpreted as a resignation on December 14, 1995, to take effect on March 31, 1996.

[17]      There are no provisions in the Election Act setting out the procedure to be followed when a Chief or councillor decides to resign. Affidavit evidence states that it is Band custom, in circumstances such as that under consideration in this case, for the individual (Chief or Councillor) to offer his or her resignation to the Council, in writing, and then for the Council to either accept or reject that offer. It is argued that no such written offer of resignation was ever made by the Chief and, therefore, there has been no effective resignation.

[18]      In addition, counsel for the respondents notes that if those involved in attempting to have the Chief leave his office had really thought that the Chief's statement on December 14, 1995 was a resignation, their subsequent actions to remove him on January 31, 1996 are inexplicable. A letter read to the January 31, 1996 meeting, by Jerry Okanee, states that the Chief should sign a letter of resignation and if he refuses to do so he should be removed from office by a vote at that meeting. This statement accords with the view that the Chief had not resigned as of that date. It accords with the evidence that it was the custom and practice for resignations to be tendered in writing.

[19]      I conclude that the Chief's statement of December 14, 1995, was a statement of intention to resign, which he did not follow through with. It was not a resignation.

[20]      I turn then to the motion that was adopted on January 31, 1996, purporting to remove the Chief from office. That motion must be considered in the light of the provisions in the Election Act. Section 12 of the Election Act states:

12. A discipline Tribunal shall be created according to the following:

i)      Three Elder's shall be appointed by the Chief and Council to a two (2) year term to form the Elder's Tribunal which shall be vested with authority to receive the written request to remove an elected official from office.

ii)      Individuals or groups shall approach the Elder's Tribunal with their allegations, in writing, based on alleged contravention of Section 11 of this Act.

iii)      Upon a contravention of Section 11 of this Act, the Elder's Tribunal shall make recommendations to the Chief and Headmen.

iv)      The Chief and Headmen shall subsequently call for an assembly of the Thunderchild Band for a hearing within two (2) weeks of the recommendation(s) made by the Elder's Tribunal.

v)      Majority vote of the band members present at the hearings shall thereby rule whether there is just cause for the removal or not.

     (underlining added)

[21]      It is clear that what was intended was to establish a procedure for the removal of a Chief or Councillor that involved: (1) written allegations submitted to the Elder's Tribunal stating, with specificity, what conduct is the subject of the complaint, and the particular provisions of the code of conduct set out in section 11 that it is alleged were not complied with; (2) an adjudication on the merits of those allegations - that is are the facts alleged true, do the true facts fit within any of the descriptions of proscribed behaviour set out in section 11; (3) if the result of the findings is that the conduct infringed a section 11 provision, then, recommendations are to be made to the Chief and Council; (4) once a recommendation or recommendations have been made, the Chief and Council are obligated to call a Band meeting to consider those recommendations.

[22]      The Tribunal's recommendations might take many forms. They could include a recommendation that while a breach of a provision of section 11 was proven, the breach only merited an admonition that the particular conduct not be engaged in again. They could include a recommendation that the individual or the council as a whole modify, their or its behaviour or procedures in certain ways. They could include a recommendation that the Chief or one or more of the Council members resign.

[23]      It goes without saying that the notice to all Band members concerning a meeting, as required under the Election Act, to discuss the recommendations that are made by the Elder's Tribunal, should be given in sufficient time for the notice to be meaningful. It should include copies of both the allegations that were made to the Tribunal and the recommendations received by the Chief and Council from the Elder's Tribunal. Notice to all Band members in such a manner can serve to rebut any subsequent allegation that the relevant Band meeting was hijacked by a small group of Band members in an attempt to thwart the will of the majority.

[24]      At the election of December 8, 1994, 367 ballots were cast. Chief Weekusk received 164 of these. At the Band meeting of January 31, 1996, there were 29 votes cast; 19 were in favour of removing the Chief. Although it appears that the individuals who voted to remove the Chief were attempting to ensure accountability on the part of the Chief, the procedure that was used is subject to being characterized negatively, as a small group of members, at a poorly attended Band meeting, attempting to oust a popularly elected leader. Full and complete notice, sufficiently in advance of the meeting to be meaningful, can defuse that kind of characterization.

[25]      I turn then to the letters that were sent by the two members of the Elder's Tribunal to the Chief and Council. As noted, these merely state that it is the writer's opinion that Chief Weekusk should remain in office until the end of his four year term. Counsel for the Chief argues that there has been no finding that there was a contravention by the Chief of section 11 of the Election Act. At the same time, I note that the relevant provisions of that Act only require that recommendations be made when a contravention has been found. Thus it is arguable that implicit in the making of the recommendations is a finding that there had been a contravention.

[26]      Implied in the section 12 procedure, as has been said, is a requirement that the members of the Elder's Tribunal determine the accuracy of the allegations that are made and whether unacceptable conduct, as described in the Act, has occurred. If a decision is made that the allegations are not well founded, or that the conduct is acceptable and not proscribed by section 11, then, the Elder's Tribunal should communicate that decision, in writing, back to the individual or individuals who submitted the allegations in the first place. When a decision is made that a contravention has occurred, then the Elder's Tribunal makes recommendations to the Chief and Council.

[27]      The letters to the Chief and Council that were sent in this case appear to be based on a recognition that the Chief's conduct had not met the required standards set out in section 11. If there was no merit to the allegations of inappropriate conduct, I would have expected the Elders to have said so. I understand the opinion set out in the two letters, and the one oral expression of opinion, to be that despite the contravention of section 11, the Elder's Tribunal was recommending that the Chief remain in office.

[28]      Under the section 12 procedure, then, the Chief and Council were required to call a meeting within two weeks of the date of those recommendations so that the Band members could consider whether or not the Chief should remain in office. While a meeting was held within the two week period, it was not called for the purpose of addressing the recommendations made by the Elder's Tribunal. The meeting had been scheduled prior to the reception of the January 23 and 24 letters. More importantly however, notice was not given to all Band members that the Chief's continuing leadership would be a subject for discussion at that meeting. The section 12 procedure contemplates adequate advance notice to all Band members and full disclosure of all relevant information so that the Band members can make an informed decision.

Maximum Age Requirement

[29]      I turn next to the contention that the offices of Joseph Jimmy Sr. and Charles Paddy Sr. are vacant because of the motion adopted on January 31, 1996. That motion relates to an amendment of the Election Act to add a maximum age requirement of sixty-five for Councillors.

[30]      As noted above, there is a factual dispute with respect to this motion as well as a legal one. The factual dispute concerns the content of the motion that was approved at the Band meeting. The legal dispute concerns the procedure that was followed.

[31]      With respect to the factual issue, the typewritten minutes of the meeting of January 31, 1996 record:

MOTION #14 MADE BY FRED THUNDERCHILD SEC: DWAYNE NOON

- That within 30 days any Band member that is 65 yrs. or older stall resign from the office as either Chief or Headman/Councillor. All in favour. Carried

     (underlining added)

The handwritten minutes of the meeting record:

Motion #14 by Fred Thunderchild Sec: Dwayne Noon

That Section II of the letter (as per attached) fr. [from] Fred Thunderchild be passed as [a motion?] amendment w/respect to proper wording & typing. All in favour. Carried

     (underlining added)

The section of the letter to which the handwritten note refers states only that no person who is over 65 should run for office.

[32]      The handwritten notes of the meeting, after describing the motion that was proposed, and that it was carried, contains the statement that within 30 days any band member that is 65 years or older should resign from the office as Chief or Councillor. The affidavit evidence is that after the motion as described in the handwritten notes was adopted, a discussion followed which led to the view being expressed that the existing council members who were older than 65 should resign. A motion was never made that these individuals should resign.

[33]      I conclude that the motion that was passed related only to future elections and the ability of individuals to run for office. It did not deal with the continuing capacity of those over 65 to remain in office. This accords also with the general principle that legislative provisions do not operate retroactively (unless expressly declared to do so).

[34]      There are, as well, difficulties with the procedure that was followed with respect to the age amendment. The motion that was passed on January 31, 1996 was more in the nature of an intention to amend the Act, or a proposal to amend the Act, rather than an amendment itself. It seems clear from the wording of the Act that it is intended that an amendment to this very fundamental document, concerning the governance of the Band, should be effected by the adoption of the specific text of the new provision that is to become part of the Election Act. If this is not done, an open door exists for continued argument as to what that text should be. The adoption of a specific text is the procedure that was followed when the Election Act itself was adopted. It is also the procedure that was followed on January 31, 1996, with respect to the adoption of amendments to the Membership Code. Section 13 of the Election Act states that it is the amendment itself that is to be discussed at the Band meeting called for that purpose. In my view this means the text of the proposed amendment should be presented to that meeting.

[35]      Section 13 of the Election Act states:

AMENDMENTS

13.      Amendments may be made of this Act by resolution represented by motion of a member of the Thunderchild Band and passed by a majority of those present after having read the Amendments three (3) times at a Band Assembly called by the Chief and Headmen for that purpose.

     (underlining added)

[36]      Section 13 contemplates the giving of notice ahead of time and the distribution of a copy of the actual text that it is proposed to adopt. This did not occur in this case. I conclude that the motion did not effect an amendment to the Election Act because it was not adopted in accordance with the requirements of section 13.

[37]      Another question in issue is whether the requirement in section 13 that a proposed amendment be read three times, means that a proposed amendment be read and voted on three times, or merely recited three times. I was referred to no documented discussions, or comparable provisions that had been adopted by other Bands, for which an interpretation has been given. The only parallel is that found in legislative bodies generally. For example, in both the Senate and the House of Commons proposed legislation is read and voted upon three times, usually but not always on three different days before being passed. The purpose of such a requirement, again, is to ensure that what is being proposed is widely known, that there is an opportunity to reflect on it, and an opportunity to debate its merits before a decision is finally taken.

[38]      I conclude that section 13 means that the amendment be read and voted upon three times. It is clear from the section that this can be done at one Band meeting, and need not be done on three separate dates. Of course, it is open to the Band members to decide that as a matter of practice they wish to adopt a procedure that would see proposed amendments, in general, being read and voted upon on three separate occasions before they are passed.

[39]      The conclusion, then, is that the offices of Joseph Jimmy Sr. and Charles Paddy Sr. are not vacant, and that no amendment to the Election Act prescribing a maximum age for Chief and Councillors has yet been made.

Residency Requirement

[40]      An amendment to the Election Act, adopted on November 17, 1994, added subsection 3(i) to that Act. The subsection requires Councillors to become residents of the Reserve within 30 days after their election. This provision had been omitted by inadvertence from the Act when it was adopted in October 1994.

[41]      The relevant provisions of the Act read:

3(b) Notwithstanding their place of residence or their domicile, all eligible electors of the Thunderchild Band who meet the proper age requirements are entitled to vote.

. . . .

3(e) Notwithstanding place of residence or domicile, any eligible elector of the Thunderchild Band may become a candidate for Chief or Headmen.

. . . .

3(i) any successful candidate elected as Chief or Councillor under this Act shall, within 30 days from the date of his or her election, be required to establish, and to continue to establish, a bona fide residence on the Thunderchild Reserves #115B or #115C.

[42]      Maria Linklater was elected in the December 8, 1994 election. She lived in Saskatoon with her husband and six dependents (her niece and five grandchildren by Indian custom). She applied in January 1995 for housing on the reserve. None was available. She wrote, in March 20, 1995 to the Chief and Council applying for a new house to be built so that she and her family could move onto the reserve. This request was not met. Both counsel explained to me that housing on the reserve, and on most other reserves, is in very short supply.

[43]      The respondent states that she has attended the great majority of Band Council meetings; these are usually held on the first and third Tuesday of each month. She stays on the reserve for a period of three days on each occasion. She also attends on the reserve to participate in other activities such as Wellness Workshops and Cultural Teachings at the school. She stays with her father, in his house (a small three bedroom dwelling), when on the reserve. She is paid the same honorarium as any other council member and does not seek or receive any compensation for out-of-pocket expenses which she incurs as a result of travelling back and forth to the reserve, or for accommodation. She remains ready to move onto the reserve with her family whenever housing becomes available.

[44]      Counsel for the respondents argues that Maria Linklater's office is not vacant, nor should it be declared to be so, as a result of her inability to meet the residency requirement set out in subsection 3(i). This argument proceeds on a number of grounds: (1) residency is not an exclusive concept; one can have more than one residence and Maria Linklater is resident in her father's home when she is on the reserve; (2) she has complied with subsection 3(i) to the extent that it is possible for her to do so; (3) to interpret subsection 3(i) in these circumstances as requiring her to leave office would lead to an absurd result; (3) subsection 3(i) is in any event a directory, not a mandatory provision; (4) the applicants should not be allowed to challenge her position because they waited more than thirteen months after she was first in breach of the requirement, before commencing an application to have her removed - there has been excessive delay.

[45]      I am not persuaded that there is sufficient evidence on the file for a decision to be made with respect to the first argument. These are various indicia of residence that are applied in other contexts that could be used to interpret subsection 3(i). Subsection 3(i) does not speak about having one's principal residence on the Reserve, although it seems clear that what was intended was that the individual would have a substantial connection with the reserve. This is so that the elected representative can attend the meetings easily and without expense, and so he or she will have a first hand awareness of the issues concerning the Band members living on the Reserve. In any event, in this case, as noted, the evidence about the nature of Maria's sojourns on the reserve does not allow for a determination of this issue. For example, there is evidence that she stays with her father but whether she occupies a room that is set aside for her at all times, one of the usual indicia of residence, is not addressed in the evidence.

[46]      In any event, with respect to the third and fourth arguments, I am persuaded that subsection 3(i) must be interpreted as being directory, not mandatory. The Act does not specify what result should follow from a failure to meet the residency requirement. There is no express provision stating that the person thereby ceases to hold office. There are no provisions dealing with the situation where an elected member, through no fault of his or her own, is unable to meet the requirement.

[47]      In Blueberry River Indian Band et al. v. The Queen in Right of Canada (1996), 130 D.L.R. (4th) 193 (S.C.C.), Madame Justice McLachlin was required to analyze whether subsection 51(3) of the Indian Act was mandatory or merely directory in nature. This provision of the Act stated that a surrender "shall" be certified. In relation to what on its face appeared to be a mandatory provision, Madame Justice McLachlin stated, at page 211:

This Court has since held that the object of the statute, and the effect of ruling one way or the other, are the most important considerations in determining whether a directive is mandatory or directory: British Columbia (Attorney General) v. Canada, [1994] 2 S.C.R. 41. ... The true object of s. 51(3) ... of the Indian Act was to ensure the surrender was validly assented to by the Band. ... to read the provision as mandatory would work serious inconvenience ... I therefore agree ... that the 3shall3 in the provisions should not be considered mandatory.

[48]      In the present case, it is clear from subsection 3(e) that one of the objects of the Thunderchild Band Election Act is to permit all band members regardless of residence or domicile to run for and be elected to the Council, whether in a regular election or a by-election. Accordingly, should Maria Linklater be held to be disqualified from office by reason of subsection 3(i) she could nevertheless run for office again in the by-election and be re-elected under subsection 3(e), bringing the Band back to the present situation all over again.

[49]      More importantly, however, it is not a sensible reading of the Act to think that the Band members, when they adopted the residency requirement, intended that individuals who had been elected should lose their office if they were unable to obtain housing on the reserve through no fault of their own. The provision should be read as being directory. The provision should be interpreted as requiring the individuals in question to do all that they can to fulfil the requirement, and when it is not possible to comply through no fault of their own, to make the best alternative arrangements possible. Maria Linklater appears to have done that in this case.

Conclusion

[50]      Accordingly, for the reasons set out above, I conclude that the offices in question are not vacant and I must dismiss the application that is under review.

    

                                     Judge

OTTAWA, ONTARIO

November 25, 1997