Date: 20100616
Docket: T-2017-09
Citation: 2010 FC 655
Ottawa, Ontario, June 16, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THERESE VILLENEUVE and BERNADETTE UNKA
ON THEIR OWN BEHALF AND ON BEHALF OF
OTHER MEMBERS OF THE
DENINU K’UE FIRST NATION
Applicants
and
VIOLET BEAULIEU, ALICE DEBOER, DENNIS
KING,
HANK MULDER, ROBERT SAYINE, RAYMOND
SIMON,
LOUIS BALSILLIE, GREG BALSILLIE, CAROL
COLLINS,
DAVE PIERROT, PATRICK SIMON, DENINU KU’E
FIRST NATION and
THE MINISTER OF INDIAN AND NORTHERN
AFFAIRS CANADA
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants seek review of three decisions which they say are interrelated:
1. The decision
of the Band Council of the Deninu K’ue First Nation (hereinafter “DKFN”) to
call an election for Chief and Council;
2. The decision
of the Electoral Officer not to follow custom and permit proxy voting for
members of the DKFN who do not reside in Fort Resolution, NT; and
3. The decision
of the Election Appeal Committee to reject the appeal of Therese Villeneuve.
[2]
The remedy the applicants seek is
an order (1) quashing the Election Appeal Committee’s decision to let the
election stand, (2) declaring that the election was invalid, (3) declaring that
the procedure taken violated the Charter rights of non-resident voters,
(4) declaring that the decisions of those elected be set aside, (5) appointing
a receiver manager, (6) prohibiting the DKFN staff from making any substantive
decisions, (7) requiring Indian and Northern Affairs Canada (hereafter “INAC”)
to appoint an impartial Electoral Officer for a new election, and (8) requiring
that the new Electoral Officer institute proper non-resident voting procedures.
[3]
This
application is improperly drafted in that it purports to challenge more than
one decision and names as a party INAC without there being any decision made by
INAC that is under review. Further, it is not clear to the Court that the
interests of the two named applicants are identical. Ms. Villeneuve
participated in and may in fact have been instrumental in scheduling the
election which she now challenges. Further, not once did she ever raise any
objection to the exclusion of non-resident members from voting until she lost
the election. Her motivation and interest appears to the Court to be personal
to her, rather than having a view to the best interests of the DKFN. Ms. Unka
appears to have a legitimate personal as well as a broader interest directed to
members who reside away from Fort Resolution. The applicants are,
in effect, challenging the validity of the election for Chief and Council held
on November 2, 2009. That is the real issue before the Court.
Background
[4]
DKFN
is a “band” within the meaning of s. 2(1) of the Indian Act, R.S.C.
1985, c. I-5. The band office is located in the remote hamlet of Fort
Resolution, NT.
[5]
DKFN
has approximately 831 members including some 386 who live in areas other than Fort
Resolution,
NT. DKFN
elections are governed by the Customary Election Regulations of the DKFN
(hereafter “Code”).
[6]
It
is fair to say that the DKFN has been undergoing significant turmoil relating
to their independent governance for quite some time. DKFN is currently
operating under a co-management agreement as mandated by INAC because of
ongoing debt management and deficit issues.
[7]
Immediately
prior to the events giving rise to this application, the Chief and Council was
comprised of (1) Louis Balsillie, who was a councillor and was appointed in
January 2008 to be Acting Chief pending a by-election, retroactive to July 27,
2007 when the elected Chief, William Norn, was ousted by the Council, (2) Robert
Sayline, (3) Raymond Simon, (4) Frank Lafferty, and (5) Dave Pierrot who was
selected by Council on September 28, 2009 to replace Philip Beaulieu who had
been removed from Council at the Annual General Meeting of September 9, 2009,
because he was no longer a resident of Fort Resolution. In short, prior to
January 2008, there was a Chief and five councillors and afterwards there were
5 councillors, one of whom had been appointed as the Acting Chief.
[8]
At
the September 9, 2009 annual meeting of the DKFN, two important resolutions
were passed by the membership. The first was that the pending election be held
in accordance with the existing Code which had been adopted in 1994. An
election was pending because, as we shall see, the Code prescribes that the
election was to be held the first week of October, 2009. There had been some
dissatisfaction with the Code and moves had been made to amend it, but they had
not been finalized. It was determined that any such amendments would be better
done by the new Council and membership after the election.
[9]
The
second resolution of note was that there was to be “a new election 25 days from
now, for Chief and a complete Council of six, for a two year term.” It was
recognized at the meeting that this might be problematic and legal advice might
be required. The difficulties with this motion were many, including the
following:
1. The Code
provided for 5, not 6 Councillors;
2. Two of the
existing Councillors had two years remaining on their term and under the Code
their positions were not up for election; and
3. The term of
office set out in the Code was a four year term, not two years.
[10]
It
is not clear from the record what transpired next. The record is replete with
confusion as to the sequences of events and counsel were of little assistance
to the Court in clarifying matters. There is some reference in the record to
an election date of October 6, 2009 being set but there is no indication as to
how or by whom it was set. The record reveals that an Electoral Officer was
appointed and an election date of October 26, 2009 was set. Again, it is
unclear who set this date and under what authority.
[11]
The
October 26, 2009 date was cancelled when the Electoral Officer stepped down. A
new date was set for November 2, 2009, and Violet Beaulieu, the respondent, was
appointed as the Electoral Officer.
[12]
Near
the end of October 2009, counsel for DKFN advised that the November 2, 2009
election might be improper and that it should not proceed until the pending
wrongful dismissal litigation relating to the former Chief’s removal from
office was completed. Notices cancelling the election were posted. On
learning the news of the cancellation, INAC wrote the DKFN Council on October
23, 2009, expressing its concern that with the removal of Philip Beaulieu as
councillor, because he no longer resided in the community, and the cessation of
Louis Balsillie’s interim mandate, which INAC claimed ended September 12, 2009,
the remaining two councillors lacked the necessary “quorum to make decisions
and exercise the community governance function.” INAC asserted that it was
“necessary for an election to be held as soon as possible to fill, at a
minimum, the councillor positions so that quorum can be attained and governance
restored.” INAC asked the DKFN to advise on how this situation would be
remedied, and warned that “should it not appear that an electoral process is
underway to fill the vacant positions, the Department will have to consider
alternative governance measures, which may include the appointment of a third
party manager.”
[13]
Whether
the DKFN Council was without quorum is a disputed fact. The applicants take
the position that the Council lacked quorum. INAC appears to also have taken
this position in their correspondence, but its memorandum is silent on this
issue. The other respondents submit that the DKFN was governed by the Acting
Chief and four remaining Councillors until the November 2009 election that is
in dispute.
[14]
A
meeting was held where a Membership Committee was formed to respond to INAC’s
October 23, 2009 letter. It is unclear how this meeting occurred or under what
authority it was held. The applicant, Therese Villeneuve, was a member of this
Membership Committee and its Chairperson. By letter dated October 25, 2009,
the Membership Committee informed INAC of the steps they were taking to address
the DKFN’s governance issues, one of which included proceeding with the
November 2, 2009 elections. Public notices informing that the election was
back on were then posted. Violet Beaulieu remained the Electoral Officer.
[15]
The
election proceeded on November 2, 2009 with two candidates for Chief: Louis
Balsillie received 67 votes and Therese Villeneuve received 66 votes. On
November 6, 2009, Therese Villeneuve requested a recount of the ballots; this
request was denied by the Electoral Officer. Therese Villeneuve appealed this
decision to the DKFN Election Appeal Committee the same day.
[16]
On
November 10, 2009, the Election Appeal Committee received written submissions
from Violet Beaulieu, Electoral Officer, and Steve Cuthbert, DKFN Chief
Financial Office that responded to the substance of the allegations raised in
the appeal. It appears that these were not provided to
Therese Villeneuve. On November 12, 2009,
the Election Appeal Committee denied Therese Villeneuve’s appeal and provided
her with handwritten reasons consisting of a single sentence.
Issues
In my view,
the issues in dispute are the following:
1. Did the Minister make a decision that is properly the
subject of this judicial review application, and if so did the Minister commit
a reviewable error in failing to appoint a third party manager and/or failing
to demand that an election take place pursuant to s. 74 of the Indian Act?
2. Was the election improperly conducted?
3. Did the Election Appeal Committee breach procedural
fairness in denying the applicant Therese Villeneuve’s appeal?
4. If an affirmative answer is provided for issue 2 or 3
what is the appropriate remedy?
Analysis
a) The Role
of the Minister
[17]
This
issue resolved itself at the hearing when, after I informed the applicants that
I had difficulty seeing how the Minister was a proper party in light of the
wording of the Notice of Application, counsel for the applicants informed the
Court that the applicants and the Minister had reached an agreement and that
the applicants would discontinue their application against the Minister, with the
Court to remain seized of the issue of costs.
b) Was the election improperly conducted?
[18]
There
are two sub issues under this heading: (1) was the election conducted in
accordance with the Code or the custom of the DKFN, assuming custom can
override the Code, and if so, (2) did the manner in which the election was
conducted illegally disenfranchise the members who reside outside Fort Resolution
contrary to DKFN custom or the Charter?
[19]
The
composition of the Council and term of officer is set out in section 3 of the
Code which provides as follows:
3.
COMPOSITION
AND TERMS OF OFFICE OF COUNCIL
3.1 Composition
The First Nation will be
governed by a council consisting of one (1) Chief and five (5) Councillors.
3.2 Terms of Office
a)
The term
of office of the Chief shall be four (4) years commencing the day following the
election of Chief and concluding on the day following the Election for Chief
four (4) years later.
b) The three Councillors
receiving the most number of votes in the 1994 Election for Councillors will be
four (4) years commencing in the day following the Election for and concluding
on the day the Election for Councillors four (4) years later.
c)
The term
of office for the Councillors receiving the fourth and fifth most number of
votes in the 1994 Election for Councillors will be two (2) years commencing on
the day following the Election for Councillors and concluding the day following
the Election for Councillors two (2) years later.
d) Thereafter, the term of office
of each Councillor will be four (4) years commencing on the day following the
Election in which they were elected and concluded in the day following the
Election for Councillors four (4) years later.
3.3
A person appointed to the
position, Council or by the Council pursuant to s. 15 to fill a vacancy caused
by the death, resignation, or termination of a Councillor will hold that office
for the remainder of the term of office of that councillor.
3.4 Assumption of Office
Each elected Candidate will
assume office the day following the Election, By-election or Run-off Election
for that office.
[20]
The
calling of elections is specifically provided for in the Code, as follows:
4. ELECTION DAYS
4.1
The
Election for office of Chief & Councillors
The Election for the office of
Chief and Councillors will be held in the first full week of October with the specific
date during that week to be set by Resolution of the Council.
[21]
As
is evident from the provisions of the Code, the DKFN has a fixed election to be
held in the first week of October every four years. 2009 was an election
year. The specific day in that week on which the election is to be held is to
be fixed by the Council.
[22]
In
this case, the election was not held in the first week of October and it was
not held on a date fixed by Council. It was held on a date fixed by a
committee chaired by Ms. Villeneuve. There is no evidence that Council ever
passed any resolution or adopted the position of Ms. Villeneuve’s Membership
Committee as to the date of the election.
[23]
It
might be argued that the membership as a whole, at a properly conducted meeting,
can override the express provisions of the Code, although there is no such
provision in the Code that provides for this. However, even if I were
convinced that the membership could do so, there is no evidence before me that
this is what occurred in this case. The motion to hold an election that was
passed by the membership on September 9, 2009, appears never to have come to
pass as there was no election in 25 days, it was not an election for an
entirely new Council, and it was not for a term of two years. It is no answer
for the parties before the Court to suggest that the members of the DKFN are
not lawyers and don’t know the niceties of the Code when the Code purports to
reflect their traditional practice. I would have expected most members to
understand their traditional election procedures, at least those in power. In
my view, the election held on November 2, 2009 was improper, and illegal because
it was not called by Council in accordance with the Code. Therefore, the
election results are invalid and any actions or decisions that flowed from
those purported to be elected are nullities.
[24]
Although
I have agreed with the applicants that the election held was improper, it was
not for any of the reasons they advanced. It was not called by Council, contrary
to the submissions of Therese Villeneuve and in this respect it was irrelevant
whether the Council had a quorum or not. Further, I need not decide whether
the failure to permit those away from Fort Resolution to vote by
proxy was improper. I would note however, that there is nothing in the Code
that permits it and, in fact, the Code appears to require that voters vote in
person at the polling stations established by Council.
c) Did the Election Appeal Committee breach procedural
fairness?
[25]
In
light of my finding that the result of the election was invalid, I do not need
to address this issue. I would note, for those charged in the future with such
committees, that the better practice would be to provide to the appellant with everything
that is before the committee so that the appellant has an opportunity to
respond and address that information.
d) The
Appropriate Remedy
[26]
Submissions
were made that a “practical solution” was required as the DKFN had serious
issues facing it and they required a governing body. Concern was expressed
that a decision quashing the election might leave the DKFN in a position were
there was no Council and where no election could be called as there was no quorum.
That concern, in large measure, caused the applicants to name INAC as a party
and to seek an order from this Court that the Minister order an election to be
called.
[27]
Although
I have quashed the election results, I do not find that this leaves the DKFN
with a gap in governance.
[28]
Section
3 of the Code, in setting out the term of office of the Chief and Councillors,
provides that it is for a term “commencing the day following the election … and
concluding on the day following the election … four (4) years later.” Some,
including INAC read this as providing that these elected officials serve for a
fixed term of exactly four years. It was on this reasoning that some were of
the view that the governing body had lost quorum. I am of the view that such an
interpretation is incorrect. The Code must be read in a purposive manner. The
membership in approving it would not have done so if in so doing they created a
possible situation where there would be a gap in governance. Rather, in my
view, the drafters provided that each elected official would serve from the
date after his or her election until the day after his or her replacement was
elected. It was expected, in the ordinary course, that this election would be
four years later because the Code provides there is to be an election in the
first week of October. However, if that election is held at a later date then,
in my view, the incumbents remain in office until their successors are elected.
The operative and critical component of this section of the Code is not the
reference to a four year period of office; rather it is to the expiry of the term
upon the successor being elected.
[29]
Accordingly,
I find that the current governing body is and has been comprised of the persons
listed in paragraph 7 above. In light of my finding that the election held in November
2009 was invalid, Council ought to call an election for the positions of Chief
and those councillors who have already served a term of four years. They have
authority to do so under Article 8 of Schedule B to the Code which provides
that “the powers and authority of the Chief and Council include … other actions
and decisions as deemed necessary from time to time for the proper governance
of the Deninu Kue [sic] First Nation.” In so doing, this Council may
wish to give consideration as to whether the members who do not reside in Fort
Resolution
ought to be permitted to vote by proxy.
[30]
Lastly,
and in keeping with its authority under Article 8 of Schedule B to the Code,
the Council may also wish to consider passing a resolution approving and
ratifying any of the decisions taken by the “Council” that believed that it was
elected on November 2, 2009. Once a new and proper Council is elected it may
review those decisions but by ratifying them, the governance of DKFN will have
been regularized.
Costs
[31]
I
have determined, in the exercise of my discretion, that all parties, including
INAC, are to bear their own costs. The principal applicant Therese Villeneuve raised
a number of objections before the Court that she did not raise in the
proceedings in which she participated. In fact, the election that I have
quashed was held at the specific direction of a group she chaired. The issue
of non-resident voters, raised by the second applicant Bernadette Unka, was not
raised with the Council or Election Appeal Committee prior to these proceedings
and the Court has found it unnecessary to address that issue. Further, the
applicants improperly named INAC as a party. As for INAC, part of the
confusion lay at its feet. It wrongly raised the spectre that Council had no
quorum. Thus, although the appellants and INAC would normally be awarded
costs, in these circumstances it is my view that neither should be awarded
their costs.
JUDGMENT
THIS COURT ORDERS that:
- This application is
allowed, in part;
- The Court declares
that the purported election of Chief and Council of the Deninu K’ue First
Nation held on November 2, 2009, is invalid as it was not held in
accordance with the Customary Election Regulations of the Deninu K’ue
First Nation;
- The Council of the
Deninu K’ue First Nation is currently comprised of the following persons:
Louis Balsillie, Robert Sayline, Raymond Simon, Frank Lafferty, and Dave
Pierrot; and
- Each party shall
bear its own costs.
“Russel W. Zinn”
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