Date: 20090909
Docket: T-2205-07
Citation: 2009 FC 655
Ottawa, Ontario, September 9, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ROSEAU RIVER ANISHINABE
FIRST NATION CUSTOM COUNCIL
as represented by its Chairs
HECTOR PIERRE
and MARTHA LAROQUE
Applicant
and
ROSEAU RIVER ANISHINABE
FIRST NATION as represented by
CHIEF TERRANCE NELSON,
COUNCILLOR GARY ROBERTS,
COUNCILLOR JUNE LAROQUE,
COUNCILLOR LAWRENCE HENRY and
COUNCILLOR
KEITH HENRY
Respondent
AMENDED REASONS FOR JUDGMENT
AND JUDGMENT
I. INTRODUCTION
[1]
There
are two consolidated applications for judicial review in this matter. The first
(T‑2058‑07) is filed by the Chief and four Councillors on behalf of
the Roseau River Anishinabe First Nation (Band) seeking a declaration that the
First Nation’s Custom Council has no authority to act, and particularly that it
lacks the authority to remove the Chief and these four Councillors (Chief and
Councillors – the Respondents).
The second (T-2205-07)
is filed by the Band’s Custom Council (Custom Council – the Applicants) seeking
a declaration that its resolution removing the Chief and Councillors from
office effective June 1, 2007 is valid. The Custom Council also sought an
order in the nature of quo warranto that the Chief and Councillors do not
validly hold their respective positions of Chief and Councillors.
II. BACKGROUND
A. Facts
[2]
The Band is a band of
Ojibway who reside in south-eastern Manitoba, close to the
border with North Dakota. The Band has over 1,800 members, about
half of whom reside on the Roseau River Indian Reserve #2, 150 of whom reside
on the Roseau Rapids Indian Reserve #2A and the remainder of whom live
off-reserve, primarily in Winnipeg.
[3]
Prior to 1991, the Band
was governed by a Chief and Council elected in accordance with section 74 of
the Indian Act, R.S.C. 1985 c. I-5. In 1975, Felix Antoine was elected
Chief. He was defeated in 1977 by Stanley Nelson, the father of Chief Terrance
Nelson - a party to this hearing. Felix Antoine was elected Chief again in more
than one subsequent term.
[4]
Since 1991, the Band
governs according to band custom, with the approval of Indian and Northern
Affairs Canada. They have two pieces of legislation which express their system
of governance: the Bagiwaaniskiziibi Anishinabe First Nation Election Act and
Regulations (Election Act), and the Constitution. While the submitted version
of the Constitution is labelled “Draft”, both Parties agree that the
Constitution was duly enacted.
[5]
The Custom Council,
mentioned in both the Election Act and the Constitution, is a body, the voting
members of which are made up of those appointed by the family units of the
Band. The function of the Custom Council is to assist, support, and counsel the
Chief and Councillors in carrying out their duties. Section 15 of the Election
Act describes the Custom Council as “the prime authority and representative of
the total tribal membership”. They also have the power to amend the Election
Act. According to Article VIII of the Constitution, unless otherwise provided
by Custom Council, Custom Council meetings shall be held every Tuesday at 10 a.m.,
and Custom Council must give the family representatives 24 hours notice of
meetings at other times.
[6]
Since this legislation
was approved, there has been at least one instance where the Custom Council
removed Chief and Council from office. In March 1999 Edward Hayden was elected
as Chief for a four-year term. In early 2001, there was a governance dispute in
which the Custom Council reduced the term of office of the Chief and Council from
four years to two years in order to remove the then-Chief from office. This
action was judicially reviewed, and upheld, by Justice Kelen in Roseau River Anishinabe First Nation v.
Roseau River Anishinabe First Nation (Council), 2003 FCT 168. Felix Antoine was elected Chief in the election held
following the removal of then-Chief Hayden from office.
[7]
In March 2003, Terrance
Nelson, Gary Roberts, June Laroque, Lawrence Henry and Keith Henry were first
elected as Chief and Councillors, respectively. These comprise the Party
“Chief and Councillors” in this matter.
[8]
On March 21, 2004 at a
meeting with more than ten (10) other attendees, Hector Pierre was purportedly
appointed Interim Chairperson and Martha Laroque was purportedly appointed
Interim Co-Chairperson, with further elections to be held May 4, 2004. The
interim nature of the positions appears to be because one member, according to
the minutes, wanted more people to be there to speak their minds.
[9]
Over the next few
years, there are several instances of the Chief and Councillors being
requested, and failing, to attend Custom Council meetings. However, Chief
Nelson was re-elected as Chief in 2005 and 2007. In all three (2003, 2005 and
2007) elections, Felix Antoine was an unsuccessful candidate.
[10]
There is evidence that the
Chief and Councillors requested Custom Council to take the appropriate actions
to facilitate the elections during the time that Hector Pierre and Martha
Laroque were Chairperson and Co-Chairperson.
[11]
According to the Record,
and in the affidavit of Hector Pierre, at a Custom Council meeting on April 3, 2007,
he and Martha Laroque were reappointed as Chairperson and Co-Chairperson of the
Custom Council for a two-year term. While this does not appear in the minutes
of the meeting, there is a meeting motion record recording this. The minutes of
the April 3, 2007 meeting show 18 attendees while the meeting motion
record shows 13 representatives voting in favour, with no abstentions and no
oppositions. Custom Council meetings are open to the entire Band, therefore
certain attendees may not have the right to vote. It appears that Hector Pierre
was not present at that meeting, however Martha Laroque signed for the
Chairperson/Custom Council.
[12]
Hector Pierre attested
that in the spring of 2007, Custom Council became concerned with the spending
of the Chief and Councillors. In early May 2007, Custom Council passed Resolution # 01050307 appealing
to the Minister of Indian Affairs and Northern Development to conduct a
forensic audit of all financial accounts of the Band from March 1, 2003 to
March 31, 2007.
[13]
This resolution appears
as an item on the draft agenda for the Tuesday, May 22, 2007 Custom Council meeting,
indicating that the passing of Resolution # 01050307 did not resolve the Custom
Council’s concerns.
[14]
As a result of
continued concerns about mismanagement and misappropriation on behalf of the
Chief and Councillors, and about their unwillingness to report to Custom
Council, Custom Council passed (with ten people voting in favour) Resolution 0029052007
in which they voted to remove the Chief and Councillors from office in May
2007, to be effected no later than June 1, 2007.
[15]
Resolution 0029052007 removing
Chief and Councillors is written as being made on “Tuesday, May 28, 2007,”
however May 28 was a Monday. The numbering of the resolution indicates that it
was made on Tuesday, May 29, 2007.
[16]
On June 6, notice was
posted of a Tuesday, June 12 Custom Council Meeting.
[17]
On or about June 12,
2007, the Chief and Councillors filed a statement of claim in the Manitoba
Court of Queen’s Bench seeking declarations that Hector Pierre and Martha
Laroque were not respectively Chairperson and Co-Chairperson of Custom Council
and that “John Doe” and “Richard Roe” are not Family Representatives of Custom
Council, and interim and permanent injunctions restraining those persons from
acting in those roles as well as a claim for damages.
[18]
On June 21, 2007,
Justice Scorfield of the Manitoba Court of Queen’s Bench granted an interim
injunction restraining Hector Pierre and Martha Laroque from calling and
conducting an election for the positions of Chief and the four Councillors.
Despite this, on June 26, 2007, Hector Pierre and Martha Laroque attended the
Band Hall and held an election. The following individuals were purportedly
elected by acclamation:
Felix Antoine –
Chief
Martha Laroque –
Councillor
Tom Henry –
Councillor
Tracey Henry –
Councillor
Melvin Pierre – Councillor
[19]
On August 20, 2007,
counsel for the Custom Council filed a notice of motion in the Manitoba Court
of Queen’s Bench that the declarations sought by the Chief and Councillors came
within the exclusive jurisdiction of the Federal Court. On November 23, 2007,
in Roseau River Anishinabe First Nation v. Pierre, 2007 MBQB 283, Justice Nurgitz ruled that the Federal
Court had exclusive jurisdiction of the matter and dismissed the Chief and
Councillors’ statement of claim, save for the fraudulent misrepresentation
claim that was stayed pending the decision of the Federal Court. Following this, Hector Pierre contacted
officials of Indian and Northern Affairs requesting that no further funds be
sent to the Chief and Councillors on behalf of the Band.
[20]
The Chief and
Councillors’ application to this Court was filed on November 26, 2007, and the
Custom Council’s application was filed on December 19, 2007.
B. Impugned
Decision
[21]
While the Chief and Councillors’
application seems, at its core, to be in reaction to Custom Council Resolution 0029052007
removing the Chief and Councillors from office, their application is framed as
a request for a declaration invalidating the tenure of the impugned Custom
Council in its entirety. As such, from the Chief and Councillors’ side, there
is no clearly impugned decision. If any, it would appear from the issues raised
that they mainly target the decision (re-)appointing Hector Pierre and Martha
Laroque on April 3, 2007.
[22]
The Chief and Councillors are somewhat
inconsistent in their submissions on this basis. In their Memorandum of Argument
they say that at its core their application is about the attempt of a group of
people to remove the Chief and Councillors from office. Yet they also submit
that, because they do not recognize this body as a duly convened Custom
Council, to ask for the review of any particular decision would be contradictory
to their first submission. This position pre-supposes their success on several
of the issues that are at the core of this hearing.
[23]
From the Custom Council’s side,
there is clearly an impugned decision, as they have responded with an application
seeking a declaration that their Resolution 0029052007 is valid.
III. ANALYSIS
[24]
With
the flow of Application and counter-Application, the issues to be addressed can
best be distilled to these:
a.
Is
this a subject matter which is properly before the Federal Court?
b.
Are
the appointments of Hector Pierre and Martha Laroque as Chairperson and Co‑Chairperson,
respectively, of the Custom Council valid?
c.
Did
the Custom Council have the authority to remove the Chief and Councillors from
office and to call and conduct an election for the positions of Chief and of
four positions on Council?
A. Federal
Court Jurisdiction
[25]
There
are two aspects to this issue. The first is the Chief and Councillors’
contention that the Custom Council is not a “federal board, commission or other
tribunal” on the basis that the Custom Council arises from the Band’s inherent
right of self-government and its use of custom for the conduct of elections. The
second issue is whether the Chief and Councillors’ judicial review is out of
time and therefore should be dismissed.
(1) “Federal
Board, Commission, etc.”
[26]
This
issue, as it relates to this Band’s Custom Council, was determined in 2003 by
Justice Kelen in Roseau River Anishinabe First Nation, above. There is
no reason to depart from this authority.
[27]
The
weight of authority in this Court is that the Court has jurisdiction over
native band councils regardless of whether council was elected pursuant to
custom or pursuant to the Indian Act (see Sparvier v. Cowessess
Indian Band #73, [1994] 1 C.N.L.R. 182 (F.C.T.D.)).
[28]
The
Custom Council’s mandate and authority is set forth in the Band’s Constitution,
which is accepted as applying to the Band.
[29]
Section
1 of Article VI of the Constitution provides:
The supreme legislative authority of the
Roseau River Anishinabe First Nation shall be vested in the Custom Council,
having all the powers herein defined by this Constitution.
[30]
The
Election Act also speaks to the authority of the Custom Council. Section 15 of
the Act provides:
The Custom Council is the prime authority
and representative of the total tribal membership of the Tribe. The Custom
Council are leaders who assist, support and counsel the Chief and Councillors
in carrying out their duties as cited in the Declaration and Section 12 of this
Act.
[31]
Section
2(1) of the Indian Act gives recognition of custom council as a “council
of the band”:
|
2. (1) In this Act,
…
"council of the band"
means
…
(b) in
the case of a band to which section 74 does not apply, the council chosen
according to the custom of the band, or, where there is no council, the chief
of the band chosen according to the custom of the band;
|
2. (1) Les définitions qui suivent
s’appliquent à la présente loi.
…
« conseil de
la bande »
…
b) dans le cas d’une bande à
laquelle l’article 74 n’est pas applicable, le conseil choisi selon la
coutume de la bande ou, en l’absence d’un conseil, le chef de la bande choisi
selon la coutume de celle-ci.
|
[32]
The
statutory recognition of the Custom Council gives it the power to manage and
govern the affairs of the Band subject to its Constitution.
[33]
The
jurisdiction of the Federal Court was acknowledged in Justice Nurgitz’s
judgment as well (Roseau River Anishinabe First Nation v. Pierre, above).
[34]
Therefore,
this matter is properly before this Court.
(2) Judicial Review is out of time
[35]
The
more difficult issue, for the Chief and Councillors, is that their judicial
review application was filed outside the statutory 30-day time limit set out in
subsection 18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7. Only
at the hearing of the case did the Chief and Councillors seek to obtain a
formal extension of time.
[36]
Applying
the usual principles for an extension – an arguable case, a continuing
intention, a reasonable explanation, and an absence of undue prejudice – the
Chief and Councillors would fail on the grounds of at least “a reasonable
explanation”.
[37]
It
is important to bear in mind that the Chief and Councillors knew or ought to
have known of Justice Kelen’s decision in 2003 (Roseau River Anishinabe First
Nation, above) which dealt with the very same band. One is perplexed that
the Chief and Councillors would not have immediately seen the need to apply to
the Federal Court. Given the decision of Justice Kelen, it leads this Court to
conclude that the Chief and Councillors were attempting an “end run” on this
Court in the hope that the Court of Queen’s Bench would, in error, grant them some
relief.
[38]
Therefore,
I would strike the Chief and Councillors’ judicial review application and
refuse the extension of time. However, the formal striking is largely academic
because the positive assertions in the Chief and Councillors’ pleading are
turned into defence pleadings in respect of the Custom Council’s application to
confirm its Resolution 0029052007 removing the Chief and Councillors. The Court
now turns to those issues.
B. Appointment
of Chair and Co-Chair
[39]
The
Chief and Councillors’ position, whether in their own judicial review or in
defence of their removal, suffers from a critical flaw: laches/delay or acquiescence.
[40]
The
Chief and Councillors were elected in March 2003 and re-elected in 2005 and
2007. Pierre and Laroque were appointed Chair and Co-Chair starting in March
2004 and subsequently reappointed.
[41]
Only
after the Custom Council became concerned with the spending by the Chief and
Councillors; passed a resolution asking the Minister of Indian Affairs and
Northern Development to conduct a forensic audit; and - in the face of the
Chief and Councillors’ refusal to report to Custom Council and justify expenditures
- passed the resolution removing them from office, did the Chief and
Councillors seriously pursue their suggestion that there was anything amiss in
the appointments of members, Chair, or Co-Chair of Custom Council.
[42]
The
real and central issue in the two judicial reviews is the legality of the
Custom Council’s removal of the Chief and Councillors. The other issues raised
are either related to or subsets of this central issue, or are the legal
equivalent of a “red herring”.
[43]
While
the Chief and Councillors attack all of the Custom Council’s actions since
2003, for purposes of the issue of the appointment of Pierre and Laroque, the
appointments prior to the current one of April 5, 2007 are moot.
[44]
While
the attack on the validity of the appointments is ended by the Court’s
determination that the Chief and Councillors’ judicial review is dismissed for
lack of timeliness; even if it were not, to the extent that the appointments
colour the removal resolution, I find no fatal flaw in their appointment.
[45]
The
principal grounds of attack is that Pierre and Laroque were not family
representatives and thus were not eligible to be Chair and Co-Chair of Custom
Council. The Chief and Councillors also raise the issue that the appointments
were for a two-year term, whereas the Constitution contemplates annual
appointments.
[46]
However,
there is no clear requirement in the Constitution that the positions be held by
family representatives. Moreover, there are no detailed procedural requirements
governing the method of appointments or selection of appointees. In view of the
substantial period that these two people held their positions prior to 2007,
given the evidence that their appointments were generally accepted by the Band,
I conclude that the appointment must be considered consistent with the
Constitution (except as to term).
[47]
The
acquiescence or general acceptance of the appointments is particularly
important in a society which, as in this Band, is governed on the principle of
consensus. There was no evidence that, except for the Chief and Councillors,
others in the Band were not supportive or accepting of the appointments of
Pierre and Laroque.
[48]
To
the extent that there were some technical irregularities, including the length
of term of two years, I am not prepared to exercise my discretion to strike
down the appointments or to find that the Custom Council Resolution 0029052007 is
infirmed by this irregularity. While the duration of the term of appointment
did not match that prescribed in the Band’s legislation, the actions relevant
to this judicial review were plainly taken when the appointments were valid
according to Band legislation (as the reappointment had been made just over a
month prior). The duration of the non-conforming second-year of the term having
already expired at the time of this judgment, remedial orders – even if
appropriate - are of no use at this time. The Band will be expected in the
future to ensure that subsequent appointments meet the stated terms in the
Constitution.
C. Custom
Council Authority
[49]
The
Custom Council seeks a declaration that its Resolution 0029052007 is valid and
binding, and has the effect of removing the Chief and Councillors.
[50]
The
Chief and Councillors’ responses to this issue are principally that the Custom
Council has not been operating validly in part because of the appointment of
the Chair and Co-Chair and in part because family representatives on the Custom
Council were not validly appointed, as well as that procedural fairness was not
observed.
[51]
The
Court has already dealt with the issue of the appointment of the Chair and
Co-Chair.
[52]
With
respect to the validity of the appointment of family representatives, the Chief
and Councillors have not produced sufficient evidence of some material flaw in
the appointment of family representatives to sit on the Custom Council.
[53]
Sections
3 and 6 of Article VI of the Constitution provide:
Section 3. The Custom Council
shall consist of family representatives as appointed by the family units of the
Roseau River Anishinabe First Nation.
Section 6. The Custom Council
shall on an annual basis re-affirm their respective appointments from their
family units.
[54]
The
Constitution does not prescribe how the family units are to appoint their
representatives, the term of the representatives (Custom Council merely
reaffirms the appointment annually), or the process or recording of
reaffirmation.
[55]
In
addition, neither the Constitution nor the Election Act prescribes how many
family representatives may be appointed by the family units, nor is there a
standard method of appointment. Each family acts on its own as to the method of
their appointments. The evidence is that families appoint a representative and
may appoint alternates. The only consistent limitation appears to be that each
family unit receives one vote on the Custom Council.
[56]
There
was some evidence that within three families (the Henrys, the Patricks, and the
Antoines) there were disputes as to who was properly appointed. This is a
matter to be resolved by the families. The existence of the dispute does not
invalidate Custom Council’s operations, particularly where there is no evidence
of difficulty with the other 18 family units.
[57]
The
central point in the analysis of the legality of the removal of the Chief and
Councillors is that, as found by Justice Kelen in Roseau River Anishinabe
First Nation, above at paragraph 22, Custom Council has the authority to
remove the Chief and Councillors from office.
This recognition gives the Custom Council the power to manage and
govern the affairs of the Band. The Custom Council are persons “who assist,
support and counsel” the Chief and Councillors in carrying out their duties. In
this way, the Custom Council is responsible for carrying out the powers of a
band council to administer band monies, reserve lands and other powers
conferred under the Indian Act. Its decision to remove the elected Chief
and Council from office is a manifestation of this power.
[58]
To
the extent that there were technical deficiencies in the operations of Custom
Council, it would be inappropriate in these circumstances of a consensus-type
governance model to impose strict procedural guidelines in the exercise of
valid powers.
[59]
For
the Chief and Councillors to contend that Custom Council had not been active
since March 2003 is, on the evidence, ludicrous. The fact that this Chief
refused to recognize Custom Council does not render Custom Council inoperative.
To the extent that Custom Council activities were minimal from time to time
does not lessen its constitutional position as the supreme legislative
authority.
[60]
The
Chief and Councillors cannot take advantage of their rogue behaviour to
undermine the authority of Custom Council.
[61]
On
a balance of probabilities, I find that Resolution was passed at a duly
convened Custom Council meeting held at the appointed time on Tuesday, May 29,
2007. The Chief and Councillors contend that their removal was procedurally
flawed in that they did not receive proper notice of the Tuesday, May 29, 2007
meeting. This claim of breach of procedural fairness is without substance.
[62]
The
Custom Council has the powers of removal under s. 14 of the Election Act:
Once duly
elected by tribal members the Chief and Councillors represent and are therefore
accountable to all tribal members whereupon said Chief and Councillors may be
removed from office if they:
i.
Fail to uphold the Standards of Conduct as cited
in Section 12, subsection A-J inclusive, of this Act.
ii.
Are absent from two (2) consecutive meetings
without justifiable cause. ….
[63]
On
the evidence, the Chief and Councillors were aware of the tension with the
Custom Council and had sufficient knowledge of the meeting and of the concerns
of Custom Council. Section 12(j) of the Election Act provides that the elected
Chief and Councillors attend and remain at all official meetings called by the
tribal membership, Custom Council, or Chief and Councillors.
[64]
Custom
Council meetings are mandated by the Constitution to occur every Tuesday at
10:00 a.m., provided there is a quorum. The Chief’s evidence that he never
saw a meeting of Custom Council occurring on a Tuesday at 10:00 a.m. is not
credible in the face of evidence from the Chief and Councillors’ own witnesses
of the Custom Council meetings held since March 2003.
[65]
The
evidence establishes that the Chief and Councillors engaged in a plan to ignore
Custom Council and its meetings, especially when Custom Council’s inquiries
began to touch on the activities and financial dealings of the Chief and
Councillors. Examples of such avoidance, over and above non-attendance at
meetings during the most recent post-2007 election term, are:
(a) By letter dated
April 6, 2004, the Chief and Councillors were requested to attend before Custom
Council on April 13, 2004. The Chief and Councillors did not respond to this
request.
(b) On January 25, 2005,
Custom Council requested that the Chief and Councillors give public notice of
their accounting and provide documentation including the Chief and Councillors’
general ledger to the community.
(c) On January 29,
2005, Custom Council requested the Chief and Councillors to attend a General
Meeting of Custom Council on February 3, 2005 to discuss Trust Surplus
expenditures in the amount of $504,000.00 by the Chief and Councillors.
(d) By letter dated
January 31, 2007, Custom Council requested the attendance of Chief Nelson at
the Custom Council meeting scheduled for February 6, 2007 to respond to
questions relating to the various trips he took from March 2003 to March 2007.
[66]
Despite
these explicit requests, which were in addition to their pre-existing duty to
attend, the Chief and Councillors refused to attend these specific meetings.
[67]
Had
the Chief and Councillors attended these meetings, they would have had an
opportunity to at least address the issues which led to their removal. The
Chief and Councillors cannot now complain of some unfairness or breach of
natural justice. Any suggestion by the Chief that he did not attend because he
questioned the validity of Custom Council is self-serving, not credible, and
without sound legal basis.
[68]
As
to the merits of Custom Council’s Resolution 0029052007, the Court defers to
Custom Council because it was more than reasonable to remove from office
persons who ignored Custom Council’s authority and undermined Custom Council’s
ability to function.
[69]
As
to the specific relief, a writ of quo warranto is not necessary given
the order which I intend to make.
[70]
I
would note, however, that the evidence suggests there were procedural
irregularities in the actions of both Parties in the matters leading up to this
litigation. Acknowledging that the Roseau River Anishinabe First Nation governs
by custom and functions largely by consensus, and in that regard not wishing to
make specific findings or recommendations, I would advise the Band that
following their self-chosen procedures, and if necessary amending or developing
their Constitution and Election Act as the Band indicated they have
contemplated doing, will help to avoid creating a situation where this Court
becomes a regular recourse for Band election matters.
IV. CONCLUSION
[71]
Therefore,
this judicial review will be granted with costs to the Applicant.
Resolution 0029052007 is declared valid and binding, and the removal of the
Chief and Councillors is confirmed.
AMENDED JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application
for judicial review is granted with costs to the Applicant. Resolution
0029052007 is declared valid and binding and the removal of the Chief and
Councillors is confirmed.
“Michael
L. Phelan”
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