Date: 20080718
Docket: T-1805-05
Citation: 2008
FC 888
Ottawa, Ontario, July 18, 2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
ROBERTA FAYE OKEMOW-CLARK,
GRACE MARY OKEMOW,
JOYCE OKEMOW, ALVIS HOWARD OKEMOW,
EUGENE CLAVIN OKEMOW, DWAYNE CLIFTON OKEMOW,
CRYSTAL LYNNE OKEMOW, EUGENIA BERYL
OKEMOW,
EFFREM HOWARD OKEMOW, TERRENCE DAVID
OKEMOW,
BOBBY JAY OKEMOW, LANNY MICHAEL OKEMOW
and
ELAINE PELLETIER
Applicants
and
LUCKY
MAN CREE NATION and RODERICK KING
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review arising from an internal dispute with respect
to the membership of some thirteen individuals (plus seven minor children) in
what they consider to be their Band. The applicants contend that their status
as members of the Lucky Man Cree Nation has been taken away from them
improperly and in contravention of the Indian Act (R.S.C, 1985, c. I-5)
and of the Membership Code of the Lucky Man Band (the Membership Code),
as a result of which they were prevented from voting in the last Band election held
on September 7, 2004.
[2]
Having
carefully taken into consideration the written and oral submissions of the
parties and reviewed their records, I am of the view that the applicants must
succeed in their application. I am not prepared, however, to grant all the
remedies sought in their application, for the reasons that are set out below.
I. Facts
[3]
The events
giving rise to this application occurred in 2004. This was an election year in
the Lucky Man Cree Nation. In or about December 2003, the Band began the
process of revising their election procedures pursuant to the Lucky Man Cree
Nation Election Act (the Election Act). During this process, a
dispute arose over whether the applicants were properly listed as voting members
of the Band.
[4]
All of the
applicants are children or grandchildren of Howard Okemow and Grace Okemow.
Howard Okemow’s father was Robert Musqwa, a member of Little Pine First Nation,
and his mother was Lily Okemow, who was originally from Lucky Man First
Nation. Upon her marriage to Robert Musqwa, she was transferred to her
husband’s band. They had two sons, one of which is still a member of Little
Pine First Nation.
[5]
Howard
Okemow, born in 1932, came to reside in Lucky Man Cree Nation upon the passing
of his mother Lily Okemow, in 1936, and was raised by his maternal grandfather
Okemow according to the rite and accepted practice of Lucky Man Cree Nation.
Howard was raised with his personal belief and with community acceptance that
he was a full member of the Lucky Man Band.
[6]
All of
Howard’s children and grandchildren born on or before April 17, 1985 had their
names entered in the Band List for Lucky Man Cree Nation prior to April 17,
1985, pursuant to section 9(2) of the Indian Act. They apparently
continued to enjoy full membership rights and status until 2004. Indeed, three
of the applicants were Band councillors prior to the election of 2004.
Moreover, one of the applicants (Mrs. Roberta Okemow-Clark) filed an affidavit
to which is attached a June 16, 2000 “Voter’s List for Lucky Man Cree Nation”,
showing that all applicants were fully recognized as voters.
[7]
In a
letter sent to the Registrar at the Department of Indian Affairs and Northern
Development (INAC) on December 22, 2003, the respondent Roderick King made
enquiries with respect to the definition of “descendant of original members”,
and asked for a list of original membership for Lucky Man Cree Nation as well
as for a list of all adoptions (custom or legal) into Lucky Man Cree Nation.
The respondent also sought information as to the impact of Bill C-31 (An Act
to Amend the Indian Act, S.C. 1985, c. 27, assented to June 28, 1985),
which gave status back to people who had lost it through marriage, education,
armed forces or ministry. Mr. King specifically asked whether this legislation
also gave these people membership into their original bands.
[8]
In
response, the manager (Policy, Planning and Training) at the Indian
Registration and Band Lists (INAC) indicated that there is no definition of
“descendent of original members” in the Indian Act. She also provided a
list of the original membership for the Lucky Man Cree Nation. She declined to
provide a listing of persons adopted through the courts into the Lucky Man Cree
Nation or to provide information as to whether Howard Okemow was adopted either
by custom or by law into the Lucky Man Cree Nation as this is personal
information exempt from disclosure under subsection 19(1) of the Privacy Act
(R.S.C, 1985, c. P-21). She did purport, however, to clarify the situation
with respect to custom adoptions into the Lucky Man Cree Nation in the
following terms:
As a result of the 1985 amendments to the
Indian Act Bill C-31, persons adopted in accordance with Indian custom
by Registered Indians can be recognized as entitled to Indian status and, if
the department maintains the Band List, as entitled to band membership. Under
the former Indian Act, Indian status and band membership could not be
gained as a result of Indian custom adoption by Registered Indian parents. The
Lucky Man Cree Nation assumed control of its own membership under the
provisions of section 10 of the Indian Act effective June 23, 1987. I
can confirm that between April 17, 1985 and June 23, 1987 [the date upon which
the Lucky Man Band assumed control of its membership], while the department
maintained the Band List, no individuals were added to the list because of
Indian custom adoption.
[9]
As to the
impact of Bill C-31, the letter from INAC doesn’t draw a distinction between
Indian status and band membership. Relying on subsection 11(1) of the Indian
Act, the letter states explicitly that “[e]veryone whose name was entered
or was entitled to have his or her name entered in the Lucky Man Cree Nation
Band List immediately prior to April 17, 1985” was eligible to have his name
entered in the Lucky Man Cree Nation Band List immediately before June 23,
1987.
[10]
In reply,
then Chief Roderick King wrote back to INAC and sought to have Howard Okemow
removed from the Lucky Man Band Membership. This letter of April 8, 2004,
reads in part as follows:
This error by your office, that of
transferring Howard from No. 201 Little Pine needs to be corrected. Since
“band membership could not be gained as a result of Indian custom adoption”
then Howard should not have been transferred to Lucky Man’s Registry List. If
your office has further records that indicate Howard was admitted to Lucky Man
by any other instrument or authority, then please provide our office with
copies of these records.
In light of the above information, the
wife and children from #215 Howard (Muskwa) Okemow do not qualify for Lucky Man
Band Membership under our s. 10 Band Membership Code. Further, membership has
instructed me to place a formal objection for their continued s. 11 listing as
status Indians belonging to the Lucky Man Band. Please indicate when this
family is going to be transferred back to Little Pine Indian Band Registry
listing.
[11]
Following
up on this letter, Chief Roderick King wrote a further letter on June 15, 2004,
reiterating his request for information on Howard Okemow’s adoption and arguing
that the Privacy Act does not apply when an individual has been deceased
for over 20 years (Howard Okemow died in 1982). He also contended that the
Band was denied the right to protest the adoption of Howard Okemow into the
Lucky Man Band in 1936, stating:
We had also requested clarification on
the authority used for this transfer from Little Pine Band in 1936. Our Band
was without a Chief or Council from the time the government discredited and
refused to recognize Lucky Man as our Chief in 1883 until our first election
for Chief and Council was held on May 23, 1973. All Bands have had the
opportunity to protest and approve transfers or additions to band lists;
however, since we had no Band Council, no reserve lands, and no band buildings
for public postings we have not been provided these same opportunities.
[12]
On July 5,
2004, Chief Roderick King published and circulated a letter to Band members outlining
the procedure to amend the Election Act of the Band. King advised that
the Election Act stipulated that a General Band Meeting must be called
for the sole purpose of amending the Election Act and that 30 days
notice must be provided for such a meeting. King stated that any changes
needed to be approved by a majority vote and that changes would only come into
effect if they were passed 60 days prior to the election. King concluded that
there was not enough time to amend the Act prior to the next election to
be held in early September, and that any proposed amendments would have to be
dealt with by the next council.
[13]
On August
9, 2004, King wrote the Band members again and advised that although the Band
had taken over control of its Band membership in 1987, it had not created its
own membership list pursuant to section 10 of the Indian Act. As a
result, the Band has continued to use the Treaty Indian Status list drawn up
under section 11 of the Indian Act since 1987 and has never attempted the
task of putting up its own membership list. Since the then Chief and Council
felt they were in a direct conflict of interest, the work was referred to a
Membership Committee for their review and recommendations. Respondent King neither
participated in any of the Membership Committee’s meetings nor cast a vote for
or against the applicants’ membership.
[14]
Respondent
King acknowledged in his letter to Band members that Council should have
presented a Membership List for membership approval but failed to do so. The
basis upon which the Membership Committee drew its list is not entirely clear.
According to the August 9, 2004 letter from King, the Committee was to start
with the Treaty Annuity paylists from 1879 to 1955, together with the INAC
Black Book. Yet in her affidavit, the current chief Pauline Okemow, who was a
member of that Committee and not a descendent of Howard Okemow, indicated that
the Committee reviewed membership and voting rights on the basis of blood
quantum (para. 8 of her affidavit). Be that as it may, the Committee drew a Section
10 Lucky Man Band Membership list, which did not include the applicants’ names,
and a Section 11 Indian Status list which included the applicants. Band
members were advised that membership training would be provided on September 3
and 4, at the conclusion of which they would be asked to vote for the
acceptance of persons on the section 11 list into Lucky Man Cree Nation Band
Membership.
[15]
On
September 3, 2004, the applicants all personally attended the Band meeting in Saskatoon. According to the uncontradicted
affidavit of the applicant Roberta Okemow-Clark, they were approached upon
entering the room by two members who had security guards with them. They were
told that they had to leave, and that they were not allowed to come into the
meeting room or to take part in that Band meeting. The applicant protested
that she was still a Band Councillor, along with two other applicants, ant that
their terms of office continued at least until the election on September 7,
2004. The reply was that none of the applicants were allowed because they had
already been placed into a section 11 band list, that they had no longer any
rights, and that only section 10 members were allowed to enter the meeting.
Since that meeting, the applicants claim that they have lost all rights and
benefits as Band members and have been denied any opportunity to appeal or to
seek recourse through any channels within the First Nation establishment. They
have been denied the right to seek office or to vote in the Band election held
on September 7, 2004.
[16]
The
applicants seek a variety of remedies:
-
A
declaratory Order that the applicants shall immediately be reinstated as Band
members of Lucky Man Cree Nation, with full rights and privileges of Band
Membership, for themselves and for their descendants, and further that they be
compensated for any loss of rights and benefits, caused by the wrongful acts of
the respondents Lucky Man Cree Nation and Roderick King.
-
A
declaratory Order that any nominations, elections or by-elections which have
taken place since August 9, 2004, be deemed null and void, and that new
nominations and elections be held forthwith, with the full participation of the
applicants to vote or seek nominations and office as candidates, in such new
election to be called and held.
-
A
declaratory Order that the applicants shall be fully compensated by the
respondents, jointly and severally, for all solicitor/client costs, the costs
of this application, and any other relief or remedy deemed proper by this
Court.
-
An injunctive
relief Order to prevent the respondents from pursuing, compromising or settling
the issue of Treaty Land Entitlement with the Government of Canada, on the
basis of its present position pertaining to Band membership, until this matter
is fully heard and determined.
[17]
At the
hearing, counsel for the applicants acknowledged that compensation is not
available on a judicial review application. Subsection 18.1(3) of the Federal
Court Act, R.S.C. 1985, c. F-7, sets out the type of relief the Federal
Court may grant on this type of application, and damages or compensation is not
amongst the types of relief to be granted: see, for example, De-Nobile v.
Canada (Attorney General) (1999), 95 A.C.W.S. (3d) 1065, [1999]
F.C.J. No. 1727 (QL).
[18]
It is
interesting to note that Pauline Okemow, the current Chief of Lucky Man Cree
Nation, proposes in her affidavit (at para. 11) to resolve this dispute in the
following way :
a) The issue of the Applicants’
membership in Lucky Man Cree Nation shall be put to a vote of all members.
b) The Applicants shall be entitled to
cast a vote in that process.
c) Following this vote, if the Applicants
are not held to be members, then the election results from the 2004 election
shall stand. If the Applicants are held to be members then a new election
shall be called and held within a reasonable time following the vote on
membership.
d) Each party shall bear its own costs in
these proceedings.
II. The issues
[19]
The respondent Lucky Man Cree
Nation took issue, orally and in writing, with the propriety of this
application. First of all, counsel argued that the application is premature as
the applicants had an obligation to exhaust their internal rights of review and
appeal before seeking judicial review. The Band also submitted that the applicants
exaggerate their harm as the only right they were deprived of was their right
to vote in the 2004 election. In any event, counsel submitted that the Band
had nothing to do with any purported decision to strip the applicants of their
voting rights, and that it was the Chief’s sole and unilateral action that was
responsible for any harm that might have been done to the applicants. Finally,
Lucky Man Cree Nation asserts that there is no decision upon which to base this
judicial review, since no federal board or tribunal was involved and no
decision was taken.
[20]
The
respondent Roderick King does not oppose the applicants’ immediate
reinstatement as Band members, their request that a new election be held
forthwith or that an Order be granted preventing the Band from pursuing its
Treaty Land Entitlement. The only remaining issue which pertains to King,
according to his counsel, is therefore whether his actions were tainted with
ill motives and bad faith or whether he carried out his duties diligently and with
good faith. He contended that he only followed up the merits of a dispute that
arose over whether the applicants were properly listed as voting members of the
Band. He strenuously argued that he acted diligently in his search for
relevant information concerning the transfer of Howard Okemow and impartially
as he did not participate in any vote pertaining to this issue; indeed, he had
no stake in the result of the 2004 election as he did not even run as a
candidate.
[21]
Since
judicial review is concerned with the legality of a decision, the good faith or
bad faith of a decision maker and his or her motives are irrelevant unless, of
course, impartiality is at stake. As a result, whether former Chief Roderick
King carried out his duties diligently and with good faith is immaterial to the
issue raised by the applicants. The only question to be determined by this
Court is whether the process followed to deny the applicants’ membership in the
Band was in conformity with the Band Membership Code and with the Indian
Act.
[22]
Before
addressing this substantive issue, however, the Court must consider the
preliminary issues raised by the Lucky Man Cree Nation.
III. Analysis
[23]
Counsel
for Lucky Man Cree Nation argued that the applicants have bypassed the internal
remedies found in the Membership Code and the Election Act and
have proceeded directly to the Court. Reliance was put on a few decisions of
this Court (Saskatchewan (Minister of Agriculture,
Food and Rural Revitalization) v. Canada (Attorney General), 2006 FC 345, 289
F.T.R. 237; Shea v. Canada (Attorney General), 2006 FC 859,
296 F.T.R. 81; Gambini v. Canada (Attorney General), 2005
FC 666, 272 F.T.R. 312) and of the Supreme Court of Canada (Canadian
Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, 122 D.L.R.
(4th) 129) for the proposition that there is an obligation on a
party to exhaust its internal rights of review and appeal prior to seeking
judicial review from this Court.
[24]
I am well
aware of the compelling policy reasons that militate in favour of encouraging a
grieving party to use the internal remedies at his disposal before resorting to
the courts, especially in the Aboriginal context. As stated by my colleague
Justice Robert Barnes in Sweetgrass First Nation
v. Gollan, 2006 FC 778, 294 F.T.R. 119 (at para. 53), “the
electors and elected representatives of [a First Nation Band] are fully capable
of conducting their business without outside involvement”. The alternative
remedy does not have to be perfect, but it has to be adequate.
[25]
In the present
case, I am not convinced that the Membership Code and the Election
Act do provide an adequate alternative forum for resolving the dispute
between the applicants and the respondents. First of all, the Election Act grants
a right to appeal only to the candidates or to the electors who gave or
tendered their vote at the election. Since the applicants have been prevented
from running as candidates and from voting, they are shut out of this appeal
procedure.
[26]
As to the Membership Code, the situation is more complex
because the procedure outlined in sections 6 and 7 of this Code have not been
followed. These sections read as follows:
6. The Lucky Man Band has given the Chief
and Council the power to determine membership under provisions of this Code.
7. The Lucky Man Band shall establish a
Review Committee (Elders, Judge, or Peacemaker) to review membership decisions,
with powers to adjust, suspend or reverse decisions, whose decision must be
ratified by the majority of Lucky Man Band electors.
[27]
However, the
Chief and Council delegated the work coming up with a membership list to the Membership.
This procedure was completely irregular for a number of reasons. First of all,
the Membership Code gives the Chief and Council the power to determine
membership so, at a minimum, they had to approve the Committee’s
recommendations. Second, counsel for Chief Roderick King admitted at the
hearing that the Council should have been involved in putting this procedure in
place. Third, it is not entirely clear according to Chief Roderick King
himself whether this Committee is the same as the Review Committee set out in
the Act. In light of this confusion surrounding the drawing of the Membership
List and of the ad hoc nature of the procedure followed, the applicants
cannot be blamed for not having relied on the Membership Code to bring
their grievances to a resolution. One cannot help but being left with the
impression that the applicants had no other option than to resort to the
courts; either the membership list was drawn by a committee which had no proper
legal existence, or it was made by the Review Committee established by the Membership
Code without prior input from the Chief and Council. In both cases, the
procedure was a nullity and the applicants were totally justified in coming to
the Court for relief.
[28]
The
respondent Lucky Man Cree Nation further submits that a judicial review can
only be made to deal with an administrative decision of a federal board or
tribunal. In the present case, it is argued there is no federal board or
tribunal involved, and no actual decision was made. The applicants’ complaint
lie against the unilateral acts of former Chief Roderick King; since he is not
empowered to act on his own and can only validly act in concert with Council
pursuant to the Membership Code and the Election Act, so the
argument goes, the Chief is not a federal board or tribunal vis-à-vis the
decision and could not bind Lucky Man in this regard. There is therefore no
federal board against which to bring judicial review. Counsel for the
respondent Lucky Man argues that no decisions were made by Chief and Council
and that former Chief Roderick King made “opinions” that the applicants should
not be classified as members of Lucky Man and should not vote in the 2004
election.
[29]
This
argument is appealing at first sight but must be rejected. First of all, it
may well be that the decision to remove the applicants from the Band’s list and
to prevent them from voting was inchoate and never formally recorded or voted upon
by Chief and Council, but it was nevertheless acted upon. In a letter sent to
one of the applicants on September 10, 2004, the Chief Electoral Officer for
Lucky Man Cree Nation purported to explain why she was denied the right to
participate
and vote on the polling day on the basis
that she was not on the section 10 list of confirmed members of the Band. The
Chief Electoral Officer wrote:
Lucky Man Band maintains two lists, a
section 10 list that contains only the names of those members who are considered
confirmed. On this list are only 36 names of members eighteen and over. The
second list contains the names of those not yet confirmed and are yet under
section 11.
In the Lucky Man Cree Nation Membership
Act paragraphs 7, 8 and 9 states that the current membership of this band are
the ones who finalize the membership list. It remains the power of the
membership to confirm those under section 11 as members of Lucky Man thus given
them the right to vote at Lucky
Man.
I am sorry to have had to refuse you and
the others this sacred right but until those under section 11 have been
confirmed as band members, no electoral officer may allow them on the voters
list.
[30]
It is no
defence to argue in this case that no decision was formally made and that the former
Chief took it upon himself to express an “opinion” as to the membership of the
applicants. If such an argument were to be accepted, it would be an
encouragement for band councils and other administrative entities to refrain
from recording their decision and to proceed on the basis of informal
decisions. On the basis of the evidence that has been put before the Court, I
am satisfied that a decision has been made to take away from the applicants
their membership in the Band, as evidenced by their ineligibility to vote or to
run in the September 7, 2004 election. That decision was not only that of the
former Chief, but that of the Council as well given that it was enforced by the
Chief Electoral Officer and not rescinded ever since. Since the right to
participate in the electoral process is one of the most fundamental rights
associated with membership in a Band, its denial is as clear an indication as
there can be of the applicants’ loss of their membership in the Lucky Man Cree
Nation.
[31]
The
preliminary objections raised by the respondent Lucky Man having been
dismissed, the next issue for this Court is to determine whether it should take
it upon itself to determine whether the applicants should indeed have their
names included in the Band Membership List. The applicants have urged the
Court to go that far, but the respondents have strenuously opposed that course
of action.
[32]
As
mentioned above, the Indian Act was amended in 1985 to enable those Indian
bands that so wish to gain full control over their membership. The relevant
sections of this Act are reproduced in an Annex to these reasons.
Paragraphs 10(1) and (4) are particularly relevant for this case, and are set
out here for ease of reference:
|
Band
control of membership
10.
(1) A band may assume control of its own membership if it establishes
membership rules for itself in writing in accordance with this section and
if, after the band has given appropriate notice of its intention to assume
control of its own membership, a majority of the electors of the band gives
its consent to the band’s control of its own membership.
Acquired
rights
(4)
Membership rules established by a band under this section may not deprive any
person who had the right to have his name entered in the Band List for that
band, immediately prior to the time the rules were established, of the right
to have his name so entered by reason only of a situation that existed or an
action that was taken before the rules came into force.
|
Pouvoir
de décision
10.
(1) La bande peut décider de l’appartenance à ses effectifs si elle en fixe
les règles par écrit conformément au présent article et si, après qu’elle a
donné un avis convenable de son intention de décider de cette appartenance,
elle y est autorisée par la majorité de ses électeurs
Droits
acquis
(4)
Les règles d’appartenance fixées par une bande en vertu du présent article ne
peuvent priver quiconque avait droit à ce que son nom soit consigné dans la
liste de bande avant leur établissement du droit à ce que son nom y soit consigné
en raison uniquement d’un fait ou d’une mesure antérieurs à leur prise
d’effet.
|
[33]
Subsection
11(1) of the Indian Act as amended further provides that a person was
entitled to have his or her name on a Band list maintained by the Department if
the name of that person was entered in the Band list for that Band or was
entitled to have it entered on the Band list immediately prior to April 17,
1985.
[34]
The Lucky
Man Band assumed control of its membership pursuant to section 10 of the Indian
Act on June 23, 1987. The Lucky Man Cree Nation Membership Code,
which remains in effect throughout the material times of this action, states:
8. The following persons are entitled to
Membership in the Lucky Man Cree Nation:
a) The original (existing and present)
Members, and those who were entitled to be members of the Lucky Man Cree
Nation, prior to April 17, 1985;
b) The natural and legally adopted child
or children of a parent(s) who is a member, or is entitled to be a member, of
the Lucky Man Cree Nation under clause 8(a);
c) Persons entitled to membership as a
result of reinstatements by which they automatically received membership under
amendments to the Indian Act, June 28, 1985;
d) Such other persons as may be
determined to have made significant contributions to Lucky Man Cree Nation,
Chief and Council may recommend conferring an Honorary Band Membership.
[35]
It would
be remiss of me to determine whether the applicants should be on the Lucky Man
Cree Nation Membership list, for at least two reasons. There is very little
evidence on the record as to whether the applicants had their names entered on
the Band list maintained by INAC immediately prior to April 17, 1985, or, for
that matter, on the day the Lucky Man Cree Nation assumed control of its
membership. All there is attached to the affidavit of Roberta Okemow-Clark is a
copy of a June 16, 2000 Voter’s list for Lucky Man Cree Nation showing the
applicants as fully recognized as voters (exhibits “A” and “B”), a reference in
a letter from Roderick King to INAC treaty paylists showing that Howard Okemow
was adopted and transferred from Little Pine to Lucky Man in 1936 (exhibit “E”),
and a copy of Howard Okemow’s registry listing attached to that same letter
purportedly containing false information with respect to Howard’s parents.
[36]
As a
result, this Court is not in a position to determine whether the applicants had
their names entered or were entitled to have their names entered in the Lucky
Man Cree Nation Band list immediately prior to April 17, 1985. Under the former
Indian Act, Indian status and band membership could not be gained as a
result of Indian custom adoption by Registered Indian parents. This situation
has changed as a result of the 1985 amendments to the Indian Act. The
new definition of a “child” in section 2 of the Act includes a child adopted in
accordance with Indian custom, but it does not appear to apply retroactively.
This is all the more reason to determine if Howard Okemow was legally adopted
by his maternal grandfather, therefore entitling him to have his name entered
in the Band list immediately prior to April 17, 1985, or if his name was
entered in the Band list immediately prior to that same date. All of this
information is crucial to assess the membership of the applicants in the Lucky
Man Cree Nation.
[37]
There is
another reason why this Court should not intervene at this stage. Subsection
18.1(3) of the Federal Courts Act provides that on an application for
judicial review, the Federal Court may “declare invalid or unlawful, or quash,
set aside, or set aside and refer back for determination in accordance with
such instructions as it considers to be appropriate, prohibit or restrain, a
decision, order, act or proceeding of a federal board, commission or other
tribunal”. Contrary to the situation on appeal, the Court has no jurisdiction
to substitute its own decision to that of the original decision maker. This is
all the more so, it seems to me, when the decision quashed originates from an
elected body. First Nations Bands have acquired the right to govern themselves
and are fully capable to exercise that right; courts should be loathe to
intervene in governance issues that are better left to the membership of a band
and its elected representatives.
[38]
The
matter shall therefore be remitted to the Chief and Council to be dealt with in
accordance with the Membership Code of the Lucky Man Band. The
compromise solution proposed by Chief Pauline Okemow in her affidavit cannot be
countenanced by this Court as it derogates from that Code and more particularly
from its sections 6, 7 and 8. Pursuant to these provisions, the Chief and
Council have the power to determine membership. In drawing up a membership
list, they must be guided by section 8 of the Code. While the Band may control
its membership, its authority to do so is in turn limited by section 10 of the Indian
Act. In particular, subsection 10(4) provides that membership rules of a
Band may not deny membership to anyone entitled to have her or his name on the
list.
[39]
Section 7
of the Membership Code also provides that the Lucky Man Band shall
establish a Review Committee composed of elders, judge or peacemaker, to review
membership decisions. If the applicants or any other interested person is not
satisfied with the decisions made by the Chief and Council, they are entitled
to challenge these decisions before the Review Committee which is empowered to
adjust, suspend or reverse the original decisions made by the Chief and
Council. In the end, the decision of the Review Committee must be ratified by
the majority of Lucky Man Band electors. It is only after the completion of
this process that an applicant shall be allowed to challenge the decision made
before this Court on its merits.
[40]
In the
meantime, the status quo should be maintained. The uncontradicted affidavit
evidence of Roberta Okemow-Clark is that all applicants were
eligible to vote in the 2000 election and that three of the applicants were
elected as Band Councillors. Unless and until the applicants are removed from
the Membership List in due compliance with the Membership Code and the Indian
Act, they shall therefore immediately be reinstated as Band Members of
Lucky Man Cree Nation, with full rights and privileges of Band Membership, for
themselves and for their descendants. In particular, they shall be eligible to
vote and to seek nominations and office as candidates in any upcoming election
to be called and held.
[41]
Needless
to say, the respondents shall not pursue, compromise or settle the issue of
Treaty Land Entitlement with the Government of Canada as if the applicants were
not Band members, at least until a decision is properly made to exclude them
from the Lucky Man Cree Nation. Since an election is likely to be held soon,
there is no need to cancel the results of the September 2004 election or the
nominations made thereafter.
[42]
The
applicants have sought their costs on a solicitor/client basis, but I do not
think this is an appropriate case for such costs on the basis of the evidence
that is before me. The former Chief may have been mistaken in his actions, as
he himself concedes, but bad faith or ill motives have not been established.
Indeed, he had no personal interest in the outcome of this dispute as he did
not seek re-election in the 2004 election. As for the new Chief and Council,
they have not delayed the procedures in this Court and there is no evidence to
support a finding that the Band, per se, was involved in the decision to
abrogate the applicants’ voting rights. The applicants shall therefore have their
costs, to be awarded on the scale set by Column III of Tariff B.
ORDER
THIS COURT ORDERS that this application for judicial
review is therefore partially granted. The decision to exclude the applicants
from the Band list is quashed, with the attendant consequences outlined in
these reasons, and the matter of the applicants’ membership in the Lucky Man
Cree Nation is remitted to the Chief and Council to be dealt with in accordance
with the Membership Code of the Lucky Man Cree Band and the Indian Act.
Costs are awarded to the applicants.
“Yves de Montigny”
Email this Content