Date:
20130221
Docket:
T-176-12
Citation:
2013 FC 180
Ottawa, Ontario,
February 21, 2013
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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ROSEAU RIVER ANISHINABE FIRST
NATION CUSTOM COUNCIL as represented by member LYNDA ROBERTS
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Applicant
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and
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TERRANCE NELSON, MICHAEL
LITTLEJOHN, EVELYN PATRICK, and KEITH HENRY (being the former Chief and
former Councillors of the ROSEAU RIVER ANISHINABE FIRST NATION);
KENNETH HENRY JR., GARY
ROBERTS, CECIL JAMES, DAWN ROBERTS and LAWRENCE HENRY, in their personal
capacity, and in their capacity as current elected Chief and Council of the
ROSEAU RIVER ANISHINABE FIRST NATION
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This is an application under subsection 18.1 of the Federal Courts
Act RSC 1985 c F-7 for judicial review. The Applicant seeks:
a)
A declaration that the Respondent, Terrance Nelson, ceased to be Chief
of the Roseau River Anishinabe First Nation (RRAFN) as of 20 September 2011;
b)
A declaration that Respondents Michael Littlejohn, Evelyn Patrick and
Keith Henry ceased to be Band Councillors of RRAFN as of 20 October 2011;
c)
An order in the nature of quo warranto that Respondents Terrance
Nelson, Michael Littlejohn, Evelyn Patrick and Keith Henry do not hold the
positions of Chief and Council, respectively;
d)
A declaration that Respondents Kenneth Henry Jr., Gary Roberts, Cecil
James, Dawn Roberts and Lawrence Henry do hold the positions of Chief and
Council, respectively; and
e)
The costs of this application.
BACKGROUND
[2]
This application concerns the removal of Terrance Nelson from the
position of Chief of RRAFN and the removal of Michael Littlejohn, Evelyn
Patrick and Keith Henry from the position of Councillors of RRAFN (Nelson
Respondents). The other Respondents (Henry Respondents) are the current Chief
and Council, by way of RRAFN by-elections held in 2011. Respondent Gary Roberts
was never removed from office and his position is not in dispute.
[3]
The RRAFN Constitution sets out the “Custom Council” as
the ultimate governing authority of the Band. The Custom Council is comprised
of a family representative from each of the major family units of the RRAFN.
The representative group that runs the day-to-day affairs of the Band are the
“Chief and Council,” which is compromised of an elected Chief and four elected
Councillors. This process is governed by the RRAFN Election Act. Section 15 of
the Election Act confirms that the Custom Council is the “prime authority and
representative of the total tribal membership.” Section 14 of the Election Act
provides that the Custom Council may remove any members of the Chief and
Council for failing to properly perform their duties, amongst other things.
[4]
As early as 2007, allegations of financial mismanagement and possible
wrongdoing on the part of Terrance Nelson were raised by the Custom Council. In
2007, as a result of the alleged financial mismanagement, Indian and Northern
Affairs Canada (INAC) appointed a Third Party Manager to administer the Band’s
funds. A forensic audit was ordered in 2007, and from that point on Terrance
Nelson refused to provide the auditor with records, cooperate with the process,
or attend Custom Council meetings. This eventually resulted in a decision by
Custom Council to remove him from his position as Chief.
[5]
On 20 September 2011, Custom Council removed Terrance Nelson from the
office of Chief. A by-election was held on 12 October 2011 and Kenneth Henry
Jr. was elected as Chief. In protest, the other Nelson Respondents refused to
attend to their duties as Councillors. On 20 October 2011, the other Nelson
Respondents were removed from their offices by the Custom Council. A
by-election for these positions was held on 7 November 2011, and Cecil James,
Dawn Roberts and Lawrence Henry were elected to the three vacant Band Council
positions. The validity of the removal of the Nelson Respondents and the
by-elections is not in dispute.
[6]
Despite their removal, the Nelson Respondents continued to hold
themselves out as Chief and Council. Gary Roberts states in his affidavit,
included as part of this application, that Evelyn Patrick suggested, in his
presence, that in order to undo the Custom Council’s removal of Terrance Nelson
as Chief, they could create a new and different Custom Council. He says that
the possibility of challenging the decision of Custom Council in Federal Court
was discussed, but that option was not pursued.
[7]
The governance structure of RRAFN is such that each family unit appoints
a family representative to the Custom Council. On 31 October 2011, documents
were authored that made it appear as though the family units of RRAFN had met
and appointed new family representatives to the Custom Council to replace the
actual Custom Council. On 1 November 2011, 16 individuals signed a document
which they called a “Custom Council Resolution” (CCR) purporting to rescind the
decisions of the real Custom Council and reappointing the Nelson Respondents as
Chief and Band Councillors.
[8]
Lynda Roberts, the representative for the Custom Council, states that
she is the family representative for the Roberts family and she was not aware
or notified of the alleged CCR. There is also affidavit evidence submitted that
many of the 16 signatories to the CCR are direct family members of the Nelson
Respondents, and that people who are stated as being the representatives of
certain families are not the actual representatives of those families.
[9]
The 1 November 2011 CCR was sent to Aboriginal Affairs and Northern
Development Canada (AANDC) (formerly Indian Affairs) purporting that the Nelson
Respondents were back in power. With two different groups of people claiming to
be the Chief and Council, AANDC refused to recognize either group until the
matter was resolved.
[10]
Meanwhile, upon becoming aware of the confusion, the Band’s financial
institutions froze all of the Band’s accounts. Other institutions the Band
dealt with expressed confusion as to who to deal with, and some employees took
the position that they did not know who to take instruction from.
[11]
Although the Nelson Respondents held themselves out as Chief and
Council, they never participated in or tried to hold any Band Council meetings
to deal with any Band business. The only group of people that attempted to
govern was the Henry Respondents. Gary Roberts attests to this in his affidavit,
having been a Councillor both before and after the Nelson Respondents were
removed from office.
[12]
This confusion made it difficult for RRAFN to function until the Federal
Court issued an injunction on 2 February 2012 ordering the Nelson Respondents
to cease holding themselves out as Chief and Councillors.
ISSUES
[13]
The Applicant submits that the issue in this application is whether it
is just and equitable for the Court to grant:
a)
A declaration that the Respondent, Terrance Nelson, ceased to be Chief
of RRAFN as of 20 September 2011;
b)
A declaration that the Respondents Michael Littlejohn, Evelyn Patrick,
and Keith Henry, ceased to be Band Councillors of RRASN as of 20 October 2011;
c)
An order in the nature of quo warranto preventing the Respondents
Terrance Nelson, Michael Littlejohn, Evelyn Patrick and Keith Henry from
holding themselves out as members of Chief and Council; and
d)
A declaration that the Henry Respondents do hold the positions of Chief
and Council respectively.
ARGUMENTS
The
Applicant
Quo
Warranto
[14]
The test for quo warranto is set out in Akwesasne Reserve
(Residents of) v Canada (Minister of Indian and Northern Affairs), [1991] 2
FC 355 [Akwesasne Reserve]as follows at paragraph 46:
According to de
Smith’s Judicial Review of Administrative Action (4th ed. by J.M. Evans, 1980),
the old substantive law rules for quo warranto, with only slight
modifications, still apply, as listed below (pp. 463-464):
1. The office must
be one of a public nature
2. The holder must
have already exercised the office; a mere claim to exercise it is not enough.
3. The office must
have been created by the Crown, by a Royal Charter, or by an Act of Parliament.
4. The office must
not be that of a deputy or servant who can be dismissed at will.
5. A plaintiff will
be barred from a remedy if the plaintiff has been guilty of acquiescence in the
usurpation of office or undue delay.
6. The plaintiff
must have a genuine interest in the proceedings. Nowadays probably any member
of the public will have sufficient interest, provided that he has no private
interest to serve.
[15]
The Applicant submits that it satisfies the test for quo warranto
to have the Nelson Respondents removed from their respective positions in
accordance with the decisions of 20 September 2011 and 20 October 2011.
1. Office of a Public Nature
[16]
The governing documents of RRAFN are its Election Act and Constitution.
“Chief” and “Councillor” are defined in the Election Act as elected
representatives of RRAFN. In addition, Article X of the Constitution makes
clear that Chief and Council are to be considered public officers.
2. Exercise of Office
[17]
The Nelson Respondents were either elected or re-elected in March, 2011.
3. Office Created by an Act of
Parliament
[18]
An Order-in-Council dated 12 April 1991 suspended the application of the
Indian Act and allowed the Constitution and the Election Act to
take effect.
4. The Office is not that of a
Deputy or Servant
[19]
Chief and Council are elected officials and cannot be dismissed at the
will of someone else (Akwesasne Reserve, above). The Applicant
submits the removal provisions in the Election Act and the impeachment
provisions in the Constitution exclude Chief and Council as deputies or
servants for the purposes of a writ of quo warranto.
5. Acquiescence
[20]
Since the removal of the Nelson Respondents, Custom Council has been
actively working to ensure that its decision is respected. These actions have
included holding new elections and working to have the positions of the Henry
Respondents recognized by AANDC. Above all else, the Custom Council has
instituted these proceedings and cannot be said to have “acquiesced” in any way
to the Nelson Respondents’ refusal to respect the Custom Council’s decisions of
removal.
6. Genuine Interest
[21]
Custom Council, as the supreme legislative authority of RRAFN, as well
as any of the members of RRAFN, has a genuine interest in these proceedings.
Custom Council has exhausted any internal avenues of relief it may have.
[22]
Mr. Littlejohn states in his affidavit that he has not acted as
Councillor since the order of Justice Marie-Josée Bédard. However, he did not
return boxes of records belonging to RRAFN until he attended his
cross-examination, and he continues to be identified on the social media site
“Linkedin” as Councillor for RRAFN.
[23]
Ms. Patrick indicated on her cross-examination that she has acted only
in her personal capacity since January, 2012. However, in her affidavit of 2
April 2012 she says at paragraph 25 that “…despite this, to this day, my fellow
Councillors and I continue to serve the membership from our own homes.” When
cross-examined on this point, Ms. Patrick said that she “guess [the affidavit]
would be inaccurate then.”
[24]
The Applicant submits that a clear direction from the Court confirming
the decision of Custom Council and reaffirming that the Nelson Respondents no
longer hold office is necessary to prevent them from further carrying out any
role as Chief or Councillors, or holding themselves out as such.
Declaratory
Relief
[25]
As Justice Michael Phelan found as follows in Roseau River Anishinabe
First Nation Custom Council v Roseau River Anishinabe First Nation, 2009 FC
655 at paragraph 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.
[26]
The Applicant says that it appears as though the Nelson Respondents
challenge the Custom Council’s decision on two points: (1) that Custom Council
does not have the power to remove them as the Constitution is not binding on
RRAFN; and (2) that there was a Custom Council meeting held on 1 November 2011
which purportedly reinstated the Nelson Respondents.
[27]
With respect to the first argument, on cross-examination, Mr. Littlejohn
confirmed that the Constitution does govern RRAFN. Ms. Patrick took the view
that the Constitution, which was once binding, was no longer binding. On
cross-examination, the following exchange occurred:
Q. Ms.
Patrick, you are prepared to accept that the constitution was acceptable in
1991. It has become unacceptable to you in part today, correct?
A. Because
some of it – correct, because some of the things were not done, are not done.
Q. You just simply do not agree with parts of the
constitution anymore?
A. Exactly.
[28]
The Applicant submits that the evidence makes clear that the Nelson
Respondents had no intention of responding or otherwise adhering to the
direction of Custom Council despite the fact that the Constitution makes clear
that Custom Council is the supreme authority.
[29]
In an attempt to nullify the decision of Custom Council, and in complete
disregard for the Constitution, the Nelson Respondents purportedly passed a
Band Council resolution dated 11 October 2011. There was no basis under
the Election Act or the Constitution upon which such a resolution could
be passed. Mr. Littlejohn’s evidence on cross-examination was as follows:
Q. Is it your view that Chief and Council directs
Custom Council?
A. Yes.
Q. What do you rely on to confirm that for me?
A. It
is based on that main, on that mandate that I mentioned earlier. There was a
document. I don’t have the original of it.
Q. And it is not –
A. It was signed by the council, the Chief and
Council at that time.
Q. You
would agree with me that that concept that you are describing right now is not
in the Election Act, correct?
A. Yes.
Q. And you would also agree
that right concept is not found in the constitution, correct? I’m just asking
you to confirm that that concept is not found in the constitution either?
A. Yes.
Q. That’s a correct
statement?
A. Yes.
[30]
Moreover, this resolution was passed without due process. Mr. Littlejohn
provided the following information on cross-examination:
Q. Why was Gary
Roberts not in attendance at the resolution?
A. He wasn’t
notified.
Q. Sure. All members
were in fact not advised of this [meeting]?
A. Yes.
Q. That’s a correct
statement?
A. Yes.
Q. Did a meeting even
occur?
A. Yes.
Q. Where did it
occur?
A. I can’t recall.
Q. Where are the
minutes of that meeting?
A. There were no
minutes.
Q. No notice, no
minutes?
A. No.
[31]
The Nelson Respondents argue that the meeting of 1 November 2011
reinstated them to their positions. The Applicant submits that the evidence
demonstrates that no actual meeting of Custom Council occurred.
[32]
Attached as Exhibit “L” to the Lynda Roberts Affidavit is the purported
resolution dated 1 November 2011. There is no chair, vice-chair, or secretary
noted. Nor is there any indication as to who moved for the resolution and who
seconded the motion. This purported resolution did not occur at a meeting of
Custom Council and was signed by individuals who are not the family
representatives at Custom Council.
[33]
With respect to the 1 November 2011 resolution, Ms. Patrick’s evidence
on cross-examination was as follows:
Q. …What do you rely on to
base your conclusion that it was a properly constituted meeting?
A. The members, I don’t even
know, they were – to me they were appointed by their families.
Q. How are you aware
of that?
A. Well, it is a
small reserve.
Q. You went to each family
and asked them to see how and when they appointed the family members?
A. No.
Q. Were you in
attendance at this meeting?
A. No.
[34]
Mr. Littlejohn’s evidence was as follows:
Q. I have not seen any
minutes with respect to that meeting, and I take it you haven’t either?
A. No.
Q. I haven’t seen a
notice for that meeting, and I take it you haven’t either?
A. No.
Q. And so I ask you,
what is the basis for you telling me that there was a notice?
A. Well that’s why I
want these back, like I didn’t see the notice.
[…]
Q. Mr. Littlejohn, you would
agree with me that there was no meeting on November 1, 2011, was there?
A. I’m not sure.
Q. You have no
personal knowledge of a meeting taking place, do you?
A. No.
[35]
Considering the circumstances discussed above, the Applicant submits
that the purported resolution rescinding the removal of the Nelson Respondents
cannot be considered a valid resolution. It was passed by a cohort of
individuals passing themselves off as Custom Council so as to subvert the
legitimate governance processes within RRAFN.
[36]
The Applicant submits that the Nelson Respondents have completely
disregarded the laws of RRAFN without right. In particular, Ms. Patrick, on
cross-examination, reveals herself as a Councillor who is not prepared to
follow the law as it has been adopted by the people of RRAFN. It is imperative
that the decisions of RRAFN’s executive and legislative branch be respected or
else there will be no “checks and balances” and corruption will be inevitable.
The Applicant requests that this application be granted so as to give effect to
the decisions of Custom Council to remove the Nelson Respondents.
The Henry Respondents
[37]
The Henry Respondents reiterate that the governance structure of the
Band does not give the Chief and Council the authority to dissolve the Band’s
prime institution of governance – the Custom Council. Even if this were
possible, paragraph 2(3)(b) of the Indian Act was not complied
with as Councillor Gary Roberts received no notice of the purported meeting of
1 November 2011, and was not allowed to participate in any meeting that
did take plus. Thus, the resolution from that meeting was not validly made.
Furthermore, given that the alleged reinstatement of 1 November 2011 was a CCR,
the document of 11 October 2011 could not have dissolved the Custom Council.
[38]
The Constitution lists a number of requirements for the calling of
Custom Council meetings, which the evidence indicates were not met in this
case. In regards to the 1 November 2011 resolution, Warren Greg
Martin (whose name appears as a signatory to the document) has the following to
say in his affidavit:
•
He received no notice of any meeting; a person just showed up at
his door to get him to sign a document;
•
There was no meeting of Custom Council on 1 November 2011;
•
He was not a member of Custom Council as the document purports
him to be;
•
While his name appears on the resolution form, all that happened
was that a supporter of the former Chief and former Councillors came to his
house and, under false pretenses, got him to sign a document that already had
the signatures affixed to it of some of the other persons who also were
pretending to be Custom Council members.
[39]
Further, seven of the sixteen people pretending to be members of the
Custom Council are direct relatives of the Nelson Respondents. Also, not one
person who signed the document was willing to swear under oath that they are
truly members of the Custom Council or that a meeting took place on 1 November
2011.
[40]
Ms. Patrick denied orchestrating these events and said in her
cross-examination that an unnamed person dropped the resolution off at her door
and left without explanation. Mr. Littlejohn admitted that he had no knowledge
of whether a meeting took place or not. The other former Councillors have not
filed any material to defend their positions, but have not abandoned their
opposition to this application.
[41]
The Henry Respondents submit that the conclusion that must be drawn is
that the resolution dated 1 November 2011 is not a decision of the real Custom
Council of the Band. That being the case, the decision of the real Custom
Council removing the Nelson Respondents and calling for by-elections, whereby
the Henry Respondents were elected, must still be in force. The Henry
Respondents agree with the relief sought by the Applicant.
Costs
[42]
The Henry Respondents submit that the actions of the Nelson Respondents
warrant the granting of a significant award of costs to themselves, as well as
the Applicant.
[43]
It was the refusal of the Nelson Respondents to abide by their own laws
and cooperate in the audit for the good of the Band that led to their removal
in the first place. Their disregard for the law continued after their removal
from office. They:
•
Ignored the earlier decision of Justice Phelan confirming that
the Custom Council has the authority to remove the Chief and Council;
•
First purported to dissolve Custom Council to remain in power,
and when that did not work created a fake Custom Council resolution.
[44]
In Justice Phelan’s decision, he admonished the Chief and Council at
that time (which included Terrance Nelson) for trying to do an “end run” around
the Federal Court’s supervisory jurisdiction. The Henry Respondents submit that
the same thing is happening in this case, in total disrespect of the law and
the Band’s rules of governance.
[45]
In his cross-examination, Mr. Littlejohn insisted that it is the Chief
and Council who directs the Custom Council, and not the other way around, as he
himself admitted the governance rules provide. He claimed that he got this
authority from some undisclosed document purportedly signed by the Chief and
Council, which he admitted was not to be found in the Band’s governance code.
[46]
In her cross-examination, Ms. Patrick admitted that even though the
Band’s Election Act was properly brought into force and she considered
the Band’s Constitution valid and binding on her, she disagrees with the
section of the Election Act which deems the Custom Council to be the
Band’s prime authority, and she simply chooses not to follow parts of the
Constitution that she does not agree with.
[47]
The 1 November 2011 resolution that the Nelson Respondents fabricated to
try and stay in power threw the Band into crisis, as was its intended effect.
The Band could not maintain its operations, as AANDC and other innocent third
parties such as banks, contractors and others did not know who was in charge.
That crisis led to the necessity of both this application and the earlier
injunction application.
[48]
The rule of law is a fundamental constitutional value that must be
protected. In Cameron v Canada (Minister of Indian Affairs and Northern
Development), 2012 FC 579, Justice Richard Mosley said at paragraphs 37-38:
This application
invokes a concept at the very heart of our system of governance: the rule of
law. It is well settled that Band councils must also respect this principle: Laboucan
v Little Red River Cree Nation No 447, 2010 FC 722 at para 36; and Long Lake Cree Nation v Canada (Minister of Indian and Northern Affairs), [1995] FCJ No 1020 at
para 31.
The importance of
the rule of law was recently highlighted by Justice Douglas Campbell in Friends
of the Canadian Wheat Board v Canada (Attorney General), 2011 FC 1432 at
paragraph 3:
[3]
A most recent reminder of the rule of law as a fundamental constitutional
imperative is expressed by Chief Justice Fraser in Reece v Edmonton (City),
2011 ABCA 238 at paragraphs 159 and 160:
The
starting point is this. The greatest achievement through the centuries in the
evolution of democratic governance has been constitutionalism and the rule of
law. The rule of law is not the rule by laws where citizens are bound to comply
with the laws but government is not. Or where one level of government chooses
not to enforce laws binding another. Under the rule of law, citizens have the
right to come to the courts to enforce the law as against the executive branch.
And courts have the right to review actions by the executive branch to
determine whether they are in compliance with the law and, where warranted, to
declare government action unlawful. This right in the hands of the people is
not a threat to democratic governance but its very assertion. Accordingly, the
executive branch of government is not its own exclusive arbiter on whether it
or its delegatee is acting within the limits of the law. The detrimental
consequences of the executive branch of government defining for itself - and by
itself - the scope of its lawful power have been revealed, often bloodily, in
the tumult of history.
When
government does not comply with the law, this is not merely non-compliance with
a particular law, it is an affront to the rule of law itself [...].
[49]
The Henry Respondents submit that the Nelson Respondents ignored
previous court decisions, ignored the rule of law, ignored their own governance
laws, and cared little what anarchy their conduct caused, so long as they
remained in power. This is conduct that is deserving of severe rebuke.
[50]
The Henry Respondents state that the actions of the Nelson Respondents
should be considered reprehensible, scandalous and outrageous, as those terms
have been used by the Court. In Louis Vuitton Malletier S.A. v Lin, 2007
FC 1179, it was said at paragraph 56:
Justice Harrington
defined “reprehensible”, “scandalous” and “outrageous” conduct in Microsoft
Corp. v. 9038-3746 Quebec Inc., [2007] F.C.J. No. 896, 2007 FC 659 at para.
16 [Microsoft Corp 2] as follows:
“Reprehensible” behaviour is that
deserving of censure or rebuke; blameworthy. “Scandalous” comes from scandal
which may describe a person, thing, event or circumstance causing general
public outrage or indignation. Among other things, “outrageous” behaviour is
deeply shocking, unacceptable, immoral and offensive (see: Oxford Canadian
Dictionary).
[51]
Considering the factors set out in Rule 400, as well as the conduct of
the Nelson Respondents, an award of costs against them is appropriate and just.
ANALYSIS
The
Nelson Respondents
[52]
The former Chief and former Councillors of the RRAFN, Terrance Nelson,
Michael Littlejohn, Evelyn Patrick, and Keith Henry, have filed no materials in
response to this application. Michael Littlejohn and Evelyn Patrick produced
affidavits and were cross-examined. There is no evidence from Terrance Nelson
or Keith Henry. None of the Nelson Respondents produced written submissions.
[53]
At the oral hearing before this Court in Winnipeg on 15 January 2013,
Terrance Nelson and Evelyn Patrick appeared and represented themselves. No one
appeared on behalf of Michael Littlejohn or Keith Henry.
Findings
[54]
The Court agrees with the Applicant and the Henry Respondents that the
evidence establishes the following:
a.
The Custom Council governance process has been legitimately approved by
membership and established the Custom Council as the prime authoritative body
within RRAFN’s governance structure with the full power to remove the Chief and
Council of the Band;
b.
In consequence of these powers, on 20 September 2011, the Custom Council
legitimately removed former Chief Terrance Nelson from office;
c.
In consequence of the same powers, on 20 October 2011, the Custom
Council legitimately removed former Councillors Michael Littlejohn, Evelyn
Patrick and Keith Henry from office;
d.
Valid by-elections were then held and Kenneth Henry Jr. was elected as
Chief and Cecil James, Dawn Roberts and Lawrence Henry were elected to serve
alongside Gary Roberts as Councillors;
e.
Notwithstanding their legitimate removal from office, Terrance Nelson,
Michael Littlejohn, Evelyn Patrick and Keith Henry embarked upon a series of
efforts to retain power by illegitimate means;
f.
In particular, the Nelson Respondents first attempted to retain power by
claiming, contrary to the governance structure of RRAFN and paragraph 2(3)(b)
of the Indian Act, that they could dissolve the Custom Council and, when
this did not work they attempted to concoct and/or rely upon a fake Custom
Council resolution which purported to reinstate the Nelson Respondents as Chief
and Council;
g.
In attempting to retain, or regain, power in contravention of RRAFN’s
rules of governance and the prevailing law, the Nelson Respondents demonstrated
an utter disregard for RRAFN’s constitution and the rule of law. None of the
evidence of the Nelson Respondents has convinced the Court that they believed
their acts in attempting to retain power and in concocting and/or relying upon
the fake 1 November 2011 Custom Council resolution were legitimate;
h.
The Nelson Respondents had no reasonable grounds to believe that the
fake 1 November 2011 Custom Council resolution was genuine and, in fact,
it is my view that they knew it was not genuine and, even if there were others
who acted with them, they were active and willing participants in the creation
of a bogus document and in claiming power based upon that bogus document and
falsely holding themselves out as Chief and Council;
i.
The end result is that Kenneth Henry Jr., Gary Roberts, Cecil James,
Dawn Roberts and Lawrence Henry, are the legitimate, currently elected Chief
and Council of RRAFN.
Relief
Sought
[55]
It is my conclusion that, under the RRAFN Constitution, the Custom
Council had full power to remove Nelson Respondents as Chief and Council under
section 14 of the Election Act. This was confirmed by Justice Phelan, in
Roseau River Anishinabe First Nation, above, at paragraph 57. The Nelson
Respondents have presented no tenable evidence or argument to challenge this
finding.
[56]
It is also my conclusion that the attempt by the Nelson Respondents to
nullify the Custom Council resolution removing them from office by purportedly
passing a Band Council resolution of 11 October 2011 had no force or effect
because there is no basis either under the RRAFN Constitution or the Election
Act that would allow them to do this.
[57]
I also find that the purported Custom Council meeting and
resolution of 1 November 2011 reinstating the Nelson Respondents were
totally bogus and of no force and effect.
Quo Warranto
[58]
The case of Akwesasne Reserve, above,
sets out the requirements for an order of quo warranto at paragraph 46
of that decision:
1. The office
must be one of a public nature;
2. The holder
must have already exercised the office; a mere claim to exercise it is not
enough;
3. The office
must have been created by the Crown, by a Royal Charter, or by an Act of
Parliament;
4. The office
must not be that of a deputy or servant who can be dismissed at will;
5. A plaintiff
will be barred from a remedy if the plaintiff has been guilty of acquiescence
in the usurpation of office or undue delay;
6. The plaintiff
must have a genuine interest in the proceedings. Nowadays probably any member
of the public will have sufficient interest, provided that he has no private
interest to serve.
[59]
The requirements set out above have all been met
in the present case:
1)
The
Chief and Council are elected by the constituents of RRAFN as their
representatives, and these offices are undoubtedly of a public nature;
2)
Terrance
Nelson, Michael Littlejohn, Evelyn Patrick and Keith Henry already exercised
their respective offices;
3)
As
of 1991, the RRAFN Constitution and Election Act took over the
application of the Indian Act; the offices can thus be considered
created by Parliament (see Akwesasne Reserve at paragraph 76);
4)
The
Chief and Council cannot be dismissed at will;
5)
Since
the removal of the Nelson Respondents by the Custom Council in late 2011, the
Applicant has been doing all that is within its powers to ensure that its
decisions are respected (the holding of by-elections whereby the Henry
Respondents were elected, initiating court proceedings) and there has been no
acquiescence or undue delay;
6)
As
stated in Akwesasne Reserve, any member of RRAFN could be considered to
have a genuine interest in these proceedings.
[60]
Furthermore, there is no alternative remedy set out in
the Election Act (see Orr v Peerless Trout First Nation, 2012 FC 590 at
paragraph 24) or clear route of appeal open to the Applicant (Shotclose v
Stoney First Nation, 2011 FC 750 at paragraph 105). As such, I believe the
declaratory relief requested by the Applicant is warranted in this case.
Costs
[61]
The Applicant and the Henry Respondents have asked for their costs on a
solicitor and client basis.
[62]
Rule 400 gives the Court full discretion over the amount and allocation
of costs and the determination of by whom they are to be paid and sets out the
factors that the Court may consider. Rule 400, however, does not confer an
unfettered discretion.
[63]
When it comes to solicitor and client costs, the jurisprudence of this
Court is that they should only be awarded when a party or parties has or have
displayed reprehensible, scandalous or outrageous conduct. Reprehensible
behavior is that deserving of censure or rebuke. Scandalous means causing
general public outrage or indignation. Outrageous refers to behavior that,
among other things, is deeply shocking, unacceptable, and immoral and
offensive. See Louis Vuitton, above, at paragraph 56. Reasons of public
interest may also justify the making of such an order. See Mackin v New Brunswick (Minister of Justice), 2002 SCC 13 at paragraph 86.
[64]
In the present case, the conduct of the Nelson Respondents that is alleged
to be reprehensible, scandalous or outrageous is as follows:
a.
It was the failure of the Nelson Respondents to abide by their own laws
that led to their removal in the first place. Former Chief Terrance Nelson
refused to turn over financial information to the forensic auditor and former
Councillor Littlejohn neglected to turn over numerous boxes of financial papers
belonging to RRAFN that were relevant to the audit;
b.
Knowing the decision of Justice Phelan in Roseau River, above,
that confirmed the authority of the Custom Council to remove the Chief and
Council, the Nelson Respondents ignored that decision and continued to act as
though the Custom Council had no such power;
c.
Having failed to dissolve the Custom Council so as to nullify its
decision to remove them, the Nelson Respondents concocted and/or relied upon a
fake Custom Council Resolution in order to retain or regain power;
d.
The Nelson Respondents have, for no good reason, simply flouted RRAFN’s
governance rules and the rule of law in order to serve their own personal ends;
e.
The actions of the Nelson Respondents threw the band into crisis with
AANDC and other innocent third parties, such as banks and contractors who did
not know who was in charge;
f.
It was this crisis that necessitated both this application and the
earlier injunction application.
[65]
When Mr. Terrance Nelson and Ms. Evelyn Patrick appeared before this
Court and made oral representations, they attempted to explain their behavior
as a legitimate exercise of the democratic process. They pointed out that they
had been elected by RRAFN, and they felt that the Custom Council did not have
the power to remove them. They felt that a referendum was needed on governance
issues, and that there was no evidence that the Custom Council was empowered to
do what it did in removing them from office.
[66]
The problem with this position is that it has been clearly established
by this Court that the Custom Council does have such powers and the Nelson
Respondents are aware, or reasonably ought to be aware, that this is the case.
Mr. Nelson has been before this Court before on previous occasions and in his
presentation before me he revealed that he knew what the legal situation was;
he just did not feel it should have any legitimacy. Mr. Nelson was an applicant
in Roseau River, above, which came before Justice Phelan. In that
case, at paragraph 4, Mr. Terrance Nelson agreed that the RRAFN constitution
had been clearly enacted:
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.
[67]
In cross-examination on her affidavit, Ms. Patrick said she agreed with
the Constitution, but had later come to disagree with certain parts of it.
[68]
It seems to me that the position of Mr. Nelson and Ms. Patrick on the
RRAFN Constitution is simply one of expediency. They either agree or disagree
with it in accordance with their own interests.
[69]
The position of the Nelson Respondents is that they simply did what they
did because they were an elected government. This is just another way of saying
that they refuse to recognize the full RRAFN Constitution when it suits their
own interests and they refuse to be bound by previous orders of this Court that
have endorsed the validity of that Constitution.
[70]
Mr. Nelson is also inconsistent with regard to his views on Custom
Council legitimacy. He was willing to rely upon the purported Custom Council
resolution of 1 November 2011, which told AANDC that the former band council
members were back in power, but he now says that the Custom Council did not
have the power to remove him.
[71]
The Nelson Respondents did not openly challenge the legitimacy of the
Custom Council resolutions that removed them or the results of the by-elections
that replaced them because they knew what the law was on these issues. Mr.
Nelson has been before this Court before on similar issues. In front of me, he
acknowledged what Justice Phelan has ruled on this issue. He is simply not
willing to accept what this Court has said. He and his cohorts simply decided
to do an end-run on their own Constitution in order to thwart legitimate
decisions and retain power. This conduct is inexcusable.
[72]
The evidence before me suggests that the Nelson Respondents knowingly
flouted the rule of law in order to retain and/or regain power and knowingly
created mischief that precipitated a crisis for RRAFN because of its
relationships with, and dependence upon, third parties. The Nelson Respondents
have offered no convincing explanation for this flouting of the rule of law and
resulting mischief for the RRAFN that would suggest they had any legitimate or
positive reason for their conduct. They acted for selfish motives, even though
two of them (Mr. Nelson and Ms. Patrick) have attempted to argue that the Custom
Council has no legitimacy and that they are the Band’s democratically elected
leaders. There is also a strong public interest to ensure that this kind of
conduct is discouraged. RRAFN has had to face governance disputes in the past,
and it is not well served by people who are prepared to disregard its rules of
governance for personal reasons. Such conduct is totally irresponsible and
places the viability and well-being of RRAFN in jeopardy. RRAFN should not have
to resort to expensive Court procedures in order to ensure that its own rules
of governance are enforced.
[73]
Justice Phelan warned in Roseau River at paragraph 60, that the
“Chief and Councillors cannot take advantage of their rogue behavior to
undermine the authority of Custom Council,” and yet the Nelson Respondents,
notwithstanding this clear warning from the Court, have attempted to do just
that.
[74]
The evidence before me also suggests that none of the Nelson Respondents
challenged their removal from office in any legitimate way, and simply decided to
disregard and subvert the RRAFN constitution.
[75]
The undisputed evidence of counselor Gary Roberts suggests a deliberate
plan to thwart the legitimate decisions of the custom Council:
16. In short, my then
co-Councillors, Michael Littlejohn, Evelyn Patrick, and Keith Henry (three of
the Respondents to this case) abandoned their offices and positions in protest
of the removal of Terrance Nelson.
17. On October 12, 2011, the
by-election of for the position of Chief was held, and the current chief,
Kenneth Henry. Jr. was elected. The next day he took office, and he began
governing the affairs of the First Nation as its Chief.
18. My co-Councillors, however,
continued to neglect their offices, and refused to participate in Band
governance.
19. When my co-Councillors
repeatedly ignored warnings from Custom Council to attend the affairs of
business of the Band, they too were removed by the Custom Council on October
20, 2011.
20. On or about September 27,
2011, a week after the former Chief was removed by Custom Council, my then
co-Councillors had an appointment in Winnipeg to meet with two of the Band’s
lawyers at the law offices of Booth Dennehy, in Winnipeg, for the purpose of
obtaining legal advice about the former Chief’s removal, and whether court
proceedings should be initiated to challenge the Custom Council’s decision, as
had unsuccessfully been done in 2007.
21. While none of the other three
Councillors made me aware of this meeting date or time, or invited me to come
along, I found out about that meeting and attended anyways.
22. At that September 27, 2011
meeting, one of the Councillors, Evelyn Patrick, suggested in my presence, that
one of the options that the Band Council could try, in order to undo the Custom
Council’s removal of Terrance Nelson as Chief, would be to create a new and
different Custom Council. (Or words to that effect).
23. I was personally shocked that
any member of Band Council would be involved in such a scheme aimed at
frustrating a decision of the real Custom Council. However, as events have
unfolded, it appears that this is precisely what seems to have been put into
play.
24. Although the possibility of
challenging the decision of Custom Council in Federal Court was discussed at
the meeting, this option was not pursued. The meeting ended shortly thereafter
when Keith Henry and Michael Littlejohn left the lawyer’s office. As the quorum
of Chief and Council was no longer present, the meeting ended and I left. No
decisions were made by the Band Council at that meeting. This was the last time
the former Councillors and I met as a group.
[76]
The evidence before the Court establishes reprehensible, scandalous and
outrageous conduct on the part of the Nelson Respondents. There is also a
strong public interest component for solicitor/client costs in this case. If
the constitution of RRAFN is simply disregarded and thwarted for reasons of
political expediency, these disputes will never cease. This cannot be in the
interests of RRAFN.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
Court declares that Respondent Terrance Nelson ceased to be Chief of the Roseau
River Anishinabe First Nation as of September 20, 2011;
2.
The
Court declares that Respondents Michael Littlejohn, Evelyn Patrick, and Keith
Henry ceased to be Band Councillors of the Roseau River Anishinabe First Nation
as of October 20, 2011;
3.
The
Court declares in the nature of quo warranto that the Respondents
Terrance Nelson, Michael Littlejohn, Evelyn Patrick, and Keith Henry do not
hold the positions of Chief and Council respectively;
4.
The
Court declares that the Respondents Kenneth Henry Jr., Gary Roberts, Cecil
James, Dawn Roberts, and Lawrence Henry do hold the positions of Chief and
Council respectively;
5.
Costs
against the Nelson Respondents are awarded on a solicitor and client basis, and
shall be paid by the Respondents Terrance Nelson, Michael Littlejohn, Evelyn
Patrick, and Keith Henry , on a joint and several basis to:
a.
The
Applicant; and
b.
Each
of the current members of the Chief and Council being Kenneth Henry Jr., Gary
Roberts, Cecil James, Dawn Roberts and Lawrence Henry.
“James Russell”
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