Docket:
T-328-14
Citation: 2014 FC 153
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BETWEEN:
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DARLENE LONGNECK
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Applicant
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and
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LORETTA J. PETE LAMBERT and
MUSKEG LAKE
CREE NATION
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Respondents
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REASONS FOR ORDER
ANNIS J.
[1]
The applicant, a member of the Muskeg Lake Cree
Nation [MLCN or Band] seeks an interlocutory injunction on an emergency basis
prohibiting the holding of a by-election scheduled for Monday, February 17,
2014, with an advance poll also scheduled on Saturday, February 15, 2014.
[2]
She requests that the injunction remain in place
until completion of her judicial review application filed January 31, 2014, in
which she seeks a declaration that an election involving mail-in ballots
provided only upon request by members with a time limit is invalid and without
jurisdiction.
[3]
The injunction is brought against Ms Loretta J Pete
Lambert, the Chief Electoral Officer [CEO] and the Band to prevent them from
proceeding with the by-election. Ms Lambert is not a Band member. She has been
retained to conduct and preside over the by-election by the Band Council.
[4]
In 2000, the MLCN ceased to conduct its
elections under the Indian Act, RSC, 1985, c I-5. Since then elections
have been conducted under the Band’s Election Act (“An Act Respecting
the Government Elections and Related Regulations of Muskeg Lake Cree Nation”).
[5]
The Election Act contains only one
provision pertaining to off-reserve elections. It is found at paragraph
7(e)(viii), which reads as follows:
e. The Chief
Electoral Office shall:
viii. Preside
over all electoral activities with respect to advance polls, distance
balloting, and all activities on the day of the election;
[6]
In addition, the Election Act requires
that a by-election be held within 60 days following the event which resulted in
the vacancy.
[7]
The Band changed its voting procedure in respect
to off-reserve members for the 2012 general election. It required non-resident
members living within 100 km of Edmonton, Prince Albert and Saskatoon to travel
to local polling stations in those centers in order to vote. In addition, because
of concerns over fraud, off-reserve members were required to have their voting
declaration commissioned, adding further to the expense of voting, although
these costs were reimbursed by the Band.
[8]
The applicant unsuccessfully appealed the 2012
election pursuant to the appeal procedure contained in the Elections Act
and thereafter initiated a judicial review application (T-730-13) which remains
outstanding.
[9]
During 2013 the Band Council, by its Election
Act Committee, undertook a review of its election practices, which included
a review of the off-reserve voting practices. This review resulted in a draft Election
Act which was not implemented. It contained a proposed revision as follows:
“An Elector must submit a request in writing to the Chief Electoral Officer to
receive a mail-in ballot on or before the date of the nomination meeting.”
[10]
While there is some dispute about what occurred
at various meetings, it is undisputed that on January 15, 2014 the CEO sent out
letters to all off-reserve members of the Band whose addresses were known (a
similar letter having been sent out in December 2013). The letter advised them
of the need to request a mail-in voting package by close of nomination day on
February 2, 2014 by way of a telephone call made to two numbers, one of them
which was toll-free.
[11]
Upon being so advised, the member would be
provided with a priority post ballot and a pre-paid priority post return
envelope with the requirement that the ballot be returned before the close of
the election on Monday, February 17, 2014.
[12]
This procedure thereby eliminated concerns about
voters being dissuaded from participating in the election by the fact that they
would have to drive to the polling station if living within 100 km of the three
named cities, or would require a commissioned declaration to accompany their
ballot. The only requirement for the by-election would be that the member
provide a declaration of their identification witnessed by an adult.
[13]
This procedure was adopted to save on the
significant mail-out costs of ballots to off-reserve members by priority post
containing prepaid envelopes, many of which were not used. It also implemented
an inexpensive system intended to diminish possible fraud by means of
off-reserve votes.
[14]
The applicant complained that problems were
encountered with this procedure by the fact that the voicemail boxes of the
telephone numbers were full and members therefore could not leave a message
requesting a voting package. The CEO, however, indicated that she had not
received any complaint of a member not being able to obtain a voting package in
order to participate in the by-election.
[15]
With this background in mind, I now turn to the
analysis of the standard tripartite test that an applicant is required to meet
to obtain an interlocutory injunction as established by the Supreme Court of
Canada in Manitoba (Attorney General) v Metropolitan Stores (MTS) Ltd., [1987]
1 SCR 110, [1987] SCJ No 6.
1. Is
there a serious issue to be tried?
[16]
I am in agreement with the applicant that the Election
Act does not cover the matter of off-reserve voting. The reference to the
CEO presiding over the election contained in the Act does not authorize
changes to the manner in which off-reserve members are entitled to vote.
[17]
Voting by non-resident members has been
acknowledged as an important issue in band elections that may influence their
outcome (Francis v Mohawk Council of Kanesatake, 2003 FCT 115 (CanLII),
[2003] 4 FC 1133). Implementation of changes to non-reserve members therefore
is subject to court scrutiny where they may impact on the fairness of an
election.
[18]
Nevertheless, I am not concerned that the
changes to the voting process implemented for non-reserve members in this
by-election will entail an adverse impact on the fair by-election of a new Band
councillor. All non-reserve members have received a notice describing in clear
terms the requirement to phone in a request to obtain a ballot. There were no
obstacles disclosed to obtaining a ballot or to casting a vote. Indeed, the
process was simplified with my only concern perhaps being the limited time
frame in which to react to the request for a ballot.
[19]
I do, however, share the applicant’s concern
about the failure to complete the amendment to the Election Act. Nevertheless,
I am not convinced that a Band custom exists with respect to non-reserve
voting, or at least I do not have sufficient evidence to form that conclusion.
[20]
In the circumstances, therefore, I am satisfied
that the applicant has not made out a serious issue to be considered that the
off-reserve procedure would result in an unfair by-election.
2.
Will the applicant suffer irreparable harm?
[21]
I also conclude that the applicant would not
sustain irreparable harm either for herself personally or as someone who
represents the interests of off-reserve members. For example, there is no
evidence that any Band member will lose the right to vote or to stand for
election.
[22]
The applicant alleges that she would suffer
emotional trauma and that the integrity of the democratically elected
bandleaders would be undermined by ignoring Band custom. I am not satisfied
that either would occur, nor would this constitute irreparable harm in the
circumstances of this by-election.
3. Does
the balance of convenience favour the applicant?
[23]
I conclude that the balance of convenience
favours the respondents. The vacancy on the Band Council would remain unfilled
until the matter was resolved by the judicial review application. This would
leave the Council in a potential stalemate position if the six members divided
evenly on important matters. In addition, the Election Act requires a
by-election to be held within 60 days of the vacancy occurring. Failure to
proceed with the by-election would therefore place the Band in violation of its
own Act.
[24]
In addition, there exists an appeal process
under the Election Act which allows the applicant to challenge the
election by a process internal to the Band. This avoids the need to involve
courts interfering in the affairs of the Band where it is unnecessary to do so.
In this regard I cite the remarks of Justice Barnes in Basil v Lower Nicola
Indian Band, 2009 FC 1039 at para 5, [2009] FCJ No 1280, as follows:
[…] In Sweetgrass
First Nation v. Gollan, 2006 FC 778, I made the point that the Court should
be cautious about treading unduly into the political affairs of a First Nations
band. These applicants have not exhausted their internal rights to challenge
this decision through the Council of Elders. While there may be some
inconvenience associated with the process of appeal that takes place after the
election, it is, nevertheless, a process that should not be usurped
collaterally by seeking an interim injunction through the Court. If an appeal
is successful the by-election can be re-held.
[25]
Finally, I note that significant costs would be
thrown away by not holding the election in circumstances where I do not see any
serious impediment to a fair election occurring by the process used for off-reserve
voting by Band members.
[26]
Accordingly, for all the foregoing reasons the
application is dismissed.
[27]
Ms Lambert did not seek costs. While the Band
had originally requested costs, its council left the matter in the hands of the
Court. The applicant was entitled to raise the issue of concerns about the
off-reserve voting procedure, which, as mentioned, can represent a serious
threat to fair
elections if
abused by First Nation Band councils. Therefore, no award of costs is made
against the applicant in order to ensure that vigilance is encouraged and not
deterred.
"Peter Annis"
Ottawa, Ontario
February 17, 2014
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