Docket:
T-770-13
Citation: 2014 FC 171
Ottawa, Ontario, February 21, 2014
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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DELAPHINE BIGHETTY
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Applicant
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and
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BARREN LANDS FIRST NATION, COUNCILLOR ROY BIGHETTY,
COUNCILLOR BILLY LINKLATER, COUNCILLOR ROBERT MERASTY and MICHAEL
SEWAP
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
I. NATURE
OF THE PROCEEDING
[1]
This judicial review concerns the removal of a
Chief from that position following receipt of a community petition. The story behind
the removal decision is convoluted at times, the applicable election regulation
confusing and the interplay between the principal actors unhelpful to the
community. The community appears to have been in crisis for a number of years.
[2]
The Election Appeal Committee [EAC] of the
Barren Lands First Nation [the Band] decided to remove the incumbent Chief
Delaphine Bighetty [Applicant] from her position pursuant to the Barren Lands
First Nation Election Regulations [Election Regulations].
[3]
Despite the Applicant’s refusal to recognize the
EAC’s authority to remove her from the position of Chief and her efforts to
occupy the Band Office, a new Chief was acclaimed following a nomination
process in which the Applicant was not nominated as a candidate for the position.
[4]
The relevant provisions of the Election
Regulations are set out below:
f. “Election
Appeal Committee” means those band members appointed by band members to monitor
and process Band Election Appeal, petitions, complaints or other issues
relative to the Election Process.”
ELECTION APPEAL
COMMITTEE
May be appointed from
elders and/or respected band members. It would be better if Chief and Council
do not reside on the committee. Committee should include up to Seven (7)
members including 2 elders from the senate of elders
DUTIES OF ELECTION
APPEAL COMMITTEE
I Will
discuss and decide all appeals by Band members, protests by council members
dismissed, resignations, all Band members petitions, and any other important
matters with respect to the conduct of Good Governance of the Barren Lands
First Nation Community.
II The
Election Appeal Committee shall appoint an Electoral Officer and a Deputy. The
Electoral Officer shall be responsible to oversee and co-ordinate elections,
by-elections, appeals, dismissals and regulations contained hereto and the said
Electoral Officer shall ensure that the minute books of the Election Appeal
Committees are maintained and up to date.
VACANCY
The officer of Chief
and Councillor becomes vacant when:
a.
a person who holds that office
i.
is convicted of an indictable offence
ii.
dies or resigns his/her office
iii. Is or becomes ineligible to hold office by virtue of these
regulations
b.
The election appeal committee of the Band
declare by decision that the person who holds office
i.
is unfit to continue office by reason of having
been convicted of an indictable offence and/or incarcerated for the offence;
ii.
Has been absent from scheduled meetings of the
council for three (3) consecutive meetings without just cause.
iii. Was guilty of corrupt practice in connection with an election,
bringing or accepting a bribe, dishonesty, or malfeasance
(wrongdoing/misconduct) during his/her term of office as determined by the
election appeal committee.
c.
The members of the Barren Lands First Nation
hereby declares a person who ceases to hold office by virtue of paragraph
(b)(i)(ii)(iii) to be eligible to be a candidate for the Chief or Councillor
for a period not exceeding three (3) years.
ELECTION APPEALS
Any Elector or group
of Electors may lodge an appeal individually or by petition as stipulated, of
an election if he/she/they have reasonable grounds that there were
discrepancies in the method of the election and he/she or they shall forward by
registered mail or hand deliver a petition signed by no less than ten (10)
Electors who voted in the election to the Electoral Officer indicating and
specifying the discrepancies, who shall forward same to the Appeal Committee.
Any complaints
regarding a Council member must be made in writing to Election Appeal Committee
or the Electoral Officer, depending on the nature of the complaint, each and
every complaint shall be acted upon and recorded with the results and action
taken to be forwarded in writing to the complainant.
The Election Appeal
Committee shall proceed to investigate the discrepancies and they shall act
accordingly.
In the event that a
Chief and Councillor does not comply to these regulations, does not function in
accordance to the Band Council Policy or the Band Constitution (Band Council
Policy/Band Constitution are to be provided to Council and adhered to by
Council as the official mandate of the people of Barren Lands First Nation), if
ineffective or inefficient and lacks interest as a Chief or Councillor he/she
may be removed from office by:
a.
A petition signed by (50% +1 person) Electors
who had voted in his/her election who shall forward the petition to the
Electoral Officer indicating their reason for requesting the removal of the
said Chief or Councillor from office.
b.
The Electoral Officer shall forward the petition
to the Election Appeal Committee, if in the opinion of the same Committee that
the reasons in the petition are valid they shall direct the Electoral Officer
to request for a resignation of the said Chief or Councillor. The Appeal
Committee will discuss and decide if the petition is valid. All decisions
rendered by the Appeal Committee will be final.
In the event that the
said Chief and Councillor is removed from office, the Electoral Officer shall
immediately proceed to call a by-election as provided in these regulations.
It
is apparent that the drafting of the Regulations leaves a lot to be desired.
[5]
The Applicant sought, in summary, to have the
EAC declared as illegally constituted; to have its removal decision held to be
illegal/unlawful and therefore quashed; to have the election of the new Chief
quashed and to have herself reinstated.
II. BACKGROUND
[6]
The Band is a First Nation and Band under the Indian
Act. At the relevant time the Band was under co-management. Its Band
Council consisted of a chief and three (3) councillors, each of whom was
elected for two (2) year terms. There were approximately 1,100 registered Band
members of whom 400 lived on the reserve – a fly-in community about 350
kilometres north-east of Thompson, Manitoba.
[7]
The Band enacted the present version of the
Election Regulations in May 2003. The Election Regulations appear to be some
attempt to codify the Band’s custom election process as the Regulations appear
to have been interpreted and applied by reference to past practices and
customs.
[8]
The Band had a practice of using petitions to
either force a resignation from Council or in fact to have the EAC remove a
chief or councillor. Between 2007 and 2009, one councillor resigned, one
councillor was removed and one chief was removed as a result of petitions.
[9]
The Applicant was elected Chief on April 12,
2012, having received 109 of the 216 votes cast.
[10]
The community’s crisis of confidence in the
Applicant appears to have stemmed from her attempt to control the assignment of
temporary jobs. In May 2012 she assigned herself the Logistics portfolio which
gave her responsibility for fundraising and the creation of temporary jobs. The
assignment of portfolios to Councillors was itself controversial as the
Respondents alleged that by custom the Local Government Portfolio went to the
Councillor with the most votes and the other portfolios were assigned by
consensus.
[11]
The evidence confirms that by March 2013 there
was a widespread concern that the Applicant was awarding jobs to supporters and
family members rather than awarding them on a competitive basis. The issue was
discussed at at least one staff meeting and at a regular Band meeting in that
month.
[12]
By May 2012 the Applicant announced her
intention to appoint a new EAC – one presumably more friendly towards her. The
Applicant was informed by two Councillors that such an appointment was contrary
to the Regulations. By custom the appointments are done at a Band meeting.
[13]
On March 27, 2013, members of the Band
circulated a Petition asking the EAC to remove the Applicant as Chief. The Petition
contained allegations that the Chief was awarding band employment without
competitive process and on the basis of favouritism as well as allegations of
misuse of funds and false statements concerning the Band’s financial position.
The Petition claimed that the Chief no longer had the confidence of the Band.
[14]
In accordance with the Election Regulations, the
Petition required the signature of 50% plus one person who had voted at the
last election. As 218 people voted in the 2012 election, the Petition required
109 signatures.
[15]
The Electoral Officer confirmed that the
required number of signatures was present and gave the Petition to the
Applicant. Although there were 116 signatures, the Electoral Officer declared
only 112 to be valid.
[16]
Following the presentation of the Petition to
the Applicant, the Chief and her supporters took a series of steps to frustrate
and challenge the Petition. The Applicant refused to accept the Petition; a physical
fight erupted at the Band’s office between the Applicant’s family, her
supporters and those who had signed the Petition.
[17]
The Applicant demanded proof of the
establishment of the existing EAC. In the same period a counter petition was
circulated expressing support for the Applicant and demanding an investigation
and proof of the various allegations.
[18]
On April 4, 2013, the Electoral Officer informed
the Applicant that an EAC meeting was to be convened to address the Petition. The
Applicant countered that she would use her own EAC. The alleged existence of
another EAC and the removal of the incumbent Electoral Officer was news to the incumbent
Electoral Officer.
[19]
The incumbent EAC held its meeting on April 4,
2013, determined that the Petition was valid and that there was a basis for
removing the Applicant as Chief. A decision to that effect was signed by the
five members of the EAC and attempts were made to serve the Applicant with the
decision which she refused to accept.
This
is the decision under review.
[20]
On that same day the Applicant posted a notice
that there would be a Band meeting to address the selection of Elders for the
Senate of Elders, the selection of another EAC and the selection of a new
electoral officer.
[21]
The Band meeting was held and attended by 35 Band
members. From then on the Applicant attempted to establish a parallel
structure, and continued to occupy the Band office. There also followed a
series of allegations and counter allegations about the use of pay cheques, the
access to computer records and general mayhem in the administration of Band
affairs as the Applicant refused to recognize the legitimacy of the EAC’s
decision.
[22]
Ultimately a Nomination Meeting was held (notice
having been given). The Applicant was away and unable to return for the meeting.
The result of the meeting was that Michael Sewap was acclaimed as Chief for the
remainder of the term ending in April 2014. The Applicant was not even nominated
for the position of Chief.
[23]
The Council acknowledged the election of the new
Chief and Aboriginal Affairs and Northern Development Canada was advised of the
band council resolution [BCR] confirming the new Chief.
[24]
Following the April 4 meeting where the EAC
decided to remove the Applicant based on the Petition, the EAC had a further
meeting on April 12. That meeting went on to discuss the Applicant’s attempt to
establish a new EAC.
[25]
The Applicant received a letter outlining the discussions
at the April 12 meeting. The letter concludes that the Applicant violated the
Election Regulations, and that she had become ineligible to hold office because
of violation of the Election Regulations. It went on to make allegations of
malfeasance, favouritism, paying people with prizes to attend public meetings,
improper use of the Band office and improper personal conduct.
[26]
The end result of this Band turmoil is that the
Applicant was removed as Chief by reason of a petition for her removal and that
a new Chief was appointed by acclamation.
[27]
Against this background, the Applicant seeks
judicial review to overturn the actions of the EAC.
III. ANALYSIS
[28]
While the parties have framed the issues slightly
differently, the issues are:
(a) Was the EAC’s interpretation of the Election Regulations
and decision within its powers?
(b) Was
there any breach of procedural fairness?
(c) What
remedy, if any, is appropriate?
A. Standard of Review
[29]
In Martselos v Salt River Nation #195,
2008 FCA 221, 168 ACWS (3d) 224 [Martselos], at paragraph 32, the
Federal Court of Appeal held that an EAC’s interpretation of the Election Regulations
is reviewable on a standard of correctness.
[30]
The Respondents suggest that the standard is
reasonableness based on the Supreme Court of Canada’s decision in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3
SCR 654 [Alberta Teachers’]. The Martselos decision was rendered
before the Alberta Teachers’ decision. The nature of the
decision, decision making process and decision maker in the present case is
very different than that in the Alberta Teachers’ case such that
the standard of review analysis is not completely applicable to a
political/legal process of Band governance.
[31]
In my view, this Court is bound in principle by
the Martselos decision. While the EAC may lack expertise in matters of
statutory interpretation, it does have expertise in the area of custom and has
knowledge of the practices and conduct flowing from its Election Regulations.
In this area, the Courts recognize a degree of flexibility and commonly
accepted interpretation and implementation of election regulations and other
provisions of band governance (see Francis v Mohawk Council of Kanesetake,
2003 FCT 115, [2003] 4 FC 1133; Whitehead v Pelican Lake First Nation,
2009 FC 1270, 360 FTR 274, at paragraphs 1, 2 and 55).
[32]
While the interpretation of the Election
Regulations must be correct, the interpretative aids and the application of the
law must exhibit recognition and acceptance of custom law and application where
it does not directly conflict with the wording of the Election Regulations.
[33]
The structure and wording of the Band’s Election
Regulations is less than ideal and is in need of review. However, the practice
of petitions of removal had been an accepted part of the Election Regulations
as evidenced by the affidavits filed in this matter.
[34]
On any issue of procedural fairness, the usual
standard of correctness is applicable (Metansinine v Animbiigoo Zaagi’igan
Anishinaabek First Nation, 2011 FC 17, 382 FTR 127).
B. Interpretation
and Application of the Election Regulations
[35]
The Applicant argues that the EAC’s authority
under the Election Regulations is limited to directing the Elections Officer to
request a Chief or Councillor’s resignation. That power of request is
conditional upon receipt of a petition signed by 50% + 1 person of the number
of people who voted in the last election.
[36]
The Applicant also claims that as part of the
removal process, the EAC is required to investigate the complaints made in the
petition – failure to comply with the Election Regulations; failure to function
in accordance with Band Council Policy or Band Constitution; inefficiency or
ineffectiveness and lack of interest [the “enumerated grounds”].
[37]
The Applicant reads the removal process as
incorporating all the steps contained under the Election Regulations’ heading –
ELECTION APPEALS. These steps including lodging an appeal or petition; an
investigation of any discrepancies; EAC confirmation of the grounds for
removal; if the appeal or petition is found valid; removal by petition of 50% +
1 and a direction to the Electoral Officer to request resignation of a Chief or
Councillor.
[38]
It is evident from past practice and in this
case specifically that the EAC did not read the Election Regulations in this
matter and concluded that there was a right or duty to remove if a petition was
filed by the requisite number of electors; such petition being based on the
“enumerated grounds” for removal.
[39]
In my view, the EAC’s interpretation and
application of the Election Regulations must be upheld. The first part of the
ELECTION APPEALS provisions deals with discrepancies in the method of
elections. The duty to investigate is conditional on an allegation of
discrepancies in the vote for Chief and/or Councillor. The EAC is then
empowered to act accordingly in the face of an improper election – such further
action is not stated but must include the power of removal.
[40]
The power to remove by reason of petition is a
separate process involving a petition based on the enumerated grounds, a
determination of the validity of the ground, and if valid, the EAC can (but is
not required to) remove the Chief or Councillor and a by-election process is
initiated.
[41]
The EAC’s determination of the validity of the
grounds for removal does not specify an investigation or hearing or any other
specific process. The process for determining validity is a matter of
discretion. In a small remote community some extensive discovery process would
not appear necessary; the EAC must be presumed to be in touch with its
community.
[42]
The fact that this removal process, which is
somewhat akin to a “recall” process, is contained under the heading ELECTION
APPEALS may be confusing but it clearly engages a process which is quite
distinct from a challenge to an election process. The heading does not govern
the substance of the distinct processes covered within the heading.
[43]
I would note that the letter of April 12 from
the EAC seems to broaden the basis for removal so as to engage misconduct as specified
under VACANCY – b.iii. The purported effect would be to render the Applicant
ineligible to hold office for a three (3) year period. That would make the
Applicant ineligible to run in the next Band election. The EAC, from notes of
its April 4 meeting, may have believed that the Applicant was subject to a
three-year bar but a proper interpretation of the Election Regulations does not
support that belief.
[44]
The April 12 letter and any effort to expand the
basis for removal are of no force and effect. The decision of April 4 removed
the Chief on the basis of a petition. The EAC cannot engage in “piling on” by
adding new grounds for a removal which had already occurred.
[45]
Therefore, subject to the issue of procedural
fairness discussed below, the EAC’s decision to remove the Chief from office
was valid.
C. Procedural Fairness
[46]
The Applicant alleges breach of procedural
fairness on the grounds of failure to investigate and failure to provide the
Applicant an opportunity to rebut the allegations against her. The Court has
already addressed the matter of a duty to investigate. The manner of the EAC’s
determination of the validity of the enumerated grounds is a matter of
discretion subject to the appropriate procedural safeguards.
[47]
The enumerated grounds is a mix of wrongful
conduct (failure to comply with regulations and constitution) and political or
quasi political assessment (ineffectiveness, inefficiency, lack of interest).
[48]
Depending on the grounds relied upon, the nature
of procedural fairness will vary. Where misconduct is alleged, the fairness
element will be more substantive. Where the allegation is political, such as
exhibiting lack of interest in the position, the degree of procedural fairness
is less.
[49]
In the normal course, a person may be entitled
to rebut or address the allegations; however, these procedural protections must
be viewed in the context of these facts.
[50]
The Applicant, while not being accorded a formal
opportunity to be heard, never asked for that opportunity. In fact, the
Applicant’s reaction was to reject the EAC’s authority to deal with the Petition,
to challenge the EAC’s authority and to set up a parallel structure to address
the actions and legitimacy of the incumbent EAC.
[51]
The Applicant refused to even accept service of
the Petition, yet she knew of its existence and knew or ought to have known of
its substance. The Electoral Officer met twice with the Applicant before the
April 4 decision. Each time the Applicant refused to address the Petition. She
can hardly complain about lack of knowledge or opportunity to rebut the
enumerated grounds.
[52]
The Applicant, having chosen to challenge the
legitimacy and authority of the EAC, cannot complain that she was not given a
formal opportunity to a hearing – an invitation to attend could be said to be a
matter of form over substance. The Applicant had her opportunity and she chose
a course of conduct which deprived herself of such an opportunity to be heard.
[53]
Therefore, I conclude that to the extent that
procedural fairness was in issue, the Applicant availed herself (or failed to
avail herself) of such procedural rights as she desired. There was no breach of
procedural fairness.
IV. CONCLUSION
[54]
For these reasons, this judicial review will be
dismissed with costs.
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