Docket: T-1408-16
Citation:
2016 FC 1365
Ottawa, Ontario, December 9, 2016
PRESENT: The
Honourable Madam Justice Kane
|
BETWEEN:
|
|
DONALD SAYAZIE
|
|
Applicant
|
|
and
|
|
THE BLACK LAKE
DENESULINE FIRST NATION AS REPRESENTED BY COREEN SAYAZIE, IN HER CAPACITY AS
CHIEF AND TREVOR BONELYE, DELBERT BOUVIER, GEORGE CATHOLIC, DARLENE FERN,
JOSEPH RENIE, JOHN TOUTSAINT AND PAULINE TOUTSAINT IN THEIR CAPACITY OF
COUNCILLORS
|
|
Respondents
|
JUDGMENT AND REASONS
[1]
The Applicant, Donald Sayazie, seeks judicial
review of the decision or omission of the Black Lake Denesuline First Nation
[BLFN] Chief and Council to appoint an Appeal Board prior to the commencement
of the 2016 General Election, as required by The Black Lake Denesuline First
Nation Election Act (the Election Act) and also challenges the authority of
the Chief and Council to hold office because the election results were not
certified by an Appeal Board.
I.
Overview
[2]
The Applicant, Mr.
Sayazie, was a candidate in the 2016 election. He did not garner sufficient
votes. He states that he and two other Band members
appealed the results of the election and their appeals were not determined. He
submits that the election results have not been certified by an Appeal Board as
required by the Election Act and, as a result, the Chief and Council cannot
lawfully hold office. He also argues that the Chief and Council have violated
the Election Act by taking the benefits of an office they do not hold and that
this constitutes a corrupt practice.
[3]
For the reasons that follow, the application for
judicial review is dismissed. The Applicant has not established any
unreasonable action or omission by the Respondents, nor any unlawful action or
corrupt practice.
[4]
The Respondents, the current Chief and Council,
are not responsible for the failure of the previous Chief and Council to
strictly comply with the Election Act and to confirm by Band Council Resolution
(BCR) the appointment of a seven member Appeal Board. Moreover, the Applicant’s
appeal was submitted beyond the prescribed time limit and did not otherwise
comply with the Election Act. There was no need for an Appeal Board to
adjudicate appeals that were not in accordance with the requirements of the
Act. Nor was there any requirement for an Appeal Board to certify the results of
the election in the absence of valid appeals.
II.
The Applicant’s Submissions
[5]
The Applicant initially sought both judicial
review of the decision or omission of the Chief and Council to appoint an
Appeal Board prior to the commencement of the 2016 General Election, as
required by the Election Act and an interim injunction to enjoin the current
Chief and Council from acting as Chief and Council pending the determination of
this application, in addition to other relief.
[6]
By Order of Justice Mactavish dated October 4,
2016, and as a result of a Case Management Conference held on September 30,
2016, a date for an expedited hearing of this application for judicial review
was set rather than first determining the Applicant’s motion for an interim
injunction.
[7]
The Applicant’s application record and written
memorandum of argument replicate to a large extent the memorandum filed in
support of the interim injunction. The Court has considered only the issues
relevant to the underlying action for judicial review.
[8]
The Applicant notes that he ran as a candidate
for Chief. He submitted a Notice of Appeal following the election.
[9]
The Applicant points to the Election Act which provides
that seven members of an Appeal Board must be chosen by Band members at a
special Band meeting. He submits that there was no BCR appointing an Appeal
Board and, therefore, no Appeal Board exists within the meaning of the Act. The
Applicant argues that because there was no Appeal Board to determine his and
the other appeals and to certify the election results, the Chief and Council
cannot lawfully assume their Office.
[10]
The Applicant submits that even if members of an
Appeal Board were selected, they are not a valid Appeal Board nor did they make
any decision regarding his or the other appeals. He adds that he was not
informed of the outcome of his appeal.
[11]
The Applicant further submits that it is a
tradition that the Chief Electoral Officer (CEO) supervises the swearing-in of
the Chief and Council. He submits that the CEO could not do so because there
were outstanding appeals. He also submits that the transmission of the election
results by the Deputy Electoral Officer was done contrary to the wishes of the
CEO.
[12]
He argues that the Chief and Council are
self-proclaimed and have unlawfully used their names in positions of trust or
authority and that this constitutes a “corrupt
practice” pursuant to the Election Act.
[13]
The Applicant acknowledges that it was the
responsibility of the former Chief and Council to convene the meeting for the
selection of an Appeal Board and to pass a BCR to confirm the membership. He
also appears to agree that the present Chief and Council have no authority to “fix” the omission of the previous Chief and Council.
Regardless, he submits that because the Current Chief and Council inherited
this decision or omission, they should rectify the situation. He submits that a
remedy is needed because the current Chief and Council lack the authority to
pass any BCR’s.
[14]
The Applicant proposes that the Court should
make an Order appointing an ad hoc emergency Appeal Board Selections
Committee consisting of the previous Chief and Council. That Committee would
then make submissions to the Court for the appointment of an Appeal Board. The
Order should also provide that once the Appeal Board is in place, the CEO
should call a by- election. Following the results of the by-election, if there
are appeals, the Appeal Board would determine the appeals and certify the
election results, or pursue the appropriate action in accordance with the
Election Act.
III.
The Respondents’ Submissions
[15]
The Respondents note Justice Mactavish’s Order
and point out that, despite the agreement to expedite the application for
judicial review, the Applicant refiled the same material and advanced arguments
related to interim relief. As a result, the Respondents were required to
anticipate and respond to arguments that might be relevant to the application
for judicial review.
[16]
The Respondents note that a special Band meeting
was held on May 24, 2016 to select a Chief Electoral Officer and an Appeal
Board. Six members were chosen for an Appeal Board, but two later declined to
be on the Board. The Respondents acknowledge that no BCR regarding an Appeal
Board has been provided.
[17]
The Respondents submit that the Applicant has
named the wrong respondents in this application. It is the former Chief and
Council who were responsible for convening a Band meeting to choose the CEO and
Appeal Board and to pass a BCR to confirm the selection. The current Chief and
Council cannot do anything to address this omission. The Respondents dispute
the Applicant’s argument that the current Chief and Council inherited the
decision or omission and must rectify it.
[18]
The Respondents submit that as Chief and
Council, they have not made any unreasonable or unlawful order or taken any
action or omitted to perform any action and that the Court lacks jurisdiction
to consider this application for judicial review.
[19]
Alternatively, the Respondents submit that if
the application for judicial review was filed beyond the 30 day limit in the Federal
Courts Act and, therefore, the Court should decline to consider the
application. The Applicant was informed of the results of the election on June
24, 2016 but did not bring his application until August 16, 2016.
[20]
The Respondents acknowledge that the Election
Act was not strictly complied with in that there was no BCR to confirm that an
Appeal Board had been selected and that the Appeal Board did not have the
requisite seven members. However, six members were chosen and four remain. The
Respondents submit that this is a validly constituted Appeal Board despite the
irregularities and that it reflects the will of the Band which should be
respected.
[21]
The Respondents further submit that some of the
provisions of the Election Act are mandatory while others are merely directory.
Where there is no consequence for non-observance, the provision is directory (Aspsassin
v Canada (Department of Indian Affairs and Northern Development) [1988] 3
FC 20 (T.D.).
[22]
The Respondents argue that the provisions of the
Election Act governing the appointment of an Appeal Board are directory, rather
than mandatory, given that there are no consequences for failure to appoint an
Appeal Board. Therefore, the failure to strictly comply is not fatal to the
election results. A four member Appeal Board was selected in substantial
compliance with the Election Act and could have adjudicated any appeals that
were properly submitted within the time limits.
[23]
The Respondents submit that the provisions of
the Election Act governing filing appeals differ in character and are
mandatory. Appeals must be brought within the prescribed time limits and
determined within the prescribed time limits by the Appeal Board. The Chief and
Councillors can then perform their duties or alternatively, depending on the
results of the appeal, a by-election could be called in a timely manner. To
allow appeals to be brought beyond the time limits at any point in the tenure
of the Chief and Council would cause chaos and disruption and would undermine
the governance model.
[24]
The Respondents note that all three appeals were
filed out of time. There were no valid appeals to forward to an Appeal Board.
In addition, the four members of the Appeal Board had no obligation to
determine late-filed appeals. Therefore, there was no need for the CEO to
certify the election results. The Respondents add that the results of the
Election held on June 24, 2016 were decisive.
[25]
The Respondents submit that the Applicant’s
claim that he had no information and was not advised about the outcome of his
appeal is not credible. The Respondents point to the letters from their former
and current counsel that advised the Applicant that his appeal was out of time.
The Respondents also point to the evidence of Terri-Lynne Beavereye, who stated
that she advised the CEO, Mr. Robillard, on July 18, 2016 that all three
appeals were filed beyond the time limits.
[26]
The Respondents also argue that none of the
appeals, even if filed in time, would have affected the results of the
election. The Applicant’s appeal was based on his granddaughter voting twice.
Regardless of who his granddaughter voted for, and whether she voted once or
twice, there would have been no impact on the election results given the
decisive number of votes for Ms. Sayazie as Chief. The Respondents submit that
an appeal would be denied where the evidence presented does not indicate an
infraction of the Act and where an infraction would not have affected the
results, the results would stand (Section 12.8).
[27]
The Respondents also submit that there was no
requirement to certify the Election results in these circumstances. The Chief
and Council took their oaths of office before a Commissioner. The Act does not
require the CEO to oversee their swearing-in. The Chief and Council have carried
out their duties as elected officials and this does not constitute a corrupt
practice.
[28]
The Respondents add that the Applicant’s
proposed remedy for the lack of strict compliance with the Election Act due to
the apparent omission of the previous Chief and Council to select a seven
member Appeal Board and to pass a confirmatory BCR is extreme, even if there
were any merit to the Applicant’s arguments, and that there is no reason to
quash the election results.
IV.
The Issues
[29]
The Applicant’s submissions do not set out clear
issues for determination on this application for judicial review. In my view,
the Applicant’s issues can be summarized as follows: whether the Applicant’s
appeal should have been determined; whether the lack of a properly constituted
Appeal Board to do so has resulted in a failure to certify the election
results; and, whether the current Chief and Council have lawfully taken office.
[30]
The Respondents raised additional issues
including; whether the Applicant named the wrong respondents; whether there was
an Appeal Board in place, albeit not in strict compliance with the Election
Act; whether the Applicant’s appeal was out of time, and as a result, an Appeal
Board was not required to consider his appeal; and, whether the Applicant’s
application for judicial review was out of time because the alleged omission
regarding the Appeal Board occurred before the Election took place on June 24,
2016 and the Applicant would have been aware of this.
V.
The Standard of Review
[31]
The Council of a band is a “federal Board” within the meaning of section 2 of the
Federal Court’s Act and, therefore the Court has jurisdiction to review
any order made or action taken.
[32]
The application raises questions of law and fact
which are reviewable on a standard of reasonableness (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]).
VI.
The Evidence
[33]
The Election Act governs the process of the
election from the time of choosing the Electoral Officers to the completion of
any appeal period. It sets out, among other things, the criteria for
candidates, the role and responsibilities of the Electoral Officers, the
appointment and composition of an Appeal Board and the process for an appeal.
The relevant provisions of the Election Act are set out in Annex A.
The Affidavit of Mr. Donald
Sayazie
[34]
Mr. Sayazie, the Applicant, attests that he was
a candidate in the June 24, 2016 election. He states that he submitted his
appeal in writing to the CEO and a commissioner of oaths witnessed his
signature.
[35]
He asserts that the Chief and Council took
office without a proper oath of office and without certification by an Appeal
Board and that this amounts to a corrupt practice. He states that the CEO
advised him that the Chief and Council hired a commissioner of oaths to
administer the oath of office and asserts that this is contrary to the spirit
of the Black Lake Denesuline First Nations Act. He also states that the
CEO informed him that an Appeal Board must certify the results of the election
and the CEO has been unable to do so because there is no Appeal Board.
[36]
On cross examination, Mr. Sayazie’s responses
were vague and inconsistent in some respects. He acknowledged that he submitted
his appeal on July 18, 2016. He stated that he had not read the Election Act
and suggested that he was not aware of the 14 day time limit or the meaning of “calendar days”. However, he agreed that this time
limit is in the Act. He also cited several other provisions to support his own
arguments, which suggests that he had read the Election Act.
[37]
He stated that he was present at the May 24,
2016 Band meeting but left early. However, he also stated that he was in
attendance when Mr. Robillard was elected as Chief Electoral Officer, which, as
noted in the Minutes, was at midnight. He stated that he was not present when
any Appeal Board was selected and noted that there was no reference to this in
the Minutes.
[38]
He responded to several questions about the
basis of his appeal. His answers were not clear with respect to whether his
concern was that his granddaughter voted twice or rather that the practice of
being told that she could not vote because she had voted in the advance poll
and then being advised that she could return to the poll and vote was somehow
improper.
[39]
He stated that he never received any information
from the Appeal Board about his appeal. However, he agreed that his lawyer had
received correspondence indicating that his appeal was out of time and this had
been conveyed to him.
[40]
When directed to the relevant provisions of the
Election Act, he agreed that there was no provision that required the Chief and
Councillors to be sworn in by the Chief Electoral Officer.
The Affidavit of Ms. Coreen
Sayazie
[41]
Ms. Sayazie states that she is the duly elected
Chief as a result of the band election held on June 24, 2016. Ms. Sayazie
attached, as an exhibit, the Electoral Officer’s Report signed by the Deputy
Electoral Officer, Janelle Boneleye, which was submitted to and accepted by the
Department of Aboriginal Affairs and Northern Development Canada. This
indicates that: Coreen Sayazie received 274 votes; Anne Gordon Toutsaint
received 220 votes and Donald Sayazie received 185 votes.
[42]
Ms. Sayazie states that she was not present at
the Band meeting of May 24, 2016. She notes that Tricia Cook took the minutes
of the meeting which are attached to her affidavit.
[43]
Ms. Sayazie attests that Tricia Cooke advised
her and she believes that six members of the Appeal Board were chosen at that
meeting, although the minutes do not reflect this. Subsequent to the meeting,
two members declined to sit on the Appeal Board because their wives were
candidates. Ms. Sayazie states that the CEO, Mr. Robillard, must have been
aware that six members were selected and two resigned given that he sent a memo
to the four remaining members on July 13, 2016.
[44]
Ms. Sayazie states that there is no requirement
in the Election Act that the Chief Electoral Officer administer the oath of
office to the Chief and Councillors. Ms. Sayazie explains that the CEO is
usually present, but Mr. Robillard refused to attend. The Chief and Councillors
took their oaths before a Commissioner of Oaths in the presence of the Deputy
Electoral Officer.
[45]
Ms. Sayazie states that Mr. Sayazie has been
aware since July 25, 2016 that his appeal was filed out of time. Ms. Sayazie
attached a series of letters to her affidavit. A letter sent on July 22, 2016
to Mr. Robillard, the Chief Electoral Officer, by Mr. Partyka, the former
counsel for the Applicant, asserts that, because no Appeal Board is in place,
those wishing to appeal have been denied their rights and suggests that the
election is void.
[46]
Mr. Pandilla, counsel for BLFN, replied on July
25, 2016, noting the relevant provisions of the Act and advising that no
appeals were filed within the 14 day limit, which was July 8, 2016.
[47]
The letter from the current counsel for the
Applicant, dated August 11, 2016 refers to, among other things, the CEO’s
concerns about three appeals that have not been adjudicated because there is no
Appeal Board.
[48]
The letter from Mr. Pandilla, Counsel for the
Respondents, dated August 12, 2016 sets out the chronology of events, refers to
provisions of the Election Act and responds to the previous correspondence,
noting that the Applicant’s former counsel, Mr. Partyka, was advised that none
of the appeals were filed in time and that Mr. Robillard has no authority to
call a by-election.
[49]
Ms. Sayazie’s affidavit attaches a copy of two
Notices of Appeal. The Applicant’s Notice of Appeal is dated July 13, 2016, and
was sworn on July 18, 2016. The Applicant’s Notice of Appeal states that an
error or violation of the Election Act was made that might have affected the
outcome. He describes that his granddaughter, Robin Sayazie, attended to vote
and was told that she could not vote because she had done so in the advance poll.
She was later contacted by the Deputy Electoral Officer and told she could vote
and did so. Mr. Sayazie states “I need to recount the
election resolve [sic] on June 24, 2016 for chief & councillors”.
[50]
Mr. Alphonse’s Notice of Appeal, dated July 4,
2016, and sworn on July 13, 2016, asserts that his name was left off the
candidates list by the CEO because he had not provided his criminal records
check and also refers to Mr. Sayazie’s granddaughter returning to vote after
first being told she had voted in the advance poll.
[51]
Mr. Robillard’s memo to the four Appeal Board
members dated July 13, 2014 notes that he had received Mr. Alphonse’s criminal
record check on the date of the election and he asks for a decision by the
Appeal Board on Mr. Alphonse’s appeal by July 24, 2016.
[52]
Ms. Sayazie’s affidavit also attaches the
Minutes of the May 24, 206 meeting. The Minutes are very cryptic but appear to
reflect a discussion regarding business unrelated to the election. The meeting
began at 4:51 p.m. and ended at midnight. There is a gap in the Minutes from 8:11
p.m. to 11:26 p.m.. At the 11:33 p.m. mark, it is noted that the CEO needs to
be elected. Several names are noted. It appears that Mr. Robillard received 27
votes and was chosen CEO.
[53]
On cross examination, Ms. Sayazie confirmed that
she was not a member of the previous Council and could not state what it did or
did not do regarding the appointment of an Appeal Board. She indicated that she
was advised that an Appeal Board had been selected, that the members had been
announced by Mr. Robillard at the nominating meeting on June 10, 2016 and that
two members had later declined to sit on the Appeal Board, but she was not
aware of a BCR to this effect.
[54]
Ms. Sayazie could not answer why the Minutes of
the May 24, 2016 meeting did not refer to the selection of an Appeal Board,
noting again that she was not responsible for these Minutes nor was she part of
the Council at that time. She stated that in her view, Mr. Robillard’s memo of
July 13, 2016 to four Appeal Board members indicates that Mr. Robillard thought
there was an Appeal Board.
[55]
She also confirmed that she and the other
Councillors took their oath of office before a Commissioner. In response to
questions about the CEO’s refusal to attend their swearing in, Ms. Sayazie
responded that she had been told that Mr. Robillard refused because he wanted
to be paid to do so, not that he was awaiting the views of the Appeal Board.
The Affidavit of Terri- Lynn
Beavereye
[56]
Ms. Beavereye attests that she is a business
manager for the Band and that she was appointed as a member of the Appeal Board
on May 24, 2016.
[57]
She states that on July 18, 2016, Mr. Robillard,
the CEO, attended at her office and advised her that he had received three
election appeals. Mr. Robillard advised her that none of the appeals were
received by him on or before July 8, 2016. She further attests that she told Mr.
Robillard that none of the appeals could be dealt with by the Appeal Board
because they were filed out of time.
[58]
On cross examination, Ms. Beavereye stated that
she was not at the May 24, 2016 meeting and agreed that there was nothing in
the Minutes about the appointment of the Appeal Board. She also stated that
there were two different Band meetings on May 24, 2016, but she did not know
about another set of Minutes.
[59]
She stated that Mr. Robillard announced the six
members of the Appeal Board at the June 10, 2016 nominating meeting.
[60]
Ms. Beavereye also stated that when Mr.
Robillard attended at her office on July 18, 2016 he advised that he was delivering
a copy of the three appeals to the other Appeal Board members. Ms. Beavereye
stated that she spoke with two other Appeal Board members who had received the
copies of the appeals, however the group did not meet together to make a
decision.
The Affidavit of Mary Rose Bouvier
[61]
Ms. Bouvier attests that she was a former Band
Councillor. She states that she did not sign any BCR for an Appeal Board and
she believes that no Appeal Board was selected at the May 24, 2016 Band
meeting.
[62]
On cross examination, Ms. Bouvier responded that
she was in attendance at the May 24, 2016 meeting, but left at 11:00 p.m.
before the appointment of the CEO or any Appeal Board. She noted that there was
some discussion among community members about who had been named to the Appeal
Board.
[63]
She confirmed that she was not aware of any
requirement for the CEO to preside at the swearing in ceremony of the Chief and
Councillors.
Summary of the evidence
[64]
In addition to the relevant provisions of the
Election Act, the evidence I have relied on in determining this application is
summarized below:
- Members of the Appeal Board were
chosen at the May 24, 2016 meeting, but not in conformity with the Act
that requires seven members.
- There was no BCR confirming the
appointment of an Appeal Board.
- The Minutes of the May 24, 2016
meeting do not refer to the appointment of an Appeal Board. The Minutes
are very cryptic and do not provide any relevant information due to their
brevity and missing pages.
- There may have been a second meeting
held on May 24, 2016 but Minutes have not been provided.
- The CEO, Mr. Robillard, announced six
members of the Appeal Board at the June 10, 2016 nominating meeting. Two
of the members subsequently declined to sit on the Appeal Board.
- Mr. Robillard sent a memo to the four
members of the Appeal Board on July 13, 2016 and sent copies of the
appeals received to some of the members of the Appeal Board on July 18,
2016.
- The three appeals filed were all out
of time as none were sworn or delivered until well after July 8, 2016.
- The Applicant acknowledged that he
filed his appeal after the 14 day limit but also claims that he did not
read that part of the Election Act. He did not attach a copy of his appeal
to his own affidavit. However, his appeal indicates that it was sworn on
July 18, 2016.
- The basis of the Applicant’s appeal is
that his granddaughter may have voted twice and he requested that the
election results be recounted. However, whether his granddaughter voted
twice or not would not have affected the results of the election.
- There is no affidavit from the
Applicant’s granddaughter, Robin Sayazie, to confirm what occurred at the
time she voted, nor is there a copy of her own appeal.
- Although several affiants refer to
what the CEO, Mr. Robillard, did or said, there is no affidavit from Mr.
Robillard.
- The memo sent by the CEO, Mr.
Robillard, on July 13, 2016 suggests that he acknowledged the four member
Appeal Board. This contradicts the Applicant’s assertion that Mr.
Robillard was concerned about the inability to certify the election
results and that he intended to call a by-election.
- The Applicant was aware on or around
July 25, 2016 that his appeal had been filed beyond the prescribed time
limit. He acknowledged that he was advised by his lawyer that a letter had
been sent indicating that his appeal was out of time.
- The results of the election were decisive and in favour of Ms.
Sayazie as Chief.
- There is no evidence of any
requirement or any practice for the CEO to preside at the swearing in of
the Chief and Councillors. The Election Act does not include such a
provision.
- The Chief and Councillors took their oath of office before a
Commissioner of Oaths in the presence of the Deputy Electoral Officer.
VII.
The Applicant has not established any unlawful
or unreasonable act or omission by the Respondents
[65]
The Applicant argued that there is uncertainty
in the community due to the unlawful election results and that an expeditious
court order is needed to restore certainty. In my view, the Applicant has
brought this uncertainty to his community by his own actions in bringing this
unfounded application to the Court. The results of the election were
definitive. The Applicant’s purported appeal, if it had been filed in time,
would not have affected the outcome of the election as it could only have
resulted in a difference of, at most, one vote. Moreover, the Applicant’s
description of the alleged irregularity is far from clear. There is no direct
evidence from Robin Sayazie or from the Chief Electoral Officer, Mr. Robillard.
[66]
The Applicant notes the cautionary words of
Justice Rothstein in Long Lake First Nation v Canada (Minister of Indian and
Northern Affairs) [1995] FCJ No1020 at para 31:
Members of Council and /or members of the
Band cannot take the law into their own hands. Otherwise there is anarchy. The
people entrust the Councillors to make decisions on their behalf and
Councillors must carry out their responsibilities in a way that has regard for
the people whose interests they have been elected to protect and represent. The
fundamental point is that Councils must operate according to the rule of law.
[67]
The Applicant submits that the lack of oversight
by the previous Chief and Council to appoint an Appeals Board and to allow the
election of the Respondents in contravention of the Act is irresponsible and is
not in accordance with the rule of law. The Applicant further submits that the
Respondents’ unlawfully hold office.
[68]
In my view, this is a gross overstatement. The
election of the Respondents is not in contravention of the Act and is not
illegal. While the omission is that of the previous Chief and Council, the
evidence suggests that there was clearly an intention to appoint an Appeal
Board, although only six persons were selected, rather than seven, two declined
and no BCR was passed. The previous Chief and Council are not respondents to
this application, so allegations against them are pointless. The current Chief
and Council, who are the named Respondents, are not at fault for the omission
of their predecessors.
[69]
The Applicant has not established that the
current Chief and Council acted or failed to act in an unlawful manner or in an
unreasonable manner that would justify any intervention by this Court.
[70]
The Applicant’s position is very inconsistent.
On one hand, he argues that the current Chief and Counsel have assumed office
unlawfully and have no authority. On the other hand, he argues that the current
Chief and Council should fix the gap in the Election Act.
[71]
The Applicant also seeks to rely on some
provisions of the Act but not on others. He fails to take a broader view of the
overall situation. Although there was no properly constituted Appeal Board, his
appeal, along with the other two appeals, were not filed in time. The lack of a
seven member Appeal Board confirmed by a BCR is of no consequence to the
Applicant’s appeal given it was filed out of time.
[72]
The Applicant’s assertion that he was not
informed of the results of his appeal is contradicted by the clear evidence on
the record. In oral submissions, his counsel suggested that, although he was
advised that his appeal was out of time, this was only the opinion of counsel
and not a determination of his appeal. However, it is clear that the Applicant
was advised that his appeal was filed beyond the prescribed time limit in the
Election Act. There was no requirement for an Appeal Board to determine this
appeal as it was filed beyond the 14 day time limit.
[73]
Nor is there a requirement for the Appeal Board
to certify the results of this election. Section 11.4 of the Election Act
provides that “It shall be the duty of the Appeal Board
to certify the Election or By-election results of the First Nation Council if
there is an Appeal after an Election or By-election”. There was no such
duty because there were no valid appeals.
[74]
I agree with the Respondents that the provisions
of the Election Act governing the filing and determination of appeals (Section
12) are mandatory. Appeals must be properly submitted within 14 days and a
preliminary ruling provided within 7 days. Where a hearing is held, the Appeal
Board must make a decision within 7 days. These time limits are necessary so
that the Chief and Council can move forward following the determination of any
valid appeals without the risk of appeals arising later that would impede their
ability to govern.
[75]
The Election Act does not include any
consequences for non-compliance with the requirement to appoint an Appeal
Board. This suggests that the provisions regarding the Appeal Board are not
mandatory. Although the role of the Appeal Board is important, the Act does not
include provisions to address the replacement of members of the Appeal Board or
to permit a lesser number of members to fulfill the duties of the Appeal Board.
[76]
There is no requirement in the Election Act and
no evidence of any practice that the CEO must supervise the swearing-in of the
Chief and Council. The Chief and Council took their Oaths as required by the
Act in the presence of the Deputy Electoral Officer. The results of the
election were communicated to the Department of Indian Affairs and Northern
Development (now the Department of Indigenous Affairs and Northern
Development).
[77]
The Chief and Council have lawfully assumed
their Office and have the authority to govern. The Applicant should accept
this.
[78]
With respect to the Respondents’ submission that
the application for judicial review was filed beyond the 30 day time limit in
the Federal Courts Rules, it is not clear when the clock started to run
given the vagueness of the evidence regarding when the Applicant knew that a
seven member Appeal Board had not been confirmed by a BCR. As a result, the
Court has considered all the issues that both parties raised.
[79]
I acknowledge that the Appeal Board may be
called upon to address other issues that may arise in the course of the Chief
and Council’s tenure. The lack of a seven member Appeal Board confirmed by a
BCR is an issue that in the future may affect the Band as a whole and not the
Applicant in particular. It is not an issue that must be determined on this
application for judicial review. As I noted at the hearing, the Court is
reluctant to craft remedies to resolve issues for a community that has the
capacity to resolve them on their own and in a manner that would likely be more
acceptable to all members of the community.
[80]
However, given that the parties appear to be at
an impasse, the Court will offer some suggestions.These suggestions are not
intended to usurp the role of the Band in managing their elections and their
government, but rather to avoid the need to return to the Court. Gaps in the
Election Act which provide opportunities for members to stir up controversy or encourage
litigation should be avoided and addressed.
[81]
The Band could first consider whether the four
persons chosen as members of the Appeal Board can be recognized as the Appeal
Board for the tenure of the current Chief and Council. If so, these members
could sit in panels of three (to ensure no tie votes), to address issues that
arise in accordance with section 11.3, other than appeals of the election results
given that the time to bring an appeal has long passed.
[82]
For a more long term approach, the Band should
consider amendments to the Election Act to provide for the replacement of
members of the Appeal Board, who would or should have been appointed by the
previous Chief and Council in advance of an election, in the event of their
illness, death, disqualification or resignation. The Election Act provides for
the replacement of the CEO at Sections 3.2 and 11.3 and these provisions could
provide a model to be adapted for the replacement of Appeal Board members.
Alternatively, or in addition, the Election Act could permit that if members
resign or are disqualified, the remaining members would continue to act as the
Appeal Board, as long as the membership does not fall to below a particular
number of members. Another option for consideration would be to require the
Chief Electoral Officer or the Deputy Electoral Officer to call a special
meeting for the nomination and selection of replacement members by vote among
band members which would then be presented to the Chief and Council and
ultimately confirmed by a BCR.
VIII.
Costs
[83]
The Respondents are entitled to their costs. The
Respondents were called upon to defend decisive election results and to anticipate
the Applicant’s arguments with respect to the application for judicial review
because the Applicant twice refiled and relied on the arguments prepared for
the purpose of seeking an interim injunction which did not address the merits
of the underlying application.
[84]
The Respondent submitted a
draft Bill of Costs which I have considered and have no doubt were incurred. However,
I exercise my discretion to award lump sum costs to the Respondents in the
lesser amount of $6,500, inclusive of disbursements and interest.
ANNEX A
The Black Lake
Denesuline First Nation Election Act
The relevant
excerpts are set out below:
Section 2 sets
out definitions including:
[…]
2.3 “Band
Council Resolution or BCR”, means a formal expression of the will of
the Chief and Council set out in the prescribed form and executed by a quorum
of council.
[…]
2.7 “Chief
Electoral Officer” means the person empowered and entrusted to conduct and
oversee an Election and/or By-election according to the terms of this Act.
2.8 “Corrupt
Practice” means any act done by an elected official, whether Chief or
Councillor, who unlawfully and/or wrongly uses his/her name or position of
authority or trust to procure some benefit or favour for him/herself of for
another person contrary to his her official or fiduciary duties and/or the
rights of other persons and includes any act or omission that is recognized by
law or custom to be a corrupt practice.
[…]
2.10 “Deputy
Electoral Officer” means a person who is appointed by the Chief
Electoral Officer to assist him/her with overseeing the Election or By-election.
[…]
3 An
Election shall be commenced as follows:
3.1 Prior
to an election being called, a special Band meeting shall be
convened to select a Chief Electoral Officer and the Appeal Board.
3.2 The
Chief Electoral Officer shall serve for a period equal to the
term of office of the Chief and Council and shall be responsible
for all By-elections that may be called during the same term. A
Chief Electoral Officer may be reappointed. If the Chief
Electoral Officer is unable or unwilling to oversee a By-election, a special
Band meeting shall be convened to appoint a replacement. If fewer than five (5)
adult Band members, in addition to the Chief and Council, attend the special
meeting convened for the purpose of appointing a Chief Electoral officer, then
the Chief and Council may appoint the Chief Electoral Officer.
3.3 An
Appeal Board shall serve for a period equal to the term of office
of the Chief and Council and shall be responsible for all By-elections
that may be called during the same term, No serving member of the Appeal Board
may participate in a General Election or By-election whether as
Candidate, Nominator, Seconder or Voter.
[…]
4.1 Subject
to section 3 of this Act, the Chief Electoral Officer and Appeal Board shall
be formally appointed by Chief and Council through a Band Council Resolution
(BCR) which will
(a) contain their full names;
(b) set out the date, time and place for the Nomination meeting, the
Polling Day and Advance Poll(s);
(c) describe the type of Election, whether General Election or By-
election, which is to be conducted; and
(d) describe the powers given or bestowed upon the Chief Electoral
Officer and Appeal Board as those set out in this Elections Act and any
amendments thereto.
(Sections 4.1-4.10)
set out the nomination procedure and the duties of the Chief Electoral Officer.
Section 5 sets
out additional responsibilities of the CEO regarding the nomination and voting
process.
Section 6 governs
the conduct of nomination meetings.
Sections 7- 10 govern
the conduct of elections and by- elections and the counting of ballots.
11. An
Appeal Board shall be appointed at the time the Election is
called.
11.1 The
Appeal Board shall be made up of seven (7) persons, up to six (6)
of whom who meet the same eligibility requirements as do Candidates and at
least one (1) of whom is a local business person, bank manager or professional
person who is neither a Band member and who is unbiased an impartial, This
person may or may not be of First Nation ancestry.
11.2 No
one sitting on the Appeal Board may participate in the Election of By-election
whether as a candidate, nominator, seconder or voter.
11.3 The
Appeal Board shall supervise and administer all Election and By-election
Appeals in accordance with this Elections Act. The Appeal Board may
be reconvened to deal with any disciplinary matters that arise during an
elected official’s term of office and or to appoint a Chief Electoral Officer
if the person who holds that title is unable or unwilling to serve in that
capacity until the next General Election.
11.4 It
shall be the duty of the Appeal Board to certify the Election or
By- election results of the First Nation Council if there is an Appeal after an
Election or By-election.
12. The Appeal Procedure shall be as follows:
12.1 Any
candidate at the Election or By- election who gave or tendered his her vote at
the Election may, within fourteen ( 14) calendar days of the
Poll, appeal the Election if he/ she has reasonable and probable grounds for
believing that:
(a) an error or violation of the Election Act was made in the
interpretation or application of the Act which might have affected the outcome
of the Election;
(b) a Candidate who ran in the Election was ineligible to do so
pursuant to this Act; and/or
(c) there was a Corrupt Practice in contravention of the Election
Act.
12.2 An
Appeal of the Election or By-election may be launched in the
following manner:
(a) A Notice of Appeal in writing, duly verified by a properly sworn
Affidavit, shall be forwarded by registered mail or hand
delivered to the Chief Electoral Officer outlining the grounds for the Appeal.
(b) The Notice of Appeal must be received within fourteen (14)
calendar days of the Election.
(c) The Chief Electoral Officer shall, as soon as practicable,
deliver to each member of the Appeal Board a copy of the Notice of Appeal.
12.3 The Appeal
Board shall, within seven (7) days of receiving the complaint,
rule on whether to allow or disallow an Appeal Hearing based on the sufficiency
of the evidence presented in the complaint.
Sections 12.4-
12.10 govern appeal hearings and decisions.
12.8 The
Appeal Board shall within seven (7) days of holding an Appeal
Hearing, make one of the following decisions:
(a) deny the Appeal on the grounds that the evidence
presented did not indicate an infraction of the Act and so advise the Band and
the Complainant;
(b) uphold the Appeal but allow the Election to stand, on the
ground that the infraction could not reasonably be seen to have affected the
results of the Election; or
(c) uphold the Appeal and call for a new Election, within
twenty-one (21) days of the determination of the Appeal for all or some of the
positions which were contested, giving clear instructions to the election
official such that the reason for the original Appeal [ error or omission] is
corrected. There shall be no new or additional nominations beyond the slate
that ran in the Election or By-election that is the subject of Appeal but no
Candidate shall be required to let his/ her name stand in the new Election.
Candidates for Chief may not run for a position as Councillor and vice versa.
13.1 An Oath
of Office, a copy of which is attached hereto, shall be taken by each newly
elected Chief and Councillor before they assume office or exercise any of the
powers or discretions of that office.
[…]
[Sic throughout]
Email this Content