Docket: T-1401-16
Citation:
2016 FC 1320
Ottawa, Ontario, November 30, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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MORGAN PERRY
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Applicant
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And
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COLD LAKE FIRST NATIONS
CHIEF AND
COUNCIL, and ALAN ADAM, ELECTORAL OFFICER FOR COLD LAKE FIRST NATIONS
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
Morgan Perry has brought an application for
judicial review of a Band Council Resolution [BCR] passed by the Cold Lake
First Nations [CLFN] Chief and Council on August 18, 2016. The BCR cancelled a
new election for members of Council (but not the Chief) that had been ordered
by the CLFN Appeal Committee and confirmed by the CLFN Election Officer, Allan
Adam. The CLFN Appeal Committee ordered a new election because of its
determination that the existing CLFN Election Law did not comply with the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[2]
For the reasons that follow, I find that the
CLFN Appeal Committee exceeded its jurisdiction by declaring that the CLFN
Election Law contravenes the Charter, by purporting to amend the CLFN
Election Law, and by directing that a new election be held. The BCR passed by
the CLFN Chief and Council was therefore reasonable, and the application for
judicial review is dismissed.
II.
Background
[3]
On September 21, 2016, I issued an interlocutory
injunction to prohibit the CLFN Election Officer from holding an election for
members of the CLFN Council pending the determination of this application for
judicial review (Perry v Cold Lake First Nations, 2016 FC 1081). In that
decision, I summarized the facts giving rise to this dispute as follows:
[1] On June 22, 2016, an election was
held for Chief of the CLFN. On June 29, 2016, an election was held for Council
of the CLFN. Mr. Perry contested his removal from the list of candidates for
election to the CLFN Council on the ground that he had been improperly excluded
based on his residency.
[2] On August 11, 2016, the CLFN
Appeal Committee, constituted under the CLFN Election Law, released a report of
its decisions regarding several complaints it had received. The Appeal
Committee upheld Mr. Perry’s complaint. Despite finding no irregularity in the
conduct of the election, the Appeal Committee concluded that the CLFN Election
Law was deficient insofar as it excludes certain candidates and voters based on
their residency, descendancy, and age.
[3] The Appeal Committee directed the
Electoral Officer, Mr. Adam, to hold a new accelerated election for Council,
adding Mr. Perry as a candidate. Mr. Adam subsequently informed the CLFN Chief
and Council that he intended to carry out the Appeal Committee’s direction and
hold a new election for Council on August 25, 2016.
[4] On August 18, 2016, the CLFN
Chief and Council adopted a Band Council Resolution rejecting the Appeal
Committee’s direction that a new election be held. Mr. Adam was advised by the
CLFN Chief and Council that his duties as Electoral Officer had been fulfilled
and his services were no longer required.
[5] On August 22, 2016, Mr. Perry
filed an application for judicial review of the decision of CLFN Chief and
Council to issue the Band Council Resolution rejecting the Appeal Committee’s
direction that a new election for Council be held.
III.
Decision under Review
[4]
The BCR passed by the CLFN Chief and Council on
August 18, 2016 (Resolution #030-2016-2017) reads as follows:
1. The Report of the Appeal Committee has been carefully
considered and is duly noted by Chief and Council;
2. It is the conclusion of Chief and Council that:
a. The Appeals Committee acted outside its jurisdiction and
without authority in considering certain appeals outside its mandate under the
CLFN Election Law;
b. The Appeal Committee acted outside its jurisdiction and
without authority by:
i. purporting to strike down residency requirements,
“descendant” requirements, and age requirements under the CLFN Election Law;
and,
ii. purporting to order an “accelerated election” for all CLFN
Band Council positions, with a pre-fixed nomination list, to be held on August
25, 2016 with advance polls to be held in Edmonton on August 24, 2016;
c. The Appeal Committee has no authority under the CLFN
Election Law or otherwise to amend or strike any portions of the CLFN Election
Law;
d. Any amendment to the CLFN Election Law is the right and
responsibility of CLFN members, pursuant to section 20 of the CLFN Election
Law;
3. Accordingly, the conclusions of the Appeal Committee
regarding the merits or legality of the CLFN Election Law are respectfully
rejected and will not be followed;
4. The Accelerated Election purported to be ordered by the
Appeal Committee, without authority to do so, will not be called;
5. The Election Officer is directed to cease preparations for
an Accelerated Election and advised that he has not been appointed by Chief and
Council, as required under the CLFN Election Law, for the purposes of holding a
further election at this time;
6. Chief and Council shall, in consultation with CLFN members,
establish a Commission for Electoral Reform (the “Commission”).
7. The Commission shall continue to advance the process of
review, amendment and reform of the CLFN Election Law, through full
consultation with, and input from, Elders and CLFN members generally, in a
manner that is consistent with the Denesuline Language, traditions and customs
of CLFN.
8. The Commission shall draft and propose amendments to the
CLFN Election Law to be presented to CLFN members (the “Proposed Amendments”).
9. In accordance with section 20 of the CLFN Election Law,
CLFN members shall vote in a community referendum on whether to incorporate the
Proposed Amendments into the CLFN Election Law no later than December 31, 2017.
IV.
Issues
[5]
This application for judicial review raises the
following issues:
A.
What is the standard of review?
B.
Did the CLFN Appeal Committee have jurisdiction
to decide Charter questions and grant Charter remedies?
C.
Did the CLFN Chief and Council have jurisdiction
to pass the BCR?
D.
Was the passing of the BCR procedurally fair?
V.
Analysis
A.
What is the standard of review?
[6]
The decision of the CLFN Chief and Counsel to
pass the BCR is subject to review by this Court against the standard of
reasonableness (Crawler v Wesley First Nation, 2016 FC 385 at para 18 [Crawler];
Dunsmuir v New Brunswick, 2008 SCC 9 at paras 51-53). However, the
decision of the CLFN Chief and Council to pass the BCR was premised on its
assessment that the CLFN Appeal Committee exceeded its jurisdiction by
declaring the CLFN Election Law to be unconstitutional. This issue concerns the
proper interpretation of the CLFN Election Law, and is subject to review
against the standard of correctness (Salt River First Nation #195 (Salt
River Indian Band #759) v Martselos, 2008 FCA 221 at para 32; Hill v
Oneida Nation of the Thames Band Council, 2014 FC 796 at para 45).
[7]
Questions of procedural fairness are subject to
review against the standard of correctness (Crawler at para 19; Desnomie
v Peepeekisis First Nation, 2007 FC 426 at para 11; Weekusk v Wapass,
2014 FC 845 at para 10; Parenteau v Badger, 2016 FC 535 at para 36 [Parenteau]).
B.
Did the CLFN Appeal Committee have jurisdiction
to decide Charter questions and grant Charter remedies?
[8]
In Grandbois v Cold Lake First Nation,
2013 FC 1039 [Grandbois], Mr. Grandbois sought an order in the nature of
mandamus to compel the CLFN Chief and Council to comply with a decision
of the CLFN Appeal Committee. As in this case, the CLFN Appeal Committee
declared that the CLFN Election Law was unconstitutional. The Appeal Committee
further declared that all members of the CLFN of voting age were eligible to
vote and run for office, and that a new election must be held, but only after
the Election Law had been amended. Justice Heneghan found that the application
for judicial review involved “an examination of the
scope of the [Appeal] Committee’s decision-making authority and the effect of
the decision that it made in this case” (at para 13). She provided the
following analysis of the power of the Appeal Committee (at paras 14-15):
[14] The power of the Appeal Committee
derives from the Election Law of May 27, 2010. Clause 15 of that Law addresses
the “Appeals Committee”. Sections (A), (C) and (E) of that Law are relevant to
the present application and provide as follows:
A. The Appeal Committee shall respect and follow the Cold Lake
First Nations Election Law.
[…]
C. The Appeal Committee shall deal with the appeals at a public
meeting of the electors of the Cold Lake First Nations.
[…]
E. The Appeal Committee can ask any person from Cold Lake First
Nations to make comments upon the appeal and to have a clear position on the
traditional laws of the Cold Lake First Nations people.
[15] Clause 14 deals with appeals in
general. Sub-clauses (A), (C) and (G) are relevant and provide as follows:
A. Any protest for the election of the Chief and Council must be
made within thirty (30) days of the election.
[…]
C. All protests must outline the reasons for the appeal based upon
the traditional election law of the Cold Lake First Nations.
[…]
G. All appeals shall be final at the completion of the review by
the committee.
[9]
Justice Heneghan concluded that the CLFN Appeal
Committee was authorized only to “deal” with
appeals “at a public meeting” (at para 16). She
found that the CLFN Election Law did not “authorize the
Committee to make a decision. The Appeal Committee is directed to “respect and
follow” the CLFN Election Law but no specific remedies are identified, for
implementation after an appeal.” She contrasted the CLFN Election Law
with the election laws of other First Nations which provided greater clarity
regarding the scope of an appeal committee’s powers (at para 22). Justice
Heneghan concluded with the following observation:
[23] In my opinion, having regard to
the broad language of the Election Law, the role of the Election Committee is
limited to respecting and following the Election Law and to identifying the
traditional laws of the CLFN.
[24] There is no evidence in the record
about those traditional laws and the relationship, if any, with the Election
Law and the role of the Election Committee.
[10]
The CLFN Chief and Council take the position
that this case is virtually indistinguishable from Grandbois, and should
be decided accordingly. I agree.
[11]
Mr. Perry relies on Jacko v Cold Lake First
Nation, 2014 FC 1108 [Jacko], where Mr. Jacko sought judicial
review of the CLFN Appeal Committee’s decision to remove him from his position
as a CLFN Councillor. The Appeal Committee found that Mr. Jacko was ineligible
to run for Council under the CLFN Election Law because he did not live on
reserve. Justice Russell made the following preliminary observation about the
governing provisions of the CLFN Election Law:
[50] There is no obvious and clear
answer to the central issue raised by this application. […] The Election Law
that is supposed to govern this situation is unclear and difficult to apply,
and there is a lack of evidence on some key issues. The Court is left to do the
best it can on a very unsatisfactory record.
[12]
Justice Russell identified the central issue in Jacko
as “whether the Appeals Committee had the jurisdiction
to remove him in the way that it did” (at para 64). He continued as
follows:
[73] This is one of the areas where
there is a lack of evidence. In my view, there is nothing before me to suggest
that the Election Law does not permit this way of proceeding, or that it is not
the way that the Election Law has been consistently interpreted in practice.
The fact that someone can be kept off the ballot for ineligibility by the
Elections Officer at the nomination stage does not mean that an appeal based
upon ineligibility cannot be made to the Appeal Committee following the
election.
[74] Respecting and following the
Election Law does not mean that there is only one possible interpretation of
that law, and I cannot say, on the evidence before me, that the Appeal
Committee unreasonably interpreted the Election Law and assumed jurisdiction to
deal with the complaint against the Applicant in the way that it did.
[75] I note that in Grandbois,
above, the Court reached a different conclusion regarding the Appeal
Committee’s jurisdiction and powers. Contrary to that case, I have evidence
before me that suggests the Appeal Committee’s jurisdiction is not limited to
“an administrative or advisory” role (Grandbois, above, at para 26). On
cross-examination, the Chair of the Appeal Committee, Mr. Makokis, provided
evidence regarding the authority of the Appeal Committee based on the Election
Law and the CLFN’s traditional practice (Applicant’s Record at 132-134). I have
no evidence from the Applicant to rebut Mr. Makokis’ evidence regarding the
traditional jurisdiction and powers of the CLFN Appeal Committee. The Cold Lake
First Nations Chief and Council obviously feel that the Appeal Committee does
have this power because they are resisting this application.
[76] As a consequence, I cannot say
that the Applicant has established a reviewable error and I must dismiss the
application.
[13]
In Jacko, there was no dispute that the
CLFN Appeal Committee had the power to consider an appeal concerning Mr.
Jacko’s eligibility to run for Council. The Appeal Committee concluded that he
was not. The central question in Jacko was whether, given this
conclusion, the Appeal Committee could order that Mr. Jacko be removed from his
position. Justice Russell found, based on the evidence before him, that there
was nothing to suggest that the Election Law did not permit this way of
proceeding, or that it was not the way that the Election Law had been
consistently interpreted in practice.
[14]
This case is different. The central issue here
is whether the CLFN Appeal Committee had the power to decide whether the CLFN
Election Law complied with the Charter, and to grant Charter
remedies.
[15]
In Grandbois, Justice Heneghan was
persuaded that the CLFN Appeal Committee did not have the power to declare that
the CLFN Election law violates the Charter or to grant Charter
remedies:
[17] The Respondents argue that the
jurisdiction of the Appeal Committee is limited to the areas over which the
CLFN assigned it authority, through the Election Law. In this regard, the
Respondents rely on the decision in Rio Tinto Alcan Inc. v. Carrier Sekani
Tribal Council, [2010] 2 S.C.R. 650 at paragraphs 55 and 60.
[18] The Respondents also rely on the
decision in R. v. Conway, [2010] 1 S.C.R. 765 at paragraphs 81-82 where
the Supreme Court of Canada held that if a tribunal has explicit or implied
jurisdiction to determine questions of law, it can consider and apply the Charter,
including Charter remedies, unless it is clearly shown that the legislation
intended to exclude the Charter from the tribunal’s jurisdiction.
[19] In my opinion, the arguments
advanced by the Respondents as to the lack of jurisdiction of the Appeal
Committee to grant the remedies that it did and to order a new election are more
persuasive than the submissions advanced by the Applicant.
[16]
In R v Conway, [2010] 1 S.C.R. 765, the
Supreme Court of Canada provided the following analytical framework for
determining whether an administrative tribunal has the power to grant Charter
remedies:
[81] Building on the jurisprudence,
therefore, when a remedy is sought from an administrative tribunal under s.
24(1), the proper initial inquiry is whether the tribunal can grant Charter
remedies generally. To make this determination, the first question is whether
the administrative tribunal has jurisdiction, explicit or implied, to decide
questions of law. If it does, and unless it is clearly demonstrated that the
legislature intended to exclude the Charter from the tribunal’s
jurisdiction, the tribunal is a court of competent jurisdiction and can consider
and apply the Charter — and Charter remedies — when resolving
the matters properly before it.
[82] Once the threshold question has
been resolved in favour of Charter jurisdiction, the remaining question
is whether the tribunal can grant the particular remedy sought, given the
relevant statutory scheme. Answering this question is necessarily an exercise
in discerning legislative intent. On this approach, what will always be at
issue is whether the remedy sought is the kind of remedy that the legislature
intended would fit within the statutory framework of the particular tribunal.
Relevant considerations in discerning legislative intent will include those
that have guided the courts in past cases, such as the tribunal’s statutory
mandate, structure and function (Dunedin [R v 974649 Ontario Inc,
2001 SCC 81]).
[17]
Based on the evidence before me, I am satisfied
that the CLFN Election Law does not confer upon the CLFN Appeal Committee a
jurisdiction to decide questions of law. Its mandate is only to “respect and follow the Cold Lake First Nations Election Law”.
Furthermore, the Charter remedies granted by the Appeal Committee in
this case, namely declaring the CLFN Election Law to be unconstitutional and
purporting to amend the law, cannot be reconciled with the applicable
legislative scheme. The CLFN Election Law itself provides for a mechanism to
amend the Election Law, and requires a referendum confirming the approval of
70% of the electors.
[18]
When the CLFN Chief and Council passed the BCR
in this case, it simultaneously issued a statement in which it acknowledged
that the CLFN Election Law should be “reviewed,
amended, and reformed”. The Chief and Council also stated that “it is the right and responsibility of the CLFN Members to
review, amend, and reform our Election Law. No one else has the right to do
this for us”. The Chief and Council announced the establishment of a
Commission for Electoral Reform “to advance the process
of review, amendment, and reform of the Election Law with our Elders and
community members in a manner that is consistent with our Denesuline Language,
traditions, and customs of the Cold Lake First Nations.”
[19]
I agree with the CLFN Chief and Council that a
determination of the constitutionality of the CLFN Election Law should not be
made lightly, nor without the benefit of proper notice, an adequate evidentiary
record, and full argument. When courts have found a First Nation’s election law
to violate s 15(1) of the Charter in a manner that cannot be justified
by s 1, they have typically stayed declarations of unconstitutionality to
enable the community to remedy the breach in accordance with its own laws and
traditions (Esquega v Canada (Attorney General), 2008 FCA 182 at para
11; Thompson v Leq’á:mel First Nation, 2007 FC 707 at para 25; Cameron
v Canada (Minister of Indian Affairs and Northern Development), 2012 FC 579
at paras 72–73 and 104).
[20]
Even if the CLFN Appeal Committee had
jurisdiction to decide Charter questions, and made its decision
following a consideration of legal arguments based on a proper evidentiary
record (none of which occurred here), the appropriate remedy would have been to
suspend its declaration for a reasonable period of time to enable the CLFN to
fashion a solution in keeping with its own laws and traditions. Instead, the
Appeal Committee found that this Court’s decision in Jacko “strongly suggests that the Cold Lake First Nation Election
Appeals Committee has the jurisdiction and authority and even the duty to enact
the Election Law and rule or make law which is consistent with the Charter specifically
as it relates to Fairness and Equality” [emphasis
original]. This interpretation of Jacko is plainly wrong. The Appeal
Committee’s mandate to “respect and follow” the
CLFN Election Law cannot be read as conferring upon the Appeal Committee a
power to amend the law or enact a new one. Nor does Jacko suggest that
it might.
C.
Did the CLFN Chief and Council have jurisdiction
to enact the BCR?
[21]
According to Mr. Perry, band councils may enact
resolutions only for the purposes specified in ss 81, 83 and 85.1 of the Indian
Act, RSC 1985, c I-5, or as explicitly authorized by the CLFN Election Law.
He says that these powers do not include the authority to overturn a decision
of the CLFN Appeal Committee. He argues that “the
Appeal Committee is bound by the Constitution and the Appeal Committee’s
decision on the appeal is final”, citing s 14(G) of the CLFN Election
Law.
[22]
The CLFN Chief and Council respond that this is
an “impoverished and antiquated” view of the
powers that may be exercised by a band council. The CLFN Chief and Council rely
upon this Court’s decision in Gamblin v Norway House Cree Nation Band
Council, 2012 FC 1536, where Justice Mandamin found at paragraph 34 that “[t]he capacity of [a First Nation] to make laws concerning
matters of leadership and governance are not derived from the Indian Act
or other statutory power. Rather it is a result of the exercise of the First
Nation’s aboriginal right to make its own laws concerning governance.”
[23]
Nothing turns on this point. Given that the CLFN
Appeal Committee was without jurisdiction to decide Charter questions or
to grant Charter remedies, the CLFN Chief and Council could have chosen
a less formal means of rejecting the Appeal Committee’s conclusion that the CLFN
Election Law was unconstitutional and its claim to have amended the law. Or, as
in Grandbois, it could have done nothing beyond instructing Mr. Adam not
to proceed with a new election.
[24]
The CLFN’s passing of a BCR promoted the
interests of transparency and accountability within the community, and also
underscored the gravity of the situation. I can find no fault with the decision
of the CLFN Chief and Council to proceed in this manner.
D.
Was the enactment of the BCR procedurally fair?
[25]
Mr. Perry argues that his right to procedural
fairness was breached because he received no notice of the Council meeting on
August 18, 2016 that preceded the adoption of the BCR. He says he was entitled
to know the case against him, and to be given an opportunity to be heard
(citing Parenteau at para 49).
[26]
The CLFN Chief and Council respond that by
passing the BCR, Council was “exercising a policy or
legislative function pursuant to its governance authority and ensuring
compliance with the Election Law’s amendment process.” They argue that
Council was not engaged in “a review of the Appeal
Committee’s decision”, nor was it “making an
administrative decision that directly engaged Mr. Perry’s rights or interests”
and accordingly, no duty of procedural fairness arose (citing Canadian Assn
of Regulated Importers v Canada (Attorney General ), [1994] 2 FCR 247 at
para 18 (CA); Martineau v Matsqui Institution Disciplinary Board, [1980]
1 SCR 602 at 628; Authorson v Canada (Attorney General), 2003 SCC 39).
[27]
I agree with the CLFN Chief and Council that
passing a BCR in these circumstances was an exercise of the Council’s policy or
legislative function, and no duty of procedural fairness was owed to Mr. Perry.
Furthermore, the decision of the CLFN Appeal Committee did not confer any right
on Mr. Perry personally. Its purported amendment of the CLFN Election Law,
which was made without authority, affected the interests of a great many
people. Some were identified by the Appeal Committee, but most were not.
[28]
In Knight v Indian Head School Division No.
19, [1990] 1 S.C.R. 653 at paragraph 24, the Supreme Court of Canada held that
the existence of a duty of procedural fairness depends on a consideration of
three factors: (i) the nature of the decision to be made by the administrative
body; (ii) the relationship existing between that body and the individual; and
(iii) the effect of that decision on the individual’s rights. None of these
factors suggest that the CLFN Chief and Council owed a duty of procedural
fairness to Mr. Perry when it rejected the CLFN Appeal Committee’s declaration
that the CLFN Election Law did not comply with the Charter.
VI.
Conclusion
[29]
The CLFN Appeal Committee exceeded its
jurisdiction by declaring the CLFN Election Law to be unconstitutional, by purporting
to amend the Election Law, and by directing that a new election be held. The
BCR passed by the CLFN Chief and Council to cancel the new election was
therefore reasonable.
[30]
Mr. Perry notes that questions concerning the
constitutionality of the CLFN Election Law have existed since at least 2010.
The CLFN’s election results were challenged in this Court in 2010 and again in
2013. On both occasions, the Court was left with the impression that review and
reform of the Election Law were imminent. Still the Election Law remains
unchanged.
[31]
The CLFN Appeal Committee stated that it was “asked out of frustration and inaction to move the 30 year
old, out-dated document into the future, using Charter and Federal Court
decisions to buttress the need for change.” If the present reform
initiative fails to produce results, then the CLFN Chief and Council may be
faced with an action before a court of competent jurisdiction to settle the
matter once and for all. It is in the interests of the CLFN Chief and Council,
and all members of the CLFN community, to support the work of the
recently-established Electoral Reform Commission, and to ensure that its
efforts bear fruit.
[32]
The application for judicial review is
dismissed. If the parties are unable to agree on costs, they may make written
submissions to the Court, not exceeding three pages, within 14 days of the date
of this Judgment.
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