Date:
20080211
Docket: A-45-07
Citation: 2008 FCA 52
CORAM: NOËL
J.A.
SHARLOW
J.A.
RYER
J.A.
BETWEEN:
ERMINESKIN CREE NATION and
ERMINESKIN TRIBAL COUNCIL
Appellants
and
GEORGE LESLIE MINDE
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1]
This is an
appeal of a decision of Lemieux J. of the Federal Court (the “Applications
Judge”), granting the respondent’s (“the respondent” or “Mr. Minde”) judicial
review application and quashing the resolution adopted by the Ermineskin Tribal
Council (the “Tribal Council”) on December 4, 2005, confirming that Mr. Minde
had vacated his office as Chief pursuant to the Ermineskin Tribal Constitution,
on the basis that the Tribal Council had adopted this resolution without
affording Mr. Minde the right to be heard.
[2]
The
appellants contend that Mr. Minde’s judicial review application was directed
against the wrong decision since the determination that he had vacated his
office was not made by the Tribal Council but by the Ermineskin Elders Council
(the “Elders Council”). They submit that the authority to dismiss Mr. Minde was
within the exclusive authority of the Elders Council.
[3]
The
parties proceeded before the Applications Judge on the basis that the
applicable legislation is the Ermineskin Tribal System Constitution and Bylaws,
as appended to the affidavit of J. Wilton Littlechild, Q.C., a lawyer acting
for the Ermineskin Cree Nation (the “Band Constitution”) (Appeal Book, Vol. II,
p. 400). The Applications Judge in the course of his reasons referred in
particular to the Bylaw 83-01, as amended, and in particular Divisions A and B
which deal respectively with the Rules of Conduct for the Chief and Council
members and with the qualification, appointment and duties of members of the
Elders Council. The relevant portions of Bylaw 83-01 are reproduced as Appendix
“A” to this decision.
RELEVANT FACTS
[4]
Mr.
Minde was the Chief of the Ermineskin Cree Nation. He was first elected in 2002
and again on August 31, 2005, after the process which led to his dismissal was
commenced but before it was completed.
[5]
Since
1983, the Chief and Tribal Council members of the Ermineskin Cree Nation are
chosen by Band custom and therefore Band elections are not governed by the
provisions of the Indian Act (Sections 74-79).
[6]
In
apparent compliance with section 12 of the Rules of Conduct, Mr. Minde entered
into a Memorandum of Agreement with the Elders Council (then called the Elders
Senate) whereby he agreed (amongst other things) to the following (Appeal Book,
Vol. II, p. 318):
As
Chief, I have myself knowledge about the responsibilities to the Ermineskin
Cree Nation Membership and hereby agree to my office becoming vacant for
violations to rules as set out with and in the Ermineskin Tribal System. …
Section 12 requires that the Chief and
councillors upon being sworn and assuming their function signify their
agreement to abide by the Rules of Conduct by signing this Memorandum in public
at a general membership meeting. According to the Affidavit of George
Ermineskin, the Memorandum of Agreement was signed when Mr. Minde swore his
oath of office (Appeal Book, Vol. II, p.2,
para 3). It is not clear whether this took place at the onset of Mr. Minde’s
first or second term.
[7]
On
August 8, 2005, the Tribal Council passed a resolution extending the
composition of the Elders Council to all Elders of the Ermineskin Cree Nation
and the quorum to 9.
At the time when this resolution was passed, Bylaw 83-01, Division B (Sections
1(b) and 2(e)) provided for a composition of 5 with a quorum of
3.
[8]
On August
12, 2005, prior to Mr. Minde’s re-election, an Elders Council was constituted
during a meeting attended by 34 Elders (out of 77), and 7 of the 9 members of the
Tribal Council. Relying on the aforesaid resolution modifying the composition
and quorum of the Elders Council, 9 Elders (and 3 alternates) were selected
amongst all the Elders of the Ermineskin Cree Nation to sit as members of the
Elders Council and conduct an investigation into alleged improprieties by Mr.
Minde and another member of the Tribal Council in a financial transaction
involving Ermineskin Cree Nation funds (Reasons, para. 35).
[9]
The exact
words used by the Elders Council to describe its mandate are as follows (Appeal
Book, Vol. II, p. 608):
…, the
appointed Elders Council (quorum of 9) shall base on its findings, pursue the
following disciplinary action:
a. As per the
Bylaw Providing for Conduct of the Ermineskin Council No. E83-01 Section B
paragraph 2,
b. Bylaw E86-01
Ermineskin Tribal Election Custom (Election Regulations) Section 28 paragraph
G.
A final report shall be
presented along with the facts and infractions listed which may enforce the
Elders Council to enact the disciplinary action upon the said individuals
responsible for the said infractions.
[10]
The
transaction under investigation involved the issuance of a series of cheques
signed by
Mr. Minde and co-signed by Bob Small, an elected Tribal councillor at the time,
totalling $149,000.00. The amount was used towards the purchase of new
equipment. It is alleged that the payment was made at an inflated price to an
entity for which Mr. Minde’s uncle worked as a commissioned agent, and had the
potential of benefiting Mr. Minde. To this day, the purchased equipment has not
been received and the payment has not been recovered.
[11]
Bob Small,
the councillor who co-signed the cheques comprising the payment of $149,000.00,
voluntarily appeared before the appointed members of the Elders Council when he
was requested to do so. He answered the questions put to him and was eventually
removed from office and barred from seeking elected office for a period of 10
years.
[12]
The
salient actions taken by the Elders Council in the course of this investigation
and their attempts to obtain Mr. Minde’s version of the events are summarized
below:
a) On August 23, 2005, the appointed members
sent Mr. Minde a Notice of investigation/suspension stating that "Upon
reviewing the information regarding the process in which the $149,000
transaction occurred ... the nine appointed Ermineskin Elders Council do hereby
suspend [Chief Minde and Bob Small] suspending all authorities and powers and
or privileges effective immediately such suspension shall be without pay until
such time as the investigation has been completed and "pursuant to section
B, Elders Council paragraph II duties [of the Code of Conduct] directed the
Tribal Council to proceed with the direction immediately to enforce this
suspension effective immediately." (Appeal Book,
Vol. II, p. 324);
b) On
August 24, 2005, the appointed members issued Chief Minde a first invitation to
appear before them. On September 1, 2005, a second notice to appear was served
on Mr. Minde (Appeal Book, Vol. II, pp. 325, 326);
c) On
September 8, 2005, the Chairman of the Elders Council, George P. Ermineskin,
wrote to Mr. Minde reminding him that he failed to appear on two occasions
(Appeal Book, Vol. II, p. 330);
d) On
September 22, 2005 the Chairman of the Elders Council gave Mr. Minde a further
notice to attend and advised him that if he did not appear, he would forfeit
his position as Chief. A further letter was sent on October 17, 2005 advising
Mr. Minde that he was still under suspension and that he was required to appear
before the appointed members no later than October 31, 2005. This was followed
by a final notice to appear issued on October 27, 2005 (Appeal Book, Vol. II,
pp. 330, 342 and 352);
e) On
October 31, 2005, the appointed members gave Mr. Minde notice that he had
vacated his office as Chief (Appeal Book, Vol. II, p. 358);
f) On
November 14, 2005, the Elders Council advised Mr. Minde of the following
action:
Therefore, we the appointed
Elders Council are requesting that the Ermineskin Tribal Council enforce this
decision also by Band Council motion within the true context of their authority
vested by the Ermineskin Constitution, policies and/or bylaws, customs and
traditions of the Ermineskin First Nation (Appeal Book, Vol. II, p. 361).
[13]
There is
no evidence that Mr. Minde responded to any of the communications from the
Elders Council.
[14]
On
December 4, 2005, at a special meeting of the Tribal Council which Mr. Minde
did not attend and of which he had no notice (Affidavit of Mr. Minde, Appeal
Book, Vol. I, p. 50, para. 9), a resolution (the “December 4 Band Council
Resolution”) was passed in the following terms:
Be it
resolved that at a duly convened special meeting, we the Ermineskin Tribal
Council make the following decision in accordance to the Council Code of
Conduct within the Ermineskin Tribal Constitution;
Whereas, the
Ermineskin Tribal Council has accepted the recommendation by the Ermineskin
Elders Council to implement Section 15 on October 31, 2005 and;
Whereas,
George L. Minde has failed to appear before the Ermineskin Elders Council
within the specified timeline allotted and;
Therefore,
the Ermineskin Tribal Council now exercise its authority in reference to
Section 11, where George L. Minde has vacated his position as Chief, in accordance
to violation of Sections: 4, 5 & 9 of the Council Code of Conduct within
the Ermineskin Tribal Constitution.
[15]
On
December 16, 2005, the
Ermineskin Cree Nation and the Tribal Council filed a statement of claim in the
Alberta Court of Queen's Bench against Mr. Minde alleging the following:
i. At
the time of taking his oath of office, he signed an agreement dated October 27,
2004 with the Ermineskin Elders Senate whereby he agreed in the event he
violated the Rules of the Ermineskin Tribal System, his office would be deemed
to become vacant;
ii. He
breached the Code of Conduct and thereby breached the agreement he signed on
October 27, 2004;
iii. He
breached his fiduciary duty in his capacity of Chief in his dealings with an
auto dealer and his involvement in the fraudulent purchase of heavy equipment
at inflated values;
iv. He
has committed a breach of trust by conspiring to have the ECN purchase the
heavy equipment; and
v. He
is guilty of deceit and misrepresentation in his dealings with a Tribal member
and in arranging for three cheques to be endorsed and turned over to the auto
dealer without the knowledge and consent of the Tribal Council.
[16]
On
January 30, 2006, Mr. Minde sought judicial review of the December 4 Band
Council Resolution. He sought relief on the basis that it was adopted by the
Tribal Council in breach of procedural fairness in that he was not given any
notice of the Tribal meeting, did not know what action was being proposed and
did not know the allegations made against him and had no opportunity to defend
himself.
[17]
On
February 8, 2006, the Tribal Council obtained an interlocutory injunction from
the Alberta Court of
Queen's Bench (Belzil J.) preventing
Mr. Minde from entering the Ermineskin Cree Nation offices and conducting
financial transactions on behalf of the Ermineskin Cree Nation. In addition,
Mr. Minde was ordered not to interfere with Ermineskin Cree Nation staff.
[18]
On October
31, 2006, reasons were rendered by the Applications Judge in this case holding
that the Tribal Council had breached its obligations of procedural fairness in
adopting the December 4 Band Council Resolution. However, he postponed the
issuance of any order pending further submissions by the parties.
[19]
On
December 20, 2006, the Applications Judge ordered that the December 4 Band
Council Resolution be quashed.
[20]
However,
on April 11, 2007, Pelletier J.A. of the Federal Court of Appeal ordered a stay
of the Applications Judge’s decision until the present appeal was heard and
disposed of (2007 FCA 16). He ruled that irreparable harm had been established
for the following reasons (para. 4):
…
The appellants applied to the Alberta Court of Queen's Bench for an injunction
restraining the respondent from entering the Band office. [Mr. Minde] obtained
an adjournment of that application upon giving the Court an undertaking to stay
away from the Band office pending the disposition of the injunction
application. [Mr. Minde] breached his undertaking, entered the Band office and
arranged for the payment to Band members of approximately $1.8 million, an
expenditure which was not authorized and for which no budget existed. There
were serious financial repercussions for Band operations. Largely on the
strength of this incident, Mr. Justice Belzil decided that the appellants would
suffer irreparable harm if an injunction was not granted. I am of the same view
with respect to the motion for a stay of execution which is before me.
[21]
As matters
presently stand, the December 4 Band Council Resolution confirming that Mr.
Minde has vacated the office of Chief remains in effect, as does the injunction
issued by the Alberta Court of Queens Bench preventing Mr. Minde from entering
the Band offices and conducting financial transactions on behalf of the Band.
FEDERAL COURT DECISION
[22]
In assessing
whether the Tribal Council was in breach of the rules of procedural fairness,
the Applications Judge applied the standard of correctness. He concluded that
the Tribal Council had violated procedural fairness in failing to hear Mr.
Minde before adopting the December 4 Band Council Resolution (Reasons, para.
44):
Although it is
well-recognized the content of the rules of procedural fairness vary depending
on the circumstances, in my view, there can be no question the applicant was
entitled to procedural fairness in respect of the [Band Council Resolution
“BCR”] of December 4, 2005 which declared that, in accordance to the Tribal
Council Code of Conduct within the Ermineskin Tribal Constitution, Chief Minde
had vacated his position as Chief. His right to remain in office was directly
affected. For this proposition, I need only cite the well-known decisions of
the Supreme Court of Canada in Nicholson
v. Haldeman-Norfolk (Regional Municipality) Commissioners
of Police, [1979] 1
S.C.R. 311, Cardinal v. Kent Institution, [1985] 2
S.C.R. 643 and Lakeside Colony of Hutterian
Bretherin v. Hofer, [1992] 3
S.C.R. 165.
[23]
In so
holding, the Applications Judge dismissed the appellants’ contention that the
decision to dismiss Mr. Minde had been made by the Elders Council, which afforded
Mr. Minde numerous opportunities to be heard, and that Mr. Minde sought
judicial review of the wrong decision. According to the Applications Judge the
authority to discipline the Chief and declare his office vacated rested with
the Tribal Council.
[24]
In coming
to this conclusion, the Applications Judge first relied on four factors that
are extrinsic to the Band Constitution pursuant to which Mr. Minde was held to
have vacated his office as Chief (Reasons, paras. 53-66):
1. there was
no evidence that the amendment to the composition and quorum of the Elders
Council was ever ratified by a majority of the general membership of the
Ermineskin Cree Nation and so, the actions of the Elders Council were invalid;
2. the
evidentiary record showed that the appointed members to the Elders Council did
not consider that they had the authority to issue a binding decision in respect
of Mr. Minde;
3. the Tribal
Council was estopped from advancing before the Court the proposition that the
Tribal Council was not the decision-maker since they had argued the contrary
before the Alberta Court of Queen’s Bench and;
4. the
wording of the Band Council Resolution showed that the Tribal Council was
acting pursuant to its own authority to dismiss Mr. Minde as Chief.
[25]
The Applications
Judge then turned his attention to the relevant provisions of the Band
Constitution. He noted that matters of tenure to the elected offices of the
Chief and Council members were designed to be handled at the first level by the
Tribal Council itself with an appeal to the Elders Council, whose decision
would be final. This suggests that the Elders Council was empowered to decide
in the first instance that the Chief has vacated his office (Reasons,
paras. 67, 68).
[26]
The
Applications Judge did note that the Rules of Conduct contain provisions to the
effect that the Chief and any councillor are considered to have abandoned their
duties and vacated their office upon performing certain prohibited acts,
without more. However, he inferred that a right to a hearing before the Tribal
Council also exists in such circumstances (Reasons, para. 69). Finally, he held
that no effect was to be given to the agreement signed by Mr. Minde upon
becoming Chief of the Ermineskin Cree Nation (Reasons, para. 71).
POSITION OF THE PARTIES
[27]
In support
of their appeal, the appellants contend that the Applications Judge failed to
give effect to the Ermineskin Tribal Constitution and the Rules of Conduct
applicable to the Chief and Council. In particular, the appellants submit that
the Elders Council has exclusive authority to monitor and discipline the Chief,
as necessary from time to time (Bylaw 83-01, Division B, Section 2(a)),
and that Mr. Minde was held to have vacated his office pursuant to the exercise
of that authority.
[28]
According
to the appellants, the subsequent resolution adopted by the Tribal Council
confirming that Mr. Minde had forfeited his office was only required for
enforcement purposes as the communication of November 14, 2005 makes clear (see
para. 12 f) above). However, the decision was that of the Elders Council, and
was binding on everyone including the Tribal Council and its members. The
appellants contend that the Applications Judge erred in concluding otherwise.
[29]
The
appellants further allege that the Applications Judge committed an error in law
when he held that the Elders Council’s actions were invalid by reason of its
composition and quorum. According to the appellants the composition and quorum
provided for in Bylaw 83-01, Division B is directory and no injustice can
result from extending the composition of the Elders Council to include all
Elders and operating with a quorum of 9.
[30]
Finally,
the appellants contend that the Applications Judge further erred, when he held
that the Memorandum of Agreement, signed by Mr. Minde when he took his oath,
had only ceremonial value.
[31]
Mr. Minde
for his part raises as a preliminary matter the argument that the decision of
the Elders Council, if it was the decision-maker, is not amenable to judicial
review since the Elders Council is not a federal board commission or other
tribunal within the meaning of section 18 of the Federal Courts Act.
Otherwise, Mr. Minde supports the decision of the Applications Judge, and his
conclusion that the authority of the Elders Council does not extend to
terminating or disciplining the chief.
ANALYSIS AND DECISION
[32]
The
standard of review of the decision of the Applications Judge is correctness
with respect to questions of law and reasonableness with respect to findings of
mixed fact and law (Housen v. Nikolaisen, [2002] 2 S.C.R. 235). It is
well established that a review of whether procedural fairness was followed in a
given situation is evaluated on the standard of correctness (Canadian Union
of Public Employees v. Ontario (Minister of Labour), [2003] 1
S.C.R. 539, at para. 100). The question to be answered in this appeal is whether
it was open to the Applications Judge to hold that the decision declaring that
Mr. Minde had vacated his office was that of the Tribal Council and not the
Elders Council. For the reasons that follow, I am of the view that this
question ultimately stands to be decided on the proper construction of the Band
Constitution, an exercise which calls for a standard of correctness.
[33]
With respect to Mr. Minde’s preliminary argument that the
Elders Council, if it was the decision-maker, is not amenable to judicial
review because it is not a federal board, commission or other tribunal within
the meaning of section 18 of the Federal Courts Act, I need only say
that the jurisdiction of the Federal Court under section 18 does not depend on
form, but is based on the authority to decide. To the extent that the Elders
Council is empowered to and did terminate Mr. Minde as Chief pursuant to the
Band Constitution, its decision can be reviewed pursuant to section 18.
[34]
In the course of his reasons, the Applications Judge
cautioned that construing the Band Constitution was difficult and any
conclusion had to be reached with a caveat given that it had gaps, and needed
to be updated. He added (Reasons, para. 66):
…
Indeed, that was the view expressed by Mr. Littlechild when First Reading was
given to a proposed updating of the Custom Law providing for the conduct of the
Ermineskin Council. At respondents’ record, page 84, Mr. Littlechild
stated “this bylaw went back to 1983 and needed to be updated in a manner that
makes sense and was practical.”
[35]
Because of these difficulties, which are very real, the
Applications Judge first looked to factors extrinsic to the Band Constitution
to arrive at his decision. First, he noted that the resolution of August 8,
2005, purporting to extend the composition and quorum of the Elders Council was
never ratified by the membership of the Band. As a result the Elders Council
operated in breach of the requirements of Bylaw 83-01, which required a
composition of 5 members and a quorum of 3. The Applications Judge went on to
hold that this requirement was mandatory (as opposed to directory), and that
accordingly the actions of the Elders Council were invalid from start to finish
(Reasons, paras. 53-58).
[36]
In my respectful view, this would be a relevant
consideration if the decision under review was that of the Elders Council.
Furthermore, I question the Applications Judge’s conclusion that the actions
taken by the Elders Council in the course of inquiring into Mr. Minde’s
financial dealings are invalid. His exact reasoning is that the actions in
question were taken by an Elders Council composed of all the Elders of the
Ermineskin Cree Nation operating with a quorum of 9, at a time when the
mandatory requirement set out in Division B of Bylaw 83-01 provided for a
composition of 5 with a quorum of 3 (Reasons, paras. 54, 55).
[37]
The question whether a legal requirement is mandatory (as
opposed to directory) such that actions which fail to comply are to be
disregarded, must be analyzed in light of the purpose of the legislation under
consideration and the particular action sought to be invalidated. The question
to be answered in the present context is whether ignoring the actions taken by
the Elders Council for failure to comply with Bylaw 83-01, promotes or defeats
the object of the Ermineskin Tribal Constitution (see Sparvier v. Cowessess
Indian Band (T.D.), [1993] 3 F.C. 142 at
para. 22 and the cases quoted at paras. 23, 24 and 25).
[38]
The Applications Judge did not address this question. If he
had, he might well have come to a different conclusion. I have in mind in
particular the fact that based on this record, it seems that the broadening of
the composition of the Elders Council to include all Elders, and the extension
of the quorum from 3 to 9 was intended to give the Elders Council more
legitimacy (not less) in light of the importance of the mandate undertaken.
There is no evidence that the increase in the number of persons on the Elders
Council, or the concurrent increase in the quorum was adopted for an improper
purpose or that it caused or was intended to cause Mr. Minde prejudice. In
these circumstances, I doubt that the actions of the Elders Council can be set
aside on the sole ground that it performed its functions with an extended
composition and quorum. However, this question need not be answered at this
time given that the decision of the Elders Council is not the subject of the
judicial review brought by Mr. Minde.
[39]
The second extrinsic factor on which the Applications Judge
relied is the state of mind of the members of the Elders Council. In his view,
it is telling that the members did not consider that they had the authority to
make a final decision, since they considered that their decision had to be
ratified by the Tribal Council (Reasons, paras. 59, 60).
[40]
Along the same lines, the Applications Judge relied on the
position taken by the appellants before the Alberta Court of Queen’s Bench. He
held that the appellants were estopped from taking the position that the Elders
Council was the decision-maker in the proceeding before him given that they had
taken a contrary position before the Alberta Court of Queen’s Bench (Reasons,
para. 63). In so holding, the Applications Judge was apparently referring to
the following statement in the reasons of Belzil J. (2006 ABQB 118):
35. The
[appellants] argue that [Mr. Minde] was removed as ECN Chief by virtue of
passage of a resolution of the [Tribal Council] on December 4, 2005.
[41]
Counsel for the appellants stands by this passage. His
position has always been that the decision reached by the Elders Council to the
effect that Mr. Minde had vacated is office had to be enforced by a resolution
of the Tribal Council. He contends however that the decision of the Elders
Council was final and binding on the Tribal Council. In my respectful view, the
fact that the Elders Council considered that a resolution of the Tribal Council
was necessary in order to enforce its decision does not resolve anything.
[42]
Finally, the Applications Judge found that the wording of
the December 4 Band Council Resolution indicates that the Tribal Council passed
it in the exercise of its own authority to dismiss Mr. Minde as Chief (Reasons,
para. 64). He emphasized that part of the resolution which reads:
“…
the Tribal Council … now exercise its authority in reference to Section 11,
where George L. Minde has vacated his position as Chief, in accordance to
violation of sections 4, 5 and 9 of the Council Code of Conduct within the
Emineskin Tribal Constitution” ...
[43]
This statement again begs the question as to whether the
Tribal Council was giving effect to the binding decision of the Elders Council
as the appellants contend, or whether it was exercising independent authority
to follow (or not to follow) the decision of the Elders Council.
[44]
In my respectful view, the issue in this case must
ultimately be decided by reference to the Band Constitution. The question to be
decided is which body – as between the Elders Council and the Tribal Council –
had the legal authority to discipline the Chief and declare that he had ceased
to hold office. The Applications Judge turned his attention to this question
towards the end of his reasons (paras. 66-71). His reasoning for concluding that
the Tribal Council was the decision-maker essentially rests on the fact that in
a case of a suspension from elected office pursuant to sections 7, 8 and 9 of
the Rules of Conduct provided pursuant to Bylaw 83-01 (see Appendix “A”), there
is a right to hearing before the Tribal Council as provided in section 10 with
an appeal to the Elders Council pursuant to section 15 (Reasons, para. 68). If
that is so, the Elders Council cannot have been the decision-maker in the
present matter.
[45]
However, the right of appeal provided by section 15 only
applies with respect to “suspensions” (or reprimands) and we are not dealing
with a suspension in this case. Sections 7 and 9 are the only provisions which
call for a suspension as the only sanction, and the right to a hearing before
the Tribal Council is restricted to those two provisions. Significantly, no
right to a hearing before the Tribal Council is provided with respect to the
violation of sections 8 or 11, both of which can result in the person concerned
losing their office.
[46]
The Applications Judge overcame this obstacle by inferring
that a right to a hearing before the Tribal Council must nevertheless exist in
cases which can lead to the loss of an office (Reasons, para. 69). He drew that
inference from section 32(a) of Bylaw E86-01 which deals with “the
establishment and election of the Band Council”:
32(a) Pursuant
to the Ermineskin Tribal System, Rules of Conduct Sections (8) (9) (10), an
elected Chief or Council member shall be removed from office upon the following
conditions:
i. A member
of the Tribal Council has deceased.
ii. A member of
the Tribal Council submits a formal resignation in writing.
iii. A member of
the Tribal Council has been convicted of a criminal offence.
iv. A member of
the Tribal Council has had no involvement in the operations of the tribe
without a valid reason for four (4) consecutive working days.
[47]
After referring to this provision and quoting the
introductory paragraph, the Applications Judge said (Reasons, para. 69):
… To make sense
of this provision, it would appear that Bylaw E-86-01 has incorporated by
reference the hearing and decision-making authority of Tribal Council to remove
Chief and Council subject to appeal to the Elders Council.
[48]
I would first observe that if that were so, the recourse
available to Mr. Minde in this case would have been an appeal to the Elders
Council. More importantly however, a hearing before the Tribal Council does not
have to be inferred to make sense of this provision. The causes for removal under
paragraphs i) and ii) fall outside the authority of the Elders Council since
they are not matters of discipline. The causes set out in paragraphs iii) and
iv) are matters of discipline that can lead to the potential loss of an elected
office and therefore come under the exclusive authority of the Elders Council
pursuant to section 2(a) of Division B of the Rules of Conduct. In such
cases, the Rules of Conduct do not provide for a hearing before the Tribal
Council.
[49]
Section 2(a) of Division B of the Rules of Conduct is
the only provision which allows for the oversight of the Chief and Council in
matters which can lead to a loss of office. It provides:
2(a) The
Elders Council shall advise the Chief and Council, and monitor the conduct
of the Chief and Council with authority to discipline the Chief and Council as
necessary from time to time, as per Memorandum of Agreement attached as
Appendix B.
(My emphasis)
[50]
In this instance, Mr. Minde signed a Memorandum of Agreement
with the Elders Council (at the time known as the “Elders Senate”) indicating
that he understood that his office would become vacant if he failed to abide by
the Rules of Conduct (see para. 6 above). While Mr. Minde now suggests that the
agreement was not contemplated by the Rules of Conduct, there is no other
explanation for its existence.
[51]
The Applications Judge also dismissed the Memorandum of
Agreement as having no significance. He held that it was signed for ceremonial
purposes (Reasons, para. 71). With respect, the fact that the Memorandum of
Agreement was entered into during Mr. Minde’s swearing in ceremony does not
alter its significance. There is no basis for disregarding the Memorandum of
Agreement and Mr. Minde’s recognition during one of his two mandates that his
tenure as Chief was subject to the authority of the Elders Council to
discipline him as necessary pursuant to section 2(a) of Division B of
the Rules of Conduct.
[52]
Aside from the authority which section 2(a) grants to
the Elders Council to discipline the Chief and Council, there is no provision
in the Band Constitution authorizing any other Ermineskin government body to
oversee the Chief and Council members with respect to matters which can lead to
a loss of office.
[53]
When regard is had to the Rules of Conduct as a whole and
the particular provisions that we have reviewed, it becomes clear that the
authority to discipline the Chief, in relation to violations which can lead to
a loss of office, belongs to the Elders Council. The initial decision in that
regard and any subsequent review or reconsideration of that decision are within
the exclusive jurisdiction of the Elders Council.
[54]
In my respectful view, the Applications Judge erred when he
construed the Band Constitution as granting the Tribal Council the authority to
decide Mr. Minde’s fate. Only the Elders Council had that authority and it
follows that Mr. Minde directed his judicial review application against the
wrong decision. Nothing of course prevents Mr. Minde from seeking an extension
of time to attack the decision of the Elders Council if he wishes to do so.
[55]
For these reasons, I would allow the appeal, set aside the
decision of the Applications Judge, and rendering the decision which he ought
to have rendered, I would dismiss Mr. Minde’s judicial review application with
costs in favour of the appellants.
“Marc Noël”
“I
agree
K. Sharlow J.A.”
“I
agree
C. Michael Ryer J.A.”
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