Docket: T-503-16
Citation:
2017 FC 861
Ottawa, Ontario, October 6, 2017
PRESENT: The
Honourable Mr. Justice Pentney
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BETWEEN:
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SANDRA
CROWCHILD
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Applicant
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and
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TSUU T’INA
NATION
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Respondent
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JUDGMENT AND REASONS
[1]
Sandra Crowchild (the Applicant) asks me to
overturn decisions of the Tsuut’ina Nation Chief and Council (Tsuut’ina) to
allocate twenty-five acres of the Reserve land that she occupies to her
half-sister, Regina Crowchild. She claims that the process was unfair in that
she was not given notice of the key meetings at which the decisions were taken,
nor given an opportunity to present her views. She also argues that the process
followed gives rise to a reasonable apprehension of bias because Emmet
Crowchild actively participated as a member of the Band Council, despite his
personal interest in the outcome. The Applicant wants these decisions reversed,
and asks that the matter be referred back with directions.
[2]
Tsuut’ina argues that the Applicant is out of
time to bring this application, and that a judicial review can only challenge
one decision rather than the two decisions in question here. Tsuut’ina also
contends that the decisions were made in a fair manner, and that I should be
reluctant to get involved in decisions about who can occupy which land on the
Tsuut’ina Reserve.
[3]
For the reasons that follow, I am granting the
application for judicial review. The decisions are set aside and the matter is
referred back to Tsuut’ina Chief and Council.
I.
Background
[4]
Tsuut’ina is a signatory to Treaty 7, and it
occupies approximately 70,000 acres of land designated as Tsuu T’ina (Sarcee)
Indian Reserve No. 145, which adjoins Calgary’s city limits. As Reserve lands
pursuant to the Indian Act (RSC 1985, c I-5), these lands are held in
fee simple by the Crown for the use and benefit of the First Nation. Tsuut’ina
does not issue Certificates of Possession under s. 20 of the Indian Act
nor has it adopted written by-laws, policies or procedures regarding the
allocation of Reserve lands. Instead it follows its own customs and traditions
in the allocation and re-allocation of Reserve lands. These matters are dealt
with on an “ad hoc” basis and the
decisions on land matters are expressed through Directives issued by Chief and
Council. Two such Directives are challenged in this proceeding.
[5]
The origins of this dispute date back to the
late 1940s or early 1950s, when Tsuut’ina allocated, in accordance with their
custom and practice, several hundred acres of Reserve land to Harold Crowchild.
In 1955, Harold Crowchild abandoned his wife Violet and their children. Violet
continued to reside on the Crowchild lands until her death. The Applicant was born
to Violet Crowchild in 1958 and she has lived with her mother on the Crowchild
lands for virtually her entire life. The Applicant and her mother developed
these lands into a functioning cattle ranch.
[6]
Over time it came to be understood, in
accordance with the customs and practices of Tsuut’ina, that the Crowchild
lands were for Violet’s use. By the late 1970s the Tsuut’ina Lands Department
listed 212.5 acres of Reserve land as being allocated to Violet Crowchild. In
1967 a house (the “Old House”) was constructed
for Violet Crowchild, which she and the Applicant occupied until the mid-1980s
when Tsuut’ina built her a new house. The Applicant lived with her mother in
the new house until her mother’s death in 2014. Since then, the Applicant has continued
to occupy the property.
[7]
In approximately 1994, Violet Crowchild
consented to the allocation of 27 acres of the Crowchild lands to Emmet
Crowchild, her grandson. Emmet Crowchild and his mother, Vera Marie Crowchild,
have lived on this property in houses allocated by Tsuut’ina.
[8]
There have been conflicts over use and occupancy
of the Crowchild lands. One incident documented in the record relates to
efforts by Emmet Crowchild to build a fence through lands outside of the parcel
that had been allocated to him; it appears that he was seeking to assert
control over an additional portion of the Crowchild lands. When this was
discovered, Violet Crowchild complained to the authorities on the Reserve.
After the intervention of the Tsuut’ina Tribal Police and a stop work order
issued by the Tsuut’ina Economic and Business Development Officer were
unsuccessful, Chief and Council issued an order that the fence be removed.
[9]
More recently, two key events set the stage for
this proceeding: Emmet Crowchild was elected to Chief and Council, and Regina
Crowchild, Emmet’s aunt (and the Applicant’s half-sister), returned to the Band
list after many years. In or about 2014, Chief and Council approved a house for
Regina Crowchild; however, this did not entitle her to commence construction,
since she did not have any land allocated to her for this purpose. Under the
custom and tradition of the First Nation, it was expected that Regina Crowchild
would discuss land allocation with her family members in order to see whether a
suitable arrangement could be made. Failing that, the custom and practice is
that she take up the matter with the Tsuut’ina Lands Manager. This did not,
however, result in a satisfactory solution.
[10]
The matter was then discussed on several
occasions by Tsuut’ina, which resulted in the issuance of the two Directives at
issue in this proceeding. Following the issuance of the final Directive, there
were a series of discussions between the parties about possible ways of
addressing the ongoing concerns of the Applicant about the allocation of the
disputed lands. When these did not result in a satisfactory agreement, the
Applicant eventually retained counsel and commenced this proceeding.
II.
Issues
[11]
There are three issues:
(i)
Is the application barred either by the 30-day
time limit in s. 18.1(2) of the Federal Courts Act (RSC, 1985, c F-7),
or because it is inconsistent with Rule 302 of the Federal Courts Rules
(SOR/98-106) since it challenges two decisions of the Tsuut’ina Chief and
Council?
(ii)
Were the decisions made in accordance with the
requirements of procedural fairness?
(iii)
What is the appropriate remedy?
III.
Analysis
A.
Issue 1: Is the application barred?
[12]
I will deal with the two preliminary matters
together: is the application out of time under s. 18.1(2), or is it barred by
Rule 302 since it challenges more than one decision of Chief and Council?
[13]
The Applicant seeks to overturn two decisions
taken by the Tsuut’ina Chief and Council, as reflected in Directive 218 issued
July 3, 2015 and Directive 244 issued September 3, 2015. The application for
judicial review was filed on March 24, 2016.
[14]
Tsuut’ina argues that the application deals with
two entirely different decisions, and that it should be dismissed because there
is no reasonable explanation for the delay. Tsuut’ina contends that the Applicant
must demonstrate due diligence in meeting the time limit set out in s. 18.1(2).
Waiting for full particulars of a decision is not sufficient to obtain an
extension, and the time limit begins to run once the individual is informed of
the substance of the decision even if they do not know all of the particulars
or details: Canada (AG) v Hennelly (1999), 244 NR 399 (FCA) at para 3; Forster
v Canada (AG) (1999), 247 NR 300, 1999 CanLII 8762 (FCA) at paras 3 and 6; Goodwin
v Canada (AG), 2005 FC 1185 at paras 33-35.
[15]
In this case, Tsuut’ina says that it was taken
by surprise since the Applicant never clearly indicated her objection to the
decision contained in Directive 244; rather, she sought to obtain better
compensation for herself and her son. In these circumstances, they believed
that the Applicant had accepted the decision, and her delay from learning of
the decision on September 3, 2015, until filing her application for judicial
review on March 24, 2016, should not be excused.
[16]
In addition, Tsuut’ina argues that Rule 302
forbids an applicant from challenging two decisions through one application for
judicial review. Here, they submit the challenge is to two entirely separate
decisions: in July, Chief and Council simply decided to allocate 25 acres of
Reserve land to Regina Crowchild, as reflected in Directive 218. This decision
is separate and distinct from the subsequent decision of Tsuut’ina to allocate
a specific parcel of Crowchild lands to Regina Crowchild, as reflected in
Directive 244. These two decisions should not be challenged in a single
application for judicial review.
[17]
For the following reasons, I do not accept the
Respondent’s arguments on these points.
[18]
Subsection 18.1(2) of the Federal Courts Act
requires that an application for judicial review be commenced within 30 days of
the communication of the decision to the applicant. This deadline serves the
public interest, in that it provides certainty and finality for both
administrative decision-makers and those bound by their decisions: Canada v
Berhad, 2005 FCA 267 at para 60.
[19]
This time limit can be extended, however, and
the overarching consideration is whether it is in the interests of justice to
do so. This Court has ruled that the applicant must demonstrate: (i) a
continuing intention to pursue the matter; (ii) that the application has some
merit; (iii) that the respondent will not be prejudiced by the delay; and (iv)
that there is a reasonable explanation for the delay: Virdi v Canada (Minister
of National Revenue), 2005 FC 529 at para 7; James Richardson
International Ltd v Canada, 2004 FC 1577 at para 29; Tsetta v Band
Council of the Yellowknives Dene First Nation, 2014 FC 396 at para 21. Many
of the relevant precedents refer to a continuing intention to pursue an application
for judicial review, but in my view it is sufficient that the Applicant
demonstrated a continuing intention to pursue her legal remedies in regard to
the decision: Apv Canada Inc v Canada (Minister of National Revenue),
2001 FCT 737 at para 13.
[20]
Rule 302 states: “Unless
the Court orders otherwise, an application for judicial review shall be limited
to a single order in respect of which relief is sought.” This also
serves the public interest, and provides for the orderly consideration of
matters. An exception can be granted where multiple decisions amount to “one continuing course of conduct”: Servier Canada
Inc v Canada (Health), 2007 FC 196 at para 17; Whitehead v Pelican Lake
First Nation, 2009 FC 1270 at paras 49-52 [Whitehead].
[21]
In this case, the Applicant is challenging two
decisions made within a matter of months by the same decision-maker, relating
to the same subject matter, and she seeks identical relief in relation to both
decisions: see Whitehead at para 51; Shotclose v Stoney First Nation,
2011 FC 750, at para 64 [Shotclose]. Although Tsuut’ina argues that the
first decision was simply about whether to allocate any Reserve land to Regina
Crowchild, and was therefore entirely separate from the second decision about
the specific parcel, there is nothing in the record to suggest that there was
any serious consideration of allocating other lands outside of the Crowchild lands.
All of the relevant meetings and discussions flowed from the request of Regina
Crowchild for an allocation of property for her house, and this request was
focused on her desire to obtain a portion of the Crowchild property for this
purpose.
[22]
On the record before me, I find that the
Applicant has continuously expressed her concerns to Tsuut’ina about the
decisions, and she followed the custom and practice of the First Nation in
seeking to resolve matters internally rather than going to court. The fact that
Chief and Council engaged in these discussions reflects this custom, and
confirms that they were not taken by surprise or prejudiced by the passage of
time.
[23]
I find that the application has merit, as will
be more fully explained below. I further find that the Applicant has demonstrated
a continuing intention to pursue the matter and has provided a reasonable
explanation for the delay. Finally, Tsuut’ina has not been taken by surprise or
otherwise prejudiced due to the passage of time.
[24]
On the facts before me, I find that these decisions
form part of one “continuous course of conduct”
and that it is appropriate to treat the two decisions together. I further find
that it is in the interests of justice to extend the time period.
B.
Issue 2: Was there a breach of procedural fairness?
[25]
Both parties submit that the decisions of Chief
and Council relating to the content of the customs and traditions of the
Tsuut’ina Nation, and the decision to allocate Reserve lands in accordance with
these customs and traditions, deserve deference and should be reviewed on a
standard of reasonableness. I agree. As observed by Justice Richard Mosley in Shotclose
at para 58:
This Court has recognized that the Chief and Council have expertise
on matters such as knowledge of the band’s customs and factual determinations: Martselos
v. Salt River Nation #195, 2008 FCA 221, 411 N.R. 1 at para. 30, citing Vollant,
above, at paragraph 31; Giroux v. Salt River First Nation, 2006 FC 285
at paragraph 54, varied on other grounds in 2007 FCA 108. As such, and as noted
by Justice William McKeown at paragraph 20 of News v. Wahta Mohawks
(2000), 189 F.T.R. 218, 97 A.C.W.S. (3d) 585, “[…] a considerable degree of
deference should be shown to a decision of a Band Council”. This is only true,
however, provided that the principles of procedural fairness and natural
justice have been observed: Ermineskin v. Ermineskin Band Council (1995),
96 F.T.R. 181, 55 A.C.W.S. (3d) 888 at para. 11.
See also Parker
v Okanagan Indian Band Council, 2010 FC 1218, at paras 38-41 [Parker].
[26]
The parties further submit that the standard of
review is correctness regarding whether there was a breach of procedural
fairness, and I agree: Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43, Shotclose at paras 58-59. While the Federal
Court of Appeal has indicated that the matter is not finally settled (Vavilov
v Canada (Citizenship and Immigration), 2017 FCA 132 at para 13), I do not
need to deal with this question since I find that there were breaches of
procedural fairness whether the standard is one of correctness or
reasonableness.
[27]
It is now trite law that this Court has
jurisdiction to deal with matters arising from the decisions of First Nations’
Chief and Council where the issue concerns a matter of a “public” nature, regardless of whether the decision
was taken pursuant to the Indian Act, a Band by-law or involves the
application of a custom or practice of the First Nation: see Vollant v Sioui,
2006 FC 487 at para 25 [Vollant]; Hill v Oneida Nation of the Thames
Band Council, 2014 FC 796 at paras 37-38 [Hill].
[28]
As Justice Cecily Strickland observed in Hill
at para 69:
[T]he absence of procedural fairness
requirements does not suggest that such requirements do not exist. Indeed, the
jurisprudence has held that it is trite law that band councils must act
according to the rule of law and that one of the cornerstones of procedural
fairness is the right to be heard and to make representations before a decision
affecting one’s rights or interests is made (Sucker Creek, above, at
para. 39; Shotclose, above, at para 97; Minde v. Ermineskin Cree
Nation, 2006 FC 1311, at paras 44-46; Laboucan v Little Red River Cree
Nation # 447, 2010 FC 722, at paras. 36-39; Yellowknives Dene,
above).
[29]
Justice Strickland went on to note, at para 71,
that the Supreme Court in Baker v Canada (Citizenship and Immigration),
[1999] 2 S.C.R. 817, held that the duty of procedural fairness is flexible and
variable and depends on an appreciation of the context of the particular statue
and the rights affected:
Several factors are relevant to determining
the content of the duty of fairness: (1) the nature of the decision being made
and the process followed in making it; (2) the nature of the statutory scheme
and the terms of the statute pursuant to which the body operates; (3) the importance
of the decision to the individual or individuals affected; (4) the legitimate
expectations of the person challenging the decision; and (5) the procedural
choices made by the agency itself. The list is not exhaustive.
[30]
In applying these factors to the case before
her, which also involved a decision about land allocation made by a First Nation
in accordance with its customs and traditions, Justice Strickland found that
the case “falls towards the lower end of the procedural
fairness spectrum. However, even in cases where only minimal procedural
fairness rights are required, those rights include notice, the opportunity to
be heard and to have one’s submissions considered, and notice of the decision...”
(at para 77; citations omitted). See also Parker at para 61.
[31]
The core of the claim here is that the process
was unfair because Tsuut’ina failed to give the Applicant sufficient notice of
the key meetings at which the land allocation issue was discussed. In addition,
it is argued that the process was tainted by a reasonable apprehension of bias
because Emmet Crowchild actively participated in the two meetings despite his
personal interest in the outcome.
[32]
Applying the relevant law to the facts before me
is relatively straightforward. It is not necessary for me to make a finding as
to the precise description of the legal or customary interest of the Applicant
in the Crowchild property: there is no dispute that she had an interest, and
was recognized as the occupant of these lands following her mother’s death. In
this regard, the prior history is telling: at some point following 1957, Chief
and Council recognized and acknowledged that the land initially allocated to
Harold Crowchild was for the use and occupation of Violet Crowchild, and the
records of the First Nation are consistent with this. It is not clear when or
whether there was a formal decision taken to “allocate”
these lands to Violet Crowchild; over time it appears that it was simply
accepted that this was the reality.
[33]
In this case, it is evident that Tsuut’ina acknowledged
that the Applicant had an interest in the Crowchild property. This is
demonstrated by their conduct: she was invited to meet with the Chief Executive
Officer (CEO) following the July 14 meeting, and she was later invited to the
September 3 meeting. The discussions at the May 6 and July 14 meetings also
indicate a general awareness by Chief and Council of the history of the issues
relating to the use and occupancy of these lands, and recognition that there
was a need to sort out these issues following the death of Violet Crowchild.
[34]
The Tsuut’ina custom and practice is that, while
the ultimate decisions on who uses or occupies tracts of the Reserve remain
with Chief and Council, in the normal course the intentions of the member
holding an allocation will be taken into account in any decision about who the
property is allocated to upon the death of the member. Here, the record is
clear that Tsuut’ina were aware that Violet Crowchild had repeatedly indicated
her intention that the Crowchild lands were to go to the Applicant and Shane
Crowchild following her death. While the record shows that Violet Crowchild’s
intentions evolved over time, two facts are undisputed: she always indicated
that she wanted the Applicant to have a share of the property, and at no time
did she indicate that Vera Marie or Regina Crowchild were to obtain any of the
property. Chief and Council were aware of Violet Crowchild’s wishes and had
taken them under advisement.
[35]
It is beyond question that the Applicant’s
interests would be affected by a decision to re-allocate the part of the
Crowchild property on which stood the Old House, the barn, the water wells and
other improvements. It is also beyond question that the Applicant was not given
any notice of the first two meetings at which this matter was discussed.
[36]
Tsuut’ina argued that the Applicant was given
reasonable notice of the September 3 meeting, and points to the fact that she
was invited to the meeting with the CEO following the issuance of Directive 214
in July. The Respondent’s position is that this constituted reasonable notice
and met the requirements of procedural fairness.
[37]
It is true that the Applicant was invited to
discuss this matter with the CEO following the July 14 meeting, but I find on
the facts that she was not provided with “reasonable
notice”. This is largely a factual matter. The invitation to the meeting
with the CEO was left on the Applicant’s telephone answering machine on
Thursday, July 16, 2015, but she did not actually receive this message until
the early hours of July 20, the day on which the meeting was to occur. Upon
receipt of the message, and prior to the time of the meeting, the Applicant
telephoned the Band office and left a message indicating that she would not be
able to attend, and explaining why.
[38]
No effort was made to delay or re-schedule this
meeting; no effort was made to arrange a separate meeting to provide the
Applicant with an opportunity to “state her case”
prior to the recommendation being made to Tsuut’ina. On the evidence before me,
I find that this did not amount to “reasonable notice”
of this meeting. I also find that this meeting was a key part of the chain of
events that lead to the ultimate decision. The evidence of the sole affiant for
Tsuut’ina is that once the recommendation from the CEO was made to Chief and
Council, the decision was a foregone conclusion. In cross-examination, he
agreed that the meeting of Chief and Council on September 3 was a “formality”.
[39]
In all of the circumstances, and on the evidence
before me, I find that in making these decisions the Tsuut’ina Chief and
Council acted in a way which breached procedural fairness by failing to provide
reasonable notice of the meetings.
[40]
Finally, I will address the allegation that the
decision-making process was tainted by a reasonable apprehension of bias.
Again, the sequence of events is instructive. Tsuut’ina decided that Regina
Crowchild was entitled to a house upon her return to membership in the First
Nation. Regina Crowchild then met with the Chief and the CEO to discuss an
allocation of property on which her house would be built. This was followed by
an initial discussion of this matter at a meeting of Chief and Council on May 6,
2015. I take particular note of the fact that the Minutes of this meeting show
that Emmet Crowchild was “excused” from this
discussion. Though the record is not clear whether it was Emmet
Crowchild or Chief and Council who decided that he should not participate, the
Minutes show that he did not take part in this discussion, presumably because
it was recognized that this concerned the allocation of the Crowchild property.
[41]
The fact that Emmet Crowchild was excused from
the discussion, in and of itself, is an indication that he should not have
participated in any subsequent discussions of this matter, but that is not what
happened. Instead, the record shows that Emmet Crowchild actively participated
in the discussion on July 14, 2015, at which his mother and his aunt made
submissions about the allocation of the Crowchild properties. The Minutes of
this meeting include the following:
Vera Marie Crowchild – (Tsuut’ina Greeting)
Is requesting for [sic] land
allocation for new home and would like the land of the late Violet Crowchild to
be split three ways between herself, Sandra Crowchild, Regina Noel Crowchild.
Nobody owns the land.
(Application Record, p. 74)
[42]
The record indicates that this discussion mainly
focused on the request of Regina Crowchild for an allocation of the Crowchild
lands on which to build her house. Emmet Crowchild had previously been involved
in a dispute about a part of this same property. I would note that Emmet
Crowchild did not participate in the discussion of this matter on September 3,
2015.
[43]
The law is clear that one of the fundamental
tenets of procedural fairness is to have one’s case heard by an impartial
decision-maker; any decision which is tainted by a reasonable apprehension of
bias is void: Newfoundland Telephone Co v Newfoundland (Board of Commissioners
of Public Utilities, [1992] 1 S.C.R. 623 at 645 [Newfoundland Telephone].
[44]
The test for reasonable apprehension of bias is
well settled. The applicant must demonstrate that an informed person, viewing
the matter realistically and practically, and having thought the matter
through, would think it more likely than not that the decision-maker would not
decide fairly: Committee for Justice and Liberty et al v National Energy
Board et al, [1978] 1 S.C.R. 369 at 394.
[45]
It is also settled law that the application of
this test is contextual, and that the decisions taken by elected officials will
not be examined against the same standard as is applied in relation to judicial
or quasi-judicial decision-makers, in recognition of the legitimate
representational function of democratically elected decision-makers: Old St
Boniface Residents Assn Inc v Winnipeg (City), [1990] 3 S.C.R. 1170 at 1195-97
[Old St Boniface]; Newfoundland Telephone at 638.
[46]
How should the actions of a
democratically-elected Chief and Council be assessed? This Court has addressed
this question in a number of recent decisions. First, the core elements of
procedural fairness must apply to those whose rights and interests are
fundamentally affected by the decisions of Chief and Council, with whatever
adjustments are warranted to reflect the unique circumstances of the First
Nation: Hill at para 69; Sparvier v Cowessess Indian Band No
73 (1993), [1994] 1 CNLR 182 at 198-99 (FCTD); Vollant at para 31; Shotclose
at paras 90-92; Lower Nicola Indian Band v Joe, 2011 FC 1220 at paras 46-47
[Lower Nicola Indian Band].
[47]
Second, we must recognize that Chief and Council
make a wide range of decisions, similar to the range of decisions taken by
other democratically elected bodies: Old St Boniface; Newfoundland
Telephone. If this case involved a consideration by Chief and Council of a
broad and general policy matter such as a new land tenure code, or a new
process for the allocation of Reserve property in general, it would be
appropriate to apply the “closed mind” test set
out in Old St Boniface and subsequent cases.
[48]
Here, however, the decision was about a
particular land allocation relating to a parcel of land on which the Applicant
has resided for virtually her entire life, and in which she has a recognized
(if not officially defined) interest. So this is a decision which affected a
known and limited set of interests, admittedly within the wider context of the
unique circumstance of land holdings on a First Nations Reserve, and against
the backdrop where land is scarce and Chief and Council have many interests to
consider in making these decisions: see Nicola Band et al v Trans-Can
Displays et al, 2000 BCSC 1209 at para 155. The particular decision at
issue here is closer to the “adjudicative” end
of the policy spectrum, in contrast to many other decisions that Chief and
Council must take: compare the circumstances in Hill, where the issue
was land allocation according to custom and involving a single individual, to
the facts in Parker where Council was considering a specific case in the
context of the development of an overall land allocation policy.
[49]
In addition, here the alleged apprehension of
bias arises from a particular personal interest. The specific allegation is
that, in light of the history of dealings and disputes regarding the Crowchild
properties, Emmet Crowchild’s personal interest required that he not
participate in this process. On this point, the following passage of Sopinka J.
in Old St Boniface at 1196, is instructive:
I would distinguish between a case of partiality by reason of
pre-judgment on the one hand and by reason of personal interest on the other… There
is nothing inherent in the hybrid functions, political, legislative or
otherwise, of municipal councillors that would make it mandatory or desirable
to excuse them from the requirement that they refrain from dealing with matters
in which they have a personal or other interest. It is not part of the job
description that municipal councillors be personally interested in matters that
come before them beyond the interest that they have in common with the other
citizens in the municipality.
I would adopt this
reasoning with equal force to the situation of Chief and Council in this case.
[50]
Having said that, I hasten to add that this
Court has, on several occasions, recognized that issues of bias and procedural
fairness must be examined in light of the particular context of small First
Nations, where close family ties or employment with the First Nation may not be
easily separated from decision-making processes. I agree with the observations
of Justice Marshall Rothstein in Sparvier at para 75:
If a rigorous test for reasonable apprehension of bias were applied,
the membership of decision-making bodies such as the Appeal Tribunal, in bands
of small populations, would constantly be challenged on grounds of bias
stemming from a connection that a member of the decision-making body had with
one or another of the potential candidates. Such a rigorous application of
principles relating to the apprehension of bias could potentially lead to
situations where the election process would be frustrated under the weight of
these assertions. Such procedural frustration could, as stated by counsel for
the respondents, be a danger to the process of autonomous elections of band
governments.
See also Johnny
v Adams Lake Indian Band, 2017 FCA 146 at paras 41-43; Michel v Adams
Lake Indian Band Community Panel, 2017 FC 835 at paras 33-34.
[51]
In this regard, I would observe that, in the
recitation of the factual history of the matter, the Applicant expressed
concern that at one point Regina Crowchild had discussed the property issue
with the Tsuut’ina Lands Manager, Jim Two-Guns, who is her half-brother.
Counsel did not press this point during oral argument. Were it necessary, I
would be prepared to find that this sort of interaction would not give rise to
a reasonable apprehension of bias in these circumstances. In engaging in this
discussion, Mr. Two-Guns was simply doing his job, and he was only making a
recommendation to Chief and Council – he was not the ultimate decision-maker.
Like many rural and smaller communities in Canada, for many First Nations local
decision-making would grind to a halt were it necessary to avoid any dealings
between close family members or personal friends. However, given my finding
below I do not need to determine this matter here.
[52]
While I acknowledge that there may be occasions
when necessity demands that a Chief or Councillor with a personal interest
participate in a decision where that interest is directly affected, this is not
such a case. Here, there was no necessity for Emmet Crowchild to participate in
this decision-making process. There is no suggestion that Council would be
rendered unable to make a decision by his absence, for example by losing
quorum, or having to depart from long-standing custom regarding the participation
of an Elder: see Lower Nicola Indian Band at para 47. Indeed, the fact
that he was “excused” from the May 6 meeting is
telling.
[53]
I find that the participation of Emmet Crowchild
at the July 14 meeting of Chief and Council gave rise to a reasonable apprehension
of bias, which in and of itself would be sufficient to taint the
decision-making process, in particular in light of the evidence that the
September 3 meeting was a “formality”.
C.
Issue 3: What is the appropriate remedy?
[54]
The Applicant asks that I set aside the two
decisions of Chief and Council, and that I refer the matter back with
directions. Tsuut’ina also asked that I provide directions to Chief and Council
in the event that I granted the relief sought.
[55]
Tsuut’ina cautioned, however, that I should be
reluctant to overturn the decision here because doing so could unleash an
avalanche of similar applications from disappointed members. In addition, counsel
argued that it is not for me to decide who shall live where on the Tsuut’ina
Reserve – that this is a decision solely for Chief and Council. For the reasons
already stated, I do not accept this argument. First, the Applicant made very
clear that she accepts that the ultimate decision as to the allocation of land
on the Reserve rests with Chief and Council. All that she is seeking is a fair
process and the opportunity to state her case. In addition, the Applicant is
not asking this Court to decide who shall live where on the Reserve.
[56]
In addition, while it may be regrettable that
this matter has come before me rather than being resolved by some process
internal to the First Nation and in a manner more suited to its customs and
traditions, it would be equally regrettable that members of Tsuut’ina or any
other First Nation were without any meaningful recourse to vindicate their
rights or essential interests: Hill at para 69; Laboucan v Little Red
River # 447 First Nation, 2010 FC 722 at paras 36-39.
[57]
For the reasons above, I set aside the decisions
of Chief and Council expressed through Directive 218, dated July 14, 2015, and
Directive 244, dated September 3, 2015, and remit the matter back to Tsuut’ina.
I would note here that both counsel indicated that, as a result of Band Council
elections in the intervening period, Emmet Crowchild is no longer a member of Chief
and Council. It is therefore not necessary for me to make any order specific to
his participation in future decision-making on this matter.
[58]
The parties asked me to provide directions to
Tsuut’ina Chief and Council. I am mindful of the caution, expressed by both
sides, that I should show deference to the decisions of Chief and Council both
about the nature of Tsuut’ina customs and traditions, and about the decisions
taken by the duly elected Chief and Council pursuant to these customs and
traditions.
[59]
In addition to the deference which is due, there
is an additional obstacle here. The next steps between the parties depends on
several facts which are unknown: whether Regina Crowchild still wishes to
pursue an allocation of land for her house, and whether any other arrangements
for such an allocation have been made; whether a suitable arrangement can be
reached between Regina Crowchild, the Applicant and any other family members
whose interests are involved; and when, whether or how Chief and Council want to
deal with this matter or its more general policy regarding how land allocation
decisions are made.
[60]
In light of this, and given the respect which is
due to the traditions and customs of Tsuut’ina, I decline to issue any binding
directions on the parties. What is clear from these reasons is that Tsuut’ina
must find a means of ensuring that those whose personal interests are directly
affected by these sorts of land allocation decisions have an opportunity for
meaningful participation in the process. On the evidence before me, this
appears to be the accepted custom and tradition of Tsuut’ina. Further, Tsuut’ina
must seek to avoid, if at all possible, the involvement of anyone whose
interests are directly affected by the decision in the actual decision-making process.
It is for Tsuut’ina to decide how to respect these minimum procedural rules
within the exercise of their customs and traditions.
IV.
Costs
[61]
Neither party made submissions on costs. When I
raised the question during the hearing, the Applicant asked for solicitor-client
costs, in view of the hardship on his client of bringing this application and
her financial and personal circumstances. Tsuut’ina opposed this request, and
asked for the opportunity to make submissions on the point. I do not find that
this is an appropriate case for the award of solicitor-client costs: see Young
v Young, [1993] 4 S.C.R. 3; Asics Corporation v 9153-2267 Québec Inc,
2017 FC 257.
[62]
The Applicant was successful in this matter, and
I see no reason to depart from the usual rule. I therefore order costs in
favour of the Applicant. In the absence of detailed submissions on costs, other
than the arguments outlined above, I have considered the issue in light of the
complexity of this matter – which involved a relatively simple record, cross-examination
of only one witness for each party, and a one day hearing. I hereby fix costs
at $2,500, inclusive of disbursements and taxes, in favour of the Applicant.
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