Dockets: T-1282-19
T-1725-19
Citation: 2023 FC 386
Ottawa, Ontario, March 21, 2023
PRESENT: The Honourable Madam Justice Strickland
| Docket: T-1282-19
|
| BETWEEN:
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| WILLIAM GORDON GLENDALE IN HIS CAPACITY AS CHIEF OF BAND COUNCIL OF THE DA'NAXDA'XW FIRST NATION AND AS A MEMBER OF THE HEREDITARY CHIEFS COUNCIL AND MICHAEL JACOBSON-WESTON AND ANNIE GLENDALE IN THEIR CAPACITY AS COUNCILLORS OF THE DA'NAXDA'XW FIRST NATION
|
| Applicants
(Applicants)
|
| and
|
| BILL PETERS, NORMAN GLENDALE AND ROBERT DUNCAN
|
| Respondents
(Respondents)
|
| Docket: T-1725-19
|
| AND BETWEEN:
|
| BILL PETERS AND ROBERT DUNCAN, IN THEIR CAPACITY AS MEMBERS OF THE HEREDITARY CHIEFS COUNCIL OF DA’NAXDA’XW FIRST NATION
|
| Respondents
(Applicants)
|
| and
|
| WILLIAM GORDON GLENDALE, MICHAEL JACOBSON-WESTON, AND ANNIE GLENDALE
|
| Applicants
(Respondents)
|
ORDER AND REASONS
[1] Before me are two motions. The first motion purports to seek to enforce, pursuant to Rules 423 and 431 of the Federal Courts Rules, SOR/98-106 [Rules], my order rendered in Da’naxda’xw First Nation v Peters, 2021 FC 360 [Da’naxda’xw First Nation] and, pursuant to Rule 431, to compel performance with my order rendered in that decision [Order]. The second motion, relying on Rule 104(1)(b), seeks to add Ms. Ruby Mannila as a party to T-1282-19 and T-1725-19, and thus a respondent to the first motion.
[2] As a preliminary point, I note that William Gordon Glendale, Anne Glendale, and Michael Jacobson-Weston, were the applicants in T-1282-19 and respondents in T-1725-19. They are referred to as the “Glendale Parties”
in the motions now before this Court. However, Gordon Glendale, Michael Jacobson-Weston and Annie Glendale brought, and responded to, the judicial reviews in T-1282-19 and in T-1725-19 in their capacity as chief and councillors, respectively, of the Da’naxda’xw First Nation [DFN]. My decisions in those matters found that they lacked lawful authority to act in that capacity. And while Gordon Glendale also brought and responded to those matters as a member of the “hereditary chief’s council”
[HCC] of the DFN, my decision also declared that the HCC – which, as discussed below, was a creature of a prior order of this Court – also lacked lawful governing authority, however it was constituted.
[3] When appearing before me, counsel confirmed that it is solely Gordon Glendale who brings these motions. Gordon Glendale is a hereditary chief of the DFN [Glendale].
[4] Similarly, Bill Peters, Norman Glendale and Robert Duncan were the applicants in T-1725-19 and commenced that judicial review in their capacity as members of the HCC. My decision declared that Bill Peters, Norman Glendale, and Robert Duncan lacked governing authority to hold office as council of the band either as members of the HCC or individually. Mr. Peters and Mr. Norman Glendale have subsequently passed away. These motions are responded to by Robert Duncan who is a hereditary chief of the DFN [Duncan].
[5] For the reasons that follow, these motions are dismissed.
Background
[6] The background to this matter is set out in detail in my judgement and reasons in Da’naxda’xw First Nation.
[7] It is sufficient to say here that the DFN is a very small First Nations community that has been embroiled in governance disputes for some years. This came to a head in November 2016 when two DFN members filed an application for judicial review (Federal Court file T-1908-16), naming the then Glendale Band Council as respondents, challenging the legality and authority of the Glendale Band Council, and seeking an elected chief and council. Following mediation, in May 25, 2017, a consent order was issued by (now) Justice Lafrenière [Lafrenière Order] with a Joint Statement attached as Schedule A. This ordered that four hereditary chiefs, William (Gordon) Glendale, Robert Duncan, Norman Glendale, and Billy Peters “(the Hereditary Chiefs’) shall form a Council for the purpose of developing a governance code for the Da’naxda’xw First Nation to be presented to the membership for their approval (the Hereditary Chiefs Council)”
[emphasis added]. In the joint statement, the parties agreed that the thusly created HCC, in collaboration with the families and community, would develop a governance proposal for the community to consider, culminating in a referendum on a Da'naxda'xw Code of Governance. Upon the completion of the referendum, the application for judicial review would be discontinued.
[8] However, a governance code was not developed and presented to the DFN membership by the HCC. Instead, T-1282-19 and T-1725-19 found their way before me. In my decision, I addressed, among other things, what the current band custom was regarding DFN’s governance, whether there had been a change in custom, and whether the HCC, as established by the Lafrenière Order, or the then Glendale Band Council, had lawful governing authority.
[9] I found that while a governance review had been held in January 2017, it did not change DFN custom. Rather, the intent of all concerned was that a governance code would be developed by the HCC, with community input, that would flesh out the desired new governance structure. This governance code would then be put to the DFN membership for acceptance or rejection in a referendum. Unfortunately, the HCC did not follow its mandate and did not develop a governance code. In the result, while the governance review made it clear that the DFN membership wished to transition to the Hereditary Chiefs supported by Family Leadership Council [HCFLC] governance model, that transition was premised on the development of a governance code that would define and delimit the new leadership structure. Thus, in the absence of a ratified governance code, DFN custom remained in transition and had not changed.
[10] As to who had lawful authority to govern, I found that neither party had established that they had the broad consensus needed to govern:
Conclusion
[149] This is an unusual set of factual circumstances that could have been avoided had the HCC complied with the Lafrenière Order and developed a governance code to put to the DFN membership for ratification by referendum.
[150] In these competing applications, both the Glendale Band Council and Peters & Duncan assume that if one of these entities does not have lawful authority to govern then the other one does. Given these odd circumstances, I am not sure that this is so.
[151] In my view, the Governance Review is the best indication of the membership’s preference for a governance model. This makes it clear that the DFN membership wishes to transition to the Hereditary Chiefs supported by Family Leadership Council governance structure. Indeed, that desire is not contested by the Glendale Band Council. I also agree with the Glendale Band Council that the transition process has not yet been completed. However, the Governance Review results also demonstrate that the DFN no longer views the hereditary chief and two councillor governance model to be generally acceptable to the members of the band and, therefore, that that practice does not enjoy broad consensus support of the DFN membership. Further, the Glendale Band Council stopped governing when the HCC members decided that the HCC would assume governance, implicitly acknowledging a lack of broad consensus for the governance structure that the Glendale Band Council represents.
[152] On the other side of the coin, while Peters & Duncan assert that the HCC has assumed governance, custom cannot be recognized solely by the leadership, it must be recognized by the membership (Bigstone at para 29; Shirt at para 32; Bertrand at para 37; Shotclose at para 69). The record before me does not establish that the DFN membership ever agreed or now agrees that the four hereditary chiefs, identified in the Lafrenière Order as forming the HCC, would also comprise the Hereditary Chiefs supported by Family Leadership Council and would assume that role in the absence of a governance code, including without determining the family leadership representatives. The HCC was established solely for the purpose of developing the governance code and putting it to the membership for ratification by way of referendum. Further, the evidence before me does not establish that the DFN membership has ever been formally and clearly advised of the HCC’s decision to assume governance and that there was broad consensus for governance by the HCC.
[153] In sum, neither party has met their burden of establishing the broad consensus for the governing authority of either the Glendale Band Council or the HCC.
[11] As to the appropriate remedy:
[181] This is one of the exceptional situations where an order in the nature of quo warranto should issue to remove chiefs and councillors from office (Shotclose at para 105). Even more exceptionally, however, this leaves the DFN without governance. And, of course, it is for the DFN to determine its governance model, those persons who comprise the members of that entity and the terms of their holding office, not this Court.
[182] However, faced with a gap in band administration and to avoid the potential of still further litigation, I must fashion some sort of interim remedy, appropriate to the circumstances, until the DFN makes its determination (Ballantyne v Nasikapow, [2000] FCJ No 1896, at para 79). In Shotclose Justice Mosley granted an order in the nature of quo warranto to remove chief and councillors from office. He also prohibited the chief and council from exercising any of the powers of those offices pending the next election and issued an order in the nature of mandamus requiring an election be held within 60 days, to be conducted in accordance with the procedure set out the First Nations election code. Thus, in Shotclose the gap in band administration resulting from the quo warranto relief was short and was cured by the holding of a new election.
[183] The DFN do not have an election code. Further, DFN governance has been the subject of litigation for the last 5 years beginning with the 2016 Judicial Review. There, to avoid the Court making a determination as to governance model, the parties to that matter, and others including Bill Peters and Robert Duncan, attended a mediation which resulted in the May 26, 2017 Lafrenière Order. That consent order contemplated a governance code being presented to the DFN community for approval approximately 6 months later, on December 1, 2017. Regrettably, the Lafrenière Order has not been complied with as the HCC has not developed a governance code and put it to the DFN membership for a referendum. Nor have the parties in that matter caused the judicial review to be heard and determined on its merits. Further, Mr. Duncan’s cross-examination testimony is that a funding application for the development of the governance code has never been submitted and that there has been no work on the code since Gordon Glendale’s suspension nearly two years ago.
[184] The DFN membership has clearly signalled that the “Hereditary Chiefs supported by Family Leadership Council” is the preferred model of governance. In order to transition to that model it would, of course, be ideal to first have in place a comprehensive governance code developed that the DFN members could adopt by referendum following community input and discussion.
[185] But this is not necessarily a prerequisite to effecting this change in governance custom. It is open to the DFN members to take interim action.
[186] Specifically, to confirm that it is their intention that their custom will now change to governance by Hereditary Chiefs supported by Family Leadership Council, prior to the development of a comprehensive governance code, and identifying and appointing interim hereditary chiefs and interim members of the family leadership council who would fill those positions until a governance code is developed and ratified and those positions are filled in accordance with the code And, importantly, requiring that the interim Hereditary Chiefs supported by Family Leadership Council immediately progress the development of a governance code to be presented to the DFN for consideration and ratification within a set time frame. All of this can be quickly accomplished by way of a DFN membership meeting.
[187] This will require that notices of the members meeting be provided to the members setting out what is needed and why…..
…..
[191] If the DFN membership confirms that it wishes to now proceed with a change of custom governance to Hereditary Chiefs supported by Family Leadership Council prior to the development of a governance code and identifies and appoints the hereditary chiefs and family leadership members of an interim council, then the new interim council will have to decide how to appropriately safeguard the DFN’s financial welfare while the allegations of financial misconduct are being resolved. At the membership meeting the DFN members may wish to provide input for consideration by the council when making this determination.
[192] The above solution is premised on the results of the Governance Review by which the DFN membership indicted their clear desire to transition to a Hereditary Chiefs supported by Family Leadership Council governance model. It is, of course, open to the DFN membership to effect any form of governance of their choosing. But they must make a clear and immediate decision.
[12] My judgement in these matters was as follows:
THIS COURT’S JUDGMENT is that:
T-1282-19
1. It is declared that Bill Peters, Norman Glendale, Robert Duncan and Gordon Glendale, or any combination of them, as members of the hereditary chiefs council which was established by way of and for the purposes of the May 26, 2017 consent order of (now) Justice Lafrenière, lack broad consensus and therefore do not have lawful authority to govern the Da’naxda’xw First Nation [DFN]. An Order in the nature of quo warranto removing them from their purported respective offices as members of the council of the band is hereby granted;
2. An order in the nature of certiorari quashing the decision of Bill Peters, Norman Glendale and Robert Duncan purporting to suspend Gordon Glendale from the HCC is hereby granted;
T-1725-19
1. It is declared that Gordon Glendale, Anne Glendale and Michael Jacobson-Weston as Hereditary Chief and Councillors of the DFN lack broad consensus and therefore do not have lawful authority to govern the Da’naxda’xw First Nation [DFN]. An Order in the nature of quo warranto removing them from their respective offices is hereby granted;
T-1282-19 and T-1725-19
1. On or before June 30, 2021 an all members meeting of the DFN will be convened. The purpose of the membership meeting is to permit the DFN membership to confirm that it is their intention that their custom will, by way of agreement confirmed at that meeting, change to governance by Hereditary Chiefs supported by Family Leadership Council, prior to the development of a governance code, and to permit the DFN membership to identify and appoint interim Hereditary Chiefs and interim members of the Family Leadership Council who would fill those positions until a governance code is developed and ratified. Further, and importantly, requiring that the interim Hereditary Chiefs supported by Family Leadership Council to immediately progress the development of a governance code to be presented to the DFN for consideration and ratification within a set time frame, not to exceed one year from the date of the members meeting;
2. Gordon Glendale, Robert Duncan, Norman Glendale and Bill Peters, in their traditional capacity as hereditary chiefs, shall together cause a notice of the members meeting to be prepared, utilizing an independent and neutral third party to be retained on behalf of the DFN to assist in the preparation of the notice and to also facilitate the members meeting. Ruby Manilla shall not participate in this process;
3. Until the interim Hereditary Chiefs supported by Family Leadership Council is in place, the ordinary day-to-day administration DFN band matters shall be overseen by Gordon Glendale, Robert Duncan, Norman Glendale and Bill Peters, in their traditional capacity as hereditary chiefs. No significant decisions or actions shall be taken pending the appointment of the interim Hereditary Chiefs supported by Family Leadership Council by the DFN membership;
4. Each party shall bear its own costs. If the costs of either of them is being paid from DFN band funds then so too shall the costs of the other, all based on column III of Tariff B; and
5. A copy of there reasons shall be placed in the Court files of both T-1282-19 and T-1725-19.
Subsequent Events
[13] In support of these motions, Glendale has submitted Affidavit #7 of William Gordon Glendale, a DFN member and hereditary chief, affirmed on October 19, 2022 [Glendale Affidavit]; an affidavit of James Glendale, a DFN member, son of Norman Glendale and purported hereditary chief, affirmed November 2, 2022; an affidavit of Jake Jacobson, a DFN member, affirmed November 2, 2022; and, Affidavit #2 of Dorothy Patricia Nolie, a DFN member, affirmed November 3, 2022.
[14] The responding motion record includes: Affidavit #3 of Robert Duncan, a DFN member and hereditary chief, sworn or affirmed on March 9, 2023 [Duncan Affidavit]; an affidavit of Aaron Aubin, a DFN member and member of the DFN governance code committee (discussed further below) [Governance Committee] sworn on March 8, 2023; Affidavit #4 of Ruby Mannila, a DFN and Governance Committee member and the Band Administrator, sworn or affirmed on March 8, 2023; an affidavit of Desiree Mannila, a DFN and Governance Committee member and daughter of Ruby Mannila, sworn or affirmed on March 8, 2023; an affidavit of Michael Robert Matthew Glendale, a DFN and Governance Committee member, sworn or affirmed on March 7, 2023; an affidavit of Nora Guest, a DFN and Governance Committee member, sworn or affirmed om March 7, 2023; an affidavit of Yvette M. Ringham-Cowan, a DFN and Governance Committee member, sworn March 6, 2023; and, an affidavit of John Jolliffe, dated March 6, 2023.
[15] I have read all of theses affidavits and have reviewed any exhibits attached to them, however, it is not necessary for me to set out the content of each of them in these reasons.
[16] Certain affiants – in particular, Glendale and Ruby Manilla – provide their own interpretation of events, however, in my view, this mainly serves to emphasize the clear discord between them. In fact, the affidavit evidence is generally consistent as to relevant events following the issuance of my decision. And, while Glendale takes issue with Ruby Manilla’s involvement in the events following my decision, asserting that she usurped governance of the DFN, and Ruby Manilla continues to assert financial wrongdoing by Glendale, in my view, these and similar disagreements ultimately have little relevance to the determination that I must make as to the enforcement motion.
[17] As indicated in my decision in Da’naxda’xw First Nation, until the interim HCFLC was in place, the day-to-day administration of DFN band matters was to be overseen by Gordon Glendale, Robert Duncan, Norman Glendale and Bill Peters, in their traditional capacity as hereditary chiefs [HCs].
[18] In that regard, and to facilitate the DFN membership meeting that was required by my Order to take place by June 30, 2021, the HCs engaged Mr. Jamie Sterritt of Sa’hetxw Consulting. Mr. Sterritt prepared and circulated to the DFN membership a power point indicating the purpose of the meetings and what needed to be accomplished at the meetings. Specifically, that the DFN membership confirm by vote that it intended for its custom to change to governance by HCFLC, and to identify and appoint the interim HCFLC.
[19] A June 21, 2021 letter from counsel for Glendale addressed a June 14, 2021 draft meeting notice which had been prepared by Mr. Sterritt. The letter pointed out that my Order required that two things needed to be put to the membership before June 20, 2021, being to “select their governance type which could include their support for a model of Hereditary Chief and Family Leadership Council or any other model the membership wishes”
(emphasis in original) and to identify and appoint the interim HCFLC who would hold those positions until a governance code was delivered and ratified. Accordingly, a corrected notice was issued on June 29, 2021 to reflect the above. A corrected version of a draft questions and answers [Q&A] document was also generated on or about June 22, 2021.
[20] Two community engagement meetings were held on June 25 and June 26, 2021 to address the upcoming vote.
[21] On June 30, 2021, the DFN membership voted, online using Smart Ballot software, confirming its intention to change its governance to the HCFLC model. Of the 94 members who voted, 71 voted in favour of this change. There is no evidence before me that the DFN members identified and appointed the members if the interim HCFLC at that meeting, or at all.
[22] By email of July 6, 2021 to the four HCs, Mr. Sterritt identified the next step steps in process, worded as follows:
Chiefs,
Thanks for the call – here is a summary of the next steps:
- Confirm the names for the “Hereditary Chiefs supported by Family Leadership Council”
- Glendales, Duncans, Jacobsons, Gillespies (Peters), and Nolies
- Chiefs/FLC to meets asap
- Convey results of to [sic] the Courts/ISC
- Interim Governance Code adopted by the HC supported by FLC – shared with Members
- Terms of Reference for the Governance – inclusive – shared/engaged with members.
[23] On July 14, 2021, “on behalf of the HCC”
, Duncan offered Mr. Sterritt a short-term contract to assist in the development of a governance code.
[24] On July 29, 2021, Mr. Sterritt sent an email summarizing a call he had with the HCs the day before. The items summarized included the convening of a governance code working group of 12-15 people and the development of a more detailed work plan, calendar and rough budget which the HCFLC would present to ISC for funding approval.
[25] On September 5, 2021, Glendale convened a meeting of what he refers to in his affidavit as the “Hereditary Chiefs and Family Leadership Council”
. It was attended by himself, Norman Glendale, Jake Jacobson and Patricia Nolie. In their affidavits, Jake Jacobson and Patricia Nolie state that they were appointed by their families to act as family leaders. However, as indicated above, there is no evidence that the DFN membership confirmed and appointed Mr. Jacobson and Ms. Nolie, or any other family leaders, as interim HCFLC members. Three band council resolutions [BCRs] were purported to have been passed at that meeting.
[26] Each of these BCRs refer to my decision in T-1282-19 and T-1725-19 and asserts:
Whereas the Court order determined that the ordinary day-to-day administration of Da’naxda’xw Awaetlala Nation shall be overseen by interim leadership
[27] I pause here to note here that this is not what my Order said. My Order stated that until the interim HCFLC was in place, the ordinary day-to-day administration DFN band matters would be overseen by Gordon Glendale, Robert Duncan, Norman Glendale and Bill Peters, in their traditional capacity as hereditary chiefs. Further, that no significant decisions or actions were to be taken by the HCs pending the appointment of the interim HCFLC by the DFN membership.
[28] In any event, the first BCR resolved “that the Interim Leadership develop and share a job posting with the intention to hire an independent administrator”
.
[29] The second BCR resolved that the “Interim Leadership”
pay maintenance staff invoices.
[30] The third BCR resolved:
1. That we request that the nation’s account at the TD bank branch number […] be unfrozen and access granted to the Interim Leadership;
2. That the Interim Leadership shall appoint new signatories to the account.
[31] The Duncan Affidavit states that Duncan was unable to attend the September 5, 2021 meeting and that an email from Glendale had stated that he would be doing BCRs “for both governments to show the 6 names”
. Duncan says he was not aware that Glendale intended to pass several BCRs about governance of the DFN. Nor was he aware that Glendale directed his sister, Molly Dawson, who had not been a DFN employee since her documented resignation on April 27, 2029, to send BCRs to Indigenous Services Canada [ISC].
[32] By email dated October 12, 2021, Mr. Bob Vern of ISC responded to Molly Dawson, copying the HCs. He acknowledged receipt of two BCRs from her. The email stated that my decision addressed the issue of the authority of the HCs to govern. As a result, ISC was following my decision to inform its understanding of the governance structure of the DFN and its understanding of the current role of the HCs as overseeing the day-to-day administration of the DFN. ISC quoted paragraph 194 of my decision and stated, that, as a result, ISC was not in the position to accept the two BCRs signed by two HCs and two Family Leaders.
[33] Despite this response from ISC, in his affidavit, Glendale states that he continued to make efforts to “have the six of us function as a proper interim government”
but that his efforts were blocked by Ruby Manilla and Robert Duncan. Similarly, in her affidavit Ms. Nolie states that she was initially welcomed by the HCs at interim government meetings but that Duncan and Billy Peters began to deny her “right to participate”
after she and Jake Jacobson began disagreeing with them on unspecified governance issues and that she understood that Duncan and Billy Peters then told ISC that only the four HCs named in my decision were legitimately part of the government. I note that this version of events is not consistent with the ISC’s October 12, 2021 communication with the HCs and I accept the latter as the more accurate.
[34] On November 27, 2021, Norman Glendale passed away. It is generally agreed that his son James Glendale succeeded him as a HC.
[35] On December 8, 2021, Mr. Sterritt resigned as the facilitator of the work on the DFN governance code, including committee meetings, noting unspecified emails he had received from various parties, and concluding it would be best for him not to be involved.
[36] On January 24, 2022, a meeting with ISC and the four HCs was held. The meeting minutes state that the HCs agreed that hiring a third party would be helpful to facilitate discussions among them and in carrying out the day-to-day administration of the DFN. ISC stated that it would provide the HCs with a list of possible facilitators. And, that:
- The Hereditary Chiefs agreed that it would be productive to organize a meeting of the members to identify and appoint the interim Hereditary Chiefs and the members of an interim Family Leadership Council while a governance code is developed. That meeting would complete the work set out in the April 2021 court order that requires that interim leadership be established until a governance code is developed to be ratified by the First Nation’s membership.
- ISC will provide the Hereditary Chiefs with a list of possible individuals who may be able to assist the Hereditary Chiefs as a group in organizing community membership meeting.
[37] The HCs retained Mr. Eli Mina, a consult who was included in ISC’s recommended list, who held several meetings with the HCs.
[38] The affidavit evidence establishes that the ongoing conflict between Glendale and Ruby Mannila continued unabated. By email of March 9, 2022, Mr. Mina raised this and the impact it was having on his work and the community. He indicated that it was essential to facilitate a conversation between Glendale and Ruby Manilla but he had not been successful in doing so. He indicated that if he could not arrange this, then he would have to seriously consider whether he was the appropriate person for the assignment.
[39] Mr. Mina prepared a preliminary notice of membership meeting and draft agenda which was revised and recirculated on March 2, 2022 after input from some of the HCs and Ruby Mannila. Glendale took exception to Ruby Mannila setting up the zoom membership meeting and her involvement in preparing the meeting notice and, as he puts it in his affidavit, “I then got into an angry exchange [with Mr. Mina] regarding Ruby’s role in the membership meeting and how this was dividing the Nation”
. By email of March 26, 2022 to the four HCs and ISC, Mr. Mina advised that an email from Glendale questioned Mr. Mina’s judgment and competence, which he found to be unprecedented and insulting. As it also brought into question Mr. Mina’s impartiality, he could no longer assist the HCs. He cancelled the call scheduled for that day with the HCs but ultimately agreed to host the April 2, 2022 membership meeting.
[40] The final form of the meeting notice indicated that the first part of the meeting was for the purpose of having the community confirm the interim members and size of the HCFLC. And, that the HCs were proposing the listed interim HCFCL member composition, subject to the community’s vote. The Duncan Affidavit states that the form of the notice that Glendale would agree to only gave the DFN members the opportunity to confirm the four HCs and Jake Jacobson and Patricia Nolie as the members of the interim HCFLC.
[41] It is common ground that the April 2, 2022 membership meeting descended into chaos. The Duncan Affidavit states that there was an argument over who would sit on the interim government and why the members were not able to choose its members. The Glendale Affidavit asserts that already deep divisions within the membership were made worse by Ruby Mannila who used her platform as band administrator to stoke divisions and make baseless allegations against him during the meeting.
[42] The result was that no members of an interim HCFLC were confirmed and appointed by the membership.
[43] The Duncan Affidavit states that in March 2022, the Governance Committee met with consultant Rob Louie who prepared a draft governance code. I note that the draft code attached as an exhibit essentially provides only suggested headings. On March 4, 2022, Glendale and James Glendale wrote to Robert Duncan and Billy Peters to inform them that they formally objected “to current actions being taken under governance code development”
. They stated that they were not informed of and did not grant approval to hire Mr. Louie and that “We the interim Hereditary Chiefs and Family Leadership Council need to distribute a meeting postponement notice with apologies, until we have determined we are ready to engage membership”
.
[44] Mr. Mina continued to facilitate meetings with the HCs. At a June 7, 2022 meeting attended only by Glendale and James Glendale, the only topic of discussion was the work that had been done on the governance code and the need to schedule a membership meeting to discuss the proposed new code. The HCs in attendance agreed to contact ISC for funding for the meeting and that a virtual meeting of the HCs would be held on June 16, 2022, to review the proposed code and set a date for the membership meeting to review the code, which was to be provided to the HCs and Mr. Mina as soon as possible.
[45] By email of June 10, 2022, Ruby Mannila advised the DFN membership that the HCs would be meeting to discuss a request by the Governance Committee for governance code meeting. The location and date of the membership meeting was discussed and the purpose of the meeting was stated to be to review the code as produced by the Governance Committee and to obtain membership input in order to: discuss an option that the Governance Committee thought was reasonable, fair and created transparency within the leadership; and, get clear direction of what form of leadership was most desired by the members if the model proposed by the Governance Committee was not accepted.
[46] Mr. Mina facilitated another, and his last, HC meeting on June 16, 2022, attended by Glendale, James Glendale and Ruby Mannila. The summary of that meeting indicates three agenda items: the scheduling of a DFN membership meeting to discuss the proposed new governance code and that two weekend dates were agreed, July 30-31 and August 20-21, 2022; the expiry of Mr. Mina’s assignment as an impartial facilitator for HC meetings and, although it was agreed at the meeting that this would continue, after the meeting Glendale reversed his position; and, discussion with ISC to discuss the 2018 audit report.
[47] On June 30, 2022, Ruby Manilla sent an email to the HCs and DFN membership attaching a draft governance code for review and stating that she also attached other leadership options for discussion and decision at the July meeting. Further, that the agenda items were to discuss the governance code and for the membership to “make their final decision on what form of leadership is preferred moving forward”
. The attached leadership options document, dated February 2, 2022, states that the governance committee wanted to create more unity and equality in the future leadership options and noted that the options presented were only options and were to be reviewed and discussed at the membership meeting. Three options were described and a chart set out the roles and responsibilities of each.
[48] The DFN membership meeting was held on July 30-31, 2022.
[49] The Duncan Affidavit indicates that Duncan spoke at the meeting and that it was clearly communicated to the DFN membership that the drafting of a final governance code could not be completed without the direction from the members on which leadership structure they preferred. He states that he confirmed that any governance code would be required to be put for a vote. He states that he understood and supported that the governance code would be finalized, shared with the membership and put to a ratification vote.
[50] Conversely, the Glendale Affidavit states that on the second day of the meeting, Ruby Mannila began accusing Glendale of being a thief and other wrongdoing and that he eventually left because she was acting so aggressively. He states that, after he left, Ruby Manilla held a vote that called for a change of the custom of the DFN from the HCFLC model selected in June 2021 to an elected chief and councillor model.
[51] The agenda for the July 30 and 31, 2022 meetings was concentrated on governance issues on both days, including a review of governance options. However, it is clear from both the Glendale and Duncan affidavits, as well as other affidavit evidence that the Governance Committee members not only addressed the proposed governance code, but also raised other issues, including the claimed lack of information provided by Glendale pertaining to his role at Nanwakolas, described in the Duncan Affidavit as an organization formed to receive referrals and consult with the bands who are members of the organization. Duncan states that the members passed a resolution at the meeting seeking information from Glendale. There is no record of this members’ resolution before me. By email of August 16, 2022, the Governance Committee wrote to Glendale demanding the requested information.
[52] In any event, the Glendale Affidavit states that about 31 members attended the membership meeting. The Duncan Affidavit does not indicate the number in attendance, nor does the Mannila Affidavit.
[53] On August 4, 2022, Ruby Mannila sent an email to ISC stating that “84% were in favour”
of selecting five councillors and that the five elected councillors would choose who is chief. She stated that the governance code would reflect this and, when ratified, an election would be held. She also stated that Glendale had been asked to provide financial information and that she was stepping into Billy Peters’ position as hereditary chief, which had been announced at the membership meeting.
[54] On August 10, 2022, Glendale wrote to the three other HCs raising concerns about Ruby Mannila’s “attempted take over of the Nation”
and asserting that she could not change band custom with only 20% of the members in attendance. He also questioned her claim of being a hereditary chief. Ruby Mannila responded by email on August 16, 2022.
[55] On September 1, 2022, the Governance Committee sent a letter to DFN members stating that at the July 30 - 31, 2022 meeting it was decided to adopt a new form of governance. The letter states “that two choices were offered”
. Option 1 was that the Nation “would continue with the Heredity Chiefs Council as governing authority”
(I note in passing here that my decision in Da’naxda’wx First Nation found that the HCC did not have governing authority). Option 2 was that elected representatives would act as governing authority. Option 2 had received the support of 84% of the members in attendance. The letter states that the new governance code would include five elected representatives to replace the “Hereditary Chiefs Council”
and that those elected representatives would vote among themselves to decide who would be chief. Further:
The Governance Committee is planning a meeting to present the Completed Governance Code with new modifications and decisions made on July 30 and 31, 2022. Members will then be asked to declare that they accept the Code. The code is a living document and may be modified in the future. If most of the members in attendance accept the code, the Governance Code will be finalized.
[56] The letter went on to advise that a meeting date would be announced as soon as a date was set by the HCC and that the meeting and voting would be virtual.
[57] A meeting of the HCs and Ruby Mannila was held on September 9, 2022. The agenda items included a membership meeting date to ratify the governance code. The meeting transcript indicates that it was agreed that the DFN membership meeting would be held on October 22, 2022 and that the voting would be by way of “Simply Voting”
.
[58] On September 21, 2022, the Governance Committee sent a notice to the DFM membership advising that a ratification meeting would be held virtually on October 22, 2022. A short presentation would provide the details of the modifications made to the governance code “and our new Election Code”
as a result of the duly called meetings on July 30-31, 2022, followed by a virtual yes or no vote “to confirm that you accept moving forward with the Governance Code and adopting the Election Code as presented”
. Voting would be through Simply Voting and would be open for three days to accommodate members. The letter states that “The Governance Code will proceed with the approval of 50%+1 voting participants in attendance”
(emphasis original).
[59] On September 23, 2022, the Governance Committee circulated to the HCs and the DFN membership a draft election code stating that “you will be asked to accept this code as our new Election Process for our Nation”
. Simply Voting would be used to determine if the code were accepted by at least 50%+1 of the voting members present. Attached was a document entitled Da’naxda’xw/Awaetlala First Nation Election Code.
[60] The Simply Voting results, dated October 23, 2022, indicate that 140 of 167 electors voted (83.8%). In answer to the question “do you accept the newly drafted Governance Code for Da’naxda’xw First Nation”
, 73 voted yes (52.5%), 66 voted no (47.5%). In answer to the question “Do you accept the new Election Code for the Da’naxda’xw First Nation?”
, 76 voted yes (54.3%) and 64 voted no (45.7%).
[61] The Duncan Affidavit states that membership is awaiting the Notice of Nomination and Notice of Vote to be posted so that the membership may elect their council.
Analysis
Glendale Position
[62] Glendale takes the position that the elements of my Order established a path to transition the DFN from its previous model of government to a new customary government regulated by its own code. However, that the transition has not been completed.
[63] He asserts that:
5. As of November 2022, the DFN Transition has not been accomplished. Instead:
a. The de facto governance of the day-to-day affairs of the DFN rests almost exclusively in the hands of the same parties that controlled DFN operations prior to the Court Order. Peters, Duncan & Mannila, and specifically Ms. Mannila, who purports to act both as a hereditary chief and as band administrator, have retained full control over the operations of the Nation just as they had prior to the filing of the initial application for judicial review in August 2019;
b. No interim government has formed, rather, the DFN governance has limped along ostensibly in the temporary form appointed by this court in April 2021 which the Respondents describe as a “Hereditary Chiefs Council”. Following a series of all-members meeting were held in June 2021 – necessitated by the COVID-19 pandemic – DFN members showed broad support for a customary government of Hereditary Chiefs supported by a Family Leadership Council (the “Leadership Council”). Despite evidence at those meetings of consensus as to the interim members of the Leadership Council, including the identities of DFN hereditary chiefs and main families, Peters, Duncan & Mannila refused to accept any other members to the Leadership Council outside of the four hereditary chiefs who originally comprised the HCC;7 and,
c. The governance code working group that was established to develop a code for the Leadership Council has been hijacked. The Respondents have used its meetings to usurp the formal governance of the DFN. Led by Ms. Mannila with the support of Mr. Duncan, the group has unilaterally declared a wholly new form of government, an elected chief and council model, and signaled upcoming elections.With full control of the Nation’s administration, resources, and communication channels, the Respondents can proceed unchecked despite the Court Order and the will of the DFN community.
6. Chief William Gordon Glendale with the support of Chief Norman Glendale (followed by Chief James Glendale), and family leaders Patricia Nolie, and Jake Jacobson, have attempted to work in compliance with the Court Order to realize the DFN Transition but have been resisted at every turn by Peters, Duncan & Mannila.
7. The Glendale Parties come to this Court asking for assistance in enforcing the Court Order so that the DFN can realize the DFN Transition.
[64] Glendale submits that he requires orders from the Court to permit the parties to take the necessary measures to fully comply with my Order. He submits that the parties and the DFN membership will benefit from a “revised framework”
to accomplish the transition and that the DFN members will also benefit from further orders pursuant to Rules 423 and 431 restraining interference in DFN administration and operation by Ruby Mannila. Glendale submits that Patricia Nolie and Jake Jacobson “should be confirmed as members of the interim government until development of a governance code is complete”
, which would provide stability to the “interim government”
.
[65] I note that the relief sought by Glendale is quite broad. Not only does he seek to have the Court declare that the governance custom of DFN is the HCFLC model, and to again have the Court order that the DFN membership will appoint and confirm its interim members (which process has already failed) and that, in the meantime, day-to-day administration of DFN band matters shall be overseen by Gordon Glendale, Robert Duncan, James Glendale, and Bill Peters, in their traditional capacity as hereditary chiefs, as well as a representative from each of the Nolie and Jacobson families, but also that the Court order that Ruby Mannila not participate in the ordinary day-to-day administration of DFN band matters unless she is appointed as a hereditary chief in place of Bill Peters, that she not act as Band Administrator and relinquish all access and control of the DFN administration to the proposed interim council, who can appoint a new band administrator. Further, that costs of the motion be borne personally by Robert Duncan, Bill Peters, and Ruby Mannila as solicitor-client costs payable forthwith. Should Mr. Duncan, Mr. Peters, and Ms. Mannila fail to make prompt payment, the DFN will make payment to the applicant and assume the right to recover against Mr. Duncan, Mr. Peters, and Ms. Mannila.
Duncan Position
[66] Duncan refers to my Order and submits that it did not limit, restrict or remove the ability of the DFN membership to determine its custom. Rather, the Order confirmed that only DFN members, and not the band council, interim, or otherwise, has the ability of determine what constitutes the custom of the band. The Respondents submit that my Order indicates that DFN membership meetings about the custom of a band that culminate in a positive referendum vote on a governance code may establish custom. He submits that this is exactly what happened on October 25, 2022.
[67] Further, that the DFN members can rely on the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 [UNDRIPA] in the consideration of their right to self-determination, participation in decision making, as well as requiring free, prior and informed consent in advance of implementing administrative measures that may affect them, including the confirmation of their governance custom.
[68] Duncan submits that on October 25, 2022, the DFN membership ratified the Da’naxda’xw/Awaetlala First Nation Governance Code and the Election Code. This followed a member-led process. The Governance Committee completed a draft governance code, undertook community engagement, revised the code and election code and confirmed widespread acceptance of the custom through a ratification vote.
[69] He submits that Glendale asks the Court to ignore that the custom of the DFN has been established through broad consensus confirmed by ratification and instead asks that the DFN move backwards to a place that offers Glendale another opportunity to lead an alternate governance code development process, when he has advanced no evidence that he has done so since my Order.
[70] Duncan submits that Glendale seeks to enforce my Order which has already been complied with and fulfilled by the DFN membership through the ratification of the Da’naxda’xw/Awaetlala First Nation Governance Code and the Election Code.
[71] Further, that Glendale asks the Court to confirm that DFN custom is governance by the HCFLC, per the June 30, 2021 membership vote, even though the evidence demonstrates that the vote did not establish broad consensus.
[72] Finally, Duncan submits that, in essence, Glendale asks the Court to overturn the October 25, 2022 vote of the DFN membership.
Analysis
[73] In my view, the Glendale enforcement motion is without merit.
[74] It is clear from my Order that its purpose was, in highly unusual circumstances, to craft an interim remedy in a circumstance where both groups asserting the right to govern the DFN were found to have failed to establish that they had the broad consensus of the DFN to do so, resulting in a gap in band governance. As I indicated, it is, of course, “
for the DFN to determine its governance model, those persons who comprise the members of that entity and the terms of their holding office, not this Court”
.
[75] At the time of my Order, the DFN membership had indicated, by way of a governance review held in February 27, 2017, that the DFN membership desired to change its governance structure from the hereditary chief and two councillor model to the HCFLC model. However, that transition was premised on the development of a governance code that would define and delimit the new leadership structure. Thus, custom was in transition but, in the absence of a code, a change was not completed.
[76] I indicated that, in the absence of a governance code, an interim course of action to effect this change of custom could be accomplished by the DFN membership taking three steps (para 186):
confirming that it was their intention that their custom will now change to governance by HCFLC, prior to the development of a comprehensive governance code;
identifying and appointing interim hereditary chiefs and interim members of the family leadership council who would fill those positions until a governance code is developed and ratified and those positions are filled in accordance with the code; and
requiring that the interim HCFLC immediately progress the development of a governance code to be presented to the DFN for consideration and ratification within a set time frame.
[77] In my view, the evidence before me confirms that this first step was accomplished at the June 30, 2021 DFN membership vote. And, while Duncan argues that this does not establish consensus because no governance options were afforded to the membership at that time, this was because, at that time, the membership had already expressed a desire to move to a HCFLC governance model from the hereditary chief and two councillor model. That said, this does not mean that the DFN membership was forever committed to the HCFLC model of governance. This confirmation was intended as part of a process to be followed leading to the development of a governance code which would flesh out that model and would ultimately be ratified by the DFN membership.
[78] However, at the time the DFN membership confirmed its intent, it was not asked to identify and appoint interim hereditary chiefs and interim members of the family leadership council who would fill those positions until a governance code was developed.
[79] And while it appears that Glendale – and possibly even Duncan – took the view that Gordon Glendale, Robert Duncan, Bill Peters and Norman Glendale were the interim hereditary chiefs and that Jake Jacobson and Patricia Nolie were the interim family leadership council members, there is no evidence before me that these were the selections and were appointments made by the DFN membership.
[80] The result was that the DFN membership did not effect an interim HCFLC at the June 30, 2021 DFN membership meeting. It is also undisputed that the April 2, 2022 DFN membership meeting convened for this purpose descended into chaos and that no interim appointments were made at that time. In the absence of an interim HCFLC which would progress a governance code reflecting that model of governance and with the intention of ultimate ratification by the DFN members, the DFN was effectively again without leadership, although it appears that the four HCs continued – with support from ISC and Mr. Mina – to maintain the day-to-day operation of the DFN administration. More significantly, because no interim HCFLC was appointed to progress, leading to the ratification of a new governance code, the anticipated finalization of the transition of DFN custom to HCFLC governance also foundered.
[81] While I appreciate that Glendale demonizes the Governance Committee and asserts that it was essentially a vehicle for Ruby Mannila’s will and her overtaking of governance control, having read the affidavits of the other members of the Governance Committee, I cannot agree. The affidavit of Aaron Aubin states that he has participated in the Governance Committee from October 21, 2021 to the present. He attaches as an exhibit to his affidavit a Governance Code Committee Summary Report of March 8, 2023. This explains the ongoing involvement of the Governance Committee and Mr. Aubin’s role in facilitating July 30-31, 2022 and October 22, 2022 DFN membership meetings.
[82] It is, however, fair to say that after the disastrous April 2, 2022 DFN membership meeting when it became apparent that no interim HCFLC would be appointed – the primary role of which was to develop a governance code to be presented to the DFN membership to vote on its ratification – that the Governance Committee stepped into the breach. It proposed a different form of governance, not by a HCFLC but by elected representatives. The Governance Committee took steps to raise this form of governance with the DFN membership and generated and circulated a draft Da’naxda’xw/Awaetlala First Nation Governance Code and Election Code. Essentially, the Governance Committee accomplished what DFN leadership by the HCs has not managed to accomplish since 2016 – they produced a governance code.
[83] Most significantly, and not mentioned in the Glendale Affidavit, affirmed prior to October 25, 2022, is the fact that a majority of the DFN membership voted in favour of and ratified the Da’naxda’xw/Awaetlala First Nation Governance Code and the Election Code.
[84] As noted by Duncan, in my decision, I conducted an overview of the general principles applicable to band custom. As I indicated, custom is determined by the band, not by chief and council (Shotclose v Stoney First Nation, 2011 FC 750 at para 59, referencing Bone v Sioux Valley Indian Band No. 290 (1996), 107 FTR 133; Shirt v Saddle, 2017 FC 364 at para 32; Bertrand v Acho Dene Koe First Nation, 2021 FC 287 at para 37). Further, a custom must have practices, which may either be established through repetitive acts in time or through a single act such as the adoption of an electoral code (McLeod Lake Indian Band v Chingee (1998), 1998 CanLII 8267 (FC), 153 FTR 257 (FCTD)).
[85] Here the DFN members, by the ratification of the Da’naxda’xw/Awaetlala First Nation Governance Code and the Election Code, changed DFN custom to the form of governance reflected in the election code – elected representatives.
[86] This was entirely open to the DFN membership.
[87] In the result, the ultimate intent of my Order has been accomplished. A form of governance has been chosen by the DFN as demonstrated by the ratification by the DFN membership of the Da’naxda’xw/Awaetlala First Nation Governance Code and the Election Code. Accordingly, the DFN membership can now move forward to hold an election to install its elected council members.
[88] To suggest, as Glendale does, that I should now put in place a “revised framework”
to permit transition to a HCFLC governance model ignores that the DFN membership has already selected a different governance model and have ratified a governance code and an election code reflecting that choice. It is the DFN membership that makes that choice, not individual HCs or this Court.
[89] In effect, in the guise of “enforcement”
and “compliance”
, Glendale seeks to have the Court invalidate the DFN’s ratification of Da’naxda’xw/Awaetlala First Nation Governance Code and the Election Code. Moreover, and significantly, Glendale has not challenged the validity of the ratification process. Instead, he seeks to collaterally attack the ratification by way of these motions. The Court will not sanction such efforts.
[90] And while Ruby Mannila may have made every effort to undermine Glendale and may well have had her own agenda, and while Glendale may have been difficult to work with and may not have been forthcoming with financial and other information, all of that is neither here nor there in the face of an unchallenged ratification of the Da’naxda’xw/Awaetlala First Nation Governance Code and the Election Code by the DFN membership.
[91] For the reasons above, the enforcement motion will be dismissed. And, because the enforcement motion will be dismissed, so too will the motion seeking to add Ruby Manilla as a party to these matters. Glendale sought to add Ms. Manilla so that she would be bound by the terms of the enforcement order that he sought. As that order will not be granted, it is also not necessary to add her as a respondent (Steelhead LNG (ASLING) Ltd v Arc Resources Ltd, 2022 FC 756 at para 27).
[92] That, one might think and very much hope, would be the end of a long saga of governance discord for the DFN membership.
[93] Alas, it is not so. At the end of the hearing of these motions, counsel for Duncan advised the Court that, in fact, a deadlock exists preventing the calling of an election. The day-to-day operation and administration of the DFM lies with Duncan and Glendale, the latter of whom will likely not agree to making arrangements for an election. And, even if Ruby Mannila and James Glendale are also considered to be HCs, a two/two deadlock will remain.
[94] I note that the parties are, however, in agreement that the work of the DFN is simply not getting done without a proper government and with Glendale and Duncan responsible for the day-to-day administration of the DFN.
[95] This situation again leaves the DFN membership in governance limbo and again forces the Court to attempt to forge a path forward.
[96] The October 25, 2022 Election Code ratification vote was not challenged and, as it was passed by the majority of the DFN membership, in my view it prevails. The Election Code states that it comes into force upon its ratification by a majority of DFN Electors who participate in the ratification vote (s 2). Elections are to be conducted in accordance with the Elections Code (s 11). The first step in that process is the appointment of an Electoral Officer by DFN council by way of a BCR. To avoid any potential delays arising from deadlocked HCs, I will order that Glendale and Duncan, in their traditional capacity as hereditary chiefs, shall together, select an Electoral Officer and cause that person to be appointed by way of a BCR within 30 days of this decision. The Electoral Officer must be a person who meets the requirements of s 15 of the Election Code and may be selected with assistance and advice of ISC. Should Duncan and Glendale fail to do so, then, in keeping with the intent of s 14 of the Election Code, the Ruby Mannila as the Band Administrator shall, as soon as possible and with assistance and advice of ISC, appoint an Electoral Officer who meets the requirements of s 15 of the Election Code. Once an Electoral Officer has been appointed, the timeline and process as set out in the Election Code shall be followed for the conduct of the election.
[97] I appreciate that Glendale and others may attempt to challenge the outcome of the election based on an assertion that the Election Code was not properly ratified, or for other reasons that they may assert. However, election challenges commonly occur for a variety of reasons and, given the ongoing absence of a viable governing body and all of the prior delay and obstacles in effecting the chosen leadership of the DFN membership, it is to be hoped that a fair election result will be accepted by all, ending the dispute as to the DFN’s chosen form of governance.
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