T-1993-02
2003 FCT 115
Darlene Francis, James Gabriel, in his capacity as
Grand Chief, Clarence Simon, in his capacity as Chief,
and Mary Chéné, in her capacity as Chief
(Applicants)
v.
The Mohawk Council of Kanesatake, Steven Bonspille, in
his capacity as Chief, Pearl Bonspille in her capacity as
Chief, John Harding, in his capacity as Chief, and the
Attorney General of Canada (Respondents)
Indexed as: Francis v. Mohawk Council of Kanesatake
(T.D.)
Trial Division, Martineau J.--Ottawa, December 16, 2002
and January 31, 2003.
Native Peoples
--
Elections
-- Judicial review of Council decision to call by-election
"in accordance with the Electoral Code of Kanesatake"
necessitated by Chief's death -- Issue: whether non-resident
Band members can vote -- History behind current proceeding
reviewed -- Chief's death resulting in Council deadlock --
Council's Executive Director taking steps to ensure
by-election held in strict compliance with Code excluding
non-residents from voting -- Code provision not enforced at
past elections -- Since 1991, elections administered by
neutral agency, this time by officials elected without notice
given to non-residents -- Officials probably biased --
F.C.T.D. having jurisdiction to entertain application --
Indian Act permitting elections governed by customary law --
General legal principles regarding Band custom reviewed -- No
custom unless broad consensus -- Custom not frozen in time --
What meets broad consensus test -- Cases on point considered
-- Whether approval by majority of resident, non-resident
members required -- Must ascertain how electoral Code applied
in practice -- Code never officially adopted, used as
"guideline" -- Parallel practices arose, now form part of
Band custom -- Analysis of context in which Code "adopted" --
Before 1991, chiefs chosen by Clan Mothers -- Dissatisfaction
with process -- Eventually, majority voted for elective
process -- Draft Code excluding non-residents as consequence
of personal characteristics -- Also eliminating use of
outside consulting firm to run elections -- Just 6% of
eligible voters at meeting adopting draft Code in principle
-- Code not adopted by "broad consensus", not constituting
Band custom -- Strict enforcement of Code residency
requirements contravening Band custom -- Band having
implicitly accepted rules of natural justice -- Reasonable
apprehension of bias -- Issue herein not whether Indians
having right to control own election process; mere factional
dispute over process for particular election -- Contemporary,
not ancestral, custom -- No room for Aboriginal right to
self-government argument -- Decision set aside, Council
allowed time to fix election date, choose independent agency
to conduct election.
Constitutional Law
--
Charter of Rights
--
Equality Rights
-- Application to quash Council resolution regarding Indian
Band by-election -- Band's law-making powers within Charter,
s. 32 -- Court not having to determine Charter, s. 15
arguments -- S.C.C. having struck down, under s.15, Indian
Act provision excluding off-reserve members from voting --
Whether decision applicable to custom band election complex
legal issue, awaits final resolution -- No room for
Aboriginal right to self-government argument as case
involving factional dispute, not Indians' right to control
own electoral process.
Administrative Law
--
Judicial Review
--
Certiorari
-- Application to quash Council resolution concerning Indian
Band by-election -- Declarations, injunctive relief also
sought -- Issue whether non-resident band members having
right to vote -- Council's Executive Director taking steps to
ensure non-residents excluded in accordance with draft
electoral Code -- Code exclusionary provision not enforced at
elections during last decade -- Practice of retaining
consulting firm to run elections abandoned in favour of
biased, elected Band members lacking expertise -- Band
Council's powers similar to those of municipal Council --
Decisions open to judicial review as those of federal board
even in respect of election under band custom, not Indian Act
-- Just 6% of eligible voters at meeting approving in
principle draft Code -- Very low turnout compared with recent
elections -- Code since substantially modified, never
ratified by Community -- Regulations under Code not binding
as Code unratified -- Band having implicitly adopted natural
justice rules -- Non-residents not given notice of meeting to
elect Election Supervisors, no secret ballot -- Reasonable
apprehension of bias -- Decision set aside but injunction,
mandamus not now granted -- Council allowed time to fix
election date, choose independent agency to supervise
election.
Federal Court Jurisdiction
--
Trial Division
-- Application for judicial review of Indian Band Council
decision regarding by-election -- Jurisdiction challenged --
F.C.T.D. having jurisdiction to grant reliefs sought -- Band
Council is federal board, even as to elections under custom,
not Indian Act -- Since it is Indian Act that authorizes
elections governed by customary law, refusal to recognize
Band member's right to vote is reviewable under Federal Court
Act, ss. 18, 18.1 -- F.C.T.D. having jurisdiction to grant
declaratory relief although custom elections held under
band's inherent power: Bone v. Sioux Valley Indian Band No.
290 Council.
This was an application for the judicial review of a
resolution, adopted unanimously, of the Mohawk Council of
Kanesatake, calling a by-election "in accordance with the
Electoral Code of Kanesatake" necessitated by the death of
the former Chief. The applicants, three Council members and a
non-resident Band member, ask that the resolution be set
aside and also seek a declaration of Band custom and
injunctive relief. At issue was the effect of the resolution,
specifically whether non-resident Band members might
participate in the electoral process--the decision on which
could well determine the outcome of the by-election.
The functioning of the Council has been impaired by
profound internal division and much litigation. This
application had to be dealt with on an urgent basis, Chief
Gabriel's death having created a deadlock. The Council's
Executive Director has been taking steps to ensure that the
by-election takes place in strict compliance with the Code
whereunder non-residents are excluded. Non-residents were not
notified of a community meeting held to elect Election
Supervisors and a Council of Elders. It appears that
non-residents will not be allowed to vote and that their
exclusion--though mentioned in the Code--had not been
enforced in past elections. Since 1991, elections have been
administered by an independent agency while this time around
the Election Supervisors are probably biased.
Held, the application should be allowed in part;
the impugned decision should be set aside but a mandatory
injunction or mandamus should not be granted at this
time.
Respondents challenged the Court's jurisdiction to
entertain this application but that challenge could not
succeed. The Trial Division, under Federal Court Act,
section18, has power to grant the reliefs sought herein
against any federal board, commission or other tribunal, and
this and other courts have held that a band council is a
federal board. This has been held to apply in respect of a
band council election under band custom rather than under the
Indian Act. Respondents' submission that a band
council is a federal board only when exercising Indian
Act powers, could not be accepted, this Court's decision
in Bigstone v. Big Eagle not standing for the
proposition suggested by them. It is no longer correct to
suggest that the powers of a band council are somewhat
similar to those of a corporate board of directors. It is
preferable to compare band councils to municipal councils.
There is no doubt that the Band's law-making powers fell
within Charter, section 32. It is significant that it is
subsection 2(1) of the Indian Act which allows for the
recognition of customary laws governing elections to Council
so that a Council elected by that process can be said to have
status in accordance with the Indian Act. Thus, a
refusal to recognize a Band member's right to vote at an
election under Band custom is reviewable under Federal
Court Act, sections 18 and 18.1.
Nor could the Court accept the argument, that this was a
purely internal matter that should be left to the Community.
In Bone v. Sioux Valley Indian Band No. 290 Council,
this Division held that it did have jurisdiction to grant
declaratory relief even while observing that custom elections
are held under a band's inherent power rather than under
authority delegated by statute.
Prior to considering the merits of this case, certain
general legal principles regarding Band custom were reviewed.
First of all, those who rely upon "custom" must establish
what it is and the derivation thereof. The Act fails to
furnish any guidelines as to how custom is to be identified.
In Bigstone, Strayer J. said that "custom" would
include practices generally acceptable to band members and as
to which there was a broad consensus. The "practices" could
be established either by acts repeated over time or by a
single act such as the adoption of an electoral code. Custom
is not frozen in time but changes in response to changed
circumstances. A question remains as to whose consent must be
obtained to establish custom. Several cases have dealt with
the test of a "broad consensus". The answer depends upon a
number of factors. A further question is whether the approval
by a majority of both resident and non-resident members is
required for it to be said that the Community's voice as
whole has been heard.
It was necessary to ascertain how an electoral code has
been applied in practice to such questions as who is entitled
to vote and who will administer the conduct of elections.
Behaviours arising through attitudes, habits, abstentions,
shared understandings and tacit acquiescence often develop
alongside a codified rule and these may colour, specify,
complement and even limit the text of a particular rule.
These behaviours may become the new band custom. For a rule
to become custom, a practice contemplated thereby must be
firmly established, generalized and followed consistently by
a majority of the community. If there is evidence of a broad
consensus, the views of an insignificant number of members
who have persistently objected to the rule can be
disregarded. Upon a review of the case law, the question
could be framed as: whether the resolution, decision or code
was based on a majority consensus of all those who, on the
evidence, appear to be Band members, regardless of
residency.
In the case at bar, the Code and Regulations were never
officially adopted but the Code has been used as a
"guideline" for the conduct of elections. This situation has
given rise to parallel practices which now form part of the
Band custom. That is why it is open to applicants to argue
that the impugned decision, calling as it does for the
by-election to be conducted "in strict compliance" with the
Code, ought to be quashed as contrary to Band custom.
Respondents' argument was that the Code, adopted at a public
meeting in 1992, demonstrated a broad consensus and the fact
that it has not been strictly adhered to did not constitute
an amendment. In view of the parties' arguments, the Court
had to analyse the context in which the Code was "adopted"
and determine whether a "broad consensus" had been
achieved.
Prior to 1991, chiefs were chosen by the Clan Mothers
under band custom but certain elements within the Community
became dissatisfied with this manner of proceeding and
strove, unsuccessfully, for three decades to have an elective
system introduced. Having become concerned about this matter,
in 1988 Indian and Northern Affairs required that a
referendum take place but the Minister's right to conduct
such referendum was contested. The Court eventually ruled
that the referendum proceed. It took place in 1991 and was
conducted by a neutral organization retained by the
government department. A majority voted in favour of adopting
an elective process.
The neutral agency then conducted the election of an
interim Council, all Band members aged 18 or over being
eligible to vote regardless of residence. In 1992, the agency
was yet again called upon to conduct elections, this time "in
accordance with the newly defined custom election code of
Kanesatake". May 30 was to be election day even though the
Code remained to be finalized let alone submitted for Band
member approval. In March or April the draft Code was
circulated within the Community. The draft Code provided for
the exclusion from the nominating and voting process of
non-residents. An exception from this general exclusion was
granted to "domiciled" members who were absent for "temporary
reasons" such as study or vacation. It was clear that the
draft Code authors saw the exclusion of non-residents as a
consequence of a Band member's personal characteristics. This
was contrary to the April 25th public announcement that all
Band members could vote regardless of place of residence. The
draft Code also eliminated use of the outside consulting
firm, the list of those eligible to vote being drawn up by
five people from within the Community. Morevover, a "Council
of Elders" would be constituted to hear appeals by defeated
candidates.
On May 20, 1992 the draft Code was discussed at a
Community meeting and a motion that it be adopted in
principle and that the new council work on it further and
then present it to the Community for final ratification was
carried by a vote of 68 to 16. At the conclusion of the
meeting, the Grand Chief announced the new election
date--June 13--and his remarks regarding making "sure your
name is on the voters' list" did not indicate that
non-residents were excluded. The list of electors prepared by
the consulting firm did include non-residents. Of the 567 who
voted, 169 were non-residents.
Since the 1992 election, the practice has been to permit
non-residents to vote. This included a plebiscite held in
2000 regarding ratification of the Land Governance Agreement
and the Mohawks of Kanesatake Land Governance Code prior to
the enactment by Parliament of the Kanesatake Interim Land
Base Governance Act in 2001.
The 68 votes cast in favour of adopting in principle the
draft Code represented just 6% of the eligible voters at that
time. The number participating -- 85 -- was strikingly low in
comparison with the turnout at elections since 1992, or the
2000 plebiscite: 400 to 750. It could not be concluded that
respondents had established that the Code was adopted by a
"broad consensus" and could be said to constitute Band
custom.
The evidence demonstrated a continuous intention, publicly
expressed by Council resolutions and communiqués, to
permit non-residents to vote and to utilize independent
agencies to organize and supervise elections. There had never
been recourse to a Council of Elders or Election Supervisors.
The acquiescence of Band members to these practices indicated
a broad consensus. While it is true that after the 1998
election, 85 members complained that it had not been
conducted "in strict adherence with the Code" and that, at a
Community meeting in October 2002, attended by 60 people, a
resolution was passed that the election rules adopted in
principle in 1992 be followed without exception at any future
election of Grand Chief and Council, this was not necessarily
sufficient to demonstrate that the "broad consensus" already
discussed no longer existed. Inadequate notice of the
October, 2002 meeting had been given.
Strict enforcement of the Code residency requirements
would contravene Band custom. In addition, strict enforcement
of the provision in the Regulations for the election of
Election Supervisors and a Council of Elders would be
contrary to the custom of the Band since 1992.
Besides the absence of a broad consensus, there were other
legal obstacles to strict enforcement of the Code and
Regulations. First, the Code to which the impugned decision
refers is not the draft Code approved "in principle" at the
1992 Community meeting but rather the substantially modified
version apparently prepared for the 1995 election. The fact
is that no final version of the draft Code has ever been
presented to Community members for ratification although this
was required by resolution passed in 1992. Again, the
Regulations referred to in the Code could not be legally
binding until the Code was ratified.
In 1991, the Band opted for the democratic process of an
elective system. Council's recourse to independent agencies
for the administration of past elections ensured all electors
fair treatment and an absence of discrimination. This
demonstrated that the Band had implicitly accepted the rules
of natural justice. Notice of the December, 2002 meeting to
elect Election Supervisors and a Council of Elders was not
sent to non-resident members. Nor were these officials
elected by secret ballot. Furthermore, there was at least a
reasonable apprehension of bias in respect of the Election
Supervisors and Council of Elders. Finally, the Election
Supervisors had no expertise in the conduct of elections.
While it was not necessary to express a final opinion on
the arguments based on Charter, section 15, it was noted that
the Supreme Court of Canada has struck down, as inconsistent
with Charter section 15, subsection 77(1) of the Indian
Act (which excluded off-reserve band members from voting
at band council elections). The question was whether that
decision would apply to a custom band election. While that
issue has come up in recent Federal Court litigation, this
complex legal issue awaits final resolution.
The issue herein was not whether the Mohawks of Kanesatake
have the right to control their own election process; it was
rather a dispute between two factions as to the appropriate
process in this particular instance. Also, the "custom" here
at issue was a contemporary one, not an ancestral custom.
Thus there was here no room for an Aboriginal right to
self-government argument.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part
I of the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 15, 32.
Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44], s. 35. |
Federal Court Act, R.S.C., 1985, c. F-7, ss.
2 "federal board, commission or other tribunal" (as am.
by S.C. 1990, c. 8, s. 1), 18 (as am. idem, s.
4), 18.1 (as enacted idem, s. 5), 18.2 (as
enacted idem), 28 (as am. idem, s.
8). |
Indian Act, R.S.C., 1985, c. I-5, ss. 2(1)
"council of the band", 74, 81 (as am. by R.S.C., 1985
(1st Supp.), c. 32, s. 15; S.C. 2000, c. 12, s.
152). |
Kanesatake Interim Land Base Governance Act,
S.C. 2001, c. 8, s. 7. |
.
cases judicially considered
applied:
Canatonquin v. Gabriel, [1980] 2 F.C. 792; [1981] 4
C.N.L.R. 61 (C.A.); affg [1978] 1 F.C. 124 (T.D.);
Trotchie v. The Queen et al., [1981] 2 C.N.L.R. 147
(F.C.T.D.); Bigstone v. Big Eagle, [1993] 1 C.N.L.R.
25; (1992), 52 F.T.R. 109 (F.C.T.D.); Francis v. Mohawks
Council of Akwesasne (1993), 62 F.T.R. 314 (F.C.T.D.);
Frank v. Bottle, [1994] 2 C.N.L.R. 45; (1993), 65
F.T.R. 89 (F.C.T.D.); Bone v. Sioux Valley Indian Band No.
290 Council, [1996] 3 C.N.L.R. 54; (1996), 107 F.T.R. 133
(F.C.T.D.); Six Nations Traditional Hereditary Chiefs v.
Canada (Minister of Indian and Northern Affairs), [1992]
3 C.N.L.R. 156; (1991), 43 F.T.R. 132 (F.C.T.D.).
distinguished:
R. v. Van der Peet, [1996] 2 S.C.R. 507; (1996),
137 D.L.R. (4th) 289; [1996] 9 W.W.R. 1; 23 B.C.L.R. (3d) 1;
80 B.C.A.C. 81; 109 C.C.C. (3d) 1; [1996] 4 C.N.L.R. 177; 50
C.R. (4th) 1; 200 N.R. 1.
considered:
Ross v. Mohawk Council of Kanesatake, 2003 FCT 531;
[2003] F.C.J. No. 683 (T.D.) (QL); Gabriel v. Mohawk
Council of Kanesatake, 2002 FCT 483; [2002] F.C.J. No.
635 (T.D.) (QL); Bonspille v. Mohawk Council of
Kanesatake, [2003] 1 F.C. 521 (T.D.); Bonspille v.
Mohawk Council of Kanesatake, 2002 FCT 831; [2002] F.C.J.
No. 1230 (T.D.) (QL); Attorney General of Canada v.
Lavell, [1974] S.C.R. 1349; (1973), 38 D.L.R. (3d) 481; 7
C.N.L.C. 236; 23 C.R.N.S. 197; 11 R.F.L. 333; McArthur v.
Canada (Department of Indian Affairs and Northern
Development) (1992), 91 D.L.R. (4th) 666; 102 Sask. R.
300; [1992] 4 C.N.L.R. 33 (Sask. Q.B.); McLeod Lake Indian
Band v. Chingee (1998), 165 D.L.R. (4th) 358; [1999] 1
C.N.L.R. 106; 153 F.T.R. 257 (F.C.T.D.); Lac des Mille
Lacs First Nation v. Chapman, [1998] 4 C.N.L.R. 57;
(1998), 149 F.T.R. 227 (F.C.T.D.); Napoleon v.
Garbitt, [1997] B.C.J. No. 1250 (S.Ct.); Crow v. Blood
Indian Band Council, [1997] 3 C.N.L.R. 76; (1996), 107
F.T.R. 270 (F.C.T.D.); Corbiere v. Canada (Minister of
Indian and Northern Affairs), [1999] 2 S.C.R. 203;
(1999), 173 D.L.R. (4th) 1; [1999] 3 C.N.L.R. 19; 61 C.R.R.
(2d) 189; 239 N.R. 1.
referred to:
Rider v. Ear (1979), 103 D.L.R. (3d) 168; [1979] 6
W.W.R. 226; [1979] 4 C.N.L.R. 119 (Alta. S.C. (T.D.));
Cree Regional Authority v. Canada (Federal
Administrator), [1991] 3 F.C. 533; (1991), 81 D.L.R.
(4th) 659; 1 Admin L.R. (2d) 173; [1991] 3 C.N.L.R. 82; 127
N.R. 52 (C.A.); Samson Cree Nation v. Canada (Minister of
Indian and Northern Affairs) (1999), 239 A.R. 214 (Q.B.);
Canadian Pacific Ltd. v. Matsqui Indian Band, [2000] 1
F.C. 325; (1999), 176 D.L.R. (4th) 35; [2000] 1 C.N.L.R. 21;
99 DTC 5564; 243 N.R. 302; 26 R.P.R. (3d) 151 (C.A.);
RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573;
(1986), 33 D.L.R. (4th) 174; [1987] 1 W.W.R. 577; 9 B.C.L.R.
(2d) 273; 38 C.C.L.T. 184; 87 CLLC 14,002; 25 C.R.R. 321;
[1987] D.L.Q. 69; Joe v. John, [1991] 3 C.N.L.R. 63;
(1990), 34 F.T.R. 280 (F.C.T.D.); Scrimbitt v. Sakimay
Indian Band Council, [2000] 1 F.C. 513; [2000] 1 C.N.L.R.
205; (1999), 69 C.R.R. (2d) 295; 178 F.T.R. 210 (T.D.);
Gabriel v. Nicholas, [1983] F.C.J. No. 2 (F.C.T.D.)
(QL); Gros-Louis v. Huronne-Wendat Nation Council,
[2000] F.C.J. No. 1529 (T.D.) (QL); Hall v. Dakota Tipi
Indian Band, [2000] 4 C.N.L.R. 108 (F.C.T.D.).
APPLICATION for judicial review of a decision regarding an
Indian Band by-election, seeking to set it aside and also
declarations and mandamus. Application allowed in
part.
appearances:
Peter B. Annis and Ian B. Houle for
applicants.
Martin W. Mason and Sebastien Spano for
respondent the Mohawk Council of Kanesatake.
Anick Pelletier for respondent the Attorney General
of Canada.
solicitors of record:
Vincent Dagenais Gibson LLP, Ottawa, for
applicants.
Gowling Lafleur Henderson LLP, Ottawa, for
respondent the Mohawk Council of Kanesatake.
Deputy Attorney General of Canada for respondent
the Attorney General of Canada.
The following are the reasons for order and order rendered
in English by
[1]Martineau J.: The Mohawk Community of Kanesatake (the
Community or the Band) is a registered band under the
Indian Act, R.S.C., 1985, c. I-5 (the Act). The Band
is governed by the Mohawk Council of Kanesatake (the Council)
whose membership is composed of six chiefs and one grand
chief. The Council, one of the designated respondents, is
chosen according to the custom of the Band. The members'
mandates are for a period of three years. The last general
elections were held in 2001.
[2]On October 3, 2002, Chief Crawford Gabriel passed
away.
[3]On November 26, 2002, the Council adopted a resolution
(the impugned decision) calling a by-election to be held on
January 4, 2003, "in accordance with the Electoral Code of
Kanesatake" (the Code) (Exhibit "C" to the supplementary of
James Gabriel, dated December 3, 2002 and Exhibit "D" to the
affidavit of James Gabriel, dated December 1, 2002). The
resolution was adopted unanimously but now there is no
consensus on its purported effect. Stakes are high: the
participation, or on the contrary, the exclusion of
non-resident Band members from the electoral process may well
influence the outcome of the next by-election. The
applicants, three of whom are Council members and the fourth
who is a non-resident Band member, have brought the present
judicial review application to set aside the impugned
decision, to declare what the custom of the Band is and to
obtain other injunctive relief.
[4]The fact that the by-election needs to be conducted and
is to be held in accordance with the custom of the Band, as
opposed to the provisions of the Act where an order has been
made pursuant to subsection 74(1) of the Act, is not at
issue. Although the Attorney General of Canada, representing
the Minister of Indian and Northern Affairs Canada (INAC),
has been named as a respondent, he has no involvement in the
conduct of elections held in accordance with "the Custom of
the Band". Accordingly, his status is more that of a
"mis-en-cause" and he will not be referred to as a
"respondent" in these reasons for order and order; the
"respondents" are therefore the Council and the three
respondent chiefs.
[5]Profound internal division among the members of the
Council, who are associated with two competing factions, has
seriously impaired the functioning of the Council and has
resulted in abundant and persistent litigation. The three
applicant chiefs were re-elected in 2001 while the three
respondent chiefs were newly elected in 2001. Chief Crawford
Gabriel was also a newly elected Chief. Since the 2001
elections, the following applications have been brought
before the Court:
(a) Ross v. Mohawk Council of Kanesatake (file No.
T-1915-01), to set aside the termination of the acting Chief
of Police. In this case, the application was heard by the
Court, but no final order has been released as of the date of
these reasons for order and order [reasons for order rendered
29/4/03; 2003 FCT 531; [2003] F.C.J. No. 683 (T.D.)
(QL)].
(b) Gabriel v. Mohawk Council of Kanesatake, 2002
FCT 483; [2002] F.C.J. No. 635 (T.D.) (QL) (Gabriel),
to set aside the removal of the applicant James Gabriel as
Grand Chief, one of the re-elected chiefs. In that case, the
newly elected chiefs put in practice their views that
non-residents should not be allowed to vote at a Community
meeting called on December 6, 2001, for the removal of Grand
Chief James Gabriel. The Court granted an interlocutory
injunction and ordered his reinstatement pending the final
disposition of this application. In her decision,
Tremblay-Lamer J. noted that the latter who first became
Grand Chief in 1996, and was subsequently re-elected in 1998
and 2001, "strongly supported police initiatives to control
criminal activities in the territories, particularly
involving the illegal drug trade". However, she went on to
state that: "[t]he 2001 elections saw four new members
elected to Council. The new members did not share the
applicant's views. Their focus was on public accountability,
rather than police and security matters" (paragraphs 5 and
6).
(c) Bonspille v. Mohawk Council of Kanesatake,
[2003] 1 F.C. 521 (T.D.), to set aside the termination of two
police commissioners. The Court granted an interim injunction
and ordered the reinstatement of Louise Bonspille and Brenda
Etienne as members of the Kanesatake Mohawk Police Commission
until such time as an interlocutory order is rendered in this
matter.
(d) Bonspille v. Mohawk Council of Kanesatake, 2002
FCT 831; [2002] F.C.J. No. 1230 (T.D.) (QL), to set aside an
attempt by the Council to appoint new commissioners which has
been allegedly made contrary to the Tripartite Agreement on
Policing. No final order has been released in this
matter.
(e) Marie Chéné v. Mohawk Council of
Kanesatake (file No. T-1884-02), to set aside the removal
of Chief Chéné from the Council, also a
re-elected chief. The Court granted an interim injunction and
ordered her reinstatement until such time as the motion for
interlocutory injunction is heard by the Court. An order was
rendered on November 19, 2002.
[6]The state of urgency which prompted the expeditious
hearing of the present application on December 16, 2002,
flows from the fact that Chief Crawford Gabriel's death has
created a deadlock situation. Inasmuch as the aforementioned
ordinarily aligned himself with the three respondent chiefs,
his support thus permitted them to have a majority on the
Council. On December 17, 2002, further to the request made at
the hearing by the applicants, and being satisfied that the
three conditions for the issuance of an interlocutory
injunction were met, I ordered a stay of the impugned
decision pending the final disposition of this judicial
review application.
[7]At this point, I observe that the evidence on record
shows that since November 26, 2002, the Executive Director of
the Council, Barry Bonspille, purportedly acting in the name
of the Council and under the authority of the impugned
decision, has taken a number of steps to assure that the
by-election be conducted "in strict compliance" with the Code
provisions which generally provide for the exclusion of
non-resident Band members (Article 2) and for the election of
"Election Supervisors" and members of a "Council of Elders"
(Articles 7.1 and 8, paragraph 2). An attempt was even made
by the Executive Director to postpone the election date from
January 4, 2003, to January 11, 2003, in order to comply with
the Code's current prescription that there be at least 21
days between the nomination meeting and the election date
(Article 6.1).
[8]Furthermore, on December 4, 2002, a Community meeting
was held to elect Election Supervisors and a Council of
Elders. Non-resident Band members were not notified of this
meeting. It is likely, from the evidence on record, in view
of the position taken by the respondent Chiefs and the
Executive Director, acting in the name of the Council, that
non-residents would not be permitted to vote. Their position
is that they must come within one of the strict exceptions
mentioned in the Code. Assuming that some non-residents may
qualify, they would still have to take specific steps to have
their names put on the voters' list by the Election
Supervisors. In practice, this means that they would still
have to convince an Election Supervisor of the existence of
their voting right.
[9]As we will see later, the evidence shows that Election
Supervisors and members of the Council of Elders are likely
to be biased. That being said, although provision is made in
the Code or in the accompanying Regulations for the election
of a Council of Elders and Election Supervisors, those
requirements were never followed in past elections; the
exclusion of non-residents, although mentioned in the Code,
was never enforced in past elections. At all times since
1991, non-residents aged 18 years and over were allowed to
vote and the elections were carried out by a third
independent agency.
[10]In the case at bar, the applicants ask the Court to
set aside the impugned decision calling for a by-election to
be held on January 4, 2003, and a nomination meeting to be
held on December 19, 2002. The applicants further ask for a
declaration that the Band electoral custom requires all
elections and by-elections for positions on the Council be
open to all registered Band members to vote and must be
conducted by an independent agency retained by the Council to
oversee and direct the vote, all in accordance with
procedures followed in past elections conducted "in
accordance with the Code". The applicants also ask for a
declaration that the Community meeting held on December 4,
2002, to elect a Council of Elders and Election Supervisors
was held without authority by the Council and that the
persons elected at that meeting to fill the positions of
Election Supervisors and members of the Council of Elders
were therefore not lawfully elected to those positions.
Finally, the applicants ask for an order for a mandatory
injunction or mandamus requiring that a by-election be
held within 60 days following the final order of the
Court.
[11]It is not disputed that the Council adopted on
November 26, 2002, a resolution calling a special election to
be held on January 4, 2003, "in accordance with the Electoral
Code of Kanesatake", and a nomination meeting to be held on
December 19, 2002. However, the respondents deny the Court's
jurisdiction to entertain and dispose of the present judicial
review application.
[12]I consider that the Court has jurisdiction pursuant to
sections 18 [as am. by S.C. 1990, c. 8, s. 4] and 18.1 [as
enacted idem, s. 5] of the Federal Court Act,
R.S.C., 1985, c. F-7, to entertain the present application,
and as the case may be, to set aside the impugned decision,
to grant declaratory or injunctive relief with respect to the
custom of the Band and its purported application by the
Council, its Executive Director Barry Bonspille or any
election officer or other person, purportedly acting in the
name of the Council or under the authority of the impugned
decision or of the Code.
[13]First, I note that subject to section 28 [as am.
idem, s. 8] of the Federal Court Act, section
18 confers on the Trial Division of the Federal Court
exclusive original jurisdiction to issue an injunction, writ
of certiorari, writ of prohibition, writ of
mandamus or writ of quo warranto, or grant
declaratory relief, against any "federal board, commission or
other tribunal" as defined in section 2 [as am. idem,
s. 1] of the Federal Court Act. In this regard, I note
that the respondents acknowledged decisions of this Court and
other courts which have already held that a band council is a
federal board (Rider v. Ear (1979), 103 D.L.R. (3d)
168 (Alta. S.C. (T.D.)); Canatonquin v. Gabriel,
[1980] 2 F.C. 792 (C.A.) (Canatonquin); and
Trotchie v. The Queen et al., [1981] 2 C.N.L.R. 147
(F.C.T.D.)). In Canatonquin, supra, the Federal
Court of Appeal upheld a decision of then Associate Chief
Justice Thurlow of this Court (Gabriel v. Canatonquin,
[1978] 1 F.C. 124 (T.D.)) and decided that a band council
came within the jurisdiction of the Federal Court where the
election of the band council was made pursuant to the custom
of the band and not the Act. In view of the fact that the Act
applies to both a band council elected by custom or one
elected pursuant to section 74 of the Act (see the definition
of "council of the band" in subsection 2(1) of the Act), the
judgment rendered by the Court of Appeal in
Canatonquin, supra, appears to be determinative
of the jurisdictional issue.
[14]Second, I have also considered the respondents'
assertion that Canatonquin, supra, may have
been wrongly decided and that "[o]ther cases which purport to
follow or which cite Canatonquin, do so with the
proviso that a Band Council is a `federal board' when the
council exercises Indian Act powers" (respondents'
memo-randum, at paragraph 60). In this regard, they submit
that a band council's decision is only reviewable where it
flows from the exercise of a power specifically conferred
upon it by a federal act of Parliament. They rely on
Bigstone v. Big Eagle, [1993] 1 C.N.L.R. 25 (F.C.T.D.)
at pages 32-33 (Bigstone); Cree Regional Authority
v. Canada (Federal Administrator), [1991] 3 F.C. 533
(C.A.), at page 556; Samson Cree Nation v. Canada
(Minister of Indian and Northern Affairs) (1999), 239
A.R. 214 (Q.B.), at paragraph 19 and some other cases. They
also state that their approach is consistent with the
dissenting judgment of Laskin J. (as he then was) in
Attorney General of Canada v. Lavell, [1974]
S.C.R. 1349, at page 1379, in which three other judges
concurred. In that case, Laskin J. stated that "A Band
Council has some resemblance to the board of directors of a
corporation, and if the words of s. 2(g) [of the
Federal Court Act] are taken literally, they are broad
enough to embrace boards of directors in respect of powers
given to them under such federal statutes as the Bank
Act, R.S.C. 1970, c. B-1, as amended, the Canada
Corporations Act, R.S.C. 1970, c. C-32, as amended, and
the Canadian and British Insurance Companies Act,
R.S.C. 1970, c. I-15, as amended".
[15]I doubt that, for all purposes, a band council could
still be viewed or compared today to the board of directors
of a corporation. Besides having jurisdiction over the
registration of band members and the conduct of band affairs,
band councils are invested with broad law-making powers
through section 81 [as am. by R.S.C., 1985 (1st Supp.), c.
32, s. 15; S.C. 2000, c. 12, s. 152] and other sections of
the Act. In the case, for example, of traffic regulation, not
only the band members but all people who are on the reserve,
whether they are band members, residents or outsiders, may be
affected by by-laws duly adopted by band councils.
Accordingly, it is preferable to compare band councils to
municipal councils (Canadian Pacific Ltd. v. Matsqui
Indian Band, [2000] 1 F.C. 325 (C.A.)). That being said,
I recognize that the legislative powers of the Mohawk Council
of Kanesatake under the Act may be somewhat more limited
since the Kanesatake territory is not a "reserve" within the
meaning of the Act. Moreover, the Kanesatake Interim Land
Base Governance Act, S.C. 2001, c. 8, rectifies, to a
large extent, this latter deficiency. Section 7 of the latter
Act provides that the Band has jurisdiction "to make laws in
relation to the use and development of the lands in the
Kanesatake Mohawk interim land base". Those powers are
exercised through the Council. From the list of powers
enumerated in said Act (including, for example, traffic
regulation), I have no hesitation in concluding that they are
analogous to the ones generally attributed to municipal
councils and that the Band's "law making powers" come within
the ambit of section 32 of the Canadian Charter of Rights
and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, no. 44] (the Charter)
(RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R.
573).
[16]I also respectfully disagree with the purported
effects the respondents attribute to Bigstone,
supra, and the other cases cited in their memorandum.
The respondents assert that in Bigstone, supra,
the band council was exercising a power conferred under the
Act in respect of the management of the native lands and
funds rather than dealing with the election process and
therefore, it should be distinguished from the case at bar.
Nevertheless, it seems clear that this case does recognize
the jurisdiction of this Court under section 18 of the
Federal Court Act when dealing with "any federal
board, commission or other tribunal" such as "council of the
band" and it "makes no difference that they purport to have
been elected by custom rather than under the Indian
Act" in accordance with the decision in
Canatonquin, supra (Bigstone,
supra, at page 33).
[17]Moreover, the most recent case law does not support
the respondents' general proposition. I note that the present
situation is somewhat similar to the one examined by the
Court in Francis v. Mohawks Council of Akwesasne
(1993), 62 F.T.R. 314 (F.C.T.D.), where Noël J. (as he
then was) granted, under section 18.2 [as enacted by S.C.
1990, s. 5] of the Federal Court Act, an interim order
prohibiting the Mohawks Council of Akwesasne from holding a
by-election. As in this case, the Court was asked to
determine the legality of the council's decision to hold such
an election. I also note that in Frank v. Bottle,
[1994] 2 C.N.L.R. 45 (F.C.T.D.), there was an issue about the
Court's jurisdiction. The issue was the removal of a chief.
It was argued that actions under the Blood Tribe Custom
Election By-law did not constitute decisions by a "federal
board, commission or other tribunal". The by-law's validity
was challenged. The Court followed Pratte J.A.'s comments of
the Court of Appeal in Canatonquin, supra, at
page 793 and noted that the jurisdictional argument was
rejected by McNair J. (as he then was) in Joe v. John,
[1991] 3 C.N.L.R. 63 (F.C.T.D.), at page 70. Moreover, MacKay
J. who rendered the Court's decision in Frank,
supra, added that it is the Act, and more particularly
subsection 2(1) of the Act, "which provides for recognition
of the customary law under which the plaintiff, as Chief, and
the defendants, as members of the Council of the Blood Tribe,
each claim their offices" (paragraph 17), and concluded on
this point by stating that "the customary law of the Tribe
has recognition as law by reason of federal statutory law and
it is the Council so elected which has status in accord with
the Indian Act" (paragraph 19). I fully agree with
these statements and add that they are authoritative
justification for the conclusion that any refusal to
recognize a Band member's right to vote at an election
conducted under the custom of the Band is a reviewable
decision under sections 18 and 18.1 of the Federal Court
Act (Scrimbitt v. Sakimay Indian Band Council,
[2000] 1 F.C. 513 (T.D.), at paragraph 22).
[18]Finally, I am unable to accept the respondents'
assertion that this is a purely internal matter that is to be
left to the Community. In Bone v. Sioux Valley Indian Band
No. 290 Council, [1996] 3 C.N.L.R. 54 (F.C.T.D.), at
paragraphs 31 and 32 (Bone), the Court observed that
custom elections are held under the inherent power of the
"band", not from a delegation under the Act. However, this
last factor did not prevent the Court from being satisfied
that it had jurisdiction to grant declaratory relief pursuant
to an application for judicial review by virtue of paragraph
18(1)(a) and subsection 18(3) of the Federal Court
Act (Bone, supra, at paragraph 22). The
Court also noted that the issue was whether the Sioux Valley
Dakota Oyate Custom Election Code and Regulations reflected
the band's custom by enunciating practices that were
generally acceptable to members of the band and upon which
there was broad consensus (Bone, supra, at
paragraphs 27 and 32). In that case, the Court declared that
the Code was in force. I therefore conclude that the Court
has jurisdiction to entertain this application and, as the
case may be, to make any declaration with respect to the
custom of the Band and its purported application by the
Council and its Executive Director, Barry Bonspille or other
election officers, purportedly in the name of the Council, or
under the presumed authority of the impugned decision, or of
the Code.
[19]Before turning to the merits of the present case, I
find it helpful to canvass the general principles of law as
they relate to the custom of the Band.
III GENERAL PRINCIPLES
APPLICABLE TO THE CUSTOM OF THE BAND |
[20]The Act recognizes two methods for choosing the grand
chief and councillors of a band: the first is a procedure set
out in the Act itself; the other is by "custom", and
recognizes selection processes developed by First Nations. In
the latter case, First Nations determine who may vote, how
the voting is carried out, and when elections are held. In
the case at bar, what is really at issue is how the upcoming
Band custom by-election is to be conducted and who will be
entitled to vote.
[21]The jurisprudence has established that it must be
incumbent upon those who are relying upon "custom" to at
least establish what it is and the derivation thereof:
McArthur v. Canada (Department of Indian Affairs and
Northern Development) (1992), 91 D.L.R. (4th) 666 (Sask.
Q.B.) (McArthur). However, while the Act allows for
the selection of the "council of the band" by the custom of
the Band, it does not set out guidelines as to how that
custom is to be identified.
[22]In Bigstone, supra, the validity of the
procedures used to determine the rules that would govern the
composition and selection of a band council, not governed by
section 74 of the Act, was at issue. Strayer J. (as he then
was) held that at page 34:
Unless otherwise defined in respect of a particular band,
"custom" must I think include practices for the choice of
a council which are generally acceptable to members of the
band, upon which there is a broad consensus. With a newly
re-established band whose circumstances are vastly different
(e.g. the majority not being resident on the reserve) from
those of the band dissolved some 90 years earlier, it is
not surprising that innovative measures would have to be
taken to establish a contemporary "custom". The real question
as to the validity of the new constitution then seems to be
one of political, not legal, legitimacy: is the constitution
based on a majority consensus of those who, on the existing
evidence, appear to be members of the band? This is a
question which a court should not seek to answer in the
absence of some discernable legal criteria which it can
apply. While there might be some other basis for judicial
supervision if there were clear evidence of fraud or other
acts on the part of the defendants which could clearly not be
authorized by the Indian Act, there is no evidence of any
such activities before me. [My emphasis.]
[23]The constituent elements of custom may therefore be
summarized as follows:
(1) "practices" for the choices of a council;
(2) practices must be "generally acceptable to members of
the band"; and
(3) practices upon which there is a "broad consensus".
[24]As I understand it, this jurisprudential definition of
custom has two components. The first involves "practices"
which may either be "established" through repetitive acts in
time, or through a single act such as the "adoption" of an
electoral code. This was in fact noted in McLeod Lake
Indian Band v. Chingee (1998), 165 D.L.R. (4th) 358
(F.C.T.D.) (McLeod), where Reed J. (as she then was)
described the nature of custom in paragraph 8 as a "practice
established or adopted as a result of the individuals to whom
it applies having accepted to be governed in accordance
therewith". Further, she emphasized in paragraphs 10 and 17
the evolutionary nature of custom depending on changing
circumstances:
Also, custom by its nature is not frozen in time It can
and does change in response to changed circumstances. A band
may choose to depart from oral tradition and set down its
custom in written form. It may move from a hereditary to an
electoral system. It may choose to adopt as its customary
practices, practices and procedures that resemble the
election procedures used to elect municipal or provincial
governments. I cannot interpret the reference to "custom of
the band" in subsection 2(1) as preventing a band from
changing the custom according to which it governs itself from
time to time in response to changing circumstances.
. . .
The defendants' main argument is that to allow amendment
of the custom of the band by majority vote of the band
members is to impose a non-customary method of selection.
That is, that a determination of how the custom of the band
may be changed or determined is itself a determination of the
method of selection. That may be the inescapable consequence,
but I return to what is fairly established in the
jurisprudence, that the custom of the band is the practices
for selecting the council of the band that are generally
acceptable to members of the band, upon which there is broad
consensus As noted above, I cannot conclude that band custom
is frozen in time.
[25]It is recognized that the content of the custom of a
band will vary from time to time, according to the will of
the members of the band. This principle was highlighted in
Six Nations Traditional Hereditary Chiefs v. Canada
(Minister of Indian and Northern Affairs), [1992] 3
C.N.L.R. 156 (F.C.T.D.) (Six Nations Traditional
Hereditary Chiefs). Rouleau J. stated as follows [at
pages 163-164]:
The plaintiffs did not succeed in persuading me that
custom would be infringed if a referendum were held. It is
true that the Constitution Act, 1982 entrenches the
customs of Aboriginal peoples, but if the latter decide that
they will no longer elect the band council in accordance with
custom, they cannot be accused of infringing their own
customs. That would be illogical.
[26]The second component of the definition of custom,
therefore, involves a subjective element, which refers to the
manifestation of the will of those interested in rules for
determining the electoral process of band council membership
to be bound by a given rule or practice. However, the
remaining question is: whose consent must be obtained for the
purposes of establishing custom? More specifically, what
threshold must be reached for practices to be "generally
acceptable to members of the band", and what is the meaning
of a "broad consensus"? Are these two "standards" one and the
same, or are they cumulative? The "broad consensus" needed to
support a band custom system has been generally discussed in
the following cases:
[27]In Bone, supra, a band that had
previously been governed by section 74 of the Act elected to
become a custom band. This change was approved after two
plebiscites were held in which a majority of the voters
approved the change. Heald D.J. (as he then was) found that
the code and regulations that were subsequently adopted were
[at paragraph 25] "nothing more than an attempt to put down
in some kind of recognizable and written form the electoral
practices of this particular Band" and that there was no
requirement under the Act that a band put in writing its
custom with respect to the selection of the band's
council. However, it was not entirely clear whether
the band membership had also approved the election code that
was eventually used to select the chief and council under the
new custom regime. In determining whether the subsequent
election of 1994, which had been held in accordance with that
code, was valid, Heald D.J. asked himself whether the code
reflected the custom of the band: in other words, did it
enunciate practices that are generally acceptable to members
of the band and upon which there is a broad consensus?
According to Heald D.J., the answer was to be found in the
conduct of the band in relation to the March 14, 1994
election and the events that followed. He noted that the
election had been conducted in accordance with the election
code that was being challenged, with no objection having been
registered until the election was lost. He interpreted the
lack of objection at an earlier date as evidence that the
election had been conducted in accordance with what the band
had adopted as the custom of the band.
[28]In McArthur, supra, the Saskatchewan
Court of Queen's Bench found that the Interim Band Council
was accepted by all of the 109, or 113, individuals generally
acknowledged, at that time, as being legitimate descendants
of members of the previous Pheasant Rump Band. It went on to
note that [at page 684] "[t]he appellants participated in the
process which resulted in the establishment of the Interim
Band Council. The evidence permits of no other conclusion
that the establishment of the Interim Band Council resulted
not just from `a majority consensus' of those apparently
entitled to be members of the new Band but from unanimous
consensus".
[29]In Lac des Mille Lacs First Nation v. Chapman,
[1998] 4 C.N.L.R. 57 (F.C.T.D.) (the First Nation),
discussions were apparently held in 1995 among the members of
the First Nation and a new Custom Leadership Selection Code
(the Selection Code) was drafted along with Referendum
Regulations and a draft Financial Administration Law. By
referendum of the First Nation, the Selection Code was
allegedly adopted by the First Nation. Counsel for the
applicant submitted that, with only 73 votes validly cast, it
was not possible to state that the Selection Code was adopted
according to the criteria established in Bigstone,
supra. Thus, the issue was whether the Selection Code
was generally acceptable and whether it was supported by a
broad consensus. Cullen J. (as he then was) concluded as
follows at paragraphs 29 and 34:
The unique situation of the members of this First Nation
must be considered in such a discussion. According to
paragraph 20 of the affidavit of Ron Bachmier there are
approximately 300 members of this First Nation who are
eligible to vote. However, the location of only approximately
130 of these members is known. The applicant does not
contest these figures. The minutes of the 1990 general
meeting, at which a Chief and Councillors were elected,
indicates that somewhere in the neighbourhood of 40 eligible
voters participated. This is evidenced by the minutes of the
1990 General Meeting which show that 45 votes were cast in
the election of Chief and 38 (114 / 3) in the voting for the
Councillors. The minutes of the 1996 election (Exhibit "E" to
the affidavit of Roderick Sawdo) indicate that 45 voters were
registered. There has been no other evidence presented on the
issue of voter participation. There is a pattern of general
non-participation even by known members who are eligible to
vote. I find that the participation of 86 voting members
which resulted in 73 votes being counted, out of which 64
votes were in favour of the Selection Code and 7 were against
with one "no opinion" and one spoiled, constitutes a broad
consensus sufficient in these special circumstances to
consider the Selection Code to now constitute Band
Custom.
. . .
In the result, I find that the respondents Lawrence
Chapman, Elizabeth Boucher, Ron Bachmier and James Nayanookee
[sic] constitute the proper Chief and Council of the
First Nation Lac des Mille Lacs. Furthermore, the Custom
Leadership Selection Code is the official band custom and its
procedures should be followed in all subsequent selections of
Chief and Council until such time as the custom is changed
according to a broad consensus of the band members. If
the members of this First Nation wish to change their
leadership, they will have the opportunity to do so within
five years of the last selection process according to the
provisions of their own Selection Code. [My emphasis.]
[30]Finally, one of the clearest articulations of what is
the requisite subjective element for the establishment of the
custom of a band is found in McLeod, supra,
where Reed J. stated as follows in paragraphs 18-19:
The question that remains is whether "broad general
consensus" equates to a "majority decision of the Band
members attending a general meeting of the Band convened with
notice". In my view, it may do so, or it may not, depending
upon a number of factors. If for example, the general
meeting was held in a location or at a time when it was
difficult for a number of members to attend, and there was no
provision for proxy voting, it may not meet the broad
consensus test. If the notice was not adequate in not
providing sufficient detail of what was proposed, or was not
given sufficiently in advance of the meeting to allow people
a realistic opportunity to attend then it would not be.
There are also situations in which those who do not vote
may be signalling a willingness to abide by the majority
decision of those who do. I am of the view that approval
by a majority of the adult members of the Band is probably a
safe indication of a broad consensus (the age of majority
being a matter for the band to determine). Whether a majority
decision by the Band members attending a general meeting
demonstrates a broad consensus depends on the circumstances
of that meeting. [My emphasis.]
[31]An unresolved question is whether "broad consensus"
mean the approval of a majority of both resident and
non-resident band members, thereby ensuring that the
community's voice as a whole has been heard. In Bone,
supra, Heald D.J. stated as follows at paragraphs
44-45:
However, subsection 77(1) has no relevance to these
proceedings. The votes in question, in the plebiscites of
June and July, 1993, were not elections as contemplated by
section 77 of the Indian Act: they were not elections
for the office of Chief and/or Councillors. The votes in
question were plebiscites held to comply with the
Department's policy in relation to the revocation of a
section 74 ministerial order. The said policy incorporated
the definition of elector as found in the Indian
Act, which is set out above. This definition does
not contain a residency requirement. It does provide for
the disqualification of a potential elector in part (c) of
the definition. And, as was discussed above, prior to the
decision in Batchewana, if the election were for Chief
or Councillor, an elector was disqualified if he/she did not
reside on the Reserve. However, the plebiscites in question
were not such elections. Furthermore, there was no
provision in the Act that disqualified electors for any
reason, with respect to a plebiscite. Therefore, in my view,
it follows that if a Band member had met the first two
requirements of the definition, that is he/she was registered
on the Band List and was eighteen years of age or older, then
he/she was an eligible elector according to this definition,
and accordingly should have had the opportunity to vote in
the plebiscites held in pursuance of the Department's policy.
However, this was not the case. Non-resident Band members
were not considered eligible voters and were not permitted
the opportunity to vote in the plebiscites. In spite of
this apparent deviation from the Department's policy, on the
basis of the plebiscite results, the Department did recommend
to the Minister that the section 74 order be repealed.
Thus, the Respondents were correct in submitting that
non-resident Band members should have been given the
opportunity to vote in the plebiscites. [My
emphasis.]
[32]Bone, supra, dealt with the opportunity
for non-resident band members to vote in the plebiscites
regarding the question of a change to become a custom band.
However, I find Heald D.J.'s reasoning to be equally
applicable to the case of a vote for a resolution regarding
the process of conduct of future elections in a custom band.
It is noteworthy that Strayer J.'s definition of custom in
Bigstone, supra, does not contain a residency
requirement and does not disenfranchise some band members
from voting.
[33]Also of great relevance to the present case is the
British Columbia Supreme Court decision in Napoleon v.
Garbitt, [1997] B.C.J. No. 1250. In that case, the band
had passed the Saulteau Indian Band Government Law (the Law)
in 1988 under which it was recognized by INAC (then the
Department of Indian Affairs and Northern Development) as a
band which selected its council according to the custom of
the band. The Law contained a provision as to its own
amendment. In the fall of 1996, a certain number of
resolutions were passed concerning the procedures for
electing the chief and council. The issue raised before the
Court was how the Law, as to amendments, was to be viewed and
interpreted. Parrett J. noted that the proper interpretation
of that Law, applying the custom of the band, was that for
the Law to be amended, appropriate notice had to be given to
citizens of the proposed amendments, citizens had to be
consulted on the desirability of the proposed amendments, and
the majority of citizens had to consent to, or vote for, the
amendments. However, he also noted that the strict wording of
the amendment provisions of the Law had not usually been
followed by the band in practice. Rather than operate with
strict technical adherence to the Law, the band had adapted
the Law to reflect the band's needs as they emerged. The
Court concluded that the custom of the band with respect to
"amending" its Law had been to seek consensus within the band
by means of informal votes or by means of band meetings. The
actions of the so-called "dissidents", the defendants in that
case, represented attempts to pursue change by democratic
means while the actions of the other side, the plaintiffs,
appeared to be an attempt to retain power at the expense of
democratic principles.
[34]Having said that, I do not consider that it can be
claimed that all customary rules which may be invoked by
individual band members have a content exactly identical to
that of the rules contained in an electoral code. On a number
of points, the areas governed by the two sources of law may
not exactly overlap, and the substantive rules in which they
are framed may not be identical in content. Indeed, this will
often be the case with more technical rules governing the
conduct of elections which may or may not be applied
consistently in practice, depending on the attendant
circumstances. The relevant question is whether a particular
rule in an electoral code also exists as a customary rule,
either because the code has merely codified the custom of the
band, or caused it to "crystallise", or because it has
influenced its subsequent adoption.
[35]Thus, one will have to determine how an electoral code
has been applied in practice in a given situation, for
instance vis-à-vis the question of who is
entitled to vote and who will administer the conduct of the
elections or by-elections. It is quite common that behaviours
arising through attitudes, habits, abstentions, shared
understandings and tacit acquiescence develop alongside a
codified rule and may colour, specify, complement and
sometimes even limit the text of a particular rule. Such
behaviours may become the new custom of the band which will
have an existence of its own and whose content will sometimes
not be identical to that of the codified rule pertaining to a
particular issue. In such cases, and bearing in mind the
evolutionary nature of custom, one will have to ascertain
whether there is a broad consensus in the community at a
given time as to the content of a particular rule or the way
in which it will be implemented.
[36]For a rule to become custom, the practice pertaining
to a particular issue or situation contemplated by that rule
must be firmly established, generalized and followed
consistently and conscientiously by a majority of the
community, thus evidencing a "broad consensus" as to its
applicability. This would exclude sporadic behaviours which
may tentatively arise to remedy certain exceptional
difficulties of implementation at a particular moment in time
as well as other practices which are clearly understood
within the community as being followed on a trial basis. If
present, such a "broad consensus" will evidence the will of
the community at a given time not to consider the adopted
electoral code as having an exhaustive and exclusive
character. Its effect will be to exclude from the equation an
insignificant number of band members who persistently
objected to the adoption of a particular rule governing band
elections as a customary one.
[37]In my view, in light of all the above-mentioned cases,
the real question as to whether a particular band resolution,
decision or an adopted electoral code reflects the custom of
the band can be framed as follows: is the resolution,
decision or code based on a majority consensus of all those
who, on the existing evidence, appear to be members of the
band, regardless of residency?
[38]With these general principles in mind, I will now
consider what is the custom of the Band applicable to the
present dispute.
IV ANALYSIS OF THE CUSTOM
OF THE BAND |
[39]Conflicting views have been taken with regard to the
character and effects of the Code to which the impugned
decision refers. The applicants stress that the Code and
accompanying Regulations have never been officially adopted.
As we will see, a resolution adopting "in principle" a former
version of the Code was adopted at a Community meeting held
on May 20, 1992. The Code, as we will also see, has been used
generally as a "guideline" for the conduct of elections. This
fact has allowed the development of parallel practices which
now form part of the custom of the Band. Accordingly, the
applicants ask the Court to set aside the impugned decision
and to grant other declaratory and injunctive relief inasmuch
as a by-election ordered by the Council to be conducted "in
strict compliance" with the Code would be contrary to the
custom of the Band.
[40]The respondents allege that the Code was adopted by
the Community in a public meeting held on May 20, 1992, at
which a "broad consensus" was achieved. In view of its
approval, the Code has force of law. Therefore, it can only
be changed by the Community in a public meeting. The fact
that the Code has not been strictly adhered to cannot amount
to an amendment of the Code. The Code can only be amended by
a resolution of the Council subsequently ratified by the
Community. No such resolution was ever passed. Accordingly,
the Council, which is simply carrying out the wishes of the
Community, may take any measures to ensure the procedure for
the election of its members is followed "in its entirety
without deviation or exception" (resolution adopted on
October 19, 2002, at a Community meeting, Exhibit "H" to the
affidavit of James Gabriel, dated December 1st, 2002).
[41]In view of the contradictory positions taken by the
parties, it is therefore necessary to analyse the context in
which the Code was "adopted" and whether a "broad consensus"
has been achieved with respect to its adoption and subsequent
application. Some history will provide the proper factual
background.
Situation prior to 1991
[42]Traditionally, prior to 1991, the selection and
appointment of the grand chief and other chiefs of the
Council were made by the Six Nations Traditional Hereditary
Clan Mothers in accordance with the custom of the band. The
Council at that time consisted of one grand chief and eight
chiefs. The grand chief and two chiefs were selected from the
Turtle Clan. Three chiefs were selected from the Bear Clan
and three chiefs were selected from the Wolf Clan.
[43]Over the years, elements of the Community grew
dissatisfied with this mode. Attempts, all unsuccessful, were
made in the sixties, the seventies and the eighties to
replace the traditional system by an elective one. Those
attempts are well explained in two decisions of this Court:
Gabriel v. Nicholas, [1983] F.C.J. No. 2 (F.C.T.D.)
(QL); and Six Nations Traditional Hereditary Chiefs,
supra.
[44]As the Court points out in the former decision, INAC
became concerned about the incessant requests of some groups
of band members to have an elective process. In 1988, it was
therefore decided to ask the Community to pronounce itself on
this issue. A referendum was to be held in June 1988. The
Minister's right to hold a referendum was contested.
Interested parties agreed that the Court should first dispose
of the jurisdictional issue. Further delays ensued. In the
meantime, what was labelled by the media as the "Oka Crisis"
received national coverage during the summer of 1991. The Oka
Crisis was a 78-day standoff which was sparked when the
municipality of Oka tried to expand a golf course onto
disputed land which was claimed to be Mohawk territory. In
the early days of this standoff, a Sûreté du
Québec officer was shot and killed. The judgment of
the Court came a few months after the Oka Crisis. On February
20, 1991, the Court ruled that the holding of a referendum
was neither unfair, arbitrary nor illegal.
[45]The referendum was held on May 31, 1991. It was
conducted by the Canadian Election Consultants, a neutral
organism hired by INAC. A majority of the Band members
favoured the election process. Although the particular
results of the plebiscite are not part of the Court's record,
all parties agree that there was a broad general consensus to
replace the traditional mode of selecting and appointing the
members of the Council by an elective system. But what
kind?
Transition
[46]The election of an interim Council was completed on
June 27, 1991. It was conducted by the same neutral agency.
The defined voter eligibility in this election consisted "of
all members of the Kanesatake Mohawk Band
(regardless of residence) aged 18 years or over on
voting day" (Exhibit "D" to the affidavit of Nathalie Nepton,
dated December 10, 2002). Seven chiefs and one grand chief
were elected for a term of ten months. One of their
priorities was to develop the Code which could be used for
the next coming election which was planned to take place at
the end of April 1992. It was also expected that before the
election, the Community would have adopted and ratified the
proposed code.
[47]Again, in April 1992, the same consulting firm was
assigned by INAC to conduct the 1992 election "in accordance
with the newly defined custom election code of Kanesatake".
But the Code had yet to be finalized and submitted for the
approval of the Band members. The Council tentatively set the
election day on May 30, 1992. On April 25, 1992, Grand Chief
Jerry Peltier, in the name of the Council, publicly announced
that "a mail-in voting process will be in place for this
election and will receive the voting of Kanesatake Mohawks
who do not live in the Kanesatake Community. There is also to
be a mobile pole [sic] available on the 23rd, 24th and
30th of May 1992" (press release, dated April 25, 1992).
Draft Electoral Code
[48]Either in March or April 1992, a "draft Electoral
Code" (the draft Code) was circulated among members of the
Community. The evidence on record does not show if said
document was circulated among non-residents as well. An
important feature of that draft Code was the reduction of the
size of the Council. The aforementioned would be reduced from
nine to seven members. I will not insist on this aspect since
all parties agree that the smaller size, which corresponds to
the size of all the councils elected since 1992, is part of
the custom of the Band. However, I note that the Council in
subsequent resolutions passed since 1992 has consistently
referred to the said reduction as an "amendment". This shows
that some sort of custom, although unwritten, incorporating
features of the 1991 election, existed at the time the draft
Code was circulated. This is not to say, however, that this
"custom" was definite and that it could not evolve through
the adoption of a new set of rules and election procedures.
In fact, that was precisely the purpose of the draft Code
which was circulated.
[49]Another distinguishing feature of the draft Code was
the general exclusion of non-residents from the nominating
and voting process under Article 2.1 (Draft Electoral Code,
Exhibit "A" to the affidavit of Andrew Hayes, dated December
16, 2002):
2.1 Every member of the Mohawk Community of Kanesatake who
is of the age of eighteen (18) years or upwards may nominate
and elect eligible persons to sit on the Mohawk Council of
Kanesatake.
[50]However, an exception was provided in the case of Band
members "domiciled" in the Community, but who are absent for
"temporary reasons". Article 2.2 reads as follows:
2.2 Any member of the
Mohawk Community of Kanesatake who is domiciled in the
Community but who is absent for temporary reasons, such
as employment, studies, illness or vacation, shall not,
for such reasons only, cease to be an eligible
voter. |
[51]Moreover, it is clear that the authors of the draft
Code viewed the exclusion of non-residents as a consequence
of a Band member's personal characteristics such as birth or
marriage. This is evidenced by the "Note" that immediately
follows Article 2.2:
NOTE: To be
"domiciled" means to have both a connection with the
Community by birth or marriage and also to have an
intention to remain part of the Community. |
[52]As can be seen, Article 2 of the draft Code was in
sharp contrast with the public announcement made on April 25,
1992, which allowed all members of the Band, aged 18 years or
over, on voting day, to vote, regardless of their residence,
and constituted a clear departure from the Band's burgeoning
custom followed during the election of June 1991.
[53]Other fundamental changes introduced by the draft Code
concerned the persons who would be responsible for conducting
the elections. As we have seen, they were conducted in 1991
by an outside consulting firm which was mandated to do the
same in 1992. Under the draft Code, the list of eligible
voters would now be established by five persons within the
Community. The latter were designated afterwards in the
current version of the Code as "Election Supervisors"
(Article 7.1) Moreover, the Community would also establish a
"Council of Elders" and its role would be to hear appeals
made by defeated candidates (Article 8). However, these
provisions of the draft Code did not provide details on the
election and functioning of the Council of Elders. For the
most part, these aspects, together with many essential
ingredients respecting the nomination meeting and the
responsibilities of the Election Supervisors, are to be found
in the Regulations adopted by the Council under Article 9 of
the Code.
[54]There were Community consultations from March 3 to May
11, 1992. This was done by telephone interviews or workshops.
Some 86 persons expressed their opinions. Their comments on
the draft Code were reflected in a document which reproduced
the provisions of the draft Code together with the
participants' "proposed changes" (Exhibit "A" to the
affidavit of Andrew Hayes). The evidence shows that these
consultations were limited to the draft Code itself. They did
not include any proposed Regulations. The evidence on record
does not show if non-residents were invited to participate or
did in fact participate in the consultative process. In view
of the particular comments reproduced in said document, it
can be inferred that non-residents were excluded from the
consultative process. In any event, the latter document was
submitted for "discussion" at a Community meeting that was
held on May 20, 1992, at 7:30 p.m., in the Kanesatake
gymnasium. Draft Regulations under Article 9 of the Code, if
they ever existed, were not part of the "discussion"
package.
The May 20, 1992 meeting
[55]The May 20, 1992 meeting was presided over by Grand
Chief Peltier. He reminded the audience that at a Community
meeting held on May 5, 1992, it was decided to "delay both
the elections and also the implementation of the election
code for at least 2 weeks" (transcript of the minutes of the
meeting held on May 20, 1992, Exhibit "B" to the affidavit of
James Gabriel, dated December 15, 2002). He also explained
that in the meantime the "discussion paper", to which
reference was made above, with a "memorandum" dated May 13,
1992, from Chief Clarence Simon explaining the results of the
surveys "were going to be distributed to all community band
members" ("Results of Community Consulations [sic] re:
Election Code", Exhibit "A" to the affidavit of Andrew
Hayes). However, there is insufficient evidence on record to
permit the Court to infer that those documents were in fact
distributed to all Band members, regardless of their place of
residence, with a notice of the purpose of the May 20, 1992
meeting. This important lacuna, together with the nature of
the resolution adopted at this meeting, cast great doubt on
the respondent's submission that the Code is legally in force
today and can only be "amended" by a new vote of the Band
members.
[56]Immediately following the opening statements made by
Grand Chief Peltier, one of the participants, Mr. Morelely
Oke, an elder, intervened and moved that "we adopt the
electoral code as is now on a [sic] interim basis";
the latter having stated earlier that the draft Code "is a
working document and that's what it's meant to do
. . . and I think that most of us here will realize
that any trouble that we have with it will come out after and
the new council can deal with the things that didn't work".
The motion was seconded by Mr. Richard Gabriel who added that
"the elections should continue and the new council work on
the new codes [sic]" (transcript of the minutes of the
meeting held on May 20, 1992, supra, at page 3).
[57]Further to these interventions, Grand Chief Peltier
called a vote on the following resolution (ibid, at
page 3):
Be it resolved that the draft election code be adopted in
principle and that the new council carry out further work on
the code and present it to the community for final
ratification.
[58]The results of the vote called above being in favour
68, against 16, abstained 1, the resolution was
accordingly adopted (ibid, at page 4).
The 1992 general election
[59]At the end of the May 20, 1992 meeting, Grand Chief
Peltier announced that the election would now be held on June
13, 1992. He explained that "[t]he nominations have been
going on and will continue" and that the deadline for the
nominations would be on May 23, 1992, at 10:00 p.m. As can be
seen, there were 21 days between the last day of the
nominations and the election date, a fact upon which the
applicants rely on to affirm that since 1992 the custom of
the Band is to allow at least 21 days (and not 12 days as
mentioned in the Regulations) between the nomination meeting
and the election day. Grand Chief Peltier concluded the
meeting by mentioning: "make sure your name is on the voters'
list and you have to be 18 years and over the last day to
check whether your name is on the voters' list is May the
30th, which is a Saturday 1992 [sic]" (ibid, at
page 4). This statement clearly suggests that all Band
members aged 18 years and over regardless of their residence
were entitled to vote at this election. Actually, the list of
electors prepared by the consulting firm, dated June 4, 1992,
included non-resident Community members as well (list of
electors for the June 13, 1992 Kanesatake Mohawk Council
Election, letter dated May 27, 1992 from J. Donegani,
Exhibits "B" and "D" to the affidavit of Nathalie Nepton,
dated December 10, 2002). 1336 Band members who were still
living appeared on the Band's list, but some 283 were either
deceased or could not be found or identified. There were 1107
eligible voters left, out of which 739 were residents and 368
were non-resident Community members. Out of that number, some
567 electors voted on June 13, 1992, including 398 residents
and 169 non-residents. Grand Chief Peltier was re-elected to
that position together with six other candidates as chiefs
for a three-year period.
[60]Although the draft Code has been in fact remodelled
since the May 20, 1992 meeting, what appears to be the
current version of the Code and accompanying Regulations have
never been officially adopted by the Council, nor have they
been ratified by the Community. It is therefore necessary to
examine how the draft Code has been implemented in
practice.
Practice since the 1992 general election
[61]It seems that the words "in accordance with the
Electoral Code of Kanesatake", or other words with the same
meaning, appearing in some past Council resolutions
(applicants' application record, Resolutions dated May 1,
1995, November 2, 2002, May 19, 1998, May 29, 2001, Exhibits
"3B" and "3C" as well as "4A" and "4B") have never been
intended to exclude the participation of non-residents and
the use of outside consultative firms. Notwithstanding the
restrictions found in Article 2 of the Code (which was
unilaterally modified after May 20, 1992, to take into
account some of the comments made earlier by some
participants in the consultative process), the practice of
the last ten years is to let all non-residents vote at all
the elections that followed the 1992 general election:
(a) On August 14, 1993, the Council held a by-election for
three vacant positions. The same consulting firm was hired.
All Band members, regardless of their residence, were
eligible to vote (Public Notice, dated June 2, 1993, Exhibit
"A" to the third supplementary affidavit of James Gabriel,
dated December 16, 2002). The voters' list had 1104 electors
and 289 electors voted (Band list (18 years and over August
14, 1993) and list of electors, comparisons, Exhibit "G" to
the affidavit of Nathalie Nepton, dated December 10,
2002).
(b) Again on June 10, 1995, a general election for the
grand chief and six chiefs on the Council was held. The term
was also for three years and the election was apparently
conducted according to the draft Code which was adopted in
principle on May 20, 1992. This election was conducted by
"Coopers and Lybrand" of Montréal and all Band
members, "regardless of their residence", were invited to
vote (Resolution dated May 1, 1995, Exhibit "I" to the
affidavit of Nathalie Nepton, dated December 10, 2002).
(c) The same form of resolution was signed by the Council
in 1998 and again in 2001 for the general elections held on
June 27, 1998, and July 14, 2001 (resolutions of May 19, 1998
and of May 29, 2001 in the second supplementary affidavit of
James Gabriel, Exhibits "A" and "B"). The official Notices of
Election issued by the Council on both occasions clearly
state that all Band members aged 18 years and over on voting
day were eligible to vote (Exhibits "L" and "S" to the
affidavit of Nathalie Nepton, dated December 10, 2002). Six
hundred and three electors voted in the June 27, 1998
election. Official results for the July 14, 2001 election
were not provided to the Court; however, as appears from the
affidavit evidence on file, non-residents did, in fact, vote
at this latter election (affidavits of Rita Jacobs, Helene
Gareau, Gisele Mayer Masion, Carol Simon, Dorice Cardinal,
Carmen Richard Philibert, Guy Richard, Marie-Paule Richard,
Laurence Richard Lanthier, Jean-Guy Mayer, Pierre Demers,
Josée Lavallée, Allen Ernie Benson and Mark
Lavallée).
(d) Prior to the general election of 1998, there was a
by-election on July 6, 1996, for the position of grand chief.
Again, non-residents voted at this by-election. As in the
preceding elections, and the 1998 and 2001 elections, there
were advanced and mail-in polls (Exhibit "R" to the affidavit
of Nathalie Nepton, dated December 10, 2002). Four hundred
and fifty-one electors voted and the applicant James Gabriel
was elected with 54% of the ballots cast (official results,
Kanesatake July 6, 1998 by-election, Exhibit "K" to the
affidavit of Nathalie Nepton, dated December 10, 2002).
(e) In June 2001, the Kanesatake Interim Land Base
Governance Act [S.C. 2001, c. 8], was adopted. Prior to
the adoption of that Act, a plebiscite was held in September
2000 with respect to the ratification by the Community of the
Land Governance Agreement and the Mohawks of Kanesatake Land
Governance Code. All Band members 18 years of age and over,
including non-residents, were entitled to vote on the
ratification. Four hundred and seventy-six voters expressed
their opinion (Legal opinion of the Honourable Lawrence A.
Poitras, dated November 30, 2000, at page 7; Exhibit "H" to
the reply affidavit of James Gabriel, dated December 12,
2002).
Subjective element
[62]On June 13, 1992, out of 1336 living Band members,
1107 could be found and were allowed to vote. Therefore, 68
votes cast in favour of the adoption "in principle" of the
draft Code represent only 6% of the eligible voters at that
time. Furthermore, the evidence on record does not show that
proper notice or the time and purpose of the May 20, 1992
meeting were given to all Band members interested,
particularly the non-residents, since their voting rights
were affected by the draft Code. Moreover, there is no way of
knowing who actually voted on May 20, 1992, and who was
previously consulted by telephone or participated in a
workshop. But, more importantly, the figure of participation,
85 persons, is strikingly low compared to the usual numbers
counted in past elections since 1992 or in the 2000
plebiscite, and which (except for the 1993 by-election)
normally varied between 400 and 750 voters who exercised
their rights to vote out of some 1100 eligible voters. In
view of the purported effect that the respondents want to
attach to the Code which they present as a sort of
"Constitution" of the Band, the participation should be
significant. This is certainly not the case.
[63]Inasmuch as reliance is placed by the respondents on
the fact that the draft Code was adopted "in principle" at
the Community meeting held on May 20, 1992, they have failed
to establish that the participation of 85 persons which
resulted in 68 votes in favour, 16 against, and one
abstention, constitutes a "broad consensus" sufficient in
these special circumstances to consider that the Code now
constitutes the custom of the Band. I realize that this
finding is contrary to the preliminary conclusion reached by
Tremblay-Lamer J. in Gabriel, supra, who
declared herself "satisfied, at this stage, that there is
strong evidence that [the Code] represents the custom for
choice of council members, upon which there is a broad
consensus" (paragraph 17). However, the evidence discussed
above, which may not have been brought to the attention of
Tremblay-Lamer J., convinces me that no such general
conclusion can be reached where it comes to fundamental
principles of exclusion of non-residents and the enforcement
of the Code and Regulations' provisions respecting the
election of Election Supervisors and members of the Council
of Elders.
[64]Furthermore, the evidence shows that there has been a
continuous intention, publicly expressed through various
resolutions and communiqués of the Council, to permit
non-residents to vote and resort to independent agencies
retained by Council and charged with organizing and
supervising the electoral process. In none of these elections
was there any recourse to a Council of Elders or Election
Supervisors. I find in this regard that the conduct of the
Band members in acquiescing to these practices is sufficient
evidence to satisfy the requirement that the latter were
"generally acceptable to members of the Band upon which there
is broad consensus".
[65]In coming to the above conclusion, I have also
considered the fact that following the 1998 election,
complaints were made and concerns were expressed in the name
of some 85 Band members who were not satisfied with the
outcome of the election and sought to overturn it on the
grounds that it was not conducted "in strict adherence with
the Code" (Exhibits "F", "G" and "H" to the affidavit of
Steven Bonspille, dated December 10, 2002). I have also
considered the fact that at a Community meeting held on
October 19, 2002, a resolution was passed to the effect "that
the rules of procedures for the election of its Mohawk
Council, adopted in principle on May 20, 1992, be followed,
in its entirety, without deviation or exception for any
future election of Grand Chief and Council, including any
future bi-election [sic] calling the same" (Exhibit
"H" to the affidavit of James Gabriel, dated December 1,
2002). Some 60 persons attended that meeting.
[66]That being said, despite the respondents' general
assertion, which is strongly contested by the applicants,
that people are not intimidated or harassed at the
Community's public meetings, I am unable to conclude that the
concerns expressed by some 85 persons in 1998 and some 60
persons in 2002, demonstrate that the "broad consensus"
referred to above no longer exists or that a new "broad
consensus" exists such that the Band's elections should no
longer be conducted using the Code as a guideline. I also
accept the applicants' evidence that the October 19, 2002
meeting was not authorized by the applicants and that the
notice was improper and insufficient to the extent that
non-resident Band members were not given proper notice and
thus were unable to express their views on the matter
(affidavit of James Gabriel, dated December 1, 2002,
paragraphs 18 and 19 and Exhibit "G" to said affidavit).
Conclusion
[67]In view of the above evidence, which I find
conclusive, I have no hesitation in concluding that the
strict enforcement, either by Council, its Executive Director
or other electoral officers, of the residency requirements
mentioned in Article 2 of the Code would be contrary to the
custom of the Band. Inasmuch as the Code has not been
strictly enforced, the strict enforcement of the provisions
of the Regulations which provide for the election of Election
Supervisors and a Council of Elders would also be contrary to
the custom of the Band since 1992.
[68]Besides the absence of a broad consensus, there are
other legal obstacles that prevent the Court from accepting
the respondents' submissions that the provisions of the Code
and the Regulations with respect to residency requirements
and the election of Election Supervisors and a Council of
Elders are legally binding and should be strictly
enforced.
[69]First, the Code to which the impugned decision refers
(Exhibit "D" to the affidavit of James Gabriel, dated
December 1, 2002) is not the draft Code that was approved "in
principle" at the Community meeting held on May 20, 1992
(Exhibit "A" to the affidavit of Andrew Hayes) but a modified
version which seems to have been prepared for the June 10,
1995 election in view of the "explanation" provided, which
mentions that the latter "will be conducted by Coopers
and Lybrand of Montréal, Quebec". It is apparent from
a comparison of the two documents that the authors of the
1995 version substantially amended the 1992 version. The 1995
version incorporates some of the changes suggested by some of
the participants at the consultative process. However, it is
not necessary to enter into a comparative analysis as no
final version of the draft Code has ever been presented for
ratification to the Community members despite the fact that
this was clearly required by resolution passed on May 20,
1992.
[70]The fact that no definite character can be attributed
to what is presented as the "current version" of the Code is
further evidenced by the communiqué issued by the
Council in May 1998 in anticipation of the general election
of June 27, 1998. It reads as follows:
KANESATAKE, May 29, 1998. The Mohawk Council of Kanesatake
would like to advise all Kanesatake Band members that a draft
Election Code, which is still a discussion paper, is
presently being circulated within the Community.
The circulation of this document within the Community is
only causing confusion and unwarranted concern.
On the first page of the draft it is clearly marked
"draft" and it has not been discussed by the Mohawk
Council of Kanesatake nor has it been ratified by the
Community.
Therefore, if anyone has any questions about the
forthcoming election, please do not hesitate to contact the
Election Consultants office of DAYE AND VINCENT at 479-8256
and clarify any misunderstandings.
Nia wen
THE MOHAWK COUNCIL OF KANESATAKE
(Communique, Draft Election Code, Exhibit "C" to the
affidavit of Andrew Hayes.)
[71]Second, the Regulations to which Article 9 of the Code
refers can be legally binding only once the Code itself has
been ratified. Furthermore, it is also not clear from the
evidence on record whether the Council has adopted the
Regulations, as it appears their application was suspended in
1992 (Council Resolution, dated May 26, 1992, Exhibit "A" to
the affidavit of James Gabriel, dated December 15, 2002).
VI RULES OF NATURAL
JUSTICE |
[72]Fair play and impartiality are vital to the democratic
process the Band members chose to adopt in 1991 when they
opted for an elective system. The systematic recourse by
Council in past elections to independent agencies ensured
that all electors (residents and non-residents) and
candidates were not discriminated against and were treated
fairly. This practice of appointing such agencies and of
allowing non-resident Band members to vote must therefore be
considered as part of the custom of the Band which implicitly
incorporates the respect of the rules of natural justice and
associated principles.
[73]I have also considered the parties' evidence with
respect to the meeting that took place on December 4, 2002,
to elect Election Supervisors and the Council of Elders. Some
30 persons attended that meeting and their names have been
provided to the applicants. I find that notice of said
meeting, as well as the December 6, 2002 communiqué
that a nomination meeting would take place on December 19,
2002, were not sent to non-resident Band members. The
Election Supervisors are Sonya Gagnier, Sheila Bonspille,
Clifton Nicolas, Jonathan Peltier and Janet Nicolas. The
members of the Council of Elders are Noreen Cree, Shawhanatsi
Montour, Charlotte Beaver, Paul Bonspille and Lloyd Figie. It
is admitted that the election of Election Supervisors and
members of the Council of Elders were not elected by secret
ballot. I accept the applicants' evidence that most of the
persons who attended the meeting are clearly opposed to the
applicants and also that Election Supervisors and members of
the Council of Elders, in view of their past conduct, their
family links or because they are parties or related to
parties named in contempt proceedings or other proceedings
before the Court (reply affidavit of James Gabriel, dated
December 12, 2002, paragraph 10 and Exhibits "A", "B", "C"
and "D" to said affidavit), are openly biased, or at least
that a reasonable apprehension of bias exists here. I also
note that none of these Election Supervisors have any
expertise in conducting an election.
[74]In view of the general conclusion that an election in
strict compliance with the Code would be contrary to the
custom of the Band, it is not necessary that I decide whether
the exclusion of non-resident Band members from voting is
contrary to section 15 of the Charter. Without expressing any
final opinion on this subject, I will limit myself to a few
observations.
[75]In Crow v. Blood Indian Band Council, [1997] 3
C.N.L.R. 76 (F.C.T.D.), the Court was asked to decide whether
the Charter applied to customary band election procedures.
Heald D.J. avoided having to answer the question and stated
as follows at paragraph 21 of his reasons:
This is a complex matter which involves, inter
alia, the application of s. 32 of the Charter as well as
the interpretation and possible application of s. 25 of the
Charter. However, given the conclusion that I have reached
with respect to the infringement of the plaintiff's Charter
rights in this case, it is unnecessary for me to reach a
conclusion on this issue. Accordingly, for the purposes of
the ensuing discussion, I have assumed, without deciding,
that the Charter does apply to the Band's Custom Election
Bylaw.
[76]In Corbiere v. Canada (Minister of Indian and
Northern Affairs), [1999] 2 S.C.R. 203, the Court
invalidated, as inconsistent with section 15 of the Charter,
subsection 77(1) of the Act, which excluded off-reserve
members of an Indian band from the right to vote in band
council elections. The remaining question is whether the
Court's finding also applies to custom band elections.
[77]Recent indications in the jurisprudence of the Federal
Court of Canada show a certain inclination towards the
applicability of the Supreme Court's decision in
Corbiere, supra, to custom band elections:
Gros-Louis v. Huronne-Wendat Nation Council, [2000]
F.C.J. No. 1529 (T.D.) (QL), Pinard J., at paragraph 4;
Hall v. Dakota Tipi Indian Band, [2000] 4 C.N.L.R. 108
(F.C.T.D.) Pelletier J. (as he then was), at paragraph 2; and
Gabriel, supra, Tremblay-Lamer J., at
paragraphs 13-14. However, in none of these decisions did the
Court engage in any kind of extensive analysis of the
"complex" legal issues involved in determining whether
Corbiere, supra, also applied to custom band
elections. I think this question is still open to debate and
the indications already given by the Court are by no means
definite.
[78]That being said, I note that this case is not about
whether or not the Mohawks of Kanesatake have the "right to
control their election process" but it is essentially a
dispute between two Mohawk factions as to what the applicable
process should be in this particular instance. Furthermore,
the "custom" the parties are referring to, is a
"contemporary" custom of approximately ten years, and is
therefore to be distinguished from the "ancestral customs or
practices" referred to in cases such as R. v. Van der
Peet, [1996] 2 S.C.R. 507. In that context, the present
case does not allow for the "aboriginal right to
self-government" argument that the respondents are raising in
their memorandum. I will also add that such complex issues
require extensive and historical oral evidence, and that, in
any event, the scarce and general allegations made in the
affidavits submitted by the respondents do not satisfy this
requirement and do not allow the Court to make any finding
under section 25 of the Charter or section 35 of the
Constitution Act, 1982 [Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44]].
[79]For the above reasons, I have decided to allow in part
the present judicial review application. An order setting
aside the impugned decision and granting relief is issued
accordingly. This will leave two unsettled issues.
[80]First, at the present time, I find it advisable to
allow the Council's members some time to choose a new
election date and agree on an independent agency which will
oversee and direct the vote in accordance with the custom of
the Band. Therefore, I will not dispose today of the
applicants' present request for mandatory injunction or
mandamus. However, I will retain jurisdiction to
consider said request (or any amended request for an
alternate order) and to issue any further order in the event
Council members are unable to agree on a new election date or
on the choice of an independent agency.
[81]Second, I am also disposed to award costs in favour of
the applicants against the respondents, save and except, the
Attorney General of Canada, whose status is that of a
"mis-en-cause", as already indicated. At the hearing, the
applicants' counsel asked that their application be allowed,
leave be granted to submit written representations on the
opportunity of issuing an order directing Council to pay the
costs of the applicants on the same basis and according to
the same terms followed by Council to pay its solicitors to
defend these proceedings, or alternatively, on a solicitor
and client basis. Accordingly, the parties are directed to
serve and file their written representations on the amount of
costs and other related issues within the period mentioned in
the accompanying order.
ORDER
It is ordered that the decision of the Council of November
26, 2002, calling for a special election to be held on
January 4, 2003, "in accordance with the Electoral Code of
Kanesatake", and for a nomination meeting to be held on
December 19, 2002, be set aside as being contrary to the
custom of the Band;
It is declared that the election of Election Supervisors
and members of the Council of Elders at the meeting of the
Community held on December 4, 2002, has no effect and is
illegal, as said meeting was not authorized by the Council
and was held without proper notice and that the persons
elected at that meeting to fill the positions of Election
Supervisors and members of the Council of Elders, and who are
likely to be biased, were not lawfully elected to those
positions;
It is further declared that an election or by-election
conducted in strict compliance with the provisions of the
Code and Regulations respecting the residency requirements
and the election of Election Supervisors and a Council of
Elders would be contrary to the custom of the Band;
It is further ordered that until such time as the Code
reflects the custom of the Band, any future elections and
by-elections for positions on the Council must be open to all
registered Band members aged 18 years and over, the latter
being entitled to vote regardless of their residency, and be
conducted:
(a) by an independent agency retained by the Council to
oversee and direct the vote all in accordance with the custom
of the Band and procedures followed in elections conducted in
accordance with the Code since 1992; and
(b) without involvement or participation of Election
Supervisors or of a Council of Elders;
It is further ordered that the applicants' request for a
mandatory injunction or mandamus requiring a
by-election to be held within 60 days following the Court's
final order to fill the vacant position of chief on the
Council be held in abeyance and that the Court retains
jurisdiction to dispose of said request (or any amended
request for an alternate order) and to issue any further
order in the event Council members are unable to agree on a
new election date or on the choice of an independent
agency;
It is further ordered that costs be awarded in favour of
the applicants against the respondents, save and except the
Attorney General of Canada, and that the parties serve and
file their written representations on the amount of costs and
other related issues within 10 days of the present order.