Bellegarde v. Eashappie

Bellegarde v. Carry the Kettle First Nation
Court (s) Database
Federal Court Decisions
Date
2024-05-07
Neutral citation
2024 FC 699
File numbers
T-2536-22, T-2546-22
Decision Content
Date: 20240507
Dockets: T-2546-22, T-2536-22
Citation: 2024 FC 699
Ottawa, Ontario, May 7, 2024
PRESENT: The Honourable Mr. Justice Régimbald
BETWEEN:
TERRINA BELLEGARDE and JOELLEN HAYWAHE
Applicants
and
SCOTT EASHAPPIE, SHAWN SPENCER, TAMARA THOMSON and CARRY THE KETTLE FIRST NATION
Respondents
Table of Contents
I. Overview 2
II. Facts 4
A. The Election Act 5
B. Events following the Election and leading to the Special Meeting 6
III. Issues and standard of review 9
IV. Analysis 10
A. The Federal Court has jurisdiction to review decisions of a First Nation council regarding its leadership selection process 10
(1) The source of CTKFN’s power over the selection of leaders is incorporated by reference in the Indian Act 15
(2) The right to self-government and the United Nations Declaration on the Rights of Indigenous Peoples Act 34
(3) The Ministerial order terminating the application of section 74 of the Act to CTKFN 37
(4) The Respondents’ jurisdictional challenge is an abuse of process 38
(5) Conclusion on the Court’s jurisdiction 40
B. The removals from office were contrary to the Election Act 41
(1) Principles of interpretation of customary election codes and the standard of review. 41
(2) Council did not have quorum nor the qualified majority to remove the Applicants under the Election Act 45
(3) The Tribunal was not properly constituted to make a recommendation to Council 55
(4) Procedural fairness and bias 60
(5) Was the Decision otherwise unreasonable? 67
V. Conclusion 68
JUDGMENT AND REASONS
I. Overview [1] The Applicants, Ms. Terrina Bellegarde and Ms. Joellen Haywahe [Applicants], were elected as councillors on the Carry the Kettle First Nation [CTKFN] Council. Within less than seven months, they were removed for misconduct following a vote of two other elected councillors of the First Nation, as well as the elected Chief.
[2] The Applicants brought separate applications for judicial review of their removals from CTKFN Council pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7 [FC Act]. The Applicants also sought a stay of their removal, as well as a stay of an incoming by-election purported to be held to replace them as elected members of Council.
[3] On January 27, 2023, Justice Grammond of this Court granted the stay requested by the Applicants. Justice Grammond held that, on the evidence available before him, there was a serious question as to whether Council, in the presence of only the two elected councillors as well as the elected Chief, constituted the quorum necessary to hold meetings and vote in favour of resolutions removing the elected Applicants out of office (Bellegarde v Carry the Kettle First Nation, 2023 FC 129 [Bellegarde Injunction Decision]).
[4] In defiance of the stay order, the Respondents, including the two elected councillors and the elected Chief, continued the by-election process. On January 15, 2024, Justice Favel of this Court found the two elected councillors as well as the elected Chief in contempt of Court for having failed to comply with this Court’s order (Bellegarde v Carry the Kettle First Nation, 2024 FC 48 [Bellegarde Contempt Decision]).
[5] For the following reasons, the Applications are granted. The CTKFN Band Council Resolutions [BCR], removing the Applicants from their positions as elected members of CTKFN Council, are invalid. Council did not have the quorum nor the qualified majority required by the CTKFN Cega-Kin Nakoda Oyate Custom Election Act [Election Act] to adopt the BCRs and remove the Applicants from elected office. Moreover, the Tribunal that is required to be established pursuant to paragraph 12(7)(i) of the Election Act to provide a recommendation to a Council to remove an elected official from office was improperly constituted.
[6] The Applicants are, and remain, elected councillors of CTKFN Council. The Applicants are entitled to all remuneration that would have been payable to them as councillors from the date of their removal until the next CTKFN Council election (unless new and valid removal processes are triggered and result in Council vacating their positions). The election of Mr. Brady O’Watch and Mr. Morris Pasap, following the by-election of February 2, 2023, is void ab initio.
II. Facts [7] The Indian Act, RSC 1985, c I-5 [the “Indian Act” or the “Act”] provides various ways through which First Nations may determine their leadership. Section 74 of the Act provides a procedure for a First Nation to conduct elections. In the case of First Nations named in the schedule to the First Nations Elections Act, SC 2014, c 5 [First Nations Elections Act], a different procedure may be followed. Alternatively, the Act also recognizes that First Nations may conduct elections following a community election code or according to the custom of the First Nation.
[8] CTKFN is a Nakota Nation in Treaty 4 Territory in south-east Saskatchewan. CTKFN has followed the procedure set out in section 74 of the Act. However, following a federal policy allowing First Nations to opt out of the Act and implement their own election procedure, CTKFN chose to adopt its community election code, the Cega-Kin Nakoda Oyate Custom Election Act.
[9] On December 14 and 15, 2017, CTKFN enacted the Election Act through a membership vote. The Election Act came into effect on January 29, 2018, when a Ministerial Order was adopted through order in council, removing CTKFN from the application of section 74 of the Act (Saulteaux v Carry the Kettle First Nation, 2022 FC 1435 at para 5 [Saulteaux]).
[10] The Election Act provides that CTKFN be governed by one Chief and up to six councillors. The Election Act establishes the procedure to be followed during elections, and rules relating to the conduct of Chief and Council, the suspension and removal of members from office, and establishes the Cega-Kin Nakoda Oyate Tribunal [Tribunal] to make determinations in relation to issues arising out of elections and conduct of Council members.
[11] An election was held on April 7, 2022. The Applicants, Terrina Bellegarde (in file T-2536-22) and Joellen Haywahe (in file T-2546-22), were elected as councillors. Chief Scott Eashappie and councillors Shawn Spencer, Tamara Thomson (the three named Respondents), were also elected, along with councillors Dwayne Thomson and Lucy Musqua.
A. The Election Act [12] Section 12 of the Election Act establishes the Tribunal. Section 12 provides that the Chief and councillors must appoint five individuals to the Tribunal to accept, hear, and decide appeals. It must be comprised of four CTKFN members and one non-member of the First Nation. The Tribunal also plays a role in the removal of a Chief or councillor from office. The Tribunal must examine any complaint, conduct an examination to allow the affected official an opportunity to respond, and then make a recommendation to Council as to whether the elected official should be removed from office.
[13] Section 19 of the Election Act provides that Chief and Council may remove a councillor for unacceptable behaviour, including “misconduct.” Subsections 19(5) and (6) provide that Council must convene a Special Meeting in conjunction with the Tribunal, to allow an elected official to “show cause” that their position on Council should not be vacated, and to allow the Tribunal to consider their cause and make a recommendation to Council. The remaining Council members “shall then vote on whether the affected Councillor position has been vacated for contravention […].” A two-thirds majority vote of the remaining Council members is required for removal, pursuant to paragraph 19(6)(a) of the Election Act.
[14] Section 20 of the Election Act provides for the suspension of a Chief or a councillor. The process for doing so is to be established by regulations. To this day, no regulations have been adopted for the suspension of an elected official.
B. Events following the Election and leading to the Special Meeting [15] The events leading to the removal of the Applicants from Council have been aptly summarized in the Bellegarde Injunction Decision and the Bellegarde Contempt Decision.
[16] As held by Justice Grammond at paragraph 5 of the Bellegarde Injunction Decision, increasing distrust grew between the Applicants and the individual Respondents Chief and councillors following the election.
[17] On August 15, 2022, the Tribunal notified CTKFN members that it had been made aware of situations that might constitute grounds for removal of councillors, and invited any person who wished to make submissions to do so.
[18] On August 24, 2022, the Chairperson of the Tribunal resigned, leaving the Tribunal without its mandatory non-CTKFN member. That member was not replaced.
[19] On August 28, 2022, the Tribunal ordered, pursuant to section 20 of the Election Act and even if no regulations determining a process to do so had been adopted, that councillor Haywahe be suspended with pay. The Tribunal also recommended that a Special Meeting be held to review councillor Bellegarde’s misconduct pursuant to section 19 of the Election Act.
[20] On or about September 14, 2022, Chief Eashappie and councillors Spencer and T. Thomson voted to remove councillor Bellegarde from office. Councillors Musqua and D. Thomson refused to attend the meetings and did not sign the resolution removing councillor Bellegarde from office. They refused to attend because they disputed the process and the Chief’s authority to call a Special Meeting (in the case of councillor D. Thomson), or did not receive a change of location on time, required legal advice, or were on medical leave (for councillor Musqua). Councillor Bellegarde also did not attend the Special Meeting because she did not accept that the Tribunal was properly constituted, as it was missing the non-CTKFN member, and because it was biased against her. The removal of councillor Bellegarde was therefore adopted by 3 out of 5 members of CTKFN Council who are eligible to vote (councillor Bellegarde being ineligible to vote on her own removal, and councillor Haywahe being suspended).
[21] A second Special Meeting was later held regarding the conduct of councillor Haywahe. On or about November 5, 2022, the same three individual Respondents’ Chief and councillors voted to remove councillor Haywahe from office. Councillors Musqua and D. Thomson again refused to attend the meetings and did not sign the resolution removing councillor Haywahe from office. Councillor Haywahe did not attend the meeting because the Tribunal was not properly constituted and was in her view biased. The removal of councillor Haywahe was again adopted by 3 out of 5 members of CTKFN Council eligible to vote (councillor Bellegarde having been removed prior to the vote, and councillor Haywahe being ineligible to vote on her own removal).
[22] Councillors Bellegarde and Haywahe were therefore removed from Council, each receiving written reasons on November 1, 2022 and November 5, 2022, respectively. The reasons state that councillors Musqua and D. Thomson refused to attend the meetings and therefore are deemed, under subsection 24(16) of the Election Act, to have voted in favour of the BCRs removing the Applicants from office, even if they did not sign the resolutions.
[23] On December 2, 2022, CTKFN Council adopted a BCR to set a by-election on February 3, 2023.
[24] On January 27, 2023, Justice Grammond issued an injunction (Bellegarde Injunction Decision) staying the Applicants’ removal from their positions as councillors of CTKFN and the by-election scheduled for February 3, 2023. The Respondents defied the Order and the election was held on February 3, 2023. Morris Pasap and Brady O’Watch were elected.
[25] The Applicants sought an Order finding the Respondents in contempt of Court. On January 15, 2024, Justice Favel found the Respondents in contempt (Bellegarde Contempt Decision).
III. Issues and standard of review [26] The issues in this case are :
whether this Court has jurisdiction to review the decisions of a First Nation elected council regarding its leadership selection process;
if the Court has jurisdiction to hear the following issues:
whether the removals were contrary to the Election Act?
whether the removals were procedurally unfair?
whether the removals were unreasonable?
[27] On the procedural fairness issue, as recently stated in Caron v Canada (Attorney General), 2022 FCA 196 at paragraph 5, no standard of review is applied, but the review of allegations of breaches of procedural fairness is best reflected in the standard of correctness: “When engaging in a procedural fairness analysis, [the] Court must assess the procedures and safeguards required, and, if they have not been met, the Court must intervene” (see also Mission Institution v Khela, 2014 SCC 24 at para 79; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 33–34, 54 [Canadian Pacific]; Canadian Hardwood Plywood and Veneer Association v Canada (Attorney General), 2023 FCA 74 at para 57). As reiterated in Canadian Pacific, the role of the reviewing court on procedural fairness issues is simply to determine whether the procedure that was followed was fair, having regard to the particular circumstances of the case: “The ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond” (at paras 54, 56).
[28] On the substantive issue, the standard of review is that of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 25 [Vavilov]; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at paras 7, 39–44 [Mason]). To withstand judicial intervention, the decision must bear the hallmarks of reasonableness – justification, transparency and intelligibility (Vavilov at para 99; Mason at para 59). A decision may be unreasonable if the decision maker misapprehended the evidence before it (Vavilov at paras 125–126; Mason at para 73). Reasonableness review is not a “rubber-stamping” exercise, it is a robust form of review (Vavilov at para 13; Mason at para 63). The party challenging the decision bears the onus of demonstrating that the decision is unreasonable (Vavilov at para 100).
IV. Analysis A. The Federal Court has jurisdiction to review decisions of a First Nation council regarding its leadership selection process [29] The Federal Court of Appeal and this Court have held on numerous occasions that the Federal Court has jurisdiction to review decisions of a First Nation council where the issue is over a matter that is “public” in nature, and where a source of the jurisdiction or power originates from an Act of Parliament such as the Indian Act, including where the power also involves the application of Indigenous law, custom or practice of the First Nation. As such, First Nation councils and bodies created by them or by First Nations as a whole (through custom or otherwise), such as election appeal tribunals or election committees, have historically been recognized as a “federal board, commission or other tribunal” for the purposes of the FC Act when making decisions under those powers. The Court’s jurisdiction also extends to the individual Chief and councillors acting, or purporting to act, in their official capacity under those powers (Canatonquin v Gabriel, 1980 2 FC 729, 1980 CanLII 4125 (FCA) [Canatonquin]; Lake Babine Indian Band v Williams, [1996] FCJ No 173 at para 4, 19 NR 44 (FCA) at para 4 [Lake Babine]; Sebastian v Saugeen First Nation No 29, 2003 FCA 28 at para 51 [Saugeen]; Horseman v Horse Lake First Nation, 2013 FCA 159 at para 6 [Horseman]; Shanks v Salt River First Nation #195, 2023 FC 690 at paras 29–36 [Shanks]; Ratt v Matchewan, 2010 FC 160 at paras 96–106 [Ratt]; Gamblin v Norway House Cree Nation Band Council, 2012 FC 1536 at paras 29–63 [Gamblin]; Opaskwayak Cree Nation v Cook, 2023 FC 505 at paras 28, 30; Saulteaux at para 59; Bellegarde v Carry the Kettle First Nation, 2023 FC 86 at para 15; Marie v Wanderingspirit, 2003 FCA 385 at para 4; Sparvier v Cowessess Indian Band No 73, [1993] 3 FC 142, 1993 CanLII 2958 (FC); Beardy v Beardy, 2016 FC 383 at paras 38–39; Francis v Mohawk Council of Kanesatake (TD), 2003 FCT 115 at paras 11–18 [Francis]; Thomas v One Arrow First Nation, 2019 FC 1663 at para 14 [One Arrow]; Kennedy v Carry the Kettle First Nation, 2020 SKCA 32 [Kennedy SKCA]; Bastien v Jackson, 2022 FC 591 at para 22 [Bastien]; Crowchild v Tsuut’ina Nation, 2017 FC 861 at paras 27–28 [Crowchild]; Vollant v Sioui, 2006 FC 487 at para 25; Hill v Oneida Nation of the Thames Band Council, 2014 FC 796 at paras 37–38, 69 [Hill]; Ermineskin First Nation v Minde, 2008 FCA 52 at para 33 [Minde]; Ballantyne v Nasikapow, 197 FTR 184 at paras 5–6, 2000 CanLII 16594 (FC) [Ballantyne]; Dakota Plains First Nation v Smoke, 2022 FC 911 at para 15; Marie-Jewell v Salt River First Nation #195, 2024 FC 192 at paras 17, 22–24 [Marie-Jewell]; George v Heiltsuk First Nation, 2023 FC 1705 at para 39 [George]).
[30] The Respondents argue that this Court should revisit these binding precedents. Notably, the Respondents argue that while the Federal Court of Appeal has ruled in Canatonquin, Lake Babine, Saugeen and Horseman that the Federal Court has jurisdiction over decisions made by a First Nation council because it is a “federal board, commission or tribunal”, the Federal Court of Appeal never articulated nor provided any explanation as to why and, most importantly, never applied the two-part contextual inquiry set in Anisman v Canada (Border Services Agency), 2010 FCA 52 [Anisman]. CTKFN argues that the applicable test to determine whether an entity and its decisions may be subject to judicial review in the Federal Court is the two-step analysis set in Anisman, whereby: (1) the Court must first determine what is the jurisdiction or power at issue; and (2) the Court must then identify the source or origin of that jurisdiction or power.
[31] In this case, the power at issue is not contested, and relates to CTKFN’s process in selecting its leaders, including its power to remove an elected official for misconduct. It is also not contested that this power is “public” in nature. It is the second step of the analysis, the source or origin of the power, that is at issue. The Respondents argue that it is not the nature of the body exercising that power that is the primary determinant of whether the body falls within the definition of “federal board, commission or tribunal” for the purposes of subsection 2(1) of the FC Act, but whether the source or origin of the power is found in an Act of Parliament (Anisman at paras 29–40; Oceanex Inc v Canada (Transport), 2019 FCA 250 at para 29; Innu Nation v Pokue, 2014 FCA 271 at para 11 [Pokue]; Air Canada v Toronto Port Authority, 2011 FCA 347 at para 47 [Air Canada]). As held by Justice Gleason in Maloney v Shubenacadie First Nation, 2014 FC 129 at paragraph 24: “many cases turn on the second issue and involve the search for a federal statute or regulation under which the entity is empowered to act. Where there is no such federal law or regulation, and the issue is not one of royal prerogative, the entity does not meet the definition of a ‘federal board, commission or other tribunal’.”
[32] More specifically, the Respondents argue that this Court does not have jurisdiction to review the CTKFN BCRs to remove the Applicants as councillors because the source of CTKFN’s power to do so originates from Indigenous law, and not federal law. In their view, the power to remove a councillor is found in the Election Act, which was adopted under CTKFN’s inherent power to make laws in matters of leadership and governance that is found outside of the Canadian legal system; and not derived from the Indian Act (Gamblin at para 34; Pastion v Dene Tha’ First Nation, 2018 FC 648 at para 7 [Pastion]; Bertrand v Acho Dene Koe First Nation, 2021 FC 287 at para 36 [Bertrand]). Therefore, CTKFN Council is not a “federal board, commission or other tribunal” within the meaning of subsection 2(1) of the FC Act when deciding to remove a councillor pursuant to Indigenous law (the Election Act) that was adopted by the First Nation under its customary powers; because in doing so, it is not a body exercising a statutory power pursuant to an Act of Parliament.
[33] The Respondents argue that while the Indian Act recognizes the First Nations’ power to select its leaders, it does not create nor delegate that power. Therefore, Indigenous laws enacted under inherent self-governance, including the Election Act in this case, are not made “under an Act of Parliament” as understood under the definition of “federal board, commission or other tribunal” pursuant to subsection 2(1) of the FC Act, and in enacting or making decisions pursuant to such laws, First Nation councils are not a “federal board, commission or other tribunal” under the FC Act. CTKFN’s decisions and BCRs made under its Election Act are therefore not within the Federal Court’s jurisdiction, as they fail the second step of the Anisman test.
[34] Finally, the Respondents assert that making CTKFN subject to judicial review in the Federal Court in this case would breach their right to self-government, an Aboriginal right protected by section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act, 1982], in an unjustifiable manner (see also Bellegarde Injunction Decision at para 16). Moreover, recent developments regarding the legal status of First Nations and the sources of their powers, including the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 [UNDRIPA], also call for the reconsideration of previous binding rulings that First Nation councils are subject to judicial review in this Court.
[35] Therefore, according to the Respondents, the threshold established in Canada (Attorney General) v Bedford, 2013 SCC 72, R v Sullivan, 2022 SCC 19 at paragraph 75, and R v Comeau, 2018 SCC 15 at paragraph 29 for a court to overturn or refuse to follow an existing binding precedent is met; consequently this Court should depart from them and all the cases having found that First Nation council decisions relating to the selection of leaders are subject to this Court’s jurisdiction.
[36] For the reasons that follow, I cannot accept the Respondents’ arguments.
(1) The source of CTKFN’s power over the selection of leaders is incorporated by reference in the Indian Act
[37] Sections 2 and 18.1 of the FC Act provide:
Definitions
2(1) In this Act,
[…]
federal board, commission or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made under a prerogative of the Crown, other than the Tax Court of Canada or any of its judges or associate judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867; (office fédéral)
Définitions
2 (1) Les définitions qui suivent s’appliquent à la présente loi.
[…]
office fédéral Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d’une prérogative royale, à l’exclusion de la Cour canadienne de l’impôt et ses juges et juges adjoints, d’un organisme constitué sous le régime d’une loi provinciale ou d’une personne ou d’un groupe de personnes nommées aux termes d’une loi provinciale ou de l’article 96 de la Loi constitutionnelle de 1867. (federal board, commission or other tribunal)
Extraordinary remedies, federal tribunals
18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) 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; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
[emphasis added]
Recours extraordinaires : offices fédéraux
18 (1) Sous réserve de l’article 28, la Cour fédérale a compétence exclusive, en première instance, pour :
a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral;
b) connaître de toute demande de réparation de la nature visée par l’alinéa a), et notamment de toute procédure engagée contre le procureur général du Canada afin d’obtenir réparation de la part d’un office fédéral.
[je souligne]
[38] It is trite law that the Federal Court only has the jurisdiction that is conferred upon it by statute and that such statutory jurisdiction must relate to the application of a “law of Canada” within the meaning of section 101 of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5. Section 18 of the FC Act grants jurisdiction to the Federal Court to hear applications for judicial review of decisions of a “federal board, commission or other tribunal.” That term is defined in subsection 2(1) of the FC Act as including persons or bodies “exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament” (see Bellegarde Injunction Decision at para 14) [emphasis added].
[39] The “Act of Parliament” that could potentially grant this Court jurisdiction to review the decisions of First Nation councils is the Indian Act. At subsection 2(1), the Indian Act defines “council of the band” as meaning :
Definitions
2 (1) In this Act,
[…]
council of the band means
(a) in the case of a band to which section 74 applies, the council established pursuant to that section,
(b) in the case of a band that is named in the schedule to the First Nations Elections Act, the council elected or in office in accordance with that Act,
(c) in the case of a band whose name has been removed from the schedule to the First Nations Elections Act in accordance with section 42 of that Act, the council elected or in office in accordance with the community election code referred to in that section, or
(d) in the case of any other band, the council chosen according to the custom of the band, or, if there is no council, the chief of the band chosen according to the custom of the band; (conseil de la bande)
[emphasis added]
Définitions
2 (1) Les définitions qui suivent s’appliquent à la présente loi.
[…]
conseil de la bande
a) Dans le cas d’une bande à laquelle s’applique l’article 74, le conseil constitué conformément à cet article;
b) s’agissant d’une bande dont le nom figure à l’annexe de la Loi sur les élections au sein de premières nations, le conseil élu ou en place conformément à cette loi;
c) s’agissant d’une bande dont le nom a été radié de l’annexe de la Loi sur les élections au sein de premières nations conformément à l’article 42 de cette loi, le conseil élu ou en place conformément au code électoral communautaire visé à cet article;
d) s’agissant de toute autre bande, le conseil choisi selon la coutume de celle-ci ou, en l’absence d’un conseil, le chef de la bande choisi selon la coutume de celle-ci. (council of the band)
[je souligne]
[40] It is important to note that First Nation councils, in order to be recognized under the Indian Act, must be selected through a democratic process. Some First Nations have historically done so through custom. Other First Nations hold elections through the process established under the First Nations Elections Act, or under subsection 74(1) of the Act. Most First Nations in Canada have, at one time or another, been subject to that electoral procedure (Ratt at para 9; Bertrand at para 6). However, a process has been established allowing First Nations to revert to a “customary” form of selection for Chief and council.
[41] In Bertrand, Justice Grammond explained the interaction of the Indian Act, Indigenous laws and custom, and the federal policy to allow a First Nation to “revert to custom” :
[6] Like most, if not all First Nations in the Northwest Territories, Acho Dene Koe was never brought under the regime of sections 74–80 of the Indian Act, R.S.C., 1985, c. I-5 (the Act), for the election of its council. Its name was never listed in the Indian Bands Council Elections Order, SOR/97-138, made pursuant to section 74 of the Act. Thus, according to the definition of “council of the band” in section 2 of the Act, Acho Dene Koe’s council is “chosen according to the custom.” As I explain below, the term “custom” in the Indian Act refers to various forms of Indigenous laws, which are not limited to “custom” in the narrow sense.
[7] Elsewhere in Canada, a policy of the federal government allows First Nations whose elections are governed by the Indian Act to “revert to custom” upon showing that their members approved an election code containing certain specified features. For this reason, there is a tendency to equate custom with an election code. This association, however, does not hold for First Nations, like Acho Dene Koe, that were never the subject of an order pursuant to section 74 of the Act: Ratt v. Matchewan, 2010 FC 160, 12 Admin. L.R. (5th) 48 (Ratt), at paragraphs 8–10. For these First Nations, the custom may be largely unwritten. This has been the source of some confusion in the present case.
[…]
[39] First, a First Nation may enact an election code or similar legislation through the vote of a majority of its members. This combines what Professor John Borrows calls the positivistic and deliberative sources of Indigenous law: Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) (Borrows, Indigenous Constitution), at pages 35–51. Provided that the conditions in which the vote was taken were satisfactory, this Court has been prepared to consider that codes adopted by a First Nation’s membership constitute “custom” in this sense: Chingee; Taypotat v. Taypotat, 2012 FC 1036, [2013] 1 C.N.L.R. 349 (Taypotat), at paragraphs 29–35.
[40] Second, custom may find its origin in practice. Custom, indeed, need not be written: Bone, at paragraph 56. Nevertheless, to be recognized as custom in this sense, a practice must still attract the broad consensus of the community. In Francis v. Mohawk Council of Kanesatake, 2003 FCT 115, [2003] 4 F.C. 1133 (Francis), at paragraph 36. […]
[41] A court asked to declare the content of a First Nation’s custom must, of course, base itself on the evidence before it. In this regard, the party who invokes custom must prove it: Fort McKay First Nation v. Orr, 2012 FCA 269, [2013] 1 C.N.L.R. 249, at paragraph 20. It may be relatively easy to deduce custom from practice with respect to the basic parameters of an electoral regime, for example the term of office or the number of councillors. With respect to more specific features of the regime, however, a generalized and consistently followed practice may be more difficult to establish. The same is true of rules allowing for the removal or recall of councillors: Joseph v. Schielke, 2012 FC 1153, 419 F.T.R. 127, at paragraphs 37–41; Whalen, at paragraphs 57–67.
(Bertrand at paras 6–7, 39–41)
[42] As stated, CTKFN’s elections are not held under the specific procedure set out in an Act of Parliament (see Gamblin at para 8; Bertrand at paras 7, 39; Goodtrack v Canada (Attorney General), 2006 FC 1297 at para 8 [Goodtrack]). Instead, CTKFN followed the process established by the federal government to “revert to custom” and enacted the Election Act (as other First Nations have also done: see Linklater v Thunderchild First Nation, 2020 FC 1065 at para 16; Pastion at paras 9–14; Chipesia v Blueberry River First Nations, 2019 FC 41 at paras 11, 16, 23–24 [Blueberry River First Nations]). The Election Act was then ratified by CTKFN members through a referendum. CTKFN Council then adopted a resolution requesting that the Minister, through a Ministerial Order, terminate the application of the election provisions under section 74 of the Indian Act to CTKFN elections. The Election Act may represent, in the absence of argument and evidence to the contrary, the “custom” of the First Nation, as discussed by Justice Grammond in Bertrand. In that sense, it is also a “custom of the band” as understood under subsection 2(1) of the Indian Act.
[43] The Respondents argue, however, that the sole reference to “custom of the band” found in subsection 2(1) of the Indian Act is in relation to the Act’s definition of “council of the band.” That definition recognizes elections held under a custom, and authorizes a “council of the band” elected through that recognized “custom” to exercise some federal powers pursuant to the Indian Act. However, the power to make laws in relation to governance decisions pursuant to a “custom of the band,” such as for the selection of leaders, is not itself created by the Indian Act. The Indian Act does not, therefore, apply to the First Nations’ processes for selecting their leaders, when that process takes its source in “custom.”
[44] In my view, the Court’s decision in Ratt is responsive to the Respondents’ main arguments. In that case, the Court heard a challenge to the validity of a customary leadership selection process, in a context where the Algonquin of Barriere Lake was one of the few First Nations in Canada that had never been subject to the First Nation election process under section 74 of the Indian Act (which is now similar to CTKFN in this case, that no longer follows the process established under section 74). Because the First Nation had never been the subject of an order under subsection 74(1) of the Act, the First Nation could select its leadership in accordance with its customs unimpeded by any conditions or requirements under the Indian Act.
[45] Justice Mainville held that the Federal Court had jurisdiction to hear a challenge to the validity of the selection process. In his view, “[t]he use customary selection processes is one of the few aboriginal governance rights which has been given explicit federal legislative recognition through the Indian Act […] That custom is explicitly recognized by [section 2 and the definition of “council of the band”] of the Indian Act” (Ratt at para 101) [emphasis added]. Then, at paragraph 103, Justice Mainville held that :
[i]n the absence of an order under subsection 74(1) of the Act, the implementation of the [custom code] is a condition precedent under the Indian Act to the recognition of a band council under that Act for the Algonquin of Barriere Lake. The exercise of authority by that band council under that Act is dependent on the [custom code]. Consequently, the traditional council selected pursuant to the [custom code] and the bodies purporting to supervise the proper selection of the Chief and council under that custom, such as the Elders Council, fall under the meaning of “federal board, commission or other tribunal” as those terms are defined in the Federal Courts Act.”
(Ratt at para 103) [emphasis added]
[46] Justice Mainville then noted that the Federal Court of Appeal had ruled that an Elders Council exercising authority to remove a Chief under a First Nation constitution can be reviewed in the Federal Court (Minde at para 33), and that the Federal Court had ruled that it had jurisdiction over First Nation elections held under custom (paras 104–105, relying on Francis at paras 11–18; Ballantyne at paras 5–6). Consequently, Justice Mainville held that the Federal Court had jurisdiction, concluding in the following words at paragraph 106:
[W]hether the selection process is carried out by election pursuant to the Indian Act, or pursuant to custom, the Federal Court has supervisory jurisdiction over the process, and over those bodies, such as electoral officers, appeals boards or elders councils, purporting to exercise authority under the process. I find this is so irrespective of whether or not the selection process flows, as in this case, from ancient custom, or from custom developed pursuant to the revocation of an order under section 74 of the Act which must comply with ministerial conditions. In either circumstance, this Court has jurisdiction.
(Ratt at para 106)
[47] I agree.
[48] As held by Justice Mainville in Ratt, the reason why the process for selecting Indigenous leaders is subject to the Federal Court’s jurisdiction is because the process must be “recognized” under the Indian Act, and indeed “is a condition precedent under the Indian Act to the recognition of a band council under that Act” (Ratt at para 103) [emphasis added]. The Indian Act therefore provides for its own process of selection of leaders under section 74, allows First Nations to follow the process established under the First Nations Elections Act, or allows First Nations to follow their custom.
[49] In all cases, the process itself is “recognized,” “authorized” and “incorporated by reference” in the Indian Act itself.
[50] In recognizing “custom” as an eligible leadership selection process, the Indian Act incorporates by reference all customs followed by First Nations to democratically select their leaders, and then recognizes those leaders as the “council of the band” for the purposes of subsection 2(1) of the Indian Act and the discharge of the powers existing within the Act.
[51] The incorporation by reference of the “custom” leadership selection processes “recognizes” those customs as federal law for the purposes of the Act, alongside the other election processes under section 74 of the Act and the First Nations Election Act. By analogy, and even if not as specifically provided under subsection 2(1) of the Indian Act and the definition of the term “council of the band,” those leadership selection processes are incorporated in the Act in a manner similar to laws adopted by Indigenous Nations in relation to child and family services, which have the force of federal law because they have been incorporated by reference under subsection 21(1) of the Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24 (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 at paras 122–130 [Bill C-92 Reference]).
[52] Consequently, the powers exercised by First Nations in relation to the selection of leaders, even through custom (and including the removal of members from office), are incorporated by reference in the Indian Act, are therefore in part conferred by an “Act of Parliament,” and fall within the meaning of “federal board, commission or other tribunal” as those terms are defined in subsection 2(1) of the FC Act (see by analogy Ratt; Minde at para 33).
[53] In this case, and as in Ratt, the CTKFN Election Act is likewise incorporated by reference in the Act. The exercise of authority by CTKFN under the Election Act constitutes the exercise of a power recognized and in part “conferred by […] an Act of Parliament.” The Federal Court therefore has jurisdiction over decisions made pursuant to the Election Act, in the same way that the Court had jurisdiction in Ratt over decisions made under its custom code.
[54] The Respondents argue that this Court should not follow the reasoning of Justice Mainville in Ratt. In their view, the Court erred in: (a) ruling that subsection 2(1) of the Indian Act “recognized” a custom leadership process of the First