Coutlee v. Lower Nicola Indian Band

Coutlee v. Lower Nicola First Nation
Court (s) Database
Federal Court Decisions
Date
2024-01-11
Neutral citation
2024 FC 47
File numbers
T-2153-22, T-2421-22
Notes
A correction was made on January 30th, 2024.
Decision Content
Date: 20240111
Dockets: T-2421-22
T-2153-22
Citation: 2024 FC 47
Ottawa, Ontario, January 11, 2024
PRESENT: The Honourable Mr. Justice Favel
BETWEEN:
SPENCE COUTLEE
Applicant
and
LOWER NICOLA INDIAN BAND AND LOWER NICOLA INDIAN BAND ELECTORAL OFFICER
Respondents
JUDGMENT AND REASONS
I. Overview [1] Spence Coutlee [Applicant], a member of the Lower Nicola Indian Band [LNIB], seeks judicial review of LNIB Chief and Council’s [Respondent] September 28, 2022 decision removing the Applicant from the Office of Councillor and barring him from running in the October 22, 2022 election [Election] [Removal Decision]. Federal Court file T-2153-22 addresses the Removal Decision. In Federal Court file T-2421-22, the Applicant seeks judicial review of the Election itself.
[2] Pursuant to Associate Judge Coughlan’s January 6, 2023 Order, the applications were heard on a single record and now form the present matter before the Court. However, the files were not consolidated into one matter.
[3] For the reasons that follow, the application for judicial review in T-2153-22, the Removal Decision, is allowed. The Chief and Council did not have the jurisdiction to remove the Applicant from his position as Councillor.
[4] However, I am dismissing the application for judicial review in T-2421-22 concerning the Applicant’s challenge to the Election. The Applicant had an adequate alternative remedy that he did not pursue.
II. Background Facts [5] While the parties’ records are comprehensive, the essence of the issue in both applications turns on the applicable governing law concerning removals of elected officials and elections. Below, I will review the context, the legislative and policy regime, the events leading to the Removal Decision, and the Election.
A. Context [6] LNIB is a “band” within the meaning of the Indian Act, RSC 1985, c I-5 that is governed by one Chief and seven Councillors. The relevant laws and policy include the Custom Election Rules, approved by the membership and in force as of June 6, 2013 [Rules]; the Chief and Council Policy, including the Oath of Office, approved by the Chief and Council and in force as of September 13, 2016 [Policy]; the Lower Nicola Indian Band Financial Administration Law, 2020 [FAL], approved by the Chief and Council pursuant to the First Nations Fiscal Management Act, SC 2005, c 9; and the Financial Governance Policy Authorization, in force as of September 17, 2019.
[7] The Applicant is the owner and operator of SCS Diamond Drilling Limited [SCS], a drilling company that pursues mining and energy contracts. In October 2019, the Applicant was elected as a Councillor of LNIB. Chief Stuart Jackson and Councillors William Bose, Robin Humphrey, Connie Joe, William Sandy, Lucinda Seward and Aaron Sumexheltza, were also elected to their respective offices.
[8] As Councillor, the Applicant was assigned to the Economic Development and Natural Resources portfolio. Pursuant to section 4.9 of the Policy, the Applicant was responsible for the high-level governance of his portfolio, not day-to-day management. The Applicant was also appointed to the board of directors of the LNIB Development Corporation [LNIBDC], an economic development arm of LNIB. The board of directors is responsible for negotiating relationship agreements and mutual benefit agreements with proponents and creating opportunities for LNIB members.
B. Laws and Policies [9] For the purposes of these applications, the relevant provisions are set out below.
(1) Rules [10] Sections 26 to 31 provide for an election appeal procedure [Appeal Procedure]:
26. Within 15 calendar days of an election any elector may appeal the results of the Election, on the grounds that, there had been a corrupt election practice or a violation of these Rules, by obtaining the signature of 30% of electors on the prescribed form and submitting it to the Electoral Officer along with a $1,500 non refundable filing fee. The appeal shall be in writing and shall clearly set out the grounds for the appeal and a summary of the evidence upon which it is based.
27. Upon receipt of an appeal or appeals the Electoral Officer shall, immediately after the 15 day period described in Section 26 above, instruct the BC Arbitration and Mediation Institute (“BCAMI”) or similar professional organization to appoint an Arbitrator with experience in First Nations issues to adjudicate the appeal and shall forward to it the required administrative filing fee, the appeal and any supporting documents. The Electoral Officer shall also provide each candidate in that election with a copy of the appeal or appeals. A copy of the appeal or appeals shall also be posted in the Band Office.
28. The Arbitrator shall convene a hearing of the appeal or appeals in consultation with the parties but in any event within 30 days of his or her appointment unless a later date is agreed upon by the parties. The Arbitrator may receive submissions from any source he or she deems appropriate. The hearing of an appeal or appeals shall be in accordance with the principles of natural justice and procedural fairness.
29. The Arbitrator shall render his or her decision in writing within 21 days of the end of the hearing by delivering a copy of that decision to the Electoral Officer, who shall forthwith implement that decision, which shall be final and binding on the parties. The Electoral Officer shall concurrently post a copy of the decision in the Band Office and deliver a copy of the decision to each candidate and each appellant.
30. The Arbitrator may make such order regarding costs of the appeal as he or she deems appropriate. The Arbitrator’s fee and all reasonable expenses shall be the responsibility of the Band unless otherwise ordered by the Arbitrator.
31. The Arbitrator’s decision is final and binding on all parties.
[11] Sections 35 to 44 provide for the impeachment of a Council Member, defined as both a Chief and a Councillor of LNIB:
35. A Council Member may be removed from office and be ineligible to stand for election to Council for a period of up to 6 years if he or she,
…
(b) from the time of election until the end of his or her term of office:
i. violates the Council Oath of Office or refuses or fails to take the Council Oath of Office;
ii. violates this Code, the Lower Nicola Band Chief and Council Policy or Conflict of Interest Policy;
…
36. A petition for the impeachment of a Council Member, may be commenced by:
…
(b) Band Council upon the passing of a Band Council Resolution endorsed by a majority of all Council Members.
37. A petition for the impeachment of a Council Member shall be in writing, clearly set out the grounds for the petition and a summary of the evidence upon which it is based, and shall be submitted to the Executive Director.
38. Immediately upon receipt of a petition the Executive Director shall instruct the BC Arbitration and Mediation Institute (“BCAMI”) or similar professional organization to appoint an Arbitrator with experience in First Nations issues to adjudicate the petition and shall forward to it the required administrative filing fee, the appeal and any supporting documents. The Executive Director shall also provide a copy of the petition to the Council Member in respect of whom the petition is brought and post a further copy of the petition in the Band Office.
39. The Arbitrator shall within 30 days of receipt of a petition for the impeachment of a Council Member convene a hearing of the petition unless a later date is agreed upon by the parties.
40. The hearing of a petition for the impeachment of a Council Member shall be in accordance with the principles of natural justice and procedural fairness.
41. The decision of the Arbitrator shall include an Order that:
(a) the petition is denied; or
(b) the petition is granted, and the Council Member is forthwith removed from office and ineligible to stand for election to Council for a specified period of up to six years.
42. The Arbitrator shall make such order regarding costs of the petition as he or she deems appropriate. The Arbitrator’s fee and all reasonable expenses shall be the responsibility of the Band unless otherwise ordered by the Arbitrator.
43. The Arbitrator’s reasoned decision on the petition shall be in writing and shall be provided to the Executive Director, Band Council, the petitioner and the Council Member in respect of whom the Petition was brought within 21 days of the end of the hearing.
44. The Arbitrator’s decision is final and binding on all parties.
(2) Policy [12] Section 4.11 of the Policy provides for reasons for disqualification and removal:
1. Notwithstanding section 3.10, the Chief or any Councillor is disqualified from holding his/her office and will immediately relinquish his/her position as the Chief or Councillor, if the Chief or Councillor:
2. Is absent from two (2) consecutive Chief and Council meetings without proper authorization and reasonable cause;
3. Is absent, in one year, from four (4) Chief and Council meetings without proper authorization and reasonable cause;
4. Uses his/her influence in contravention of Section 3.5;
5. Uses confidential information for his/her or others benefit in contravention of Section 3.6;
6. Exceeds authority, violates or contravenes section 4.7;
7. Is convicted of an indictable offence while in office;
8. He/[s]he dies or resigns;
9. If she/he is found to be a physically or mentally incompetent person or becomes of unsound mind.
…
If the Chief or any Councillor is removed from Office under this Policy she/he will be ineligible to run for either Chief or Council in the next election or by-election.
[13] Section 4.12 provides for penalties for Chief and Council:
Any member of Chief and Council who commits any substantial transgression or who has committed a violation under Section 4.11 may be subject to a penalty imposed by way of a valid Band Council Resolution. Such penalties are limited to:
1. Suspension from Chief and Council activities with or without pay or honorarium for a period of up to one (1) month;
2. Suspension from all Chief and Council activities without pay or honorarium for a period of up to three (3) months;
3. Removal of all or certain appointments;
4. Removal from Office;
5. Any decision of Chief and Council under Section 4.12 must be reported to the people of Lower Nicola Indian Band as soon as is reasonably possible.
[Emphasis in original.]
C. Events Leading to the Removal Decision [14] As I have found that lack of jurisdiction is the determinative issue in Federal Court file T-2153-22, I will only provide a general overview of the events leading to the Removal Decision. In early 2020, the Applicant learned of various allegations against him concerning whether he used his position as Councillor to further his own business interests, and whether he engaged with LNIB’s business partners contrary to the Policy and his high-level oversight role.
[15] On March 3, 2020, Chief Jackson wrote to the Applicant raising two allegations concerning the Applicant’s conduct, the relevant one concerning his deficient disclosure of conflicts of interest pursuant to the FAL. Chief Jackson explained that the Applicant would have an opportunity to provide oral and written submissions at a Chief and Council meeting scheduled for March 10, 2020, and that Chief and Council may wish to pursue further investigations following the meeting.
[16] At the March 10, 2020 meeting, Chief and Council discussed the conflict of interest disclosure requirements pursuant to the FAL. As an action item, the Applicant was required to provide an updated disclosure of his conflicts of interest. The Applicant provided a revised disclosure on March 31, 2020. That same day, the Applicant provided a written response to Chief Jackson’s March 3, 2020 correspondence denying all allegations.
[17] What followed was a series of correspondence between LNIB’s legal counsel and the Applicant between May 27, 2020 and July 31, 2020 concerning various allegations against the Applicant. The Applicant requested an in-person special meeting with Chief and Council.
[18] On August 19, 2020, Chief and Council wrote to the Applicant reiterating the allegations set out in previous “cease and desist” correspondence from LNIB’s legal counsel. On September 18, 2020, the Applicant replied raising procedural fairness concerns and reiterating his request to meet “in person, in camera, and without prejudice” to resolve matters.
[19] In summary, the allegations against the Applicant were as follows:
the Applicant failed to provide a written disclosure of the information in the form required in section 5 of the FAL Schedule A – Avoiding and Mitigating Conflicts of Interest;
the Applicant attended meetings that did not require his attendance;
the Applicant contacted the LNIB referral and field technician requesting a list of all mining referrals in the LNIB traditional territory;
the Applicant attended the Vancouver Resource Investment Conference and the Association for Mineral Exploration Roundup Conference without approval by Chief and Council by way of a valid motion;
the Applicant advised the LNIB referral and field technician that a corporation was looking for contracting opportunities, with the implication that the Applicant was seeking information for his own use;
the Applicant contacted the Economic Development Coordinator at Highland Valley Copper, introduced himself as the primary contact for LNIB and engaged in conversations related to drilling business and contracting opportunities;
the Applicant advised the LNIB Executive Director that she was not invited to attend a meeting with Highland Valley Copper, even though her attendance was required;
the Applicant emailed Chief and Council to influence or attempt to influence discussions surrounding the circumstances in which he was alleged to have a conflict of interest;
the Applicant unilaterally revised the Contractor/Supplier Information List; and
the Applicant wrote to Trans Mountain Corporation [TMX], holding himself out as having authority to communicate on behalf of LNIB Chief and Council regarding LNIB and LNIBDC’s business relationship with TMX absent Chief and Council’s approval.
[20] On December 1, 2020, Chief and Council passed a Band Council Resolution [BCR] authorizing Chief and Council to conduct or direct a formal investigation into the allegations pursuant to section 3.1.6 of the Policy [December 1 BCR]. The December 1 BCR noted that, “Chief and Council have conducted a preliminary, confidential review of [the allegations].”
[21] On March 30, 2021, LNIB’s legal counsel retained an investigator [Investigator] to conduct the investigation. The Investigator was asked to arrange interviews and provide a written report addressing:
a summary description of the allegations that have been made against the Applicant;
a summary of the evidence provided by witnesses and the Applicant;
a determination as to whether the allegations have been substantiated on the balance of probabilities and their reasons and/or evidentiary basis for their conclusions in this regard; and
whether any of the allegations can be substantiated and whether any of the alleged conduct constitutes a breach of the relevant policies.
[22] A series of written exchanges occurred between the Investigator and the Applicant between May 7, 2021 and March 23, 2022. In short, the Investigator wrote to the Applicant on several occasions requesting his availability for an interview to address the allegations and seek his directions about possible witnesses. In response, the Applicant sought clarification regarding the Investigator’s mandate, scope of investigation, impartiality, witnesses, allegations, and materials. The Applicant never met with the Investigator.
[23] The Investigator provided the Applicant with a preliminary report and its accompanying attachments on May 6, 2022 [Preliminary Report]. The Investigator invited the Applicant to provide comments on the Preliminary Report by June 2, 2022. The Investigator later extended the deadline to June 10, 2022. The Applicant never provided a written response.
[24] The Investigator issued her 54-page final report on June 30, 2022 [Final Report]. The Investigator concluded that the Applicant engaged in a conflict of interest and breached his fiduciary duties, contrary to the Policy, the Oath of Office, and the FAL. The Applicant received the Final Report in early July 2022. In an August 31, 2022 letter, Chief and Council invited the Applicant to provide a written response to the Final Report and allegation letters, along with any additional materials that the Applicant believed to be relevant, by September 14, 2022. The Applicant did not respond.
[25] On September 13, 2022, Chief and Council received a memorandum from LNIB’s legal counsel recommending the Applicant’s removal from Office and ineligibility to run in the Election pursuant to sections 4.11 and 4.12 of the Policy.
D. Applicant’s Nomination for Chief [26] On September 19, 2022, LNIB’s Chief Electoral Officer [CEO] notified LNIB membership that an Election had been called for the Offices of Chief and Council for October 22, 2022 [Notice]. The Notice provided that votes could be cast by electronic ballot, mail-in ballot, or in-person at the advance poll or regular poll. The CEO also provided a final candidates list, which identified the Applicant as a candidate for Chief. The incumbent, Chief Jackson, was also a candidate for Chief, along with two other individuals.
E. The September 28, 2022 Band Council Meeting [27] On September 24, 2022, Chief and Council received a meeting notice with call-in details for a Chief and Council meeting scheduled for September 28, 2022. The agenda included an item entitled “Potential Discipline of [Councillor] Spence Coutlee”. Attached to the agenda was a draft BCR setting out Chief and Council’s determination that the Applicant engaged in a conflict of interest, breached his fiduciary duties, and violated LNIB policies. The draft BCR further resolved to remove the Applicant from Office and deem him ineligible to run for Chief in the Election.
[28] On September 28, 2022, the Applicant drove from Kamloops to the LNIB Band Council Office in Meritt and discovered that the doors to the Band Council Office were locked. The Applicant phoned into the meeting from the parking lot.
[29] At the beginning of the meeting, the Applicant requested an adjournment of the disciplinary matter against him so he could properly present his submissions and provide Chief and Council with all the relevant evidence. He explained his understanding that the meeting would be in-person in the Band Council Office where he would have internet access. Chief and Council refused the Applicant’s request.
[30] The Applicant also requested that Chief Jackson declare a conflict of interest, given that both the Applicant and Chief Jackson were running for Chief in the Election. Chief Jackson declined to recuse himself.
[31] The Applicant proceeded to provide submissions over a four-hour period, wherein he denied each of the allegations and submitted that in the alternative, the allegations would not justify his removal from the position of Councillor.
[32] Following the Applicant’s submissions, Chief and Council went into “in camera”, or confidential, deliberations. The Applicant was required to leave the deliberations due to his conflict of interest. Chief and Council passed the BCR by way of a 4-3 majority vote. The Applicant received reasons for the Removal Decision on or around October 5, 2022.
F. The Election [33] On October 3, 2022, Chief and Council circulated a notice to LNIB members announcing that the Applicant was removed from Office effective immediately, and ineligible to run for Chief in the Election. All in-person ballots and electronic ballots were updated to reflect this change but any mail-in ballot would be spoiled. LNIB administration recommended that those who already sent in a mail-in ballot vote electronically or in-person. Alternatively, members could contact the CEO for another mail-in ballot package.
[34] On October 19, 2022, the Applicant’s counsel sought an injunction before this Court to stay the Election for Chief. The motion was dismissed.
[35] The Election proceeded on October 22, 2022. As set out in the CEO’s final report [Election Report], 381 of the 1148 eligible electors (33%) voted in the Election. Chief Jackson was elected to the Office of Chief with 182 votes. Three ballots were spoiled or rejected. The Election Report further states that mail-in ballots accounted for none of the votes cast. While voters were sent an updated replacement mail-in ballot, none were received prior to the close of polls given the timelines involved. The Certified Tribunal Record [CTR] does not indicate how many mail-in ballots were impacted.
III. The Removal Decision [36] The Removal Decision stated that the Applicant engaged in a conflict of interest; breached his fiduciary duties; and violated the Policy, the Oath of Office, and the FAL. The Removal Decision resolved to remove the Applicant from Office effective immediately pursuant to section 4.12 of the Policy and deem him ineligible to run for Chief in the Election pursuant to section 4.11 of the Policy.
[37] Chief and Council provided reasons for the Removal Decision on October 5, 2022. Chief and Council began by explaining that in rending the Removal Decision, Chief and Council considered the ten aforementioned allegations; the Applicant’s written and oral responses to the allegations; and the Final Report, including its numerous attachments.
[38] Based on this review, Chief and Council found that the events that occurred prior to March 2020 were not contrary to the Applicant’s fiduciary duty or the LNIB policies, or were a minor breach that did not warrant disciplinary conduct. As for the events following March 2020, at which point the Applicant was informed of concerns with his conduct. Chief and Council adopted the Investigator’s findings.
[39] Chief and Council highlighted two main issues with the Applicant’s conduct. First, the Applicant was not forthcoming about the extent of his modifications to the Contractor/Supplier Information List. Second, the Applicant sent an unauthorized letter to the President of TMX, wherein the Applicant misrepresented himself as speaking on behalf of Chief and Council and employed an adversarial position to advance his own self-interests. Chief and Council noted that this approach could have significantly damaged LNIB’s relationship with TMX and therefore the interests of LNIB members.
[40] Chief and Council found that the Applicant committed a “substantial transgression” justifying his removal from Office pursuant to section 4.12 of the Policy. Therefore, the Applicant was ineligible to run for Chief in the Election pursuant to section 4.11 of the Policy. In Chief and Council’s view, this penalty was reasonable in light of the purposes of the provision and the Applicant’s failure to cooperate with the Investigator.
IV. Evidence [41] In the present matter, the Applicant filed affidavit evidence from himself, a Councillor, and an Elder, the contents of which relate in part to LNIB’s practices. The Respondent filed affidavit evidence from Chief Jackson, the Investigator, the LNIB Executive Director, and an Elder addressing the same subject matter. While providing context, and with respect, the evidence was not particularly germane to the determinative issues set out in further detail below.
V. Preliminary Issue [42] Prior to the hearing of these applications, Applicant’s counsel sought to file supplementary material consisting of email correspondence dated February 16, 2023 to April 4, 2023 between counsel for the parties on an issue of privilege relating to the transcript of Chief and Council’s September 28, 2022 in-camera meeting [Transcript]. The Transcript was listed in the CTR in Federal Court file T-2153-22 with a note indicating that it was to be included in a supplementary record. It was never submitted. The Applicant points to various instances where the Respondent’s materials repeatedly reference the Transcript, namely the affidavit of Chief Jackson and several paragraphs of the Respondent’s memorandum. The Applicant submits that the Court should either not consider those references or draw an adverse inference from the non-production of the Transcript.
[43] The Respondent’s counsel previously refused to disclose the Transcript due to deliberative and solicitor-client privileges. In correspondence before the hearing, Respondent’s counsel opposed the Applicant’s informal request on several additional grounds. It is not necessary to delve into these submissions.
[44] On the second day of the hearing, counsel for the Respondent advised the Court that there was in fact no Transcript. Counsel advised Applicant’s counsel after the first day of the hearing. They apologized for not discovering this.
[45] Suffice to say, this issue has been resolved. In any event, the Respondent’s references to the Transcript have not impacted the Court’s determination of the matters. The Applicant submitted that this issue may be relevant to an award of costs.
VI. Issues and Standard of Review [46] After considering the parties’ submissions, the issues are best characterized as:
Did Chief and Council have the authority under the Policy to remove the Applicant from his position as Councillor?
Was the Removal Decision procedurally fair?
Was the Removal Decision reasonable?
Is the application challenging the Election premature?
If no, is the Election void?
What are the appropriate remedies?
[47] The Applicant submits that the standard of review for jurisdictional questions and substantive errors is that of reasonableness, emphasizing that the latter must be framed by the context and impact of the Removal Decision (Whalen v Fort McMurray No 468 First Nation, 2019 FC 732 at para 30 [Whalen]; Canada (Minister of Citizenship and Immigration v Vavilov), 2019 SCC 65 at paras 16-17, 89, 109, 133 [Vavilov]). The Applicant further submits that procedural fairness issues are subject to a correctness review, and a breach of procedural fairness “voids the entire proceeding” (Girouard v Canada (Attorney General), 2020 FCA 129 at para 38; Clarke v Canada (Citizenship and Immigration), 2018 FC 267 at paras 8, 15; Canada (Attorney General) v McBain, 2017 FCA 204 at paras 9-10).
[48] The Respondent submits that the standard of review for the merits of the Removal Decision is reasonableness. The Respondent emphasizes that deference ought to be afforded to the Removal Decision and the Respondent’s choice of procedure (Policy, s 3.9; Lower Nicola Indian Band v Joe, 2011 FC 1220 at para 28; Pastion v Dene Tha’ First Nation, 2018 FC 648 at paras 10, 21-23, 28 [Pastion]). The Respondent further submits that issues of procedural fairness must be determined with regard to all of the circumstances, consistent with the factors set out in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, [1999] SCJ No 39 [Baker] (Vavilov at paras 23, 77). Lastly, the Respondent submits that no standard of review applies to whether an adequate alternative remedy was available to the Applicant.
[49] Issues #1 and #3 attract a reasonableness standard of review (Vavilov at paras 16-17; Whalen at para 30; Blois v Onion Lake Cree Nation, 2020 FC 953 at paras 20-22 [Blois]; Beeswax v Chippewas of the Thames First Nation, 2023 FC 767 at para 14). A reasonableness review is a robust form of review that requires the Court to consider both the outcome of the decision and the underlying rationale to assess whether the decision, as a whole, “bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov at paras 13, 15, 99). A decision will be unreasonable where there are shortcomings in the decision that are sufficiently central or significant (Vavilov at para 100). The onus is on the Applicant to demonstrate the unreasonableness of the decision (Vavilov at para 100).
[50] Issue #2 attracts a standard of review akin to correctness (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54 [CP Railway]; Mission Institution v Khela, 2014 SCC 24 at para 79). On a correctness review, no deference is owed to the decision-maker (Blois at para 26, citing Elson v Canada (Attorney General), 2019 FCA 27 at para 31; Connolly v Canada (National Revenue), 2019 FCA 161 at para 57). Rather, when evaluating whether there has been a breach of procedural fairness, a reviewing court must determine if the procedure followed by the decision-maker was fair, having regard to all the circumstances (CP Railway at para 54; Vavilov at para 77; Baker at paras 21-28).
[51] The remaining issues do not attract a standard of review, as they call for this Court to act as the original decision-maker.
VII. Analysis [52] The determinative issue in both matters is the parties’ disregard for the Rules. The LNIB membership approved the Rules and it is the governing law. This finding affects the validity of the Removal Decision and the Applicant’s challenge to the Election. I will briefly highlight the parties’ submissions on the other issues.
A. Did Chief and Council have the jurisdiction under the Policy to remove the Applicant from his position as Councillor? (1) Applicant’s Position [53] The Policy does not provide the necessary jurisdiction for Chief and Council to remove a Council Member or prevent them from running for Office. Rather, the comprehensive process is set out in sections 35 to 44 of the Rules, a quasi-constitutional document approved by two thirds of LNIB’s membership. The Chief and Council did not follow this process. Instead, they followed the Policy, an ordinary document passed by Council and that LNIB’s membership did not approve.
[54] The Policy constitutes an unsanctioned amendment to the Rules, the latter of which already occupies the field. The Policy cannot trump a supreme law (Whalen at paras 2, 42, 48-49). As such, the removal process under the Policy is of no force of law (Hall v Kwikwetlem First Nation, 2020 FC 994 at para 59 [Hall]).
(2) Respondent’s Position [55] Sections 35 to 44 of the Rules provides for the impeachment of Councillors. The remedy under section 35 of the Rules is inflexible, unsuitable, and unduly harsh for many of the disciplinary situations addressed by Chief and Council. Conversely, the Policy was enacted to “provide a transparent and comprehensive Policy to Chief and Council” with progressive steps. It addresses all aspects of Chief and Council governance, including disciplinary provisions (Policy, ss 3.9, 4.11, 4.12).
[56] Two statutory provisions that deal with the same subject matter will both apply unless they conflict or one was meant to be exhaustive (Ruth Sullivan, Statutory Interpretation, 3d ed (Toronto: Irwin Law, 2016) at 317-31). Neither situation applies in the present matter. First, the Rules and the Policy do not conflict, as the discipline of a Council Member can occur under either the Rules or the Policy. Second, the Rules are not meant to be exhaustive. The discipline provisions are not sufficiently complete and comprehensive to stand alone, as they do not cover all aspects of discipline. Rather, as noted above, they can only be applied in more serious cases of misconduct. This Court has utilized the Policy to justify the removal of Councillors, further demonstrating that the Rules are not exhaustive (Basil v Moses, 2009 FC 741 at paras 65, 131-32 [Basil]; Lower Nicola Indian Band v York, 2013 FCA 26 at para 5 [York]).
[57] Contrary to the Applicant’s assertion, the Rules do not supersede other LNIB laws. Further, Whalen does not stand for the proposition that a law passed by the membership supersedes other duly enacted laws. Rather, the Court found that an unwritten custom or inherent power could not supersede the band’s written laws (at paras 1-2, 42).
[58] Alternatively, if this Court finds that the Rules and the Policy conflict, the Respondent’s interpretation and application of the Policy should prevail. LNIB Chief and Council, are best placed to understand the purpose and logic of the Policy and the Rules (Pastion at paras 45-46). As the governing body, they are responsible for creating and approving all laws, bylaws, regulations, rules, and codes. They also apply the Policy on a daily basis. For these reasons, the Respondent’s use of the Policy’s disciplinary provisions was reasonable.
(3) Conclusion [59] The Policy does not provide the necessary jurisdiction for the Chief and Council to remove the Applicant from his position as Councillor and prohibit him from running as a candidate in the Election. The Rules, a foundational law approved by the LNIB membership, is the only law that contains a process for the removal of Chief and Council.
[60] The hierarchy of law dictates that “[l]aws made by the membership are analogous to constitutions – they are the supreme law of the First Nation in question, and they must be paramount to the laws and decisions made by the council” (Whalen at para 48, emphasis added; Reference re Secession of Quebec, [1998] 2 SCR 217, [1998] SCJ No 61 at paras 72-74). While I agree with the Respondent that Whalen arose in the context of an unwritten custom or inherent power, I nevertheless am of the view that this principle remains relevant to the present matter.
[61] The Custom Election Rules were first enacted in 1994. The amended Rules in effect at the time of the Removal Decision arose from a series of meetings held by Chief and Council among LNIB membership from January to March 2013. Certain amendments concerned the impeachment provisions in the Rules. Specifically, the amendments expanded the circumstances in which a Council Member may be removed from office and created a more comprehensive removal process, including the appointment of an arbitrator with experience in First Nations issues to adjudicate the matter. The Rules were ratified by a two-thirds majority vote of eligible electors on June 6, 2013. Notably, the Custom Election Rules in effect immediately prior to this amendment provided that a Council Member may be immediately removed from office by the passing of a BCR to that effect [1998 Rules].
[62] The Chief and Council Policy was first implemented in 1997. The Policy in effect at the time of the Removal Decision sets out good governance practices for Chief and Council, including disciplinary provisions. Notably, the same disciplinary provisions have been included in the Chief and Council Policy since 2012. The BCR passing the Policy provides that the Policy “shall be deemed to be in compliance with all applicable Band laws and policies. Compliance with this Policy by all members of Chief and Council shall be required to the letter and this compliance is also to include and encompass the spirit of any additional applicable laws, policies, guidelines or other declarations.”
[63] I appreciate the Respondent’s oral submissions that the Rules, the Policy, the FAL, and other matters provide a framework for the good governance of the LNIB. I also note that the impeachment provisions of the Rules refer to violations of the Rules, the Policy, including the Oath of Office, and the Conflict of Interest Policy (s 35). On its face, it is possible for the Rules and the Policy to co-exist in terms of the circumstances that may be considered a breach of a Council Member’s responsibilities. However, the Rules and the Policy diverge in the process for removal.
[64] As set out above, the Rules were amended in 2013 by a significant percentage of the LNIB electorate allowing for a comprehensive removal process. Unlike the Rules, the removal process set out in the Policy has no force of law because it has not been ratified by the community (Hall at para 59); rather, it was approved solely by Chief and Council. As such, the Policy could not form the basis of the Removal Decision. Absent the impeachment process set out in the Rules, as discussed in paragraph 11 above, the Applicant could not have been removed from his position as Councillor and precluded from running in the Election.
[65] As a final point, this Court has previously held that the impeachment provisions within the 1998 Rules are thorough, well established, and cover the field adequately (Basil at para 65). This case arose in the context of an alternative customary authority and was decided prior to the Rules at issue here, which provide for an even more thorough impeachment process.
[66] Basil and York do not support the Respondent’s position. In York, the Federal Court of Appeal considered the impeachment provisions as set out in the 1998 Rules (at para 4). Basil can be distinguished factually. In that case, there was no removal or impeachment process being considered directly as in the present situation, but whether certain resignations could be accepted in light of a policy. Rather, an Elders Investigation Committee [EIC] first impeached the former Chief and all but one former Councillor for breaching their fiduciary duties, contrary LNIB bylaws and policies. Justice Tremblay-Lamer found that the EIC did not have jurisdiction to impeach past and current Chief and Council members but that the EIC, based on evidence of custom, had a role in investigating wrongdoing by Chief and Council (at paras 69-74). In addition, the circumstances indicate that Chief and Council may not have been able to convene meetings due to the nature of the allegations and deemed resignation provisions of the applicable Oath of Office. Accordingly, pursuant to the Chief and Council Policy in effect from January 29, 1997 to December 21, 2010, and in light of the unique circumstances, the Chief was granted the power to accept the resignations (at paras 131-32).
[67] To summarize, in the case at hand, Chief and Council did not have the jurisdiction to remove the Applicant unilaterally pursuant to the Policy. Rather, they ought to have followed the impeachment process as set out in the Rules, the quasi-constitutional governance document approved by LNIB’s membership.
B. Was the Removal Decision procedurally fair? [68] The Applicant’s submissions centered around four issues. First, a reasonable apprehension of bias arose from Chief Jackson’s vote in the Removal Decision. Second, the September 28, 2022 meeting was pre-determined because the draft BCR circulated prior to the meeting was adopted verbatim. Third, the Applicant’s rights to know the case against him and to make a full answer of defence, were plainly violated. Lastly, Chief and Council acted contrary to the Applicant’s legitimate expectation that they would conduct an in-person oral hearing (Baker at para 26).
[69] The Respondent submits the Applicant received procedural fairness throughout. Chief Jackson was not acting in a conflict of interest and attempting to silence a political rival. Rather, the Removal Decision was the culmination of a 28-month long decision-making process that coincided with the Election. Second, Chief and Council did not predetermine the matter by including the draft BCR in the September 28, 2022 meeting package. Chief and Council considered all of the available information in rendering the Removal Decision, including the Applicant’s oral submissions, the Final Report, and counsel’s advice. Lastly, the Applicant was provided numerous meaningful opportunities to be heard, all of which he refused.
[70] In my view, and as stated above, the issue of jurisdiction i