Chief v. Canada (Minister of Indian Affairs and Northern Development)

Chief v. Canada (Minister of Indian Affairs and Northern Development)
Court (s) Database
Federal Court Decisions
Date
2004-09-30
Neutral citation
2004 FC 1342
File numbers
T-686-03
Decision Content
Date: 20040930
Docket: T-686-03
Citation: 2004 FC 1342
Ottawa, Ontario, this 30th day of September, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ROY LITTLE CHIEF
Applicant
- and -
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT,
HON. ROBERT D. NAULT, PC. MP, AND THE CHIEF AND COUNCIL OF THE
SIKSIKA NATION FROM TIME TO TIME AND CHIEF ADRIAN STIMSON SR., CHIEF OF THE SIKSIKA NATION, AND MORRIS RUNNING RABBIT,
GERALD SITTING EAGLE, RUTH SCALP LOCK, JANICE DOORE,
KENDALL PANTHER BONE, SCOTTY MANY GUNS, LEONARD GOOD EAGLE, JASON DOORE, ELDON WEASEL CHILD, CLIFFORD MANY GUNS,
AND DEBBIE SMITH, COUNCILLORS OF THE SIKSIKA NATION
ON THEIR OWN BEHALF AND AS REPRESENTATIVES
OF THE SIKSIKA NATION COUNCIL
Respondents
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] On February 4th and 5th, 2003, a referendum of the Siksika Nation was held pursuant to the Indian Referendum Regulations, C.R.C. c. 957, as amended by S.O.R./2000-392, to approve the terms of a proposed land claim settlement, the surrender of that land pursuant to subsection 39(1) of the Indian Act, R.S.C. 1985, c. I-5 and the establishment of a trust for the settlement funds.
[2] This proceeding is an application, pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, for judicial review of the March 31, 2003 decision of the Minister of Indian Affairs and Northern Development that the complaints raised by the applicant were insufficient to call into question the validity of that referendum.
[3] The applicant requests an order setting aside the Minister's decision and referring the matter back for re-determination in accordance with this Court's directions.
Background
[4] The applicant, Roy Little Chief (the "applicant") is a member of the Siksika Nation, a band that resides on Siksika Indian Reserve No. 146.
[5] In the 1960s, the Siksika Nation commenced a claim against the federal Crown alleging, inter alia, that in 1910 approximately 12,522 acres of reserve land were taken from the band contrary to the provisions of Treaty 7, the provisions of the Indian Act then in force, and the Crown's fiduciary duties. This claim, referred to by the parties as the "Acreage Discrepancy Claim", was part of a larger land claim relating to more than 115,000 acres of Siksika reserve land.
[6] In 1982, the Siksika Nation agreed to present its claims to the Department of Indian Affairs and Northern Development for consideration under the Crown's Specific Claims Policy. In the early 1990s, the Acreage Discrepancy Claim was accepted for negotiation on the basis that the Crown had breached its fiduciary obligation to the Siksika Nation. In 2000, the members of the Siksika Nation ratified a settlement that dealt with the sub-surface mineral portion of its claim.
[7] In May 2000, the Siksika Nation and the Crown began negotiating the surface portion of the band's claim. An agreement in principle was reached in June 2002. Arrangements were made to conduct a referendum of the Siksika Nation to ratify the agreement.
[8] In a letter dated January 29, 2003, the applicant wrote to the Department of Indian Affairs and Northern Development, as well as the chief and council of the Siksika Nation, asking that the referendum, scheduled for February 4th and 5th, 2003 be cancelled or deferred because of the following alleged irregularities:
1. The referendum asked a single question covering two distinct questions, contrary to parliamentary law and principles of clarity;
2. The Regulations' notice requirements were not met;
3. Band members were offered money if they showed up and voted, which is a corrupt practice;
4. Band members were not fully informed about the subject matter of the referendum; and
5. Band members were threatened, intimidated or unduly influenced by being warned that if they did not approve the agreements this time, it would be ten years before they would be given the chance to negotiate with the Department of Indian Affairs and Northern Development again.
[9] Pursuant to the provisions of the Indian Referendum Regulations, C.R.C. c. 957 (the "Regulations") a ratification vote of the proposed agreement, entitled the "Acreage Discrepancy (Surface) Claim Settlement Agreement" and accompanying "Siksika Trust Agreement" (together referred to as the "Settlement and Trust Agreements") went ahead on February 4th and 5th, 2003.
[10] The question on the ballot was:
DO YOU:
Approve and assent to the terms and conditions set out in the Settlement Agreement dated for reference the 10th day of December 2002, including the absolute and unconditional Surrender of the Claim Lands pursuant to sections 38(1), 39 and 40 of the Indian Act, and authorize the Council and succeeding Councils of the Siksika Nation to sign all documents necessary to give effect to the Settlement Agreement on behalf of the Siksika Nation;
AND
Approve the terms and conditions set out in the Siksika Trust Agreement dated for reference 10th day of December 2002 and authorize the Council and all succeeding Councils of the Siksika Nation to sign all documents necessary to give effect to the Siksika Trust Agreement on behalf of the Siksika Nation? [emphasis in orginal]
Voters then had the opportunity to vote "yes" or "no" to this paired set of questions. Voting was held on the reserve, as well as off the reserve at a Calgary, Alberta community centre.
[11] The results of the referendum showed that a large majority of the band supported ratification of the Settlement and Trust Agreements. According to electoral officer Lisa Balsillie, 85.5% of voters supported the ratification, while 12.6% opposed. Voter turnout was 83% of those eligible to cast a ballot.
[12] On February 11, 2003, the applicant wrote to the Minister of Indian Affairs and Northern Development seeking to have the referendum reviewed and declared invalid pursuant to sections 22 and 23 of the Regulations due to alleged irregularities and corrupt practices in the referendum process. The applicant expressed the same areas of concern set out in his letter of January 29, 2003.
[13] On March 7, 2003, the applicant sent the Minister a letter alleging as a further irregularity in the referendum process, that ballots had been counted between the first and second day of voting. In the applicant's view, counting ballots before the conclusion of voting was a breach of well-known voting protocols that voided the results of the vote.
[14] In a letter dated March 31, 2003, the Minister refused the applicant's request for a review of the referendum. The letter stated as follows:
I wish to inform you that I have considered your request for a review of the Referendum held for the Siksika Acreage Discrepancy (Surface) Claim Settlement Agreement and Trust Agreement Vote, held on February 5, 2003, in accordance with Section 22 of the Indian Referendum Regulations (the "Regulations"). Upon review of your letter dated February 11, 2003 and the accompanying Statutory Declaration of Roy Little Chief, dated February 11, 2003, I have concluded that your request does not establish:
(a) that there was a contravention of the Regulations that may affect the results of the referendum; or
(b) that there was corrupt practice in connection with the referendum.
As a result, I have concluded in accordance with Section 23 of the Indian Referendum Regulations that there is not sufficient information to call into question the validity of the above noted referendum.
[15] On April 30, 2003 the applicant filed this application for judicial review, asking that the Minister's decision be set aside. He named as respondents to this proceeding the Minister whose decision is being challenged, as well as the Chief and Council of the Siksika Nation. Chief Adrian Stimson Sr. and each Councillor of the Siksika Nation were also named personally as respondents.
[16] At the hearing of this matter, two sets of respondents appeared before me to counter the applicant's position. First, the Minister of Indian Affairs and Northern Development was represented by the Department of Justice. Secondly, the Chief and Council of the Siksika Nation, as well as each individually named councillor were collectively represented by private counsel. In these reasons, I shall refer to the respondent Minister of Indian Affairs and Northern Development as "the Minister" and the remaining respondents as "the Siksika Nation".
[17] This proceeding is the judicial review of the Minister's March 31, 2003 decision that there was insufficient information to call into question the validity of the Settlement and Trust Agreements referendum.
Applicant's Submissions
[18] The applicant submits that his letter dated February 11, 2003, which described five areas of concern regarding the referendum, provided more than enough information to meet the statutory standard of being "sufficient" to call into question the validity of the referendum and therefore the Minister was obliged to report to the Governor in Council. The applicant characterizes the standard of proof set out in section 23 of the Regulations as relatively low, therefore it is submitted that the Minister was incorrect to refuse to find that the validity of the referendum was called into question.
[19] The applicant states that the following allegations were before the Minister regarding improprieties in the referendum:
1. The Referendum Question: The referendum question was improper because it linked two questions. Voters either had to accept both the Settlement Agreement and the Trust Agreement, or reject both. The applicant states that asking a double question is contrary to Robert's Rules of Order and parliamentary law. In his submission, it was reasonable to have a separate vote on the two agreements, since some band members may be satisfied with one but not the other.
2. The Referendum Notice: The applicant alleged that the notice requirements found in subsection 4.2(1) of the Regulations were not complied with. Only one notice was posted before the relevant deadline and it did not meet the requirements of the Regulations.
3. Payment for Voting: The applicant states that it was a corrupt practice for voters to be told they would receive $100 per person on voting day and $1,500 in May 2003 if the Settlement and Trust Agreements were ratified. The applicant alleges this arrangement was an attempt to influence the vote, and therefore voids the results.
4. Band Members Not Fully Informed: For a valid surrender of reserve land, the voters must be fully informed. The applicant submits that copies of the appraisal documents relating to the Settlement Agreement and Trust Agreements were not available for viewing at the Siksika Nation's administration offices, were later made available but not satisfactorily, and band members were only provided with a misleading, simplistic handout regarding the agreements.
5. Warning was a Corrupt Practice: The applicant states that band members being told that if they did not ratify the Settlement and Trust Agreements now, negotiations could not begin again for ten years constitutes a "threat, intimidation or undue influence" which constitutes a corrupt practice.
[20] The applicant submits that a low level of deference should be afforded to the Minister's decision, since it was not a quasi-judicial decision and was not made in a manner that allowed the applicant to know the case he was required to meet.
[21] Applying the factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, as quoted by Muldoon J. in Grand Rapids First Nation v. Nasikapow (2000), 197 F.T.R. 184 (T.D.) at paragraph 37, the applicant argues that the Minister owed him a high degree of procedural fairness, which was breached in the circumstances of this case. The applicant points to the following factors which militate in favour of requiring a high level of procedural safeguards: the decision in question is of great personal importance to the applicant, he had a legitimate expectation that some sort of hearing or rebuttal would be provided for before the Minister made his decision, and no particular procedure has been chosen by the Minister for dealing with objections made under section 22 of the Regulations. Consequently, the applicant argues that the Minister's decision should be set aside because it was made in breach of the rules of procedural fairness and natural justice.
[22] Relying on Lavallee v. Louison, [1999] F.C.J. No. 1350 (T.D.)(QL) and Preston Sound v. Swan River Nation (2003), 237 F.T.R. 74, 2003 FC 850, the applicant submits that he should have been provided with any evidence of the electoral officer, or any other party who provided information to the Minister, which contradicted his allegations and he should have been given an opportunity to respond.
[23] The applicant further submits that the Minister failed to give reasons for his decision, which constitutes a breach of the duty of fairness owed to him in the circumstances. The applicant submits that the decision letter of March 31, 2003 refers only to his materials, which prima facie was sufficient to call into question the validity of the referendum. For the Minister to have decided otherwise, in the applicant's view, establishes that the decision must have been made without regard to the available evidence. Alternatively, if other sources were consulted, the applicant relies on his arguments regarding the duty of fairness since no contradictory information was provided to him.
Minister's Submissions
[24] The Minister relies on the statutory declaration and affidavit of Lisa Balsillie, an employee of Indian Affairs and Northern Development Canada who was the electoral officer responsible for the Siksika referendum.
[25] The Minister states that in accordance with subsection 22(3) the Regulations, the applicant's request for a review of the referendum was sent to Ms. Balsillie. In accordance with subsection 22(4) of the Regulations, Ms. Balsillie forwarded on February 21, 2003 a statutory declaration responding to the grounds raised by the applicant. The Minister also states that in reaching his decision, documents protected by solicitor-client privilege and/or cabinet confidence were consulted.
[26] The Minister submits that all procedural requirements were met in this case and a reasonable decision was made, therefore this application for judicial review should be dismissed.
[27] On the issue of procedural fairness, the Minister states that the content of the duty of fairness varies from case to case and depends on the legislative scheme in question. Applying the Baker, supra, factors, the Minister points out that its decision was far from judicial, and the simple two-step procedure set out in the legislation was followed on the facts of this case. The Minister denies that an oral hearing was required or is even anticipated by the legislation.
[28] Relying on the factors set out in Cochrane v. Canada (Minister of Indian Affairs and Northern Development) (1988), 93 N.R. 35 (F.C.A.), the Minister submits it met the duty of fairness owed to the applicant in this case. Nothing in the legislation suggests a hearing is required, the nature of the decision does not significantly impact the applicant, and requesting a review is not adversarial in nature. Given these factors, the Minister submits that as a low level of procedural fairness was required in the circumstances, no breach of fairness occurred.
[29] In the Minister's view, no opportunity for reply or a hearing was required. Its only duty was to allow the applicant to make initial written submissions requesting the review, which was done.
[30] The Minister disputes that its decision should be set aside for failure to give reasons. Citing Mensinger v. Canada (Minister of Employment and Immigration), [1987] 1 F.C. 59 (T.D.), the Minister submits that there is no universal requirement for decision-makers to give reasons and such a requirement would not be appropriate in this case, given the expedient administrative model under the Regulations.
[31] The Minister submits that its substantive decision that there was insufficient evidence to call into question the validity of the referendum should be reviewed on a standard of reasonableness or patent unreasonableness, given the four balancing factors set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19. Although the Regulations contain no privative clause protecting the Minister's decision, it is submitted that the broad policy goals of the Indian Act, supra, and the Regulations suggest a less searching standard of review. The issue was a factually-based polycentric one without a legal component and the Minister has greater expertise in such matters than the Court.
[32] The Minister states that the applicant's allegations of irregularities surrounding the referendum were speculative at best. It is submitted that the Minister properly considered the evidence of the applicant, and the responding information from the electoral officer responsible for the referendum and reasonably reached the conclusion that there was insufficient evidence to call into question the validity of the vote. With respect to each area of the applicant's allegations, the Minister submits the following:
1. The Referendum Question: It was proper to ask for acceptance or rejection of both the Settlement Agreement and Trust Agreement because the two were inextricably linked. The latter could only exist with the former, and to separate the questions could create two incomplete questions for the referendum.
2. The Referendum Notice: The Minister relies on the affidavit of electoral officer Ms. Balsillie, which sets out the manner in which the notice requirements of Regulation 4.2 were met, including the notice of the vote being posted on December 20, 2002 at various locations both on and off reserve. The only information to the contrary was the applicant's unsubstantiated statement that to the best of his knowledge, the notice requirements were not met. The Minister therefore determined that there was insufficient information to conclude that the Regulations had been breached.
3. Payment for Voting: The Minister states that the payment of money to band members was not done with the intention of corrupting the vote, but was permitted by the Indian Act, supra, as a legal and valid practice under section 64 as a per capita distribution. The $100 per capita distribution was given to all Siksika band members regardless of how they voted, or whether they voted at all. The payment, therefore, cannot be characterized as an inducement. The Minister states that it is common for bands to make per capita distributions, which have not amounted to a corrupt practice in the past.
4. Band Members not Fully Informed: Relying on the affidavit and statutory declaration of Lisa Balsillie, the Minister states that the requirement of Regulation 4.3 to hold at least one information meeting was met.
5. Warning was a Corrupt Practice: Relying on the affidavit of Joe Weasel Child, land claims manager for the Siksika Nation, the Minister states that the statements regarding further delays in the event of a "no" vote on the referendum were made in order to fully inform band members of the options and risks associated with each possible outcome of the vote. The Minister denies that any threats, intimidation or undue influence was exerted at the information meetings and that the statements relied upon by the applicant are taken out of context. The Minister further states that outlining the consequences of a "no" vote was necessary to fully inform band members, and does not constitute a corrupt practice that could call into question the validity of the referendum.
[33] Based on these arguments, the Minister argues that the applicant has not established any breach of procedural fairness, nor has he established grounds upon which its decision could be set aside, given the highly deferential stance this Court should take to the decision being challenged in this proceeding.
[34] The Minister requests that this application be dismissed with costs.
Siksika Nation's Submissions
[35] The Siksika Nation submits that when the Indian Act, supra, and the Regulations are read together, it is clear that Parliament intended to grant the Minister complete discretion to decide, based on the materials submitted by a complainant, such as the applicant, and the electoral officer, whether the validity of a referendum was called into question. If so, the Minister is obliged to report to the Governor in Council, who has the discretion to withhold its consent to the proposed surrender of land.
[36] In the Siksika Nation's submission, it is significant that the Regulations do not establish an independent administrative tribunal to deal with alleged irregularities in referenda. Instead, the review process contemplated by the Regulations is a very simple one, that does not anticipate a hearing or reply submissions. The Siksika Nation submits, therefore, that the applicant's arguments regarding a breach of procedural fairness are without merit.
[37] Comparing sections 22 and 23 of the Regulations with a similar review process in Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, the Siksika Nation argues that this Court's power to review the Minister's decision should be confined to a "basic jurisdictional supervisory role", to simply determine whether the function delegated by the legislation was performed. Providing that the matter is within the jurisdiction of the Minister, the Siksika Nation argues that the resulting decision should be insulated from judicial review.
[38] The Siksika Nation submits that the referendum review process triggered by the applicant is only one part of the checks and balances at work in the land claim settlement process. The will of the band members should not be overturned in the absence of cogent and compelling evidence of corrupt practices in the referendum. Since the applicant has not questioned the jurisdiction of the Minister to make his decision, the Siksika Nation states that the decision is therefore not reviewable.
[39] Alternatively, the Siksika Nation submits that the standard of review to be applied in this case, taking into account the pragmatic and functional approach set out in Baker, supra, and the practical consequences of overturning the decision, should be patent unreasonableness.
[40] Furthermore, the Siksika Nation states that this case does not disclose sufficient grounds for this Court to grant the extraordinary prerogative remedies sought by the applicant.
[41] The Siksika Nation submits that the legal test for calling into question the validity of the referendum should be that a "preponderance of evidence submitted by the party challenging the referendum should be sufficient to show that there were sufficient irregularities that are likely to materially affect the result of the referendum". It is further argued that the onus of proving the irregularities should lie with the applicant, who should also bear the onus of proving any such irregularities materially affected the vote.
[42] The Siksika Nation submits that even if all of the irregularities alleged by the applicant took place, it has not been established that they materially affected the referendum results.
[43] The Siksika Nation cautions this Court against too readily applying legal principles from election cases to the facts at bar, a referendum case, because the standards are necessarily different. The Siksika Nation submits that in the case of a land surrender, the true test is whether the object of the Indian Act, supra, has been met, even if technically speaking, the statutory requirements were not met. In this case, it is submitted that the object of the Indian Act, supra, has been met and the Siksika Nation's overwhelming support for ratification of the Settlement and Trust Agreements should be respected.
[44] With respect to each area of the applicant's allegations, the Siksika Nation submits the following:
1. The Referendum Question: It was proper to ask for acceptance or rejection of both the Settlement Agreement and Trust Agreement because the two were a package. Article 9.1 of the Settlement Agreement clearly states that a Trust Agreement was necessary. It was in the best interests of band members to also ratify the Trust Agreement, which provides for the investment and disbursement of funds for the benefit of all band members. Even if improper, there is no basis for setting aside a referendum for asking a double question. The case law cited by the applicant is distinguishable and no evidence was tendered that any voter found the question confusing.
2. The Referendum Notice: The Siksika Nation states that the affidavit of Lisa Balsillie gives full answer to the applicant's allegations regarding insufficiency of notice. It is submitted that an adverse inference should be drawn from the applicant's failure to cross-examine Ms. Balsillie or to offer rebuttal evidence.
3. Payment for Voting: The Siksika Nation submits that a referendum is more akin to a commercial transaction than an election, and giving valuable consideration is entirely appropriate in this case. Furthermore, paragraph 64(1)(a) of the Indian Act, supra, expressly authorizes per capita distributions to band members in the case of the sale of surrendered land and has been customarily done in the context of land claim settlement. Even if the payment was prima facie improper, the Siksika Nation argues that the applicant should bear a higher onus of proof to prove that the payments were a corrupt practice, given that the allegation can be equated to alleging fraud or bribery. Especially since the applicant has named the band chief and councillors in their personal capacity, it is submitted that the applicant should be required to provide proof beyond a reasonable doubt or at least strict proof in support of the allegations of corrupt practices. In the Siksika Nation's view, the applicant's argument leads to the absurd result that every band member would be guilty of a corrupt practice, since recipients of a payment are also guilty of the corrupt practice. Given the high standard of proof that the applicant was required to meet, it is submitted that in the case at bar, the Minister did not err in finding that there was insufficient evidence of any corrupt practice.
4. Band Members not Fully Informed: Relying on the affidavit and statutory declaration of Lisa Balsillie, the Siksika Nation states that far more than the requirements of the Regulations was done to inform band members about the referendum issues. Legal counsel for the Siksika Nation offered to meet privately with anyone who wished to review aspects of the agreements, or to see the appraisal documents, and a number of information meetings were held to present information and answer any questions raised by band members.
5. Warning was a Corrupt Practice: It is not denied that the statements alleged by the applicant were made. The Siksika Nation submits that explaining to band members that a "no" vote could set back the negotiation process by ten years was necessary in order to ensure that voters were fully informed of the risks of not accepting the settlement. The Siksika Nation denies that such statements constitute a threat, intimidation or undue influence. Neither the applicant, nor any other voter, has stated that they were intimidated or that the outcome of the referendum was materially affected.
[45] The Siksika Nation also denies that the Minister's decision was made in breach of the duty of fairness owed to the applicant. The Baker, supra, factors suggest only minimal procedural protections were required by the duty of fairness, so it was not a breach of natural justice for the decision to be made without a hearing or a chance of reply. Furthermore, the Siksika Nation argues that there is no common-law duty to provide reasons for decision. Since the Regulations do not require the Minister to provide even written notice of his decision, let alone reasons for it, the Siksika Nation argues that the applicant's arguments regarding failure to provide reasons vitiating the decision are without foundation.
[46] Finally, the Siksika Nation denies that the Minister's decision was based on erroneous findings of fact made in a perverse or capricious manner.
[47] The Siksika Nation requests that this application for judicial review be dismissed.
Issues
[48] 1. Did the Minister breach the duty of fairness owed to the applicant in the
circumstances?
2. Has the applicant established any other basis for setting aside the Minister's decision under section 23 of the Indian Referendum Regulations, supra?
Relevant Legislative Provisions
[49] The relevant sections of the Indian Act, supra, state:
39. (1) An absolute surrender or a designation is void unless
(a) it is made to Her Majesty;
(b) it is assented to by a majority of the electors of the band
. . .
(iii) by a referendum as provided in the regulations; and
(c) it is accepted by the Governor in Council.
64. (1) With the consent of the council of a band, the Minister may authorize and direct the expenditure of capital moneys of the band
(a) to distribute per capita to the members of the band an amount not exceeding fifty per cent of the capital moneys of the band derived from the sale of surrendered lands;
. . .
39. (1) Une cession à titre absolu ou une désignation n'est valide que si les conditions suivantes sont réunies:
a) elle est faite à Sa Majesté;
b) elle est sanctionnée par une majorité des électeurs de la bande:
. . .
(iii) soit au moyen d'un référendum comme le prévoient les règlements;
c) elle est acceptée par le gouverneur en conseil.
64. (1) Avec le consentement du conseil d'une bande, le ministre peut autoriser et prescrire la dépense de sommes d'argent au compte en capital de la bande:
a) pour distribuer per capita aux membres de la bande un montant maximal de cinquante pour cent des sommes d'argent au compte en capital de la bande, provenant de la vente de terres cédées;
. . .
[50] The relevant sections of the Indian Referendum Regulations, supra, state:
4.2 (1) At least 14 days before the day on which an information meeting for a referendum is to be held and at least 42 days before the day of the referendum, the electoral officer or deputy electoral officer shall
(a) post a notice of the referendum and a list of the names of electors in at least one conspicuous place on the reserve; and
4.2 (1) Au moins quatorze jours avant la séance d'information sur le référendum et au moins quarante-deux jours avant le référendum, le président d'élection ou le président du scrutin:
a) affiche, à au moins un endroit bien en vue situé dans la réserve, un avis de référendum et une liste des noms des électeurs;
(b) mail or deliver to every elector of the band who does not reside on the reserve and for whom an address has been provided
(i) a notice of the referendum,
(ii) a mail-in ballot, initialled on the back by the electoral officer,
(iii) an outer, postage-paid return envelope, pre-addressed to the electoral officer,
(iv) a second, inner envelope marked "Ballot" for insertion of the completed ballot,
(v) a voter declaration form,
(vi) a letter of instruction regarding voting by mail-in ballot, and
(vii) an information package regarding the designation or surrender that is the subject of the referendum.
22. (1) An elector may, in the manner set out in subsection (2), request a review of the referendum by the Minister where the elector believes that
(a) there was a contravention of these Regulations that may affect the results of the referendum; or
(b) there was corrupt practice in connection with the referendum.
b) envoie par la poste ou remet les documents suivants à chacun des électeurs de la bande qui ne résident pas dans la réserve et dont une adresse a été fournie:
(i) un avis de référendum,
(ii) un bulletin de vote postal au verso duquel figurent les initiales du président d'élection,
(iii) une enveloppe extérieure, c'est-à-dire l'enveloppe de retour préaffranchie et préadressée au président d'élection,
(iv) une enveloppe intérieure portant la mention « _bulletin de vote_ » dans laquelle doit être inséré le bulletin de vote rempli,
(v) une formule de déclaration de l'électeur,
(vi) les instructions relatives au vote par bulletin de vote postal,
(vii) les renseignements relatifs à la proposition de cession à titre absolu ou de désignation qui fait l'objet du référendum.
22. (1) L'électeur peut, de la manière indiquée au paragraphe (2), demander une révision du référendum par le ministre pour l'un des motifs suivants:
a) violation du règlement pouvant porter atteinte au résultat du référendum;
b) manoeuvre corruptrice à l'égard du référendum.
(2) A request for a review of a referendum shall be made by forwarding the request to the Minister, by registered mail addressed to the Assistant Deputy Minister, within seven days after the day of the referendum, accompanied by a declaration, containing the grounds for requesting the review and any other relevant information, signed in the presence of a witness who is at least 18 years of age.
(3) Within 21 days after the receipt of a request for a review of a referendum, the Minister shall mail a copy of the request to the electoral officer who conducted the referendum.
(4) Within 10 days after the receipt of a request under subsection (3), the electoral officer shall forward to the Minister, by registered mail addressed to the Assistant Deputy Minister, a declaration responding to the grounds stated in the request, signed in the presence of a witness who is at least 18 years of age.
23. Where the material referred to in section 22 or any other information in the possession of the Minister is sufficient to call into question the validity of the referendum, the Minister shall advise the Governor in Council accordingly.
(2) La demande de révision de référendum doit être envoyée au ministre par courrier recommandé, à l'adresse du sous-ministre adjoint, dans les sept jours suivant le référendum, et comprendre une déclaration signée en présence d'un témoin âgé d'au moins dix-huit ans et indiquant les motifs de révision et tous les renseignements pertinents.
(3) Dans les vingt et un jours suivant la réception de la demande de révision de référendum, le ministre envoie par la poste une copie de la demande au président d'élection qui a dirigé le référendum en cause.
(4) Dans les dix jours suivant la réception de la demande visée au paragraphe (3), le président d'élection envoie au ministre par courrier recommandé, à l'adresse du sous-ministre adjoint, une déclaration signée en présence d'un témoin âgé d'au moins dix-huit ans et répondant aux motifs énoncés dans la demande.
23. Si les documents déposés sous le régime de l'article 22 ou les renseignements qui sont en la possession du ministre sont suffisants pour mettre en doute la validité d'un référendum, le ministre en avise le gouverneur en conseil.
Analysis and Decision
[51] Issue 1
Did the Minister breach the duty of fairness owed to the applicant in the
circumstances?
The applicant bases much of his argument on an alleged breach of the duty of fairness. It was procedurally unfair, in his view, that the Minister did not hold a hearing into the matter or provide him with at least a summary of the electoral officer's response to his request for a review and allow reply submissions. The applicant also alleges that the decision should be set aside because the decision letter did not contain any reasons for the decision.
[52] All of the parties seem to agree that the duty of fairness applies to the Minister's decision. Where they part ways is in stating how extensive that duty is. Therefore, the first issue in deciding whether the Minister breached the duty of fairness owed to the applicant is determining the extent of that duty in this case. Only then can it be determined whether the Minister granted the applicant insufficient participatory rights (hold a hearing, disclose contradictory evidence and give the applicant the opportunity to reply), and whether a duty to give reasons existed.
[53] I am guided by the words of L'Heureux-Dubé J. in Baker, supra, at paragraphs 21 through 28 regarding the factors to be considered in determining the content of the duty of procedural fairness in a given case:
The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. As I wrote in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, "the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case". All of the circumstances must be considered in order to determine the content of the duty of procedural fairness: Knight, at pp. 682-83; Cardinal, supra, at p. 654; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per Sopinka J.
Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances. One important consideration is the nature of the decision being made and the process followed in making it. In Knight, supra, at p. 683, it was held that "the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making". The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. See also Old St. Boniface, supra, at p. 1191; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109 (C.A.), at p. 118; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p. 896, per Sopinka J.
A second factor is the nature of the statutory scheme and the "terms of the statute pursuant to which the body operates": Old St. Boniface, supra, at p. 1191. The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted: see D. J. M. Brown and J. M. Evans, Judicial Review of Administra