Ratt v. Matchewan

Ratt v. Matchewan
Court (s) Database
Federal Court Decisions
Date
2010-02-17
Neutral citation
2010 FC 160
File numbers
T-654-09
Decision Content
Federal Court
Cour fédérale
Date: 20100217
Docket: T-654-09
Citation: 2010 FC 160
Ottawa, Ontario, February 17, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
CASEY RATT, RICKEY DECOURSAY, ROGER JEROME,
WAYNE PAPATIE and DONAT THUSKY IN THEIR CAPACITY
AS CHIEF AND BAND COUNCIL and THE ELDERS OF
MITCHIKINABIKOK INIK (ALGONQUIN OF BARRIERE LAKE)
and the PEOPLE
Applicants
and
JEAN MAURICE MATCHEWAN, BENJAMIN NOTTAWAY,
EUGENE NOTTAWAY, JOEY DECOURSAY and DAVID
WAWATIE IN THEIR CAPACITY AS THE PURPORTED NEW
CHIEF AND BAND COUNCIL OF THE ALGONQUINS
OF BARRIERE LAKE CUSTOMARY COUNCIL and
EDDY NOTAWAY, MICHEL THUSKY, JEANNINE MATCHEWAN
and LOUISA PAPATIE, IN THEIR CAPACITY AS THE PURPORTED
MEMBERS OF THE MITCHIKANIBIKOK INIK ELDERS COUNCIL
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] This concerns an application for judicial review challenging the validity of a customary leadership selection process concluded on June 24, 2009, and culminating in the selection of Respondents Jean Maurice Matchewan, Benjamin Nottaway, Eugene Nottaway, Joey Decoursay and David Wawatie as purported Chief and council of the Algonquin of Barriere Lake.
[2] The Applicants set out as follows the relief they are seeking:
1. a judicial review pursuant to s. 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of a purported leadership selection held on June 24, 2009 and its process;
2. a writ of quo warranto pursuant to s. 18 of the Federal Courts Act, questioning the authority of Jean Maurice Matchewan, Benjamin Nottaway, Eugene Nottaway, Joey Decoursay, and David Wawatie to act on behalf of the office of Chief and council of the Algonquin of Barriere Lake;
3. a writ of quo warranto pursuant to s. 18 of the Federal Courts Act questioning the authority of Eddy Nottaway, Michel Thusky, Jeannine Matchewan, and Louisa Papatie to act as an Elders Council in connection with the leadership selection process of June 24, 2009; and
4. a declaration pursuant to s. 18 of the Federal Courts Act that Jean Maurice Matchewan, Benjamin Nottaway, Eugene Nottaway, Joey Decoursay, and David Wawatie have no authority to act on behalf of the office of Chief and council of the Algonquin of Barriere Lake due to an invalid leadership selection and process.
[3] Various grounds are raised in support of this Application, including that the Applicants Casey Ratt, Rickey Decoursay, Roger Jerome, Wayne Papatie and Donat Thusky were selected as customary Chief and council of the Algonquin of Barriere Lake on January 30, 2008 in an allegedly unchallenged process, and were acknowledged as such by the Department of Indian and Northern Affairs Canada (“INAC”).
The General Context
[4] The Algonquin of Barriere Lake claim a traditional territory which includes a large section of North-Western Quebec. A small reserve in that traditional territory know as Rapid Lake has been set aside for them, and a community has been established on this reserve located some 120 kilometres North-West of Maniwaki. A registered population of some 600 to 700 individuals is associated with this reserve, some of which are living off-reserve in the traditional territory or in urban centers.
[5] The socio-economic conditions on the reserve are difficult. It is isolated and deprived and unemployment is high. A substantial part of the livelihood of the community is derived from the pursuit of traditional activities and is dependent on government transfer payments.
[6] The community is governed by a customary Chief and council, which, under normal circumstances, would manage the affairs of the community and represent the community in on-going negotiations with government. However, normal circumstances no longer prevail within this community.
[7] The Algonquin of Barriere Lake are themselves part of the larger Algonquin Nation, which comprises various aboriginal communities of Algonquin ancestry principally located in the province of Quebec. These communities have grouped into two tribal associations. One of these is the Algonquin Nation Secretariat to which the Algonquin of Barriere Lake have adhered to until recent events placed into question that community’s participation in this organization.
[8] The Algonquin of Barriere Lake appear to be fiercely attached to their traditional system of government, and are one of the few Indian bands in Canada that has never been subject to the band elections process under the Indian Act, R.S.C., c. I-5 (the “Act”). This entails important legal consequences which require some explanation.
[9] Indeed, under subsection 74(1) of the Act, the Minister of Indian and Northern Affairs (the “Minister”) has statutory authority to declare that the council of an Indian band is to be selected according to election procedures outlined in the Act. The Indian Bands Council Election Order SOR/97-138 lists the bands that are subject to a ministerial declaration. Most of the Indian bands in Canada have, at one time or another, been subject to such a declaration. However, in recent years, the Minister has set up a process under which Indian bands can seek and obtain a revocation of a subsection 74(1) order and revert to a customary form of selection for Chief and council. The conditions set out by the Minister for such a revocation include requirements which may, in some cases, be at odds with traditional leadership selection processes.
[10] In the case of those rare Indian bands, such as the Algonquin of Barriere Lake, that have not been the subject of an order under subsection 74(1) of the Act, they may select their leadership in accordance with their customs unimpeded by any conditions or requirements which the Minister may deem appropriate to allow reversion to customary elections. This is an important distinction.
[11] Under the customs of the Algonquin of Barriere Lake, which are reviewed in greater detail below, leaders are traditionally selected from candidates proposed by the elders of the community, who may take into account heredity as a factor in leadership suitability. Only those members of the community with ties to, and knowledge of, the traditional territory can partake in the selection process. Leadership positions are held for life, but the leaders can be called to account, and even be impeached in exceptional circumstances.
[12] The record before me shows that a history of long and strong leadership was part and parcel of the Algonquin of Barriere Lake tradition until recently. Before 1964, Chief David Makokoose was in charge of the community’s affairs for close to 60 years. However, in recent times, the customary selection process has been fraught with difficulties.
[13] The first major leadership selection crisis shown in the record before me occurred in 1996 when INAC recognized an “Interim Band Council” over strong opposition. Traditional Chief Jean Maurice Matchewan and his traditional council had been selected in a customary process some 16 years before in 1980. The leadership of Chief Matchewan (one of the Respondents in this case) was questioned at that time, and this leadership challenge resulted in proceedings before the Federal Court of Canada filed in December of 1995 by a group calling itself the Interim Band Council. For reasons which are not fully disclosed in the record before me, on January 23, 1996, INAC recognized this Interim Band Council as the legitimate council of the band. This resulted in a major political crisis within the community, with the traditional council and its supporters initiating their own court action challenging INAC’s recognition of the Interim Band Council.
[14] However, before this litigation was finally adjudicated, traditional Chief Jean-Maurice Matchewan and some of his councillors resigned on March 18, 1996 to make way for the selection of a new traditional Chief and council, but this time lead by traditional Chief Harry Wawatie. INAC nevertheless refused to recognize this new traditional council and instead, in May of 1996, appointed Justice Réjean Paul of the Quebec Superior Court to act as a mediator.
[15] Justice Réjean Paul concluded his mediation in January of 1997, after having found a consensus in the community on the customary leadership selection process.
[16] As a result of this mediation, and following a request from 19 elders of the community, INAC appointed Mr. André Maltais and Mr. Michel Graton to act as facilitators to assist the community in resolving its leadership issues in accordance with a mandate which included the codification of the customary leadership selection process.
[17] Following a series of meetings, the customary leadership selection process was codified and approved in 1997 as the Mitchikanibikok Anishinabe Onakinakewin, or in English, the Law Codifying the Customary System of Government of the Algonquins of Barriere Lake.
[18] Moreover, two amendments to the Mitchikanibikok Anishinabe Onakinakewin were also approved in 1997. The first amendment modified the custom to allow a female child of a Chief or counsellor to be proposed as a suitable successor, thus ending the tradition of male succession in leadership, and also provided for regular four year reviews of council mandates. The second amendment provided for the election of a Board of Directors in addition to the council. This Board was to be responsible for the administration of programs and services for the community.
[19] The Mitchikanibikok Anishinabe Onakinakewin was reviewed in 1997 by professor Peter Douglas Elias, Ph.D. at the request of the facilitators, and he concluded as follows in a lengthy report on the matter (at page 20 of the report reproduced at page 124 to the affidavit of Michel Thusky):
While Mitchikanibikok Anishinabe Onakinakewin is not identical in every respect to what was done in the old days, it is not only consistent with what is known of Algonquins of Barriere Lake traditions, it could probably not have come from any other community. If it is not identical to their ancient traditions, it is a unmistakable, contemporary product of those ancient traditions.
[20] The facilitators further assisted in the selection of a Chief and council in accordance with the Mitchikanibikok Anishinabe Onakinakewin, resulting in a general assembly of the community held on April 9, 1997 which proceeded to the confirmation of Harry Wawatie as customary Chief and to the selection of a customary council.
[21] Chief Wawatie and his council were subsequently formally recognized by INAC. The facilitators however noted that the selection of Chief Wawatie and his council was not supported by all, and that a dissident group still had a voice and followers in the community.
The Mitchikanibikok Anishinabe Onakinakewin
[22] The Mitchikanibikok Anishinabe Onakinakewin is a fundamental law of the Mitchikanibikok Inik, otherwise known as the Algonquin of Barriere Lake, and is intended to prevail over all other laws.
[23] The foundation of the Mitchikanibikok Anishinabe Onakinakewin is (a) Nitochkiteaminan or Our Fire which represents Sun, Earth, and the People as a First Nation (b) Niteabetomowinan or Our Belief, representing the knowledge and understanding of the natural law, cultural values, language and respect, and (c) Nimokichanan or Our Feast representing the reaffirmation of the connection with the Land and all living things, maintaining an identity in daily lives and ensuring the survival of the First Nation. These are the foundations of the customary law, and need to be fully appreciated in interpreting and understanding the Mitchikanibikok Anishinabe Onakinakewin. In the context of this specific litigation, these foundations take on a special importance. As noted by Professor Peter Douglas Elias, there “is no doubt that these are indeed the cornerstones of Algonquins of Barriere Lake political culture.” (reproduced at page 120 to the affidavit of Michel Thusky).
[24] The Mitchikanibikok Anishinabe Onakinakewin identifies five institutions of governance with their own respective responsibilities, namely the Anishinabek, or the People, Ode or the Family, Ketizijik or the Elders, Nikanikabwijik or the Council, and Oshibikewini or the Administrator.
[25] Among these, the highest authority is the Anishinabek or the People. Under the Mitchikanibikok Anishinabe Onakinakewin all important decisions must be made by the People, who must meet in general assembly at least four times a year, once in each season. A special assembly may be called by the Nikanikabwijik or the Council whenever important issues arise which need to be addressed by the People.
[26] The Ode, or the Family, is responsible for the care of its members, and especially the care, education and cultural development of the children. The families are also responsible for the stewardship of the traditional family territories and resource use and management over the traditional territory.
[27] The Ketizijik or the Elders are the keepers of the knowledge of customs and traditions, and are responsible for ensuring their respect and their transmission to the youth. The elders are also responsible for nominating candidates for the Nikanikabwijik, or Council, during a leadership selection process, and they are to preside over leadership reviews, mediate conflicts, and provide guidance and advice.
[28] The Nikanikabwijik, or council, comprises the Chief and four counsellors representing the four directions of the traditional territory. The council is the governing authority of the First Nation and is accountable to the People. The primary responsibilities of the council are:
a. the care, stewardship and management of the traditional territory in consultation, coordination and cooperation with the Families;
b. the protection of the Aboriginal and treaty rights of the First Nation; and
c. entering into relations with the Crown, including treaties and agreements, subject to approval of the People.
It is noteworthy that the Mitchikanibikok Anishinabe Onakinakewin specifically provides that the council is not responsible for the administration of programs and services, that authority being provided to the administrator, now replaced by a Board of Directors. However the council does retain inherent authority to supervise the Board of Directors in these matters.
[29] Within the council, there is the Chief, who acts as the main spokesperson for the First Nation and leads by example. The Chief carries out ongoing consultations within the community and deals with external relations involving the Crown, other governments and other First Nations. Under the Mitchikanibikok Anishinabe Onakinakewin, the Chief has an important role in traditional activities by facilitating and coordinating the assignment of harvesting areas, ensuring that all the members have access to land and resources for subsistence, and ensuring that the lands, wildlife, resources and environment within the traditional territory are cared for and protected. Similar important responsibilities concerning the use of the traditional lands and the carrying out of traditional activities are assigned to the councillors for the areas of the traditional territory that they have been chosen to represent.
[30] The Oshibikewini or Administrator is delegated the responsibility for the administration of programs and services for the Algonquin of Barriere Lake. However all major decisions respecting these matters require the approval of the council. The second amendment to the Mitchikanibikok Anishinabe Onakinakewin has replaced the Administrator by a Board of Directors comprised of four members elected by secret ballot once every 3 years. This Board is responsible for the administration of almost all programs and services provided in the community, including notably education, health, youth protection, economic development, policing, housing and infrastructure, and finance and personnel.
[31] With the creation of this Board of Directors under the second amendment, two different streams of decision making have been set out in the Mitchikanibikok Anishinabe Onakinakewin. The first stream concerns decisions respecting the administration of programs and services, which must be initiated by the Board of Directors, then ratified by the council, but subject to consideration by the community, presumably during one of the regular community assemblies. The second stream concerns decisions respecting lands and resources, traditional pursuits, treaty rights and treaty making, which must only originate from the council after consultation with the affected families, and which are also subject to consideration by the community.
[32] The selection process for the council is set out in sections 8.5 to 8.12 of the codified version of the Mitchikanibikok Anishinabe Onakinakewin, as amended through Amendment One, while the selection process for the Board of Directors is set out in sections 3.4 to 3.11 of Amendment Two to the Mitchikanibikok Anishinabe Onakinakewin. For ease of reference, these sections are reproduced in a schedule to this judgment.
[33] Under the Mitchikanibikok Anishinabe Onakinakewin, the two basic methods of replacing a Chief or councillor are by succession or by removal or resignation.
[34] Thus, in principle, members of the council serve for life, subject to their resignation or removal. When a Chief or Councillor dies, that person is succeeded by his child if that child was proposed as a suitable successor, and if the community does not disapprove of this decision.
[35] However, the leadership of any member of council is open for review at any time, and a leadership review may be initiated when an undefined “sufficient number of members” approach the elders to convene a leadership review meeting. If the elders think that a leadership review is appropriate, then they convene a leadership review assembly and ask the concerned leader to attend. The purpose of a leadership review is not to remove the leader but to attempt to resolve the issues giving rise to the leadership review. If the issues are not resolved through consensus, the elders may request the members of the community, if they wish, to remove the leader. If a consensus for removal exists, then the leader is removed, thus triggering a selection process for his or her replacement.
[36] Wasakawegan, translated as “blazing”, is the process for selecting leaders. In this process, leaders are nominated by the elders and selected by the community. To initiate a selection process, the council consults with the elders and asks them to identify a suitable candidate. Only adult members who are married are eligible to be candidates for Chief and councillor; they must use and occupy the traditional territory and have knowledge of and connection with the land; and they must speak the Algonquin language and have knowledge of the customs and institutions.
[37] Once a suitable candidate has been identified, the elders convene a leadership assembly of the People. To participate in the selection of the Chief and council, a candidate must be an adult member of the First Nation, use and occupy the traditional territory, and have knowledge of and connection with the land. At this selection assembly, seats representing the number of positions which are vacant are placed in the centre of the assembly area with an equal number of additional seats for the spouses of the selected candidates. Elders escort both selected candidates and their spouses to the seating area. The nominating elders, the candidate and the spouse address the assembly, and the floor is opened for general discussion. If a consensus is reached amongst the selectors on a candidate, this is announced.
[38] Once a candidate is selected, the person undergoes a training, probation and evaluation period of two years, at which point the elders convene another leadership assembly of the community to consider the confirmation of the candidate.
[39] Thus, the Mitchikanibikok Anishinabe Onakinakewin essentially calls for a system of extremely stable government, with leaders appointed for life terms, and a gradual replacement of leaders as positions are slowly vacated. Nevertheless, the custom also allows for the impeachment of leadership and regular leadership reviews.
[40] The selection process for the four members of the Board of Directors is however an innovation to the custom. Elections are to be held at least once every three years. Any member continuously resident in the traditional territory for the preceding 12 months, who is of Algonquin ancestry, speaks the Algonquin language and is at least 18 years of age, is eligible to be nominated as a director. Eligible voters are those members of the First Nation who are 18 years of age and who were continuously resident in the traditional territory in the 12 months preceding the election. Those absent from the traditional territory for reason of education or health can still be eligible as voters, as are those who are absent for six months or less for purposes of work.
[41] The elections are to be supervised by an impartial Election Supervisor appointed by the Council to manage the election. The Election Supervisor prepares a list of voters and ballots for the secret ballot. A nomination meeting is held at least 12 days prior to the vote to allow candidates to present themselves and their platforms. The four candidates who receive the highest number of votes are declared elected to the Board of Directors.
[42] Within 21 days following the election to the Board of Directors, a candidate may appeal the results to a Council of Elders consisting of 4 elders, of whom two are male and two female, and selected by the elders of the community for a three year mandate.
Events Leading to this Application
[43] This is a case were the facts largely speak for themselves; consequently a detailed review of the record submitted to the Court is useful. Though somewhat long, the narrative of the events sheds much light on the deep divisions plaguing this community and on the dysfunction of the political processes of the community which has resulted from these divisions.
[44] Harry Wawatie remained Chief for approximately 10 years, when in the wake of a decision by INAC to appoint a third-party manager for the band, he and his traditional council resigned in protest in July of 2006.
[45] Chief Wawatie was soon thereafter appointed by a group of elders to lead an Elders Council of four members, which was also purportedly empowered to preside over the community leadership selection process resulting from these resignations. For this purpose, former Chief Wawatie and his Elders Council immediately organized a community leadership selection meeting which resulted in the selection of Jean Maurice Matchewan as traditional Chief (the former traditional Chief to whom Chief Wawatie had himself succeeded) and a new traditional council. This Chief and council will be referred to herein as the “Matchewan council.”
[46] Former Chief Wawatie and his Elders Council then filed on August 10, 2006 a judicial review application in the Federal Court under number T-1514-06 challenging the decision of the Minister to appoint a third-party manager to administer the programs and services of the band. This application was subsequently rejected on its merits by Justice Harrington on April 15, 2009; this judgment is currently under appeal.
[47] The selection process organized by former Chief Wawatie and his Elders Council resulting in the selection of the Matchewan council was not unanimously supported in the community. Another group of elders contemporaneously initiated its own leadership selection and proceeded with the selection of another traditional Chief and council allegedly under the Mitchikanibikok Anishinabe Onakinakewin.
[48] Facing with these conflicting leadership selections, INAC refused to recognize either, and rather, offered mediation. Justice Réjean Paul was again called back into service as a mediator, but this time his efforts failed.
[49] In his mediation report, Justice Paul noted that a tense situation existed on the reserve between the concerned groups, with neither willing to make concessions. He also noted that he had lost the confidence of one group during the mediation and therefore had to cease his activities as mediator. He nevertheless reported that, in his opinion, only the Matchewan council could claim legitimacy under the Mitchikanibikok Anishinabe Onakinakewin. Consequently, shortly thereafter, on May 29, 2007, INAC formally acknowledge the selection of the Matchewan council.
[50] The choice of words used by Justice Réjean Paul in his mediator’s report dated May 15, 2007 shows the depth of the problems affecting the political structures and very cohesiveness of the community (all page references are to the affidavit of Michel Thusky):
The conflict between the two groups of Algonquins living in this community is not recent… but it is distressing! (at page 186)
[…]
Far from solving the problems as is rightfully expected of them, several Elders are openly in league with two opposing camps that are, for the most part, bitter adversaries. They specialize in insinuation, denunciation, even blackmail and intimidation, if I am to believe what has been reported to me. What a great example for the youth! I have never witnessed such self-destructive confrontation. Instead of solving problems, they are entirely responsible for creating them through their confrontational attitude. In such a climate, the ready-made solution is to blame the others for their misfortune and their wretched existence. Whether it be governments, public servants, managers, or even facilitators and the mediator, those who do not support one group’s point of view are disavowed and censured or often publicly denounced. It is a completely unacceptable attitude to hold. (at page 189)
[…]
Of course, if we look closely at this community’s situation, the old saying “Divide to conquer” takes on all its meaning. Each clan tries to organize to take power and control the finances of the Band. It is completely disastrous and can only engender resentment and abuse. (at page 190)
[…]
Finally, it appears that there is no possible reconciliation between the Elders of the two clans. (at page 206, emphasis in original).
[51] These deep divisions did not take long to resurface shortly after the confirmation of the Matchewan council by INAC.
[52] A few months after his confirmation, in September of 2007, Chief Matchewan was faced with charges which were laid against him. The Matchewan council, acting in concert with former Chief Wawatie and his Elders Council, decided that one of the councillors, Benjamin Nottaway, would become “acting” Chief pending the resolution of the charges against Chief Matchewan. Chief Matchewan nevertheless continued to sit on the council as the replacement councillor for Benjamin Nottaway’s seat.
[53] The appointment of an “acting” Chief by an Elders Council and the continued participation of Jean-Maurice Matchewan on the council pending the result of the charges laid against him did not sit well with some in the community, and particularly with the former “dissident” group, who insisted that a leadership review be initiated in conformity with the Mitchikanibikok Anishinabe Onakinakewin. However, this leadership review was strongly resisted by both the Matchewan council and former Chief Wawatie’s Elders Council.
[54] Moreover, for reasons which are not fully disclosed in the record before me, the Matchewan council (now nominally lead by Chief Benjamin Nottaway) decided sometime in November of 2007 to close the community school and erect barricades to impede access to the reserve by the third-party manager appointed by INAC. The reason given for these dramatic actions was to force concessions from INAC and the third-party manager it had appointed. This was an odd tactic which was not well received by INAC and by some community members.
[55] As a result of these remarkable events, the Minister appointed Mr. Marc Perron to attempt to renew discussions with the Matchewan council.
[56] In his report to the Minister dated December 20, 2007, (reproduced in part at pages 38 and 39 of the affidavit of Casey Ratt) Mr. Perron noted that, in his opinion, no useful dialogue could be sustained in the confrontational atmosphere which prevailed in the reserve. He was also of the opinion that the Matchewan council had no intention of improving relations with INAC short of obtaining each and every one of its demands. In these circumstances, Mr. Perron recommended that his mandate be terminated and that recourse to the judicial process be resumed.
[57] Mr. Perron also noted that the school closure had serious impacts on the children of the community, stating that “[p]our votre information, l’école de Lac Rapide fournit deux repas par jour à près de 70 enfants qui la fréquentent. Depuis plusieurs semaines, je suis convaincu que des enfants ont faim dans cette communauté.” (Translation: « for your information, the Rapid Lake School provides two meals a day to the nearly 70 children who attend it. For several weeks, I have been convinced that children are hungry in this community”).
[58] In this charged situation, a group of community elders distinct from those supporting the Elders Council of former Chief Wawatie, and presumably without the support of the Matchewan council and its followers, decided to initiate a leadership review under the Mitchikanibikok Anishinabe Onakinakewin. For this purpose, they organized a meeting of some community members on January 30, 2008.
[59] Mr. Laurier Riel, a court worker, prepared a report as an observer to this meeting. This report is dated February 6, 2008 but was corrected on February 10, 2008. According to this report, the January 30t, 2008 meeting involved 20 elders of the community who proceeded to the selection of a new Chief and council by sitting candidates on chairs arranged for this purpose, including Casey Ratt as Chief and the other Applicants in these proceedings as councillors. Mr. Riel reports that 76 persons approved this new council, and that 13 additional votes by proxy were accepted. This new Chief and these councillors will be referred to herein as the “Ratt council.”
[60] It is noteworthy that no notices of meeting, no list of participants, and no selectors list were submitted in the record before me to sustain the legitimacy of the selection of the Ratt council. Moreover, Mr. Riel took care to note in the correction to his report dated February 10, 2008 (reproduced at page 251 of the affidavit of Michel Thusky) that he “cannot confirm that the Elder’s (sic) Council was advised or that proper notification was carried out according to the regulations or if everyone eligible to vote for Chief and Council had been duly notified.”
[61] On January 31, 2008, Mr. Casey Ratt wrote to the Minister informing him of his selection as Chief with a new council. Shortly thereafter, on February 4, 2008 former Chief Wawatie also wrote to the Minister for his Elders Council denouncing the selection process for the Ratt council and noting that his Elders Council had not been involved. Former Chief Wawatie further reiterated his support and that of his Elders Council for the Matchewan council. The Minister was thus again faced, for the third time now, with conflicting claims of Chief and council selection under the custom.
[62] The Algonquin Nation Secretariat also got involved in this leadership dispute and explicitly supported the Matchewan council by a resolution adopted on February 22, 2008 confirmed by letter dated February 25, 2008 sent to Chief Casey Ratt by Grand Chief Norman Young. This formal support for the Matchewan council followed a complaint by Chief Casey Ratt concerning the involvement in the dispute of an advisor of the Algonquin Nation Secretariat, Russell Diabo, who, as we shall see below, became instrumental in subsequent events.
[63] On March 10, 2008, INAC informed both competing groups that it would register the results of the leadership selection process held on January 30, 2008 into the Band Governance Management System, and further advised that it would conduct its relationship with the Ratt council.
[64] Former Chief Wawatie and his Elders Council then challenged these decisions of INAC though legal proceedings initiated in the Federal Court on March 25, 2008 under file T-462-08. These proceedings are still pending.
[65] For its part, the Ratt council started to exercise its newly recognized authority.
[66] It adopted a resolution on March 15, 2008 formally withdrawing the community from the Algonquin Nation Secretariat, with the resulting consequence that INAC reduced the funding to that Secretariat over its objections.
[67] A tense situation thus developed between the Ratt council and the Algonquin Nation Secretariat. On July 11, 2008, Grand Chief Norman Young of the Algonquin Nation Secretariat wrote to the Minister denouncing the process which had resulted in the selection and eventual recognition of the Ratt council, and calling for a new leadership selection process.
[68] In early February 2009, persons closely associated with the Algonquin Nation Secretariat, which staunchly supported the Matchewan council, decided to take concrete actions to ensure that a new leadership selection process would take place in the community. A key advisor to the Algonquin Nation Secretariat, Mr. Russell Diabo, contacted Mr. Keith Penner in the first week of February 2009 informing him that elders were going to take steps to establish a “legitimate” government and whether Mr. Penner would be interested in offering his assistance in the capacity of a facilitator to achieve this goal. Mr. Penner accepted with the understanding that the Algonquin Nation Secretariat would cover his fees and expenses, which it did.
[69] Mr. Keith Penner is a former long standing member of Parliament who chaired the House of Commons Standing Committee on Indian Affairs and Northern Development in the 1980s. He is well known in aboriginal circles for the “Penner Report” of 1983, a report of that Standing Committee which examined First Nations self-government and First Nations governance. At the times material to this Application, he was the head of his own dispute resolution firm which specializes in the areas of transportation, commercial disputes, and disputes within aboriginal communities.
The Impugned Leadership Selection Process
[70] Following the initial contact between Mr. Diabo and Mr. Penner, the Matchewan council submitted a letter dated February 19, 2009 requesting the Elders Council to initiate a new leadership selection process. It is useful to note once again that the Elders Council was a clear supporter of the Matchewan council against the Ratt council, and was involved in legal proceedings contesting the recognition of the Ratt council by INAC.
[71] In its letter, the Matchewan council announced its intention to resign. It also requested the Elders Council to find successors in accordance with the Mitchikanibikok Anishinabe Onakinakewin. The resignations would be effective once the community leadership assembly had taken place. The Matchewan council further set out a detailed process which it suggested be followed by the Elders Council, including the appointment of an outside facilitator, echoing the prior communications between Mr. Diabo and Mr. Penner.
[72] A meeting was held on February 23, 2009 with Mr. Penner in Rapid Lake. This meeting involved the Matchewan council and a group of elders presumably supporting this council. No representatives from the Ratt council or any of its supporters were invited or attended this meeting. A detailed draft of the terms of reference for Mr. Penner was reviewed at the meeting, and it was agreed that a notice would be distributed and posted in the community of Rapid Lake calling for a joint meeting of the elders and community members to be held on March 9, 2009. This meeting was being called for the purpose of adopting the terms of reference for the facilitator, appointing Mr. Penner as the facilitator, appointing the Elders Council to preside over the leadership selection process, and adopting a schedule of subsequent meetings to finalize the eligibility list and set a date for the leadership selection assembly.
[73] Though convened by pubic notice, and though Mr. Penner travelled to Rapid Lake to attend, the March 9, 2009 joint elders and community meeting never took place. The reasons for which this meeting were cancelled are unknown, and Mr. Penner himself cannot explain these reasons, other that confirming that representatives of the Matchewan Council (specifically “acting” Chief Benjamin Nottaway and Michel Thusky) had informed him that the timing for the meeting was no longer suitable (page 66 of Mr. Penner’s cross-examination).
[74] The posting of this meeting had, however, the result of informing the Ratt council that its leadership was being challenged.
[75] Consequently, on March 8, 2009 a group of 24 elders supporting the Ratt council convened to sign a resolution confirming their support for that council, reiterating and confirming the process which resulted in the selection of that council, and denouncing the new selection process initiated by the opposing Elders Council.
[76] With this support, on March 12, 2009 Chief Ratt wrote to Mr. Penner challenging the proposed new leadership selection process on numerous grounds, including the inherent conflict resulting form the involvement of the Algonquin Nation Secretariat and its advisors in the process. Mr. Penner responded by informing Chief Ratt on March 19, 2009 that the process would continue, and that a meeting for this purpose was to be held in Rapid Lake at which Chief Ratt was invited to attend. Mr. Penner asserted in his response that his role was one of a “neutral facilitator.” The Ratt council replied the following day through its legal counsel advising Mr. Penner that he was not neutral and that he should cease and desist from pursuing further his mandate.
[77] An elders and community meeting was nevertheless held in Rapid Lake on March 24, 2009, presumably organized by the Matchewan council supporters and at which Mr. Penner attended. Though the notice called for the meeting to be held in the community school gym, it was moved without notice to another location within the community. A number of elders supporting the Ratt council and lead by elder Hector Jerome had gathered at the school gym and thus found themselves in the wrong location. They finally found the new location and arrived late at the meeting. They decided to attend the meeting in order to both protest the change of venue and to voice their deep opposition to the process. After Elder Jerome spoke to denounce these matters, the Ratt council supporters left the meeting in protest.
[78] The remaining participants in the March 24, 2009 meeting then proceeded to adopt three resolutions signed by a group of 26 elders:
a. resolution bearing number 03-24-09 (A) adopting terms of reference for the facilitator, and appointing Mr. Penner as the facilitator;
b. resolution bearing number 03-24-09 (B) appointing a Council of Elders with a mandate to preside over the leadership selection process, and comprising Matchewan council supporters Eddy Nottaway, Michel Thusky, Jeannine Matchewan and Louise Papatie, and setting the date of April 14, 2009 for finalizing the eligibility list and of April 25, 2009 for holding a leadership assembly;
c. resolution bearing number 03-24-09 (C) approving a provisional selectors eligibility list.
[79] From that point on, it was clear that the Matchewan council supporters would proceed with the new selection process irrespective of the participation or concerns of the Ratt counci