Shotclose v. Stoney First Nation

Shotclose v. Stoney First Nation
Court (s) Database
Federal Court Decisions
Date
2011-06-22
Neutral citation
2011 FC 750
File numbers
T-2085-10
Notes
Digest
Decision Content
Federal Court
Cour fédérale
Date: 20110622
Docket: T-2085-10
Citation: 2011 FC 750
Ottawa, Ontario, June 22, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ROBERT SHOTCLOSE, HARVEY BAPTISTE,
CORRINE WESLEY, MYRNA POWDERFACE, CINDY DANIELS and WANDA RIDER
Applicants
and
STONEY FIRST NATION, as represented by its Chiefs and Councillors, and BEARSPAW FIRST NATION, as represented by its Chiefs and Councillors, Chief David Bearspaw Jr.,
Trevor Wesley, Patrick Twoyoungmen,
Roderick Lefthand and Gordon Wildman
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act R.S.C., c. F-7, of the decisions and actions of the Bearspaw First Nation, as represented by its Chief and Councillors, and the Stoney First Nation, as represented by its Chiefs and Councillors, which resulted in an election for the Bearspaw Chief and Council not being held on or before December 10, 2010.
[2] The applicants challenge the decisions and actions of the Bearspaw Chief and Councillors to extend the two-year terms of office mandated by custom and a Band Council resolution passed on September 30, 2008. For the reasons that follow, the application is granted and the decisions and actions of the Chief and Councillors to extend their terms are declared to have been contrary to Bearspaw Band custom and, therefore, invalid. The terms of office of the Chief and Councillors are declared to have come to an end on December 9, 2010 and it is ordered that an election be held within 60 days to select a new Chief and Council for the Bearspaw First Nation.
BACKGROUND FACTS:
[3] The following are the facts that I have found from the evidence filed by the parties.
[4] The applicants Robert Shotclose, Harvey Baptiste, Corrine Wesley, Myrna Powderface, Cindy Daniels and Wanda Rider are members of the Bearspaw First Nation, a band under the Indian Act, R.S.C. 1985, c. I-5, which, together with the Chiniki and Wesley First Nations, comprise the Stoney Nakoda First Nation (“Stoney Nation”). Mr. Baptiste is an Elder and former Chief of the band. Mr. Shotclose is a former Band Administrator.
[5] The Bearspaw First Nation (“BFN”) consists of approximately 1700 members, most of whom live on reserve lands at Morley, east of Canmore, Alberta and the Eden Valley community near Longview. In 2010, 127 members lived off-reserve and approximately 795 adult members were eligible to vote in BFN elections.
[6] The affairs of the BFN are governed by a Council composed of a Chief and four Councillors: two from Eden Valley and two from Morley. Together with the Chiefs and Councillors of the Chiniki and Wesley First Nations, they form the Stoney Tribal Council which makes collective decisions on such matters as oil and gas and land-use development, education, family services and public works. In addition to the Stoney Tribal Administration, each of the three First Nations has its own Band Administrator and administrative offices.
[7] Chief David Bearspaw Jr., and Councillors Trevor Wesley, Patrick Twoyoungmen, Roderick Lefthand and Gordon Wildman are the principal respondents in this proceeding. They were all elected to occupy the BFN leadership positions in December 2008. The Wesley First Nation also participated as a respondent in these proceedings to present its position regarding the terms of office for Chief and Councillors. The Chiniki First Nation did not play an active role in this application.
[8] Prior to the mid-1950s, a Stoney Chief would hold the position for life so long as the Chief met the needs of the community. From time to time, the Chief would be replaced by the Elders if there was dissatisfaction with his performance. In the 1950s, on the advice of the Indian Agent, an employee of the Department of Indian Affairs and Northern Development, as it was then, the three bands began to periodically hold elections for Chief and Councillors. The Department, formerly known by the acronyms DIAND and INAC, is now styled Aboriginal Affairs and Northern Development Canada (“AANDC”).
[9] According to BFN Band records, following the death of the incumbent Chief in 1956, a succession of chiefs and councillors were elected to hold those positions every one or two years. While the records regarding the length of the terms prior to 1975 are not entirely clear, elections have been consistently held every two years since then. Some chiefs and councillors served several terms.
[10] The procedures for conducting BFN elections have been set out in written Band Council Resolutions (“BCRs”) since at least the 1980s. BFN Election Resolutions in the record contain eligibility requirements and procedures for voting, appeals and replacement of members of Council. The Election Resolutions state, for example, that a vacancy caused by death, resignation or disqualification may be filled by election or by appointment by the BFN council.
[11] The affidavit evidence in this matter indicates that one chief was asked to step down in the 1970s by a delegation of Elders because of an appearance of impropriety. Another chief went on sick leave in 1996 due to alcoholism and was replaced by an acting chief for the remaining six months of his term. While some BFN Elders played a role in persuading these chiefs to resign, the evidence does not support a finding that the length of the terms of office of the Chief and Council were determined by the Elders, save in these exceptional situations. It is clear from the evidence as a whole, that the Chief and Council have managed the election process for several decades through the issuance of BCR’s.
[12] In recent years, discussions have been held among the Stoney people about adopting new procedures and rules, including extending the terms of office for the elected officials, in each of the three bands. From the evidence in the record concerning these discussions, there was a concern among some members that two year terms had a divisive effect on the communities and were regarded as an imposition of an electoral model by federal government officials that interfered with Stoney customary practice. Others considered the two year election cycle as an important opportunity to exercise their rights to replace the Chiefs and Councillors if the leaders were not meeting the community’s needs. This debate has also occurred in many other First Nations and on a national level, as will be discussed below.
[13] As a result of consultations and the emergence of a broad consensus among their members, the Chiniki and Wesley First Nations proceeded to make changes to their customary election practices. These changes included extensions to the terms of their chiefs and council members; in the case of Chiniki, to three years and in Wesley, to four years. The Wesley First Nation conducted a survey in 2002 to seek input from its members for changes to their election procedures. Chiniki consulted its members in 2003. In both instances, the proposed changes were broadly publicized and were made effective only with the next election. In other words, the term extensions only took effect for the next Chief and Council.
[14] While discussions were also held among BFN members in 2002 about making similar changes, no consensus resulted and no action was taken. According to Elder Carl Lefthand, this was because of a concern that the people would suffer if a bad Chief and Council had the opportunity to last longer than 2 years.
[15] The respondent Bearspaw Chief and Councillors were elected on December 9, 2008 pursuant to a BCR passed by the previous Council on September 30, 2008. In that BCR, the term of office was stipulated as being for two years. Under the terms of the BCR, the next election was to have been held on or before December 10, 2010.
[16] Elder William (“Bill”) McLean is the oldest member of the BFN, a former chief for several terms and grandfather of Chief David Bearspaw. He says that he told his grandson shortly after his election that he would need the advice of the Elders as David Bearspaw was “too young to be chief”. Accordingly, he says, an Elders Advisory Committee was formed with members from the Bearspaw and other BFN clans. The Committee, thereafter, met about twice a month. It is clear from the evidence that members of the Chief’s family played a major role in the Committee. At a key meeting with the Chief and Council on October 14, 2010, for example, four of the five Elders present were the Chief’s grandparents.
[17] Along with the other members of the Stoney Tribal Council and their communities, the BFN Council elected in December 2008 faced a major financial crisis. Oil and gas revenues were substantially reduced and there were shortfalls in other sources of revenue and unforeseen expenses incurred as a result of prior decisions. The Stoney Nation had to restructure their financial affairs and sought the release of reserve funds from an account held in trust for them by AANAC. A Chief Executive Officer, Greg Varricchio, was hired in October 2009 to create a plan to secure the Stoney Nation’s future financial stability. The plan was approved by the Tribal Council in January 2010 and steps were then taken to implement it by the Tribal and Band Councils and the Stoney Tribal Administration. In July 2010, AANAC released a first instalment of $10 million from the Heritage Fund to offset the revenue shortfall.
[18] Beginning in 2009 and more actively in 2010, the BFN Chief and Councillors held meetings to discuss governance matters. Some public meetings took place within the communities to hear members’ concerns about the Band administration and management of resources. However, meetings to conduct Band affairs and make decisions were held off-reserve, without public notice and with few members of the Band present, other than the Chief and Councillors. This, one affiant said, was to avoid disruptions by Band members with grievances and to get on with business.
[19] In March 2010, Dan Pelletier was hired as a consultant to write proposals to generate business for the band. In late March, Chief Bearspaw introduced Pelletier to the Elders Advisory Committee. Pelletier had meetings with the Committee in April and May to discuss governance issues. According to his evidence, minutes of these meetings were taken by Valerie Bearspaw, the Chief’s sister. The minutes, which would have served as a contemporaneous record of these events, were not entered into evidence by the respondents. As they are in control of that information, a negative inference can be drawn that it does not entirely support their position.
[20] Mr. Pelletier says that the key concern of the Elders was the quality of leadership to be expected of candidates for Chief and Council, particularly over issues such as sobriety, comportment and respect for tradition.When asked on cross-examination who was present for these meetings, the first names that came to his mind were members of the Chief’s family.
[21] The respondents say that it was determined by the Elders that there should be changes in the conditions which candidates for Band Council must meet before they could stand for office and in their terms of office. There was discussion of how best to canvass the views of the eligible electorate about the proposed changes. The options considered included a referendum at the next election and conducting a survey similar to those carried out by Wesley and Chiniki.
[22] Tina Fox, Elder and the Wesley survey coordinator, deposed that to her knowledge there is no custom of the Stoney Nation that changes to the Election Code of a Band requires a referendum. What is required, she says, is “notice of the proposed changes in a manner that is well understood by the community, broad based consultation, and broad based approval and acceptance of the change.” Ms. Fox advised Bearspaw Elders Philomena Stevens (the Chief’s grandmother), Una Wesley and the Chief’s sister, Valerie Bearspaw, that if a survey was conducted regarding election terms that any changes should be made effective at the next election. She was not aware of any occasion when the Elders decided to waive a Stoney election.
[23] Statements attributed to Chief Bearspaw in March 2010 and published in a local newspaper indicate that his intention at that time was to seek the approval of the electorate for the proposed changes, including the term extensions, in a referendum at the next election scheduled for December 2010.
[24] As a result of discussions with the Advisory Committee and the BFN Council, Pelletier was asked to draft a questionnaire and coordinate a survey. While he had worked as an electoral officer for First Nations in Saskatchewan and for the federal Department, among other jobs, Pelletier had no prior direct experience in conducting a survey. The advice of the Band’s law firm was obtained. The same firm had provided advice on the Wesley survey. However, there is no evidence as to what expertise, if any, the law firm may have had in conducting surveys. Their role appears to have been primarily to hold the completed surveys, tabulate the results and present them to Chief and Council.
[25] Pelletier met with the Chief and Council on several occasions to discuss the survey process. These meetings took place without notice to the band members and behind closed doors at locations off-reserve. Pelletier says he presented a draft of the survey for approval to a meeting of the Chief and Council at a hotel in Calgary in April or May 2010. No notice was posted of the meeting and, aside from the Chief and Councillors, only three band members were present, none of whom were Elders. Mr. Pelletier subsequently managed the survey reporting to the Band Administrator, Trent Blind. Some of the Elders Advisory Committee members served as surveyors and translators.
[26] The evidence includes allegations by the applicants’ affiants that some members were intimidated into filling out the survey and others were offered inducements in the form of vouchers for food and gas if the survey was completed in a certain way. These claims are denied by the respondents’ affiants. In an e-mail to Mr. Shotclose dated June 14, 2010, Mr. Blind stated that any vouchers provided to members had nothing to do with the survey but rather that they were given to meet the members’ needs for assistance.
[27] The respondents say that the surveys were delivered to the homes of clan leaders and to others who wished to complete them and were also available at the Band offices. They say that some members who were opposed to the process refused to complete the survey and tried to prevent others from doing so. The applicants deny this allegation and claim that members who were opposed to the changes were prevented from expressing those views in this process.
[28] While the evidence about the survey is in conflict, it seems that the questionnaires were available to be completed at the Band office at Morley three days a week and at the Eden Valley Band offices two days a week and that some home visits were made. The surveyors chose the homes they would visit. The applicants allege that this was done in a selective manner and that several BFN families were not included. The respondents say that the choice of homes to visit was made through consultation with the clan heads. Mr. Baptiste, an elder and former chief, says he was not approached to complete the survey and was not aware that it was underway until he heard rumours that the Chief was having secret meetings to extend his term. He says he tried to get an explanation but the Chief never returned his calls.
[29] The actual text of the survey, including the questions, was not made public until the process was completed. Members, with a few exceptions allowed by Mr. Pelletier, were not allowed to obtain the survey questionnaire and take it away to consider their answers or to consult others before they completed it. This was done, according to Mr. Pelletier, to ensure confidentiality. However, the surveys were completed in the presence of the surveyors, translators if necessary, and band staff, including Mr. Pelletier. The completed surveys were sealed upon being signed and were then delivered to the law firm for the results to be compiled.
[30] The intention of the organizers was to reach at least 51 percent of the eligible voters. The evidence conflicts as to whether all of the BFN families were made aware of the survey and provided with an opportunity to participate. It is clear that a controversy over the process had begun while the survey was underway and opposition to the steps taken by the Chief and Council was beginning to emerge.
[31] None of the BCRs relating to the survey were published by the Band. However, newsletters announcing the survey process were posted in the Band offices at Morley and Eden Valley in May and June 2010. Each newsletter stated that the survey would be conducted by the Bearspaw Elders Advisory Committee and their team of surveyors. The newsletters included the caveat that the Chief and Council would review the final report and “may or may not decide to implement those changes desired by a majority of the community”.
[32] The intent was to complete the process by the end of June but extensions were approved by the Chief and Council to the end of July to ensure that completed returns were obtained from more than 50% of the electorate. The survey cost $320, 000 or roughly $762 per completed survey. In comparison, the Wesley survey cost $60, 000. Mr. Pelletier was hired as the Band’s office manager after the completion of the survey.
[33] According to the respondents’ evidence these costs were incurred for communications, interpretation and honorariums for the members of the Elders Advisory Committee, the surveyors, Mr. Pelletier’s remuneration as co-ordinator and legal costs. No breakdown of expenditures was provided by the respondents who, presumably are in possession of that information. There is no evidence of any significant expenditures on communications respecting the survey. As noted, any publicity about the survey was minimal. The legal costs could not have been large. Most of the $320, 000 must, therefore, have been paid to the people who designed and implemented the survey on behalf of the Chief and Council.
[34] The survey document entitled Bearspaw First Nation’s 2010 Community Consultation Questionnaire, entered into evidence as an exhibit to Mr. Pelletier’s January 4, 2011 affidavit, contains 13 questions. Questions one and two sought agreement that candidates for Chief and Council be required to submit a criminal records check and a certificate that they are free of alcohol and drug addiction. Question three asked whether there was agreement to an extension of the Chief’s term of office to a three-year or a four-year term. Four asked the same question with respect to the terms of Council. Five dealt with a proposed minimum prerequisite of five years band membership. Questions six and seven, respectively, inquired whether there was agreement that verbal tests be administered by the Elders Advisory Committee to determine whether the candidates were familiar with Stoney Band Customs, Stony Tribal Common Administration Departments and were fluent in both the Stoney and English languages.
[35] Questions eight and nine dealt with residency for voters in the Eden Valley Community and elsewhere and a requirement that the Chief be a resident of Morley immediately upon being elected. Questions 10 and 11 read as follows:
Do you agree that if results of the survey show the majority of Bearspaw members want the proposed extensions to the terms of office for Chief included in the Bearspaw Election Regulations as outlined in the survey, these changes should be approved and implemented by Chief and Council before the next December 2010 election date? If yes, this means that there will not be an election for Chief in December 2010 and that the Chief will continue in office until December 2011 or 2012 on the condition that he provide written copies of his criminal records check and his drug and alcohol tests to the Bearspaw Elders Advisory Committee for their review and approval if directed to do so by this 2010 Community survey.
Do you agree that if results of the survey indicate that the majority of Bearspaw members want the proposed extensions to the terms of office for Council included in the Bearspaw Election Regulations as outlined in the survey, these changes should be approved and implemented by Chief and Council before the next December 2010 election date? If yes, this means that there will not be an election for Council in December 2010 and that the Council will continue in office until December 2011 or 2012 on the condition that each Council member provides written copies of his Criminal Records Check and his Drug and Alcohol Tests to the Bearspaw Elders Advisory Committee for their review and approval if directed to do so by this 2010 Community survey. [Underlining in the original.]
[36] The final two questions asked for suggestions or ideas for improving BFN governance and for important concerns. The questionnaire ended with the following paragraph:
It is requested that all signed and documented responses to the survey be received by the Bearspaw Elders Advisory Committee and Bearspaw Legal Counsel on or before June 30, 2010 following which time the Chief and Council will exercise their discretion to determine whether such changes are to be implemented immediately or made subject to a vote during the December 2010 elections. [Emphasis added.]
[37] As noted, the survey was not concluded until the Chief and Council determined that a sufficient number of responses had been obtained. That took another month. The survey results were then compiled by the Band’s lawyer and presented to the Chief and Council on August 9, 2010. The law firm also summarized the comments received in response to the questions soliciting ideas and concerns. For the most part, those comments addressed health, employment and housing issues. The members also indicated they would like to see the Chief and Council in the community more so they could voice their concerns.
[38] More than 80% of the 420 respondents expressed support for the proposals respecting criminal records checks, alcohol and drug certificates, testing for familiarity with Band Customs and administration and fluency in Stoney and English. Clear majorities supported changes to the membership and residency requirements.
[39] With respect to the extension of the Chief’s term of office, 16% or 67 people supported a term of three years, 41% or 172 members supported four years and 40% or 168 members wanted no change. In response to question 10, 65.2% indicated that they agreed that the change in the Chief’s term be approved and implemented by the Chief and Council before the next election date if the majority of members approved. Reading the results literally, a majority of the respondents to the questionnaire approved an extension but there was only a plurality in favour of a four year term.
[40] Similarly, in response to question 11, 56% agreed that extending the terms of the Councillors be implemented immediately if the majority supported such changes. However, while 14.3% of the members approved a three year term and 29% a four year term for the Councillors, 53% wanted no change in the existing two-year term for the members of Council.
[41] The Chief and two of the four Councillors adopted the survey results at a meeting on August 9, 2010. They signed a BCR which provided for an extension of the Chief’s term from two years to four years with an election date of December 9, 2012 and maintenance of the councillors’ terms at two years with an election date of December 9, 2010. The BCR stated that formal election regulations would be passed for the election of Council that would reflect the survey results. Only a handful of members were present at this meeting. A press release announcing the results and stating that there would be changes to the Bearspaw First Nation Election Regulations was issued and distributed on September 10, 2010.
[42] On October 14, 2010 three of the Councillors signed a resolution to extend their terms, as well as the Chief’s, from two years to four years. The Chief was present but did not sign the resolution. In his affidavit evidence he says he supported the decision to extend the terms of the Councillors and that the absence of his signature is irrelevant. He says that he interpreted the Survey results as constituting a majority in favour of extensions for both Chief and Councillors. The evidence of Mr. Baptiste, a former Chief and Councillor, and Gilbert Francis, a former Councillor, is that according to Stoney Custom, a BCR required the signature of the Chief and two Councillors.
[43] The October 14, 2010 BCR amended the Custom Election Regulations by fixing the next election date for December 2012, thereby incorporating the extended terms of office for both Chief and Councillors, and made the additional changes proposed in the survey questionnaire. The BCR provides that the new language proficiency and cultural knowledge requirements are to be determined by tests administered by the Chief Electoral Officer and Elders appointed by that officer. The Chief Electoral Officer is to be appointed by the Chief and Council. As noted above, of the five Elders present on October 14, 2010, when the BCR was signed, four were the Chief’s grandparents .
[44] There was no direct communication by the Chief and Council to BFN members and no public meeting was held to advise the electorate that the 2010 election was cancelled and that the Chief and Council had extended their terms of office for a further two years. Copies of a press release were made available at the band offices but were not distributed to each home. No other effort appears to have been made to inform the members. Nonetheless, the steps taken by the Chief and Council became known in the communities and led to protests and road blockages at both Eden Valley and Morley. A sizable proportion of the BFN electorate (297 or over 1/3rd) signed a petition objecting to the process followed.
[45] An election did not take place on December 9, 2010. A Notice of Application for Judicial Review was filed on December 16, 2010. An Amended Notice was filed on February 9, 2011 pursuant to the Order of the case management Prothonotary.
[46] At the hearing of this application in Calgary, over one hundred adult members of the community were present indicating their continued interest in the issues before the Court.
ISSUES:
[47] It is settled law that the Federal Court has jurisdiction to review the decisions and actions of the Chief and Council as they constitute a “federal board, commission or other tribunal”within the meaning of s. 2 of the Federal Courts Act. Such decisions are also subject to the jurisdiction of the Court set out in s.18.1 of the Act to hear applications for judicial review of the matter in respect of which relief is sought: Sparvier v. Cowessess Indian Band No. 73, [1993] 3 F.C. 142 (QL), 13 Admin. L.R. (2d) 266 at para. 13; Angus v. Chipewyan Prairie First Nation Tribal Council, 2008 FC 932, 334 F.T.R. 187 at para. 29; Vollant v. Sioui, 2006 FC 487, 295 F.T.R. 48 at para. 25; Gabriel v. Canatonquin, [1978] 1 F.C. 124 at para. 10; aff’d Canatonquin v. Gabriel, [1980] 2 F.C. 792 (F.C.A.).
[48] What constitutes the matter to be reviewed on this application is contested. The respondents raised as preliminary issues whether the application complies with subsection 18.1(2) of the Federal Courts Act and Rule 302 of the Federal Courts Rules, SOR/98-106. The respondents say that there are several possible decisions by the Chief and Council that are reviewable by this Court including the approval of the survey on May 12, 2010, the August 9, 2010 BCR extending the Chief’s term and the October 14, 2010 BCR extending the terms for both Chief and Council and amending the 2008 Custom Election Regulation. They say that the applicants failed to bring a timely application for judicial review with respect to any one of those decisions. They point to the absence of a request for an extension of time and the failure on the part of the applicants to seek leave to address several decisions as required by Rule 302.
[49] The applicants assert that no one decision was made. They submit that what is under review are the actions of the Chief and Council leading to the cancellation of the 2010 election and the extension of their terms of office to 2012. Alternatively, the applicants argue that if there was a decision made it was never communicated by the Chief and Council to members on or off the reserve until the December election date was reached and passed. Thus, they contend, the application cannot be held to be untimely.
[50] The parties submitted argument with respect to the applicants’ claims that their Charter rights had been infringed. It is trite law that the Court should avoid making any unnecessary constitutional pronouncements and is not bound to answer constitutional questions when it may dispose of the matter without doing so: Tremblay v. Daigle, [1989] 2 S.C.R. 530 at page 571; R. v. Smoke-Graham, [1985] 1 S.C.R. 106 at page 121. As I have concluded that this matter could be determined on administrative and customary law principles, I do not consider it necessary to address the Charter issues raised by the applicants and so advised counsel at the hearing.
[51] In my view, the principal substantive issues are:
1. Whether the failure to hold the 2010 Election and the extension of the terms of office by Chief and Council was contrary to BFN custom?
2. Whether the extension of the terms of office of the Chief and Councillors denied the applicants procedural fairness?
RELEVANT STATUTORY PROVISONS:
[52] The jurisdiction to bring an application for judicial review is conferred on the Federal Court by section 18 of the Federal Courts Act. The relevant portion of that section is as follows:
18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
18. (1) Sous réserve de l’article 28, la Cour fédérale a compétence exclusive, en première instance, pour :
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou
de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral;
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney
General of Canada, to obtain relief against a federal board, commission or other tribunal.
b) connaître de toute demande de réparation de la nature visée par l’alinéa a), et notamment
de toute procédure engagée contre le procureur général du Canada afin d’obtenir réparation de la part d’un office fédéral.
[53] Subsection 18.1 (1) provides:
18.1 (1) An application for judicial review may be made by the Attorney General of
Canada or by anyone directly affected by the matter in respect of which relief is sought.
18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande.
[54] Subsection 18.1 (2) of the Federal Courts Act sets out the timeline for submitting an application for judicial review of a “decision or an order of a federal board, commission or other tribunal”:
(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la
première communication, par l’office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu’un juge de la Cour fédérale peut, avant ou après l’expiration de ces trente jours, fixer ou accorder.
[55] Subsections 18.1 (3) and (4) set out the powers of the Federal Court on an application for judicial review and the grounds for exercising those powers. They are as follows:
(3) On an application for judicial review, the Federal Court may
(3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut :
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre
toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral.
[56] Rule 302 of the Federal Courts Rules stipulates that applications for judicial review shall be limited to one order of relief, unless the Court orders otherwise;
302. Unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought.
302. Sauf ordonnance contraire de la Cour, la demande de contrôle judiciaire ne peut porter que sur une seule ordonnance pour laquelle une réparation est demandée.
ANALYSIS:
Standard of Review:
[57] Under paragraph 18.1 (4) (b) of the Federal Courts Act, judicial intervention is authorized where a federal board, commission or other tribunal has failed to observe a principle of natural justice or procedural fairness: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 43.
[58] This Court has recognized that the Chief and Council have expertise on matters such as knowledge of the band's customs and factual determinations: Martselos v. Salt River Nation #195, 2008 FCA 221, 411 N.R. 1 at para. 30, citing Vollant, above, at paragraph 31; Giroux v. Salt River First Nation, 2006 FC 285 at paragraph 54, varied on other grounds in 2007 FCA 108. As such, and as noted by Justice William McKeown at paragraph 20 of News v. Wahta Mohawks (2000), 189 F.T.R. 218, 97 A.C.W.S. (3d) 585, “[…] a considerable degree of deference should be shown to a decision of a Band Council”. This is only true, however, provided that the principles of procedural fairness and natural justice have been observed: Ermineskin v. Ermineskin Band Council (1995), 96 F.T.R. 181, 55 A.C.W.S. (3d) 888 at para. 11.
[59] It follows that band council decisions should be upheld unless they are unreasonable. With that said, custom is determined by the band, not by the Chief and Council: Bone v. Sioux Valley Indian Band No. 290 (1996), 107 F.T.R. 133, [1996] 3 C.N.L.R. 54.
[60] Where procedural fairness is in issue, the question is not whether the decisions made by the Chief and Council or the actions taken by them were “correct” but whether the procedure used was fair. See: Ontario (Commissioner Provincial Police) v. MacDonald, 2009 ONCA 805, 3 Admin L.R. (5th) 278 at para. 37 and Bowater Mersey Paper Co. v. Communications, Energy and Paperworkers Union of Canada, Local 141, 2010 NSCA 19, 3 Admin L.R. (5th) 261 at paras. 30-32.
Preliminary Issues: Timeliness of the application and Rule 302
[61] The applicants have requested relief by way of certiorari, mandamus, prohibition and declaration under subsection 18 (1) of the Federal Courts Act. These remedies, for which the Federal Court has been granted exclusive jurisdiction in relation to actions by a federal board, commission or other tribunal, are not subject to the statutory time bar in subsection 18.1 (2) of the Act: Krause v. Canada, [1999] 2 F.C. 476 (QL) at para. 23.
[62] The remedies sought are discretionary and may be denied where there has been unreasonable delay. But this is not a case such as Friends of Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, [1992] S.C.J. No. 1 (QL) in which the applicants had delayed for an inordinate amount of time before challenging the actions taken. Here it was a matter of days after the election date had passed without an election having taken place that the application was filed.
[63] It is not any one specific decisions taken by the Chief and Council that the applicants are challenging in this proceeding but all of the decisions and actions taken, including the survey process, leading up to the failure to conduct the 2010 election. The entire sequence of events is a “matter in respect of which relief is sought.” The grounds under subsection 18.1 (3) for challenging the matter persist as the incumbents remain in office without having been elected to a further term. Their authority to hold office is subject to the prerogative remedies of prohibition and quo warranto: Salt River First Nation 195 v. Marie, 2003 FCA 385, 312 N.R. 385.
[64] Rule 302 provides that an application for judicial review shall be limited to one decision unless the Court orders otherwise. It has been held to not apply where there is a continuous course of conduct: Servier Canada Inc. v. Canada (Minister of Health), 2007 FC 196 at para. 17; Balfour v. Norway House Cree Nation, 2006 FC 213, [2006] 4 F.C.R. 404 at para. 16. In my view, this application concerns a continuous course of conduct. The decisions in question are so closely linked as to be properly considered together. Should I be found to have erred in that conclusion, I would dispense with the requirement for separate applications under Rule 55.
[65] It is clear from the evidence that there was no transparency about the course of action that was being followed by the Chief and Council. No notice was provided to off-reserve members and no public meeting was held to inform the electorate that the 2010 election was cancelled and that the terms of the incumbents had been extended for a further two years. The applicants have provided sufficient evidence to satisfy me that as members of the community, affected by these decisions, they were not reasonably informed of these matters. It is not sufficient that they had notice of rumours circulating within the community about the Chief’s plan to extend his term. As Band members they were entitled to proper notice about the proposed changes.
[66] At best, newsletters were distributed by being posted in the offices of the BFN in the Eden Valley and Morley communities, the post office and restaurant. There was confusion as to whether a referendum on the electoral changes would be held, based on the statements attributed to the Chief reported in the media. On a question of such significance to the community, the steps taken to inform the members were inadequate. This was in contrast to the extensive efforts made to inform the Wesley members about the proposed electoral changes in that First Nation as describ