Francis v. Mohawk Council of Kanesatake

Francis v. Mohawk Council of Kanesatake
Court (s) Database
Federal Court Decisions
Date
2003-01-31
Neutral citation
2003 FCT 115
File numbers
T-1993-02
Notes
Reported Decision
Decision Content
Federal Court Reports Francis v. Mohawk Council of Kanesatake (T.D.) [2003] 4 F.C. 1133
Date: 20030131
Docket: T-1993-02
Neutral citation: 2003 FCT 115
OTTAWA, ONTARIO, THIS 31st DAY OF JANUARY 2003
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
DARLENE FRANCIS,
JAMES GABRIEL, in his capacity as Grand Chief,
CLARENCE SIMON, in his capacity as Chief,
and MARY CHÉNÉ, in her capacity as Chief
Applicants
- and -
The MOHAWK COUNCIL OF KANESATAKE,
STEVEN BONSPILLE, in his capacity as Chief,
PEARL BONSPILLE in her capacity as Chief,
JOHN HARDING, in his capacity as Chief,
and the ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] The Mohawk Community of Kanesatake (the "Community" or the "Band") is a registered band under the Indian Act, R.S.C. 1985, c. I-5 (the "Act"). The Band is governed by the Mohawk Council of Kanesatake (the "Council") whose membership is composed of six chiefs and one grand chief. The Council, one of the designated respondents, is chosen according to the custom of the Band. The members' mandates are for a period of three years. The last general elections were held in 2001.
[2] On October 3, 2002, Chief Crawford Gabriel passed away.
[3] On November 26, 2002, the Council adopted a resolution (the "impugned decision") calling a by-election to be held on January 4, 2003, "in accordance with the Electoral Code of Kanesatake" (the "Code") (Exhibit "C" to the supplementary of James Gabriel, dated December 3, 2002 and Exhibit "D" to the affidavit of James Gabriel, dated December 1st , 2002). The resolution was adopted unanimously but now there is no consensus on its purported effect. Stakes are high: the participation, or on the contrary, the exclusion of non-resident Band members from the electoral process may well influence the outcome of the next by-election. The applicants, three of whom are Council members and the fourth who is a non-resident Band member, have brought the present judicial review application to set aside the impugned decision, to declare what the custom of the Band is and to obtain other injunctive relief.
I- BACKGROUND
[4] The fact that the by-election needs to be conducted and is to be held in accordance with the custom of the Band, as opposed to the provisions of the Act where an order has been made pursuant to subsection 74(1) of the Act, is not at issue. Although the Attorney General of Canada, representing the Minister of Indian and Northern Affairs Canada ("INAC"), has been named as a respondent, he has no involvement in the conduct of elections held in accordance with "the Custom of the Band". Accordingly, his status is more that of a "mis-en-cause" and he will not be referred to as a "respondent" in these reasons for order and order; the "respondents" are therefore the Council and the three respondent Chiefs.
[5] Profound internal division among the members of the Council, who are associated with two competing factions, has seriously impaired the functioning of the Council and has resulted in abundant and persistent litigation. The three applicant Chiefs were re-elected in 2001 while the three respondent Chiefs were newly elected in 2001. Chief Crawford Gabriel was also a newly elected Chief. Since the 2001 elections, the following applications have been brought before the Court:
(a) Larry Ross v. Mohawk Council of Kanesatake (File No. T-1915-01), to set aside the termination of the acting Chief of Police. In this case, the application was heard by the Court, but no final order has been released as of the date of these reasons for order and order.
(b) James Gabriel v. Mohawk Council of Kanesatake (File No. T-33-02), to set aside the removal of the applicant James Gabriel as Grand Chief, one of the re-elected chiefs. In that case, the newly elected chiefs put in practice their views that non- residents should not be allowed to vote at a Community meeting called on December 6, 2001, for the removal of Grand Chief James Gabriel. The Court granted an interlocutory injunction and ordered his reinstatement pending the final disposition of this application (Gabriel v. Mohawk Council of Kanesatake, [2002] F.C.J. No. 635 (F.C.T.D.) ("Gabriel")). In her decision, Tremblay-Lamer J. noted that the latter who first became Grand Chief in 1996, and was subsequently re-elected in 1998 and 2001, "strongly supported police initiatives to control criminal activities in the territories, particularly involving the illegal drug trade". However, she went on to state that: "[t]he 2001 elections saw four new members elected to Council. The new members did not share the applicant's views. Their focus was on public accountability, rather than police and security matters" (paragraphs 5 and 6).
(c) Louise Bonspille v. Mohawk Council of Kanesatake (File No. T-824-02), to set aside the termination of two police commissioners. The Court granted an interim injunction and ordered the reinstatement of Louise Bonspille and Brenda Etienne as members of the Kanesatake Mohawk Police Commission until such time as an interlocutory order is rendered in this matter (Bonspille v. Mohawk Council of Kanesatake, [2002] F.C.J. No. 919 (F.C.T.D.)).
(d) Louise Bonspille v. Mohawk Council of Kanesatake (File No. T-1150-02), to set aside an attempt by the Council to appoint new commissioners which has been allegedly made contrary to the Tripartite Agreement on Policing. No final order has been released in this matter.
(e) Marie Chéné v. Mohawk Council of Kanesatake (File No. T-1884-02), to set aside the removal of Chief Chéné from the Council, also a re-elected chief. The Court granted an interim injunction and ordered her reinstatement until such time as the motion for interlocutory injunction is heard by the Court. An order was rendered on November 19, 2002.
[6] The state of urgency which prompted the expeditious hearing of the present application on December 16, 2002, flows from the fact that Chief Crawford Gabriel's death has created a deadlock situation. Inasmuch as the aforementioned ordinarily aligned himself with the three respondent Chiefs, his support thus permitted them to have a majority on the Council. On December 17, 2002, further to the request made at the hearing by the applicants, and being satisfied that the three conditions for the issuance of an interlocutory injunction were met, I ordered a stay of the impugned decision pending the final disposition of this judicial review application.
[7] At this point, I observe that the evidence on record shows that since November 26, 2002, the Executive Director of the Council, Barry Bonspille, purportedly acting in the name of the Council and under the authority of the impugned decision, has taken a number of steps to assure that the by-election be conducted "in strict compliance" with the Code provisions which generally provide for the exclusion of non-resident Band members (Article 2) and for the election of "Election Supervisors" and members of a "Council of Elders" (Articles 7.1 and 8 paragraph 2). An attempt was even made by the Executive Director to postpone the election date from January 4, 2003, to January 11, 2003, in order to comply with the Code's current prescription that there be at least 21 days between the nomination meeting and the election date (Article 6.1).
[8] Furthermore, on December 4, 2002, a Community meeting was held to elect Election Supervisors and a Council of Elders. Non-resident Band members were not notified of this meeting. It is likely, from the evidence on record, in view of the position taken by the respondent Chiefs and the Executive Director, acting in the name of the Council, that non-residents would not be permitted to vote. Their position is that they must come within one of the strict exceptions mentioned in the Code. Assuming that some non-residents may qualify, they would still have to take specific steps to have their names put on the voters' list by the Election Supervisors. In practice, this means that they would still have to convince an Election Supervisor of the existence of their voting right.
[9] As we will see later, the evidence shows that Election Supervisors and members of the Council of Elders are likely to be biased. That being said, although provision is made in the Code or in the accompanying Regulations for the election of a Council of Elders and Election Supervisors, those requirements were never followed in past elections; the exclusion of non-residents, although mentioned in the Code, was never enforced in past elections. At all times since 1991, non-residents aged 18 years and over were allowed to vote and the elections were carried out by a third independent agency.
[10] In the case at bar, the applicants ask the Court to set aside the impugned decision calling for a by-election to be held on January 4, 2003, and a nomination meeting to be held on December 19, 2002. The applicants further ask for a declaration that the Band electoral custom requires all elections and by-elections for positions on the Council be open to all registered Band members to vote and must be conducted by an independent agency retained by the Council to oversee and direct the vote, all in accordance with procedures followed in past elections conducted "in accordance with the Code". The applicants also ask for a declaration that the Community meeting held on December 4, 2002, to elect a Council of Elders and Election Supervisors was held without authority by the Council and that the persons elected at that meeting to fill the positions of Election Supervisors and members of the Council of Elders were therefore not lawfully elected to those positions. Finally, the applicants ask for an order for a mandatory injunction or mandamus requiring that a by-election be held within 60 days following the final order of the Court.
II- JURISDICTIONAL ISSUE
[11] It is not disputed that the Council adopted on November 26, 2002, a resolution calling a special election to be held on January 4, 2003, "in accordance with the Electoral Code of Kanesatake", and a nomination meeting to be held on December 19, 2002. However, the respondents deny the Court's jurisdiction to entertain and dispose of the present judicial review application.
[12] I consider that the Court has jurisdiction pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, to entertain the present application, and as the case may be, to set aside the impugned decision, to grant declaratory or injunctive relief with respect to the custom of the Band and its purported application by the Council, its Executive Director Barry Bonspille or any election officer or other person, purportedly acting in the name of the Council or under the authority of the impugned decision or of the Code.
[13] First, I note that subject to section 28 of the Federal Court Act, section 18 confers on the Trial Division of the Federal Court exclusive original jurisdiction 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" as defined in section 2 of the Federal Court Act. In this regard, I note that the respondents acknowledged decisions of this Court and other courts which have already held that a band council is a federal board (Rider v. Ear, [1979] 4 C.N.L.R. 119 (Alta. S.C.T.D.); Gabriel v. Canatonguin, [1980] 2 F.C. 792 (F.C.A.) ("Canatonguin"); and Trotchie v. The Queen et al., [1981] 2 C.N.L.R. 147 (F.C.T.D.)). In Canatonguin, supra, the Federal Court of Appeal upheld a decision of then Associate Chief Justice Thurlow of this Court ([1978] 1 F.C. 124) and decided that a band council came within the jurisdiction of the Federal Court where the election of the band council was made pursuant to the custom of the band and not the Act. In view of the fact that the Act applies to both a band council elected by custom or one elected pursuant to section 74 of the Act (see the definition of "council of the band" in subsection 2(1) of the Act), the judgment rendered by the Court of Appeal in Canatonguin, supra, appears to be determinative of the jurisdictional issue.
[14] Second, I have also considered the respondents' assertion thatCanatonguin, supra, may have been wrongly decided and that "[o]ther cases which purport to follow or which cite Canatonguin, do so with the proviso that a Band Council is a "federal board" when the council exercises Indian Act powers" (respondents' memorandum, paragraph 60). In this regard, they submit that a band council's decision is only reviewable where it flows from the exercise of a power specifically conferred upon it by a federal act of Parliament. They rely on Bigstone v. Big Eagle, [1993] 1 C.N.L.R. 25 at 32-33 (F.C.T.D.) ("Bigstone"); Cree Regional Authority v. Canada (Federal Administrator) (C.A.), [1991] 3 F.C. 533 at 556; Samson Cree Nation v. Canada (Minister of Indian and Northern Affairs), [1999] A.J. No. 225 at paragraph 19 (Alta. Q.B.) and some other cases. They also state that their approach is consistent with the dissenting judgment of Laskin J. (as he then was) in Attorney General of Canada v. Lavell, [1974] S.C.R. 1349, at 1379, in which three other judges concurred. In that case, Laskin J. stated that "[a] Band Council has some resemblance to the board of directors of a corporation, and if the words of s. 2(g) [of the Federal Court Act] are taken literally, they are broad enough to embrace boards of directors in respect of powers given to them under such federal statutes as the Bank Act, R.S.C. 1970, c. B-1, as amended, the Canada Corporations Act, R.S.C. 1970, c. C-32, as amended , and the Canadian and British Insurance Companies Act, R.S.C. 1970, c. I-15, as amended".
[15] I doubt that, for all purposes, a band council could still be viewed or compared today to the board of directors of a corporation. Besides having jurisdiction over the registration of band members and the conduct of band affairs, band councils are invested with broad law-making powers through section 81 and other sections of the Act. In the case, for example, of traffic regulation, not only the band members but all people who are on the reserve, whether they are band members, residents or outsiders, may be affected by by-laws duly adopted by band councils. Accordingly, it is preferable to compare band councils to municipal councils (Canadian Pacific Ltd. v. Matsqui Indian Band (C.A.), [2000] 1 F.C. 325). That being said, I recognize that the legislative powers of the Mohawk Council of Kanesatake under the Act may be somewhat more limited since the Kanesatake territory is not a "reserve" within the meaning of the Act. Moreover, the Kanesatake Interim Land Base Governance Act, S.C. 2001, c. 8, rectifies, to a large extent, this latter deficiency. Section 7 of the latter Act provides that the Band has jurisdiction "to make laws in relation to the use and development of the lands in the Kanesatake Mohawk interim land base". Those powers are exercised through the Council. From the list of powers enumerated in said Act (including, for example, traffic regulation), I have no hesitation in concluding that they are analogous to the ones generally attributed to municipal councils and that the Band's "law making powers" come within the ambit of section 32 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (the "Charter") (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573).
[16] I also respectfully disagree with the purported effects the respondents attribute to Bigstone, supra, and the other cases cited in their memorandum. The respondents assert that in Bigstone, supra, the band council was exercising a power conferred under the Act in respect of the management of the native lands and funds rather than dealing with the election process and therefore, it should be distinguished from the case at bar. Nevertheless, it seems clear that this case does recognize the jurisdiction of this Court under section 18 of the Federal Court Act when dealing with "any federal board, commission or other tribunal..." such as "council of the band" and it "makes no difference that they purport to have been elected by custom rather than under the Indian Act" in accordance with the decision in Canatonquin, supra (Bigstone, supra, at 33).
[17] Moreover, the most recent case law does not support the respondents' general proposition. I note that the present situation is somewhat similar to the one examined by the Court in Francis v. Mohawks of Akwesasne Band of Indians (1993), 62 F.T.R. 314, where Noël J. (as he then was) granted, under section 18.2 of the Federal Court Act, an interim order prohibiting the Mohawk Council of Akwesasne from holding a by-election. As in this case, the Court was asked to determine the legality of the council's decision to hold such an election. I also note that in Frank v. Bottle, [1993] F.C.J. No. 670 (F.C.T.D.), there was an issue about the Court's jurisdiction. The issue was the removal of a chief. It was argued that actions under the Blood Tribe Custom Election By-law did not constitute decisions by a "federal board, commission or other tribunal". The by-law's validity was challenged. The Court followed Pratte J.'s comments of the Court of Appeal in Canatonquin, supra, at 793 and noted that the jurisdictional argument was rejected by McNair J. (as he then was) in Joe v. John, [1991] 3 C.N.L.R. 63 at 70 (F.C.T.D.). Moreover, MacKay J. who rendered the Court's decision in Frank, supra, added that it is the Act, and more particularly subsection 2(1) of the Act, "which provides for recognition of the customary law under which the plaintiff, as Chief, and the defendants, as members of the Council of the Blood Tribe, each claim their offices" (paragraph 17), and concluded on this point by stating that "the customary law of the Tribe has recognition as law by reason of federal statutory law and it is the Council so elected which has status in accord with the Indian Act" (paragraph 19). I fully agree with these statements and add that they are authoritative justification for the conclusion that any refusal to recognize a Band member's right to vote at an election conducted under the custom of the Band is a reviewable decision under sections 18 and 18.1 of the Federal Court Act (Scrimbitt v. Sakimay Indian Band Council (T.D.), [2000] 1 F.C. 513, at paragraph 22).
[18] Finally, I am unable to accept the respondents' assertion that this is a purely internal matter that is to be left to the Community. In Bone v. Sioux Valley Indian Band No. 290 Council, [1996] 3 C.N.L.R. 54 (at paragraphs 31 and 32) (F.C.T.D.) ("Bone"), the Court observed that custom elections are held under the inherent power of the "band", not from a delegation under the Act. However, this last factor did not prevent the Court from being satisfied that it had jurisdiction to grant declaratory relief pursuant to an application for judicial review by virtue of paragraph 18(1)(a) and subsection 18(3) of the Federal Court Act (Bone, supra, at paragraph 22). The Court also noted that the issue was whether the Sioux Valley Dakota Oyate Custom Election Code and Regulations reflected the band's custom by enunciating practices that were generally acceptable to members of the band and upon which there was broad consensus (Bone, supra, at paragraphs 27 and 32). In that case, the Court declared that the Code was in force. I therefore conclude that the Court has jurisdiction to entertain this application and, as the case may be, to make any declaration with respect to the custom of the Band and its purported application by the Council and its Executive Director, Barry Bonspille or other election officers, purportedly in the name of the Council, or under the presumed authority of the impugned decision, or of the Code.
[19] Before turning to the merits of the present case, I find it helpful to canvass the general principles of law as they relate to the custom of the Band.
III- GENERAL PRINCIPLES APPLICABLE TO THE CUSTOM OF THE BAND
[20] The Act recognizes two methods for choosing the grand chief and councillors of a band: the first is a procedure set out in the Act itself; the other is by "custom", and recognizes selection processes developed by First Nations. In the latter case, First Nations determine who may vote, how the voting is carried out, and when elections are held. In the case at bar, what is really at issue is how the upcoming Band custom by-election is to be conducted and who will be entitled to vote.
[21] The jurisprudence has established that it must be incumbent upon those who are relying upon "custom" to at least establish what it is and the derivation thereof: McArthur v. Saskatchewan (Registrar, Department of Indian Affairs and Northern Development) (1992), 91 D.L.R. (4th) 666 (Sask. Crt. Q.B.) ("McArthur"). However, while the Act allows for the selection of the "council of the band" by the custom of the Band, it does not set out guidelines as to how that custom is to be identified.
[22] In Bigstone, supra, the validity of the procedures used to determine the rules that would govern the composition and selection of a band council, not governed by section 74 of the Act, was at issue. Strayer J., (as he then was) held that at 34:
Unless otherwise defined in respect of a particular band, "custom" must I think include practices for the choice of a council which are generally acceptable to members of the band, upon which there is a broad consensus. With a newly re-established band whose circumstances are vastly different (e.g. the majority not being resident on the reserve) from those of the band dissolved some 90 years earlier, it is not surprising that innovative measures would have to be taken to establish a contemporary "custom". The real question as to the validity of the new constitution then seems to be one of political, not legal, legitimacy: is the constitution based on a majority consensus of those who, on the existing evidence, appear to be members of the band? This is a question which a court should not seek to answer in the absence of some discernable legal criteria which it can apply. While there might be some other basis for judicial supervision if there were clear evidence of fraud or other acts on the part of the defendants which could clearly not be authorized by the Indian Act, there is no evidence of any such activities before me.
(my emphasis)
[23] The constituent elements of custom may therefore be summarized as follows:
1) "practices" for the choices of a council;
2) practices must be "generally acceptable to members of the band"; and
3) practices upon which there is a "broad consensus".
[24] As I understand it, this jurisprudential definition of custom has two components. The first involves "practices" which may either be "established" through repetitive acts in time, or through a single act such as the "adoption" of an electoral code. This was in fact noted in McLeod Lake Indian Band v. Chingee (1998), 153 F.T.R. 257 (F.C.T.D.) ("McLeod"), where Reed J. (as he then was) described the nature of custom in paragraph 8 as a "practice established or adopted as a result of the individuals to whom it applies having accepted to be governed in accordance therewith". Further, she emphasized in paragraphs 10 and 17 the evolutionary nature of custom depending on changing circumstances:
Also, custom by its nature is not frozen in time It can and does change in response to changed circumstances. A band may choose to depart from oral tradition and set down its custom in written form. It may move from a hereditary to an electoral system. It may choose to adopt as its customary practices, practices and procedures that resemble the election procedures used to elect municipal or provincial governments. I cannot interpret the reference to "custom of the band" in subsection 2(1) as preventing a band from changing the custom according to which it governs itself from time to time in response to changing circumstances.
[...]
The defendants' main argument is that to allow amendment of the custom of the band by majority vote of the band members is to impose a non-customary method of selection. That is, that a determination of how the custom of the band may be changed or determined is itself a determination of the method of selection. That may be the inescapable consequence, but I return to what is fairly established in the jurisprudence, that the custom of the band is the practices for selecting the council of the band that are generally acceptable to members of the band, upon which there is broad consensus As noted above, I cannot conclude that band custom is frozen in time.
[25] It is recognized that the content of the custom of a band will vary from time to time, according to the will of the members of the band. This principle was highlighted in Six Nations Traditional Hereditary Chiefs v. Canada (Minister of Indian and Northern Affairs) (1991), 43 F.T.R. 132 (F.C.T.D.) ("Six Nations Traditional Hereditary Chiefs"). Rouleau J. stated as follows:
The plaintiffs did not succeed in persuading me that custom would be infringed if a referendum were held. It is true that the Constitution Act, 1982 entrenches the customs of aboriginal peoples, but if the latter decide that they will no longer elect the band council in accordance with custom, they cannot be accused of infringing their own customs. That would be illogical .
[26] The second component of the definition of custom, therefore, involves a subjective element, which refers to the manifestation of the will of those interested in rules for determining the electoral process of band council membership to be bound by a given rule or practice. However, the remaining question is: whose consent must be obtained for the purposes of establishing custom? More specifically, what threshold must be reached for practices to be "generally acceptable to members of the band", and what is the meaning of a "broad consensus"? Are these two "standards" one and the same, or are they cumulative? The "broad consensus" needed to support a band custom system has been generally discussed in the following cases:
[27] In Bone, supra, a band that had previously been governed by section 74 of the Act elected to become a custom band. This change was approved after two plebiscites were held in which a majority of the voters approved the change. Heald D.J. (as he then was) found that the code and regulations that were subsequently adopted were "nothing more than an attempt to put down in some kind of recognizable and written form the electoral practices of this particular Band" and that there was no requirement under the Act that a band put in writing its custom with respect to the selection of the band's council. However, it was not entirely clear whether the band membership had also approved the election code that was eventually used to select the chief and council under the new custom regime. In determining whether the subsequent election of 1994, which had been held in accordance with that code, was valid, Heald D.J. asked himself whether the code reflected the custom of the band: in other words, did it enunciate practices that are generally acceptable to members of the band and upon which there is a broad consensus?According to Heald D.J., the answer was to be found in the conduct of the band in relation to the March 14, 1994 election and the events that followed. He noted that the election had been conducted in accordance with the election code that was being challenged, with no objection having been registered until the election was lost. He interpreted the lack of objection at an earlier date as evidence that the election had been conducted in accordance with what the band had adopted as the custom of the band.
[28] In McArthur, supra, the Saskatchewan Court of Queen's Bench found that the Interim Band Council was accepted by all of the 109, or 113, individuals generally acknowledged, at that time, as being legitimate descendants of members of the previous Pheasant Rump Band. It went on to note that "[t]he appellants participated in the process which resulted in the establishment of the Interim Band Council. The evidence permits of no other conclusion that the establishment of the Interim Band Council resulted not just from "a majority consensus" of those apparently entitled to be members of the new Band but from unanimous consensus".
[29] In Lac des Mille Lacs First Nation v. Chapman (1998), 149 F.T.R. 227 (F.C.T.D.) (the "First Nation"), discussions were apparently held in 1995 among the members of the First Nation and a new Custom Leadership Selection Code (the "Selection Code") was drafted along with Referendum Regulations and a draft Financial Administration Law. By referendum of the First Nation, the Selection Code was allegedly adopted by the First Nation. Counsel for the applicant submitted that, with only 73 votes validly cast, it was not possible to state that the Selection Code was adopted according to the criteria established in Bigstone, supra. Thus, the issue was whether the Selection Code was generally acceptable and whether it was supported by a broad consensus. Cullen J. (as he then was) concluded as follows at paragraphs 29 and 34:
The unique situation of the members of this First Nation must be considered in such a discussion. According to paragraph 20 of the affidavit of Ron Bachmier there are approximately 300 members of this First Nation who are eligible to vote. However, the location of only approximately 130 of these members is known. The applicant does not contest these figures. The minutes of the 1990 general meeting, at which a Chief and Councillors were elected, indicates that somewhere in the neighbourhood of 40 eligible voters participated. This is evidenced by the minutes of the 1990 General Meeting which show that 45 votes were cast in the election of Chief and 38 (114 / 3) in the voting for the Councillors. The minutes of the 1996 election (Exhibit "E" to the affidavit of Roderick Sawdo) indicate that 45 voters were registered. There has been no other evidence presented on the issue of voter participation. There is a pattern of general non-participation even by known members who are eligible to vote. I find that the participation of 86 voting members which resulted in 73 votes being counted, out of which 64 votes were in favour of the Selection Code and 7 were against with one "no opinion" and one spoiled, constitutes a broad consensus sufficient in these special circumstances to consider the Selection Code to now constitute Band Custom.
[...]
In the result, I find that the respondents Lawrence Chapman, Elizabeth Boucher, Ron Bachmier and James Nayanookee [sic] constitute the proper Chief and Council of the First Nation Lac des Mille Lacs. Furthermore, the Custom Leadership Selection Code is the official band custom and its procedures should be followed in all subsequent selections of Chief and Council until such time as the custom is changed according to a broad consensus of the band members. If the members of this First Nation wish to change their leadership, they will have the opportunity to do so within five years of the last selection process according to the provisions of their own Selection Code.
(my emphasis)
[30] Finally, one of the clearest articulations of what is the requisite subjective element for the establishment of the custom of a band is found in McLeod, supra, where Reed J. stated as follows in paragraphs 18-19:
The question that remains is whether "broad general consensus" equates to a "majority decision of the Band members attending a general meeting of the Band convened with notice". In my view, it may do so, or it may not, depending upon a number of factors. If for example, the general meeting was held in a location or at a time when it was difficult for a number of members to attend, and there was no provision for proxy voting, it may not meet the broad consensus test. If the notice was not adequate in not providing sufficient detail of what was proposed, or was not given sufficiently in advance of the meeting to allow people a realistic opportunity to attend then it would not be.
There are also situations in which those who do not vote may be signalling a willingness to abide by the majority decision of those who do. I am of the view that approval by a majority of the adult members of the Band is probably a safe indication of a broad consensus (the age of majority being a matter for the band to determine). Whether a majority decision by the Band members attending a general meeting demonstrates a broad consensus depends on the circumstances of that meeting.
(my emphasis)
[31] An unresolved question is whether "broad consensus" mean the approval of a majority of both resident and non-resident band members, thereby ensuring that the community's voice as a whole has been heard. In Bone, supra, Heald D.J. stated as follows at paragraphs 44-45:
However, subsection 77(1) has no relevance to these proceedings. The votes in question, in the plebiscites of June and July, 1993, were not elections as contemplated by section 77 of the Indian Act: they were not elections for the office of Chief and/or Councillors. The votes in question were plebiscites held to comply with the Department's policy in relation to the revocation of a section 74 ministerial order. The said policy incorporated the definition of elector as found in the Indian Act, which is set out above. This definition does not contain a residency requirement. It does provide for the disqualification of a potential elector in part (c) of the definition. And, as was discussed above, prior to the decision in Batchewana, if the election were for Chief or Councillor, an elector was disqualified if he/she did not reside on the Reserve. However, the plebiscites in question were not such elections. Furthermore, there was no provision in the Act that disqualified electors for any reason, with respect to a plebiscite. Therefore, in my view, it follows that if a Band member had met the first two requirements of the definition, that is he/she was registered on the Band List and was eighteen years of age or older, then he/she was an eligible elector according to this definition, and accordingly should have had the opportunity to vote in the plebiscites held in pursuance of the Department's policy. However, this was not the case. Non-resident Band members were not considered eligible voters and were not permitted the opportunity to vote in the plebiscites. In spite of this apparent deviation from the Department's policy, on the basis of the plebiscite results, the Department did recommend to the Minister that the section 74 order be repealed.
Thus, the Respondents were correct in submitting that non-resident Band members should have been given the opportunity to vote in the plebiscites.
(my emphasis)
[32] Bone, supra, dealt with the opportunity for non-resident band members to vote in the plebiscites regarding the question of a change to become a custom band. However, I find Heald D.J.'s reasoning to be equally applicable to the case of a vote for a resolution regarding the process of conduct of future elections in a custom band. It is noteworthy that Strayer J.'s definition of custom in Bigstone, supra, does not contain a residency requirement and does not disenfranchise some band members from voting.
[33] Also of great relevance to the present case is the British Columbia Supreme Court decision in Napoleon v. Garbitt, [1997] B.C.J. No. 1250. In that case, the band had passed the Saulteau Indian Band Government Law (the "Law") in 1988 under which it was recognized by INAC (then the Department of Indian Affairs and Northern Development) as a band which selected its council according to the custom of the band. The Law contained a provision as to its own amendment. In the fall of 1996, a certain number of resolutions were passed concerning the procedures for electing the chief and council. The issue raised before the Court was how the Law, as to amendments, was to be viewed and interpreted. Parrett J. noted that the proper interpretation of that Law, applying the custom of the band, was that for the Law to be amended, appropriate notice had to be given to citizens of the proposed amendments, citizens had to be consulted on the desirability of the proposed amendments, and the majority of citizens had to consent to, or vote for, the amendments. However, he also noted that the strict wording of the amendment provisions of the Law had not usually been followed by the band in practice. Rather than operate with strict technical adherence to the Law, the band had adapted the Law to reflect the band's needs as they emerged. The Court concluded that the custom of the band with respect to "amending" its Law had been to seek consensus within the band by means of informal votes or by means of band meetings. The actions of the so-called "dissidents", the defendants in that case, represented attempts to pursue change by democratic means while the actions of the other side, the plaintiffs, appeared to be an attempt to retain power at the expense of democratic principles.
[34] Having said that, I do not consider that it can be claimed that all customary rules which may be invoked by individual band members have a content exactly identical to that of the rules contained in an electoral code. On a number of points, the areas governed by the two sources of law may not exactly overlap, and the substantive rules in which they are framed may not be identical in content. Indeed, this will often be the case with more technical rules governing the conduct of elections which may or may not be applied consistently in practice, depending on the attendant circumstances. The relevant question is whether a particular rule in an electoral code also exists as a customary rule, either because the code has merely codified the custom of the band, or caused it to "crystallise", or because it has influenced its subsequent adoption.
[35] Thus, one will have to determine how an electoral code has been applied in practice in a given situation, for instance vis-à-vis the question of who is entitled to vote and who will administer the conduct of the elections or by-elections. It is quite common that behaviours arising through attitudes, habits, abstentions, shared understandings and tacit acquiescence develop alongside a codified rule and may colour, specify, complement and sometimes even limit the text of a particular rule. Such behaviours may become the new custom of the band which will have an existence of its own and whose content will sometimes not be identical to that of the codified rule pertaining to a particular issue. In such cases, and bearing in mind the evolutionary nature of custom, one will have to ascertain whether there is a broad consensus in the community at a given time as to the content of a particular rule or the way in which it will be implemented.
[36] For a rule to become custom, the practice pertaining to a particular issue or situation contemplated by that rule must be firmly established, generalized and followed consistently and conscientiously by a majority of the community, thus evidencing a "broad consensus" as to its applicability. This would exclude sporadic behaviours which may tentatively arise to remedy certain exceptional difficulties of implementation at a particular moment in time as well as other practices which are clearly understood within the community as being followed on a trial basis. If present, such a "broad consensus" will evidence the will of the community