McCallum v. Canoe Lake Cree First Nation

McCallum v. Canoe Lake Cree First Nation
Court (s) Database
Federal Court Decisions
Date
2022-06-29
Neutral citation
2022 FC 969
File numbers
T-126-21
Decision Content
Date: 20220629
Docket: T-126-21
Citation: 2022 FC 969
Ottawa, Ontario, June 29, 2022
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
CRAIG MCCALLUM, LAURA BIRD,
JESSICA IRON as Litigation Guardian for JESSE IRON, LLOYD YEW,
NYDEN IRONNIGHTTRAVELLER and RONIN IRON
Applicants
and
CANOE LAKE CREE FIRST NATION, CHIEF FRANCIS IRON,
WALTER COULINEUR, BERNICE IRON, LENNY IRON,
LORNE IRON, WILFRED IRON, AND ROBERT OPIKOKEW
Respondents
JUDGMENT AND REASONS
[1] The Applicants, by way of judicial review, challenge a decision of Chief and Council of Canoe Lake Cree First Nation [CLCFN] to utilize a membership code which precluded the Applicants, and many others, from running for office or voting in an election held on December 16, 2020 [2020 Election]. They also bring an application, pursuant to s 31 of the First Nations Elections Act, SC 2014, c 5 [FNE Act], contesting the election of Chief and Council and seeking to have the 2020 Election set aside. Alternatively, they seek a declaration that the subject membership code is unconstitutional.
Background
[2] It is necessary to provide some background information to properly situate the matters now before the Court.
[3] In 1985, amendments were made to the Indian Act, RSC 1985, c I-5 which allowed Indian bands to control their own membership by adopting their own membership codes. More specifically, section 10 provides that:
10 (1) A band may assume control of its own membership if it establishes membership rules for itself in writing in accordance with this section and if, after the band has given appropriate notice of its intention to assume control of its own membership, a majority of the electors of the band gives its consent to the band’s control of its own membership.
[4] Section 10(6) states that, where the conditions set out in subsection (1) have been met, the Council of the band shall give notice to the Minister in writing that the band is assuming control of its own membership and shall provide the Minister with a copy of the membership rules for the band. Section 10(7) states that, on receipt of such notice, the Minister shall give notice to the band that it has control of its own membership if the conditions set out in subsection have been complied with.
[5] On or about June 17, 1987, CLCFN assumed control of its band membership under section 10 of the Indian Act on June 17, 1987 and enacted the Canoe Lake Indian Band Membership Code [1987 Membership Code]. The parties agree that Canada recognizes the CLCFN as a Section 10 band governed by the FNE Act. Indeed, the CLCFN is listed as a participating First Nations in the schedule to that Act.
[6] The 1987 Membership Code includes the following:
WHEREAS the Canoe Lake Indian Band is desirous of assuming control of its own membership, the following provisions shall constitute a Membership Code for the establishment and maintenance of the Band List.
1) Unless otherwise specified, the definitions contained in the Indian Act, 1970 c 1-6, as amended, apply to this Code. “Meadow Lake Tribal Council” means the organization incorporated pursuant to the laws of Saskatchewan to represent 10 Member Bands.
2) The Membership Code may be amended or repealed by a majority of the electors upon one month’s notice to the electors.
3) The Chief and Council shall determine membership pursuant to the provisions of this Code.
4) The Chief and Council may appoint persons to assist in the administration of the Code and the recording and keeping of the Band List.
5) Decisions on membership within the Band shall be subject to review by a Membership Tribunal to be established by the Meadow Lake Tribal Council. The Membership Tribunal shall consist of not less than three persons who may be appointed from time to time. The Membership Tribunal shall consist of not less than three persons who have been entered in one or other of the Band Lists of the Member Bands represented by the Meadow Lake Tribal Council who are knowledgeable of the customs and values of all of the member Bands. The Membership Tribunal shall have the power to investigate and confirm, suspend or reverse decisions on membership.
6) An application for the review of a decision on membership by the Membership Tribunal may be made by the council of the Band, any member of the Band, or the person in respect of whose name the application for review is made or his representative within one month of a determination being made pursuant to Section 3
7) Commencing on the date this Code comes into force, a person is entitled to have his name entered in the Band List if:
a) that person was entered in the Band List or was entitled to be entered in the Band List immediately prior to this Code coming into force
b) both of that person’s parents are entered or were or are entitled to be entered in the Band List; or,
c) one of that person’s parents is or was entered in the Band List and the other parent is or was entered in the Band List of another Band;
…
THIS MEMBERSHIP CODE consented to on the 17th day of June, 1987 by the Canoe Lake Indian Band.
[7] The parties agree that the 1987 Membership Code is problematic. The membership criteria in the Code are based on provisions of the Indian Act, as they existed following amendments made to the Act in 1985, which provisions have been found not to comply with the Canadian Charter of Rights and Freedoms [Charter] because they perpetuated discrimination (see McIvor v Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 [McIvor] at paras 117, 151; Descheneaux c Canada (Procureur Général), 2015 QCCS 3555 [Descheneaux] at paras 155, 171, 217-218). The crux of the discrimination identified in McIvor and Descheneaux was that the 1985 amendments to the Indian Act perpetuated the advantage of those who gained Indian status through male ancestors, rather than through female ancestors (McIvor at paras 93, 111-112, 122, 154-156; Descheneaux at paras 133-134, 149-155, 167-171). Amendments to the Indian Act subsequent to the enactment of the 1987 Membership Code, enacted in response to McIvor and Descheneaux, have expanded eligibility for Indian status.
[8] Apparently in recognition of these decisions and legislative changes, on June 15, 2016 the CLCFN held a referendum [2016 Referendum] for the purpose of deciding whether to repeal the 1987 Membership Code and replace it with the Canoe Lake Cree First Nation Membership Code [2016 Membership Code]. A ratification report [Ratification Report] indicates the total number of members of the band to be 2356, the total number of eligible electors to be 679, the number of ballots cast and counted to be 216: with 174 voting in favour of ratification and 42 voting against it. The Ratification Report states:
Approval of Law requires a minimum Ratification of 50% plus 1 of the total eligible voters at a duly convened meeting specifically for this purpose.
[9] The validity of the ratification vote was not questioned at that time and it is generally agreed that Ms. Clarabelle Opikokew, the appointed Ratification Officer, as well as Chief and Council and CLCFN members believed that the ratification vote to have passed. Following the 2016 Referendum, some efforts were undertaken to have CLCFN community members apply for membership under the expanded criteria of the 2016 Membership Code.
[10] However, for reasons that are not apparent from the record before me, when the next election was held in December 2016 [2016 Election] it appears that determination of band membership – and therefore the ability to run for office and vote – was governed by the application of the more restrictive 1987 Membership Code.
[11] In the lead up to the 2020 Election, it came to light that that the 1987 Membership Code, and not the 2016 Membership Code, would be used to generate a voter’s list for the 2020 Election. Mr. Craig McCallum sought to run for the office of Chief in the 2020 Election. He is one of the Applicants and filed two affidavits in support of this proceeding. He deposes that on October 28, 2020, in advance of the 2020 Election, he met with Ms. Opikokew (Ms. Opikokew was the Membership Clerk at that time). Ms. Opikokew informed him that the 1987 Membership Code was still being used to determine membership. According to Mr. McCallum, Ms. Opikokew advised him that although the ratification vote held in 2016 had passed, repealing the 1987 Membership Code and enacting the 2016 Membership Code, she had never received direction from Chief and Council to implement the new law, or to apply the 2016 Membership Code. As will be discussed further below, neither party submitted evidence from Ms. Opikokew.
[12] This meant that although the there are approximately 2600 CLCFN registered status Indians, of which approximately 1900 are over the age of 18 and are therefore old enough to vote, by applying the 1987 Membership Code, only about 700 of these people would have their names placed on a voter’s list entitling them to run for office and vote in the 2020 Election. The Applicants (other than Nyden Ironnighttraveller) were among those not included on the prospective voter’s list.
[13] On November 3, 2020, counsel for Mr. McCallum wrote to Chief Francis Iron explaining why Mr. McCallum believed his name should be on the voter’s list and requesting that it be added to that list. No response to that letter was received. Concerned community members then arranged a meeting with Chief and Council to discuss the matter, which meeting was to be held on November 6, 2020. However, at the agreed meeting time Chief and Council were not in chambers. When it was learned that they were at a meeting of Kohkums, Moshoms, and Chapans, a council of elders that gives guidance and direction to Chief and Council [Elders], the community members attended that meeting. The Elders granted them the floor to discuss the issue and Chief Francis Iron also addressed the concern. The Applicants allege that, with the approval of the Elders, Chief Francis Iron committed to implement the 2016 Membership Code and to utilize a new voter’s list generated in accordance with the 2016 Membership Code membership criteria. Conversely, in his affidavit evidence, Chief Iron deposes that he only agreed to review the issue and report back to the community about whether the 2016 Membership Code should be used. That evening, Ms. Opikokew posted on Facebook that the voter’s list had been updated (to reflect the 2016 Membership Code membership criteria). The affidavit evidence of Mr. McCallum that she was subsequently instructed by Chief Francis Iron to remove the post is uncontested, and it was acknowledged by Chief Iron when he was cross-examined on his affidavit that he had instructed Ms. Opikokew to take down the Facebook post so that he could seek legal advice and consult with members.
[14] On November 9, 2020, Ms. Judith Iron, an applicant in this matter, submitted an application to the Meadow Lake Tribal Council [MLTC], copied to others including CLCFN Chief and Council. She set out the background to the situation and stated that the Elders had approved the updating of the voter’s list but that Chief Francis Iron had subsequently instructed Ms. Opikokew to remove her Facebook post advising that an updated voter’s list had been prepared. Ms. Iron sought a review by the MLTC of the decision to utilize the 1987 Membership Code. Ms. Iron deposes that she received no response to her application. Chief Francis Iron’s evidence was that he did not receive the letter.
[15] On November 11, 2020, Chief Francis Iron published a Memo to CLCFN members dated November 11, 2020, stating:
A meeting was held on Friday, November 6, 2020 with the KMC Group and other band members. During this meeting, the eligible voters list was discussed along with a request to expand voting status to band members not currently listed. At this meeting I stated that the list would be reviewed, and the issue will be dealt with accordingly. At no time were promises made to have this list expanded without the proper processes being adhered to. Since the meeting, we have received a primary opinion from a law group regarding the membership code.
[16] Chief Iron cut and pasted into the Memo a communication received from Mr. Dusty T. Ernewein of McKercher LLP responding to telephone calls from Chief Iron. This advises that the amending provision of the 1987 Membership Code states that amendment may occur upon approval of a majority of electors of CLCFN. The Referendum results indicated that there were 679 eligible voters for the Referendum. Accordingly, a majority would be 340 votes in favour of amendment. However, only 216 votes were cast, with 174 in favour of amending. Counsel concluded that “The Referendum vote appears to have failed to satisfy the amending requirements of approval of a majority of electors. As such the 1987 Code would still be law”.
[17] Chief Iron went on to state in the Memo:
Regarding our current membership code, it needs to be brought up to par with thorough consultation and input from all band members. Unfortunately, this issue will have to be rectified after the upcoming election by the elected leaders. I sincerely apologize for any miscommunication or misinformation that may have been received.
[18] The 2020 Election proceeded on the basis of a voter’s list which was generated based on the membership criteria contained in the 1987 Membership Code and which excluded the Applicants and more than a thousand other CLCFN community members. The Electoral Officer’s Report states that there were 722 eligible voters.
Relevant Legislation
Indian Act, RSC 1985 c I-5
2 (1) In this Act,
Band List means a list of persons that is maintained under section 8 by a band or in the Department;
…
member of a band means a person whose name appears on a Band List or who is entitled to have his name appear on a Band List;
…
Band Lists
8 There shall be maintained in accordance with this Act for each band a Band List in which shall be entered the name of every person who is a member of that band.
…
10 (1) A band may assume control of its own membership if it establishes membership rules for itself in writing in accordance with this section and if, after the band has given appropriate notice of its intention to assume control of its own membership, a majority of the electors of the band gives its consent to the band’s control of its own membership.
Membership rules
(2) A band may, pursuant to the consent of a majority of the electors of the band,
(a) after it has given appropriate notice of its intention to do so, establish membership rules for itself; and
(b) provide for a mechanism for reviewing decisions on membership.
Exception relating to consent
(3) Where the council of a band makes a by-law under paragraph 81(1)(p.4) bringing this subsection into effect in respect of the band, the consents required under subsections (1) and (2) shall be given by a majority of the members of the band who are of the full age of eighteen years.
Acquired rights
(4) Membership rules established by a band under this section may not deprive any person who had the right to have his name entered in the Band List for that band, immediately prior to the time the rules were established, of the right to have his name so entered by reason only of a situation that existed or an action that was taken before the rules came into force.
Idem
(5) For greater certainty, subsection (4) applies in respect of a person who was entitled to have his name entered in the Band List under paragraph 11(1)(c) immediately before the band assumed control of the Band List if that person does not subsequently cease to be entitled to have his name entered in the Band List.
Notice to the Minister
(6) Where the conditions set out in subsection (1) have been met with respect to a band, the council of the band shall forthwith give notice to the Minister in writing that the band is assuming control of its own membership and shall provide the Minister with a copy of the membership rules for the band.
Notice to band and copy of Band List
(7) On receipt of a notice from the council of a band under subsection (6), the Minister shall, if the conditions set out in subsection (1) have been complied with, forthwith
(a) give notice to the band that it has control of its own membership; and
(b) direct the Registrar to provide the band with a copy of the Band List maintained in the Department.
Effective date of band’s membership rules
(8) Where a band assumes control of its membership under this section, the membership rules established by the band shall have effect from the day on which notice is given to the Minister under subsection (6), and any additions to or deletions from the Band List of the band by the Registrar on or after that day are of no effect unless they are in accordance with the membership rules established by the band.
Band to maintain Band List
(9) A band shall maintain its own Band List from the date on which a copy of the Band List is received by the band under paragraph (7)(b), and, subject to section 13.2, the Department shall have no further responsibility with respect to that Band List from that date.
First Nations Elections Act, SC 2014 c 5 [FNE Act]
2 The following definitions apply in this Act.
…
elector means a person who is registered on a Band List, as defined in subsection 2(1) of the Indian Act, and
(a) in relation to an election, is 18 years of age or older on the day of the election;
…
Contestation of election
31 An elector of a participating First Nation may, by application to a competent court, contest the election of the chief or a councillor of that First Nation on the ground that a contravention of a provision of this Act or the regulations is likely to have affected the result.
Court may set aside election
35 (1) After hearing the application, the court may, if the ground referred to in section 31 is established, set aside the contested election.
First Nations Elections Regulations, SOR/2015-86 [Regulations]
Provision of information
3 (1) At least 65 days before the day on which an election is to be held
(a) the First Nation must provide the electoral officer with the information set out in subsection (2), if the First Nation holding the election has assumed control of its own membership under section 10 of the Indian Act; and
(b) the Registrar must provide the electoral officer with the information set out in subsection (2), if the Band List of the First Nation holding the election is maintained in the Department under section 11 of the Indian Act.
Compilation of list
(2) The electoral officer must compile a voters list that contains the following information:
(a) the names of all electors, in alphabetical order; and
(b) each elector’s band membership or Register number or, if the elector does not have a band membership or Register number, their date of birth.
Revision of list
(3) The electoral officer must revise the voters list if it is demonstrated that
(a) an elector’s name has been omitted from the list;
(b) an elector’s name is incorrectly set out in the list; or
(c) the name of a person not entitled to vote is included in the list.
Issues
[19] Although the Applicants made lengthy (60 pages) and highly detailed submissions and identified issues and multiple sub issues, in my view, the issues in this proceeding can be appropriately framed and analysed as follows:
Which membership code is in force?
Was there a contravention of the FNE Act or the Regulations that was likely to have affected the outcome of the 2020 Election?
If the 1987 Membership Code remains in force, is it constitutional?
If the 1987 Membership Code is unconstitutional, what is the appropriate remedy?
Evidence
[20] The Applicants’ Record includes the following evidence which has been filed in this proceeding:
Affidavit of Craig McCallum, sworn January 14, 2021
Affidavit of Laura Bird, sworn January 14, 2021
Affidavit of Jessica Iron, sworn January 14, 2021
Affidavit of Nyden Ironnighttraveller, sworn January 29, 201
Affidavit of Lloyd Yew, sworn February 2, 2021
Affidavit of Ronin Iron, sworn January 28, 2021
Affidavit of Judith Iron, sworn March 3, 2021
Supplemental Affidavit of Craig McCallum, sworn March 4, 2021
Affidavit of Lynda Bachiu, sworn March 4, 2021
Affidavit of Wilfred Iron, sworn December 2, 2021
Affidavit of Chief Francis Iron, sworn December 2, 2021
Affidavit of Lisa Iron, sworn December 3, 2021
Transcript of cross-examination of affidavits: Craig McCallum, December 13, 2021
Transcript of cross-examination of affidavit: Laura Bird, December 13, 2021
Transcript of cross-examination of affidavit: Judith Iron, December 13, 2021
Transcript of cross-examination of affidavit: Jessica Iron, December 13, 2021
Transcript of cross-examination of affidavit: Nyden Ironnighttraveller, December 13, 2021
Transcript of cross-examination of affidavit: Lloyd Yew, December 14, 2021
Transcript of cross-examination of affidavit: Wilfred Iron, January 31, 2022
Transcript of cross-examination of affidavits: Chief Francis Iron, January 31, 2022
Transcript of cross-examination of affidavit: Lisa Iron, January 31, 2022
[21] The Respondent’s Record contains:
Supplementary Affidavit of Councillor Wilfred Iron, sworn March 25, 2022.
[22] Chief Francis Iron has also caused a certified tribunal record [CTR] to be filed.
[23] While I have reviewed and considered all of this evidence, for purposes of these reasons, it is not necessary to mention or refer to each individual item. In my analysis, I have referenced the most pertinent evidence in the context of the issue being addressed.
Preliminary Matter
[24] Although in their written submissions the Applicants devoted considerable attention to an anticipated prematurity argument, they advised when appearing before me that this was no longer a live issue. Accordingly, it is not addressed in these reasons.
Issue 1: Which membership code is in force?
[25] In their Notice of Application, the Applicants state that this is an application for judicial review in respect of the CLCFN decision to unconstitutionally and unlawfully deny the Applicants’ band membership, and its attendant rights and privileges, including by failing to implement the 2016 Membership Code. In their written submissions, the Applicants more specifically describe the judicial review aspect of this matter as pertaining to the unilateral decision of CLCFN Chief and Council not to follow the 2016 Membership Code.
[26] The Applicants’ written submissions do not address the applicable standard of review and they do not frame the challenged decision of Chief and Council with respect to the ratification and application of the 2016 Membership Code in terms of a reasonableness or correctness analysis. In my view, the decision of Chief and Council regarding the interpretation of the 1987 Membership Code and, based on this, that the 2016 Membership Code had not been properly ratified and therefore did not govern the 2020 Election, is to be assessed on the reasonableness standard.
[27] When a court reviews the merits of an administrative decision, the presumptive standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 23, 25). This is inclusive of matters of statutory interpretation (Vavilov at para 115- 121). On judicial review, the reviewing court asks whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision (Vavilov at para 99).
Applicants’ position
[28] The Applicants submit that Ms. Opikokew was appointed as the Ratification Officer with respect to the 2016 Referendum. As such, she was legally empowered to determine the result and she determined that the vote had properly passed. The Applicants submit that the fact that a ratification vote to repeal and replace the 1987 Membership Code with the 2016 Membership Code was held “and that the person lawfully empowered to determine the result determined that the vote passed, is conclusive of the issue” and that the Respondents were obliged to comply with the law.
[29] Based on this view, the Applicants submit that the Respondents seek to collaterally attack the 2016 Referendum ratification vote by alleging that Ms. Opikokew, as the Ratification Officer, erred in concluding that the vote passed and that it is an abuse of process for the Respondents to now challenge the 2016 Referendum ratification vote in this proceeding.
[30] Alternatively, that s 2 of the 1987 Membership Code is ambiguous and, therefore, this Court can rely on the CLCFN’s common understanding and custom to determine its meaning. The broad consensus after the 2016 Referendum ratification vote was held was that the 1987 Membership Code required only a simple majority to amend or repeal that Code, that is, if more than 50% of the ballots cast were in favour of that measure. The Applicants submit that although similar ambiguous language in other statutes has been interpreted differently by other courts, in the context of the CLCFN, the community understood the phrase to mean a simple majority. That is the proper interpretation that should be applied by this Court, not the Respondents’ more recent interpretation based on the opinion of external legal counsel that a double majority was required in order to pass.
Respondents’ position
[31] The Respondents submit that s 2 of the 1987 Membership Code requires that a “majority of the electors” to vote to amend or repeal the Code. As fewer than 50% of the electors voted in the 2016 Referendum, the vote did not pass. The Respondents point to case law interpreting the phrase “the majority of the electors” as requiring a double majority. That is, requiring a majority of eligible voters to vote, and a majority of those who do vote, to vote in favour of the proposition at issue. The Respondents also submit that the Ratification Report does not state whether the vote passed and there is no evidence that the Ratification Officer made that determination. And, as the list of eligible voters was not updated to reflect the 2016 Membership Code during the 2016 Election, it was clearly understood that the 2016 Referendum had not passed.
Analysis
[32] The core of the dispute between the parties is whether the 2016 Referendum ratification vote served to validly repeal the 1987 Membership Code and replace it with the 2016 Membership Code. This issue is dispositive because if the 2016 Membership Code was in force prior to the 2020 Election, then CLCFN was obliged to assess membership – and therefore eligibility to vote and run for office – pursuant to that Code. In that event, the decision to utilize the 1987 Membership Code with respect to the 2020 Election would be unreasonable and a reviewable error.
i. Interpretation of the 1987 Membership Code
[33] As the Applicants acknowledge, provisions in the Indian Act containing wording similar to s 2 of the 1987 Membership Code have been interpreted to require a double majority to determine the electors’ assent.
[34] In Cardinal et al v The Queen, [1982] 1 SCR 508 [Cardinal], the Supreme Court held that the phrase “assented to by a majority… of the band… at a meeting… thereof summoned for that purpose…” contained in then s 49 of the Indian Act must be interpreted as meaning that the assent must be given by a “majority of a majority of eligible band members in attendance” (at para 15).
[35] In Abenakis of Odanak v Canada (Indian Affairs and Northern Development), 2008 FCA 126 [Odanak], the Federal Court of Appeal cited and adopted the Supreme Court’s interpretation in Cardinal, holding that s 10(1) of the Indian Act which refers to “a majority of the electors of the band” required “a majority of the majority” to vote in favour of taking control of the band’s membership (at para 47). The Federal Court of Appeal stated its reasoning as follows:
[41] The expression “a majority of the electors of the band” is used in subsections 2(3), 10(1) and (2), sections 13.1 and 13.2 and subsections 39(1) and (2) of the Act. Elsewhere, in sections 74, 85.1 and 120 of the Act, specific terms concerning voting rights are associated with the words “majority of the votes of the electors of the band” or “majority vote of those electors of the band”.
[42] There is no mistake in interpreting the words “majority of the electors” in section 10 of the Act according to the interpretation given by the Supreme Court of Canada in Enoch Band of Stony Plain Indian Reserve No. 135 v. Canada, 1982 CanLII 173 (SCC), [1982] 1 S.C.R. 508. That case concerned the interpretation to be given to the words “majority … of the band … at a meeting … summoned for that purpose” in section 49 of the Indian Act, R.S.C. 1906, c. 81, which dealt with the surrender of all or part of the reserve’s lands. Estey J., writing on behalf of the Supreme Court of Canada, stated the following (paragraph 13 of the reasons):
13 It may be helpful to analogize the first requirement of the majority to that of a prescription of quorum and it may be helpful to refer to the second requirement that the assent be given at a meeting as simply a prescribed mechanical method of determining the will of the meeting on the issue of assent. In adverting to the common law principle, supra, I had in mind The Mayor, Constables, and Company of Merchants of the Staple of England v. The Governor and Company of the Bank of England (1887), 21 Q.B.D. 160 at p. 165 where it was stated by Wills J. in reference to the acts of a corporation being those of the major part of the corporators corporately assembled:
This means that, in the absence of special custom, the major part must be present at the meeting, and that of that major part there must be a majority in favour of the act or resolution.
In more recent times and to the same effect, see: Gillanders J.A., in Glass Bottle Blowers’ Association of the United States and Canada v. Dominion Glass Company Limited, [1943] O.W.N. 652 (Labour Court); and Itter v. Howe (1896), 23 O.A.R. 256. To require otherwise, that is to say more than a mere majority of the prescribed quorum of eligible band members present to assent to the proposition, would put an undue power in the hands of those members who, while eligible, do not trouble themselves to attend, or if in attendance, to vote; or as it was put by Gillanders J.A. in Glass Bottle Blowers’, supra, at p. 656, it would “give undue effect to the indifference of a small minority”.
[43] In this case, the first majority of electors constitutes the quorum. The decision must then be made by the majority of those who attend the meeting. Otherwise, this would amount to giving the indifference of those who did not attend a significance that it should not have.
…
[46] It is interesting to note that, with the enactment of subsections 39(2) and (3) of the Act, in the case of an absolute surrender or a designation of lands, Parliament added to the majority-of-the-majority vote the possibility of holding a second round of voting which takes into consideration the more flexible rule of “a majority of the electors who did vote” (subsection 39(2)) or “a majority of the electors voting” (subsection 39(3)).
[36] Section 1 of the 1987 Membership Code explicitly adopts the definitions used in the Indian Act. Further, s 2 of the 1987 Membership Code provides that the code “may be amended or repealed by a majority of the electors”. This wording mirrors the language in s 10 of the Indian Act, which requires that “a majority of the electors of the band gives its consent” to taking control of the membership. Indeed, the remainder of the 1987 Membership Code also directly adopts other provisions of the Indian Act.
[37] I can see no basis to depart from the binding authority of Cardinal and Odanak in interpreting s 2 of the 1987 Membership Code. Accordingly, the approval of the “majority of the electors” requires approval by a “majority of a majority” of the electors.
[38] The result of this finding is that, regardless of what may have been believed by the Ratification Officer, Chief and Council and members of the CLCFN, in the absence of a double majority there was no authority by which the 1987 Membership Code could have been amended or repealed. Accordingly, subject to any CLCFN custom that would serve to vary s 2 of the 1987 Membership Code – which is discussed below – it remains in effect. Chief and Council did not err in their determination in that regard.
ii. Collateral attack
[39] The evidence establishes that it was, at least initially, generally believed by the CLCFN community members that the 2016 Referendum ratification vote had validly passed. This is demonstrated by:
- A video of the counting of the 2016 Referendum ratification votes which makes it very clear that all involved in that process were of the view that 108 votes (presumably plus 1) were needed of 216 cast in order for the 2016 Referendum to succeed. And, having received 176 votes, that the 2016 Referendum had passed. Ms. Opikokew, as the Ratification Officer, was counting the ballots and Chief Francis Iron was in attendance;
- On June 30, 2016, Chief Francis Iron gave an interview to the Northern Pride newspaper in which he described the successful 2016 Referendum as a big accomplishment and that it had been one of his goals when he assumed office to make sure something like it passed. He added that the extension of rights would allow band members to feel truly part of the community, which they did not before as they were not allowed to vote or to be included for housing and funding. The article states “In order for the vote to pass, 50 percent plus one was needed. In total, 216 people voted and 174 chose to expand rights”. The article goes on to report that the same vote on Flying Dust First Nation held on June 20 failed to yield the same results. The article states that under the Indigenous and Northern Affairs rules which Flying Dust followed – but Canoe Lake did not – 50 percent of the band membership plus one needed to vote, but not enough people from Flying Dust first Nation had cast a ballot. When cross-examined on his affidavit, Chief Francis Iron confirmed that the information in the news article came from him. He also confirmed that Ms. Opikokew had determined that the 2016 ratification vote had passed, but disputed that she made a determination that the 1987 Membership Code had been repealed. Chief Iron also confirmed that everyone was under the impression that the 2016 Referendum had passed;
- After the 2016 Referendum, efforts were made to have community members apply for band membership. The affidavit of Mr. Lloyd Yew deposes that about two years ago (his affidavit being sworn on February 2, 2021) he attended a meeting in Ile-a-la-Crosse called by Joseph (Butch) Iron who was addressing about 20 people. Mr. Iron advised those in attendance that they did not need to apply for status through the Government of Canada but instead could just sign a form to immediately become a member of the CLCFN. Mr. Yew states Mr. Iron attended Ile-a-la-Crosse for this purpose about four times. He attaches as an exhibit to his affidavit the application form, signed by Mr. Iron, which is entitled:
APPLICATION TO BECOME A CANOE LAKE CREE NATION MEMBER
“Nehiyiw Opahsihk Kakikih Akisowin”
MEMBERSHIP CODE RATIFIED JUNE 15, 2016
PURSUANT TO SECTION (2) OF THE CODE
- When cross-examined on his affidavit, Chief Francis Iron confirmed that after the 2016 Referendum “foot workers” or people who were “pretty well contractors” (as opposed to members of a membership committee) worked on the application form document and were tasked with getting it out to CLCFN community members. When asked if these people went out to various communities to sign people up for CLCFN’s membership list in accordance with the 2016 Membership Code, he agreed and confirmed that the form attached to Lloyd Yew’s affidavit was the form taken to community meetings for people to sign.
[40] Based on this evidence, I am satisfied that, at least initially, Chief Francis Iron and the other CLCFN community members believed that the 2016 Referendum had passed and that the 2016 Membership Code was in effect.
[41] This leads to the Applicants’ arguments on collateral attack. As I understand the submission, their view is that the Ratification Officer, Ms. Opikokew, had the legal authority to determine whether or not the 2016 ratification vote had passed. She, like everyone else, believed that only a simple majority was needed to repeal and replace the 1987 Membership Code and she made a determination that the 2016 ratification vote had properly passed. The Applicants assert that when questions arose about who was eligible to vote or run for office in the 2020 Election, the Respondents did not challenge the decision of the Ratification Officer. Instead, based on the opinion received from external legal counsel that a double majority was required in order for the 2016 Referendum to pass, Chief Francis Iron unilaterally decided the outcome of the 2016 Referendum and, accordingly, that Chief Iron and the CLCFN did not have to follow the Ratification Officer’s prior, legally made, decision. The Applicants state that now, in “separate proceedings”, the Respondents seek to attack the 2016 ratification vote “not by directly appealing or judicially reviewing the result, but indirectly by claiming that they do not have to follow a lawfully made decision because they believe that the decision was wrongly made”.
[42] The Applicants rely on R v Wilson [1983] 2 SCR 594 in support of this position. There a trial judge in provincial court had held that interception of private communications of the appellant had not been lawfully made. On appeal to the Manitoba Court of Appeal, the Crown argued that the provincial court judge was without jurisdiction to go behind the interception authorizations and thereby made a collateral attack upon the order of a superior court. The Court of Appeal agreed and held that an authorization granted by a superior court of record cannot be collaterally attacked in any court. The Supreme Court of Canada, when the matter came before it, held at page 600:
7 In the Manitoba Court of Appeal, Monnin J.A. said:
The record of a superior court is to be treated as absolute verity so long as it stands unreversed.
8 I agree with that statement. It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally—and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment. Where appeals have been exhausted and other means of direct attack upon a judgment or order, such as proceedings by prerogative writs or proceedings for judicial review, have been unavailing, the only recourse open to one who seeks to set aside a court order is an action for review in the High Court where grounds for such a proceeding exist. Without attempting a complete list, such grounds would include fraud or the discovery of new evidence.
…..
16 The cases cited above and the authorities referred to therein confirm the well-established and fundamentally important rule, relied on in the case at bar in the Manitoba Court of Appeal, that an order of a court which has not been set aside or varied on appeal may not be collaterally attacked and must receive full effect according to its terms.
[43] I do no