Source text

Da'naxda'xw First Nation v. Peters
Court (s) Database
Federal Court Decisions
Date
2021-04-23
Neutral citation
2021 FC 360
File numbers
T-1282-19, T-1725-19
Decision Content
Date: 20210423
Dockets: T-1282-19
T-1725-19
Citation: 2021 FC 360
Ottawa, Ontario, April 23, 2021
PRESENT: The Honourable Madam Justice Strickland
Docket: T-1282-19
BETWEEN:
WILLIAM GORDON GLENDALE IN HIS CAPACITY AS CHIEF OF BAND COUNCIL OF THE DA'NAXDA'XW FIRST NATION AND AS A MEMBER OF THE HEREDITARY CHIEFS COUNCIL AND MICHAEL JACOBSON-WESTON AND ANNIE GLENDALE IN THEIR CAPACITY AS COUNCILLORS OF THE DA'NAXDA'XW FIRST NATION
Applicants
and
BILL PETERS, NORMAN GLENDALE AND ROBERT DUNCAN
Respondents
Docket: T-1725-19
AND BETWEEN:
BILL PETERS AND ROBERT DUNCAN, IN THEIR CAPACITY AS MEMBERS OF THE HEREDITARY CHIEFS COUNCIL OF DA’NAXDA’XW FIRST NATION
Applicants
and
WILLIAM GORDON GLENDALE, MICHAEL JACOBSON-WESTON, AND ANNIE GLENDALE
Respondents
JUDGMENT AND REASONS
[1] Before me are two related applications for judicial review. The applications are both concerned with the question of which entity or persons have the legal authority to govern the Da’naxda’xw First Nation [DFN] and are brought pursuant to s 18 and s 18.2 of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act]. The applications involve the same parties and concern many of the same issues. Accordingly, pursuant to the Order of the Case Management Judge dated December 20, 2019, they were set down to be heard together. The applications were argued before me over three days.
T-1282-19
[2] The Applicants in T-1282-19 are William Gordon Glendale [Gordon Glendale], in his capacity as Chief of DFN Band Council and as a member of the Hereditary Chiefs Council [HCC], Michael Jacobson-Weston and Anne Glendale in their capacity as Councillors of DFN Band Council [together, the Glendale Band Council]. They claim to have the legal authority to govern the DFN. They seek judicial review of the purported authority of the Respondents, Bill Peters, Norman Glendale and Robert Duncan [Peters & Duncan], to hold meetings and make decisions, including band council resolutions, on behalf of DFN, and the authority of Peters & Duncan to remove Gordon Glendale as a member of the HCC. The Glendale Band Council seeks the following relief as set out in their Notice of Application:
1. An order in the nature of quo warranto declaring Chief Gordon Glendale and Councillors Michael Jacobson-Weston and Annie Glendale the Band Council of DFN;
2. And on that basis,
(a) a declaration that the Respondents, Bill Peters, Norman Glendale, and Robert Duncan, lack lawful authority to act as the governing body of the Band;
(b) a declaration that the HCC, however constituted, does not have lawful authority to act as the governing body of the Band;
(c) an order in the nature of certiorari quashing any and all decisions made by the Respondents while purporting to be the lawful governing body of the Da'naxda'xw First Nation;
3. Further an order in the nature of quo warranto in respect to the lawful composition of the HCC, declaring that William (Gordon) Glendale is a required member;
4. And on that basis, an order in the nature of certiorari quashing
(a) the decision to remove Chief Gordon Glendale as member of the HCC; and,
(b) any and all decisions made by the HCC following the removal of Chief Gordon Glendale.
5. Leave of the Court, pursuant to Rule 302 of the Federal Court Rules, for the following order:
(a) Pursuant to Section 18.2 of the Federal Courts Act, an interim order pending the final disposition of this Application in the nature of an Injunction, enforceable by the RCMP, prohibiting the Respondents from exercising any powers on behalf of the Da'naxda'xw First Nation, and authorizing the Applicants to resume governance of the Nation on the terms established by order of this court, dated May 26, 2017;
6. An order for costs of and incidental to this application; and
7. Such further and other relief as this Honourable Court may deem appropriate and just.
T-1725-19
[3] After the Glendale Band Council filed the above application for judicial review, Bill Peters and Robert Duncan, in their capacity as members of the HCC, brought an application for judicial review in matter T-1725-19, naming William Gordon Glendale, Michael Jacobson-Weston and Annie Glendale as the Respondents. In their Notice of Application, Peters & Duncan seek the following relief:
1. An order in the nature of quo warranto declaring that:
(a) the Former Band Council of the Da'naxda'xw First Nation ("DFN"), composed of the Respondents, or any of them, lacks lawful authority to act as the governing body of the Da'naxda'xw First Nation; and
(b) the Da'naxda'xw First Nation Hereditary Chiefs Council ("Chiefs Council"), however constituted, is the lawful governing body of the Da'naxda'xw First Nation;
2. An order in the nature of certiorari quashing any and all decisions and Band Council Resolutions made by the Former Band Council after August 1, 2017;
3. Leave of the Court, pursuant to Rules 105 and 302 of the Federal Courts Rules, for an order that this proceeding be consolidated or heard together with Federal Court File No.T-1282-19;
4. Leave of the Court, pursuant to Rule 302 of the Federal Courts Rules and pursuant to section 18.2 of the Federal Courts Act, for the following interim orders pending the final disposition of this Application:
a) An interlocutory injunction prohibiting the Former Band Council or anyone taking instruction from them or anyone supporting them or anyone having knowledge of this injunctive order from in any way, directly or indirectly:
i. the Former Band Council to be the band council of the DFN until such time as this Honourable Court decides the issue raised in this proceeding;
ii. exercising the authority of the band council or carrying on the business of the band council until such time as this Honorable Court decides the issues raised in this proceeding;
iii. unlawfully interfering with the band council's exercise of its lawful authority or its ability to carry out the business and affairs of the DFN until such time as this Honorable Court decides the issues raised in this proceeding;
b) An order authorizing the Chiefs Council to fulfill its lawful governmental duties and responsibilities to the DFN until such time as this Honorable Court decides the issues raised in this proceeding.
c) An order requiring the Former Band Council to fully disclose any and all decisions, resolutions or other purported exercises of the authority of the band council that the Former Band Council has made, resolved or exercised since July 5, 2019 and to produce any and all documentation in respect thereof to the Chiefs Counsel within 7 days of the date of this order.
d) An order requiring the Former Band Council to fully account for any and all funds and/or benefits and/or monies received by or on behalf of the Former Band Council in respect of the DFN or paid out or disbursed or transferred by the Former Band Council since July 5, 2019 within 7 days of the date of this order.
e) An order requiring the Former Band Council to immediately transfer any and all funds or other consideration received for the benefit of the DFN to the DFN.
f) An order requiring the Former Band Council to fully disclose and transfer any and all documentation in their possession, power or control with respect to the governance of the DFN to the Chiefs Counsel within 7 days of the date of this order.
5. Costs of this motion on a solicitor-client basis payable forthwith; and
6. Such further orders as the Court may determine are just in the circumstances.
[4] These applications have lengthy procedural histories. This includes a motion by Peters & Duncan to remove the law firm of JFK Law as solicitor for the Glendale Band Council, which was dismissed by Prothonotary Ring by an Order dated October 30, 2019. On February 6, 2020 Justice Favel upheld the Prothonotary’s ruling on appeal by Peters & Duncan (2020 FC 208). By Order dated December 6, 2019 Justice Favel dismissed the injunction motions brought, respectively, by the Glendale Band Council and by Peters & Duncan (2019 FC 1568).
[5] Further, in early 2020, the Glendale Band Council brought a motion seeking rulings relating to the cross-examination of Gordon Glendale and Molly Dawson. The Glendale Band Council sought to affirm counsel’s objections to questions asked of Mr. Glendale and Ms. Dawson during cross-examination on their respective affidavits and requiring that Robert Duncan answer certain questions objected to on his cross-examination. They also brought a motion to strike out the affidavit of Bill Peters sworn on October 24, 2019. By Order dated February 16, 2021, Prothonotary Ring made determinations relating to the objections on cross-examinations, and adjourned, on the parties’ consent, the motion to strike until the hearing of the application in T-1282-19. That motion is dealt with below as a preliminary matter.
[6] The parties have also filed more than twenty-five affidavits in support of their respective applications, some affiants swearing multiple affidavits. They have conducted cross-examinations of some affiants and the joint record of evidence contains eight transcripts of cross-examinations. The parties’ respective written memorandums of fact and law, and oral arguments made before me, address the evidence in considerable detail, closely parsing wording and making many submissions as to the interpretation, application and inferences that should be drawn from it. Although I have read and considered all of the evidence and the submissions of the parties, my reasons that follow will not recite each and every piece of evidence referred to by the parties or every submission raised in support of their respective submissions. I will be addressing only the submissions and evidence that is, in my view, most relevant to resolving the issues in the judicial reviews before me.
Background
[7] The DFN is a band within the meaning of the Indian Act, RSC 1985, c I-5 [Indian Act]. The DFN is a small First Nations community of about 226 members. Only about 19 members live in what is known as the “Village” which is situated on a reserve within the DFN’s traditional territory near Alert Bay, Vancouver Island. About 200 members live off the reserve. The DFN community is made up of Namimas, or clans, each led by a family head. Some of the family heads are also recognized by the DFN as hereditary chiefs. The main families include the Glendales, Duncans, Jacobsons, Gillespies (Peters), and Nolies.
[8] From around 1954, the DFN’s band council was selected pursuant to the electoral scheme in s.74 of the Indian Act. However, somewhere between 1972 and 1987, the DFN adopted a governance structure based on their unwritten custom. Since 1987, DFN has been governed by a band council of one hereditary chief and two councillors. It is undisputed that the DFN has never had a written governance or election code. The record before me includes a band council resolution dated August 24, 1987 that was prepared to advise what is now Indigenous Services Canada [ISC] of a custom election held in 1987:
THAT the [Da’naxda’xw] go back to the ancient custom of having a hereditary Chief. So we thereby appoint William M. Glendale, band #44, to take his rightful place as the hereditary chief of the [Da’naxda’xw] tribe. This custom shall pass from generation to generation until such time as the tribe wishes to change it back. The tribe shall have two councillors who will remain the same two people until such time as the chief and tribe wishes to change them.
[9] At the 1987 meeting, William McKenzie Glendale was appointed Chief, and Anne Glendale and Fred Glendale were selected as Councillors. William McKenzie Glendale was Gordon Glendale’s father, Anne Glendale is his mother, and Fred Glendale was William and Anne’s son.
[10] There is no evidence that Anne Glendale’s role as Councillor was ever subsequently challenged by way of an election for that office.
[11] After Fred Glendale’s death in 2013, an election was held and Michael Jacobson-Weston was elected as Councillor. In April 2016, Councillor Jacobson-Weston’s wife became seriously ill and he “stepped back” from his duties as a Councillor.
[12] Also in 2013, William McKenzie Glendale named his son, Gordon Glendale, as heir to the Glendale family’s hereditary Chieftainship. When Chief William McKenzie Glendale died in 2016, Gordon Glendale assumed the role of Chief of the Glendale Band Council. Gordon Glendale’s evidence is that he attended, and was received at, a number of potlatches to recognize him as Hereditary Chief of the DFN and that he was recognized as such at community meetings. The record before me includes a band council resolution dated May 31, 2016, signed by Gordon and Anne Glendale, that states:
The Danaxda’xw First Nation follows the Hereditary Leadership system, the heir to Hereditary Chief William Mackenzie Glendale’s chieftainship is William Gordon Glendale. William Gordon Glendale will take on the responsibilities of Hereditary Chief of the Da’naxda’xw Nation until such time that the membership wish to change the Leadership system.
[13] It appears that during the more than 30 years that the Glendale Band Council governed, some DFN members expressed discontent intermittently with the Hereditary Chief and Councillors governance model.
[14] The discontent came to a head on or around November 6, 2016 when two DFN members, Nicole Hajash and Lou-Ann Neel, filed an application for judicial review (Federal Court file T-1908-16), naming the Glendale Band Council as respondents, challenging the legality and authority of the Glendale Band Council and seeking an elected chief and council [2016 Judicial Review].
[15] On November 12, 2016, a meeting of Chief Gordon Glendale and four family heads was held and the attendees agreed that the Glendale Band Council would convene a membership meeting on January 21, 2017 to canvas DFN members about their preferred form of governance.
[16] The Glendale Band Council, through DFN’s Communication Officer, sent an initial Notice of Meeting informing DFN members of an all members meeting to be held on January 21, 2017. A second notice was sent on January 18, 2017, giving notice of the upcoming governance review and leadership options [Governance Review]. As this document is significant to the issues before me, I reproduce it here in full:
ALL MEMBERS MEETING NOTICE
The Da'naxda'xw/Awaetlala Nation Leadership are currently reviewing the leadership structure and would like to gather input from the membership.
The following information is intended to provide you with some background about our current governance system, why it's being reviewed, other governance options, and how to have your voice or input included.
1.What is Da'naxda'xw/Awaetlala Nation's Current Leadership Structure?
Throughout our history, our Nation was led by hereditary chiefs who occupied the top rank of our social system. Hereditary chiefs carry the responsibility of leading and governing our people, and ensuring our traditions and protocols are respected. Under our strict cultural laws, the title of hereditary chief is passed down to the chief's eldest son during a potlach.
Our traditional governance structure was interrupted under Canada's early colonial policy that imposed the Indian Act elected Chief and Council system. However, by a membership vote in the early l 970s, our Nation returned to its hereditary system. Since then our Nation has been led by a band council comprised of a hereditary chief (formerly Chief William Glendale, now his eldest son, William Gordon Glendale) and two elected councillors (currently Anne Glendale and recently elected Michael Jacobson Weston).
2. Why is the current leadership structure being reviewed?
Our current Custom Code states that our hereditary Chief and two elected Councillors will form our leadership, until the members decide to change this. Recently some concerns have been raised about whether or not the Nation should replace its hereditary leadership with an elected chief. The current leadership decided to seek community input on the system to ensure the voices of the members were heard, and to ensure continued community acceptance over our leadership selection process.
3. What is the process for the review?
Community Meeting will be Held
· A community meeting is being held on January 21 in Campbell River at the Coast Discovery Inn at 2:00-6:00.
The purpose of the meeting is to discuss our leadership system and decide on our form of leadership. Please note, if members require more time to consider and discuss the matter, we will schooled a further meeting before deciding.
Facilitator
· The meeting will be facilitated by a third party neutral facilitator, Richard Dawson. Mr. Dawson from Namgis First Nation and is well respected for his work in First Nations governance matters.
Options: Forms of Leadership
· Three forms of leadership systems will be discussed: the current custom code with a hereditary chief and two elected councillors; current custom code with hereditary chief supported by family leadership council; and elected chief and two elected councillors.
Meeting Agenda
· The facilitator will describe the leadership structure options.
· Members will have an opportunity to voice their opinions about which form of leadership will best meet the needs of the community.
· The question of leadership structure will be asked and members present will have final opportunity to have their choice recorded.
Decision Making Procedure
· All on and off reserve registered band members who are 18 or older.
· Qualifying members are required to provide their full name, status registration number and date of birth.
· At the end of the meeting, a show of hands will be held to record the input of the community regarding the current form of leadership.
· Qualifying members are also permitted to provide a written submission. Please provide your submission by January 27.
· Written submissions should be delivered to the band office at:
P.O. Box 330 Alert Bay, BC VON lA0
Email to: [email protected] or [email protected]
Fax to: 250-974-2706.
Form of Leadership Determined by Majority of Membership
· The leadership structure will be determined by the majority of the membership in favour of one of the proposed structures.
· For the decision to be valid at least 1/3 of qualifying community members must participate. If that number is not achieved, the decision will be sought at a rescheduled meeting.
Post Decision
· The current leadership agrees to be bound by the wishes of the community and will facilitate any necessary leadership change should the wishes of the community be different from the current form of leadership, including working with the community to prepare a written leadership selection code that reflects the wishes of the community.
· After broad community consensus on the preferred structure is achieved, a community meeting will be held to discuss any transition or process matters.
4.What will the members be asked?
1. What form of leadership do you prefer?
a. Hereditary Chief and two elected Councillors
b. Hereditary Chief supported by Family Leadership Council
c. Elected Chief and Councillors
d. I would like the Nation to engage in a longer process to discuss the different options.
[17] Approximately 41 DFN members returned the attached Membership Submission Form at the meeting and it was decided to extend the period for participation in the Governance Review to February 27, 2017. Ultimately, the Governance Review notice and Member Submission Form was provided to 114 (of 150) voting members and 82 responses were received, which is generally accepted as high membership participation. The review results clearly favoured option b, Hereditary Chiefs supported by Family Leadership Council (option a received 0 votes; option b received 65 votes; option c received 14 votes; option d received 3 votes). I note in passing that all parties agree that option b, in the above Governance Review, should have read “Hereditary Chiefs supported by Family Leadership Council”.
[18] A “Community Notice - Results of the Community Input on our Nation’s Leadership Structure”, was published on March 22, 2017 [Governance Review Results]. It reports the above results and, in its Next Steps section indicates that the outcome of the leadership structure review process was that the majority of DFN’s voting members wished to see a change in governance structure to a Hereditary Chiefs supported by a Family Leadership Council. As a result, the Glendale Band Council asked that all family heads contact Trish Nolie, Molly Dawson or the band office to schedule a meeting to discuss how DFN would engage the community in deciding how to implement this new leadership structure. The notice anticipated that shortly after the initial meeting, a community meeting would be held to invite input on how to transition into the new structure and to develop a code for governance.
[19] On May 25, 2017, a dispute resolution conference, or mediation, was conducted in relation to the 2016 Judicial Review. The mediation was attended by the parties, their counsel as well as invited community members and family heads, including Norman Glendale, Billy Peters, Ruby Manilla, Robert Duncan, Molly Dawson, Nick Chowdhury and others. The result was a consent order issued by (now) Justice Lafrenière [Lafrenière Order] with a Joint Statement attached as Schedule A. A complete copy of the Lafrenière Order is attached as Annex A of these reasons. The Order reads in part:
THIS COURT ORDERS that:
1. The Hereditary Chiefs who are willing and available, consisting of William (Gordon) Glendale, Robert Duncan, Norman Glendale, and Giyaka (Billy Peters) (the ‘Hereditary Chiefs’) shall form a Council for the purpose of developing a governance code for the Da’naxda’xw First Nation to be presented to the membership for their approval (the Hereditary Chiefs Council). Ruby Mannila may be present to assist Giyaka but any input shall be provided by Giyaka.
2. Prothonotary Roger R. Lafrenière shall assume the role of lead facilitator to convene a meeting as soon as practicable of the Hereditary Chiefs Council to reach an agreement on a budget and community engagement process, leading to the formulation of a governance code.
3. The Hereditary Chiefs Council may, at their discretion, include additional persons as members of the Hereditary Chiefs Council.
4. Reasonable Band funds will be made available to the Hereditary Chiefs Council, including for research, legal support, and governance experts to engage in the process of formulating and presenting the governance code to the community.
5. The Hereditary Chiefs Council shall, unless agreed to by the Hereditary Chiefs Council or otherwise ordered by the Court, present the proposed governance code to the community for approval by December 1, 2017.
6. Gordon Glendale and the Councillors of the Da’naxda’xw First Nation shall take no decisions and make no expenditures that would be outside of the ordinary day-to-day administration of the Band, including long-term agreements, pending either a resolution or the hearing of the application.
7. The hearing of this matter is adjourned to a date certain in April 2018, unless the Court orders otherwise.
…..
13. Upon the conclusion of the referendum on the Da’naxda’xw First Nation governance code, the Applicants shall discontinue the application.
Schedule "A" to the Order of Prothonotary Lafreniére dated May 26, 2017 in Court File No. T-1908-16
Joint Statement by the Parties to the Da'naxda'xw First Nation Governance Lawsuit
We write with respect to an update on the lawsuit filed in December 2016 challenging the current system of governance of our Nation. The parties have recently met to discuss ways the governance issues raised in the lawsuit might be resolved.
At this meeting, we agreed upon many foundational principles. We have agreed we are stronger working together than being divided. We have agreed that the community must decide how they wish to be governed, not any one person or the current Council. We have agreed that any process for community engagement on issues relating to governance be thorough and transparent, and give the community the time and information it needs to give informed input.
The parties have agreed that the next step in the process is for the Hereditary Chiefs Council, in collaboration with the families and community to develop a governance proposal for the community to consider. The mandate of the Hereditary Chiefs Council will be to work towards achieving community consensus and support for any proposed governance model culminating in a referendum on a Da'naxda'xw Code of Governance.
The parties agree that leadership from the Hereditary Chiefs Council on this issue reflects our customs, traditions, and culture and provides the best opportunity for voices from all families to be heard.
[20] There is little agreement on the facts after this point, other than that a governance code has never been developed and presented to the DFN membership.
[21] In October 2017 the Hereditary Chiefs Council, or HCC, as established by the Lafrenière Order, began to meet to discuss the development of a governance code.
[22] At HCC meetings held throughout 2018, funding for the code, proposals for a consultant and other DFN matters were discussed. The scheduled community meeting was postponed. The Glendale Band Council asserts that, since the timeline for completing the governance code was extended, beginning in the fall of 2018 Chief Glendale began permitting the other hereditary chiefs to share in a few governance decisions. While such participation was consistent with the traditional role of hereditary chiefs, the control and operation of the DFN remained with the Glendale Band Council, which remained the DFN’s governing body.
[23] Conversely, Peters & Duncan assert that beginning around August 2017 the Glendale Band Council ceased acting a band council and the HCC began to govern the DFN. They assert that Gordon Glendale supported and participated in this transition and that a band council resolution signed by Gordon Glendale confirms the HCC as the governing body of DFN. Further, that Anne Glendale and Michael Jacobson-Weston resigned as councillors in favour of governance by the HCC.
[24] On July 5, 2019, Robert Duncan, Billy Peters and Norman Glendale signed a band council resolution suspending Gordon Glendale from the HCC until further notice. Gordon Glendale’s suspension was premised on information provided by the interim band administrator, Ruby Mannila. She alleged that after assuming that role on May 22, 2019, she found evidence of financial irregularities involving Gordon Glendale, members of his family, and DFN monies.
[25] The Glendale Band Council describe Robert Duncan, Billy Peters and Norman Glendale’s decision to suspend Gordon Glendale as usurping the lawful government of the DFN and effecting a coup. They say that the suspension was made without regard to DFN customs, without notice to Gordon Glendale, without specifying the allegations and without giving Gordon Glendale an opportunity to respond to the allegations. Further, that the HCC members have no authority to suspend Gordon Glendale from the HCC or his position as Chief. They assert that the allegations against Gordon Glendale are merely a pretext for the unlawful seizure of power as demonstrated by the subsequent actions of those members of the HCC, such as changing the signing authority on DFN bank accounts, changing locks on office doors, relocating the band council office and suspending band administration staff.
[26] Although uninvited, Gordon Glendale, accompanied by some DFN members, attended a scheduled HCC meeting at Mr. Peters’ home on July 12, 2019. Gordon Glendale claims that this was when he first learned of the nature of the allegations against him but that he was not offered the opportunity to hear the specifics of the allegations or to respond to them.
[27] Subsequently, both the Glendale Band Council and the HCC sent communications to the DFN membership and took other steps aimed at solidifying their respective positions on which entity lawfully governs the DFN. In support of the Glendale Band Council, Gordon Glendale sent a July 29, 2019 letter to DFN members, and the Glendale Band Council passed a band council resolution dated July 30, 2019 challenging the authority of the HCC, asserting that the Glendale Band Council is the legal governing authority, and purporting to reverse decisions made by the HCC (including terminating Ruby Mannila’s appointment as band administrator). The HCC composed of Norman Glendale, Billy Peters, and Robert Duncan, in turn, signed a band council resolution dated July 26, 2019 asserting that that the DFN “is legally represented by” a hereditary chiefs council of which they are the members, as acknowledged by ISC, and taking steps to change signing authority for band bank accounts and other actions. There is also an unsigned copy of an August 2, 2019 letter from Norman Glendale, Billy Peters and Robert Duncan on the record. In that letter, they describe themselves as the HCC and assert that the HCC was formed as a result of the DFN’s wishes, “was confirmed by the Federal Court of Canada on May 27, 2017 in a consent order” and that on August 1, 2017 the HCC became the legally recognized council of the band under the Indian Act.
[28] By letter dated August 20, 2019, Norman Glendale, one of the hereditary chiefs named to the HCC by the Lafrenière Order, advised the Glendale Band Council that he now realized that the four members of the HCC should not have changed the leadership of the DFN without the support of the membership. He also questioned the lawfulness of the actions of the HCC after the suspension of Gordon Glendale and stated that he no longer supported them but stood behind Gordon Glendale as Hereditary Chief of DFN. It is of note that Norman Glendale did not file a notice of appearance in response to the Glendale Band Council application for judicial review and did not join Peters & Duncan in bringing their application. He is not represented by counsel for Peters & Duncan and he did not participate in these applications for judicial review.
Preliminary Matter (T-1282-19) – Motion to Strike
[29] As noted above, the Glendale Band Council filed a motion seeking to strike out the affidavit of Mr. Billy Peters sworn on October 24, 2019 [Peters Affidavit #1] as invalid and inadmissible. In his affidavit, Mr. Peters indicated that his first language is Kwak’wala and he has limited ability to read and write English. The grounds for the motion are that when cross-examined on his affidavit Mr. Peters testified that his affidavit was translated by Ruby Mannila, and not Robert Thomas Charles Williams, who affirmed the Form 80B – Rule 80 Form of Oath of Interpreter accompanying Peters Affidavit #1. The Glendale Band Council submits that Ms. Mannila is a family relation to Mr. Peters, his appointed successor as hereditary chief and is also a significant witness for Peters & Duncan and has filed three (up to that point) affidavits in her own name in connection with these applications. The Glendale Band Council submits that Mr. Peters’ evidence on cross-examination impugns the credibility and validity of his affidavit. Further, that Ms. Mannila is not a “competent and independent interpreter” nor did she swear an oath of interpreter, which are both requirements of Rule 80. The Glendale Band Council submits that Ms. Mannila’s role in the authorship and translation of Peters Affidavit #1 is evidence of collusion between two separate and distinct witnesses, which interferes with the truth seeking function of cross-examination. Therefore, Peters Affidavit #1 should be struck out with the costs of examining Mr. Peters and of the motion payable to the Glendale Band Council pursuant to Rules 97 and 400.
[30] Peters & Duncan’s responding motion record contains four affidavits responding to the motion to strike Peters Affidavit #1. In Affidavit #4 of Ruby Mannila, she describes herself as a successor of her family’s chieftainship, agent to her uncle Bill Peters who is a hereditary chief of DFN and the band administrator of the DFN. She states that she was not present when Peters Affidavit #1 was translated or sworn and that she was not involved in making the affidavit. There is also an affidavit of Robert Thomas Charles Williams. Mr. Williams states that on October 24, 2019 he accompanied Bill Peters to the office of Mr. Benjamin Esau, a lawyer in Port Hardy, British Columbia, to act as interpreter for the swearing of Peters Affidavit #1. Mr. Williams states that while they were with Mr. Esau, he translated each paragraph of Mr. Peter’s affidavit to Kwak’wala, Mr. Peters confirmed that he understood each paragraph and that its contents were true before executing his affidavit. Mr. Williams states that no one else was present when he translated Peters Affidavit #1. Mr. Esau has also sworn an affidavit, dated February 5, 2021, confirming that he met with Mr. Peters and Mr. Williams on October 24, 2019 in Mr. Esau’s office where he attended to the execution of Peters Affidavit #1 and that no one else was present during that process.
[31] Also included in the response motion record is an affidavit of Bill Peters affirmed on March 23, 2021 [Peters Affidavit #2]. This states that Peters Affidavit #1 was translated and sworn as described by Mr. Williams. It also goes further and attempts to repair Mr. Peter’s cross-examination evidence. Mr. Peters states that the transcript of his cross-examination records him as saying that Ruby Mannila prepared and translated Peters Affidavit #1 for him but that his answer was wrong. He also states he is 83 years old, has diabetes and a heart condition and that he needs sufficient time to rest and eat or these conditions impact his ability to communicate clearly.
[32] Counsel for Peters & Duncan submit that Peters Affidavit #1 was properly translated and complies with Rule 80. Counsel goes on to address the circumstances of Mr. Peter’s testimony on cross-examination submitting that his erroneous statements indicating that Ruby Mannila had translated and prepared Peters Affidavit #1 should be attributed to a lengthy examination of an elderly party “experiencing health issues” and that it would therefore be unjust to strike out Peters Affidavit #1.
[33] I note first that there seems to have been some confusion as to the filing of the Glendale Band Council’s motion record. My understanding was that the motion record before me was filed on March 8, 2021, after the proposed motion was adjourned to the hearing of these applications by Prothonotary Ring’s Order of February 16, 2021. However, counsel for the Glendale Band Council advised at the hearing that it was their understanding that the March 8, 2021 motion record had not been accepted for filing. As a result, it was their view that the responding motion of Peters & Duncan was late filed, that leave was required to include the new affidavits and that the Glendale Band Council had no opportunity to cross-examine the affiants.
[34] Regardless of whether the Glendale Band Council motion was filed originally on January 26, 2021, or even if it had been filed (as opposed to re-submitted) on March 8, 2021, the Peters & Duncan response motion was filed in accordance with requirements of Rule 365(1) and leave was not required to file or to include supporting affidavits.
[35] In any event, in my view the affidavits of Mr. Williams and Mr. Esau are not controversial and the Glendale Band Council is not prejudiced by a lack of cross-examination. Based on those affidavits, I am satisfied that Peters Affidavit #1 was translated by Mr. Williams in accordance with the requirements of Rule 80.
[36] However, as I understood counsel for the Glendale Band Council, it is his view that this merely amounted to “technical compliance” with Rule 80, which is not sufficient. I disagree; the requirements of the Rule were fully met.
[37] Counsel for the Glendale Band Council correctly submits that on cross-examination Mr. Peters stated that Ms. Mannila wrote Peters Affidavit #1, which was presented to him when fully written, and that only she translated it for him. Mr. Peters testified that he had no recollection of meeting Mr. Williams. Affidavit #4 of Ruby Mannila states that she was not present when Peters Affidavit #1 was translated or sworn. This is verified by the affidavits of Mr. Williams and Mr. Esau. To the extent that she may, at some other point in time and for some other purpose, have translated the affidavit for Mr. Peters, there is no prohibition against her doing so.
[38] More significantly, Ms. Mannila does not purport to have translated Peters Affidavit #1 for the purposes of Rule 80. Therefore, she need not meet the requirement of that Rule that she be a “competent and independent interpreter”. Thus, this is not a situation such as Luu v Wang, 2011 BCSC 1201, cited by the Glendale Band Council, where the British Columbia Supreme Court [BCSC] held that there were legitimate reasons to doubt the objectivity of the interpreter who, in that case, was related to the affiant and who also endorsed the translation of the subject affidavit in accordance with the rules of that court. In Luu, the BCSC concluded that the plaintiff had raised sufficient doubt regarding the competency and neutrality of the interpreter that it was appropriate to require a new affidavit from the affiant. Nor is it a circumstance where there was an absence of a certificate of translation as was the case in Velinova v Canada (Citizenship and Immigration), 2008 FC 269 at paras 10-13 [Velinova], also relied upon by the Glendale Band Council.
[39] Ms. Manilla also states that she was not involved in making the affidavit, which is contradicted by the cross-examination testimony of Mr. Peters. However, I am not persuaded that the contradictory evidence on this point “is tantamount to collusion between two separate and distinct witnesses which interferes with the truth seeking function of cross examination” as counsel for the Glendale Band Council submits, in reliance on Elhatton v Canada (Attorney General), 2013 FC 71 at paras 72-72 [Elhatton]. In Elhatton a “joint affidavit” was accepted as fresh evidence by the administrative decision maker. This Court held that joint affidavits are unknown to our legal system and for many good reasons, including that they inherently reflect a collusion between two separate and distinct witnesses and interfere with the truth seeking function of cross-examination. I also note that counsel for the Glendale Band Council did not suggest that the applications should be adjourned so that cross-examination on the affidavits filed in response to the motion to strike could be conducted.
[40] Although much other case law was included by each party in their respective written submissions or submitted thereafter, it is sufficient to say that I agree with counsel for Peters & Duncan that Mr. Peters’ contradictory statements go to the weight to be afforded to Peters Affidavit #1 and his cross-examination testimony. However, the circumstances do not warrant striking out of Peters Affidavit #1 (Sierra Club of Canada v Canada (Minister of Finance), (1998) 159 FTR 24 (FCTD) at paras 21-22; Sawridge Band v R, [2000] FCJ No 192 (FCTD at paras 5-6; Feher v. Canada (Public Safety and Emergency Preparedness), 2019 FC 335 at para 166).
[41] That said, I reject the efforts of Peters Affidavit #2, and his counsel’s submissions, aimed at correcting and explaining away Mr. Peters’ contradictory statements in response to the motion to strike. There is no evidence before me that Mr. Peters’ health

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Da'naxda'xw First Nation v. Peters Court (s) Database Federal Court Decisions Date 2021-04-23 Neutral citation 2021 FC 360 File numbers T-1282-19, T-1725-19 Decision Content Date: 20210423 Dockets: T-1282-19 T-1725-19 Citation: 2021 FC 360 Ottawa, Ontario, April 23, 2021 PRESENT: The Honourable Madam Justice Strickland Docket: T-1282-19 BETWEEN: WILLIAM GORDON GLENDALE IN HIS CAPACITY AS CHIEF OF BAND COUNCIL OF THE DA'NAXDA'XW FIRST NATION AND AS A MEMBER OF THE HEREDITARY CHIEFS COUNCIL AND MICHAEL JACOBSON-WESTON AND ANNIE GLENDALE IN THEIR CAPACITY AS COUNCILLORS OF THE DA'NAXDA'XW FIRST NATION Applicants and BILL PETERS, NORMAN GLENDALE AND ROBERT DUNCAN Respondents Docket: T-1725-19 AND BETWEEN: BILL PETERS AND ROBERT DUNCAN, IN THEIR CAPACITY AS MEMBERS OF THE HEREDITARY CHIEFS COUNCIL OF DA’NAXDA’XW FIRST NATION Applicants and WILLIAM GORDON GLENDALE, MICHAEL JACOBSON-WESTON, AND ANNIE GLENDALE Respondents JUDGMENT AND REASONS [1] Before me are two related applications for judicial review. The applications are both concerned with the question of which entity or persons have the legal authority to govern the Da’naxda’xw First Nation [DFN] and are brought pursuant to s 18 and s 18.2 of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act]. The applications involve the same parties and concern many of the same issues. Accordingly, pursuant to the Order of the Case Management Judge dated December 20, 2019, they were set down to be heard together. The applications were argued before me over three days. T-1282-19 [2] The Applicants in T-1282-19 are William Gordon Glendale [Gordon Glendale], in his capacity as Chief of DFN Band Council and as a member of the Hereditary Chiefs Council [HCC], Michael Jacobson-Weston and Anne Glendale in their capacity as Councillors of DFN Band Council [together, the Glendale Band Council]. They claim to have the legal authority to govern the DFN. They seek judicial review of the purported authority of the Respondents, Bill Peters, Norman Glendale and Robert Duncan [Peters & Duncan], to hold meetings and make decisions, including band council resolutions, on behalf of DFN, and the authority of Peters & Duncan to remove Gordon Glendale as a member of the HCC. The Glendale Band Council seeks the following relief as set out in their Notice of Application: 1. An order in the nature of quo warranto declaring Chief Gordon Glendale and Councillors Michael Jacobson-Weston and Annie Glendale the Band Council of DFN; 2. And on that basis, (a) a declaration that the Respondents, Bill Peters, Norman Glendale, and Robert Duncan, lack lawful authority to act as the governing body of the Band; (b) a declaration that the HCC, however constituted, does not have lawful authority to act as the governing body of the Band; (c) an order in the nature of certiorari quashing any and all decisions made by the Respondents while purporting to be the lawful governing body of the Da'naxda'xw First Nation; 3. Further an order in the nature of quo warranto in respect to the lawful composition of the HCC, declaring that William (Gordon) Glendale is a required member; 4. And on that basis, an order in the nature of certiorari quashing (a) the decision to remove Chief Gordon Glendale as member of the HCC; and, (b) any and all decisions made by the HCC following the removal of Chief Gordon Glendale. 5. Leave of the Court, pursuant to Rule 302 of the Federal Court Rules, for the following order: (a) Pursuant to Section 18.2 of the Federal Courts Act, an interim order pending the final disposition of this Application in the nature of an Injunction, enforceable by the RCMP, prohibiting the Respondents from exercising any powers on behalf of the Da'naxda'xw First Nation, and authorizing the Applicants to resume governance of the Nation on the terms established by order of this court, dated May 26, 2017; 6. An order for costs of and incidental to this application; and 7. Such further and other relief as this Honourable Court may deem appropriate and just. T-1725-19 [3] After the Glendale Band Council filed the above application for judicial review, Bill Peters and Robert Duncan, in their capacity as members of the HCC, brought an application for judicial review in matter T-1725-19, naming William Gordon Glendale, Michael Jacobson-Weston and Annie Glendale as the Respondents. In their Notice of Application, Peters & Duncan seek the following relief: 1. An order in the nature of quo warranto declaring that: (a) the Former Band Council of the Da'naxda'xw First Nation ("DFN"), composed of the Respondents, or any of them, lacks lawful authority to act as the governing body of the Da'naxda'xw First Nation; and (b) the Da'naxda'xw First Nation Hereditary Chiefs Council ("Chiefs Council"), however constituted, is the lawful governing body of the Da'naxda'xw First Nation; 2. An order in the nature of certiorari quashing any and all decisions and Band Council Resolutions made by the Former Band Council after August 1, 2017; 3. Leave of the Court, pursuant to Rules 105 and 302 of the Federal Courts Rules, for an order that this proceeding be consolidated or heard together with Federal Court File No.T-1282-19; 4. Leave of the Court, pursuant to Rule 302 of the Federal Courts Rules and pursuant to section 18.2 of the Federal Courts Act, for the following interim orders pending the final disposition of this Application: a) An interlocutory injunction prohibiting the Former Band Council or anyone taking instruction from them or anyone supporting them or anyone having knowledge of this injunctive order from in any way, directly or indirectly: i. the Former Band Council to be the band council of the DFN until such time as this Honourable Court decides the issue raised in this proceeding; ii. exercising the authority of the band council or carrying on the business of the band council until such time as this Honorable Court decides the issues raised in this proceeding; iii. unlawfully interfering with the band council's exercise of its lawful authority or its ability to carry out the business and affairs of the DFN until such time as this Honorable Court decides the issues raised in this proceeding; b) An order authorizing the Chiefs Council to fulfill its lawful governmental duties and responsibilities to the DFN until such time as this Honorable Court decides the issues raised in this proceeding. c) An order requiring the Former Band Council to fully disclose any and all decisions, resolutions or other purported exercises of the authority of the band council that the Former Band Council has made, resolved or exercised since July 5, 2019 and to produce any and all documentation in respect thereof to the Chiefs Counsel within 7 days of the date of this order. d) An order requiring the Former Band Council to fully account for any and all funds and/or benefits and/or monies received by or on behalf of the Former Band Council in respect of the DFN or paid out or disbursed or transferred by the Former Band Council since July 5, 2019 within 7 days of the date of this order. e) An order requiring the Former Band Council to immediately transfer any and all funds or other consideration received for the benefit of the DFN to the DFN. f) An order requiring the Former Band Council to fully disclose and transfer any and all documentation in their possession, power or control with respect to the governance of the DFN to the Chiefs Counsel within 7 days of the date of this order. 5. Costs of this motion on a solicitor-client basis payable forthwith; and 6. Such further orders as the Court may determine are just in the circumstances. [4] These applications have lengthy procedural histories. This includes a motion by Peters & Duncan to remove the law firm of JFK Law as solicitor for the Glendale Band Council, which was dismissed by Prothonotary Ring by an Order dated October 30, 2019. On February 6, 2020 Justice Favel upheld the Prothonotary’s ruling on appeal by Peters & Duncan (2020 FC 208). By Order dated December 6, 2019 Justice Favel dismissed the injunction motions brought, respectively, by the Glendale Band Council and by Peters & Duncan (2019 FC 1568). [5] Further, in early 2020, the Glendale Band Council brought a motion seeking rulings relating to the cross-examination of Gordon Glendale and Molly Dawson. The Glendale Band Council sought to affirm counsel’s objections to questions asked of Mr. Glendale and Ms. Dawson during cross-examination on their respective affidavits and requiring that Robert Duncan answer certain questions objected to on his cross-examination. They also brought a motion to strike out the affidavit of Bill Peters sworn on October 24, 2019. By Order dated February 16, 2021, Prothonotary Ring made determinations relating to the objections on cross-examinations, and adjourned, on the parties’ consent, the motion to strike until the hearing of the application in T-1282-19. That motion is dealt with below as a preliminary matter. [6] The parties have also filed more than twenty-five affidavits in support of their respective applications, some affiants swearing multiple affidavits. They have conducted cross-examinations of some affiants and the joint record of evidence contains eight transcripts of cross-examinations. The parties’ respective written memorandums of fact and law, and oral arguments made before me, address the evidence in considerable detail, closely parsing wording and making many submissions as to the interpretation, application and inferences that should be drawn from it. Although I have read and considered all of the evidence and the submissions of the parties, my reasons that follow will not recite each and every piece of evidence referred to by the parties or every submission raised in support of their respective submissions. I will be addressing only the submissions and evidence that is, in my view, most relevant to resolving the issues in the judicial reviews before me. Background [7] The DFN is a band within the meaning of the Indian Act, RSC 1985, c I-5 [Indian Act]. The DFN is a small First Nations community of about 226 members. Only about 19 members live in what is known as the “Village” which is situated on a reserve within the DFN’s traditional territory near Alert Bay, Vancouver Island. About 200 members live off the reserve. The DFN community is made up of Namimas, or clans, each led by a family head. Some of the family heads are also recognized by the DFN as hereditary chiefs. The main families include the Glendales, Duncans, Jacobsons, Gillespies (Peters), and Nolies. [8] From around 1954, the DFN’s band council was selected pursuant to the electoral scheme in s.74 of the Indian Act. However, somewhere between 1972 and 1987, the DFN adopted a governance structure based on their unwritten custom. Since 1987, DFN has been governed by a band council of one hereditary chief and two councillors. It is undisputed that the DFN has never had a written governance or election code. The record before me includes a band council resolution dated August 24, 1987 that was prepared to advise what is now Indigenous Services Canada [ISC] of a custom election held in 1987: THAT the [Da’naxda’xw] go back to the ancient custom of having a hereditary Chief. So we thereby appoint William M. Glendale, band #44, to take his rightful place as the hereditary chief of the [Da’naxda’xw] tribe. This custom shall pass from generation to generation until such time as the tribe wishes to change it back. The tribe shall have two councillors who will remain the same two people until such time as the chief and tribe wishes to change them. [9] At the 1987 meeting, William McKenzie Glendale was appointed Chief, and Anne Glendale and Fred Glendale were selected as Councillors. William McKenzie Glendale was Gordon Glendale’s father, Anne Glendale is his mother, and Fred Glendale was William and Anne’s son. [10] There is no evidence that Anne Glendale’s role as Councillor was ever subsequently challenged by way of an election for that office. [11] After Fred Glendale’s death in 2013, an election was held and Michael Jacobson-Weston was elected as Councillor. In April 2016, Councillor Jacobson-Weston’s wife became seriously ill and he “stepped back” from his duties as a Councillor. [12] Also in 2013, William McKenzie Glendale named his son, Gordon Glendale, as heir to the Glendale family’s hereditary Chieftainship. When Chief William McKenzie Glendale died in 2016, Gordon Glendale assumed the role of Chief of the Glendale Band Council. Gordon Glendale’s evidence is that he attended, and was received at, a number of potlatches to recognize him as Hereditary Chief of the DFN and that he was recognized as such at community meetings. The record before me includes a band council resolution dated May 31, 2016, signed by Gordon and Anne Glendale, that states: The Danaxda’xw First Nation follows the Hereditary Leadership system, the heir to Hereditary Chief William Mackenzie Glendale’s chieftainship is William Gordon Glendale. William Gordon Glendale will take on the responsibilities of Hereditary Chief of the Da’naxda’xw Nation until such time that the membership wish to change the Leadership system. [13] It appears that during the more than 30 years that the Glendale Band Council governed, some DFN members expressed discontent intermittently with the Hereditary Chief and Councillors governance model. [14] The discontent came to a head on or around November 6, 2016 when two DFN members, Nicole Hajash and Lou-Ann Neel, filed an application for judicial review (Federal Court file T-1908-16), naming the Glendale Band Council as respondents, challenging the legality and authority of the Glendale Band Council and seeking an elected chief and council [2016 Judicial Review]. [15] On November 12, 2016, a meeting of Chief Gordon Glendale and four family heads was held and the attendees agreed that the Glendale Band Council would convene a membership meeting on January 21, 2017 to canvas DFN members about their preferred form of governance. [16] The Glendale Band Council, through DFN’s Communication Officer, sent an initial Notice of Meeting informing DFN members of an all members meeting to be held on January 21, 2017. A second notice was sent on January 18, 2017, giving notice of the upcoming governance review and leadership options [Governance Review]. As this document is significant to the issues before me, I reproduce it here in full: ALL MEMBERS MEETING NOTICE The Da'naxda'xw/Awaetlala Nation Leadership are currently reviewing the leadership structure and would like to gather input from the membership. The following information is intended to provide you with some background about our current governance system, why it's being reviewed, other governance options, and how to have your voice or input included. 1.What is Da'naxda'xw/Awaetlala Nation's Current Leadership Structure? Throughout our history, our Nation was led by hereditary chiefs who occupied the top rank of our social system. Hereditary chiefs carry the responsibility of leading and governing our people, and ensuring our traditions and protocols are respected. Under our strict cultural laws, the title of hereditary chief is passed down to the chief's eldest son during a potlach. Our traditional governance structure was interrupted under Canada's early colonial policy that imposed the Indian Act elected Chief and Council system. However, by a membership vote in the early l 970s, our Nation returned to its hereditary system. Since then our Nation has been led by a band council comprised of a hereditary chief (formerly Chief William Glendale, now his eldest son, William Gordon Glendale) and two elected councillors (currently Anne Glendale and recently elected Michael Jacobson Weston). 2. Why is the current leadership structure being reviewed? Our current Custom Code states that our hereditary Chief and two elected Councillors will form our leadership, until the members decide to change this. Recently some concerns have been raised about whether or not the Nation should replace its hereditary leadership with an elected chief. The current leadership decided to seek community input on the system to ensure the voices of the members were heard, and to ensure continued community acceptance over our leadership selection process. 3. What is the process for the review? Community Meeting will be Held · A community meeting is being held on January 21 in Campbell River at the Coast Discovery Inn at 2:00-6:00. The purpose of the meeting is to discuss our leadership system and decide on our form of leadership. Please note, if members require more time to consider and discuss the matter, we will schooled a further meeting before deciding. Facilitator · The meeting will be facilitated by a third party neutral facilitator, Richard Dawson. Mr. Dawson from Namgis First Nation and is well respected for his work in First Nations governance matters. Options: Forms of Leadership · Three forms of leadership systems will be discussed: the current custom code with a hereditary chief and two elected councillors; current custom code with hereditary chief supported by family leadership council; and elected chief and two elected councillors. Meeting Agenda · The facilitator will describe the leadership structure options. · Members will have an opportunity to voice their opinions about which form of leadership will best meet the needs of the community. · The question of leadership structure will be asked and members present will have final opportunity to have their choice recorded. Decision Making Procedure · All on and off reserve registered band members who are 18 or older. · Qualifying members are required to provide their full name, status registration number and date of birth. · At the end of the meeting, a show of hands will be held to record the input of the community regarding the current form of leadership. · Qualifying members are also permitted to provide a written submission. Please provide your submission by January 27. · Written submissions should be delivered to the band office at: P.O. Box 330 Alert Bay, BC VON lA0 Email to: [email protected] or [email protected] Fax to: 250-974-2706. Form of Leadership Determined by Majority of Membership · The leadership structure will be determined by the majority of the membership in favour of one of the proposed structures. · For the decision to be valid at least 1/3 of qualifying community members must participate. If that number is not achieved, the decision will be sought at a rescheduled meeting. Post Decision · The current leadership agrees to be bound by the wishes of the community and will facilitate any necessary leadership change should the wishes of the community be different from the current form of leadership, including working with the community to prepare a written leadership selection code that reflects the wishes of the community. · After broad community consensus on the preferred structure is achieved, a community meeting will be held to discuss any transition or process matters. 4.What will the members be asked? 1. What form of leadership do you prefer? a. Hereditary Chief and two elected Councillors b. Hereditary Chief supported by Family Leadership Council c. Elected Chief and Councillors d. I would like the Nation to engage in a longer process to discuss the different options. [17] Approximately 41 DFN members returned the attached Membership Submission Form at the meeting and it was decided to extend the period for participation in the Governance Review to February 27, 2017. Ultimately, the Governance Review notice and Member Submission Form was provided to 114 (of 150) voting members and 82 responses were received, which is generally accepted as high membership participation. The review results clearly favoured option b, Hereditary Chiefs supported by Family Leadership Council (option a received 0 votes; option b received 65 votes; option c received 14 votes; option d received 3 votes). I note in passing that all parties agree that option b, in the above Governance Review, should have read “Hereditary Chiefs supported by Family Leadership Council”. [18] A “Community Notice - Results of the Community Input on our Nation’s Leadership Structure”, was published on March 22, 2017 [Governance Review Results]. It reports the above results and, in its Next Steps section indicates that the outcome of the leadership structure review process was that the majority of DFN’s voting members wished to see a change in governance structure to a Hereditary Chiefs supported by a Family Leadership Council. As a result, the Glendale Band Council asked that all family heads contact Trish Nolie, Molly Dawson or the band office to schedule a meeting to discuss how DFN would engage the community in deciding how to implement this new leadership structure. The notice anticipated that shortly after the initial meeting, a community meeting would be held to invite input on how to transition into the new structure and to develop a code for governance. [19] On May 25, 2017, a dispute resolution conference, or mediation, was conducted in relation to the 2016 Judicial Review. The mediation was attended by the parties, their counsel as well as invited community members and family heads, including Norman Glendale, Billy Peters, Ruby Manilla, Robert Duncan, Molly Dawson, Nick Chowdhury and others. The result was a consent order issued by (now) Justice Lafrenière [Lafrenière Order] with a Joint Statement attached as Schedule A. A complete copy of the Lafrenière Order is attached as Annex A of these reasons. The Order reads in part: THIS COURT ORDERS that: 1. The Hereditary Chiefs who are willing and available, consisting of William (Gordon) Glendale, Robert Duncan, Norman Glendale, and Giyaka (Billy Peters) (the ‘Hereditary Chiefs’) shall form a Council for the purpose of developing a governance code for the Da’naxda’xw First Nation to be presented to the membership for their approval (the Hereditary Chiefs Council). Ruby Mannila may be present to assist Giyaka but any input shall be provided by Giyaka. 2. Prothonotary Roger R. Lafrenière shall assume the role of lead facilitator to convene a meeting as soon as practicable of the Hereditary Chiefs Council to reach an agreement on a budget and community engagement process, leading to the formulation of a governance code. 3. The Hereditary Chiefs Council may, at their discretion, include additional persons as members of the Hereditary Chiefs Council. 4. Reasonable Band funds will be made available to the Hereditary Chiefs Council, including for research, legal support, and governance experts to engage in the process of formulating and presenting the governance code to the community. 5. The Hereditary Chiefs Council shall, unless agreed to by the Hereditary Chiefs Council or otherwise ordered by the Court, present the proposed governance code to the community for approval by December 1, 2017. 6. Gordon Glendale and the Councillors of the Da’naxda’xw First Nation shall take no decisions and make no expenditures that would be outside of the ordinary day-to-day administration of the Band, including long-term agreements, pending either a resolution or the hearing of the application. 7. The hearing of this matter is adjourned to a date certain in April 2018, unless the Court orders otherwise. ….. 13. Upon the conclusion of the referendum on the Da’naxda’xw First Nation governance code, the Applicants shall discontinue the application. Schedule "A" to the Order of Prothonotary Lafreniére dated May 26, 2017 in Court File No. T-1908-16 Joint Statement by the Parties to the Da'naxda'xw First Nation Governance Lawsuit We write with respect to an update on the lawsuit filed in December 2016 challenging the current system of governance of our Nation. The parties have recently met to discuss ways the governance issues raised in the lawsuit might be resolved. At this meeting, we agreed upon many foundational principles. We have agreed we are stronger working together than being divided. We have agreed that the community must decide how they wish to be governed, not any one person or the current Council. We have agreed that any process for community engagement on issues relating to governance be thorough and transparent, and give the community the time and information it needs to give informed input. The parties have agreed that the next step in the process is for the Hereditary Chiefs Council, in collaboration with the families and community to develop a governance proposal for the community to consider. The mandate of the Hereditary Chiefs Council will be to work towards achieving community consensus and support for any proposed governance model culminating in a referendum on a Da'naxda'xw Code of Governance. The parties agree that leadership from the Hereditary Chiefs Council on this issue reflects our customs, traditions, and culture and provides the best opportunity for voices from all families to be heard. [20] There is little agreement on the facts after this point, other than that a governance code has never been developed and presented to the DFN membership. [21] In October 2017 the Hereditary Chiefs Council, or HCC, as established by the Lafrenière Order, began to meet to discuss the development of a governance code. [22] At HCC meetings held throughout 2018, funding for the code, proposals for a consultant and other DFN matters were discussed. The scheduled community meeting was postponed. The Glendale Band Council asserts that, since the timeline for completing the governance code was extended, beginning in the fall of 2018 Chief Glendale began permitting the other hereditary chiefs to share in a few governance decisions. While such participation was consistent with the traditional role of hereditary chiefs, the control and operation of the DFN remained with the Glendale Band Council, which remained the DFN’s governing body. [23] Conversely, Peters & Duncan assert that beginning around August 2017 the Glendale Band Council ceased acting a band council and the HCC began to govern the DFN. They assert that Gordon Glendale supported and participated in this transition and that a band council resolution signed by Gordon Glendale confirms the HCC as the governing body of DFN. Further, that Anne Glendale and Michael Jacobson-Weston resigned as councillors in favour of governance by the HCC. [24] On July 5, 2019, Robert Duncan, Billy Peters and Norman Glendale signed a band council resolution suspending Gordon Glendale from the HCC until further notice. Gordon Glendale’s suspension was premised on information provided by the interim band administrator, Ruby Mannila. She alleged that after assuming that role on May 22, 2019, she found evidence of financial irregularities involving Gordon Glendale, members of his family, and DFN monies. [25] The Glendale Band Council describe Robert Duncan, Billy Peters and Norman Glendale’s decision to suspend Gordon Glendale as usurping the lawful government of the DFN and effecting a coup. They say that the suspension was made without regard to DFN customs, without notice to Gordon Glendale, without specifying the allegations and without giving Gordon Glendale an opportunity to respond to the allegations. Further, that the HCC members have no authority to suspend Gordon Glendale from the HCC or his position as Chief. They assert that the allegations against Gordon Glendale are merely a pretext for the unlawful seizure of power as demonstrated by the subsequent actions of those members of the HCC, such as changing the signing authority on DFN bank accounts, changing locks on office doors, relocating the band council office and suspending band administration staff. [26] Although uninvited, Gordon Glendale, accompanied by some DFN members, attended a scheduled HCC meeting at Mr. Peters’ home on July 12, 2019. Gordon Glendale claims that this was when he first learned of the nature of the allegations against him but that he was not offered the opportunity to hear the specifics of the allegations or to respond to them. [27] Subsequently, both the Glendale Band Council and the HCC sent communications to the DFN membership and took other steps aimed at solidifying their respective positions on which entity lawfully governs the DFN. In support of the Glendale Band Council, Gordon Glendale sent a July 29, 2019 letter to DFN members, and the Glendale Band Council passed a band council resolution dated July 30, 2019 challenging the authority of the HCC, asserting that the Glendale Band Council is the legal governing authority, and purporting to reverse decisions made by the HCC (including terminating Ruby Mannila’s appointment as band administrator). The HCC composed of Norman Glendale, Billy Peters, and Robert Duncan, in turn, signed a band council resolution dated July 26, 2019 asserting that that the DFN “is legally represented by” a hereditary chiefs council of which they are the members, as acknowledged by ISC, and taking steps to change signing authority for band bank accounts and other actions. There is also an unsigned copy of an August 2, 2019 letter from Norman Glendale, Billy Peters and Robert Duncan on the record. In that letter, they describe themselves as the HCC and assert that the HCC was formed as a result of the DFN’s wishes, “was confirmed by the Federal Court of Canada on May 27, 2017 in a consent order” and that on August 1, 2017 the HCC became the legally recognized council of the band under the Indian Act. [28] By letter dated August 20, 2019, Norman Glendale, one of the hereditary chiefs named to the HCC by the Lafrenière Order, advised the Glendale Band Council that he now realized that the four members of the HCC should not have changed the leadership of the DFN without the support of the membership. He also questioned the lawfulness of the actions of the HCC after the suspension of Gordon Glendale and stated that he no longer supported them but stood behind Gordon Glendale as Hereditary Chief of DFN. It is of note that Norman Glendale did not file a notice of appearance in response to the Glendale Band Council application for judicial review and did not join Peters & Duncan in bringing their application. He is not represented by counsel for Peters & Duncan and he did not participate in these applications for judicial review. Preliminary Matter (T-1282-19) – Motion to Strike [29] As noted above, the Glendale Band Council filed a motion seeking to strike out the affidavit of Mr. Billy Peters sworn on October 24, 2019 [Peters Affidavit #1] as invalid and inadmissible. In his affidavit, Mr. Peters indicated that his first language is Kwak’wala and he has limited ability to read and write English. The grounds for the motion are that when cross-examined on his affidavit Mr. Peters testified that his affidavit was translated by Ruby Mannila, and not Robert Thomas Charles Williams, who affirmed the Form 80B – Rule 80 Form of Oath of Interpreter accompanying Peters Affidavit #1. The Glendale Band Council submits that Ms. Mannila is a family relation to Mr. Peters, his appointed successor as hereditary chief and is also a significant witness for Peters & Duncan and has filed three (up to that point) affidavits in her own name in connection with these applications. The Glendale Band Council submits that Mr. Peters’ evidence on cross-examination impugns the credibility and validity of his affidavit. Further, that Ms. Mannila is not a “competent and independent interpreter” nor did she swear an oath of interpreter, which are both requirements of Rule 80. The Glendale Band Council submits that Ms. Mannila’s role in the authorship and translation of Peters Affidavit #1 is evidence of collusion between two separate and distinct witnesses, which interferes with the truth seeking function of cross-examination. Therefore, Peters Affidavit #1 should be struck out with the costs of examining Mr. Peters and of the motion payable to the Glendale Band Council pursuant to Rules 97 and 400. [30] Peters & Duncan’s responding motion record contains four affidavits responding to the motion to strike Peters Affidavit #1. In Affidavit #4 of Ruby Mannila, she describes herself as a successor of her family’s chieftainship, agent to her uncle Bill Peters who is a hereditary chief of DFN and the band administrator of the DFN. She states that she was not present when Peters Affidavit #1 was translated or sworn and that she was not involved in making the affidavit. There is also an affidavit of Robert Thomas Charles Williams. Mr. Williams states that on October 24, 2019 he accompanied Bill Peters to the office of Mr. Benjamin Esau, a lawyer in Port Hardy, British Columbia, to act as interpreter for the swearing of Peters Affidavit #1. Mr. Williams states that while they were with Mr. Esau, he translated each paragraph of Mr. Peter’s affidavit to Kwak’wala, Mr. Peters confirmed that he understood each paragraph and that its contents were true before executing his affidavit. Mr. Williams states that no one else was present when he translated Peters Affidavit #1. Mr. Esau has also sworn an affidavit, dated February 5, 2021, confirming that he met with Mr. Peters and Mr. Williams on October 24, 2019 in Mr. Esau’s office where he attended to the execution of Peters Affidavit #1 and that no one else was present during that process. [31] Also included in the response motion record is an affidavit of Bill Peters affirmed on March 23, 2021 [Peters Affidavit #2]. This states that Peters Affidavit #1 was translated and sworn as described by Mr. Williams. It also goes further and attempts to repair Mr. Peter’s cross-examination evidence. Mr. Peters states that the transcript of his cross-examination records him as saying that Ruby Mannila prepared and translated Peters Affidavit #1 for him but that his answer was wrong. He also states he is 83 years old, has diabetes and a heart condition and that he needs sufficient time to rest and eat or these conditions impact his ability to communicate clearly. [32] Counsel for Peters & Duncan submit that Peters Affidavit #1 was properly translated and complies with Rule 80. Counsel goes on to address the circumstances of Mr. Peter’s testimony on cross-examination submitting that his erroneous statements indicating that Ruby Mannila had translated and prepared Peters Affidavit #1 should be attributed to a lengthy examination of an elderly party “experiencing health issues” and that it would therefore be unjust to strike out Peters Affidavit #1. [33] I note first that there seems to have been some confusion as to the filing of the Glendale Band Council’s motion record. My understanding was that the motion record before me was filed on March 8, 2021, after the proposed motion was adjourned to the hearing of these applications by Prothonotary Ring’s Order of February 16, 2021. However, counsel for the Glendale Band Council advised at the hearing that it was their understanding that the March 8, 2021 motion record had not been accepted for filing. As a result, it was their view that the responding motion of Peters & Duncan was late filed, that leave was required to include the new affidavits and that the Glendale Band Council had no opportunity to cross-examine the affiants. [34] Regardless of whether the Glendale Band Council motion was filed originally on January 26, 2021, or even if it had been filed (as opposed to re-submitted) on March 8, 2021, the Peters & Duncan response motion was filed in accordance with requirements of Rule 365(1) and leave was not required to file or to include supporting affidavits. [35] In any event, in my view the affidavits of Mr. Williams and Mr. Esau are not controversial and the Glendale Band Council is not prejudiced by a lack of cross-examination. Based on those affidavits, I am satisfied that Peters Affidavit #1 was translated by Mr. Williams in accordance with the requirements of Rule 80. [36] However, as I understood counsel for the Glendale Band Council, it is his view that this merely amounted to “technical compliance” with Rule 80, which is not sufficient. I disagree; the requirements of the Rule were fully met. [37] Counsel for the Glendale Band Council correctly submits that on cross-examination Mr. Peters stated that Ms. Mannila wrote Peters Affidavit #1, which was presented to him when fully written, and that only she translated it for him. Mr. Peters testified that he had no recollection of meeting Mr. Williams. Affidavit #4 of Ruby Mannila states that she was not present when Peters Affidavit #1 was translated or sworn. This is verified by the affidavits of Mr. Williams and Mr. Esau. To the extent that she may, at some other point in time and for some other purpose, have translated the affidavit for Mr. Peters, there is no prohibition against her doing so. [38] More significantly, Ms. Mannila does not purport to have translated Peters Affidavit #1 for the purposes of Rule 80. Therefore, she need not meet the requirement of that Rule that she be a “competent and independent interpreter”. Thus, this is not a situation such as Luu v Wang, 2011 BCSC 1201, cited by the Glendale Band Council, where the British Columbia Supreme Court [BCSC] held that there were legitimate reasons to doubt the objectivity of the interpreter who, in that case, was related to the affiant and who also endorsed the translation of the subject affidavit in accordance with the rules of that court. In Luu, the BCSC concluded that the plaintiff had raised sufficient doubt regarding the competency and neutrality of the interpreter that it was appropriate to require a new affidavit from the affiant. Nor is it a circumstance where there was an absence of a certificate of translation as was the case in Velinova v Canada (Citizenship and Immigration), 2008 FC 269 at paras 10-13 [Velinova], also relied upon by the Glendale Band Council. [39] Ms. Manilla also states that she was not involved in making the affidavit, which is contradicted by the cross-examination testimony of Mr. Peters. However, I am not persuaded that the contradictory evidence on this point “is tantamount to collusion between two separate and distinct witnesses which interferes with the truth seeking function of cross examination” as counsel for the Glendale Band Council submits, in reliance on Elhatton v Canada (Attorney General), 2013 FC 71 at paras 72-72 [Elhatton]. In Elhatton a “joint affidavit” was accepted as fresh evidence by the administrative decision maker. This Court held that joint affidavits are unknown to our legal system and for many good reasons, including that they inherently reflect a collusion between two separate and distinct witnesses and interfere with the truth seeking function of cross-examination. I also note that counsel for the Glendale Band Council did not suggest that the applications should be adjourned so that cross-examination on the affidavits filed in response to the motion to strike could be conducted. [40] Although much other case law was included by each party in their respective written submissions or submitted thereafter, it is sufficient to say that I agree with counsel for Peters & Duncan that Mr. Peters’ contradictory statements go to the weight to be afforded to Peters Affidavit #1 and his cross-examination testimony. However, the circumstances do not warrant striking out of Peters Affidavit #1 (Sierra Club of Canada v Canada (Minister of Finance), (1998) 159 FTR 24 (FCTD) at paras 21-22; Sawridge Band v R, [2000] FCJ No 192 (FCTD at paras 5-6; Feher v. Canada (Public Safety and Emergency Preparedness), 2019 FC 335 at para 166). [41] That said, I reject the efforts of Peters Affidavit #2, and his counsel’s submissions, aimed at correcting and explaining away Mr. Peters’ contradictory statements in response to the motion to strike. There is no evidence before me that Mr. Peters’ health

Da'naxda'xw First Nation v. Peters

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Da'naxda'xw First Nation v. Peters

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Full judgment (source text)

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