Date: 20001206
Docket: T-2054-00
BETWEEN:
PELICAN LAKE FIRST NATION
(hereinafter "the Band")
Plaintiff
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA and her agent
MINISTER OF INDIAN AND NORTHERN AFFAIRS
(hereinafter "the Minister")
Defendant
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] The present application in this action has been brought under Rule 220(1)(a)1 of the Federal Court Rules for an answer to two questions of law.
[2] The questions to be answered are with regard to the election of Chief and Council of the Pelican Lake Band, such election being held on April 14, 2000. The facts surrounding the election are agreed to between the parties, and are attached to these reasons as an Appendix.
[3] The first question to be answered is: Was the Ministerial Order of March 4, 1997 made under s.74(1)2 of the Indian Act, R.S.C. 1985, c.I-5, as amended, in effect on April 14, 2000?
[4] It is agreed that the revocation of the March 4, 1997 Ministerial Order, which was issued on April 14, 2000, is a "regulation" as defined in and governed by the Statutory Instruments Act3, 1970-71-72, c. 38, s.1, and as such, by s.5(1) and s.9(1)(a)4, the Revocation Order of April 14, 2000 is required to be transmitted for registration within seven days after it is made and does not come into force unless so transmitted and thus registered. It is also agreed that the transmission and registration of the Revocation Order did not take place as required.
[5] Accordingly, I find that the answer to the first question is: Yes.
[6] The second question to be answered is: Was the Band custom "Election Act" in effect on April 14, 2000? As a consequence of the answer provided to the first question, I find the answer to the second question is: No.
[7] Therefore, in my opinion, since the election of April 14, 2000, was conducted according to the "Election Act", the results of the election are not according to law.
[8] I reserve decision on the issue of costs pending a motion being brought by either party.
(Sgd.) "Douglas Campbell"
Judge
December 6, 2000
Vancouver, British Columbia
APPENDIX
Agreed statement of facts
| 1. The Plaintiff, Pelican Lake First Nation, also known as the Pelican Lake Indian Band, is a "band" as defined by section 2(1) of the Indian Act, R.S.C. 1985, c. I-5. |
| 2. Until November 25, 2000, the Plaintiff was listed as Item 26, Part III - Saskatchewan, Schedule I of the Indian Bands Council Elections Order, SOR/97-138 (the "Order"). The Order came into force on March 4, 1997 and was made under the authority of section 74(1) of the Indian Act, R.S.C. 1985, c. I-5, as amended. This Order was repealed by Order dated November 24, 2000 (SOR/2000-409), coming into force November 25, 2000. |
| 3. In July 1999 the Plaintiff chose to begin the process of converting its procedure for electing a Band Council from the procedures under sections 74-80 of the Indian Act to a customary electoral system. |
| 4. On June 29, 1999, the Plaintiff instructed the law office of Pandila Morin Nahachewsky to prepare a draft copy of an election act for the use of Pelican Lake First Nation. |
| 5. Subsequent to the drafting of the "Pelican Lake First Nation Election Act" (hereinafter "the Election Act"), several public meetings were held to provide members of Pelican Lake First Nation with a forum and opportunity to discuss the procedural and substantive aspects of the draft Election Act in Cree and in English. Legal counsel and elders were present at each meeting and legal counsel spoke in Cree and English. An initial meeting with elders was held in July 1999, and subsequent meetings were held November 1st, November 29th and December 13th, 1999. Some revisions were made after each of the first and second meetings to reflect changes requested by a consensus of band members attendant at the meetings. |
| 6. After the second public meeting a copy of the draft Election Act was reviewed by the Defendant and, at his suggestion, some minor revisions were made to the proposed Election Act. The same was presented as a final draft at the last public meeting held for the purpose of review and discussion on December 13th, 1999. At no time prior to April 14th, 2000 did the Defendant state that there was a problem with the Election Act with respect to compliance with the Charter of Rights and Freedoms. |
| 7. The Plaintiff was aware that the Defendant had a policy not to issue a revocation of the Order, pursuant to section 74(1) of the Indian Act which would permit the Plaintiff to conduct elections under its own procedure, unless there was a sufficient level of community support for a customary election Code. The Defendant required the proponents of a code to obtain, via referendum, the support of a majority of all the eligible electors of the First Nation. The Plaintiff believed that the Minister had to sign the Election Act for it to be validated. Furthermore, the Plaintiff believed that the Ministerial issuance of a revocation/approval of their Election Act was a mere formality and at no time was it suggested by the Defendant's employees that the Minister would not exercise his discretion in issuing an order. |
| 8. A referendum was held to adopt the final draft of the Election Act on January 26th, 2000. The results of that vote were as follows: |
492 Eligible Voters (317 on-reserve, 175 off-reserve)
124 votes were cast (15.2% of eligible voters)
- 116 on-reserve, 8 off-reserve
113 voted in favour of the Election Act (91% of votes cast)
11 voted against the Election Act
| 9. The Defendant was of the view that, since the proponents of the Code had failed to obtain a majority of all electors of the First Nation on January 26, 2000, that a further referendum would need to be held before the Defendant could consider commencing the revocation approval process. The Defendant is of the view that they advised the Plaintiff that at least a majority of eligible voters on the Reserve would have to approve the Election Act. The Plaintiff, however, was of the view that the simple majority of those who voted was sufficient. |
| 10. The Plaintiff therefore held a second referendum on February 28th, 2000, with the following result: |
| 492 Eligible Voters (317 on-reserve, 175 off-reserve) |
| 186 ballots were cast (37.8% of total eligible voters) |
| - 173 on-reserve (of which 5 were rejected), 13 off-reserve |
149 voted in favour of the Election Act (80% of electors who voted)
| - 137 on reserve in favour (43.22% of eligible on-reserve voters) |
| - 12 off-reserve in favour |
| 32 voted against the Election Act |
| - 31 on-reserve opposed, 1 off-reserve opposed |
| 11. The results of the second referendum, along with a copy of the Election Act and other supporting documentation, were submitted to the Defendant on February 29, 2000, along with a Band Council Resolution also dated February 29, 2000, adopting the Election Act, in order to obtain a revocation [the "revocation"] of the Order. |
| 12. The results of the second referendum were again insufficient to satisfy the Defendant's requirement of a majority of eligible electors. The employees of the Defendant in the Saskatchewan region nonetheless reviewed the result and conferred with their counterparts in National Headquarters. Together they determined that they would recommend to senior Departmental officials that the Plaintiff's referendum results should be considered as sufficient support to permit a recommendation to the Minister that the revocation should issue. The package with the Regional Office's recommendation for approval was forwarded to DIAND Headquarters with supporting materials on March 7th, 2000. Although employees of the Defendant indicated that the Plaintiff's chances of obtaining the revocation were good, at no time was any guarantee provided to the Plaintiff that the revocation was a certainty. |
| 13. The Defendant was at all times material to this action cognizant of the fact that the Plaintiff was proceeding under its Election Act in the forthcoming April 2000 election. |
| 14. The Plaintiff was likewise cognizant of the fact that the requested revocation was not yet in existence before April 14, 2000. The Plaintiff proceeded with its election preparations in the absence of the revocation with the knowledge of the Defendant. |
| 15. On March 1st, 2000, the Plaintiff appointed an electoral officer, namely Osborne Turner, thereby commencing the election procedure for Chief and Council pursuant to terms of the Election Act. The appointment of Mr. Turner was not approved by the Minister under the Indian Act as both parties understood that the election was being conducted under the Pelican Lake Election Act. |
| 16. The Plaintiff or its agents maintained frequent contact with the Defendant, and several times requested that the Election Act be signed in a timely fashion. |
| 17. The Defendant offered no guarantee that the Ministerial signature would be forthcoming by April 14, 2000, but advised the Plaintiff that best efforts were being made to obtain the necessary approvals and to obtain the Minister's agreement and signature by that date. |
| 18. Prior to, and including April 14, 2000, both parties were of the view that, as long as the Ministerial signature was in place by April 14, 2000, a custom election held that day would be valid. Consequently, the Defendant did not tell the Plaintiff not to proceed with its election. |
| 19. Several advance polls were held in accordance with the terms of the Election Act without having the anticipated Ministerial signature in place. These were conducted on April 11th, 12th and 13th, 2000, in Edmonton, Saskatoon and Prince Albert, respectively. |
| 20. The election itself took place on April 14th, 2000, at the Chamakese Education Centre in the Pelican Lake Indian Reserve. |
| 21. The revocation was issued on April 14th, 2000. The Defendant was of the mistaken view that the revocation order did not have to be registered under the Statutory Instruments Act, R.S.C. 1985, c. S-22. Following the discovery of this mistake, on November 6, 2000, the revocation was forwarded to the Clerk of the Privy Council for registration. The Clerk refused to register the revocation on the grounds that it was forwarded outside the 7-day time limit for registration as prescribed by section 5 of the Statutory Instruments Act. The revocation therefore never came into force and has now been repealed effective November 25, 2000 (SOR/2000-408). |
| 22. No appeal was taken by a Band member under the provisions of the Election Act nor under the Indian Act. However, two of the unsuccessful candidates for Chief and Council, namely Harvey Abbott and Edward Bill, caused their solicitor, Mr. Ron Cherkewich of the law firm Cherkewich Yost & Heffernan, to question the results of the election by way of letter to the Minister on the ground that the ministerial order had not been signed prior to the appointment of the electoral officer or to running the advance polls. |
| 23. Upon further consideration of the Election Act, the Defendant indicated to the Plaintiff that the Election Act may not comply with Section 15 of the Charter of Rights and Freedoms and took the position that the Plaintiff had no option but to conduct an election under the Indian Act. However, on November 24th, 2000, despite concerns of Charter compliance, the Minister signed orders as set out in paragraph 25 below. |
| 24. Apart from the question of legal validity of Chief and Council, the Defendant has no reason to question the ability of the individuals, purportedly elected on April 14, 2000, to manage the affairs of the Plaintiff. The Defendant has therefore proposed that the individuals act as third party managers until this issue is resolved. |
| 25. The Minister has now issued two orders as set out below: |
| (i) An Order dated November 24, 2000 repealing the original revocation signed April 14, 2000 (SOR/2000-408); and |
| (ii) As set out in paragraph 2 of this Statement of Facts, an Order dated November 24, 2000 (SOR/2000-409) revoking the application of the Indian Act, s. 74(1) and amending the Indian Bands Election Order, SOR-97/138, with respect to certain Indian Bands, including the plaintiff band, thereby permitting the plaintiff to conduct an election under the Pelican Lake First Nation Election Act. |
| Both of these orders were registered with the Clerk of the Privy Council pursuant to the Statutory Instruments Act on November 25, 2000 and came into force on registration. They are scheduled to be published in the Canada Gazette on December 6, 2000. |
| 26. The Parties now look to this Honourable Court for a decision on the issue of the validity of the April 14, 2000 Chief and Council of the Pelican Lake First Nation. |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: T-2054-00 |
| STYLE OF CAUSE: Pelican Lake First Nation |
v.
Her Majesty the Queen et al
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: December 4, 2000 |
| REASONS FOR ORDER AND ORDER OF CAMPBELL, J. |
| DATED: December 6, 2000 |
APPEARANCES:
| Mr. Gerry M. Morin, Q.C. For the Plaintiff |
| Mr. James Gunvaldsen-Klaasen For the Defendant |
SOLICITORS OF RECORD:
Pandila, Morin, Nahachewski
Barristers and Solicitors
| Prince Albert, Saskatchewan For the Plaintiff |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Defendant |
1 Rule 220 reads as follows:
220.(1) A party may bring a motion before trial to request that the Court determine
(a) a question of law that may be relevant to an action;
2Section 74 of the Indian Act reads as follows:
74(1) - "Whenever he deems it advisable for the good government of a band, the Minister may declare by order that after a date to be named therein, the Council of the Band, consisting of a Chief and Councillors, shall be selected by elections to be held in accordance with this Act."
3Section 2(1) of the Statutory Instruments Act defines "regulation" as follows:
"regulation" means a statutory instrument
(a) made in the exercise of a legislative power conferred by or under an Act of Parliament, or (b) for the contravention of which a penalty, fine or imprisonment is prescribed by or under an Act of Parliament,
and includes a rule, order or regulation governing the practice or procedure in any proceedings before a judicial or quasi-judicial body established by or under an Act of Parliament, and any instrument described as a regulation in any other Act of Parliament;
4These Sections are as follows:
5.(1) Subject to any regulations made pursuant to paragraph 20(b), every regulation-making authority shall, within seven days after making a regulation, transmit copies of the regulation in both official languages to the Clerk of the Privy Council for registration pursuant to section 6.
9.(1) No regulation shall come into force on a day earlier than the day on which it is registered unless
(a) it expressly states that it comes into force on a day earlier than that day and is registered within seven days after it is made.