Date: 19980127
Docket: T-82-98
BETWEEN:
RONALD VINCENT MORIN and
ANNAMARIE GAIL DEMCHUK on her own behalf and
on behalf of nonresident members of the Enoch Cree Nation
Applicants
-and-
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the Minister of Indian and Northern Affairs Canada
and the Attorney General of Canada and the ENOCH CREE NATION
Respondents
REASONS FOR ORDER AND ORDER
ROULEAU J:
[1] This Motion came before me by way of telconference at Ottawa and Edmonton on the 26th day of January 1998 in the presence of counsel for both Applicants and Respondents; also present in the Court Chambers in Edmonton was Ronald Vincent Morin and AnnaMarie Gail Demchuk and one other member of the Band Council; present at the Band Office of the Reserve representing the Enoch Cree Nation was Mr. Sharphead and four other Band Council Members.
[2] This Judicial Review came about on the strength of six complainants that appealed the election held June 1997 when the Applicant Morin was elected Chief of the Enoch Cree Nation; an investigation was conducted by an official of DIAND and a report submitted to the Minister who in turn, by Order in Council dated December 17, 1997, set aside the election on the strength of findings made by the investigator.
[3] I am not satisfied that these Applicants were provided with an opportunity to challenge the report submitted to the Minister; nor were the negative reasons of the investigator ever communicated to the Applicants in order to provide them with an opportunity to properly assess whether or not there were sufficient legal grounds to challenge the Order in Council which set aside the election of Chief Ronald Vincent Morin.
[4] It was agreed that in light of the difficulties facing the Enoch Cree Nation at election time a practical solution was the only avenue of approach.
[5] It was agreed and it is in evidence that this reserve is physically contiguous in the city of Edmonton as well as other small communities in Alberta.
[6] It was also in evidence that there is a considerable shortage of housing on this reserve dating back to 1977 and as a result more than one third of the registered band members of the Enoch Cree Nation must reside off the reserve.
[7] There have been ongoing difficulties within this First Nation in determining who shall have that right to vote in Band Elections. The definition applicable under the Regulations governing Indian Band Election, if strictly interpreted, brought about unwarranted dissension and dispute and resulted in a considerable number of Band Members being disenfranchised.
[8] Though they have sought solutions in the past to determine which Band Member should be considered "ordinarily resident", and who should be entitled to vote, no advice has yet been provided by DIAND.
[9] In order not to delay these proceedings any further, with the consent of all present, a solution was agreed to. The Court would leave in abeyance the determination of the application for Judicial Review.
[10] It was also agreed that because of the housing shortage, which has persisted on this reserve for many years and because many registered Band Members must live off the reserve and in order to provide fair elections, this Court must interpret "ordinarily resident" as defined in s. 3 of the Regulations governing Indian Band Elections. Section 3 reads as follow:
| 3. The following rules apply to the interpretation of the words "ordinarily resident" in respect all matter pertaining to the right of an elector to vote in an election: |
| (a) subject to the other provisions of this section, the question as to where a person is or was ordinarily resident at any material time or during any material period shall be determined by reference to all the facts of the case; |
| (b) the place of ordinary residence of a person is, generally, that place which has always been, or which has adopted as, the place of his habitation or home, whereto, when away there from, he intends to return and, specifically where a person usually sleeps in one place and has his meals or is employed in another place, the place of his ordinary residence is where that person sleeps; |
| (c) a person can have one place of ordinary residence only, and shall retain such place of ordinary residence until another is acquired; |
| (d) temporary absence from a place of ordinary residence does not cause a loss or change of place of ordinary residence. |
[11] The particular circumstances and facts give rise to a difficulty (lack of housing) that does not appear to be addressed under s. 3 of the Regulations. I hereby find as a fact that all registered Band Members of the Enoch Cree Nation who are living off reserve are hereby found to be "temporarily absent" (s. 3(d)) and that they are "ordinarily resident" of the reserve for the purpose of elections.
[12] All parties were in agreement that the application for Judicial Review should be stayed. The Order in Council of December 17, 1997, shall remain in full force and effect pending the outcome of a newly scheduled election for Chief of the Enoch Cree Nation.
[13] There was considerable discussion during the course of this hearing with respect to Band Council Elections. It was suggested that for a number of years the Council and Members of the Band wished to hold elections pursuant Tribal Custom and had advised DIAND. This request has remained unresolved because of the ongoing dispute as to who was eligible to vote in either an election or a referendum.
[14] With the consent of those present, it was also agreed that all members of the Enoch Cree Nation who are presently registered and recognized at the Band Headquarters as Members of the Band shall be considered "ordinarily resident" and shall be entitled to vote in future elections as well as referenda held on the reserve. It will nevertheless be in the absolute discretion of the Band Council to delete or add to the Band List provided they comply with the Indian Act, the Regulations governing Indian Band Elections and my interpretation of the definition of "ordinarily resident"
[15] It was further agreed and hereby ordered that the election of Chief Morin is hereby set aside and a new election for Chief of the Enoch Cree Nation reserve should be held March 20th, 1998.
[16] It is hereby further ordered that a Notice of Election shall be posted in compliance with the Regulations no later than February 6, 1998.
[17] It is hereby further ordered that a list of eligible voters shall be made available at the Band Office and accessible to all Band Members.
[18] It is hereby ordered that in conjunction with the election for Chief there shall be held a referendum to determine if the Band Membership wishes to return to elections by Tribal Customs rather than pursuant to the Indian Band Election Regulations enacted under the Indian Act.
[19] All registered members of this Band shall be entitled to vote in all future elections for Chief and Councillors on the Enoch Cree Nation, regardless of the outcome of the referendum.
[20] No order as to costs.
Ottawa, Ontario
January 27, 1998
JUDGE