Date: 19990415
Docket: T-573-99
BETWEEN:
MELVIN ISNANA
Plaintiff
| - and - |
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY THE MINISTER OF INDIAN
AND NORTHERN AFFAIRS FOR CANADA and MARJORIE TAWIYAKA
Defendants
REASONS FOR JUDGMENT
SHARLOW, J.:
[1] This is an interim application by the Plaintiff for an order directing the Minister of Indian and Northern Affairs to reverse any actions taken and any notices given regarding the removal of the Plaintiff from the office of Chief of Standing Buffalo Dakota Nation.
[2] The Standing Buffalo Dakota Nation is exempt from section 74 of the Indian
Act and as a result is permitted to hold elections under its own law, referred to as the "Election Act."
[3] The Election Act contains detailed provisions for an appeal of any election to the Senate Council, which has exclusive jurisdiction to determine such appeals. The Senate Council is a tribunal of seven members and two alternates. They are appointed by the members of Standing Buffalo Dakota Nation who are 60 years of age or older from among themselves.
[4] On November 16, 1998 the Standing Buffalo Dakota Nation held an election for Chief and six Councillors pursuant to the Election Act. The Plaintiff was declared winner of the office of Chief. The unsuccessful candidate for that office was Mr. Wayne Goodwill. Soon after the results of the election were declared, Mr. Goodwill purported to appeal the election. There is some evidence that the Senate Council met on December 15, 1998 and considered the appeal, and in the result decided to hold a new election for Chief. There is also some evidence that on December 16, 1998, the Senate Council rescinded its decision of December 15, 1998.
[5] The Plaintiff argues that the provisions of the Election Act were not complied with in the commencement of the appeal or the manner in which it was dealt with by the Senate Council on December 15, 1998, and that in any event the decision made on December 16, 1998 was valid and had the effect of upholding the election.
[6] Although the affidavits filed in support of his application contain evidence that tends to support the Plaintiff's arguments, I cannot at this stage determine the validity of the appeal, or the validity or legal effect of either of the decisions of the Senate Council. The affidavits filed on behalf of the Plaintiff leave some significant questions unanswered and they have not been the subject of cross examination. Also the Defendants have adduced no evidence that is relevant to those issues. That is not due to any lack of diligence on their part. It is simply a function of the speed with which the Plaintiff has pressed his application. (I do not suggest any criticism of the Plaintiff in that regard). In any event, as I understand the application, it is not necessary at this stage for me to determine the validity of Mr. Goodwill's appeal or the validity or legal effect of the decisions of the Senate Council on December 15, 1998 and December 16, 1998. The only application before me is for an order against the Minister relating to subsequent events.
[7] It appears that on December 21, 1998, the Defendant Ms. Tawiyaka, ostensibly in her capacity as Chairperson of the Senate Council, wrote a letter to a representative of the Minister giving her version of the proceedings in the Senate Council. She indicated in that letter that on December 15, 1998 the Senate Council had decided to hold a new election for Chief and that whatever may have happened on December 16, 1998 did not invalidate that decision or render it ineffective. She also asks for assistance in "the process of carrying out our decision of December 15, 1998"1.
[8] The present application arises from the Minister's response to that letter, which was a letter from a Ministry official dated March 17, 1999 addressed to the Council of the Standing Buffalo Dakota Nation. The March 17 letter contains an analysis of the events as described by Ms. Tawiyaka and certain provisions of the Election Act. I agree with Plaintiff's counsel when he says that this letter reads as though the Minister had been asked to undertake a judicial review and had done so but without due process.
[9] It is argued for the Plaintiff that the March 17 letter was a decision that had the effect of removing the Plaintiff from his office as Chief, or alternatively that it was interpreted as such, and in any event has resulted in steps being taken to hold a new election for Chief.
[10] The Minister's position is that the March 17 letter is not and was not intended to be a decision at all, much less a decision with the effect of determining whether or not the Plaintiff was the Chief. The Minister says that this letter merely acknowledges the information received from Ms. Tawiyaka, as Chairperson of the Senate Council, to the effect that the election of the Plaintiff as Chief had been successfully appealed and that a new election for Chief had been ordered.
[11] It is agreed by all parties, and there can be no doubt, that the Minister has no right to determine whether or not the Plaintiff is entitled to hold the office of Chief. Nor is the Minister entitled to adjudicate the validity or legal effect of any decision of the Senate Council. That leads to two conclusions.
[12] First, neither the March 17 letter nor any other act of the Minister had the effect of determining the Plaintiff's entitlement to the office of Chief. The only possible effect of the March 17 letter is to signify acceptance of the information provided by Ms. Tawiyaka. Whether that information was correct is disputed, but the resolution of that dispute is not a matter for the Minister.
[13] Second, an order directing the Minister to reverse any actions taken and any notices given regarding the removal of the Plaintiff from the office of Chief would similarly have no legal effect. Whether or not such an order is made against the Minister, the entitlement of the Plaintiff to hold the office of Chief depends, first, upon the result of the election of November 16, 1998, and second, upon the validity and legal effect of the decisions of the Senate Council. The statement of claim that commenced this proceeding apparently is intended to have those questions adjudicated by this Court.2
[14] It follows that the Plaintiff's application for an interim order must be dismissed.
[15] The Plaintiff asks for costs of this application. I have considered that even though this application has not succeeded, the root of the controversy is that the March 17 letter was worded in a way that misled the members of the Standing Buffalo Dakota Nation into believing that the Minister had or had exercised authority over the election for Chief. That misunderstanding may well have led to difficulties in the governance of Standing Buffalo Dakota Nation that could have been avoided. For that reason I consider it appropriate to order the costs of this application to be borne by the Minister.
"Karen Sharlow"
JUDGE
April 15, 1999
Calgary, Alberta
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-573-99
STYLE OF CAUSE: MELVIN ISNANA v. HER MAJESTY THE QUEEN
IN RIGHT OF INDIAN AND NORTHERN AFFAIRS
FOR CANADA and MARJORIE TAWIYAKA
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: April 15, 1999
REASONS FOR JUDGMENT OF SHARLOW, J.
DATED: April 15, 1999
APPEARANCES:
Mr. Anthony Merchant for the Plaintiff
Mr. Dale Kohlenberg for the Defendant
(Her Majesty the Queen
in Right of Canada)
Mr. Terry Jordon for the Defendant
(Marjorie Tawiyaka)
SOLICITORS OF RECORD:
Merchant Law Group
Regina, Saskatchewan for the Plaintiff
G. W. Thomson
Deputy Attorney General of Canada
Ottawa, Ontario for the Defendant
(Her Majesty the Queen
in Right of Canada)
Willows, Tulloch, Howe
Regina, Saskatchewan for the Defendant
(Marjorie Tawiyaka)
__________________1 The Plaintiff argues that Ms. Tawiyaka had no authority to write that letter. This application does not require me to determine whether or not that is so, even if I had sufficient evidence to do so.
2 It was suggested in argument that the Plaintiff was not correct to commence this proceeding by way of Statement of Claim and should have made an application for judicial review. That issue is not before me.