Date: 19980828
Docket: T-299-98
BETWEEN:
PETER JOSEPH YELLOWQUILL,
applicant,
- and -
THE ATTORNEY GENERAL OF CANADA,
respondent,
MARVIN DANIELS in his capacity as holder of the
disputed Office of the Chief, David Meeches, Selma
Francis/ Perswain, Tony Daniels, and Lloyd Longclaws,
holders of the disputed offices of Councillors
for the Long Plain First Nation, the Long Plain First
Nation Council and Margaret Assiniboine/Myran in her
capacity as Electoral Officer
respondents.
REASONS FOR ORDER
TEITELBAUM J.:
[1] This decision relates to a Re-Amended Originating Notice of Motion dated April 29, 1998 and filed into the Federal Court Registry on April 29, 1998. According to the Re-Amended Originating Notice of Motion, the applicant, Peter Joseph Yellowquill, hereinafter referred to as "Yellowquill", seeks judicial review of a decision of the Electoral Officer of the Long Plain First Nation, Margaret Assiniboine/Myran dated February 24, 1998 not to hold a general election on April 4, 1998. In addition, Yellowquill is seeking an Order of Mandamus "and an order requiring the respondent Electoral Officer, Margaret Assiniboine/Myran to forthwith do all things and take all actions and steps which are required in order to hold a general election for Chief and Council of the Long Plain First Nation."
[2] I think it necessary, in order to better understand these reasons, to list the grounds as stated in the present application.
| 1. The applicant relies on Sections 18 and 18.1 of the Federal Court Act; |
| 2. The decision or decisions of the respondent Electoral Officer did not comply with the principles of natural justice or procedural fairness, and the decision was made in excess of her jurisdiction and authority; |
| 3. The Electoral Officer failed in her duty to act fairly before making her decision and erred in reconsidering and changing her decision to hold an election in April 1998. There is reasonable apprehension of bias and of institutional bias by the Electoral Officer in favour of Marvin Daniels, David Meeches and Band Council from whom she obtains directions as to how to act; |
| 4. The Long Plain First Nation Election Act, which governs elections on the Long Plain First Nation, does not provide for the extension of the term of office of Chief and Council beyond the previously set term of April 4, 1998; |
| 5. On September 12, 1996, the Election Committee, being a federal board or tribunal, decided "to set the dates for a general election for four (4) Councillors and one (1) Chief with a new mandate to April 1998 as directed by the Elders on May 24, 1996". That purported decision of the Elders, the Election Committee and the Electoral Officer to call an election and to take steps to hold an election on that basis have not been set aside or quashed by appeal or otherwise and an election was held on November 5, 1996, in accordance with those decisions. |
| 6. At public meetings at which the said Elders were present, both electors and candidates for the November 5, 1996 election were advised that the election being called was to finish the term of the previous Council - that is until April 4, 1998. At no time prior to the November 5, 1996 election were electors or candidates advised otherwise and the vote and election was conducted on that basis. |
| 7. In Federal Court File No. T-2158-96, the applicant unsuccessfully sought to set aside the decision of the Elders to call a "... general election for four Councillors and one Chief with a new mandate to April 4, 1998." None of the said Elders who were named as Respondents advised that this did not reflect their decision. The purported decisions cannot be collaterally attacked by the Respondents. |
| 8. The Respondents and said Elders, by their conduct, are estopped from stating or taking a position that the term of office is for a period greater than April 4, 1998. |
| 9. The Election Act which governs elections requires the electoral officer to oversee and co-ordinate elections in accordance with its provisions. The Electoral Officer has not carried out the duties required of her. |
| 10. Such further and other grounds as the applicant may advised and this Honourable Court permit. |
[3] The applicant filed, in support of his application, the following affidavits:
| 1. The affidavits of Peter Joseph Yellowquill sworn on February 23, 1998, March 23, 1998 and April 29, 1998. |
| 2. The affidavit of Sheila Yellowquill sworn on March 23, 1998. |
| 3. The affidavit of Max Merrick sworn on March 23, 1998. |
| 4. The affidavit of Elder Flora Houle sworn on April 18, 1998. |
| 5. The affidavit of Jean Prince sworn on April 20, 1998. |
| 6. The affidavit of Elder Doreen Prince sworn on April 29, 1998. |
| 7. The affidavit of Melvin Longclaws sworn on April 29, 1998. |
| 8. The affidavit of Bernadette Myran sworn on April 29, 1998. |
[4] In addition to the above affidavits, Yellowquill filed the cross-examinations of Margaret Assiniboine/Myran, George Myran, Marvin Daniels and David Meeches as well as the exhibits to the said cross-examinations.
[5] The respondent, Margaret Assiniboine/Myran, in support of her position, filed the affidavits of Margaret Assiniboine/Myran, sworn February 26, 1998, March 6, 1998 and April 13, 1998, of David Meeches sworn February 26, 1998 to which Exhibits "A" and "H" are included, of Marvin Daniels affirmed April 14, 1998, of Rosalind Merrick affirmed March 30, 1998, as well as the transcripts of cross-examination of Peter Yellowquill, Bernadette Myran, Melvin Longclaws, Max Merrick, Doreen Prince, Sheila Yellowquill and Flora Houle.
[6] In addition, various exhibits were filed by the respondents.
FACTS
[7] On May 24, 1996, the Elders of the Long Plain First Nation (LPFN) met and passed a resolution to dissolve the government of the LPFN and to hold a "general" election. At this time, the Chief of the LPFN was the present applicant, Yellowquill.
[8] Exhibit 7 to the affidavit of Margaret Assiniboine/Myran (MA/M) is a Resolution passed at the said meeting. It is stated therein "that the Present Government of Long Plain First Nation be dismissed and a General Election be held."
[9] According to the Resolution passed at the meeting of May 24, 1996, there were 40 Elders in attendance at the said meeting but the vote on the said Resolution was "in favour 34, opposed 2, abstained 2". I do not know about the two "missing elders".
[10] In any event, the Resolution states, "The Motion is Carried" and then states, "The Motion and the results of the vote were read aloud by Mary A/Myran for verification and accuracy. Everyone was in agreement."
[11] It appears from the last line of the document that the notes of this meeting were taken by MA/M on May 24, 1996.
[12] The above is important as it shows that MA/M, the present respondent, was at the meeting and would be in an excellent position to know what the Elders meant when they called for a general election dismissing the present government of the LPFN.
[13] As will be seen, the issue in this judicial review is to determine what the Elders meant by calling for a "general election."
[14] On June 3, 1996, the government of the LPFN passed a Band Council Resolution which adopted and confirmed the resolution of the Elders.
[15] The minutes of the Election/Appeal Committee Meeting of September 12, 1996, state in part :
| After reviewing all the documentation on file since 24 May 1996, it is the decision of the Election/Appeal Committee to set the dates for a general election for four (4) Councillors and one (1) Chief with a new mandate to April, 1998 as directed by the Elders on May 24, 1996. |
| (emphasis added) |
[16] At the Open Forum on October 13, 1996, Dennis Meeches argued that since a "general election" was being called, it should be a four-year term and that MA/M was considering it "as a by-election, almost, in that sense." MA/M said that she would seek clarification from the Elders although the applicant states that this was never done. Moreover, the applicant claims that some Elders were at the meeting and they did not say that she was incorrect.
[17] Prior to the November 5, 1996 election, it is unclear whether all councillors had resigned but it is certain that Chief Yellowquill had not resigned. On September 27, 1996, Yellowquill commenced proceedings in the Federal Court to prevent the election of November 5, 1996 and to challenge the authority of the Elders to call the election. The application was dismissed on January 17, 1997. As a result of the election, the respondents Marvin Daniels, David Meeches, Selma Francis/Perswain, Tony Daniels and Lloyd Longclaws were elected Chief and Councillors, respectively.
[18] In a letter to the Chief and Council of the Long Plain First Nation dated January 21, 1998, MA/M writes:
| I need to know from the Council what is happening with the General Election that is to be held in April, 1998. That is the date that the previous Council's term is up, that is the last General Election was held in April, 1994. |
| I have been reviewing my notes from the Elder's meeting that dissolved the previous Council. As you know, I was in the meeting with the Elders that day on May 24, 1996. I was of, and still have, the understanding that the decision of the Elders that day was to call a special election; to dissolve that particular Council; and to have the next Council (that was to be elected due to the special election) finish off the term of the Council that was being dissolved. |
| ... |
| The following are dates to consider and timelines for each. |
The dates refer to the nomination of the Election Committee, the posting of the Notice of Nominations, conducting the nomination meeting, posting the Notice of the Election Day and the Public Forum, holding the Public Forum and Election Day. Finally, she writes:
| Please let me know if you concur with these dates as soon as possible so I can begin preparation. |
[19] Following receipt of the letter, Marvin Daniels and David Meeches suggested to MA/M that their view was that an election was not required until the year 2000.
[20] MA/M made a verbal resignation on February 17, 1998 but revoked her resignation on February 23, 1998, the same day that the Originating Notice of Motion was filed. On February 24, 1998, the same day that she was served, MA/M wrote a memo indicating her position that an election would not be held in April 1998 because the present Council's term of office was until the year 2000. MA/M posted a public notice to that effect.
[21] The applicant seeks judicial review of that decision.
SUBMISSIONS
1. The Applicant's Submissions
[22] The applicant submits that since the electoral officer is appointed by Band Council pursuant to the Election Act, her decisions are subject to judicial review. Moreover, the applicant argues that it is only appropriate for a federal board to take an active role in proceedings when questions of their jurisdiction are involved. By taking an active role, the applicant submits that this shows that MA/M is clearly biased in favour of Band Council who do not wish an election to be held.
[23] The applicant's second submission is that the new decision reflected in the February 24, 1998 memo ought to be quashed on the ground that it constitutes an unauthorized reconsideration of the January 21, 1998 decision. The applicant argues that no new evidence or submissions were received by MA/M and the Election Act confers no power on her to reverse her decision to allow an election. The applicant adds that her testimony that she had not made a decision is not credible given that David Meeches used the words "changed her decision" and that MA/M admitted under cross-examination that she had not received further information prior to her February 24, 1998 memo. Finally, the applicant submits that Band Council had 30 days to seek judicial review of the Electoral Officer's decision to call an April 1998 election.
[24] The applicant's third submission is that the Electoral Officer and Band Council allowed the November 1996 election to be conducted based on the recorded decision of the Election Committee dated September 12, 1996 which used the words "general election" to refer to a term expiring April 1998. The minutes of that meeting were the focus of a judicial review prior to the November 1996 election and, the applicant argues, the Long Plain community was aware of the court proceeding. Furthermore, the Electoral Officer stated at the public forum, which was attended by 50 to 75 people, that the "general election" was to finish the term. The applicant argues that continued silence by Band Council and the Electoral Officer constitutes conduct giving rise to estoppel. The applicant argues that the people present at the public forum were representative of different clans and they expected to be advised if the Electoral Officer's belief was incorrect.
[25] The applicant's fourth submission is that the Electoral Officer's February 24, 1998 decision should be quashed due to a reasonable apprehension of bias. The applicant notes that the electoral officer is a band employee and that Band Council has control over her renumeration and expenses. The applicant also notes that MA/M was aware that the Band Council stopped paying Yellowquill's salary when he attempted to oppose the Band Council. Moreover, MA/M proposed that her aunt, Marg Pelletier, sit on the election committee even though:
| a) MA/M had received a letter from Band Council objecting to Marg Pelletier's appointment due to public statements indicating her bias; |
| b) Marg Pelletier had charged Yellowquill with assault; |
| c) MA/M's personal notes of October 28, 1994 state that Marg Pelletier had voted in favour of having Yellowquill removed at a Band meeting on October 27, 1994. Two other members also voted to have Yellowquill removed, yet MA/M proposed their names for the Election Committee as well. |
[26] Furthermore, the applicant submits that it is totally inappropriate for a Federal Board to actively correspond with the adverse party and provide drafts of affidavits which are filed in support of the adverse party's case.
[27] Moreover, in paragraph 12 of MA/M's February 26, 1998 affidavit, she deposes that:
| Both of these documents (May 24, 1996 Minutes and the June 3, 1996 Band Council Resolution) reflect the fact that what the Elders decided was to hold a general election, not that the term for those elected would be only to April 1998. |
Yet in her September 12, 1996 Election Committee Minutes and her January 21, 1998 letter, she confirms her understanding that the term was only to April 1998 and she used the words "general election" to convey that message. The applicant also submits that the Electoral Officer made a concerted effort not to disclose her letter of January 21, 1998 until just before her cross-examination.
[28] The applicant's final submission is that the evidence clearly confirms that the May 24, 1996 decision of the Elders to dissolve the LPFN and hold a general election was advisory in nature. The applicant argues that any personal opinion to the contrary is inconsistent with the Long Plain First Nation Constitution and the Long Plain First Nation Election Act. Given that four councillors had allegedly resigned approximately midway through the four year term, the applicant claims that the Election Act clearly sets out that the new government were to be in office until April 1998. The applicant submits that the Elders have no authority to call a general election and Yellowquill's inability to set aside that decision does not matter.
2. The Respondent's Submissions
[29] The respondent submits that the November 5, 1996 election was a general election and that the term of office is four years. Moreover, the respondent contends that there were no limits placed on the usual four year term of office by the Elders or Band Council whose Resolutions called for the election. The respondent argues that the first time anyone mentions that there is a limit on the term of office is when MA/M produces her letter of January 21, 1998.
[30] The respondent's next submission is that since Yellowquill's challenge of the November 5, 1996 election was dismissed, he cannot contest those events and they must be accepted as valid and enforceable.
[31] The respondent's final submission is that the Electoral Officer and the Election/Appeal Committee does not have the authority to limit the term of office for candidates elected in a general election. The respondent argues that any opinions or personal beliefs they may have held are of no consequence.
DISCUSSION
[32] As I mentioned previously, the issue is whether the "general election" of November 5, 1996 granted the elected representatives of the LPFN a term of office until April 1998 or 2000. There is no question that the election was valid, the only question is the term of office for the government. I should add that I do not find it necessary for the purposes of this judicial review to discuss the applicant's arguments concerning bias and estoppel. Moreover, given that I find that MA/M's letter to the Band government dated January 21, 1998, is not a decision, I also find that the decision of February 24, 1998 not to call an election is not a reconsideration and, therefore, it is not necessary to consider the jurisprudence concerning unauthorized reconsiderations.
[33] Turning to the evidence, the applicant has brought forth affidavits from the elders of the LPFN where the affiants state that the term of office was only until April 1998. Moreover, the minutes of the Election/Appeal Committee meeting of September 12, 1996, authored by MA/M, state that the mandate of the new government would be to April 1998. Finally, MA/M wrote a letter to the Chief and Council, dated January 21, 1998, in which she asks the government to consider appropriate dates for the upcoming election in April 1998.
[34] The respondent submits that it is clear from the videotape of the meeting of the LPFN Elders on May 24, 1996, that no one intended to limit the term of the new government to less than four years. However, the respondent has not provided any affidavits from any of the Elders which contradict the applicant's affidavits. It is particularly noteworthy that MA/M authored the Election/Appeal Committee's minutes and the January 21, 1998 letter to the Chief and Council and only changed her mind after she was contacted by Marvin Daniels and David Meeches following the aforementioned letter.
[35] I agree with the respondent that the personal beliefs of MA/M cannot change the term of the election. However, as a Band official in charge of election matters and as one who was at the Elders meeting on May 24, 1996, her understanding of the government's mandate is highly illustrative. Furthermore, it appears that only David Meeches questioned the term of the government at the Open Forum on October 13, 1996 and there is no evidence of any further inquiries until after the January 21, 1998 letter. It is relevant that none of the Elders at the Open Forum saw fit to correct MA/M's understanding that the government's mandate would be limited to less than two years.
[36] Given that the issue at hand is a question of fact, I am very reluctant to interfere. I may only grant relief if I am satisfied that the Electoral Officer, in the words of paragraph 18.1(4)(d) of the Federal Court Act:
| based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; |
a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; |
[37] I believe that the Electoral Officer has made an error that demands relief under paragraph 18.1(4)(d) of the Federal Court Act. The Electoral Officer's decision was based on the statements of two interested individuals almost two years after the November 1996 election and buttressed by her new interpretation of the May 1996 Elders Meeting and the June 1996 Band Council Resolution which, given the other evidence of which she was aware, are equivocal. Moreover, the decision was made in the face of MA/M's stated understanding that the mandate of the new government was until April 1998 and the implied, or express, acceptance of this mandate by the rest of the LPFN.
[38] Therefore, I order that the decision of MA/M dated February 24, 1998 not to hold a general election on April 4, 1998 be set aside.
[39] I further order that MA/M forthwith take all necessary steps which are required in order to hold a general election for Chief and Council of the Long Plain First Nation.
[40] I have given careful consideration to the issue of costs. I have determined that no costs are to be awarded in that the present applicant had made a number of applications and amended applications causing unnecessary delays.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, Ontario
August 28,1998