Halifax, Nova Scotia, September 27, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
JENNIFER EDZERZA, HELEN CHARLIE,
AND JACINE FOX
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application by the applicant, Kwanlin Dün First Nation, for judicial review of a decision of the Kwanlin Dün First Nation Election Appeals Board (the Board) of July 27, 2005, which determined that the Board has jurisdiction to make a declaration respecting the validity of Kwanlin Dün First Nation law, i.e. the Rules and Procedures for Conduct of a Vote for Chief & Council, Kwanlin Dün First Nation, April 2005 (the Election Rules, 2005).
[2] Respondents Jennifer Edzerza and Helen Charlie are members of the Kwanlin Dün First Nation and respondent Jacine Fox was an unsuccessful candidate in the election at issue.
[3] The applicant requested an order prohibiting the Board from reviewing and making a declaration respecting the validity of the Election Rules, 2005.
[4] The respondents agreed with the relief sought by the applicant.
Background
[5] On April 1, 2005, the Council of Kwanlin Dün First Nation (the Council) enacted the Kwanlin Dün First Nation Constitution (the Constitution) and the Election Rules, 2005. On June 3 and 4, 2005, an election was held to elect a Chief and Council pursuant to the Election Rules, 2005.
[6] On June 28, 2005, the respondents commenced an appeal of the election on the grounds that the election was not conducted in accordance with the Election and Referendum Code contained in Schedule 3 of the Constitution, but was conducted in accordance with the Election Rules, 2005. The respondents (appellants) asserted that the Election Rules, 2005 were invalid as they were adopted by the Council in a manner not consistent with the Constitution.
[7] On July 4, 2005, the respondents filed a petition in the Supreme Court of the Yukon Territory seeking an order declaring that the Election Rules, 2005 are void and that the election of June 3 and 4, 2005 is void as it was not conducted pursuant to the rules and procedures of the Constitution.
[8] On July 7, 2005, the Board was constituted to hear the appeal of the respondents.
[9] On July 18, 2005, the respondents made a “Request to Council to Review its Decision” of April 1, 2005 adopting the Election Rules, 2005. The respondents sought reconsideration of the decision to enact the Election Rules, 2005 on the basis that the substantive amendments to the rules and procedures for elections were not in accordance with the requirements of the Constitution, and are therefore of no force and effect.
[10] On July 21, 2005, the Supreme Court of the Yukon Territory stayed the respondents’ petition pending a final decision of the Board.
[11] A preliminary issue raised by the respondents was whether the Board had jurisdiction to hear the appeal. The respondents contended that the Board did not have jurisdiction because the Constitution, which became effective on April 1, 2005, provided that an appeal in respect of an election must be heard by the Judicial Council of the Kwanlin Dün First Nation (the Judicial Council). However, the Judicial Council had not yet been appointed, for reasons not explained. The position advanced by the applicant was that the Board, a tribunal contemplated under the pre-Constitution Kwanlin Dün First Nation Election Regulations, 1999 (the Election Regulations, 1999), had jurisdiction to deal with the appeal in the absence of the Judicial Council. The applicant submitted that to conclude otherwise would create a void in the appeal process that was not contemplated or intended by the Constitution.
[12] After receiving written submissions from the parties on the question of jurisdiction, the Board issued an interim decision on July 21, 2005 concluding that it did have jurisdiction to hear the appeal. Reasons for that decision were given on July 25, 2005. A key issue for the Board was the interpretation of the transitional rules governing an appeal of an election.
[13] In its reasons, the Board cited subsection 66(4) of the Constitution, which states:
Any law, ordinance, resolution or agreement enacted or entered into by the Kwanlin Dün First Nation Band Council, and in force immediately before the Effective Date, continues in force to the extent that it is consistent with this Constitution, subject to any subsequent amendment or repeal, or in accordance with this Constitution.
[14] The Board also cited subsection 19(1) of Schedule 3 to the Constitution, which provides:
Until the Council amends this Act, or the Judicial Council adopts Rules of Procedure respecting electoral appeals, clauses 16.06, 16.07.01, and 16.08 through 16.17 inclusive of the Kwanlin Dün First Nation Election Bylaw in force immediately prior to the Effective Date [sh]all apply to an appeal under this Schedule, but a reference in any of those provisions to the Kwanlin Dün First Nation Election Appeals Board must be read as if it were a reference to the Judicial Council.
[underlining added]
[15] The Board agreed with the applicant that in the absence of a Judicial Council, the underlined portion of subsection 19(1) should be treated as inoperative, and that the Board should therefore be given the same jurisdiction that the Judicial Council would possess if it were constituted or capable of being constituted to deal with this appeal. The Board found that this interpretation was consistent with the fundamental spirit, purpose and intent of the Constitution to promote self-governance under the Constitution. The Board also stated that it should undertake only so much of the jurisdiction of the Judicial Council, as set out in the Constitution, as may be reasonably necessary to render a decision on the present appeal.
[16] On July 27, 2005, the Board held a hearing to address the substantive issues of the appeal. All parties agreed that the election had been conducted in accordance with the Election Rules, 2005. The chairperson of the Board requested submissions as to whether the Council had complied with subsection 49(1) of the Constitution in enacting the Election Rules, 2005. Counsel for the applicant objected to this on the ground that the Board had no jurisdiction to deal with issues of law or with the enactment of the law, and that its jurisdiction is confined solely to dealing with whether the election was conducted in compliance with the Election Rules, 2005. As the parties had agreed that there were no improprieties in this regard, counsel for the applicant urged that the Board had no option but to dismiss the appeal.
[17] The chairperson asserted at the hearing that the Board had jurisdiction to address not only the issue of compliance with the Election Rules, 2005, but also the constitutional validity of the Election Rules, 2005. The applicant objected to the Board exercising jurisdiction in respect of the constitutional validity of the Election Rules, 2005. Chief Mike Smith, concurred in by applicant’s counsel, sought and obtained an adjournment from the Board in order to seek advice of counsel.
[18] On August 9, 2005, the applicant filed this application for judicial review to challenge the Board’s decision of July 27, 2005, that it had jurisdiction to rule on the validity of the Election Rules, 2005. The Board decided not to reconvene the election appeal hearing pending the outcome of this application. The Board took no position in relation to the relief sought by the applicant and has not been joined as a respondent to this application.
[19] This application for judicial review is not opposed by the respondents.
Issues
[20] The applicant submitted the following issues for consideration in its memorandum of fact and law:
1. Whether the Board has jurisdiction to review and to make a declaration upon the validity of the Election Rules, 2005; and
2. Whether a writ of prohibition restraining the Board from reviewing and making a declaration upon the validity of the Election Rules, 2005 ought to issue.
Applicant’s Submissions
[21] The applicant submitted that the Board is a federal board, and this Court has jurisdiction to hear this application for judicial review and to issue the writ of prohibition sought.
[22] The applicant submitted that the legislative intent of the Kwanlin Dün First Nation Self-Government Agreement, the Election Regulations, 1999, and the Election Rules, 2005 is to give the Board final appellate jurisdiction in respect of the conduct of elections and to give the Council, the Judicial Council, the Supreme Court of the Yukon Territory and the Federal Court exclusive jurisdiction in respect of challenges to the validity of Kwanlin Dün First Nation law.
[23] The applicant submitted that the Constitution sets out a complete scheme for enacting Kwanlin Dün First Nation law and for challenging such law, first by appeal to the Council, then to the Judicial Council, then to the Supreme Court of the Yukon Territory. It was submitted that the validity of a Kwanlin Dün First Nation law may be challenged in the Supreme Court of the Yukon Territory (subsection 52(1) of the Constitution). However, before a person may challenge the validity of a Kwanlin Dün First Nation Law in the Supreme Court of the Yukon Territory, that person must first exhaust any other procedures established by Kwanlin Dün legislation for challenging the validity of that law (subsection 52(2) of the Constitution). Therefore, it was submitted that before the respondents can challenge the validity of the Election Rules, 2005 in the Supreme Court of the Yukon Territory, they must first, in accordance with paragraph 47(1)(e) of the Constitution, ask the Council to reconsider the enactment of the Election Rules, 2005 on the grounds that the enactment appears to have been made in a manner inconsistent with the procedures described in Part 4 of Chapter 7 of the Constitution.
[24] The applicant submitted that the power to consider questions of law can be bestowed on an administrative tribunal explicitly or implicitly by legislation (see Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854). It was submitted that there is no provision in the Election Regulations, 1999 or the Election Rules, 2005 vesting the Board with the power to determine the validity of Kwanlin Dün First Nation law, whereas, the Constitution expressly vests such power in the Council, Judicial Council and the Supreme Court of the Yukon Territory.
[25] The applicant submitted that the Board does not have the mechanism in place to adequately deal with multifaceted constitutional issues. For example, the Board is not bound by traditional rules of evidence, and thus a Board may receive unsworn evidence, hearsay evidence and simple opinion evidence. It was submitted that such an unrestricted flow of information is inappropriate in determining the validity of legislation. Moreover, it was submitted that the Board lacks special expertise with respect to questions of law.
[26] The applicant submitted that one of the objectives of judicial review is to prevent administrative bodies from doing acts that they do not have the power to do, and one method of accomplishing this that is recognized in the Federal Courts Act is to obtain a writ of prohibition (see Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1997] 2 F.C. 36 at paragraph 25 (C.A.), affirmed [1997] 3 S.C.R. 440). The applicant submitted that prohibition is a preventative rather than corrective remedy (see Krause v. Canada, [1999] 2 F.C. 476 at paragraph 17 (C.A.)). It was submitted that prohibition should only be issued and maintained when the tribunal exceeds its jurisdiction or has exercised a jurisdiction which is not within its competence (see Bauer v. Canada (Immigration Commission), [1984] 2 F.C. 455 at paragraph 12 (T.D.)).
[27] The applicant submitted that the appropriate remedy, in light of the Board’s express intention to rule on the validity of the Election Rules, 2005, is to order a writ of prohibition restraining the Board from reviewing and making a declaration upon the validity of the Election Rules, 2005.
Respondents’ Submissions
[28] The respondents did not file written submissions.
Analysis and Decision
[29] On April 1, 2005, the Kwanlin Dün First Nation enacted their Constitution and the Election Rules, 2005. The Constitution and the Election Rules, 2005 set out provisions for the conduct of elections of the Chief and Council, and replaced the Election Regulations, 1999 which were previously in force.
[30] Pursuant to subsection 16(1) of Schedule 3 of the Constitution, an appeal respecting the electoral process may be made to the Judicial Council. Pursuant to subsection 22(1) of the Election Rules, 2005, an appeal in respect of the conduct of a vote shall be made to the Judicial Council.
[31] No Judicial Council has been constituted. However, the Board was appointed to hear the appeal of the election at issue. The Board is an administrative body constituted under the pre-Constitution Election Regulations, 1999 for “the purpose of hearing any appeals resulting from the conduct of the election” (section 16.06 of the Election Regulations, 1999). These regulations empower the Board to uphold an appeal (section 16.15.01) or dismiss an appeal (section 16.15.05), and, where circumstances warrant, call a re-election or by-election or declare that certain candidates are ineligible to hold office (section 16.15.02 to 16.15.04). The Board found that in the absence of a Judicial Council, it was appropriate for the Board to assume jurisdiction to hear the appeal as if it were the Judicial Council properly constituted.
[32] One of the issues of the appeal is whether the Election Rules, 2005 are invalid under the Constitution of the Kwanlin Dün First Nation. At the hearing of July 27, 2005, the Board decided that it had jurisdiction to hear submissions and make a determination on the validity of the Election Rules, 2005. The applicant has asked this Court to decide whether the Board has jurisdiction to rule on this issue. The applicant submitted that the Constitution, the Election Rules, 2005 and the Election Regulations, 1999 do not explicitly or implicitly empower the Board to entertain questions on the validity of legislation. I agree. The legislation provides that the Board is constituted to hear an appeal in respect of the conduct of an election. The Judicial Council, which replaces the Board under the new Constitution, has authority to hear an appeal regarding the electoral process (subsection 16(1) of Schedule 3 to the Constitution). There is nothing in the legislation which would evidence the intent of the legislators to confer upon the Board or the Judicial Council, the authority to make determinations on the validity of Kwanlin Dün First Nation legislation in the context of an appeal of an election. Questions of the validity of such legislation, including the issue of whether a provision was properly enacted under the Constitution, are to be determined by the Council, the Judicial Council, or the Supreme Court of the Yukon Territory, in accordance with the Constitution.
[33] I note that the respondents, who have not opposed this application for judicial review, have sought to challenge the validity of the legislation by filing a petition in the Supreme Court of the Yukon Territory (which was stayed pending a decision by the Board), and also by submitting a Request to Council to reconsider the enactment of the Election Rules, 2005 pursuant to paragraph 47(1)(e) of the Constitution. I agree with the applicant that the proper means of challenging the validity of the Election Rules, 2005 is first, to exhaust the legislated procedures for challenging the validity of laws (subsection 52(2) of the Constitution), in particular, by submitting a Request to Council, as the respondents have done.
[34] In my view, the Board does not have jurisdiction to rule on the validity of the Election Rules, 2005 and it is appropriate in the circumstances to issue an order of prohibition.
[35] The application for judicial review is therefore granted and an order of prohibition will issue, prohibiting the Board from ruling on the constitutional validity of the Election Rules, 2005.
JUDGMENT
[36] IT IS ORDERED that the application for judicial review is granted and an order of prohibition will issue, prohibiting the Board from ruling on the constitutional validity of the Election Rules, 2005.
ANNEX
Relevant Legislation
The relevant provisions of the Kwanlin Dün First Nation Constitution are as follows:
1. (1) In accordance with the inherent right of self-government and the Kwanlin Dün First Nation Self-Government Agreement, the Kwanlin Dün declare and confirm the establishment of the Kwanlin Dün First Nation to:
(a) promote the common interests and shared welfare of the Kwanlin Dün; and
(b) give effect to:
(i) the Kwanlin Dün First Nation Final Agreement, as recognized and protected by the Constitution of Canada, and
(ii) the Kwanlin Dün First Nation Self-Government Agreement.
2. (1) This Constitution is the supreme law of the Kwanlin Dün First Nation.
(2) If any law enacted by the Kwanlin Dün First Nation is inconsistent with this Constitution, that law is, to the extent of the inconsistency, of no force or effect.
(3) Each Schedule attached to this Constitution is part of the Constitution, unless a provision of this Constitution expressly states that a particular Schedule has the status of ordinary Kwanlin Dün First Nation legislation.
47. (1) A Citizen may request the Council to reconsider any of its decisions, including the enactment or amendment of any Kwanlin Dün First Nation law, on the grounds that the decision appears to:
…
(e) have been taken in a manner inconsistent with the procedures described in Part 4 of this Chapter, if the decision resulted in the enactment or amendment of Kwanlin Dün First Nation law.
(2) The Council must consider any request under subsection (1) at its next meeting following receipt of the request.
(3) A decision that is the subject of a request under this section remains in force unless the Council changes or repeals it, subject to a decision of the Judicial Council under Section 56(1)(d).
49. (1) The Council will have enacted an Act or Regulation when the following events have occurred:
(a) at the meeting of the Council at which the motion is first made, the Council has decided by Preliminary Vote, to accept the introduction of that Act or Regulation for later consideration;
(b) a notice concerning the proposed Act or Regulation has been published, copies have been made available to Citizens, and those Citizens have been informed how they can submit their opinions concerning the proposed Act or Regulation;
(c) at a second meeting of the Council held after the period of time for public discussion, the Council has debated both the general purpose and the details of the proposed Act or Regulation, and decided by Preliminary Vote to accept the proposed Act or Regulation, with or without amendments;
(d) at a third meeting of the Council, held at least 14 days after the meeting referred to in paragraph (c), the Council has decided by final vote to enact the proposed Act or Regulation; and
(e) the Chief and a quorum of Councillors has signed the Act or Regulation.
…
52. (1) Subject to subsection (2), the validity of a Kwanlin Dün First Nation law may be challenged in the Yukon Supreme Court.
(2) Before a person may challenge the validity of a Kwanlin Dün First Nation law in the Yukon Supreme Court, that person must first exhaust any other procedures established by Kwanlin Dün legislation for challenging the validity of that law.
…
56. (1) The Judicial Council is responsible and has authority to perform any of the following functions:
…
(d) consider an application by a Citizen challenging a decision of the Council on any ground set out in section 47(1), if that decision has been upheld by the Council under section 47, and make a declaratory order either
(i) affirming the decision of the Council; or
(ii) setting aside the decision of the Council.
…
(2) A person may not bring an application referred to in subsection (1)(d) unless that person has first submitted a request to the Council to reconsider the matter under section 47.
66. …
(4) Any law, ordinance, resolution or agreement enacted or entered into by the Kwanlin Dün First Nation Band Council, and in force immediately before the Effective Date, continues in force to the extent that it is consistent with this Constitution, subject to any subsequent amendment or repeal, or in accordance with this Constitution.
68. (1) When interpreting this Constitution, or any of the Schedules, the Judicial Council, a court, tribunal or forum must:
(a) promote the values that are set out in it, or underlie it; and
(b) promote the spirit, purport and objects of the Constitution.
…
Schedule 3 to the Constitution (Election and Referendum Code) sets out the following provisions concerning an appeal of an election:
16. (1) An appeal regarding the electoral process may be made to the Kwanlin Dün First Nation Judicial Council within:
(a) 30 days after the election decision from which the appeal is taken; or
(b) such shorter time prescribed by the Judicial Council Rules of Procedure in a particular case.
(2) In its consideration of appeals, the Judicial Council must abide by the procedures outlined in this Constitution, and its rules of procedure.
(3) A decision of the Judicial Council on an appeal is final.
19. (1) Until the Council amends this Act, or the Judicial Council adopts Rules of Procedure respecting electoral appeals, clauses 16.06, 16.07.01, and 16.08 through 16.17 inclusive of the Kwanlin Dün First Nation Election Bylaw in force immediately prior to the Effective Date [sh]all apply to an appeal under this Schedule, but a reference in any of those provisions to the Kwanlin Dün First Nation Election Appeals Board must be read as if it were a reference to the Judicial Council.
Provisions of the Kwanlin Dün First Nation Election Regulations, 1999 concerning the Kwanlin Dün First Nation Election Appeals Board are set out below.
16.01 For the purpose of hearing any appeals resulting from the conduct of the election, an Appeals Board shall be established. Such an Appeals Board shall be referred to as the Kwanlin Dün First Nation Election Appeals Board.
16.06 Any eligible voter may lodge an appeal against a Kwanlin Dün First Nation Election by:
16.06.01 filing within thirty days of the Kwanlin Dün First Nation Election a written document on which shall appear,
16.06.02 the grounds pursuant to these Bylaws and Regulations on which the election is appealed,
16.06.03 the evidence in support of the grounds, and
16.06.04 the signature of a person initiating the appeal.
16.06.05 Such notice of appeal shall;
16.06.06 be served either personally on the Chief Electoral Officer or by forwarding the appeal to the Kwanlin Dün First Nations Election Appeals Board via registered mail, mailed within such period, addressed to …
16.07.01 Upon receipt of an appeal, the Kwanlin Dün First Nation Election Appeals Board shall cause a copy of the appeal to be served on all candidates of the Kwanlin Dün First Nation Council and the Chief Electoral Officer.
…
16.11 Upon expiry of the time for filing replies, the Kwanlin Dün First Nation Election Appeals Board shall meet to hear and determine the outcome of the application.
16.12 In their deliberations, the Kwanlin Dün First Nation Election Appeals Board may, in their sole discretion;
16.12.01 make regulation and orders governing the conduct of any hearings or any proceedings of the board,
16.12.02 conduct hearings with the Appellant, the Respondent and any witnesses the parties may require or permit to be heard,
16.12.03 cause the appearances of witnesses for the Appellant or Respondent and any additional individuals who may, in the Board’s opinion, assist the outcome of the proceedings,
16.12.04 examine the record(s), and
16.12.05 generally conduct the proceedings in a manner which the Board, in its sole discretion, deem necessary and appropriate in order to formulate an informed decision.
…
16.15 The final decision of the Kwanlin Dün First Nation Election Appeals Board shall be;
16.15.01 to uphold the appeal and, in the sole discretion of the Kwanlin Dün First Nation Election Appeals Board,
16.15.02 to present instructions to the Chief Electoral Officer, if circumstances warrant, that the entire election be set aside and to conduct a re-election whereby all seats for the Kwanlin Dün First Nation Council are declared vacant and a new election is held forthwith,
16.15.03 where circumstances warrant that only one or more seats be declared vacant and a by-election for the original term for which the contested election was called is held forthwith, for the remainder of the original term,
16.15.04 declare that a candidate or candidates for any of the governing bodies is in breach of these Bylaws or Regulations and ineligible to hold office and to declare the candidate with the next highest number of votes to be elected, or
16.15.05 dismiss the appeal.
16.16 The decision of the Kwanlin Dün First Nation Election Appeals Board shall be final and binding upon the parties.
16.17 Any person lodging an appeal may at any time before a final decision is rendered by the Kwanlin Dün First Nation Election Appeals Board withdraw his appeal and such an appeal is thereupon dismissed.
The Rules and Procedures for Conduct of a Vote for Chief & Council, Kwanlin Dün First Nation, April 2005 set out the following provision governing an appeal in respect of an election:
22. (1) Any request for an appeal respecting the conduct of the vote shall be made to the KDFN Judicial Council within:
(a) 30 days after the election decision; or
(b) such shorter time prescribed by the Judicial Council Rules of Procedure in a particular case.
(2) In its consideration of appeals, the KDFN Judicial Council must abide by the procedures outlined in the KD Constitution, and its rules of procedures.
(3) A decision of the Judicial Council on an appeal is final.
(4) If the Judicial Council is not in place, the rules established by the Kwanlin Dun Indian First Nation (pre-April 1, 2005) will apply as set out in the Constitution of the KDFN.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1383-05
STYLE OF CAUSE: KWANLIN DÜN FIRST NATION
- and –
JENNIFER EDZERZA, HELEN CHARLIE,
and JACINE FOX
PLACE OF HEARING: Whitehorse, Yukon Territory
DATE OF HEARING: March 30, 2006
REASONS FOR JUDGMENT: O’KEEFE J.
APPEARANCES:
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Gary W. Whittle
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No One Appearing
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SOLICITORS OF RECORD:
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Whittle & Company Whitehorse, Yukon Territory
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Miller Thomson LLP Whitehorse, Yukon Territory
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