Ottawa, Ontario, October 27, 2006
PRESENT: The Honourable Barry Strayer
BETWEEN:
CHIEF BILLY GOODTRACK, WILLIAM PICKENS,
TERRY GOODTRACK, LORRI MACKINSTOSH,
CLIFF LECAINE and CAROLINE LECAINE-KERR, and
WOOD MOUNTAIN FIRST NATION NO. 160 COUNCIL
and
THE ATTORNEY GENERAL OF CANADA
(DEPARTMENT OF INDIAN AND NORTHERN AFFAIRS,
LAND AND TRUST SERVICES,
SASKATCHEWAN REGION
and
LORETTA LETHBRIDGE, ELLEN LECAINE
and ROSS LETHBRIDGE
REASONS FOR ORDER AND ORDER
[1] This proceeding concerns an objection made by the Respondents under Rule 318(2) in respect of the production of materials as requested by the Applicants in a proceeding for judicial review. They apply for judicial review in respect of a letter signed by Evelyn Shalapata of Indian and Northern Affairs Canada (INAC) of March 31, 2006 in which she acknowledged receipt of the results of a custom election purportedly held by the Wood Mountain Lakota Nation on March 24, 2006.
Facts
[2] The Wood Mountain First Nation conducts its elections under band custom. It is not in dispute that such elections are not held under section 74 of the Indian Act (Act), R.S., 1985, c. I-5. Section 2 of the Act provides that a band council for the purposes of the Act, where section 74 does not apply to its election, is “the council chosen according to the custom of the band…”. The last codification apparently adopted by this Band of its election customs is to be found in the Wood Mountain Lakota Nation Election Act of 2005 which was duly filed with INAC. On March 9, 2006, INAC received a Band Council Resolution purportedly adopted by the band council of the Wood Mountain Lakota Nation appointing an electoral officer for an election to be held on March 24, 2006 and requesting its band membership list maintained by INAC under section 11 of the Act. The membership list was provided and the election took place. On March 26, 2006, INAC received this electoral officer’s report of the results of the election. This resulted in the letter of March 31, 2006 from Ms. Shalapata to the Chief and Council recording the results of the election with Ellen Bernadette LeCaine being listed as the Chief together with four elected councillors also named in the letter. In the meantime, INAC had received on March 21, 2006 a report from a different electoral officer reporting on a different election held on March 16, 2006 reporting that William Goodtrack had been elected Chief by acclamation and that four other councillors had been elected. Some of these persons are among the Applicants in the judicial review proceeding.
[3] On April 24, 2006, the Applicants filed an application for judicial review “in respect of Evelyn Shalapata’s recording of the purported Wood Mountain First Nation ‘custom election’ results…” set out in her letter of March 31, 2006. In their Notice of Application they made a request pursuant to Rule 317 that the Respondents produce extensive materials which were described in the Notice Application. The Respondents object under Rule 318 to producing this material on the grounds that they are not a tribunal within the meaning of the Rule and the Federal Court Act as no reviewable decision was made by them or on their behalf.
[4] In particular the Respondents rely on the definition of “federal board, commission or other tribunal” in section 2 of the Federal Courts Act, R.S., 1985, c. F-7. That definition provides as follows:
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“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867 ;
[Emphasis added]
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« office fédéral » Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d'une prérogative royale, à l'exclusion de la Cour canadienne de l'impôt et ses juges, d'un organisme constitué sous le régime d'une loi provinciale ou d'une personne ou d'un groupe de personnes nommées aux termes d'une loi provinciale ou de l'article 96 de la Loi constitutionnelle de 1867.
[nos italiques]
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[5] They also rely on Rule 317(1) of the Federal Courts Rules which provides as follows:
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317. (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested.
[Emphasis added]
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317. (1) Une partie peut demander que des documents ou éléments matériels pertinents à la demande qui sont en la possession de l’office fédéral dont l’ordonnance fait l’objet de la demande lui soient transmis en signifiant à l’office fédéral et en déposant une demande de transmission de documents qui indique de façon précise les documents ou éléments matériels demandés.
[nos italiques]
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[6] They contend that the only role of INAC in a band custom election of a band council is to record the results. The election itself is conducted according to band custom which may or may not be codified. In this case it is codified, in the view of the Respondents, in the Wood Mountain Lakota Nation Election Act of 2005. Thus there was no decision of INAC or any of the Respondents which had any legal effect on determining which of these purported elections is valid.
Analysis
[7] I have concluded that the action taken by Ms. Shalapata in writing the letter of March 31, 2006 is not reviewable as the action of a “federal board, commission or other tribunal” as defined in section 2 of the Federal Court Act. To be such, the body or person must have, exercise or purport to exercise, jurisdiction or powers conferred by or under Act of Parliament.
[8] This Court has held that the reference to band custom elections in the definition of “council of the band” in section 2 of the Act does not create the authority for custom elections but simply defines them for its own purposes: see Bone v. Sioux Valley Indian Band No. 290 Council, 107 F.T.R. 133, at paras. 31-32. Thus such elections are not held under the authority of an Act of Parliament. Counsel for the Applicants did not draw to my attention any provision in the Act which gives to INAC the authority to decide who has won such an election. It was held by Justice Paul Rouleau in Lac des Mille Lacs First Nation et al. v. Canada (Minister of Indian Affairs and Northern Development), [1998] F.C.J. No. 94 (QL), at para. 4 that the Minister has no authority over such elections. Nor does INAC have any role in determining what is band custom for the purpose of governance of an election: see Chingee v. Chingee, [1999] 153 F.T.R. 257, at para. 13.
[9] For the same reason, the Applicants cannot demand materials from the Respondents under Rule 317(1) because it authorizes a request of materials in the possession of a “tribunal whose order is a subject of the application”. For the reasons given, there was no order here: see Gaudes v. Canada (Attorney General), 2005 FC 351; [2005] F.C.J. No. 434 (QL), at para. 16.
[10] I therefore uphold the objection of the Respondents to the production of materials as requested under Rule 317(1).
[11] The Respondents asked that, for the same reasons, I dismiss the application for judicial review without prejudice to the rights of the Applicants to commence another proceeding against different parties and perhaps seeking different remedies. The Applicants ask, in the alternative, if I should find against them on their main position, that I not dismiss the application for judicial review but allow it to be amended keeping the same parties and adding other parties and perhaps other remedies. I see little virtue in this having just determined that the Respondents are not subject to judicial review in the matter as presently pleaded. I believe it is in the interests of justice that the application for judicial review be dismissed without costs without prejudice to the rights of the Applicants to seek other remedies against appropriate parties. It would appear that a declaration or a writ of quo warranto could be sought in this Court against parties the Applicants consider to be unlawfully exercising power. This is not, however, to be taken to be an extension of time for seeking judicial review as provided in subsection 18.1(2) of the Federal Court Act. Such an extension will have to be sought on a proper motion to that effect.
Disposition
[12] The objection by the Respondents to production of materials under Rule 318(1) is sustained and the application for judicial review is dismissed, all without prejudice to the rights of the Applicants to seek other remedies against proper parties subject to the provisions of subsection 18.1(2) of the Federal Court Act.
JUDGMENT
THIS COURT ADJUDGES that:
1. the Respondents’ objection to production of materials under Rule 318(2) is sustained;
2. the application for judicial review is dismissed; and
3. this will be without prejudice to the rights of the Applicants to commence another proceeding for appropriate remedies against appropriate parties, subject to the requirements of subsection 18.1(2) of the Federal Court Act.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-719-06
STYLE OF CAUSE: CHIEF BILLY GOODTRACK ET AL v.
THE ATTORNEY GENERAL OF CANADA ET AL
DATE OF HEARING: October 12, 2006
APPEARANCES:
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Mr. Richard Yakolnitsky
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Mr. Scott D. MacDonald
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Ms. Jaime E. Carlson |
FOR THE RESPONDENTS (Loretta LETHBRIDGE, Ellen LeCAINE, and Ross LETHBRIDGE) |
SOLICITORS OF RECORD:
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Merchant Law Group Yorkton, Saskatchewan
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John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
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Olive Waller Zinkhan & Waller Regina, Saskatchewan |
FOR THE RESPONDENTS (Loretta LETHBRIDGE, Ellen LeCAINE, and Ross LETHBRIDGE) |