BETWEEN:
CHIEF PETER BILL AND COUNCILLORS DENNIS LEWIS, ROMEO THOMAS,
FREDERICK WHITEHEAD, WILLIE THOMAS, PETER SAKEBOW,
AND DAVID THOMAS
and
THE PELICAN LAKE APPEAL BOARD (HEREINAFTER “THE APPEAL BOARD”),
RAYMOND DUMAIS, DEBBIE THOMAS, ALDEN HARRIS, ELMER THOMAS,
JOHN UTZ, AND FRANCIS THOMAS, JIMMY BILL, HARRY THOMAS,
CHARLES RABBITSKIN, WAYNE THOMAS, GARRY THOMAS,
AND CALVIN THOMAS
Heard at Saskatoon, Saskatchewan, on November 22, 2006.
Judgment delivered at Ottawa, Ontario, on December 6, 2006.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: PELLETIER J.A.
MALONE J.A.
Docket: A-274-06
Citation: 2006 FCA 397
CORAM: LÉTOURNEAU J.A.
PELLETIER J.A.
MALONE J.A.
BETWEEN:
CHIEF PETER BILL AND COUNCILLORS DENNIS LEWIS, ROMEO THOMAS,
FREDERICK WHITEHEAD, WILLIE THOMAS, PETER SAKEBOW,
AND DAVID THOMAS
Appellants
and
THE PELICAN LAKE APPEAL BOARD (HEREINAFTER “THE APPEAL BOARD”),
RAYMOND DUMAIS, DEBBIE THOMAS, ALDEN HARRIS, ELMER THOMAS,
JOHN UTZ, AND FRANCIS THOMAS, JIMMY BILL, HARRY THOMAS,
CHARLES RABBITSKIN, WAYNE THOMAS, GARRY THOMAS,
AND CALVIN THOMAS
Respondents
REASONS FOR JUDGMENT
[1] This is an appeal against a decision of O’Keefe J. of the Federal Court (judge) who, on an application for judicial review, set aside two decisions (March 15 and March 23, 2004) of the Pelican Lake Band Appeal Board (the Board). He then ordered that the matter be remitted to the Board for a redetermination in accordance with the Pelican Lake Election Act (Act).
[2] The March 15 decision of the Board certified the results of the March 5, 2004 election to be null and void. The March 23 decision is the follow-up decision that called a by-election to be held on April 16, 2004, but limited to those candidates who ran in the March 5 election.
[3] The appellants were successful before the judge in having the two decisions set aside. However, they appealed before us against the remedy granted to them. They allege that the Board showed bias or behaved in a manner that gave rise to a reasonable apprehension of bias. Consequently, they say, the judge should not have remitted the matter to the same Board.
[4] The judge did not address the issue of bias. He set aside the two decisions of the Board on the basis that the Board had omitted to follow the appeals procedure stipulated in the Act and give the appellants adequate notice of the appeal hearing. At paragraph 59 of his decision, he alluded to the fact that the matter could not be referred to a differently constituted Board as there was no provision in the Act to constitute another Board.
[5] Assuming, without deciding the issue, that the conduct of two members of the Board may have given rise to a reasonable apprehension of bias, the fact remains, as pointed out by the judge, that there is no other Board than the one constituted under the Act for the March 5, 2004 election.
[6] Pursuant to section 11 of the Act, the Board’s function is to certify the election results if there is an appeal. The members of the Board hold office until all appeals have been determined.
[7] In this instance, the judge had no other option than to remit the matter to the only existing Board seized with the appeal.
[8] In my view, in these circumstances, the doctrine of necessity applies. In Sparvier v. Cowessess Indian Band, [1993] 3 F.C. 142, at page 172-173, Rothstein J. of the Federal Court (as he then was) wrote:
The doctrine of necessity arises in cases in which, when no one else is empowered to act, otherwise disqualified tribunal members… may be qualified to hear and determine an appeal. The principle is stated in Administrative Law by Sir William Wade, 6th ed., 1988 at page 478:
In all the cases so far mentioned the disqualified adjudicator could be dispensed with or replaced by someone to whom the objection did not apply. But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity; for otherwise there is no means of deciding and the machinery of justice or administration will break down.
[9] Therefore, the judge committed no error in remitting the matter to the only Board empowered to deal with it.
[10] I cannot leave this appeal without mentioning the deplorable state of the election process governing the Pelican Lake First Nation. Although the appellant, Chief Peter Bill, has been elected four times since 1999, he has never been certified as Chief of Pelican Lake First Nation: see respondents’ memorandum of fact and law, at paragraph 4. All elections have been challenged and the process has dragged on.
[11] In the present instance, the March 5, 2004 election has been declared null pursuant to allegations of corruption, misuse of funds and threats. The decision of the Appeal Board has been challenged successfully in part. New legal proceedings have been thereafter instituted against the Board to prevent it from holding the hearing ordered by the judge. In addition, an application to stay the judgment of the judge has been granted with the result that the appeal against the March 5 election cannot proceed. In the meantime, injunctive orders have issued maintaining the elected parties in their respective elected offices as of March 6, 2004: see appeal book, volume I, tab III (d), (e), (h), (i), (j) and (k). The next election is due in just about three months and the fate of the March 5, 2004 election has not yet been determined. Our decision will lift the stay against the decision of the judge, but there will still be proceedings pending in the Federal Court against the Board to prevent it from holding the hearing ordered by the judge. It is obvious that the new election will come before a hearing can be held on the March 5 election and, therefore, will render moot the challenge to the previous election. In a sense, our decision is also moot and of no practical effect.
[12] This is an unsatisfactory and very costly state of affairs for all participants, including the judicial system, which undermines and compromises the integrity of the election process of the Pelican Lake First Nation. The members of the Band are entitled to elect their representatives and be governed by duly elected representatives. In light of the past and present history, it is obvious that, unless there is an intervention of a third party to take over the election process and ensure its integrity, the situation is most likely to repeat itself.
[13] For these reasons, the appeal will be dismissed without costs.
“I agree
J.D. Denis Pelletier J.A.”
“I agree
B. Malone J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-274-06
(ON APPEAL FROM A JUDGMENT OF THE FEDERAL COURT DATED JUNE 1, 2006, DOCKET NO. T-616-04)
STYLE OF CAUSE: CHIEF PETER BILL et al v. THE PELICAN
LAKE APPEAL BOARD et al
PLACE OF HEARING: Saskatoon, Saskatchewan
DATE OF HEARING: November 22, 2006
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: PELLETIER J.A.
MALONE J.A.
DATED: December 6, 2006
APPEARANCES:
|
FOR THE APPELLANTS
|
|
|
(non-lawyer appearing as agent) |
FOR THE RESPONDENTS FRANCIS THOMAS, JIMMY BILL, CALVIN THOMAS, AND GARRY THOMAS
|
SOLICITORS OF RECORD:
|
Prince Albert, Saskatchewan |
FOR THE APPELLANTS
|
|
Prince Albert, Saskatchewan |
FOR THE RESPONDENTS HARRY THOMAS, CHARLES RABBITSKIN, AND WAYNE THOMAS |