BETWEEN:
SWAN RIVER FIRST NATION, ALBERTA
Appellant
and
JOHN GIROUX
CHARLES CHALIFOUX
THERESA WILLIER, LEON CHALIFOUX, DARRYL SOUND,
CLAYTON TWIN
COUNCILLORS OF THE SWAN RIVER FIRST NATION
BUDDY GIROUX
GERALD GIROUX JUNIOR
RON SUNSHINE, ELECTORAL OFFICER
Respondents
Heard at Edmonton, Alberta, on March 12, 2007.
Judgment delivered from the Bench at Edmonton, Alberta, on March 13, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS J.A.
LÉTOURNEAU J.A.
RYER J.A.
Docket: A-133-06
Citation: 2007 FCA 108
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
RYER J.A.
BETWEEN:
SWAN RIVER FIRST NATION, ALBERTA
Appellant
and
JOHN GIROUX
CHARLES CHALIFOUX
THERESA WILLIER, LEON CHALIFOUX, DARRYL SOUND,
CLAYTON TWIN
COUNCILLORS OF THE SWAN RIVER FIRST NATION
BUDDY GIROUX
GERALD GIROUX JUNIOR
RON SUNSHINE, ELECTORAL OFFICER
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Edmonton, Alberta, on March 13, 2007)
[1] This appeal relates to paragraph 2 of the order of the Federal Court (Dawson J.) dated March 3, 2006, which reads:
2. The matter is remitted for redetermination in accordance with these reasons by a differently constituted Election Appeal Committee of the Swan River First Nation, constituted as an independent body composed of three individuals with electoral and legal knowledge in accordance with the decision of the Band Council as set out in the excerpt of the letter from Indian and Northern Affairs Canada that the respondents filed with the Court as Exhibit B and the statement of the Elders filed as Exhibit A.
[2] Since no “differently constituted Election Appeal Committee of the Swan River First Nation” may be constituted except pursuant to the Customary Election Regulations of the Swan River First Nation as amended on the 5th day of February 2002, and since one was already in existence, the applications Judge had no other option but to remit the matter to the Election Appeal Committee of the Swan River First Nation (the “Committee”) constituted under the above cited Regulations (see Chief Peter Bill et al. v. Pelican Lake Appeal Board et al., 2006 FCA 397, paras. 5 to 9).
[3] The Federal Court order will therefore be modified to reflect this conclusion.
[4] This disposes of the appeal.
[5] With regard to the cross-appeal, counsel for the respondent, Mr. John Giroux, has asked us not to return the matter to the Committee but instead, to declare the validity of Mr. Giroux’s election. The Federal Court judge declined to do so and could not have done so considering that she was sitting in judicial review.
[6] We also decline considering that the Committee is the only one in a position to make the findings at the basis of the requested conclusion (see paragraphs 64 and 68 of the Reasons for Order of the Federal Court).
[7] Counsel for the respondent, Mr. John Giroux, has also asked us to order that the Committee determine and fix the entitlements payable to Mr. John Giroux, should the Committee find that he was duly elected. Those entitlements would be in the form of salary, regular travels and meetings fees and be retroactive to March 11, 2005. Section 12.9 of the Customary Elections Regulations which specifies the powers of the Committee does not grant to the Committee the power to entertain such claims.
[8] During the course of argument, counsel for the appellant brought to our attention recent amendments entitled the Swan River First Nation Customary Election Regulations and suggested that the matter be returned to the Election Appeal Committee to be constituted pursuant to these new amendments.
[9] Counsel for the respondent, Mr. John Giroux, objected. She submitted that these recent amendments may be subject to approval by the federal authorities before they can be enforced and that they may not be retroactive. Counsel for the appellant in turn expressed doubt that the federal authorities need give approval to these amendments.
[10] We indicated in court that this case should be governed by the Regulations that were in force at the time the election took place. But counsel did not submit any view to the contrary.
[11] A Judgment will therefore issue along the following terms:
The appeal is allowed in part only with costs and the cross-appeal is dismissed without costs.
The Order issued by the Federal Court on March 3, 2006, is modified by replacing the second paragraph of that Order with the following:
2. The matter is remitted for redetermination by the Election Appeal Committee as defined in paragraph 12.5 of The Customary Election Regulations of the Swan River First Nation (as amended on February 5th, 2002) within the time frame established by paragraphs 12.6 to 12.10 of said Regulations. The period of fourteen (14) days in paragraph 12.6 within which the Election Appeal Committee must convene a meeting runs from the day the appellant receives a copy of the present judgment. The present judgment shall be posted in accordance with paragraph 12.4 of the Regulations, and, for the purpose of paragraph 12.7 of the Regulations, the notice of the meeting shall be posted in the same manner as this judgment.
“Alice Desjardins”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-133-06
(APPEAL FROM A JUDGMENT OR ORDER OF THE HONOURABLE JUSTICE
ELEANOR R. DAWSON DATED MARCH 3, 2006, DOCKET NO. T-719-05)
STYLE OF CAUSE: SWAN RIVER FIRST NATION, ALBERTA AND JOHN GIROUX ET AL
PLACE OF HEARING: EDMONTON, AB
DATE OF HEARING: MARCH 12 AND 13, 2007
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS, LÉTOURNEAU, RYER, JJA.
DELIVERED FROM THE BENCH BY: DESJARDINS, J.A.
APPEARANCES:
|
MR. PETER GRABURN |
FOR THE APPELLANT
|
|
FOR THE RESPONDENT (JOHN GIROUX)
|
SOLICITORS OF RECORD:
|
PRIDDIS, ALBERTA
|
FOR THE APPELLANT
|
|
EDMONTON, AB |
FOR THE RESPONDENT (JOHN GIROUX)
|