Date: 20031125
Docket: T-2212-01
Citation: 2003 FC 1385
BETWEEN:
DORA DUNCAN and JENNIFER DUNCAN
Applicants
and
THE BAND COUNCIL OF BEHDZI AHDA FIRST NATION,
THE SETTLEMENT CORPORATION OF COLVILLE LAKE,
SHARON TUTCHO, J.B. GULLY, ROLAND CODZI, AND SARA KOCHON
Respondents
INTRODUCTION
[1] On the 8th of August, 2001, the Behdzi Ahda First Nation (the "First Nation") held an election for Chief and Council. The First Nation members are, generally speaking, residents of the community of Colville Lake, a small community in the Sahtu Region of the Northwest Territories. The community of Colville Lake, at the time of the election, had only between sixty (60) and seventy (70) resident voters who participated in the election.
[2] The election in question was conducted in accordance with Band custom which was not formally recorded but which relied heavily on provisions of the Indian Act[1], the Behdzi Ahda First Nation Policy Manual and the exigencies of the day. Colville Lake was the subject of a Settlement Establishment Order[2] made pursuant to the Settlements Act[3]. Pursuant to that Establishment Order and the Settlements Act, Colville Lake had its own council for municipal matters in the settlement. The Chief and Council elected on the 8th of August, 2001, became, in addition to the Chief and Council of the First Nation, the mayor and council of the Colville Lake settlement with responsibility in that role for essentially municipal matters. Thus, the Settlements Act and the Settlement Establishment Order in respect of Colville Lake also became guide-posts in the custom of the First Nation.
[3] The first meetings of the newly elected Chief and Council and mayor and settlement council, with Dora Duncan presiding as Chief and mayor and Jennifer Duncan participating as an elected member of both councils, took place on the 13th, 14th and 15th of August, 2001. Matters got off to a rocky start and did not improve. In the result, at a meeting of the councils on the 19th of November, 2001, the following Band Council Resolution was adopted:
Motion #1119011 Moved by : Alvin Orlias Second by: John B. Gully
Whereas the Behdzi Ahda" First Nation held a special council meeting on November 19, 2001 to deal with an outstanding matter regarding the current Chief Dora Duncan and Councilor Jennifer Duncan who have both missed three consecutive meetings without providing any explanation to council in writing and continuously having council on hold without providing their intentions in writing.
AND Whereas the Behdzi Ahda" First Nation council and staff have made several attempts to notify the chief in person for proposed meetings, but she verbally refuse[sic] to attend any meetings.
Therefore may it be resolved that the Behdzi Ahda" First Nation council declare a vote of no confidence for Dora and Jennifer Duncan and carry out the petition request made by the majority people of Colville Lake for their immediate dismissal from office.[4]
Neither Dora Duncan nor Jennifer Duncan was present at the November 19th meeting.
[4] By application filed the 14th of December, 2001, the Applicants challenge their removal from office. They seek the quashing of the foregoing resolution, the quashing of a subsequent resolution setting a date for a by-election to replace the Applicants as Chief and Councilor, a declaration that the Applicants remain in office, costs and further and other relief.
[5] The Respondents too seek a range of reliefs, essentially the converse of those sought by the Applicants. By Order dated the 17th of May, 2002, my colleague Justice Blanchard granted an interlocutory injunction enjoining the First Nation from holding the scheduled by-election.
[6] These reasons follow the hearing of the application for judicial review which took place at Yellowknife, Northwest Territories, on the 6th of November, 2003.
THE PARTIES
[7] The Applicants, Dora Duncan and Jennifer Duncan, and the Band Council of the Behdzi Ahda First Nation are briefly described earlier in these reasons. The remaining Respondents, Sharon Tutcho, J.B. Gully, Roland Codzi and Sarah Kochon were each elected Councilors of the Band Council of the Behdzi Ahda First Nation at the election held on the 8th of August, 2001.
[8] In addition to her responsibilities as a Band Councilor, Jennifer Duncan was enrolled as a second year law student at the University of British Columbia for the academic year, 2001-2002. Thus, for the greater portion of the autumn of 2001 when events were unfolding in Colville Lake leading to the resolution purporting to remove her as a Band Councillor, she was absent from Colville Lake. That being said, I am prepared to take notice of the fact that her prospective absence would have been known at the time she was elected, given that she was entering her second year and would already have been absent from the community for at least one full academic year.
A SUMMARY OF THE EVENTS LEADING TO THE COUNCIL MEETING OF THE 19TH OF NOVEMBER, 2001
[9] As already noted, the first meetings of the Chief and Band Council and mayor and settlement council following the election of the 8th of August, 2001, took place over the 13th, 14th and 15th of August. Chief Duncan briefly attests to some of what transpired at those meetings and in the days that followed in this paragraph extracted from her affidavit filed in this matter:
That I believe some members of the Kochon family oppose me because of the following facts:
(1) I defeated former Chief Kochon in a election held on August 8, 2001.
(2) Joseph Kochon, then Colville Lake's Senior Administrative Officer, and brother of former Chief Kochon, resigned the day after the first meeting of the new council. At this meeting Joseph Kochon was subject to several questions concerning the roles, responsibilities of his management of Band programs under the leadership of the former Chief Kochon. Joseph Kochon wrote a letter of resignation dated August 15, 2001. ...
(3) I opposed the re-hiring of Joseph Kochon as Band Manager.
(4) On August 20, 2001, I asked the RCMP to investigate suspicious financial transactions involving the Band Council's program funding. The suspicious transactions occurred while Richard Kochon was Chief.
(5) The Kochon family organized a community meeting on August 21, 2001. At the meeting, the family and their supporters publicly declared their opposition to Councilor Jennifer Duncan and I. They also called on community to replace Chief Duncan with former Chief Kochon.
(6) On August 23, 2001, a letter calling for the removal of myself and Councilor Jennifer Duncan from Band Council was faxed to Dave Murray, the Deputy Minister of Municipal and Community Affairs. The majority of the signatures appearing on the document are from Kochon family members. ...[5] [references to Exhibits to Chief Duncan's affidavit are omitted]
The evidence before me was contradictory on whether Joseph Kochon resigned his position as Senior Administrative Officer in mid-August or merely took an approved holiday for slightly over one month.
[10] Efforts to organize a mediation of differences within the community were unsuccessful. There was some evidence before me that, when those efforts failed, Chief Duncan indicated to others that there would be no more Chief and Council meetings until mediation in fact took place.
[11] Evidence regarding Band custom for the giving of notice of meetings of the Chief and Council and mayor and settlement council was not entirely consistent. I am satisfied that custom did involve posting of written notice at the Band Office and at the local store in Colville Lake. No corroboration of the appropriate posting of notices for meetings in the autumn of 2001 was before the Court. There was also some evidence as to a practice of oral notice. Once again, the evidence regarding oral notice of meetings in the autumn of 2001 was conflicting and unsatisfactory. Certainly posted notice would not have come to the attention of Jennifer Duncan who was in Vancouver. The evidence regarding provision of oral notice to Jennifer Duncan and as to why oral notice was sometimes not given was quite unsatisfactory. There was no satisfactory evidence whatsoever before the Court that notice was given to Chief Duncan and Councilor Duncan that matters concerning their continued role as Chief and Councilor would be discussed .
[12] The following Minute and resolution are extracted from Minutes of a Council meeting held in the absence of the Applicants on the 17th of October, 2001:
14. Chief Position
The BAFN councilors are concerned that the chief is not attending any of the meetings, called for by the majority council or the people of Colville Lake to deal with all the actions taken since the election without the full support of council, a matter and a question of taking responsibility as a leader. Why are we paying for this position if she is not working with the people or councilors?
For the record the public invited all councilors and the chief to attend all three meetings during this fall on the following dates: August 22/01, September 07/01, September 12/01 wanting to inquire about the situation with the new chief and councils disagreements. All the councilors attended but the chief did not show. She has stated more than once that the meetings are not legitimate.
The BAFN council also invited the chief to attend the following meetings: on September 20/01 and October 17/01 but she refuses to attend. The councilors held their patience and tried very hard to work with the chief by playing the waiting game of 48, hour notice for meetings, and attending a mediation workshop, she wanted. Following this, she wanted a workshop, but neglected to consult with each of us, therefore council has no choice but to take immediate actions as follow: we know that the chief salary has been created by council and could be terminated by council for not attending the community members and councilors meetings and see no constructive duties being performed.
Motion #1017014 Moved by : Sarah Kochon Second by: Roland Codzi
That the BAFN council would like to terminate the chief's salary and position immediately for not taking a leadership role or making any attempts to deal with the problems along with council as they where [sic] developed, therefore see no need to fund that position. Motion carried unanimously.[6]
It is worthy of note that, while in the foregoing quotation it is indicated that the "public" invited all Councilors and the Chief to attend three (3) meetings on specified dates, it is not at all clear on the evidence before the Court that that statement is accurate. It is also worthy of note that no mention is made in the foregoing quotation of the absences of Councilor Jennifer Duncan or of notice of meetings being given to her.
[13] On the 9th of November, 2001, the Council again met in the absence of Chief Duncan and Councilor Jennifer Duncan. Evidence regarding notice of that meeting to Chief Duncan is sketchy and contradictory. That being said, in a community as small as Colville Lake, it is hard to believe that Chief Duncan would not have been aware that the meeting was scheduled. The same cannot be said for Councilor Duncan. There was no evidence whatever before me that effective notice of the meeting of November 9th was given to her.
[14] The Minutes of the meeting of November 9th include the following paragraphs:
5. The Chiefs Position
Councilors have a general discussion with respect to the chief not communicating with them every[sic] since after the election. For the record we have been elected to serve in the best interest of all the people of Colville Lake regardless of who people voted for, we are here to take on what ever comes our way, and we even swore on the bible an oath to work in good faith. Its [sic] seems certain things that have surfaced after the election has [sic] been taken very personally by the new chief, therefore have gone about her actions without the full support of council. From the day council held their first meeting members wanted to know why certain things have evolved the way they have, we the councilors have made ourselves available to all the public meeting to hear for ourselves what questions the public had for the Behdzi Ahda" First Nation. Councilors have taken it upon themselves to personally invite the new chief to the public and proposed council meetings, in every attempts the new chief have expressed a very negative attitude and therefore declined all meetings. The new chief also states that she has to be given proper notice and nobody besides herself can call an official meeting.
Maca and DIAND representative have visited the community twice. Council realized during their second official meeting that under the election policy they where [sic] suppose to have seven members of councilors. During the second visit by Maca and DIAND the chief only wanted to deal with one item and that was to have a mediator come in and help resolve their differences. And since then the Behdzi Ahda" First Nations new chief and council held their mediation meeting with a mediator to talk about their differences, there was some sort of a consensus developed to host another workshop after that, unfortunately the majority councilors rejected that proposal later due to the fact they where[sic] not consulted or even had any input prior to the submission of the proposal, therefore council have made a decision to resolve this matter themselves rather than having people from outside develop their minds for them, council believe they have always been independent and never depended on others to resolve their problems for them before therefore why should we start now? The new chief has never spoken to any of the councilors since September, 20/2001.
The Behdzi Ahda" First Nation council have made several attempts again to invite the chief to their scheduled meetings but where [sic] unsuccessful, all council wants to know is what are her intentions, but she is showing no regards for Council therefore the Behdzi Ahda" First Nation council have taken some measures by terminating her salary immediately.
Now that we have held all of our patience for this long and still do not get a positive indication that Ms. Duncan and her daughter will work with us, it is time to take extreme measures to vote the chief and her daughter out of office as per the petition signed by 80% of the 63 people that voted on August 08, 2001.
The chief has been given fair prior notice for upcoming council meetings, but have continuously refused to attend the meetings without any legitimate reason therefore have missed three consecutive meetings and is now officially on grounds for immediate dismissal under the Indian and Territorial Act.
As for her daughter, she has not officially requested for a leave of absence by the Behdzi Ahda" First Nation Council therefore she has missed three consecutive meetings without stating to council to be excused therefore is now officially on grounds for immediate dismissal under the Indian and Territorial Act.
For the record the Behdzi Ahda" First Nations previous chief and council have always used and maintained and respected the laws under the Indian and Territorial Act to ensure stability in our local government system.[7]
[15] There was no evidence before the Court of a custom of the Behdzi Ahda First Nation that a Councilor such as Jennifer Duncan duly elected with the community having knowledge of her ongoing pursuit of studies outside Colville Lake was required to officially request a leave of absence from counsel. Further, there was no evidence before the Court that the minutes of the Council meetings of October 17th and November 9th, 2001 and, more particularly, the foregoing extracts from those minutes, were ever provided to Chief Duncan or to Councilor Duncan. Thus, it is not in any sense surprising that there is nothing on the record before the Court that would indicate that either Chief Duncan or Councilor Duncan responded in writing to the allegations made against them in those minutes prior to the Council meeting of the 19th of November, 2001 at which they were purportedly removed from office. The resolution purporting to remove them from office is quoted earlier in these reasons. That resolution noted that Chief Duncan and Councilor Duncan:
...have both missed three consecutive meetings without providing any explanation to council in writing and continuously having council on hold without providing their intentions in writing. [emphasis added]
Again, there is nothing in the evidence before the Court that would indicate that the Councilors who purported to remove their Chief and fellow Councilor from office ever gave notice of their intent to do so and, by so doing, provided an invitation to Chief Duncan and Councilor Duncan to provide a response or explanation or defence in writing.
THE ISSUES
[16] While summarized somewhat differently by counsel appearing before the Court, I am satisfied that the issues on this application for judicial review can be simply stated in the following terms: first, were the Councilors who purported to remove Chief Duncan and Jennifer Duncan from elected office at the Council meeting held the 19th of November, 2001 required to afford to Chief Duncan and Councilor Duncan procedural fairness; secondly, if so, what degree of procedural fairness were they required to provide; and finally, once again assuming they were under a duty to provide procedural fairness, did they provide the degree of procedural fairness required of them?
ANALYSIS
[17] In Sparvier v. Cowessess Indian Band [8], Justice Rothstein, then of the Trial Division of the Federal Court of Canada, had before him an application for judicial review of a decision of an Election Appeal Tribunal that nullified the result of a band election for Chief and directed that a new election take place, a fact situation not entirely unlike that now before the Court except that, in that matter, the Election Appeal Tribunal might be seen to be more disinterested in the issue before it than might the Councilors in this matter who could be seen to be in political dispute at least with Chief Duncan, if not also with her daughter Councilor Duncan.
[18] At page 161 of the reported decision, Justice Rothstein wrote:
While I accept the importance of an autonomous process for electing band governments, in my opinion, minimum standards of natural justice or procedural fairness must be met. I fully recognize that the political movement of Aboriginal People taking more control over their lives should not be quickly interfered with by the courts. However, members of bands are individuals who, in my opinion, are entitled to due process and procedural fairness in procedures of tribunals that affect them. To the extent that this Court has jurisdiction, the principles of natural justice and procedural fairness are to be applied.
In deciding what "principles" should apply to the matter at bar, I have had regard to the Supreme Court of Canada decision in Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, where at page 195 of the decision, Gonthier J., for the majority, states:
The content of the principles of natural justice is flexible and depends upon the circumstances in which the question arises. However, the most basic requirements are that of notice, opportunity to make representations, and an unbiased tribunal. [emphasis in original]
[19] Justice Rothstein returned to the same issue on facts more similar to those now before the Court in Long Lake Cree Nation v. Canada (Minister of Indian and Northern Affairs)[9] where he wrote at paragraph [31]:
On occasion, conflicts can become personal between individuals or groups on Council. But Councils must operate according to the rule of law whether that be the written law, custom law, the Indian Act or whatever other law may be applicable. Members of Council and/or members of the Band cannot take the law into their own hands. Otherwise, there is anarchy. The people entrust the Councillors to make decisions on their behalf and Councillors must carry out their responsibilities in a way that has regard for the people whose interest they have been elected to protect and represent. The fundamental point is that Councils must operate according to the rule of law.
I am satisfied that the foregoing quotation is directly applicable on the facts of this matter. While members of the Council purported to act at their meetings in October and November of 2001 "...in a way that [had] regard for the people whose interest they [had] been elected to protect and represent", they simply failed to have regard to the interests of the Applicants, members of their community like all others and, in addition, popularly elected members of that community.
[20] I am satisfied that the foregoing quotations are dispositive of the first two issue questions as framed above in these reasons. There was a duty of fairness on the Councilors who purported to dismiss Chief Duncan and Councilor Duncan from office and the content of the duty of procedural fairness on the facts of this matter was at least that enunciated by Justice Gonthier, particularly in regard to notice and an opportunity to make representations, given that the Councilors purporting to effect the dismissals might well not have been seen by a disinterested observer, on all of the facts of this matter, as constituting an "unbiased tribunal".
[21] As the recital of the facts of this matter that appears earlier in these reasons notes, the evidence of the notice given to Chief Duncan of the Council meetings of the 17th of October, the 9th of November and the 19th of November, 2001 was less than satisfactory. It is beyond doubt that any notice that was given to Chief Duncan did not extend to clear and unequivocal notice that the Councilors had in mind a process that would lead at the 19th of November meeting to her dismissal. That being said, I cannot conclude on the evidence before me that Chief Duncan would have been unaware of the meeting scheduled for the 19th of November. But there is nothing that would lead me to conclude that, prior to that meeting, she was on notice that the meeting could result in her dismissal. Certainly, while she might have chosen to attend, she was given no notice that she would be required to defend herself against a proposal to remove her from office. Notwithstanding the terms of the resolution adopted at that meeting, she was certainly provided with no opportunity to present in writing her defence against removal.
[22] The evidence in the case of Councilor Duncan is even clearer. There is nothing on the record before the Court that would indicate that Councilor Duncan had any notice, formal or informal, of the three (3) critical meetings. Further, I find no basis whatsoever to conclude that she might have been, let alone would have been, aware that her fellow Councilors were taking the position that she needed formal approval from Council to continue her attendance at Law School while she was a member of the Council and that, by reason of having failed to request and obtain such approval, she was at risk of being dismissed from office. Given her lack of notice, Councilor Duncan had absolutely no opportunity to present her case, either by appearing at the meeting of the 19th of November or by submitting written representations for consideration at the meeting.
[23] In the result, I am satisfied that both Chief Duncan and Councilor Duncan were denied the procedural fairness to which they were entitled in respect of the process leading up to their removal from office and the decision to remove them from office.
[24] A supplementary record was filed on behalf of the Respondents on the 14th of October, 2003. The substantive element of the supplementary record was an affidavit of Hayward Simms, sworn the 24th of July, 2003. Filing of the supplementary affidavit was, at least at the level of principle, contemplated by an Order of Prothonotary Aronovitch herein dated the 17th of July, 2003. Mr. Simms was cross-examined on his affidavit on the 11th of August, 2003 and the transcript of that cross-examination was also before the Court in a supplementary record filed on behalf of the Applicants on the 25th of September, 2003. At hearing, I determined to take into consideration Mr. Simms' affidavit and the transcript of cross-examination thereon, giving the affidavit such weight, if any, as I considered it to deserve. In the preparation of these reasons and in reaching my decision, I have taken into account Mr. Simms' affidavit and the transcript of his cross-examination on that affidavit. Both have had little influence on the decision that I have arrived at herein.
CONCLUSION
[25] The Applicants will be successful on this application for judicial review. An Order will go quashing the resolutions adopted by certain members of the Band Council and/or the Settlement Council on the 19th of November, 2001 purporting to remove Dora Duncan as Chief of the Behdzi Ahda First Nation and purporting to remove Jennifer Duncan as a Band Councilor of the Behdzi Ahda First Nation, and on a date unknown, setting a date for a by-election to replace Dora Duncan as Chief and Jennifer Duncan as a Band Councilor.
[26] In the Memorandum of Fact and Law filed on behalf Chief Duncan and Councilor Duncan, counsel requested a range of additional reliefs not specified in the application for judicial review but arguably within the ambit of the request for further and other relief set out in the application for judicial review. None of those additional reliefs will be granted. In particular, a request for an Order that both Applicants "...receive any salary and benefits they were entitled to arising from their respective elected positions", presumably between the time Chief Duncan had her entitlement to salary and benefits terminated and the date of the Order herein in her case and, in the case of Councilor Duncan, between the date of her purported removal from office and the date of the Order herein, will not be granted. I am satisfied that the requested Order relating to salary and benefits is not within the scope of relief that this Court is entitled to grant on an application for judicial review. Certainly no written argument in support of such a relief was provided in the Applicant's Memorandum of Fact and Law.
COSTS
[27] The Applicants are entitled to their costs of this application for judicial review, jointly and severally as against the Respondents, determined on the ordinary scale.
_________________________________
F.J.C.
Ottawa, Ontario
November 25, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2212-01
STYLE OF CAUSE: DORA DUNCAN AND OTHERS v. THE BAND COUNCIL OF BEHDZI AHDA FIRST NATION AND OTHERS
PLACE OF HEARING: YELLOWKNIFE, NORTHWEST TERRITORIES
DATE OF HEARING: NOVEMBER 6, 2003
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE GIBSON
APPEARANCES:
Mr. Craig Haynes FOR APPLICANTS
Mr. William Rouse FOR RESPONDENT
SOLICITORS OF RECORD:
LAWSON LUNDELL FOR APPLICANTS
Barristers and Solicitors
Yellowknife, N.T.
Field Atkinson Perraton FOR RESPONDENT
203-5102 Franklin Centre
Yellowknife, N.T.
[1] R.S.C. 1985, c. I-5.
[2] R-126-95.
[3] R.S.N.W.T. 1988, c. S-9.
[4] Respondents' Record, Volume 1, Tab B, Affidavit of Joseph Kochon, Exhibit "E".
[5] Applicants' Record, Tab 3(i), paragraph 22.
[6] Respondent's Record, Volume 1, Tab B, Affidavit of Joseph Kochon, Exhibit "B".
[7] Respondent's Record, Volume 1, Tab B, Affidavit of Joseph Kochon, Exhibit "C".
[8] [1993] 3 F.C. 142 (F.C.T.D.).
[9] [1995] F.C.J. No. 1020 (Q.L.) (F.C.T.D.).