Date: 20001109
Docket: T-1152-00
BETWEEN:
CHIEF LAWRENCE CHAPMAN, COUNCILOR RONALD
BACHMIER, COUNCILOR ELIZABETH BOUCHER IN THEIR CAPACITY
AS CHIEF AND COUNCIL OF THE LAC DES MILLE LACS FIRST NATION AND ON BEHALF OF THE LAC DES MILLE LACS FIRST NATION
Applicants
- and -
ELAINE HOGAN, TRACY MORRISON, GARRY KISHIQUEB,
ROY PETERS AND CLARENCE MCKENZIE IN THEIR OWN
CAPACITY AND IN THEIR CAPACITY AS PURPORTED CHIEF
AND COUNCIL OF THE LACS DES MILLE LACS FIRST NATION
Respondents
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] By notice of application for judicial review filed the 30th of June, 2000, the applicants seek the following reliefs:
| 1) A declaration that the purported leadership review conducted on April 29, 2000 and the election of the respondents to the office of Chief and Council of the First Nation also on April 29, 2000 were not conducted in accordance with the provisions of the Custom Leadership Selection Code of the Lac des Milles Lacs First Nation (the "First Nation") and (the "Selection Code") and are therefore nul and void. |
| 2. A permanent and interim order prohibiting the respondents from representing themselves to be the lawful Chief and Council and /or exercising the authority of the lawful Chief and Council unless and until such time, if ever, as they are elected to said offices pursuant to the Customs Leadership Selection Code of the Lac des Milles Lacs First Nation (the "First Nation") and (the "Selection Code"). |
| 3. A permanent and interim order prohibiting the respondents from unlawfully interfering with the Council's exercise of its lawful authority or its ability to carry out the business and affairs of the First Nation. |
| 4. A declaration that any and all decisions, resolutions or other purported exercises of the authority of the Chief and Council of the First Nation were made without lawful authority and are null and void. |
| 5. An order quashing any and all decisions, resolutions or other purported exercises of the authority of the Chief and Council of the First Nation. |
| 6. An order requiring the respondents to fully disclose any and all decisions, resolutions or other purported exercises of the authority of the Chief and Council of the First Nation that they have made, resolved or exercised since April 29, 2000. |
| 7. An order requiring the respondents to fully account for any and all funds and/or benefits and/or monies received by or on behalf of the respondents in respect of the First Nation or paid out or disbursed or transferred by the respondents since April 29, 2000. |
| 8. Such further and other relief as this Honourable Court deems just. |
| 9. Costs of this application on a solicitor-client basis. |
[2] In a document entitled "Amended Notice of Application for Judicial Review" included in the applicant's application record filed the 1st of September, 2000, for the filing of which the approval of the Court was not sought, the applicants requested a further relief in the nature of a declaration that the applicants constitute the lawful Chief and Council of the First Nation. During the course of the hearing of this application for judicial review, I indicated that, if the applicants were to be successful, I would only grant this additional relief if the respondent consented. No consent was forthcoming.
BACKGROUND
| (1) An earlier decision of this Court |
[3] This is not the first time that dissident members of the Lac des Milles Lacs First Nation (the "First Nation") and the applicants Lawrence Chapman, Ronald Bachmier and Elizabeth Boucher have been before this Court on matters related to the governance of the First Nation. In June of 1998, Mr. Justice Cullen found Lawrence Chapman, Elizabeth Boucher, Ron Bachmier and one other to constitute the proper Chief and Council of the First Nation.1 Mr. Justice Cullen further found the Custom Leadership Selection Code (the "Selection Code") to be the official band custom and that its procedures should be followed in all subsequent selections of Chief and Council until such time as the custom is changed accordingly to a broad consensus of the members of the First Nation.
[4] In his order, Mr. Justice Cullen specifically provided that he would make no order enjoining a referendum to revise the Selection Code as that referendum had already been completed when his order issued and he therefore found the issue moot.
(2) Relevant Events since the Hearing before Mr. Justice Cullen
[5] The membership of the First Nation is highly disbursed, primarily throughout Northern Ontario but also apparently throughout Canada and the United States. While the First Nation has two reserves, they are essentially uninhabited for reasons that are not particularly relevant here. In the result, identification and documentation of members of the First Nation is particularly difficult and effective communication with and among members of the First Nation requires time. The Selection Code reflects this reality in that it provides specific procedures and extended time frames for notification and conduct of leadership reviews and elections.
[6] At the time governance issues with respect to the First Nation were before Mr. Justice Cullen, there were apparently some 120 identified members of the First Nation. The applicants were intent on identifying further members of the First Nation. The Selection Code, as it stood at the time of Mr. Justice Cullen's decision, required the initiative of 60 members of the First Nation to initiate a leadership review. That number represented approximately 50% of the identified members of the First Nation. The modification to the Selection Code that was the subject of the referendum noted by Mr. Justice Cullen contemplated a process by which an increase in the number of members required to initiate a leadership review could be implemented as further members of the First Nation were identified. Such modifications were to be initiated by action of the Chief and Council of the First Nation. The modification of the Selection Code was adopted.
[7] In accordance with the decision of Mr. Justice Cullen, the applicants, together with one other Council member, governed the First Nation. They were relatively successful in identifying additional members of the First Nation. In the result, on two occasions, the Selection Code was modified to increase the number of members required to initiate a leadership review. The number was increased first from 60 to 90 by Council resolution dated the 14th of August, 1998 and further from 90 to 120 by Council resolution apparently dated the 22nd of February, 1999.
[8] On the 21st of February, 1999, 62 members of the First Nation indicated to the Chief and Council their support for a leadership review. On the 19th of May, 1999, Chief Lawrence Chapman responded indicating that, as of the 21st of February, 1999, the support of 90 members of the First Nation was required to initiate a leadership review and that therefore no leadership review would be undertaken. Chief Chapman advised2:
| Please be advised that the Council has voided and archived the forms we received from the February 21, 1999 Leadership Review meeting. Please also be advised that the minimum amount of voters required for a leadership review was adjusted after February 21, 1999 and is currently at 120 and will be adjusted again shortly. Accordingly, all future documents requesting a leadership review will bear a date and signature after February 21, 1999. |
No authority was identified at the hearing before me for the voiding of leadership review request forms.
[9] Under cover of an unsigned letter dated the 29th of February, 2000, documents indicating the support of 123 members of the First Nation for a leadership review were submitted to Chief Chapman. Among the 123 leadership review request forms were the 63 that were ostensibly "voided" following the earlier request for a leadership review and many others that were dated many months before the 29th of February, 2000.
[10] The number of First Nation members ostensibly supporting a leadership review exceeded the 120 members at that time required by the Selection Code.
[11] The applicants acknowledged receipt of only 59 requests for a leadership review, presumably representing an approximation of the difference between the total number of requests received, 123, and the number, included in the new request, that had previously been "voided" following the earlier request. The Chief and Council wrote to the members of the First Nation3:
| I wish to acknowledge receipt of the bandmembers documents which I received on February 29, 2000 regarding the Leadership Review which ended on February 29, 2000. The official minimum amount of voters required for a leadership review is 120 and having only received 59, there is no requirement for a leadership review at this time. Please be advised that the Council has voided and archived the forms we received from the February 29, 2000 Leadership Review. Accordingly, all future documents requesting a leadership review will bear a date and signature after February 29, 2000. |
Once again, counsel for the applicants was unable to cite before me any authority for the "voiding" of the forms received on the 29th of February, 2000 or for the stipulation that future documents requesting a leadership review must bear a date after the 29th of February, 2000.
[12] Apparently frustrated with the responses of the applicants, one of the respondents wrote to the applicants on the 29th of March, 2000, in the following terms4:
| Through consensus of the people of Lacs Des Milles Lacs First Nation, we are writing to inform you that your failure to respond to repeated requests for a leadership review has resulted in the decision to call an election for April 29th, 2000 in Thunder Bay, referring to the 1992 Election Format, allowing 30 days notice for the election. The elections for Chief and Council will be held at the Westfort Community Centre, 397 Empire Avenue beginning promptly at 11:00 a.m., as advertised in the Chronicle Journal March 25-26, 2000. [emphasis in the original] |
[13] Both a leadership review and an election were purportedly held at Thunder Bay on the 29th of April, 2000. The leadership of the applicants was rejected in the leadership review. The respondents were purportedly elected in the election that followed. While counsel for the respondents urged that the leadership review was conducted in accordance with the Selection Code, I reject that submission. Counsel for the respondents acknowledged that the election on the 29th of April, 2000 was not conducted in accordance with the Selection Code. Neither the leadership review nor the election were conducted in accordance with the notice provisions and time frames provided in the Selection Code that were specifically designed to accommodate the disbursed nature of the membership of the First Nation.
[14] By letter dated the 24th of May, 2000, an official in the Ontario Region of the Department of Indian and Northern Affairs in the Government of Canada wrote to the respondent Elaine Hogan in part as follows5:
| We have reviewed the documentation provided by your community regarding the election process that was followed in accordance with the Custom Leadership Selection Code. We have also reviewed the report of the Chairperson and Electoral Officer, reporting on the election of April 29, 2000. It is clear that the community has had an opportunity to express their wishes through the process and have reached agreement and we have today entered the results of the election of April 29, 2000 into the Band Governance Management System database. |
Following receipt of the foregoing letter, and perhaps before that time but following the purported election on the 29th of April, 2000, the respondents essentially assumed governance of the First Nation. In particular, the Department of Indian and Northern Affairs channelled First Nation funds through them, the First Nation's bankers began to deal with them, and modes of electronic communication on which the applicants relied heavily in their governance of the First Nation were withdrawn from them.
[15] This application for judicial review followed.
THE ISSUES
[16] The principal issues identified in the written materials filed with the Court on behalf of the parties and in the hearing before me were the following:
| - first, the availability of judicial review on the facts of this matter and the timeliness of the application; |
| - secondly, whether the Court should hear from the respondents in light of their alleged disregard of the earlier order of this Court issued by Mr. Justice Cullen and, a related matter, whether or not the applicants were estopped on this application for judicial review by reason of their own alleged misconduct; |
| - third, whether the leadership review and election held on the 29th of April, 2000, were conducted in accordance with the Selection Code; and |
| - finally, if the leadership review and election were not conducted in accordance with the Selection Code, what remedies in favour of the applicants are appropriate. |
ANALYSIS
[17] I am satisfied that the "course of conduct" leading up to the leadership review and election on the 29th of April, 2000, and continuing with the conduct of the respondents as Chief and Council of the First Nation following the events of the 29th of April, 2000 and to and beyond the time when this application for judicial review was commenced, is amenable to judicial review. Counsel for the respondents did not dispute that, at least from the 24th of May, 2000, when the Department of Indian and Northern Affairs "...entered the results of the election of April 29th, 2000 in the Band Governance Management System database", the respondents constituted a "federal board, commission or other tribunal" within the meaning assigned to that phrase by subsection 2(1) of the Federal Court Act6.
[18] In Krause v. Canada7, Mr. Justice Stone, for the Federal Court of Appeal, wrote at paragraph [23]:
| In my view, the time limit imposed by subsection 18.1(2) [of the Federal Court Act] does not bar the appellants from seeking relief by way of mandamus, prohibition and declaration. |
Mr. Justice Stone continued at paragraph [24]:
| I am satisfied that the exercise of the jurisdiction under section 18 does not depend on the existence of a "decision or order." |
I am satisfied that the "course of conduct" here sought to be reviewed is essentially similar to that which was before the Federal Court of Appeal in Krause. The reliefs here sought are similar in nature to those sought in Krause. In the result, I am satisfied that the subject matter of this application is appropriate to judicial review, notwithstanding that there is no specific "decision or order" that is sought to be reviewed and further, that the time limit imposed by subsection 18.1(2) of the Federal Court Act does not apply to render this application out of time.
[19] At the opening of the hearing of this matter, I indicated to counsel that I would hear from counsel for the respondents. I am satisfied that, on the facts of this matter, where allegations of impropriety and disrespect for the decision of this Court rendered by my former colleague Mr. Justice Cullen were flying thick and fast both ways, it would be unjust to afford a hearing to counsel on behalf of the applicants without providing an equal right to counsel on behalf of the respondents. Similarly, I determined not to entertain an argument regarding estoppel against the applicants by reason of their alleged misconduct, for equivalent reasons. In any event, the allegation of estoppel was not urged before me.
[20] I turn then to the central issue, that being whether the leadership review and election purported to be conducted on the 29th of April, 2000 were conducted in accordance with the Selection Code which was determined by Mr. Justice Cullen to be the "official band custom" of the First Nation and the catalogue of procedures to be followed in all selections of Chief and Council following his decision, until such time as the custom is changed according to a broad consensus of the members of the First Nation. As a starting point with regard to this issue, I repeat here the opening paragraph of Mr. Justice Cullen's reasons for decision:
| At the outset I must state my disappointment that the members of this First Nation could not resolve this dispute on their own. It is a sad event that the parties in this proceeding are in a dispute which involves such animosity. Having said that, however, I must make it clear to all parties that this decision is not an endorsement of which Council would be better from the standpoint of the First Nation nor is it an endorsement of any particular person sitting on Council. My decision is based solely on principles of administrative law and procedure. |
I adopt the foregoing statement as my own.
[21] As indicated earlier in these reasons, the Selection Code endorsed by Mr. Justice Cullen is particularly adapted to accommodating the disbursed nature of the members of this First Nation. It provides extensively for notice to members of the First Nation and for relatively long periods for communication and for voting or otherwise expressing views. It provides for voting by telephone to accommodate the reality that some members of the First Nation simply are not in a position to attend in Northern Ontario to exercise their voting rights in person. None of these unique features of the Selection Code was respected in the process leading up to and including the leadership review and election purportedly conducted on the 29th of April, 2000. There was no evidence before me that notice of the events scheduled for the 29th of April was broadly distributed among members of the First Nation. Similarly, there was no evidence whatsoever that those members of the First Nation who would likely be unable to attend a meeting in Thunder Bay would be accommodated by communication processes or voting processes that would allow them to effectively take part.
[22] Indeed, the letter from Elaine Hogan, dated the 29th of March, 2000 and quoted in part earlier in these reasons, first, made no reference whatsoever to a leadership review on the 29th of April or at any other time and, perhaps more importantly, provided no information on which it could be concluded that the process to be adopted would be in conformity with the Selection Code. Rather, to the contrary, the letter indicated that the election would be conducted "... referring to the 1992 election format, allowing 30 days notice for the election." I take this to be a specific acknowledgment that, in the face of the decision of this Court, Ms. Hogan, presumably on behalf of all the respondents, was prepared to ignore the Selection Code, the official band custom of the First Nation. In the result, I can only conclude that some, and perhaps many, of the members of the First Nation were effectively disenfranchised in relation to the events of the 29th of April.
[23] It was not in dispute before me that the leadership review processes and election processes of this First Nation are to be conducted according to band custom and not according to the Indian Act8. For that reasons alone, I place no weight on the letter quoted earlier in these reasons in which the Department of Indian and Northern Affairs appears to acknowledge the authority of the respondents as Chief and Council of the First Nation.
[24] In Long Lake Cree Nation v. Canada (Minister of Indian and Northern Affairs)9, Mr. Justice Rothstein wrote at paragraph [31]:
| Members of Council and/or members of the Band cannot take the law into their own hands. Otherwise, there is anarchy. |
I am satisfied that, undoubtedly in frustration, and perhaps well justified frustration, that is precisely what the respondents did when their second application for a leadership review, supported by over 120 members of the First Nation, was rejected. However sympathetic one might be to such a reaction, it cannot be justified in law.
CONCLUSION
[25] Based on the foregoing brief analysis, I conclude that the leadership review and election purportedly conducted on the 29th of April, 2000, were not conducted in accordance with the Selection Code and were of no force or effect.
[26] At the close of the hearing before me, I indicated to counsel that I was going to grant this application for judicial review and described to them orally the reliefs, drawn from those sought and described earlier in these reasons, that I considered to be appropriate. Those reliefs were in the form of declarations, an order of prohibition against the respondents, an order quashing decisions, resolutions and other purported exercises of authority by them and an order in the nature of mandamus. I offered to distribute a draft order to counsel for comments as to form and that offer was accepted and was fulfilled. I declined to accept a recommended addition to my draft order proposed by counsel for the applicants and opposed by counsel for the respondents. In the result, an order has now issued.
COSTS
[27] Counsel for the respondents acknowledged that neither party to this application for judicial review came before the Court with entirely clean hands. While counsel for the applicants made no such acknowledgement, I am satisfied that the position expressed by counsel for the respondent is essentially correct. In the result, notwithstanding that the applicants sought costs on a solicitor and client basis, I determined that the appropriate disposition as to costs was no order as to costs. My order so provided.
____________________________
J. F.C.C.
Ottawa, Ontario
November 9, 2000
__________________1 Lac des Mille Lacs First Nation et al. v. Chapman et al (1998), 149 F.T.R. 227.
2 Applicants' Record, tab 7 (L).
3 Applicant's Record, tab 7 (N).
4 Applicant's Record, tab 7 (O).