Date: 20031020
Citation: 2003 FCA 385
CORAM: ROTHSTEIN J.A.
BETWEEN:
VICTOR MARIE uncontested Chief and NORMAN STARR
uncontested duly elected Band Counsel Member, and
JEANNIE MARIE-JEWELL, acting as interim Band Manager
Appellants
and
MELVIN WANDERINGSPIRIT, DELPHINE BEAULIEU,
TONI HERON, RAYMOND BEAVER and SONNY MCDONALD
in their capacity as COUNCILLORS OF THE SALT RIVER
FIRST NATION 195, elected August 30, 2002
Respondents
Heard at Edmonton, Alberta, Wednesday, October 1, 2003.
Judgment delivered at Ottawa, Ontario, October 20, 2003
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
CONCURRED IN BY: SEXTON J.A.
SHARLOW J.A.
Date: 20031020
Docket: A-244-03
Citation: 2003 FCA 385
CORAM: ROTHSTEIN J.A.
BETWEEN:
VICTOR MARIE uncontested Chief and NORMAN STARR
uncontested duly elected Band Counsel Member, and
JEANNIE MARIE-JEWELL, acting as interim Band Manager
Appellants
and
MELVIN WANDERINGSPIRIT, DELPHINE BEAULIEU,
TONI HERON, RAYMOND BEAVER and SONNY MCDONALD
in their capacity as COUNCILLORS OF THE SALT RIVER
FIRST NATION 195, elected August 30, 2002
Respondents
REASONS FOR JUDGMENT
ROTHSTEINJ.A.
[1] On August 30, 2002, the Salt River First Nation 195 elected Victor Marie as Chief and Norman Starr, Melvin Wanderingspirit, Delphine Beaulieu, Tony Heron, Raymond Beaver and Sonny McDonald as Councillors.
[2] By a vote at a meeting on November 3, 2002, Councillors Wanderingspirit, Beaulieu, Heron, Beaver and McDonald (the "Wanderingspirit group") were removed from office and Nora Beaver, David Gowans, Connie Benwell, Michel Bjornson, Harvey Lepine, and Don Tourangeau (the "Nora Beaver group") were elected as Councillors. Chief Victor Marie and Councillor Norman Starr were not removed at the November 3, 2002, meeting and they continued as Chief and Councillor. There was no notice to the Band members that the removal of the Wanderingspirit group or the election of the Nora Beaver group was to be voted on at that meeting.
[3] By application dated December 7, 2002, the Wanderingspirit group sought judicial review in the Trial Division (as it then was) of the removal of the Wanderingspirit group and the election of the Nora Beaver group as Councillors.
[4] By Reasons for Order and Order dated May 29, 2003, Rouleau J. granted the judicial review, holding that the removal of the Wanderingspirit group at the November 3, 2002, meeting was void and of no effect and that the election of the Nora Beaver group at the same meeting was equally void and of no effect.
[5] This is an appeal from the May 29, 2003, Order of Rouleau J.
[6] The issues raised by the appellants are:
1. whether the Salt River First Nation has a well defined election custom in place and in particular a custom requiring that notice be given of an election;
2. whether there was a decision before Rouleau J. against which he could grant relief; and
3. whether Rouleau J. erred in awarding costs against Chief Victor Marie, Councillor
Norman Starr and Jeannie Marie Jewell.
[7] As to the Salt River election custom and a notice requirement, Rouleau J. stated at paragraph 43 of his reasons:
In the present case, there is unequivocal evidence that the Salt River First Nation had a well-defined election custom in place. The settled practices have included elections approximately every two years; notice of an election; nominations closed in advance of the election; election by secret ballot; council comprised of a chief and six or seven councillors; and, members must be eighteen years of age to vote.
[8] Paragraph 43 is the conclusion of a section in his reasons entitled "History and procedure followed by the SRFN for elections". From paragraphs 33 to 39, Rouleau J. described the various aspects of the Salt River custom election process by detailed reference to the evidence, including express findings as to the planning of elections, the requirement for notice, the practice of nominations being closed before elections and elections by secret ballot, the numbers of councillors and the qualifications to vote.
[9] Nonetheless, the appellants argue that there has never been a settled custom that requires notice to be given before an election is held. It is said that it is the "will of the people" that must prevail and if the membership at a meeting decides to remove councillors and elect others in their place, they may do so even without prior notice.
[10] In the evidence, the appellants were able to point to only one instance where the term of office of a Chief and Council were extended by a few months by Band Council Resolution in what appears to be special circumstances.
[11] I am unable to conclude that there is any palpable or overriding error in Rouleau J.'s factual conclusions regarding the Salt River election custom. He carefully reviewed the evidence and the appellants have not shown by reference to any evidence that, except in one unusual case, the customary practices described by Rouleau J. were not followed.
[12] Rouleau J. found that these customary practices included a requirement to give notice of an election. Indeed, an election process without the requirement of notice is difficult to fathom. If Band members are to be given a fair opportunity to vote in an election they must be told when the election is to take place.
[13] I do not say that the Band's customary process may not include the right to recall a Chief or Councillors and to hold an election to replace them more often than the approximately two year interval that usually passes between elections. Indeed, counsel for the respondent agreed that the customary process may include a recall provision. However, even in the case of a recall, there must be notice.
[14] In this case, as found by Rouleau J., no notice was given that there was to be a recall vote at the November 3, 2002, meeting or that a new slate of councillors was to be elected at that meeting. It is that departure from the customary process, as well as some others, that Rouleau J. found invalidated the November 3, 2002, recall of the Wanderingspirit group and their replacement by the Nora Beaver group. I agree with his conclusion.
[15] The appellants argue that the "will of the people" must be respected and it is the people who are entitled to choose their Chief and Councillors. Of course, that is correct. However, the "will of the people" must be manifested in a process that accords with the Band's election custom and with electoral due process. I think that Rouleau J. summed up these requirements succinctly at paragraph 48 of his reasons:
Not only was the purported election of the respondents on November 3, 2002 not conducted in accordance with the election customs of the SRFN, the entire process breached the most fundamental principles of natural justice and fairness. It is imperative that reasonable notice be given to the members of a First Nation of an election of its leaders. Where notice is not given the effect is to disenfranchise the electors who do not happen to be at the place of the election at the relevant time. That is what happened here. The will of the SRFN members is demonstrated by their adherence to principles of fairness and democracy and, in particular, elections by secret ballot after due notice, throughout the 1990's. What occurred on November 3, 2002, was the exercise of the will of a small rump group of the SRFN who took advantage of the absence of the vast majority of the members. By holding an election without notice they effectively disenfranchised the members who were not in attendance.
[16] For these reasons I would reject the appellants' first ground of appeal.
[17] As for the second ground, it is true that there was no decision by the Nora Beaver group, any election officer, or indeed the band itself before Rouleau J. However, in these circumstances such a decision was unnecessary. The respondents, in bringing their judicial review application before Rouleau J., were challenging the authority by which the Nora Beaver group were purporting to act as Band Councillors in place of the Wanderingspirit group. Although their application was for a declaration and not expressly for a writ of quo warranto, the substance of what they were seeking was a declaration equivalent to the prerogative writ of quo warranto.
[18] Pursuant to paragraph 18(1)(a) of the Federal Court Act, the Federal Court has jurisdiction to issue a writ of quo warranto or to grant declaratory relief. I see no reason why declaratory relief which, in substance, is in the nature of quo warranto, cannot be granted. That procedure appears to have been approved in Lake Babine Indian Band et al. v. Williams et al. (1996), 194 N.R. 44 (F.C.A.). Robertson J.A. states at paragraphs 3 and 4:
[3] It is to be noted at the outset that the appellants do not dispute the jurisdiction of the court to address the issues herein. The respondents seek declaratory and injunctive relief, which in these circumstances essentially amounts to a request for a writ of quo warranto. Quo warranto allows a challenge of an individual's right to hold a particular office...
[4] There is no doubt therefore that there is jurisdiction per se, an Indian Band Council being a "federal board, commission or other tribunal" within the meaning of ss. 2 and 18 of the Act....Accordingly, this Court has jurisdiction to address the issue but it can do so only in the context of a s. 18 application not the context of an action initiated by way of statement of claim.
[19] In the present case, the matter proceeded by way of application and the objection in Lake Babine to the procedure by way of statement of claim is not relevant.
[20] While normally judicial review is conducted with respect to a decision of a federal board, commission or tribunal, there will be occasions where relief may be granted in the absence of a decision. An application for a writ of prohibition is an obvious example. Quo warranto or a declaration in the nature of quo warranto where the challenge is to the right of a public office holder to hold office directly is another. That is what has occurred here. For these reasons, the second ground of appeal must be rejected.
[21] The third ground of appeal relates to the award of costs made by Rouleau J. against the appellants. The appellants say that Rouleau J.'s order of May 29, 2003, did not affect Chief Victor Marie or Councillor Norman Starr and costs should not have been awarded against them. They also say that the only mention of Jeannie Marie Jewell in Rouleau J.'s reasons are to the effect that he did not have jurisdiction to grant the remedy sought against her, that is, to enjoin her from entering the office or other buildings of the Band.
[22] It is trite to say that an award of costs by a motions judge is discretionary and will rarely be interfered with by an appellate court. I would note that the respondents had agreed early in the judicial review not to challenge the Chief or Councillor Starr in their roles as Chief and Councillor. Nonetheless, the Chief has been actively involved in this litigation opposing the respondents. Ms. Jewell has also been actively involved. This is not a case in which this Court should interfere with the award of costs made by the motions judge.
[23] In spite of the articulate argument made by Ms. Jewell on behalf of the appellants, the appeal should be dismissed with costs.
"Marshall Rothstein"
J.A.
"I agree
J. Edgar Sexton J.A."
"I agree
K. Sharlow J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-244-03
STYLE OF CAUSE: VICTOR MARIE et al. v. MELVIN WANDERINGSPIRIT et al.
PLACE OF HEARING: Edmonton, AB
DATE OF HEARING: October 1, 2003
REASONS FOR JUDGMENT: ROTHSTEIN J.A.
CONCURRED IN BY: SEXTON J.A.
SHARLOW J.A.
DATED: October 20, 2003
APPEARANCES:
|
Jeannie Marie-Jewell (Appellant) |
FOR THE APPELLANTS |
|
Christopher Harvey |
FOR THE RESPONDENTS |
|
Ian Blackstock |
FOR THE RESPONDENTS |
|
Neil J. Duboff |
FOR ROYAL TRUST |
SOLICITORS OF RECORD:
|
Mackenzie Fujisawa, Vancouver BC |
FOR THE RESPONDENTS |
|
Fasken Martineau DuMoulin LLP, Yellowknife NT |
FOR THE RESPONDENTS |