In Shotclose v. Stoney First Nation, members of Stoney Nakoda First Nation (which includes Bearspaw, Chiniki, and Wesley) were successful in convincing the Federal Court of Canada to invalidate an extension of the chief and councillor’s term in office past the two year band resolution limit.
89 I do not accept the respondents’ claim that they were merely following the direction of the Elders. I find that the Chief and Council set up the survey process, hired the coordinator, approved the questionnaire, interpreted the results to their benefit and made the decision to cancel the 2010 election. They are now trying to justify their actions by claiming that the decisions were made by the Elders in accordance with band custom. That claim is, in my view, entirely spurious. The evidence points to one conclusion, that the Chief and Council, with the aid of their staff, designed and executed the survey through a carefully chosen group of Elders dominated by members of the Chief’s family.
90 Such behaviour is not consistent with the fundamental tenets of democracy. Justice Pierre Blais, as he then was, speaks to this issue in Balfour, above, at paragraph 55:
Resolutions cannot be the product of predetermined decisions. They must be debated and passed in accordance with the rules and guidelines of the Band and in accordance to the principles of democracy.91 In a similar vein, Justice Marshall Rothstein, as he then was, wrote this in Long Lake Cree Nation v. Canada (Minister of Indian and Northern Affairs), [1995] F.C.J. No. 1020 (QL), at paragraph 31:
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 Councilors to make decisions on their behalf and Councilors 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.
92 Here, the respondents owed the applicants a duty of fairness as members of the BFN whose established voting rights, privileges or interests would be affected by any decision to alter the Band’s electoral practices: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 20; Roseau River Anishinabe First Nation v. Roseau River Anishanabe First Nation (Council) (2003), 228 F.T.R. 167, [2003] 2 C.N.L.R. 345 at paras. 30 and 42.
93 BFN members had reason to expect that any changes to their electoral practices would be preceded by fair notice, an opportunity to be heard and a vote on the changes. Fair notice in this context required full disclosure of the proposals. An opportunity to be heard required meetings open to all members or a reasonable consultation process. That was not done in this case. Band practice required a vote to elect the Chief and Council. The survey, as implemented, was not an adequate consultation mechanism or alternative to a vote on the proposed changes. I agree with the applicants that they were given inadequate notice of the Chief and Council’s intention to cancel the December 2010 election and that they were denied a meaningful right to be heard.
94 It is no answer now for the respondents to say that the applicants could have availed themselves of the survey process to express their views about the proposed changes. The survey was set up and executed to deliver the results sought by the Chief and Council. Had the applicants chosen to participate in the survey, they could have been said to have waived their right to a vote at a timely election. Nor is it an answer that the applicants could have brought an application for judicial review of any of the steps taken by the Chief and Council to implement this scheme. Until such time as the date had come and passed without an election, the applicants’ right to vote had not been denied.
95 A reasonable apprehension of bias arises from the facts given the process followed and the Chief and Council’s direct interest in the outcome of the matter. An apprehension of bias must be a reasonable one, held by right-minded, informed individuals, “viewing the matter realistically and practically”: Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at para. 40; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 at para. 81.
96 Here, the proposed changes to the Elections Code were matters in dispute in the community. There was strong disagreement to the method chosen to implement the changes, manifested by the demonstrations within the community. An informed individual viewing the matter realistically and practically would conclude that the Chief and Council were parties to the controversy that had direct interests, including a pecuniary interest, in the outcome. It was not open to them to decide the length of their own terms of office, other than through resignation.
97 Although I have found that the acts of the Chief and Council were not conducted in conformity with custom, had I concluded otherwise I would have held nonetheless that the acts were in breach of procedural fairness and could not be justified on that ground: Prince v. Sucker Creek First Nation #150A, 2008 FC 1268, 303 D.L.R. (4th) 438, aff’d 2009 FCA 40; Long Lake Cree Nation, above; Balfour, above. v. Norway House Cree Nation, 2006 FC 213. In Prince, at paragraph 39, the Court held that:
Band Councils must operate according to the rule of law. This obligates Band Councillors to respect the duty of procedural fairness in exercising their powers and taking decisions in the interests of those they were elected to serve.
98 The applicants in 2010 had a right to vote every two years in accordance with BFN custom. The Chief and Council’s acts in setting up the survey process engaged those fundamental rights. They allowed some but not all BFN members to express their views on whether their rights should be changed. Because no BCR was passed to hold the 2010 election and no election was in fact held, there was no right of appeal which the applicants could exercise under customary practice to the Stoney Tribal Council. The Chief and Council’s actions disposed of the applicants’ democratic rights subject only to the supervisory jurisdiction of this court.
99 Statements attributed to Chief Bearspaw and published in local newspapers in March 2010 indicated that he was contemplating a referendum to obtain approval from the community to the proposed changes in governance. I find, therefore, that the applicants had a legitimate expectation that they would be consulted about the proposed changes and an opportunity to vote on them at the referendum referenced in those remarks: St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 at para. 74.
Turtle Talk 