The Court ordered that two consolidated applications for judicial review in relation to an election dispute will be treated as an action. The Applicants seek a declaration that the First Nation’s customary election regulations are contrary to section 15 of the Charter and the Defendants plan to bring a defence based on sections 1 and 25 of the Charter, as well as section 35 of the Constitution Act, 1982. As the Charter argument is being raised for the first time on judicial review and section 35 rights can only be determined at trial, the matter will proceed as an action. 

Indigenous Law Centre CaseWatch Blog

Swan River First Nation [“SRFN”] and the Swan River First Nation Chief and Council [“Respondents”], have brought a motion under the Federal Courts Rules [“Rules”] for an Order pursuant to the Federal Courts Act directing that two consolidated applications for judicial review [“Applications”] be treated and proceeded with as an action.

Shawna Jean and Robert Houle [“Applicants”] in the underlying Applications, are seeking an Order to set aside the decision of the Electoral Officer of the SRFN that refused to accept their nominations as Chief and Councillor of the SRFN respectively in the 2019 General Election. The Applicants had not been residing on the SRFN Reserve for at least one year prior to May 3, 2019 in accordance with section 9.1(a)(2) of the Swan River First Nation Customary Election Regulations [“Election Regulations”]. Additionally, they seek declarations that they are eligible to run as candidates for the position of Chief and Councillor in the 2019 General Election, and that section 9.1(a)(2) of the Election Regulations contravenes section 15 of the Canadian Charter of Rights and Freedoms [“Charter”]. They contend that the impugned provision discriminates on the basis of Aboriginal residency and is therefore unconstitutional and is of no force or effect.

The Respondents intend to defend the Applications on the basis of sections 1 and 25 of the Charter and s 35 of the Constitution Act, 1982 in accordance with their asserted Aboriginal and Treaty rights. They argue that the procedures of an action are required to have a fair and just determination of the particular Aboriginal and Treaty rights defences being advanced and that the unique nature of these particular Applications is such that the rationales in support of the speedy judicial review process are not applicable.

The Applicants oppose the Respondents’ motion to have the Applications be treated and proceeded with as an action. They argue that the Respondents’ request to convert is premature because the Court has yet to determine whether there is a section 15 Charter violation. The Applicants also dispute the Respondents’ view of the customs, practices, traditions and history of the SRFN. According to the Applicants, the restriction of residency was not a traditional practice of the SRFN or its predecessor, the KEE NOO SHAY OOs’ Band, prior to Treaty No. 8, but rather the result of misinterpretation of Treaty No. 8 by government officials. The Applicants say that the judicial review procedure contains adequate mechanisms for the Respondents to outline their claim to Aboriginal and Treaty rights.

Section 18.4(2) of the Federal Courts Act vests the Court with the discretionary authority to order the conversion of an application for judicial review into an action “if it considers it appropriate” (Canada (AG) v Lafrenière, 2018 FCA 151). This Court has previously found that applications for judicial review that raise issues of proof of Aboriginal rights can only be determined by way of an action (Soowahlie Indian Band v Canada (Attorney General), 2001 CanLII 22168 (FC)). In this matter, the procedures of a judicial review application do not provide sufficient procedural safeguards to ensure fairness to the parties on the Applications, nor do they enable the Court to make a proper determination of the issues of Aboriginal and Treaty rights before the Court in this proceeding, thereby this Court concludes that the Applications shall be treated and proceeded with as an action.