Tag Archives: custom election codes

West v Cold Lake First Nations, 2021 CHRT 1

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Complaint dismissed in its entirety. A Cree woman and member of Cold Lake First Nations, submitted a complaint to the Canadian Human Rights Commission that she was discriminated against contrary to her race, national or ethnic origin and family status in rejection of her band council nomination. Further, she submitted that the Nation retaliated due to her filing this complaint, by reassigning her daughter’s future house to another member of the Nation.

Indigenous Law Centre – CaseWatch Blog

In 2016, Bonnie West, a First Nations Cree woman and member of Cold Lake First Nations [“CLFN”], attempted to stand for election as councillor to sit on the CLFN band council. Her nomination was rejected by the elections officer, and Ms. West filed a complaint with the Canadian Human Rights Commission, which was referred to the Tribunal in 2019. She alleged that she was discriminated against contrary to section 5 of the Canadian Human Rights Act [“CHRA”] in the provision of services by the Nation on the grounds of her race, her national or ethnic origin, and her family status. Ms. West has also amended her complaint, adding an allegation of retaliation by CLFN, contrary to section 14.1 of the CHRA. Her daughter was not given access to a new house in the community, in contrast to what had been planned. Ms. West believes that CLFN acted in this manner in retaliation against her filing her complaint.

CLFN is a First Nations community in Alberta with a population of about 3,000 members both on and off the reserve. In 1986, CLFN adopted the Cold Lake First Nations Election Law [“1986 Election Law”], which was approved by order of the former Minister of Indian and Northern Affairs. In the 2016 election for CLFN’s chief and band council, a member of the Nation nominated Ms. West to run for election as a councillor on the band council. After she was nominated, another member of the Nation protested Ms. West’s nomination. The protest alleged that Ms. West was not a direct descendant of original treaty citizens, contrary to the 1986 Election Law. The elections officer at the time had to consider the matter and determine whether Ms. West fulfilled the requirements.

Even though the 1986 Election Law does not clearly stipulate what is meant by “original treaty citizens”, the evidence establishes on a balance of probabilities that this expression refers to the signatories of Treaty No. 6. He asked Ms. West to provide him with a document, specifically an affidavit supporting her nomination, within 48 hours. Ms. West filed a short sworn statement with the elections officer, in which she declared before a commissioner of oaths that she was eligible to stand as councillor given that she was a direct descendant of original treaty citizens. The evidence reveals that no other documents were submitted, such as Ms. West’s family tree or the document confirming her North American Indian Blood Quantum as she did at the hearing. The elections officer found that Ms. West did not fulfill the requirements. After receiving the elections officer’s decision by email, she asked him which additional documents were needed to establish that she could stand as a candidate for election. The evidence reveals that Mr. Adam did not answer her question.

Ms. West is challenging the rejection of her nomination, which resulted from the verification of whether she met the eligibility criteria set out in the 1986 Election Law. In applying the 1986 Election Law and the candidate eligibility criteria, the officer was merely ensuring that Ms. West met or complied with the criteria established by the Nation when it created and passed its own election law. Therefore, it appears that Ms. West’s challenge is more an issue with the 1986 Election Law itself and its selection criteria (Forward v Citizenship and Immigration Canada, 2008 CHRT 5).

In this matter, the band council exercised its authority by enacting its own 1986 Election Law within its jurisdiction, which falls within the federal sphere (Francis v Mohawk Council of Kanesatake, 2003 FCT 115 (CanLII)). The fact that the Department of Indian Affairs and Northern Development allowed CLFN, by order in council, to adopt its own election law does not render the 1986 Election Law immune from scrutiny under the Charter (Ratt v Matchewan, 2010 FC 160 [“Ratt”]; Taypotat v Taypotat, 2013 FCA 192). The type of challenge Ms. West has brought should have been brought in the right forum, the Federal Court. The Federal Court has jurisdiction over the officer’s actions as well as over matters relating to the Nation’s elections (Ratt; Ballantyne v Nasikapow, 2000 CanLII 16594 (FC)). This jurisdiction of the Federal Court also extends to reviews relating to the application of the Charter and section 15, regarding equality rights.

 Ms. West alleged that she was a victim of retaliation under section 14.1 of the CHRA. The preponderance of evidence does not support Ms. West’s claims. Her daughter lives in the CLFN community and she was informed by a consultant for the Nation that she was to receive a house to replace the one she was living in. Reasons for reassigning the house to another member of the community were provided and were credible.

Morin v Enoch Cree First Nation, 2020 FC 696

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Application granted. Procedural fairness applies even when not directly incorporated into a First Nation’s custom election code.

Indigenous Law Centre – CaseWatch Blog

This application for judicial review is brought pursuant to s 18.1 of the Federal Courts Act, regarding a decision by an Election Appeal Board, constituted in connection with the Maskekosihk Enoch Cree Nation #440 Election Law [“MECN Election Law”]. The majority of voters of the Maskekosihk Enoch Cree Nation approved the MECN Election Law in 2018. It was enacted and adopted into the laws of that First Nation.

In this matter, the Applicant, Mr. Jared Morin and Respondent, Mr. Shane Peacock are members of the Enoch Cree Nation and both ran for the position of band councillor in the 2019 election. The counting of the ballots for councillors was conducted and there was found that both Mr. Morin and Mr. Peacock had received 319 votes. However, this “tie” is disputed as a councillor’s ballot was found in a ballot box intended for votes for the chief. That councillor’s ballot was for Mr. Morin. As some candidates ran for election as chief or councillor, the outcome of the election for chief had the potential to affect the outcome of the election to the 10th councillor position.

The Electoral Officer declared this tie and, in accordance with s 17.2 of the MECN Election Law, Mr. Morin and Mr. Peacock’s names were placed in a hat. The name drawn from the hat was Applicant. The Election Officer declared him the winner of the 10th councillor position.

Mr. Peacock subsequently submitted a brief to the Election Appeal Board that asserted the Electoral Officer improperly handled the councillor’s ballot found in the ballot box for votes for chief during the counting of the votes for the position of chief. That ballot, according to the brief, should have been considered as spoiled and not counted. In that event, Mr. Peacock would have had 319 votes and Mr. Morin would have had 318 votes, there would not have been a tie vote, and there would have been no need to conduct a tie breaking hat draw. The 10th councillor position in the 2019 election for the Maskekosihk Enoch Cree Nation chief and band council were then overturned and a by-election ordered.

This Court finds that the Election Appeal Board breached the duty of procedural fairness owed to Mr. Morin by failing to give him notice of that appeal, and as a result, deprived him of the opportunity to address the appeal allegations. The Election Appeal Board also erred by failing to notify the Electoral Officer of the appeal and in failing to obtain the Electoral Officer’s written reasons for his decision, in breach of s 20.7 of the MECN Election Law. This was unreasonable and rendered its decision unreasonable.

Given that Enoch Cree Nation did not challenge Mr. Morin’s allegation that the Election Appeal Board breached procedural fairness, and given that he has been successful in his application for judicial review in that the decision of the Election Appeal Board will be quashed and remitted back for redetermination, it is appropriate that he should be awarded the costs of his application as against the Enoch Cree Nation.