[2003] 4 F.C. D-79
NATIVE PEOPLES
Elections
Ominayak v. Lubicon Lake Indian Nation (Chief and Council)
T-875-99
2003 FCT 596, Dawson J.
14/5/03
26 pp.
On April 25, 1999, Lubicon Lake Indian Nation held election for positions of Chief and Band Councillors—During course of election, Chief Electoral Officer (respondent) determined 32 individuals (applicants) ineligible to vote—In September of 1996, number of applicants in present proceeding commenced proceeding in Federal Court (1996 proceeding) seeking declaration confirming their status as Indian Band as defined under Indian Act—Respondent concerned that if applicants made decision not to be members of Lubicon and to be member of another community called Little Buffalo Cree, applicants would not be eligible as electors—32 individuals declared ineligible to vote in election because parties to Federal Court action and refused to sign affidavit renouncing and disassociating themselves from that legal action; 9 individuals who did sign ruled eligible to vote—Five issues in case at bar—(1) As to whether applicants misusing Court for political purposes: evidence not establishing issues raised in present proceeding frivolous or vexatious, or proceeding so bereft of any possibility of success—(2) Whether respondent improperly disqualified qualified voters from voting—First, patently unreasonable to conclude applicants had become members of another Indian Band when no such band existed—Even if respondent entitled to disqualify potential electors on membership list of Lubicon Lake People, before doing so, respondent obliged to determine elector member of entity falling within statutory definition of "band"—Respondent did not direct herself to consider whether persons should be disqualified on basis that they had joined another Indian Nation—Rather, respondent concerned as to whether applicants had formed new band—Second, respondent erred in requiring persons to withdraw from participation in legal proceeding as consideration for being allowed to exercise right to vote, because withdrawal by itself could not restore membership to anyone stripped of membership—Respondent committed reviewable errors requiring intervention of Federal Court—(3) Whether respondent improperly allowed non-qualified persons to vote—In absence of evidence establishing unqualified individuals actually voted, no basis for challenging any action of respondent in this regard—(4) Whether respondent biased in applying rules relating to voter eligibility—Error by itself does not equate to, or establish, bias—Test for bias requiring Court to determine what would informed person, viewing matter realistically and practically, and having thought matter through, conclude?—Applying test, not satisfied reasonable and informed person would conclude respondent biased—(5) What remedies can or should be awarded—Application for judicial review public law proceeding—Therefore, relief granted should further public interest—In exercising discretion, most important fact to consider that impugned election took place four years ago—Next election will likely take place within next year—In intervening four years since election respondent would have made number of decisions, validity of which might be questioned if election set aside—Third parties may well have acted upon decision of respondent to their detriment—Not appropriate to quash result of 1999 election—No relief necessary or appropriate—Sole order to issue order quashing decision of respondent declaring individuals to be ineligible to vote in Lubicon election because parties to 1996 proceedings and refused to sign affidavit dissociating themselves from legal action—Indian Act, R.S.C., 1985, c. I-5.