ABORIGINAL PEOPLES
Elections
Judicial review of Carry the Kettle First Nation Band’s March 26, 2004, decision confirmed by Department of Indian and Northern Affairs (INAC), removing applicant as Chief Electoral Officer for 2004 Carry the Kettle First Nation Band Election—Applicant seeking finding not lawfully removed, thus continued in Chief Electoral Officer position, or alternatively, seeking reinstatement to position—Elections held in accordance with Indian Act—Term of office for Band Council Chief, Band Council expiring March 31, 2004—First Nation required to hold election on, prior to that date—INAC requesting Band Council Chief, Band Council appoint electoral officer from list of eligible Certified Electoral Officers—Band Council fixing election date, appointing applicant as Chief Electoral Officer, obtaining INAC’s approval of appointment—Electoral officer to provide mail-in ballots at least 35 days prior to election to voters residing off reserve—Nomination meeting held and applicant sending “mail-in ballots” to 199 of 300 off-reserve voters—Names of two candidates on First Ballot incorrect—After realizing error, applicant sending subsequent ballot containing hand-written corrections to unidentified portion of off-reserve voters— INAC made aware of errors, advised that applicant having no plans to postpone election—On March 23, Band Council Chief meeting with INAC to see if election could be delayed —Chief doubting applicant’s ability to run effective election, asking INAC to consider replacing applicant as Chief Electoral Officer—INAC contacting applicant on March 24, discussing issues raised by Band Council, ballot-error related issues—INAC also meeting with Band Council Chief, Band Council to discuss options available to Band Council—On March 26, Band Council advising INAC desired to hold new election, requesting help to draft resolution—Preparing Band Council Resolution (BCR) to rescind, revoke applicant’s appointment as Chief Electoral Officer, declare superintendent in lieu of Band Council appointee as electoral officer—INAC notifying applicant of revocation of appointment as Chief Electoral Officer but applicant’s name remaining on list of Certified Electoral Officers—INAC employee appointed as electoral officer—March 31, 2004 election cancelled, new election held on May 12—Band Council advising applicant on March 30 services terminated by First Nation—Band Council, INAC complying with necessary formalities required for decision to remove applicant as Chief Electoral Officer—In terms of completing formalities, evidence showing INAC recommending applicant be removed, Band Council accepting INAC’s recommendations after discussion—INAC believing removal, proceeding by way of superintendent in lieu of Band Council appointed electoral officer best way to proceed following mistakes made by applicant—Despite INAC’s initiative in BCR process, preparation thereof, no evidence Band Council not functioning in autonomous way; that full discussion not held by members remaining at meeting before BCR signed—No evidence BCR removing applicant as Chief Electoral Officer not passed in legitimate manner—Indian Act, s. 76(1) allowing Governor in Council to make orders, regulations dealing with appointment, duties of electoral officers—Indian Band Election Regulations promulgated in accordance with power under Act, s. 76(1)(b)—Regulations, s. 2 defining “electoral officer” as superintendent or person appointed by council of band with approval of Minister— Interpretation Act, s. 31(4) giving Minister power to undo what Minister having power to do, including making, repealing regulations as defined in s. 2(1)—Therefore, Governor in Council having power to make regulation dealing with removal of electoral officer—However, s. 31(4) contemplating actual regulation dealing with removal of electoral officer whereas Indian Band Regulations simply providing for appointment of “electoral officer” (s. 2) with approval of Minister, not specifically addressing process for removal of person so appointed—No danger of undue influence when incumbent band council having no power to remove superintendent or when electoral officer appointed by band council and approved by INAC—Nothing in scheme or relevant legislation to suggest band council could unilaterally remove appointed officer without consent of INAC—INAC having fiduciary obligation to ensure election-related decisions made fairly, in accordance with legislation—Band council’s role in selecting, removing electoral officers limited because electoral officers functioning in part as Minister’s delegate throughout whole election process—Electoral scheme making clear electoral officer functioning at all times to carry out duties, powers of Minister—Role of electoral officer to ensure on behalf of First Nation, Minister, that band council elections carried out in accordance with governing legislation —Must have confidence, approval of First Nation, Minister throughout process—INAC must have power to seek removal of electoral officer appointed under Indian Band Regulations where such removal required to ensure Minister’s obligations under Indian Act, Regulations fulfilled—Reasons for removing applicant good, entirely consistent with scheme, purpose of governing legislation—Removal completed in procedurally fair manner—Evidence suggesting applicant’s initial mistakes, attempts to rectify them causing significant confusion, giving rise to important timing issues, placing election in jeopardy— INAC, Band Council justified in actions to remove applicant —Application dismissed—Indian Act, R.S.C., 1985, c. I-85, s. 76—Indian Band Election Regulations, C.R.C., c. 952, s. 2 “electoral officer”, (as am. by SOR/2000-391, s. 1)—Interpretation Act, R.S.C., 1985, c. I‑21, ss. 2(1) “regulation”, 31(4).
Pete v. Canada (Attorney General) (T-717-04, 2005 FC 993, Russell J., order dated 18/7/05, 25 pp.)