[2011] 3 F.C.R. D-5
Aboriginal Peoples
Elections
Judicial review of decisions, actions of Bearspaw First Nation (BFN), Stoney First Nation resulting in election for Bearspaw Chief, councillors not being held as scheduled—Applicants challenging decisions, actions of Bearspaw Chief, councillors to extend two‑year terms of office to December 2012—Procedures for conducting BFN elections set out in written band council resolutions (BCRs)—BFN election resolutions in record containing eligibility requirements, procedures for voting, etc.—Under previous BCR, next election to have been held on, before December 10, 2010—Survey conducted proposing changes in governance, i.e. conditions candidates for band council (Council) must meet before able to stand for office, terms of office—No direct communication by Chief, Council to BFN members to advise electorate that 2010 election cancelled, that Chief, Council had extended terms of office for further two years—Clear from evidence that no transparency about course of action followed by Chief, Council—Failure to hold December 2010 election, extension of Chief, Council’s terms breaching BFN custom—While Band entitled to determine own leadership selection practices, collective right must be tempered by respect for rights of members to participate in process—Weight of evidence is that BFN custom to hold elections every two years—Current Chief, Council elected to serve two‑year term of office, not given four‑year mandate—Evidence uncontroversial that not custom of BFN to use surveys to change election process—Clear majority of those completing survey not supporting extension of councillors’ terms—Applicants denied procedural fairness since BFN members had reason to expect that any changes to electoral practices would be preceded by fair notice, opportunity to be heard, vote on changes—Reasonable apprehension of bias arising from facts given process followed, Chief, Council’s direct interest in outcome of matter—Applicants having legitimate expectation that would be consulted regarding proposed changes, opportunity to vote thereon—Application allowed.
Shotclose v. Stoney First Nation (T‑2085‑10, 2011 FC 750, Mosley J., judgment dated June 22, 2011, 41 pp.)