[2016] 3 F.C.R. D-1
Aboriginal Peoples
Appeal from Federal Court decision (2014 FC 569) allowing judicial review of decision of Cowessess First Nation # 73 Band Council (Band Council) not to call by-election in present case — Appeal concerning dispute over whether position of chief becoming vacant because elected chief failing to comply with residency requirements set out in Cowessess First Nation #73 Custom Election Act —Terrence Lavallée (appellant) elected chief of Band Council — Before elected chief, appellant having long-standing connection with dwelling at issue, adjoining lands located on Cowessess reserve — Following appellant’s election as chief, appellant required to take up residence on reserve within three months pursuant to Cowessess First Nation #73 Custom Election Act, ss. 5.01, 12.03 — However, due to occupancy of appellant’s former dwelling by other individual refusing to vacate dwelling, appellant unable to move into it within three-month deadline — Appellant’s failure to take up permanent residence within three months of election resulting in deemed vacancy of position of chief in accordance with Act, s. 13.01 — Respondent councillors ceasing to recognize appellant as chief following expiry of three-month deadline — Motion brought on whether to call by-election for position of chief but since vote tied, motion defeated — Appellant ultimately taking possession of unit at issue — In judicial review, respondents arguing appellant failing to satisfy residency requirement set out in Act, that position of chief made vacant, that by-election needed to be called — Federal Court holding that : Act, ss. 5.01(b), 12.03, 13.01(a)(v) clear, unambiguous; Act containing no exceptions to three-month time period for establishing residency; Band Council decision not to call by-election unreasonable — Whether Band Council’s decision not to call by-election reasonable — Federal Court erring in finding that any evidence regarding availability of unit at issue irrelevant, that proper interpretation of Act requiring appellant to be in actual physical occupation of unit at issue despite wilful actions of occupant, other band members to frustrate appellant’s occupation — Phrase “take up permanent residency” not defined in Act, not equivalent to being permanent resident as of given date — In declining to order by-election, reasonable for Band Council to interpret Act, “take up permanent residence” provision contained in Act, ss. 5.01, 12.03 in particular, in manner recognizing unusual, extraordinary circumstances of present case — Thus, reasonable to interpret provisions of Act to conclude that given appellant’s ongoing, legitimate efforts to obtain occupation of unit at issue, unusual circumstances whereby other members of band seeking to frustrate prompt occupation thereof, appellant satisfying requirement in Act to “take up permanent residence” — Since appellant satisfying residency requirements, position of chief never vacant, no need for by-election — Court should hesitate to interfere with duly elected Band Council’s application of Act in efforts to govern affairs thereof when confronted with such extraordinary circumstances — Federal Court not showing sufficient deference to Band Council’s decision — Appeal allowed.
Lavallée v. Ferguson (A-296-14, 2016 FCA 11, Near J.A., judgment dated January 19, 2016, 11 pp.)