Date: 20050718
Docket: T-717-04
Ottawa, Ontario, this 18th day of July, 2005
Present: The Honourable Justice James Russell
BETWEEN:
LORETTA PETE
Applicant
and
ATTORNEY GENERAL OF CANADA and
CARRY THE KETTLE FIRST NATION BAND COUNCIL
Respondents
REASONS FOR ORDER AND ORDER
THE APPLICATION
[1] The Applicant seeks judicial review of a decision of the Carry the Kettle First Nation Band Council ("Band Council"), and confirmed by the Department of Indian and Northern Affairs ("INAC"), dated March 26, 2004 ("Decision"), that removed her as Chief Electoral Officer for the 2004 Carry the Kettle First Nation Band Election ("Election").
[2] Pursuant to sections 18, 18.1(3) and 44 of the Federal Court Act, R.S.C. 1985, c. F-7, the Applicant asks the Court to find that she was not lawfully removed as Chief Electoral Officer, and so continued in that position or, alternatively, that she be reinstated to that position.
BACKGROUND
[3] The elections of Carry the Kettle First Nation Band ("First Nation") are held in accordance with the Indian Act, R.S.C. 1985, c. I-85, as amended.
[4] The term of office for the Band Council Chief and Band Council expired on March 31, 2004 and the First Nation was required to hold an election on, or prior to, that date. INAC requested that the Band Council Chief and Band Council appoint an electoral officer from a list of eligible Certified Electoral Officers.
[5] The Band Council fixed the election date, appointed the Applicant as their Chief Electoral Officer and requested INAC's approval of the appointment. INAC approved the Applicant's appointment on January 7, 2004.
[6] One of the duties of an electoral officer is, at least 35 days prior to the election date, to provide mail-in ballots to voters who reside off-reserve.
[7] A nomination meeting was held and, at some point between February 18 and 25, 2004, the Applicant sent "mail-in ballots" to 199 of the 300 off-reserve voters ("First Ballot").
[8] The names of two candidates on the First Ballot were incorrect. The effect of the errors on the First Ballot meant that two individuals who were not nominated for Band Council, but who were members of the incumbent Band Council, were listed on the First Ballot, while two individuals who had been nominated for Band Council were not listed on the First Ballot.
[9] At some time between February 25 and March 11, 2004, the Applicant realized that the First Ballot contained two errors. On March 11, 2004, the Applicant sent a subsequent ballot containing hand-written corrections ("Second Ballot") to an unidentified portion of the off-reserve voters.
[10] INAC became aware of the errors on the First Ballot on March 12, 2004 when the Band Council Chief met with the Regional Director General.
[11] On March 17, 2004, INAC made enquiries and was advised that the Applicant had no plans to postpone the election set for March 31, 2004.
[12] On or about March 18, 2004, the Applicant spoke with Lynn Ashkewe of INAC in Ottawa about unrelated matters. At the end of the conversation the Applicant mentioned that she had made errors on the First Ballot, but she did not identify the band involved.
[13] On March 23, 2004, the Band Council Chief met with INAC to see if the election could be delayed. INAC says it was advised that the Band Council was not comfortable with the Applicant's ability to run an effective election and requested that INAC consider replacing the Applicant as Chief Electoral Officer.
[14] INAC contacted the Applicant on March 24, 2004 and met with the Applicant and her legal counsel. The issues raised by the Band Council Chief, as well as the issues arising from the errors on the First Ballot, and the issues arising from the method selected by the Applicant to correct these errors with the Second Ballot, were all discussed with the Applicant and her legal counsel.
[15] INAC met with the Band Council Chief and Band Council on the afternoon of March 24, 2004 to discuss the options available to the Band Council. INAC then contacted the Applicant to advise her that the Band Council was considering her removal as Chief Electoral Officer for the Election and advised her that she would be contacted once the Band Council made its decision.
[16] On March 26, 2004, the Band Council advised that it wished to hold an entirely new election and requested that INAC provide sample wording for an appropriate Band Council Resolution ("BCR"). INAC provided a draft BCR to the Band Council for its consideration.
[17] On March 26, 2004, the Band Council provided INAC with a signed BCR to rescind and revoke the Applicant's appointment as Chief Electoral Officer and declare a superintendent in lieu of a Band Council appointee as electoral officer.
[18] On March 26, 2004, INAC contacted the Applicant to advise her that her appointment as Chief Electoral Officer had been revoked, but that her name would remain on the list of Certified Electoral Officers.
[19] On March 26, 2004, Brenda Forseth, Advisor, Band Governance, Treaty, Estates and Indian Monies for INAC was appointed as electoral officer. The March 31, 2004 Election was cancelled and a new election was held on May 12, 2004 with Brenda Forseth as electoral officer.
[20] By letter dated March 30, 2004, the Band Council Manager advised the Applicant that her services were terminated by the First Nation because of various procedural errors in the ballots/ballot process and because the Band Council had lost confidence in the Applicant's ability to carry out a proper election process.
[21] The Band Council paid the Applicant $4,170.00 on January 19, 2004 and $4,170.00 on February 18, 2004 for her services as Chief Electoral Officer.
[22] The Applicant has subsequently been appointed by three other First Nation bands to conduct their elections and each appointment has received the approval of INAC.
POSITION OF THE APPLICANT
[23] The Applicant says that her purported removal as Chief Electoral Officer has important personal and social consequences.
[24] At a personal level, she has suffered financially and her professional reputation has been compromised.
[25] At a social level, she says that a band council should not be able to remove an electoral officer in the way that she was removed in this case. Band councils have enormous power and control over all aspects of the lives of band members. Fair elections are crucial for First Nations governance. To allow an incumbent band council to replace a legitimately appointed electoral officer removes the independence of electoral officers and undermines fair elections. She says the Court should interfere in this case and send a strong message to band councils and the federal government.
ANALYSIS
Nature of the Applicant's Complaint
[26] There is no evidence before the Court in this case to justify a finding that the 2004 Election was unfair or that the Applicant was dismissed for any other reason than the mistakes she made after her appointment as Chief Electoral Officer. The Applicant confirmed in cross-examination on her affidavit that she did not wish to challenge the May 12, 2004 Election results.
[27] The Applicant also acknowledges that she was responsible for the mistakes that were made, although she does not see those mistakes as having compromised the election process, and she does not believe they constituted grounds for her removal.
[28] The gravamen of her concern is that the Band Council and INAC should not have removed her, and INAC should have worked with her to correct the mistakes to ensure that a valid election was held. She made this clear in her cross-examination:
Q. And it is your view that the real mistake here was in dismissing you and hiring another electoral officer as opposed to providing advice and direction to you as to how to deal with the situation?
A. I think the mistake was that I should have continued. I had a contract with the Band. There was no way I was going to get any other compensation from the Band. I had made - I had to correct my errors, move on, and I think the - being an officer of Indian Affairs as an electoral officer, it was, I feel - would have been wise to continue to have my services and then not ruin my reputation to the Carry the Kettle Band. I would have corrected the issue.
Cross-Examination, page 40, question 169
Q. Would you agree with me that INAC does not want to - does not normally want to be seen as controlling or administering the election?
A. No, I would not agree with you there, they do.
Q. Isn't the reason that INAC appoints an appointed electoral officer, so that you don't have the Department controlling the election or the direct influence of the Department?
A. They do. They have a fiduciary responsibility for all affairs of Indian people.
Q. So you're indicating that they have a fiduciary responsibility to ensure that a proper Band election is held?
A. I think through contracting, an independent contractor would give that responsibility to them, obviously.
Q. And so it's your view that INAC has breached that responsibility in this case?
A. I don't know if that's the issue here. The issue here is the fact that they appointed me as electoral officer, and I think they had, as any employer or any contractor, they have a right to - they should assist electoral officers and anything that might be happening that could affect, you know, the reputation of the electoral officer because these are independent contractors, obviously, and they have to be reputable. And, I think, in this particular case, I would have - I did receive help from Indian Affairs. I did - however, that means that you don't get fired or dismissed from your role. I really felt strongly that I could have corrected this election.
Cross-examination, pages 42-43, questions 179-182
Q. Ms. Pete, can I ask you what you hope to accomplish by these proceedings?
A. I think one of the things I'd like to accomplish is, the fact that I want my story told here because I think there's no issue at all with the errors that I've made. I tried as best as I could to mitigate the damage here. I keep saying that because that's - it was damaged already, and I was trying to soften the blow to the electors. But at the same time I think one has to recognize that I don't want in any way to have a situation where I'm removed again. If I'm removed again, it'll be - it should be done because of, you know, like, a real bad error. If I repeat this error again, you can shoot me out of the water, you know, get rid of me, Edith Owen, but not now. This is one mistake I've made.
Q. Okay. So you're hoping to set a precedent, so that you're not further removed again?
A. Yes, or any electoral officers who makes a mistake like I did. And I'm sure electoral officers make mistakes like this all the time, but, you know - I'm sure they do, and they probably have better ways of correcting errors than me. I just don't want to have that kind of situation again where I'm dismissed because of something where I try and correct an error.
Q. Okay. You're not in any way challenging the election results of May 12th?
A. Absolutely not, no.
Q. And you're not seeking to have another election?
A. For the Carry The Kettle Band?
Q. Yes.
A. No, no, not at all.
Q. And in these proceedings, you're not seeking damages?
A. Not at these proceedings, no.
Q. So this is all about simply establishing the principle that you should have been provided assistance as opposed to being dismissed from the electoral officer position?
A. I think so, yes. I think it would have been wise for the Chief and Council to even have audience (sic) with me, I don't know. I know it was a hard sensitive time at the time, but absolutely, the election has been called, a good idea would have been to sit down with Indian Affairs and devise a plan together in how to proceed with this election.
[29] So the Applicant's own evidence is that INAC has a fiduciary responsibility for all affairs of Indian people, and that an electoral officer can be removed for "a real bad error," but that, in this case, the error could have been corrected and INAC should have worked with her to rectify the mistakes she had made.
[30] On the facts before me in this case, the Applicant raises three important issues that require review:
(a) Were the appropriate legal formalities observed in removing the Applicant as Chief Electoral Officer?
(b) Is there any procedure for removing an electoral officer under the Indian Act, R.S.C. 1985, c. I-5 and the Indian Band Election Regulations, C.R.C. 1978, c. 952?
(c) If an electoral officer can be removed, were there sufficient grounds to warrant the Applicant's removal in this case.
[31] The standard of review in relation to these three issues also needs to be considered.
Formalities
[32] The Applicant disputes whether the Band Council and INAC complied with the necessary formalities required for a decision to remove her.
[33] She says in her affidavit that, on March 25, 2004, she received a call from Chief Barry Kennedy who told her that she was still the Chief Electoral Officer and it was up to her how to proceed with the election: "He told me I could continue with the election as is or I could execute a new schedule."
[34] She also says that she received a call from Edith Owen, who is the Manager of Registration Revenues and Band Governance, Saskatchewan Region for INAC, who told her that she had been removed as electoral officer by Chief Kennedy and the Band Council.
[35] The Applicant says that she spoke with Chief Kennedy again on the same day and he told her that INAC had strongly recommended to the Band Council that she be removed and that INAC had prepared the BCR to remove her. She says that Chief Kennedy advised her that he refused to sign the BCR "because there was no duly convened meeting" and that an INAC official had "carried the BCR from councilor to councilor and had them sign it. There was no discussion and he and others had not been able to consider the matter in a meeting."
[36] Chief Kennedy provided no affidavit for this application. His signature does not appear on the BCR. The Applicant asks the Court to draw an adverse inference against the Respondents from the fact that there is no affidavit from Chief Kennedy on this matter.
[37] But the Band Council has filed an affidavit sworn by Mr. Wayne Ironstar, who is the Band Administrator. He swears that he has "a personal knowledge of the facts and matters deposed to, except where stated to be on information and belief ... ."
[38] Mr. Ironstar has the following to say on this issue:
6. That INAC officials had prepared an appropriate Band Council Resolution cancelling the existing election, and appointing a new Chief electoral officer for the election to be held at a later date. These were presented to the meeting. After a good deal of discussion, the Band Council decided to cancel the election, and appoint a new electoral officer. The Band Council Resolution was passed, and the Band Council Resolutions were accordingly executed.
...
9. That to the best of my information and belief, the process to replace the Chief electoral officer was not initiated by the Chief or any individual Band Councillor. Rather, this process was initiated by INAC, who had received legal counsel regarding the problems with the elections that were scheduled to be held on March 31, 2004.
[39] Mr. Ironstar points out that he makes his affidavit "in response to the Affidavit of Loretta Pete [the Applicant] sworn April 13, 2004."
[40] At the hearing of this matter, the Applicant attacked the affidavit of Mr. Ironstar in various ways. She says that Mr. Ironstar's affidavit is made in breach of Rule 81(2) and that the Court should draw an adverse inference from this fact. She also says that he deposes to various matters of which he has no personal knowledge, and that he never says in the affidavit that he was present for any of the meetings: "Without it being in evidence whether Wayne Ironstar was even present, his affidavit contravenes Rule 81(2)."
[41] But Mr. Ironstar does swear in his affidavit that he has a personal knowledge of the facts and matters deposed to, and he does indicate when he is basing his evidence on information and belief. The Applicant could have cross-examined him if there were any matters of concern, but chose not to. I have no reason not to believe what Mr. Ironstar says about the meeting or the BCR.
[42] This is not to say that I have any reason to disbelieve the Applicant either. Chief Kennedy may well have wanted to retain her as electoral officer. The conflict occurs because she reports that she was told by Chief Kennedy that there was no duly convened meeting, the resolution was carried from councilor to councilor, and there was no discussion or consideration of a meeting. Unfortunately, we don't have an affidavit from Chief Kennedy to clear up those points of concern.
[43] But we do have Edith Owen's affidavit that addresses these issues. She gives the following evidence:
13. On 24 March 2004 I called the Applicant to advise her that INAC was considering removing her as Electoral Officer for the CTK election and possibly from the list of approved Electoral Officers. I also requested that she provide INAC with the documentation from the election. Now produced and shown to me and attached to this my Affidavit as Exhibit "J" is a true copy of my note to file regarding my 24 March 2004 conversation with the Applicant.
14. On the morning of 24 March 2004 Evelyn Shalapata and Brenda Forseth met with the Applicant and her lawyer. I have been advised by Evelyn Shalapata and verily believe that at that meeting, the Applicant was asked to give an explanation as to the problems occurring with the conduct of the CTK election. The Applicant admitted that she made errors on the ballots because she failed to check the ballot after it was returned from the printers. The Applicant further stated that she did not change the election date to allow 35 days between the date of mailing the Second Ballots and the election date. The Applicant was informed that CTK would be advising INAC how they wished to proceed and that the Chief and council were discussing her removal as Electoral Officer because the community "lost confidence" in her ability to run a good CTK election. Evelyn Shalapata requested the Applicant provide her with the CTK election documents and advised the Applicant that the election dates would have to be moved. Now produced and shown to me and attached to this my Affidavit as Exhibit "K" is a true copy of Ms. Shalapata's notes regarding the 24 March 2004 meeting with the Applicant.
15. On the afternoon of 24 March 2004 I was one of several INAC representatives who met with the Chief and council and their lawyer to discuss the options available to CTK. Removal of the Applicant was one of several issues discussed. The CTK Chief and council was advised that if they wished to remove the Applicant as Electoral Officer they would need to provide INAC with a BCR requesting the Applicant's removal. INAC provided CTK Chief and council with a sample BCR. The CTK Chief and council advised that they would meet and advise INAC of their decision "on Friday". Now produced and shown to me and attached to this my Affidavit as Exhibit "L" is a true copy of Ms. Shalapata's notes regarding the 24 March 2004 meeting with the Chief and council. Now produced and shown to me and attached to this my Affidavit as Exhibit "M" is a true copy of my notes regarding the 24 March 2004 meeting with the Chief and council.
16. I am advised by Evelyn Shalapata and verily believe that on the afternoon of 24 March 2004, she called the Applicant to advise her that CTK was considering her removal as Electoral Officer and to advise her of accusations made by the Chief. Ms. Shalapata's notes from this conversation are contained at the bottom of Exhibit "L".
17. On 26 March, 2004 I participated in a conference call with the CTK Chief and council wherein the Chief advised that he wanted to start over and hold an entirely new election. At that time, members of the CTK council advised that they wanted to submit a BCR to remove the Applicant as Electoral Officer and requested INAC provide draft BCR wording for their consideration. Now produced and shown to me and attached to this my Affidavit as Exhibit "N" is a true copy of Ms. Shalapata's notes regarding the 26 March 2004 conference call with the Chief and council.
18. Now produced and shown to me and attached to this my Affidavit as Exhibit "O" is a true copy of the draft BCR wording provided by INAC to the CTK Chief and council for their consideration on 26 March 2004.
19. Now produced and shown to me and attached to this my Affidavit as Exhibit "P" is a true copy of the 26 March 2004 BCR that INAC received from the CTK, rescinding and revoking the appointment of the Applicant as Electoral Officer.
[44] Some of this is, admittedly, hearsay, but much of it is evidence by someone who participated in conference call meetings with Chief Kennedy and the Band Council. Just as I have no reason to doubt the Applicant and Mr. Ironstar, I have no reason to doubt what Ms. Owen says on these points.
[45] The picture seems fairly clear. INAC believed that the best way to proceed following the mistakes made by the Applicant was to remove her and proceed by way of a superintendent in lieu of a Band Council appointed electoral officer.
[46] Exhibit "N" to Edith Owen's affidavit is notes of a conference meeting that Ms. Owen attended, although she did not make the notes. The notes support what she says. But they also show that Chief Kennedy had reservations about following INAC's recommendations. He was worried about a possible review of finances. He also wanted to review the resolution with a lawyer. He left the meeting before the resolution was signed by other Band Council members.
[47] The reported exchanges between the Applicant and Chief Kennedy are not explained, but what acceptable evidence we have reveals INAC recommending to the Band Council that the Applicant be removed, and the Band Council, after discussion, accepting INAC's recommendations. There is nothing untoward in the Band Council considering recommendations and advice from others, particularly when the advisor in question is acting as a fiduciary towards the First Nation and its members.
[48] I have no reason to assume that, just because INAC may have initiated the process and prepared the BCR, the Band Council did not function in an autonomous way, or that a full discussion was not held before the BCR was signed by the members who remained at the meeting.
[49] Hence, I see no reason to conclude on the grounds raised by the Applicant that the BCR removing the Applicant as Chief Electoral Officer was not passed in a legitimate manner or needs to be questioned as part of this application. Even applying a review standard of correctness, no reviewable error is raised by the Applicant on this point.
The Power to Remove an Electoral Officer
[50] The Applicant says there is no provision in the Indian Act and the Indian Band Election Regulations dealing with the removal of an electoral officer. Consequently, she says the Court should decide this issue on the basis of broad principles of fairness, impartiality and good governance.
[51] The Applicant's point is that if an electoral officer can be removed for a mistake, or at the whim of the Band Council, then band councillors seeking re-election will have the power to influence the electoral officer. Consequently, she argues that the best way for the Court to approach this matter is to decide that there is presently no power to remove an electoral officer once she has been appointed. This will leave it to Parliament to devise any appropriate process, grounds and safeguards that are needed, in the way that Canada Elections Act lays down the procedure and the grounds for removing a returning officer. At the very least, the Applicant says, a band council cannot have an absolute power to remove an electoral officer because this cannot have been the intent of Parliament.
[52] The Attorney General of Canada takes the position that the removal of an electoral officer has, indeed, been provided for by Parliament.
[53] The Indian Band Election Regulations govern the election procedure for Indian Act elections, such as the one in the case at bar.
[54] Section 2 of the Regulations defines an "electoral officer" as the superintendent or the person appointed by a band council with the approval of the Minister.
[55] There is no issue between the parties that the Applicant was not validly appointed as Chief Electoral Officer. However, the Attorney General says the Applicant's position that this process only works one way ignores the provisions of s. 31(4) of the Interpretation Act, R.S.C. 1985 c. I-21, which give the Minister a power to undo what the Minister has power to do:
| (4) Where a power is conferred to make regulations, the power shall be construed as including a power, exercisable in the same manner and subject to the same consent and conditions, if any, to repeal, amend or vary the regulations and make others. |
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(4) Le pouvoir de prendre des règlements comporte celui de les modifier, abroger ou remplacer, ou d'en prendre d'autres, les conditions d'exercice de ce second pouvoir restant les mêmes que celles de l'exercice du premier. |
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[56] So, obviously, to understand the full impact of s. 31(4), we need to know what is included under the terms "regulation":
| 2(1) "regulation" includes an order, regulation, rule, rule of court, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established
(a) in the execution of a power conferred by or under the authority of an Act, or(b) by or under the authority of the Governor in Council;
"repeal" includes revoke or cancel. |
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2(1) « règlement » Règlement proprement dit, décret, ordonnance, proclamation, arrêté, règle judiciaire ou autre, règlement administratif, formulaire, tarif de droits, de frais ou d'honoraires, lettres patentes, commission, mandat, résolution ou autre acte pris_:
a) soit dans l'exercice d'un pouvoir conféré sous le régime d'une loi fédérale; b) soit par le gouverneur en conseil ou sous son autorité.
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[57] Section 76(1) of the Indian Act permits the Governor in Council to make orders and regulations with respect to band elections:
| 76. (1) The Governor in Council may make orders and regulations with respect to band elections and, without restricting the generality of the foregoing, may make regulations with respect to
(a) meetings to nominate candidates;
(b) the appointment and duties of electoral officers;
(c) the manner in which voting is to be carried out;
(d) election appeals; and
(e) the definition of residence for the purpose of determining the eligibility of voters. |
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76. (1) Le gouverneur en conseil peut prendre des décrets et règlements sur les élections au sein des bandes et, notamment, des règlements concernant_:
a) les assemblées pour la présentation de candidats;
b) la nomination et les fonctions des préposés aux élections;
c) la manière don't la votation doit avoir lieu;
d) les appels en matière électorale;
e) la définition de « résidence » aux fins de déterminer si une personne est habile à voter. |
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[58] So, the Attorney General argues that 76(1)(b) specifically provides that the Governor in Council may make regulations dealing with "the appointment and duties of electoral officers." The Indian Band Election Regulations have been promulgated in accordance with the power granted under section 76(1)(b) of the Indian Act. Those regulations, under s. 2, simply say that an "electoral officer" means "the superintendent or the person appointed by the council of the band with the approval of the Minister." They do not specifically address the process for the removal of a person so appointed.
[59] It seems clear to the Court that s. 76(1) of the Indian Act when read in conjunction with s. 31(4) of the Interpretation Act certainly allows the Governor in Council to make a regulation dealing with the removal of an electoral officer but 31(4) of the Interpretation Act seems to contemplate an actual regulation (as defined) dealing with that removal. In accordance with s. 2(1), the power has to be exercised, either "in the execution of a power conferred by or under the authority of the Act" in question, or "by or under the authority of the Governor in Council."
[60] In the present case, the power has only been exercised to deal with the appointment of an electoral officer; it has not been exercised to deal with the procedure and grounds for removing an electoral officer.
[61] This is not necessary where the electoral officer is a "superintendent" working for INAC. The dangers envisaged by the Applicant concerning undue influence are not present where the incumbent band counsel has no power to remove a superintendent. But nor are those dangers present when the electoral officer is appointed by a band council and approved by INAC. There is nothing in the scheme or the relevant legislation to suggest that a band council could act unilaterally and remove an appointed officer without the consent of INAC. And INAC has a fiduciary obligation to ensure that anything done in relation to an election is fair and in accordance with the Indian Act and the Election Regulations.
[62] In fact, the Regulations envisage that the electoral officer will always be an officer of INAC or someone else approved by INAC. The Applicant was chosen in this case by the Band Council from a list of qualified people approved by INAC. She was not someone selected at large by the Band Council. She was someone who had received the necessary training and was presented to the Band Council by INAC as qualified to run an election. Band council elections under the Indian Act and the Regulations are run and supervised by INAC through an electoral officer who either works for INAC or who has received training and who has INAC's prior stamp of approval.
[63] In the present case, INAC decided that it was in the best interests of the election process that its pre-approved electoral officer should be removed, and INAC conferred with and advised the Band Council to this effect.
[64] I suspect that the Regulations do not deal specifically with the removal of electoral officers because they envisage that an electoral officer will always be someone approved by INAC as part of its general supervisory role. The Band Council's role in selecting or removing such a person is limited because an electoral officer, whether superintendent or pre-approved choice, functions in part as the Minister's delegate throughout the whole election process. This is why comparisons with the Canada Elections Act or other electoral schemes are of limited use in this context. INAC has the responsibility to supervise and ensure that the whole election process is conducted in a fair and transparent fashion, and one of the ways it does this is through a superintendent or a band appointed person it has approved.
[65] Whether a superintendent or band council appointee, the electoral officer under the Indian Act and the Regulations is there to ensure that the powers and obligations of the Minister are fulfilled. Those powers and obligations can be described as fiduciary, paternalistic, or by using some other euphemism that either approves or disapproves of the general scheme envisaged by the legislation. But the scheme envisaged by the legislation is not the same as the scheme for a provincial or a federal election. The Applicant herself acknowledged INAC's general fiduciary obligations in her evidence.
[66] The Regulation sets out no specific criteria or process for either the appointment or the removal of an electoral officer because the whole electoral scheme makes it clear that any such person functions at all times to carry out the duties and powers of the Minister, as those duties and powers pertain to band council elections. The electoral officer is there to supervise on behalf of the First Nation and the Minister, and to ensure that the electoral process is carried out in accordance with the terms of the Indian Act and the Regulations.
[67] Any person fixed with the role of ensuring, on behalf of the First Nation and the Minister, that band council elections are carried out in accordance with the governing legislation must have the confidence and approval of both the First Nation and the Minister throughout the process. For instance, if they acted in a way that does not meet with the Minister's approval and could not be removed, then the Minister would have no means of ensuring that his or her general fiduciary duties are discharged. Once the Minister perceives that the electoral process is threatened, it behoves the Minister to act in any way necessary to discharge statutory and fiduciary obligations. If this necessitates recommending the removal of an electoral officer, then the Minister must be free to do this. If there was no way to remove an electoral office once appointed, it would restrict the Minister's ability to fulfill the statutory and fiduciary obligations imposed on the Minister in this context as a matter of law, including the obligation to ensure that band council elections are carried out in a fair and efficient manner that is commensurate with the scheme of the Indian Act and the Regulations.
[68] Consequently, I believe that INAC must have the power to seek the removal of an electoral officer appointed under the Regulations where such removal is required to ensure that the Minister's obligations under the Indian Act and the Regulations are fulfilled. In a situation where the electoral officer has been appointed by a band council with the approval of the Minister, the appropriate procedure is to raise any concerns with the band council in question and seek the council's concurrence and approval. That is precisely what happened in this case. Of course, the power cannot be exercised for any other purpose that is not commensurate with the scheme, the specific provisions, and the general purpose of the Indian Act and the Regulations. But there is no suggestion in this application that it was.
Grounds For Removal
[69] The only remaining question is whether the Band Council or INAC, in seeking and/or securing the removal of the Applicant as Chief Electoral Officer in this case acted in a way that was not commensurate with the scheme and purpose of the Indian Act and the Regulations as regards the Election that took place in this case, or that was not procedurally fair. Whether reviewed on a standard of reasonableness simpliciter or patent unreasonableness, I believe that there were good reasons for removing the Applicant in this case that were entirely consistent with the scheme and purpose of the governing legislation, and that the manner of the Applicant's removal was procedurally fair.
[70] The Applicant seeks to minimize her mistakes as being of a minor or inconsequential nature. In cross-examination she revealed that she was angry at herself for making them and felt she had not been provided with the training and support she needed. She appears to have been somewhat out of her depth on this occasion and, as a result, did not know how to acquire the appropriate advice she needed to correct her mistakes. She did not know, for instance, that it was possible to delay the election.
[71] The Applicant appears to have been embarrassed by what happened. This does her credit, but I do not think she need worry in that regard. Situations arise that are beyond all of us. And the evidence suggests that this is well understood by all parties. She is still on the list of qualified electoral officers and she has participated in several elections since the one referred to in this case.
[72] While the Applicant's feelings are understandable, they cannot be used as a basis for deciding whether INAC and the Band Council acted appropriately in this case.
[73] My review of the evidence suggests to me that both the initial mistakes and the Applicant's attempts to rectify them caused significant confusion, gave rise to important timing issues, and placed the Election in jeopardy. INAC informed her of the problem and met with her and her lawyer to explain the situation and hear her side. She was not treated in a high-handed, unilateral manner and the reasons for removing her were explained.
[74] Under the circumstances, I believe that INAC and the Band Council had every right to do what they did. They perceived that the Applicant was somewhat out of her depth on this occasion, and a superintendent took over and completed the Election process. No one appears to have held the mistakes against the Applicant because she is still pursuing (apparently successfully) her career as an electoral officer.
[75] It is true, of course, that there might have been other ways for INAC and the Band Council to handle the situation. But that does not mean they were wrong to do what they did. They have obligations and feelings too. They needed to assess the situation and act in accordance with their respective duties to the First Nation and the Applicant. I can find no convincing evidence of any reason or motivation for removing the Applicant as Chief Electoral Officer on this occasion other than the clearly stated one of ensuring that the community retain its confidence in the election process, and the Election itself be managed in a fair and efficient manner. It is not for the Court to try and second guess, or substitute its discretion, for the Band Council or INAC. There was nothing unreasonable, or certainly patently unreasonable, about what they did.
ORDER
THIS COURT ORDERS THAT:
1. The Application is dismissed.
2. The parties are at liberty to address the Court on the issue of costs.
"James Russell"
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-717-04
STYLE OF CAUSE: LORETTA PETE v. ATTORNEY GENERAL OF
CANADA AND CARRY THE KETTLE FIRST
NATION BAND COUNCIL
PLACE OF HEARING: REGINA, SASKATCHEWAN
DATE OF HEARING: May 12, 2005
DATED: July 18, 2005
APPEARANCES:
Mr. E.F. Anthony Merchant, Q.C. FOR APPLICANT
Ms. Karen Jones FOR RESPONDENT (AGC)
Mr. Douglas J. Kovatch, Q.C. FOR RESPONDENT (CARRY
THE KETTLE FIRST NATION
BAND COUNCIL)
SOLICITORS OF RECORD:
Merchant Law Group
Regina, Saskatchewan FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT (AGC)
Olive Waller Zinkhan & Waller
Regina, Saskatchewan FOR RESPONDENT (CARRY THE KETTLE FIRST NATION BAND COUNCIL)