PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
EDNA BRASS, MARLENE BRASS, MAVIS BRASS,
NICOLE BRASS, WANDA BREMNER, CAROL O’SOUP,
FERNIE O’SOUP, GLEN O’SOUP, LUCY O’SOUP,
LYNN O’SOUP, PERCY O’SOUP, PETER O’SOUP,
SELWYN O’SOUP and GERALDINE WARDMAN
each on their own behalf and on behalf of all members
of the Key Band First Nation
and
THE CHIEF AND COUNCIL OF THE
KEY BAND FIRST NATION, and HER MAJESTY
THE QUEEN (on behalf of THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT) as represented by
THE ATTORNEY GENERAL OF CANADA
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1] The Applicants, all members of the Key Band First Nation, seek judicial review of a referendum conducted by the Band to ratify a settlement agreement with the Government of Canada. The core of the Applicants’ complaint is that the referendum was conducted so badly that it was not substantially in accordance with the law as to elections/referenda.
II. BACKGROUND
[2] In 1891 Canada established a native reserve on the Pelly Highlands of Saskatchewan for the Key, Keeseekoose and Cote First Nations. Canada alienated the reserve in 1899 and 1905 without surrender as required by the Indian Act.
[3] In 1997 these same First Nations submitted a claim under Canada’s Specific Claims Policy relating to the unlawful alienation of the Pelly Highlands.
[4] A Settlement Agreement was negotiated and initialled on October 4, 2005. Canada agreed to pay to these First Nations as compensation, in full and final settlement of the claim, $78,287,330. Each First Nation was to ratify the Settlement Agreement and to ratify a trust agreement.
[5] Article 9.5 of the Settlement Agreement provided that the ratifications were to be conducted by votes in each First Nation conducted in accordance with the Indian Referendum Regulations (Regulations).
[6] Article 9.1 of the Settlement Agreement stipulated that ratification requires that “a majority (over 50%) of the Eligible Voters of each First Nation vote and a majority (over 50%) of the votes cast by the Eligible Voters of each First Nation are in favour of the Settlement Agreement and Trust Agreement”.
[7] Article 9.2 of the Settlement Agreement provided that the Minister, at the request of the First Nation, could call a second vote if a majority of Eligible Voters did not vote but that a majority of those who did vote, voted in favour of the Settlement Agreement and Trust Agreement.
[8] In the event of a second vote, a simple majority of votes cast would decide the issue.
[9] In the first ratification vote held in February 2006 (February Vote), a significant majority of the votes cast favoured the settlement but the votes cast did not constitute a majority of the Eligible Voters.
[10] As a result, a second vote in April 2006 (April Vote) was conducted. That vote still was conducted with less than a majority of Eligible Votes but a sizeable majority of votes cast (192 v. 64) favoured the settlement.
[11] There is no real dispute that there were problems with the Voters’ List and with some of the votes. The issue is the significance of such problems.
[12] As a result of some confusion between a list of voters and a list of Band members (which would include minors), the February Vote was conducted on the basis of 688 voters, of whom 84 were not Band members (10 votes), 14 were deceased, and one person was left off the list. There were 13 erroneous votes in the February Vote but this was insufficient to alter the fact that the majority of votes validly cast favoured the settlement.
[13] In the April Vote, which is the vote in issue, there were far fewer errors. It was determined that the proper Voters’ List should have had 592 eligible voters. In the April Vote, the deceased voters and the missed voter problem were corrected. Only six non-Band members voted. The votes were 192 in favour, 64 opposed.
[14] The Applicants brought this judicial review challenging a number of aspects of the conduct of the referendum, without seeking the remedy provided under the Regulations of complaint to the Minister of Indian and Northern Development.
[15] The Applicants contend that the cumulative effect of the missteps in the referendum including the failure to locate 200 eligible voters, the errors on the Voters´ List, the mail‑in ballots, the improper votes cast, and the failure to request voter identification, vitiate the validity of the referendum. The Applicants do not allege a material breach of the Regulations themselves.
III. ANALYSIS
[16] There are two principal issues in this judicial review. The first is whether the Court should exercise its discretion not to entertain this application in the face of the alternate remedy in the Regulations. The second is (assuming the Court accepts the application) whether the referendum was conducted so badly as to justify declaring the April Vote invalid and ordering a new vote to take place.
A. Court’s Discretion
[17] Section 22 of the Regulations provides a remedy in the event that a voter wishes to challenge a referendum vote. The method of challenge is a complaint, within seven days of the vote, to the Minister who then determines, after receipt of responses to the complaint, whether the validity of the referendum should be called into question. If so, the Minister reports his conclusion to the Governor-in-Council.
[18] Sections 22 and 23 of the Regulations read as follows:
[19] The Respondents do not contend that the Court does not have jurisdiction to deal with this matter but urge that the Court exercise its discretion not to do so. I agree that the Court has jurisdiction to deal with this issue – a regulation cannot supplant the rights accorded under the Federal Courts Act. I disagree with the Respondents that in this case the Court ought not to decide the matter because of the adequacy of the alternative remedy.
[20] It is the Respondents’ position that the alternate remedy of the complaint to the Minister is adequate and that the Court should decline to determine this matter. The Applicants, having not invoked this remedy, are out of time and the effect of the Court declining to determine this matter is that the Applicants are without a remedy. This is a matter, the Respondents say, which is entirely the responsibility of the Applicants who had legal counsel involved early in the process.
[21] The leading case on this issue of adequate alternative remedy is Harelkin v. University of Regina, [1979] 2 S.C.R. 561 where the Supreme Court examined a number of factors including adequacy of the process, composition and power of the decision maker, expeditiousness and cost in concluding that the appellant should have used the internal university appeal process.
[22] However, the process in this case is markedly different from that in Harelkin and in other cases where the Court has declined to exercise jurisdiction. In the present case an applicant has an extremely short period of time (seven days) in which to complain. Moreover, the complaint requires a declaration constituting not only the grounds but containing the relevant information in respect of the complaint. This short time limit poses serious issues as to the ability of the complainant to mount a challenge and gather the necessary evidence in a timely manner. The Regulations do not provide for an extension of time.
[23] This procedural aspect is to be contrasted with the right under s. 18 of the Federal Courts Act to seek judicial review within 30 days and where the submission of evidence does not have to be accomplished even within that timeframe.
[24] Aside from this procedural issue, in this case the person who is to determine the validity of the complaint – the Minister - has a direct interest in the result of the referendum. This is not to suggest that the Minister is necessarily biased or that there is a reasonable apprehension of bias (as alleged and rejected in Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3) but he has a direct pecuniary interest in the result. The Minister also has several other interests including his fiduciary obligations to First Nations peoples, his desire to have a result which is, in fact, the will of the people and his interest in concluding this matter.
[25] It may be (and I need not decide this matter) that the complaint procedure is an adequate remedy in other types of referenda but given the importance of this referendum, the nature of the allegations and admitted errors, the procedural limitations such as shortness of time and the various and conflicting interests of the Minister, it is not so adequate an alternative remedy that it ought to displace the right to judicial review.
[26] This Court has had occasion to consider similar alternate remedies in respect of elections. The decisions on this issue turn significantly on their particular facts. In Jock v. Canada (T.D.), [1991] 2 F.C. 355, the Court denied the judicial review because of the adequacy of the alternative remedy. That determination was also influenced by the excessive delay in bringing judicial review (two years of delay), the prejudice caused, and the fact that the proceeding was a collateral attack on the process. These were features in the exercise of the Court’s discretion not to deal with the judicial review.
[27] In this current case, none of these features exist. In fact, this judicial review is a more direct and clear challenge to the referendum than would be the result of the complaint process leading to judicial review of a Ministerial decision. As pointed out by Justice O’Keefe in Siksika Nation v. Canada (Minister of Indian Affairs and Northern Development), [2004] F.C.J. No. 1637 (Q.L.) (where he did not address the adequacy of the alternative remedy), the decision by the Minister following a complaint is subject to judicial review on the basis of the standard of review of reasonableness simpliciter. The focus of that judicial review is on the Minister’s decision whereas this judicial review is focused on the conduct of the Band and the referendum unfiltered by the exercise of Ministerial judgment.
[28] The law on standard of review and its importance has developed far beyond that which existed when the Court rendered the decision in Jock v. Canada. Justice Blais, in Balfour v. Norway House Cree Nation, 2006 FC 213, most forcefully indicated that judicial review is the preferred method of proceeding to challenge a Band election. The same principle is applicable to Band referenda.
[29] For purposes of this issue I need only conclude that given the circumstances of this case, it is appropriate for the Court to determine the judicial review and to not decline to do so because of the existence of an alternate remedy but not exclusive remedy.
[30] Having concluded that the Court will consider the judicial review, I turn to the issue of whether the referendum should be vitiated because of the manner in which it was conducted.
B. Validity of Referendum
[31] The test in determining whether a referendum (or election) should be set aside has been described as whether there is sufficient evidence to “call into question the validity of the referendum” (Regulation section 23); “sufficient irregularities that are likely to materially affect the result of the referendum” (Siksika Nation); “not substantially in accordance with the law as to elections” (Morgan v. Simpson, [1975] 1 Q.B. 151 (C.A.) per Denning M.R.).
[32] The different phrasing represents different legislative wording but the principle is the same – whether the irregularities are sufficient to raise a reasonable concern that the voting results do not reflect the will of the voters.
[33] It is evident that the test does not require perfection in the conduct of the referendum. The test is reasonably simple to apply where the errors disqualify one or more ballots and that the number of disqualified ballots would or could make a difference in the result. The application of the test is more difficult where the result would not be affected; however, there is a body of case law, Lord Justice Denning’s Morgan decision being one, which holds that even if the result would not be affected, a badly run election can be vitiated:
If the election was conducted so badly that it was not substantially in accordance with the law as to election, the election is vitiated, irrespective of whether the result was affected or not.
[34] In dealing with circumstances where the result would not be affected, the Court’s analysis is somewhat analogous to that in a “reasonable apprehension of bias” case. The Court, in the referendum context, asks whether an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that there is a reasonable risk that the results do not reflect the will of a proper majority of voters.
[35] The Applicants had the onus of establishing that irregularities occurred. The argument has been that once this is established, the onus of proof that the vote is still valid shifts to those seeking to uphold the vote. The Respondents say that the onus never shifts. (See Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394)
[36] This case does not turn on a shifting onus. However, it makes sense that once there is evidence that there were substantial irregularities, the party with the evidence to explain the effects or lack of effects on the referendum would have the burden of showing that the vote result is still valid.
[37] In this case the Applicants raise a number of incidents, none of which, they concede, would alone be sufficient to undermine the integrity of the referendum but in some combinations or taken cumulatively justify vitiation of the referendum. The Applicants say this even though numerically the number of votes in question would not affect the result. The alleged irregularities are discussed in the following paragraphs.
C. Voter List/Plurality
[38] There is no doubt that there were problems with establishing the Voters’ List and the votes cast, particularly in the February Vote. However, the vote to be examined in this judicial review is the April Vote at which time some of the problems in February had been rectified. What was not rectified was the existence of some non-Band members on the Electoral List.
[39] In the April Vote, six non-Band members voted out of an Eligible Voter list of 592. The result of the vote was 192 in favour, 64 opposed – a margin of 128. The six ineligible votes would have made no difference to the result. No eligible voters were left off the list and there was no evidence of double counting.
[40] The fact remains that the vast majority of those voting voted in favour of the settlement. There is no suggestion of voter fraud or malfeasance. Any errors were inadvertent and the vague suggestion that the Band Council were somehow content with the problems with the Electoral List is unsubstantiated.
D. Voters’ Addresses
[41] The Applicants put particular emphasis on the allegation that 200 people (30% of the potential electorate) who were on the Eligible Voters’ List did not receive ballots. The allegation is that the Band did not put enough effort into tracking down these Band members’ addresses to send them ballots.
[42] This allegation of lack of effort is not borne out by the evidence of Chief O’Soup, Crane and Hicks, each of which detail the efforts of the Band to disseminate information concerning the upcoming vote.
[43] The Applicants seek to impose on the Board an obligation to track down those Band members who have not provided the Band office with a valid current address. No such obligation exists.
[44] The Regulations only require the Band to provide the Electoral Officer with the last known address, if any (s. 4.1). Mail-in ballots were to be sent to those for whom there is an address (s. 4.2(1)(b)). There is no suggestion of a legislated standard requiring the Band to search out those Band members who are obviously living off the reserve.
[45] In terms of the overall integrity of the vote process, the fact that these members have not provided the Band with an address (or a current address) suggests a lack of interest in Band affairs. However, there is no obligation on a Band member to advise the Band of their address and the Band cannot be held responsible for the failure or refusal to keep the Band informed of their whereabouts.
[46] There is nothing in the Band’s conduct on this issue which undermines the validity of the vote process. The Applicants cannot impose an impossible standard or requirement on the Band to track down members. The Band acted reasonably in trying to disseminate information and to record addresses of those who contacted the Band.
E. Identification
[47] While the Applicants complain that the voters were not asked for identification at the time of their vote, there is no evidence of improper voting except for the six non-Band members.
[48] There is no requirement to present voter identification unless requested (s. 9 of the Regulations). This is a requirement similar to that contained in the Canada Elections Act which simply provides that a voter may be required to present identification.
[49] In the absence of any substantive evidence that voter identification was an issue, it is unreasonable to suggest that the failure to demand identification in some way undermined the validity of the referendum.
F. Loss of Voter Confidence
[50] The Applicants allege that the problems with the February Vote so undermined confidence in the process that participation in the April Vote decreased. This is said to lead to the conclusion of widespread loss of confidence in the referendum process. There were 24 fewer votes cast in the second referendum. This is not a significant decrease nor does it suggest whether the non-voter was in favour or opposed to the settlement.
[51] The only evidence that past problems caused people to lose confidence in the process and to withhold their vote was the affidavit of Myrna O’Soup in which she details her own loss of confidence. It can be said that the 14 Applicants also did not have confidence in the voting process but this is insufficient to reach a conclusion of widespread lack of confidence.
[52] The Applicants also point to some 41 people who apparently changed their mind from the February Vote and voted in favour of the settlement. This, the Applicants suggest, shows a lack of confidence, yet there is no evidence to support that claim. It is equally plausible that those people upon reflection or in view of the February result, concluded that the settlement was either a “good deal” or an inevitable one.
G. One Vote per Voter
[53] Although the Applicants allege that there were insufficient measures taken to ensure that a voter only voted once, there is no evidence that anyone did or could have voted more than once.
[54] The evidence is that an individual did, in fact, track the voters marking their names after they voted. Each voter was accounted for.
H. Ascertainable Body of Electors
[55] The allegation that the Respondents could not establish an ascertainable number of voters eligible to vote has not been established. The opposite has been established in respect of the April Vote. There were 592 eligible votes as confirmed by Chief O’Soup.
IV. CONCLUSION
[56] The allegations examined both separately and in combinations and cumulatively do not establish any basis for concluding that there is a serious risk that the referendum did not express the will of the voters nor that any potential voters were effectively disenfranchised.
[57] The errors which did occur did not affect the vote results either numerically or otherwise call the legitimacy of the vote into question.
[58] Therefore, this judicial review will be dismissed with costs.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES THAT this application for judicial review is dismissed with costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-892-06
STYLE OF CAUSE: EDNA BRASS et al
and
KEY BAND FIRST NATION et al
PLACE OF HEARING: Saskatoon, Saskatchewan
APPEARANCES:
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Mr. Steven L. Cooper Mr. Keith Macey
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Mr. James D. Jodouin Ms. Dawn D. Cheecham |
FOR THE RESPONDENTS, KEY BAND FIRST NATION AND THE CHIEF AND COUNCIL OF THE KEY BAND FIRST NATION
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Ms. Karen Jones Mr. Scott MacDonald
|
THE ATTORNEY GENERAL OF CANADA |
SOLICITORS OF RECORD:
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AHLSTROM WRIGHT OLIVER & COOPER LLP Barristers & Solicitors Sherwood Park, Alberta
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BAINBRIDGE JODOUIN HINDS Barristers & Solicitors Saskatoon, Saskatchewan |
FOR THE RESPONDENTS, KEY BAND FIRST NATION AND THE CHIEF AND COUNCIL OF THE KEY BAND FIRST NATION
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Saskatoon, Saskatchewan |
THE ATTORNEY GENERAL OF CANADA |