GORDON BEARDY, FRANCINE MCKENZIE, JOY BARKMAN Applicants v. STAN BEARDY,, 2016 FC 383

Date: 20160407 Docket: T-1965-15 Citation: 2016 FC 383 Ottawa, Ontario, April 7, 2016 PRESENT: The Honourable Madam Justice Strickland BETWEEN: GORDON BEARDY, FRANCINE MCKENZIE, JOY BARKMAN Applicants and STAN BEARDY, ROY FIDDLER, CHARLIE L. BEARDY, JOHN L.

MORRIS, OLIVIA DUNCAN, LISA BEARDY (AKA LIZA BEARDY), ERNIE HARPER, CLIFF FERRIS, JOB FIDDLER, KATHLEEN BEARDY, IRENE ROSS, AND MARY ANN BEARDY Respondents JUDGMENT AND REASONS [ 1 ] This is an application for judicial review of the process leading up to, and the September 15, 2015 election of, the Chief and Band Council of the Muskrat Dam First Nation (“MDFN” or “Band”) culminating in a Band Council Resolution (“BCR”), dated September 16, 2015, declaring Stan Beardy as Chief, Roy Fiddler as Deputy Chief, and Charlie L. Beardy, John L. Morris, and Olivia Duncan as Councillors.

The application is brought pursuant to ss 18(1) and 18.1 of the Federal Courts Act , RSC 1985, c F-7 (“ Federal Courts Act ”). The Applicants are Gordon Beardy, the immediate former Chief of MDFN, and Francine McKenzie and Joy Barkman, MDFN Band members who each filed an appeal of the impugned election. Background [ 2 ] The MDFN is a remote Oji-Cree First Nation community located north of Sioux Lookout, Ontario. It has an on and off reserve population of approximately 430 to 600 members.

The MDFN received Indian Band status in 1976 and in 2005 adopted the Muskrat Dam First Nation Customary Election Code (“2005 Code”). As this met the criteria of the Conversion to Community Election System Policy of the Department of Indian and Northern Affairs (“INAC”), the order previously issued pursuant to s 74 of the Indian Act , RSC, 1985, c I-5 (“ Indian Act ”) was repealed, thereby permitting the MDFN to conduct its elections in accordance with its own customary election system, as codified in the 2005 Code. [ 3 ] Gordon Beardy was elected Chief of the MDFN in 2009.

Most recently he was elected in 2013. [ 4 ] On June 11, 2015 a community meeting was held to voice various concerns, including concerns about Band leadership. Seventeen community members were in attendance as well as three Band Councillors. At the meeting community members questioned whether an amended election code, dated July 18, 2012 (“2012 Code”), had ever been adopted by BCR. They also mandated Band Council to call a general meeting within two weeks to address all of the issues that had been raised at the community meeting and to begin working on a new election or leadership review.

The three attending Councillors, Lewis Morris, Morris Fiddler and Olivia Duncan, were instructed to relay the expressed concerns and expectations of the community members to Chief Gordon Beardy and Deputy Chief Douglas Beardy. [ 5 ] Band Council did not convene the requested general meeting. However, notice of a community meeting, said to be called by the Elders and concerned community members, was posted with its stated purpose being “to begin addressing concerns regarding Our Band Leadership” . The meeting was held on August 14, 2015 and was attended by approximately thirty community members.

No members of Band Council attended. The minutes of the meeting indicate that the group decided not to undertake a leadership review, which would take too long, but to instead have a referendum. Twenty six people voted in favour of the referendum and to “empower” an election committee to begin the referendum, which was to be held three days later, on August 17, 2015.

An Election Committee comprised of Job Fiddler, Kathleen Beardy, Irene Ross, Johnny Morris Senior and Jake Beardy was appointed. [ 6 ] By email of August 14, 2015, Chief Gordon Beardy, who was in Thunder Bay at that time, was advised of the community meeting and that a referendum was to be held. He replied by email of the same date stating that it would serve as his resignation. [ 7 ] The referendum was not held on August 17, 2015. [ 8 ] On that date Morris Fiddler submitted his written resignation as a MDFN Band Councillor, effective immediately.

On August 24, 2015, Deputy Chief Douglas Beardy advised by letter that he would remain as Deputy Chief to the day before the “Bi- election for the Band Council positions” . On August 31, 2015 he advised that he would not be seeking re-election to any Council position. [ 9 ] On August 28, 2015 the Election Committee posted notice on Facebook that it would be starting the bi-election process on September 1, 2015. [ 10 ] Despite the above described resignations, on September 1, 2015 four members of the then Band Council including, Chief Gordon Beardy, issued BCR150901A.

This stated that the vote held at the August 14, 2015 community meeting did not meet the requirements of the 2012 Code as 50% plus one of the total eligible voters were required to support a referendum. It further stated that

Chief and Council did not support the referendum process and “do not wish to submit their resignations at this time” and resolved to finish their terms, which they viewed as being of a three year duration concluding in July 2016, pursuant to the 2012 Code. [ 11 ] In response to BCR150901A, on September 2, 2015, the Election Committee, now comprised of Lisa Beardy, Ernie Harper, Cliff Ferris as well as Jake Beardy and John Morris, posted a public notice stating that the BCR was “inconsistent” and that it had been effected without consultation with the Election Committee and the MDFN membership.

The notice cites ss 5.1-5.5 of the 2012 Code, and states that the Election Committee had accepted the meeting minutes of the August 14, 2015 meeting as a petition and that due to the seriousness of the issues raised it concluded that there was a need for a referendum. [ 12 ] Between September 2 and 8, 2015 the Election Committee met on various occasions and on September 4 and 8, 2015 it held radio broadcasts in which the events to date were discussed.

Following the latter broadcast, Gordon Beardy spoke to the Election Committee outside the radio station and indicated that he did not support their actions. [ 13 ] On September 10, 2015 the Election Committee ran a referendum asking for a “yes” or “no” response from each voter as to whether they wanted each of the separately named Band Council members to stay on in their stated Council positions. The results of the referendum were not publicly posted but there is some evidence that they were announced.

The Election Committee meeting minutes indicate that all positions fell short of the required 50% plus one of eligible voters needed to call an election, however, the affidavit of John Morris states that the criteria was met. The Election Committee announced that nominations for the election would be held on the following day. [ 14 ] On September 11, 2015 the Election Committee held a nomination meeting. The results of the nominations are not stated in the Election Committee minutes of the meeting nor is it clear that they were ever publicly posted.

Gordon Beardy received thirty-two nominations for Chief and Stan Beardy received forty-six nominations. [ 15 ] At the end of that meeting the fourteen people then in attendance were asked to vote on the question of whether those candidates who had previously resigned from Band Council should be permitted to run in the upcoming election. Twelve of these people voted that such candidates should not be permitted to run for re-election.

Based on this, the Election Committee did not put forward Gordon Beardy’s nomination for Chief and, as the only remaining candidate, Stan Beardy assumed that position by acclamation on September 14, 2015. [ 16 ] On that same day, Joy Barkman called the Election Committee and voiced her concern about the election process and that Gordon Beardy was not allowed to stand for election.

She was told that she shouldn’t question the process in the midst of an election and was encouraged to file an appeal. [ 17 ] The election was scheduled for September 14, 2015 and notice of the election was posted in the community and on Facebook. The election was subsequently scheduled to take place September 15, 2015 rather than September 14, 2015.

The election proceeded on that date and the names of the successful candidates were posted by the Elections Committee on Facebook. [ 18 ] On September 16, 2015 the newly elected Band Council issued BCR150916A which indicates the names of the individuals who were nominated and accepted their nominations to Band Council; that Gordon Beardy, Doug Beardy, and Morris Fiddler were disallowed from running due to their resignations; and, resolves that the Chief (by acclamation), Deputy Chief and Councillors were duly elected pursuant to MDFN election practices and were officially recognized as such. [ 19 ] On September 23, 2015 Francine McKenzie submitted a written appeal of the election results citing several procedural irregularities based on the 2012 Code, including that two nominated candidates had been removed from the process. [ 20 ] On September 29, 2015 Joy Barkman wrote to the Election Committee advising that her letter comprised official notice of her appeal of the September 15, 2015 election.

She asserted that the Election Committee had failed to conduct themselves in accordance with the Election Committee Code of Ethics, an addendum to the 2012 Code, which she believed to be in effect, and noted that she had previously voiced her concerns about the rejection of Gordon Beardy’s nomination for re-election. [ 21 ] Neither of these Applicants received a response from the Election Committee. [ 22 ] Gordon Beardy did not file an appeal.

However, through Anthony Carfagnini, who had acted as counsel to the Band prior to the 2015 election, he instructed that a series of communications be sent to financial institutions utilized by the Band suggesting that the election results were in dispute and that the institutions should only communicate with and take instructions from the members of the prior Band Council. These communications are detailed in the various affidavits filed in support of this application and the cross- examinations on those affidavits.

For the purposes of this application it is sufficient to say that, faced with conflicting information as to the validity of the election and the authority of Band Council members to instruct them, as well as suggestions of inappropriate diverting of funds, the financial institutions caused the Band’s bank accounts to be frozen.

This caused serious disruption not only to the Band’s financial affairs at large but also to the day-to-day banking of its members, including being precluded from cashing Ontario Works cheques which were returned as non-sufficient funds. [ 23 ] Ultimately, on December 31, 2015 this Court ordered that the Applicants’ counsel write to the banks instructing that the Band’s accounts be unfrozen, that all normal course of business transactions be permitted, with the exception of payroll payments to the current Band Council members, and that the banks deal exclusively with the new Band Council pending further order of this Court. [ 24 ] Subsequently, the Respondents sought an urgent case management meeting and requested that the application for judicial review be heard on an urgent basis because of ongoing financial implications.

By Order of February 25, 2016 this matter was accordingly set down to be heard on March 15 and 16, 2016. Decision Under Review

[ 25 ] At the heart of this matter is the Election Committee’s decision to disallow Gordon Beardy from running in the September 15, 2015 election. Also at issue are other decisions and actions of the Election Committee which the Applicants assert resulted in the election not having been conducted in compliance with the 2012 Code, which they believe to apply. These decisions and actions all culminate in BCR150916A which resolves that the new Band Council of Chief Stan Beardy (by acclamation), Deputy Chief Roy Fiddler and Councillors Charlie L.

Beardy, John Morris and Olivia Duncan were duly elected pursuant to MDFN election practices and are officially recognized and endorsed as such. BCR150916A is signed by a quorum of the newly elected Council.

Issues [ 26 ] The Applicants submit that three issues arise: 1) Was the Election Committee acting as a federal board, commission, or tribunal when it made the series of decisions which led to BCR150916A, if so what is the standard of review? 2) Did the Election Committee have jurisdiction to disallow Gordon Beardy to stand as a candidate? 3) Did the Election Committee owe Gordon Beardy a duty of procedural fairness when they did not allow him to run?

Did they discharge that duty? [ 27 ] The Respondents submit eight issues: 1) Was the draft 2012 Code ever ratified and adopted to amend the 2005 Code? 2) Should the Court exercise jurisdiction where the Applicant, Gordon Beardy, did not exhaust his internal recourse? 3) Did Joy Barkman and Francine McKenzie have standing to file appeals to the Election Committee? 4) If the answer to questions 2 and/or 3 is yes, then: 5) Is the appropriate standard of review of the Election Committee’s decision to disqualify Gordon Beardy’s candidacy that of patent unreasonableness? 6) Was the Election Committee’s decision to disqualify Gordon Beardy consistent with the 2005 Code as supplemented by customary practice? 7) Was the Election Committee’s decision to disqualify Gordon Beardy done in a manner consistent with procedural fairness? 8) Did any technical non-compliance with the Code materially affect the election results? 9) What is the appropriate relief? [ 28 ] In my view, the issues are as follows: 1) Does this Court have jurisdiction to hear this matter and, if so, should it exercise that jurisdiction and what is the standard of review? 2) Which of the 2005 or 2012 Codes were in effect? 3) Were the actions and decisions of the Election Committee consistent with the applicable Code and customary practice? 4) Was there a breach of procedural fairness which would affect the election results? 5) What are the appropriate remedies?

Customary Election Code [ 29 ] As a preliminary point, it must be noted that there are varying versions of the 2005 Code contained in the record. The version found as Exhibit A of Roy Fiddler’s affidavit contained in the Respondents’ Record bears an Indian Affairs “received” stamp dated September 14, 2005. However, it differs from the version of the 2005 Code found as Exhibit B of Anthony Carfagnini’s affidavit found in the Applicants’ Record. For example, in the Respondents’ version the

section dealing with Removal of Leaders in Office contains five sections while the Applicants’ version contains only the first three. The Applicants’ version includes copies of Addendums 5 and 6 which are not included with the version found in the Respondents’ Record. The evidence does not permit me to reconcile these versions. For the purposes of these reasons I will be referring to the version found in the Respondents’ Record. [ 30 ] The most relevant sections of the 2005 Code are set out below: Guiding Principles

Guiding principles for the community elections are initiated through a process of prayer facilitated by community elders with the participation of the designated community elections committee. This initial process is then followed by comments from the participating elders in reference to the election process. The completion of comments is followed by closing prayer voiced by one of the local community elders.

Part 1 - Policy Statements … Eligible Voters 2. Registered band members residing both on-reserve and off reserve are eligible to vote in the Muskrat Dam First Nation Election. … Eligible Candidates 1. All eligible voters will be eligible to be nominated and stand as candidates for the Muskrat Dam First Nation Election. 2. The Nomination Procedure for Muskrat Dam First Nation is described in

Part 2,

Section 1 of this code. 3. The appointed Electoral Officer and Assistance Electoral Officer will not be eligible to run for office, unless they resign from the Elections Committee. 4. All eligible voters will be involved in determining who is eligible to run for office through the Nomination Process as identified in

part 2,

section 1 of this code. Leadership Selection 1. Elected leaders are expected to carry out the duties of their positions honestly and with respect and honor. 2. A vacant position on council may be filled by appointment if the remaining term of Office is short or can be left open. 3. If the remaining term of office is longer than 90 days, a vacant position on the Council will be filled by a By-election process. 4. The Chief and Council in Office at the time of the vacancy and the elections committee and elders will provide direction on how to handle the elected position vacancy. Term of Office 1.

The term of Office will be (2) two years. 2. Elections will be held every two years in July until 2006 when the elections will be held in late October or before November 15 th . 3. Elections will not be held during periods of misfortunes, such as death or a funeral in Muskrat Dam First Nation. 4. Except for situations outlined in 3, an election will be held on the same day and month every two years. Removal of Leaders in Office 1. Elected member of Muskrat Dam First Nation is convicted of an indictable criminal offence which is contrary to the interests of the Muskrat Dam First Nation. 2.

Elected member of the Muskrat Dam First nation is declared mentally incompetent by medical declaration 3. Elected member of the Muskrat Dam First Nation may be asked to resign due to immediate family crisis or in the event of death. 4. Elected members of Muskrat Dam First Nation - Chief and Council may call for a referendum on their positions, then a community Referendum on the sitting Chief and Council will take place, if there is evidence of 50% + 1 recommendation calling for election on any Council member position then an Election will be held. 5.

When 1/3 of the Eligible voters have signed a petition calling for a referendum, then the Elections Committee will conduct a Referendum and shall canvass all eligible Voters. If there is evidence from the Referendum 50% + 1 of Voters calling for an Election on any Council member position, then there will be an Election for the Council position. … Appeals 1. Any elector who voted in the election can file an appeal within 14 days of the election for the following reasons:

a) There was a violation of the election provisions that may have affected the election results.

b) The appeal procedure is described in

Part 2,

section 4 of this code. Approval

The Muskrat Dam First Nation Election Code will be approved by the majority of voters by Community process. The list of those voters approving the Muskrat Dam First Nation Election Code is provided in Addendum Five. The Muskrat Dam First Nation Election Code will be amended as a resulted of agreement by the majority of voters consulted in a Community process for the purpose of amending the Muskrat Dam First Nation Election Code. A copy of the amendment with the list of the Muskrat Dam Election Code will be kept on file in the First Nation Administration Offices. The amendment procedure is described in

Part 2,

section 5 of this code. …

Part 2 - Procedures for Elections

Section 1, Nomination Procedure …

Section 2, Polling Procedure …

Section 3, Voting Procedure …

Section 4 Appeal Procedure 1. An appeal of an election must be voiced orally and submitted in writing within fourteen days of that election. The appeal must provide the reason for the appeal. 2. Election issues can be appealed to the Election Committee. 3. Appeals will be resolved at the local level and can utilize the Election Committee and Elders. 4. The Federal Court of Canada will not be used as an appeal mechanism. 5. Appeals will be resolved according to the traditional customs. 6. The appeal will be addressed by the Election Committee and Elders or other designated body with five days in receipt. 7.

The decision of the Election Committee or other designated Appeal Body will be final and binding.

Section 5 Amendment Procedure 1. Proposed changes to this Muskrat Dam First Nation Election Code must be drafted by the purposes and submitted to the Chief and Council. 2. The proposed amendment will be reviewed by the Chief and Council and a copy of such will be distributed to each eligible voter for his/her consideration. 3. Any proposed amendment to the Code will be discussed at a Community Consultation Process called for this purpose. 4. The majority of the Electorate through the Community Consultation Process must agree with the purposed [sic] amendment before it is passed by the Chief and Council. 5.

Any amendment of the Muskrat Dam First Nation Election Code that is passed at [sic] through the Community Consultation process will be distributed to the electorate.

Addendums Addendum One: Chief Addendum Two: Deputy Chief Addendum Three: Councillor Addendum Four: Oath of Office Addendum Five: Approval List Addendum Six: Job Description for the Electoral Officer & Assistant Electoral Officer Remedies Sought [ 31 ] In their Notice of Motion the Applicants’ recite twenty three remedies sought, however, in their written submissions these were condensed to an order that: the 2015 bi-election be quashed; a writ in the nature of quo warranto be given and a declaration that the Chief and Council elected on September 15, 2015 never properly held office; a writ in the nature of mandamus directing that the Respondent members of the Election Committee hold an election pursuant to the 2005 Code as soon as practicable; and, that this Court retain jurisdiction until the results of the new election are accepted by the Department of Indigenous and Northern Affairs and the appeal period and all resultant appeals have been dealt with.

Preliminary Comment [ 32 ] I would note that this matter was heard and decided on an urgent basis. In support of and in response to the application the parties each filed multiple affidavits, many of which were lengthy and attached many exhibits, as well as transcripts of cross- examinations conducted with respect to many of those affidavits. I have read and considered all of the evidence and the submissions. However, given the desire of the parties to have this matter resolved as quickly as possible, I have kept my reasons as brief as possible and have not specifically referred to each document before me.

Issue 1: Does this Court have jurisdiction to hear this matterand what is the standard of review? Applicants’ Submissions [33] The Applicants submit that this Court has jurisdiction to review BCR150916A as MDFN is acting as a federal board,commission, or tribunal as contemplated by s 2 of the Federal Courts Act. Further, that jurisdiction over custom elections is well-established (Sparvier v Cowessess Indian Band No 73, 1993 CarswellNat 1319 at paras 11-15 [Sparvier]). As the Court is interpretingthe content of the Band custom as well as the provisions of the 2005 or 2012 Codes, it is therefore interpreting the law, and the standardof review for jurisdiction and statutory

interpretation is correctness (Joseph v Yekooche First Nation, 2012 FC 1153 at para 25 [Joseph]). Little to no deference should be shown to the Electoral Officer or Election Committee, as their power came from a meeting of themembership and they have no expertise. Nor was the Election Committee created in accordance with the 2012 Code.

Respondents’ Submissions [34] The Respondents submit that the Court ought to decline to exercise its jurisdiction in this matter as Gordon Beardy failed toexhaust the recourse available to him in the subject administrative process which, absent exceptional circumstances, aggrieved partiesare required to do before coming to Court (C.B. Powell Ltd v Canada Border Services Agency, 2010 FCA 61 at paras 30-33 [C.B.Powell]; Sagkeeng First Nation v Canada, 2015 FC 1113 at paras 69-71 [Sagkeeng]; Taypotat v Taypotat., 2012 FC 1036 [Taypotat]).

The 2005 Code contained a mechanism for appeal to the Election Committee which provided Gordon Beardy with an adequatealternative remedy. It is uncontested that he did not avail himself of the appeal procedure and he has not advanced any exceptionalcircumstances. Therefore, the Court ought to decline jurisdiction, particularly as the 2005 Code contains a privative clause. [35] The Respondents also submit that in order to file an appeal under the 2005 Code, the aggrieved parties must have voted in thesubject election.

However, both Joy Barkman and Francine McKenzie confirmed under cross-examination that they consciously chosenot to vote in the election. Accordingly, the Respondents submit that they lack standing to file an appeal. Further, that both Ms.Barkman and Ms. McKenzie filed their appeals pursuant to the 2012 Code, which was not in force.

Both appeals were improperlyconstituted and cannot form the basis of remedial relief before this Court. [36] The Respondents submit that the standard of review in this case is patent unreasonableness, which attracts a great degree ofdeference to the Election Committee’s decision to disqualify Gordon Beardy as an eligible candidate.

The justifications for a high levelof deference are: the presence of a full privative clause in the 2005 Code; the expertise of the Election Committee which was comprisedof experienced members of past election committees who had specialized expertise with respect to the Band’s customary electionpractices as applied to the Code; the vague nature of the 2005 Code, which required the Election Committee to fill in gaps to achieve itsprimary purpose by using their experience and knowledge of MDFN’s customary practices; and, the Election Committee made onlyfactual determinations regarding whether or not Gordon Beardy had resigned and what custom dictated in terms of assessing hiseligibility.

No legal

interpretation of the 2005 Code was required because it does not address disqualification factors. Analysis i. Jurisdiction [37] As stated in Shotclose v Stoney First Nation, 2011 FC 750 [Shotclose] it is settled law that this Court has jurisdiction to reviewthe decisions and actions of chiefs and band councils as they constitute a “federal board, commission, or tribunal” as contemplated by s 2of the Federal Courts Act.

Such decisions are also subject to the jurisdiction of the Court as set out in s 18.1 of the Federal Courts Act tohear applications for judicial review of the matter in respect of which relief is sought (Sparvier at para 13; Angus v Chipewyan PrairieFirst Nation Tribal Council, 2008 FC 932 at para 29; Vollant v Sioui, 2006 FC 487 at para 48; Gabriel v Canatonquin, (FC), [1978] 1 FC 124 at para 10, aff’d (FCA), [1980] 2 FC 792 (FCA)). [38] And, as stated in Ratt v Matchewan, 2010 FC 160 (at para 105-106), the jurisprudence of this Court has consistently upheld itssupervisory powers over band elections (Francis v Mohawk Council of Kanasetake, 2003 FCT 115 , [2003] 4 FC 1133 at paras11 to 18 [Francis]; Ballantyne v Nasikapow, (FC), 197 FTR 184 at paras 5-6).

Whether the selection process iscarried out by election pursuant to the Indian Act, or pursuant to custom, this Court has supervisory jurisdiction over the process, andover those bodies, such as electoral officers, appeals boards or elders councils, purporting to exercise authority under the process. [39] In this case, the decision not to permit Gordon Beardy to run for re-election was made by the Election Committee and theelection process was effected by that Committee and the Electoral Officer.

As discussed below, there is some question as to whether itwas open to the Band members to constitute an Election Committee in these circumstances and whether the Election Committee had theauthority to take the actions that it did.

However, as the Election Committee purported to exercise authority pursuant to an election codethat was effected pursuant to the provisions of the Indian Act, in my view, for the purposes of this judicial review, it falls within thedefinition of a “federal board, commission or other tribunal” over which this Court has jurisdiction (Sparvier at para 13). [40] Further, as stated by Justice Tremblay-Lamer in Lafond v Muskeg Lake Cree Nation, 2008 FC 726 at para 20 [Lafond], in thecontext of a chief who purported to act alone, separate from band council, and on his own initiative in relation to band election matters,jurisdiction pursuant to s 18 “.. extends to those purporting to have authority to decide as well” (Roseau River Anishinabe First Nation vRoseau River Anishinabe First Nation (Council), 2003 FCT 168 , [2003] FCJ No 251 at para 19; Sparvier at para 13).

Sheconcluded that this Court has jurisdiction to review removals of band council members from office “regardless of who purports topossess the authority to do so”. I see no reason why this same reasoning would not apply to the decisions of the Election Committee in

this case (also see Salt River First Nation 195 (Council) v Salt River First Nation , 2003 FCA 385 at paras 18-20 ; Chief Pahtayken v Oakes, 2009 FC 134 at paras 31-32 ). ii. Standard of Review [ 41 ] As stated in Dunsmuir v New Brunswick , 2008 SCC 9 [ Dunsmuir ], in determining the appropriate standard of review a court must first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.

Only if this inquiry proves unfruitful, must the court proceed to an analysis of the factors making it possible to identify the proper standard of review ( Dunsmuir at para 62 ). [ 42 ] In this case, the issue of which of the election codes was in effect at the relevant time is, in my view, a question of mixed fact and law and, therefore, the reasonableness standard applies ( Dunsmuir at para 53 ; Lewis v Gitxaala Nation, 2015 FC 204 at para 15 ). [ 43 ] This Court has recognized that chiefs and band councils have expertise on matters such as band custom and factual determinations and, therefore, that their decisions should be shown considerable deference.

Thus, band council decisions are to be reviewed on the standard of reasonableness and will be upheld if they fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law ( Shotclose at paras 58-59 ; Parker v Okanagan Indian Band Council , 2010 FC 1218 at paras 38- 40 [ Parker ]; Dunsmuir ). [ 44 ] In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law ( Dunsmuir at para 47 ). [ 45 ] Jurisprudence has also previously held that the issue of whether a band council breached a duty of procedural fairness is to be reviewed on a correctness standard ( Prince v Sucker Creek First Nation , 2008 FC 1268 at para 23 [ Sucker Creek ]; Parker at para 41 ; Tsetta v Band Council of the Yellowknives Dene First Nation , 2014 FC 396 at para 24 ; Hill v Oneida Nation of the Thames Band Council , 2014 FC 796 ; Taypotat at para 42 ).

In my view, this standard would be equally applicable to the actions of the Election Committee. iii. Should the Court decline to exercise its jurisdiction? [ 46 ] Putting aside for the moment the question of whether the Election Committee was validly constituted and the alleged election irregularities, the fact remains that Joy Barkman and Francine McKenzie did not vote in the subject election but filed appeals.

The Respondents submit that they therefore lack standing in this matter. [ 47 ] Joy Barkman’s affidavit states that Olivia Duncan sent her photos of the tallies taken of the nominations made at the September 11, 2015 nomination meeting. These showed that Gordon Beardy received thirty-two nominations for Chief and Stan Beardy received forty-six nominations. Stan Beardy was announced as acclaimed Chief by radio on the evening of September 14, 2015. Joy Barkman called Ernie Harper and voiced her concerns about the process and, specifically, as to why Gordon Beardy was not permitted to stand for election.

Ernie Harper put her on speaker phone, with what she assumed to be the rest of the Election Committee, although she spoke only with him and Mary Ann Beardy. Ernie Harper told her that she should not question the process in the midst of an election and confirmed that the Election Committee had not approached Gordon Beardy regarding his nomination. Ultimately, she was told that she could file an appeal. [ 48 ] She states that she again expressed her concern to Ernie Harper on September 15, 2015.

On September 28, 2015 she discussed her appeal with Lisa Beardy who told her that the appeal should be sent to Ernie Harper and that he would process it with her or Mary Ann Beardy. Lisa Beardy later indicated that she would forward the appeal to Steve Beardy, the Band Manager. [ 49 ] The appeal was filed on September 29, 2015. Both the 2005 and 2012 Codes state that any elector who voted in an election can file an appeal within fourteen days of the election if there was a violation of the election provisions that may have affected the election results.

Therefore, the appeal was filed within the required time frame. It takes issue with the August 14, 2015 community meeting, as the persons who voted at that time were not representative of the majority of the community pursuant to the 50% plus one requirement set out in both Codes. It also describes Ms.

Barkman’s prior efforts to raise her concerns with the Election Committee and again at the announcement of the election results and swearing in. [ 50 ] The appeal of Francine McKenzie dated September 23, 2015 was similarly submitted in accordance with the Code requirements and sets out alleged procedural irregularities, including that two candidate nominations had been removed from the election process. [ 51 ] Of the members of the Election Committee, the affidavit of Ernie Harper, co-chair of the Election Committee does not in any way address the appeals. There is no affidavit of Lisa Beardy, the other co-chair.

Nor do the affidavits of Jake Beardy, Clifford Ferris or John Morris mention the appeals. [ 52 ] On cross-examination Ernie Harper stated that he had never heard about or seen an election appeal voiced or filed by Francine McKenzie and that he did not know who she was. As to Joy Barkman’s appeal, when it was put to him that the Election Committee had not responded to it he stated that he thought that time was a factor and that there were no other factors.

On cross-examination Jake Beardy stated that the Election Committee did not meet after the election and that he was not aware of a phone call from Joy Barkman with the Election Committee. [ 53 ] The affidavit of Mary Ann Beardy confirms that Joy Barkman called Ernie Harper after the radio broadcast and that she was put on speaker phone so that Mary Ann Beardy could participate in the call. She confirmed to Joy Barkman that, because Gordon Beardy had resigned, it was determined that he was ineligible for re-election but that Ms. Barkman did not accept that explanation.

The affidavit makes no mention of the appeals filed.

[54] The Respondents submit that Joy Barkman and Francine McKenzie lacked standing to file an appeal because, in order to filean appeal under either of the Codes, the aggrieved parties must have voted in the subject election. Both Ms. Barkman and Ms.McKenzie confirmed under cross-examination that they consciously chose not to do so. Furthermore, both Ms. Barkman and Ms.McKenzie filed their appeals pursuant to the 2012 Code, which was not in force.

The Respondents submit that, therefore, both appealswere improperly constituted and cannot form the basis of remedial relief before this Court. [55] At the hearing before me counsel for the Respondents suggested that the reason why the Election Committee failed torespond to the appeals was because they could have determined from the voters list that Joy Barkman and Francine McKenzie had notvoted and, therefore, were not entitled to appeal. There is, however, no evidence to support this submission.

In fact, the evidence is tothe contrary, being that the appeals were simply not addressed. [56] In this situation both Joy Barkman and Francine McKenzie followed the appeal procedure set out in both the 2005 and 2012Codes by filing their appeals with the Election Committee within fourteen days of the election. The Codes required the ElectionCommittee and Elders or other designated body to respond to appeals within five days. Because the Election Committee did not respondto the appeals, it cannot be said that Ms. Barkman and Ms.

McKenzie failed to exhaust their rights and remedies under the Codes beforecommencing this application for judicial review. Their circumstances are, therefore, distinguished from those in Sagkeeng where theFirst Nation did not request a dispute resolution mechanism that was available to them. [57] It is true, as stated in C.B.

Powell (at para 33), that concerns about procedural fairness or bias, the presence of an importantlegal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstancesallowing parties to bypass an administrative process, but this is so only as long as that process allows the issues to be raised and aneffective remedy to be granted (see Harelkin v University of Regina, (SCC), [1979] 2 SCR 561; Okwuobi v Lester B.Pearson School Board, 2005 SCC 16 at paras 38-55; University of Toronto v. C.U.E.W, Local 2 (1988), 55 D.L.R. (4th) 128 (Ont.

Div.Ct.): [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequatealternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutoryjudicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptionalcircumstances, parties cannot proceed to the court system until the administrative process has run its course.

This means that, absentexceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue alleffective remedies that are available within that process; only when the administrative process has finished or when the administrativeprocess affords no effective remedy can they proceed to court.

Put another way, absent exceptional circumstances, courts should notinterfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. [58] In this case, the Election Committee did not follow the appeal requirements as set out in the Codes. It ignored and failed torespond to the appeals and, therefore, did not allow the issues to be raised at all. In these circumstances, as a result of the actions of theElection Committee, the process was not completed and no remedy was available.

Put otherwise, because the Election Committee didnot consider the appeals, the appeal mechanism offered by the Codes was not an adequate, alternative appeal mechanism to judicialreview. Further, as the Codes required the Election Committee to respond within five days of receipt of the appeals, which it did not do,nor can the appeal process be said to be ongoing. While it may be that if the Election Committee had addressed the appeals it wouldhave been open to it to dispose of them on the basis that Ms. Barkman and Ms.

McKenzie had no right of appeal as they had failed tovote, the Election Committee did not consider the appeals and did not make that determination.

Therefore, in my view, this does notprovide a basis upon which those Applicants should be denied standing in this application, nor do the Respondents refer to anyjurisprudence concerning standing in support of that position. [59] As to whether the appeals of Francine McKenzie and Joy Barkman were invalid as they were framed in terms of theprovisions of the 2012 Code, as addressed below, there was significant confusion among the members of MDFN as to which Code wasin place. Indeed, in some instances the Election Committee itself referred to the 2012 Code.

Accordingly, reference to the 2012 Code inthe appeals is far from fatal, nor could it be as the relevant appeal provisions are essentially the same as those found in the 2005 Code. [60] In my view, as addressed below, it was also a breach of procedural fairness on the part of the Election Committee to fail torespond to the appeals even if, ultimately, it was open to it to have denied the appeals on the basis that the appellants had failed to vote. [61] This Court has discretion in determining whether judicial review should be undertaken (Canadian Pacific v Matsqui, (SCC), [1996] 1 SCR 3).

In my view, given that the appeal process was ignored and that the period within which theElection Committee was required to respond to the appeals as set out in the 2005 Code has expired, this Court should exercise itsjurisdiction to hear the matter on the merits. And, although Gordon Beardy did not file his own appeal, the election issues arising fromthe ignored appeals of Joy Barkman and Francine McKenzie are common to the assertions of all three of the Applicants in thisapplication for judicial review. Issue 2: Which of the 2005 or 2012 Codes were in effect?

Applicants’ Submissions [62] At the hearing of this matter, the Applicants conceded that the 2012 Code was never ratified and that the 2005 Code is stillvalid. However, they submitted that the 2013 election in which Gordon Beardy was last elected Chief was run pursuant to the 2012Code due to a belief that the 2012 Code was validly adopted. Respondents’ Submissions

[ 63 ] The Respondents submit that the 2005 Code was ratified by the community through a community consultation process. In order for INAC to accept the 2005 Code in place of an Order pursuant to s 74 of the Indian Act , MDFN had to satisfy the strict criteria set out in INAC’s Policy, including proof that the written code had the support of the people, a BCR adopting it, and an affidavit setting out the consultation and ratification process and results. The onus is on the Applicants to prove that the 2005 Code was amended, via the 2012 draft Election Code, pursuant to the provisions of the 2005 Code.

The Applicants must prove that the purported amended code was supported by a broad consensus of the membership through a community consultation process which garnered the support of the majority of the electorate. [ 64 ] The Respondents submit that there is no direct evidence that the draft 2012 Code was ever ratified by a majority of the electorate through a community consultation process, nor has any BCR adopting the amendments been located.

Furthermore, no amended 2012 Code has been filed with INAC. [ 65 ] As a result, because the 2005 Code provided for a term of office for Council members of two years, Gordon Beardy’s term as Chief should have expired in or around July 2005. Analysis [ 66 ] As noted above, at the hearing, counsel for the Applicants submitted that although the 2005 Code was technically in effect, the 2013 election was conducted pursuant to the 2012 Code due to a belief that it was valid. This position is related to the effective length of term of those persons elected in 2013.

In that regard, reference was made to the cross-examination transcript of Elder Jake Beardy, in which he stated that he believed that Gordon Beardy’s term would expire in June 2016. However, no BCRs or other documentary evidence were adduced to show that Gordon Beardy and the other members of Council were elected for a three-year term. And, although the affidavit of Gordon Beardy states that his mandate as Chief came from the 2013 election and that pursuant to the 2012 Code his term is for three years, he refers to no evidence to support that the 2012 Code was in effect.

On cross-examination Gordon Beardy confirmed that he had not verified that the 2012 Code had been finalized but stated that he was told that it would be used in the conduct of the 2013 election and that he accepted this. [ 67 ] The affidavit of Charlie Morris states that the draft 2012 Code was taken door to door for signature. He states that one hundred and sixty-seven signatures were collected and that the document was submitted to Chief and Council’s executive secretary so that a resolution could be prepared to ratify the 2012 Code by Council.

However, a copy of that document was not produced. [ 68 ] The affidavit of Roy Fiddler states that the 2005 Code was ratified by the community through a consultation process held in 2005. He attached as an exhibit to his affidavit a copy of the 2005 Code, or at least a portion of that document, with a stamp indicating that it was received by Indian Affairs on September 14, 2005. His affidavit states that the 2005 Code has been in operation since then.

Also attached as an exhibit to his affidavit is a portion of a document entitled “Conversion to Community Election System Policy” which sets out the criteria to be utilized by the department of Indian Affairs to determine if an order pursuant to s 74 of the Indian Act should be repealed so that a First Nation may conduct its elections under its own custom election system.

Amongst other things, the department was required to review the proposed code and to find it to be satisfactory, the proposed code was required to have received the support of the community and, following the community ratification vote, supporting documents were to be submitted including a final copy of the code, a band council resolution and an affidavit of the person overseeing the process. [ 69 ] In an effort to establish that the 2005 Code remains in effect, Roy Fiddler also attached a copy of an email from Ron Mavin (“Mavin”), Regional Manager, First Nations Governance, Aboriginal Affairs and Northern Development Canada(“AANDC”) dated September 30, 2015, to Stan Beardy acknowledging his election as Chief and that of the new Council on September 15, 2015 and attaching a copy of the new listing, per AANDC’s computerized Band Governances Management System, that was updated as directed by BCR150916A.

The attached printout notes an expiry date for each member of Council as July 31, 2017 which is indicative of a two year term of office, rather than a three year term as specified in the 2012 Code. [ 70 ] Roy Fiddler states that no other election code, and specifically the 2012 Code, has been filed with Indian Affairs. In this regard he refers to an email from Mavin to Gordon Beardy, dated September 29, 2015. In that email Mavin states that in 2012-2013 MDFN was provided with funding to support a community process to revise its custom election code.

A requirement of that funding was a commitment by MDFN to submit a draft version of a revised code to AANDC. A draft code was submitted as a part of the final report. Because AANDC has no authority with respect to custom election codes, the submission of the draft did not constitute an “approval” of the code, but rather the completion of a reporting requirement. However, he noted that in the narrative portion of the final report that it was the intention of the MDFN to take the draft to the community for ratification at a later date.

Mavin stated that he was not aware that this had been completed. [ 71 ] Roy Fiddler states that to the best of his knowledge, no community consultation or ratification process was completed. Therefore, the 2012 Code remained at the draft stage. [ 72 ] Vernon Morris also filed an affidavit. He states that he is a member of the MDFN and served on the MDFN Council for over 20 years between 1980 and 2009 when he moved to Sioux Lookout.

He states that in the MDFN community it is custom that any new election code or amendment to the election code would be subject to community consultation and ratification before it would be adopted and that he has no knowledge of any such consultation process having been completed. He states that in 2012 Charlie L. Morris approached him with a document to sign for the adoption of the 2012 Code but he declined to do so because he did not agree with the process being followed.

He heard nothing further about the ratification and stated that he believed that the 2012 draft code initiative process was never completed nor introduced to the community as having been adopted by them through a ratification process. [ 73 ] Similarly, the affidavit of Mary Ann Beardy, the Chief Electoral Officer for the September 15, 2015 election, states that she does not believe that the 2012 Code was ever formally adopted, which belief was based on her knowledge that any significant changes to the election practices would require meaningful community consultation and ratification and that she had not been made aware of either. [ 74 ] Cyril Beardy also provided an affidavit.

In it he states that he has been the office management coordinator for the MDFN for

many years and that one of his responsibilities in that position is to maintain the Band’s administration files, including files relating to the election codes. He provided as exhibits two BCR’s, both dated April 12, 2012. BCR 12-0001 resolves that Chief and Council will implement the “Draft” election Code for use in the April 2012 bi-election for the Head Councillor position and that the Election Committee for the April 2012 bi-election would operate “within the terms contained in this Code” .

Conversely, BCR 12-0002 resolves to appoint the listed persons to the Election Committee and that it shall, for the April 2012 bi-election, operate “within the terms contained in this Code, dated June 2005” . A third BCR, dated April 4, 2012, resolves that the MDFN will submit a funding application to AANDC for purposes of updating the election code.

Cyril Beardy states that he did not locate any documentation evidencing community consultation surrounding the draft 2012 Code, its ratification or a petition approving it, nor did he locate a BCR reflecting community ratification or formal adoption of the 2012 Code. [ 75 ] It is apparent from the record that there was considerable confusion as to the status of the 2012 Code.

The minutes of the June 11, 2015 meeting indicate that the community members in attendance asked to see the BCR approving the changes contained in the July 18, 2012 election code, minutes adopting that code and asked whether the document was legally binding. The two Councillors in attendance, Morris Fiddler and Olivia Duncan, were unable to produce documentation of the ratification process or supporting BCRs approving the revised code.

The request for a general meeting within two weeks was not addressed by Chief and Council and, as a result, the status of the 2012 Code was not addressed in that format. [ 76 ] The 2005 Code states that the term of office for Chief and Councillor is two years. The evidence is consistent that elections were always held on two year terms. The first purported variation from this was following the 2013 election. The 2005 Code also states that it will be amended by agreement of the majority of voters consulted in a community process for that purpose. The amendment procedure is found in

Part 2-

Section 5 as follows: 1) Proposed changes to this Muskrat Dam First Nation Election Code must be drafted by the purposes and submitted to the Chief and Council. 2) The proposed amendment will be reviewed by the Chief and Council and a copy of such will be distributed to each eligible voter for his/her consideration. 3) Any proposed amendment to the Code will be discussed at a Community Consultation Process called for this purpose. 4) The majority of the Electorate through the Community Consultation Process must agree with the purposed amendment before it is passed by the Chief and Council 5) Any amendment of the Muskrat Dam First Nation Election Code that is passed at through the Community Consultation Process will be distributed to the electorate. [ 77 ] Ultimately, the question of whether the 2005 or 2012 Code was in effect has little relevance as the provisions of concern do not significantly vary from one Code to the other.

For example, neither Code contains provision for disqualifying a nominated candidate from running for office and both Codes state that all eligible voters may stand as candidates if nominated for any position and, as discussed above, the appeal provisions are also similar. [ 78 ] Regardless, I am satisfied that the evidence does not support a finding that the 2012 Code was ever discussed at a community consultation process, agreed by the majority of the people or ratified by Chief and Council.

Accordingly, I find that the 2005 Code was in effect and, in the absence of evidence that the majority of the community agreed otherwise, it governed the 2013 election. This is significant as, in the result, the term of Chief and Council elected in 2013 expired in 2015. Issue 3: Did the decisions of the Election Committee comply with the 2005 Code or customary election practice? Applicants’ Submissions [ 79 ] The Applicants submit that the Election Committee was not acting pursuant to Band custom, as the only reliable means of establishing this is through the custom election Codes.

Without adherence to the Codes, the acts of the Election Committee were ultra vires its jurisdiction. Any purported changes to the custom Code, or unwritten custom incorporated into the custom Code, must be done by broad consensus and the genuine will of the Band must be considered ( Joseph at paras 36-38 ). [ 80 ] The resolution at the August 14, 2015 community meeting cannot be interpreted as an amendment to the custom Code as it did not occur through broad consensus. It was a meeting without notice or opportunity for non-resident MDFN members to participate.

Of three hundred and eight eligible voters, less than ten percent participated. [ 81 ] Further, the vote held on September 11, 2015 disallowing Gordon Beardy from standing as a candidate was made by twelve of fourteen people present at the close of nomination. This cannot be considered broad consensus to displace or add to the customary Code.

Neither the 2012 or 2005 Codes include provisions for disallowing candidates to stand for nomination, nor was effective notice of these decisions or meetings meaningfully distributed ( Gadwa v Kehewin Cree Nation , 1996 CarswellNat 345 at para 5 ). [ 82 ] Members of a band cannot take the law into their own hands and councils must operate according to the rule of law ( Long Lake Cree Nation v Canada (Minister of Indian and Northern Affairs) , 1995 CarswellNat 3203 at para 31 [ Long Lake Cree Nation ]). The Applicants submit that in this case members of MDFN took the law into their own hands.

The wishes of the minority were never reconciled against the wishes of the Band members who elected Gordon Beardy in 2013 or the thirty-two voters who nominated him in this election. He also had a reasonable expectation that he would be allowed to seek election following his resignation.

Respondents’ Submissions [83] The Respondents submit that when a First Nation sets out its customary practices in the form of a written election code, theelection code will govern the propriety of any decision made within the context of an impugned election. However, when there are gapsor ambiguities in the code, the Election Committee is entitled to resort to the First Nation’s customary practices in filling the gaps orresolving those ambiguities.

This Court has recognized that, notwithstanding the existence of a written customary election code,decision-makers may still retain discretion vested by the written code which should also be informed by the First Nation’s customarypractices (Samson Indian Band v Bruno, 2006 FCA 249 at para 39 [Samson]; Lafond at paras 9-11). [84] The Respondents submit that the resignations of Gordon Beardy, Doug Beardy, and Morris Fiddler were valid and bindingand that the Election Committee and the community were entitled to, and did, rely on those resignations resulting in the calling for areferendum.

Alternatively, those Councillors effectively abandoned their positions. Because the 2005 Code does not set out a procedureto be followed in the event that Council loses effective quorum due to voluntary resignations, the Election Committee relied on custom toguide them which meant resorting to the Elders for guidance on the leadership issue as supported by the 2005 Code. [85] The Election Committee had authority to disqualify Gordon Beardy’s nomination in a manner consistent with First Nationscustom.

Because the 2005 Code does not expressly provide a disqualification procedure, the Court must determine whether the ElectionCommittee was nonetheless vested with the requisite power to disqualify that candidate by resort to custom (Simon v Samson CreekNation, 2001 FCT 467 at paras 24-32 [Simon]).

In determining whether or not there are customary practices which govern leadershipselection or removal, it must be established that there are practices in place that are generally acceptable to the members of the Band andupon which there is a broad consensus (Francis). [86] The Respondents submit that there is ample evidence in the record to show that both before and after the adoption of the 2005Code, the Elders regularly discharged the role of assessing the suitability of a prospective candidate for leadership or the ongoingsuitability of an existing leader and that the candidate or leader in question, and the community as a whole, respected that guidance.

InSimon, the Court held that the general provision in the election code vesting authority in the election officers to conduct the electionprocess was broad enough to vest the requisite authority in the election officers to disqualify candidates, in the absence of a specifieddisqualification process set out in the code. [87] The 2005 Code, when taken as a whole, favors a purposeful

interpretation which allows the Election Committee, with thesupport of the Elders and community, to disqualify unsuitable candidates from running for election. [88] The difference between the case at bar and the fact situation presented in Simon is that the Election Committee disqualifiedGordon Beardy’s candidacy on the basis of custom; namely, by resorting to the customary practice of consulting with the Elders as to thesuitability of Gordon Beardy as a potential leader in light of his history of resignations, and the support of the voters who were present atthe nomination meeting.

The Election Committee was justified in resorting to this customary practice in order to fill in a gap in the 2005Code. Analysis [89] As discussed below, in my view the resignations of Gordon Beardy, Doug Beardy, and Morris Fiddler were valid and,therefore, the issues with respect to the impugned referendum are no longer relevant. It is true that the September 10, 2015 referendumwas conducted in violation of the terms of both the 2005 and 2012 Codes, which require one third of eligible voters to sign a petition fora referendum.

However, the purpose of the referendum was to determine whether there should be an election. After the resignation ofChief Gordon Beardy and two Councillors, an election was triggered and a referendum was no longer required. In any event, even if theresignations were not valid, because I have found that the 2005 Code was in effect, an election was required as the Chief and Council’sterm ended in July 2015. [90] The central issue, therefore, is whether the Election Committee’s decision to disallow Gordon Beardy from running in theelection was reasonable.

In my view, the decision was not based on established Band custom and was not reasonable. [91] As stated by Justice Strayer in Bigstone v Big Eagle, 1992 CarswellNat 721 a band’s custom must include practices for thechoice of a council which are generally acceptable to members of the band, upon which there is broad consensus (at pp 117-8; Bone vSioux, 1996 CarswellNat 150 at paras 27-28; Taypotat at para 25). [92] In Francis, Justice Martineau discussed the general principles applicable to band custom and noted that custom will notalways overlap exactly with an election code. [93] Justice Martineau noted that custom has two components.

First, a custom must have practices, which may either beestablished through repetitive acts in time or through a single act such as the adoption of an electoral code (McLeod Lake Indian Band vChingee (1998), (FC), 153 FTR 257 (FCTD) [McLeod].

Custom must also have a subjective element, which refers tothe manifestation of the will of those interested in rules for determining the electoral process of band council membership to be bound bya given rule or practice. [94] On the latter element, Justice Martineau referred to McLeod stating: [30] Finally, one of the clearest articulations of what is the requisite subjective element for the establishment of the custom of a bandis found in McLeod, supra, where Reed J. stated as follows in paragraphs 18-19: The question that remains is whether “broad general consensus” equates to a “majority decision of the Band members attending ageneral meeting of the Band convened with notice”.

In my view, it may do so, or it may not, depending upon a number of factors. If forexample, the general meeting was held in a location or at a time when it was difficult for a number of members to attend, and there was

no provision for proxy voting, it may not meet the broad consensus test. If the notice was not adequate in not providing sufficient detail of what was proposed, or was not given sufficiently in advance of the meeting to allow people a realistic opportunity to attend then it would not be. There are also situations in which those who do not vote may be signalling a willingness to abide by the majority decision of those who do.

I am of the view that approval by a majority of the adult members of the Band is probably a safe indication of a broad consensus (the age of majority being a matter for the band to determine).

Whether a majority decision by the Band members attending a general meeting demonstrates a broad consensus depends on the circumstances of that meeting. (my emphasis) [ 95 ] Justice Martineau concluded that: [36] For a rule to become custom, the practice pertaining to a particular issue or situation contemplated by that rule must be firmly established, generalized and followed consistently and conscientiously by a majority of the community, thus evidencing a “broad consensus” as to its applicability.

This would exclude sporadic behaviours which may tentatively arise to remedy certain exceptional difficulties of implementation at a particular moment in time as well as other practices which are clearly understood within the community as being followed on a trial basis. If present, such a “broad consensus” will evidence the will of the community at a given time not to consider the adopted electoral code as having an exhaustive and exclusive character.

Its effect will be to exclude from the equation an insignificant number of band members who persistently objected to the adoption of a particular rule governing band elections as a customary one. [ 96 ] As stated by Justice de Montigny in Taypotat at para 30 , “In a nutshell, the existence of a band custom and whether or not it has been changed with the substantial agreement of the band members will always depend on the circumstances” . [ 97 ] Accordingly, in order to determine whether the actions of the Elections Committee were consistent with custom, the Respondents must demonstrate that this type of decision-making was firmly established, generalized, and followed consistently and conscientiously by a majority of the community, thus evidencing a broad consensus ( Francis at paras 21- 30 ; Sucker Creek at para 28 ; Metansinine v Animbiigoo Zaagi’igan Anishnaabek First Nation, 2011 FC 17 at para 28 ; Joseph at paras 36-39 ). [ 98 ] In this case, the Respondents assert that there is a custom of taking into consideration the Elders’ opinion on the suitability of candidates and disallowing candidates from running if they are found to be unsuitable.

The evidence they refer to in support of this includes: • In his affidavit, Roy Fiddler states that Elders hold a place of respect in MDFN. There are only a few Elders in the community, including Jake Beardy, Roderick Fiddler, and Allan Beardy. The Elders are engaged in the community and reflect the voice of the people. The people, in turn, listen to the Elders. He also states that the Elders’ role in the leadership and election process is enshrined through their assignment of an Elders’ position within the Election Committee.

Further, that the role of the Elders in the election process is reflected in the 2005 Code including in its guiding principles and under leadership selection. Roy Fiddler includes as an exhibit to his affidavit his sworn Oath of Office, which includes the provision: “…I will further accept the direction and advice or [sic] our elders given their knowledge and experience” . • In his affidavit, Elder Jake Beardy states that Elders are respected by Chief and Council and members of MDFN, and that respect is reflected in the Oath of Office and the fact that Elders have a designated position on the election committees.

He held that position in the subject election. He states that it is the custom of the MDFN to listen to and seek guidance from its Elders in matters relating to governance and leadership. He states that Gordon Beardy resigned as Chief two or three times in the past, and the people accepted his resignation. Elder Jake Beardy also stated that he accepted Gordon Beardy’s resignation and believed this meant that he would not be running for re-election. It was the people’s will that Gordon Beardy not run for re-election and he supported the people in this decision.

Therefore, when Gordon Beardy was nominated to run as Chief, the Election Committee did not accept his nomination. This was “consistent with our custom that a member of Council, including Chief, who resigns will not run for re-election in the resulting election. Chief Gordon Beardy had resigned too many times” . At the nomination meeting, the Elders voted with the other people to reject Gordon Beardy’s nomination. • Vernon Morris is a former Councillor of MDFN. He states in his affidavit that Elders are an integral part of customary elections.

They participate fully to ensure that the election is carried out in accordance with traditions. They look at candidates and consider their competence, capabilities and personal qualities. They generally do not veto candidates but provide principled guidance. When the Elders support a process and how it is being done, that process is generally accepted by the community as appropriate. This is an established customary practice of MDFN.

He provides a specific example, an instance in 1980 when there was discussion among the election committee and Elders as to whether he should be allowed to run because he was considered to be too young. The Committee ultimately determined that he was an acceptable candidate. He further states that custom permits the people, the election committee and the Elders to disallow a nominated candidate from running when he has resigned. Gordon Beardy had a habit of resigning repeatedly and putting the community through the time and expense of an election process.

On the two occasions that Gordon Beardy previously resigned, the people allowed him to resume his post without the need for a bi-election. In August 2015 the people decided that this was enough and accepted his resignation.

He also states that the Elders play a very strong role in determining leadership matters and that it would be against MDFN custom for the Election Committee to disregard or to defy the Elders’ guidance in relation to a potential candidate. • In his affidavit, John Morris states that it has long been a custom and tradition at MDFN to listen to the wisdom of Elders for guidance on community matters. With respect to the nomination meeting, he states that fourteen people attended. For the position of Chief, Stan Beardy received forty-six nominations and Gordon Beardy received thirty-two nominations.

Twelve of the fourteen people in attendance confirmed that the resignations of Chief, Deputy Chief, and Councillor Morris Fiddler be accepted and two people abstained. It was affirmed that the letters of resignation had been accepted by the people. Gordon Beardy’s nomination was rejected because he had resigned his position. This was in accordance with the will of the people and the Elders. • In his affidavit, Ernie Harper stated that the Elders give direction, and nothing would happen of significance in the community

without their consent. With respect to the nomination meeting, he stated that he asked the Elders present to exercise their inherent right to govern and to advise as to the validity of Gordon Beardy’s nomination. The Elders exercised their right by a show of hands, and did not allow him to run. • In her affidavit, Mary Ann Beardy states that Elders have always played an important role on the election committees. The other committee members, like the community, try to follow the wisdom of the Elders.

She also states that members of an election committee have the power and responsibility to accept or reject otherwise eligible candidates for the election, even if they have been duly nominated as candidates by eligible voters. While the role of an election committee is not explicitly set out in the Election Code, the process of accepting or rejecting otherwise eligible candidates nominated by the community is an established and respected customary practice of MDFN.

She states that when nominations are received the Elders are consulted, through their representative on the election committee, and if the Elders are concerned about the suitability of a potential candidate for office the election committee and the community will listen.

She points to three instances in which Chiefs and members of Council were removed from office due to serious concerns raised by the community. [ 99 ] In my view, the above evidence is not sufficient to establish the existence of a custom which had broad consensus permitting the Election Committee, on the advice of Elders, to disallow a nominated candidate from running in an election.

In the alternative, even if such a custom were established, I do not believe that the custom was followed in this situation as the evidence does not establish that the Elders played a significant role in the decision to disallow Gordon Beardy’s nomination. [ 100 ] In this regard, I note that Elder Jake Beardy stated that he did not believe that Gordon Beardy should run again because he had resigned too many times, and that it is custom that chief and council who resign should not be allowed to run again.

However, if Gordon Beardy had resigned two or three times in the past and had been allowed to run again, this is not supportive of the existence of a widely accepted custom that a chief cannot run again after resigning. Further, in Vernon Morris’ affidavit, he stated that Elders generally do not veto candidates, but provide principled guidance. He confirmed this when cross-examined on his affidavit and stated that he had never known an election committee or the Elders to have rejected an eligible candidate.

He then stated that he had seen a situation where a nomination had been set aside on the basis of a resignation but this was before the actual process was initiated and that he had not heard anyone say that a person had to be rejected.

He was able to give only one example, stating that in the late 1990’s: … without my actual having visually confirmed my own participation in the leadership, leadership selection process, there were there were a number of times when mid term I myself was set aside and instructed not to serve anymore and during the election process I was informed that I had been nominated to run again but I was never informed, I was never asked because I know this process exists there. [ 101 ] Other than this description by Vernon Morris, and his affidavit evidence that in 1980 there had been discussion amongst an election committee and the Elders as to whether he should be permitted to run for office because of his youth, there is no clear or further evidence of candidates being disallowed from running because they had resigned from council positions.

In all of the evidence from experienced past and present members of council and election committees, no one was able to point to a previous example in which an election committee and/or Elders have disallowed someone nominated to run in an election because of a prior resignation. While Mary Ann Beardy pointed to instances in which chief or council have been removed from office due to serious concerns, as is discussed below, this differs from being disallowed to run in an election. [ 102 ] The 2005 Code serves to codify Band custom and the processes upon which, by its adoption, there is broad consensus.

Thus, it is much more than a mere guidance document as suggested by some of the affidavit evidence filed by the Respondents. As to the eligibility of Band members who wish to run for office, this is set out in the 2005 Code which states that any eligible voter can run in an election. The 2005 Code is silent on the disqualification of nominated candidates.

Accordingly, in order to show that the decision of the Election Committee to disallow Gordon Beardy from running for office was valid, the Respondents were required to demonstrate that there is broad consensus that the custom is that the Elders will assess the suitability of candidates and, based on their advice, unsuitable candidates who have been nominated for election, which would include those who had previously resigned their council positions, are then prevented from running for council by an election committee.

In my view, the absence of clear evidence that this has consistently been done in the past and is accepted by the majority of the Band, is indicative that it does not reach the threshold of a customary practice. [ 103 ] The Respondents submit that the fact that the evidence is limited as to a prior practice on disqualification of nominated candidates based on Elder recommendation is not significant.

They submit that this is because the broad role of the Elders, as respected advisors to the Band, demonstrates a general prevailing custom to accede to their advice which would encompass disqualification of nominated candidates for election by an election committee. However, I cannot agree.

In my view, it is the practice pertaining to a particular issue or situation that must be established to demonstrate accepted custom. [ 104 ] Further, and in any event, while I fully accept that the evidence supports that Elders play an important advisory role, which can include providing advice to the Election Committee and Band Council on leadership matters, it is unclear that in these circumstances the decision of the Election Committee was based on such advice. [ 105 ] In this regard, the Election Committee minutes of the September 11, 2015 nomination meeting are limited.

They state: Question: those that handed in the resignation letter should not be asked to run? - question by the public (posed) Lisa [Beardy] asking the people to raise their hands The minutes then go on to address a question asked by Roy Fiddler as to whether the resignation letters should be accepted and the ensuing vote appears to pertain to that question.

The minutes contain nothing that indicates that the guidance of the Elders was sought on the question of the rejection of Gordon Beardy’s nomination. [ 106 ] Further, in his affidavit, Elder Jake Beardy indicated that he held the customarily designated position for the Elders on the Election Committee and stated: “It was the people’s will that Gordon Beardy not run for re-election and he supported the people in this decision” . He did not state that this was an issue raised or decided by the Elders. Ernie Harper’s affidavit evidence was that at the

nomination meeting he asked the Elders present to exercise their inherent right to govern and advise as to the validity of Gordon Beardy’s nomination. They exercised this right by a show of hands.

However, when cross-examined on his affidavit, he stated that it was not him who had posed the question, that it was Lisa Beardy and that direction was obtained from the Elders and the people. [ 107 ] Thus, based on the evidence, it seems likely that at the nomination meeting it was Lisa Beardy, a member of the Election Committee, who raised the issue and called for a vote to determine if Gordon Beardy should be disallowed from running and that the Elders present, along with the other community members, voted on that question. [ 108 ] Thus, rather than the Elders conducting an assessment of Gordon Beardy’s suitability as a candidate and advising the Election Committee, as the suggested custom dictates, the evidence indicates that the Elders simply voted with the other community members on the general question of whether the nomination should be accepted.

In this regard I would note that if, as the Respondents submit, it was a broadly accepted custom that the Elders could assess and cause a candidate to be disqualified from running in an election, then that would be a decision of the Elders, which, the Respondents suggest, would be accepted by the Election Committee and the Band members as governing the matter.

However, if that were so, then a general vote at the nomination meeting would not have been necessary. [ 109 ] In my view, it is also important to note that the decision to vote on the issue was made at the end of the nomination meeting, at 9:00 p.m., when only fourteen people remained in attendance. And, while twelve of the fourteen people in attendance voted against Gordon Beardy being allowed to run, thirty-two people nominated him and, in total, approximately one hundred and eight nominations were made both in person and by phone.

None of the people who attended or called to nominate candidates were advised that the acceptance of Gordon Beardy’s nomination, or any nomination, was to be voted on later that evening. Had they known, perhaps they would have stayed at the meeting and cast a vote. Similarly, had the community been given notice that there would be a vote held to decide if the nominations of those who had resigned should be disallowed, a more significant and representative group may have attended and voted.

As it was, I am unable to conclude that the votes of twelve of fourteen people are representative of a broad consensus of the community. [ 110 ] In short, the process described by the evidence is not consistent with a firmly established, generalized custom that was followed consistently and conscientiously by a majority of the community, thus evidencing a broad consensus. [ 111 ] The Respondents refer to the Federal Court of Appeal’s decision in Samson and I agree that it is relevant in that it confirms th

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