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COMMUNITIES AND GOVERNANCE - Self-governance - Elections

Wednesday, May 23, 2018 @ 8:41 AM  

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Appeal by Perry from a decision dismissing his application for judicial review of the respondent First Nation’s decision passing a Resolution cancelling the new election for Councillors ordered by the Appeal Committee after the Committee amended the Election Law and set out the conditions for the new election. The application judge concluded that the Resolution was valid as the Committee acted without jurisdiction. The appellant was nominated to run for Councillor in 2016. Three days later, the Elections Officer, having received a complaint regarding his nomination, excluded the appellant from the list of candidates on the basis of the residency criterion. Following the election, the appellant filed a written appeal to the Committee. The Committee noted that the jurisprudence referred to in the letter of appellant’s counsel showed that the law had evolved significantly since the adoption of the Election Law in 1986, and it was now unconstitutional to preclude members of a First Nation from voting or running for office for being off-reserve residents. Thus, the Committee amended the Election Law by striking the residency requirement and directed the Elections Officer to hold a new election for Councillors. The Council passed the Resolution cancelling the new election ordered by the Committee, concluding that the Committee acted outside its jurisdiction and without authority in amending the Election Law.

HELD: Appeal dismissed. The application judge did not err in his application of the standard of review when he concluded that the Council correctly determined that the Committee did not have the jurisdiction to decide as it did. The Committee had no jurisdiction to declare provisions of the Election Law unconstitutional and grant the remedies it did in its decision. The Committee did not analyze the Election Law to determine if it had jurisdiction to decide constitutional challenges and to make the amendments that it did to the Election Law, but simply relied on its interpretation of a prior Federal Court decision and on the frustration arising from the lack of amendments in 2016. Neither the Indian Act, nor the Election Law provided for an explicit jurisdiction. The presumption that the Committee also had jurisdiction over constitutional questions was rebutted by a clear implication arising from the provisions of the Election Law itself. The express limits set in the Elections Law of the Committee’s power were reinforced by the fact that the Election Law also expressly provided who could amend it.

Perry v. Cold Lake First Nations, [2018] F.C.J. No. 380, Federal Court of Appeal, J. Gauthier, W.W. Webb and D.G. Near JJ.A., April 10, 2018. Digest No. TLD-May212018004