Federal Court to decide whether N.W.T. First Nation had right to postpone elections during COVID-19

·4 min read
Floyd Bertrand, a former chief of Acho Dene Koe First Nation, is the applicant in the case. (Submitted by Floyd Bertrand - image credit)
Floyd Bertrand, a former chief of Acho Dene Koe First Nation, is the applicant in the case. (Submitted by Floyd Bertrand - image credit)

The decision of a First Nation near Fort Liard, N.W.T. to postpone its elections during the pandemic will be reviewed by Canada's Federal Court this week.

The court will decide whether Acho Dene Koe First Nation had the authority to do so. If the judge finds they did not, the chief and council could be forced to immediately vacate their positions.

At the heart of the case is a new set of federal regulations passed last April letting First Nation governments postpone their elections for up to 12 months during the pandemic.

Acho Dene Koe's chief and council used the regulations to push back the elections originally scheduled last June a couple of times, due to what they call a "serious risk" of spreading COVID-19 within the community.

Floyd Bertrand, former chief of Acho Dene Koe First Nation, is the applicant in the case.

His lawyer is arguing the decision to use Canada's recent regulations to extend chief and council's terms was "contrary to custom, [and] made without any consultation," and "breached their duty of procedural fairness to … members," according to court documents.

"They could have consulted their members. Instead … they ignored the applicant's petitions and letters, they concealed the issue from their members and, in a self-serving manner, voted to postpone the election with questionable authority," a memorandum of fact reads.

"While the pandemic will undoubtedly impact how an election is conducted, the crisis cannot be used in a matter that entirely deprives members of all their democratic rights for almost a year."

Bertrand and his lawyer were unavailable for interviews before the time of publication.

First Nation to argue election postponement is valid

Madelaine Mackenzie, the First Nation's lawyer, told CBC the First Nation had the right under law to act for the safety of their people — and that the regulations were used for that purpose.

The judge will also evaluate some unwritten conventions the First Nation has used in the past to postpone elections due to an emergency.

Acho Dene Koe postponed an election in 2007 so the council could continue self-government negotiations — something Mackenzie acknowledges is a different type of challenge, but still should be considered.

Since the judicial review was launched, Acho Dene Koe First Nation has set an election date of April 26.

The sign at the top of the hill welcoming people into Fort Liard, N.W.T. Most band members of Acho Dene Koe First Nation live in that community.
The sign at the top of the hill welcoming people into Fort Liard, N.W.T. Most band members of Acho Dene Koe First Nation live in that community. (Anna Desmarais/CBC )

The election will go ahead, a press release dated Feb. 10 says, "as long as there are no new confirmed COVID-19 cases in Fort Liard or reasonable risks of further spread."

Fort Liard, where many band members reside, was the site of a COVID-19 outbreak in January, resulting in a mandatory 14-day containment order.

Mackenzie said the judge will hear the case, but could ultimately decide whether it becomes moot in a couple of months after the election passes and the federal regulations expire.

National non-profit set to intervene in case

Arguments from national not-for-profit group The Band Members Alliance and Advocacy Association of Canada (BMAAC), which is an official intervenor in this case, will also come before the courts this week.

The group works with First Nations to hold their chiefs and councils to account when alleged unethical behaviour or financial governance issues are at play.

"These regulations have a considerable impact on the democratic rights of band members across Canada." - Motion from the Band Members Alliance and Advocacy Association of Canada

In their motion for intervenor status, the organization notes that this is the first time the Federal Court of Canada will be evaluating the federal government's regulations on election postponement during the COVID-19 pandemic, despite having "significant impact on band members across Canada."

"We have seen a range of band councils utilize the [regulations] to unilaterally extend their terms in office," the motion reads. "These regulations have a considerable impact on the democratic rights of band members across Canada."

Rob Louie, the organization's chief executive officer, said this case could create important precedent for how much information and consultation has to be done with band members before the chief and council make an executive decision.

"Band members can point to this doctrine in other cases where council might be making a decision that affects the rights of their constituents," he said.

The federal court will hear the case on March 22 and 23.