When Canada implemented regulations that allowed First Nations to delay or postpone their elections as the coronavirus pandemic hit, chief and council of the Acho Dene Koe First Nation drew on those new regulations to delay their election twice.
Former chief Floyd Bertrand challenged his Nation’s election decision through court action initiated last October against both his sitting chief and council and Canada.
On March 22, Federal Court Justice Sebastien Grammond heard a full day of arguments from legal counsels representing Acho Dene Koe First Nation and the federal government, as well as legal counsels representing Bertrand and the Band Members Alliance and Advocacy Association of Canada (BMAAAC).
Although Indigenous Services Canada’s “First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases),” implemented in April 2020, had been challenged in a number of applications for judicial review, this was the first time arguments were heard in court.
The regulations state First Nations can delay or postpone elections for no more than two six-month periods in order to “prevent, mitigate or control the spread of diseases on a reserve.”
Grammond pointed out that members of Acho Dene Koe First Nation do not live on a reserve. The band government is based in Fort Liard, NWT and it’s main community is the Hamlet of Fort Liard.
“You’re essentially asking me to disregard the text. It says for prevention of disease et cetera on reserves…. It’s on reserve and off reserve. That’s a difficult one,” said Grammond.
“In order to really give effect, the purpose of the regulations, which I submit are health and safety-based, requires a broader reading of the recognition that First Nation communities more generally face the heightened risk that are meant to be addressed by the regulations,” said Madelaine Mackenzie, legal co-counsel for Acho Dene Koe First Nation.
Grammond also pointed out that bylaws in the Indian Act appear to provide parallel powers to the new regulations. He noted 73.1.f., which allows Canada to make regulations to prevent the spread of diseases on reserves, and 81.1.a., which allows band councils to make regulations regarding health and to prevent the spread of contagious and infectious diseases.
“If they can make regulations with respect to the same issues, does it mean that the regulation here was kind of redundant or (in) other words could Acho Dene Koe have made the regulation under section 81.1.a.?” asked Grammond.
He also suggested that 81.1.a could be used by a band to extend its term in office.
Canada co-counsel Glen Jermyn confirmed that was possible, but stressed the “stop gap” aspect of the election postponement regulations and the need for a consistent approach with all First Nations.
“It’s taking a look at a situation that’s occurring across the country in an unprecedented pandemic that came to be in March of 2020 and the government looked at the situation and said this is a serious problem. It’s a serious problem for all First Nations. It’s a particularly serious problem for First Nations that are isolated with no or limited access to health care and, accordingly, the regulations are bought in to provide… an additional tool to deal with the situation,” said Jermyn.
He also stressed that the regulation meant that bands would not be without governance should their election dates fall during the pandemic in a time when important and urgent decisions were required.
Bertrand’s legal counsel, Orlagh O’Kelly, held that those bylaws in the Indian Act “could not be used to amend a custom” as Grammond ruled in a previous decision nor should they be able to grant power to First Nations to extend their terms of office and, by doing so, amend their election laws.
The Acho Dene Koe Nation contends it has a custom code that governs how elections are conducted, though that code has not been ratified.
Among the points being argued by O’Kelly is that Acho Dene Koe chief and council extended their terms of office without consulting with membership and was “contrary to custom.”
She also took exception to Canada’s argument that the regulations were as limited as possible.
“Limited from whose perspective? Because these certainly aren’t limited from the members’ perspective who lost their right to vote now for a year. The analogy is, can (Health) Minister (Patty) Hajdu under her public health authorities enact regulations for Cabinet to extend their terms in office? It’s something that most individual Canadians … would find offensive,” said O’Kelly.
BMAAAC legal counsel Evan Duffy argued similar points as O’Kelly, but focused on the broader implications.
“As can be seen from this case, this power can (be) exercised in the absence of consultation with grassroots band members and provides a benefit to elected leaders, even when the postponement is not needed,” stated Duffy in his written submission.
“BMAAAC submits that election postponements of this nature are increasingly common and is hoping that the Court can assist in clarifying these issues for future cases.”
BMAAC was granted intervener status. The newly-formed organization has as its mandate to advocate for band members who are experiencing financial and/or governance issues.
If the court determines the election postponement regulations are beyond Canada’s authority, Jermyn said Canada needed at least three months to “deal with any deficiencies in the regulations.”
However, O’Kelly said there was no evidence to justify three months. She was asking for 30 days.
When O’Kelly filed her court documents in October 2020, she had also been asking for Acho Dene Koe chief and council to vacate their positions immediately. However, Acho Dene Koe members are now scheduled to vote on April 26.
As an election date had been set, Mackenzie argued a decision on the case would have no practical effect and the court should decline to hear the matter.
“Fundamentally,” said O’Kelly in her written memorandum of fact and argument, “this application is about the limits of government authority during a public health pandemic and the manner in which fundamental democratic voting rights may be curtailed.”
Grammond reserved his decision for later but said he would be “quick, given the importance.”
By Shari Narine, Local Journalism Initiative Reporter, Windspeaker.com, Windspeaker.com