Following appeals concerning the Kátł’odeeche First Nation's 2021 election, an independent adjudicator has ordered that a new election for chief be held.
The adjudicator cited a violation of the Charter of Rights and Freedoms. In response, the band council is questioning whether use of the Charter is appropriate in challenging its decisions and electoral codes.
The Northwest Territories-based First Nation's council is considering taking the issue to the Supreme Court of Canada.
Last year, Elaine Auger was prevented from running for chief because the First Nation's election requirements state candidates must have lived in the community for at least two years. As a result, incumbent April Martel secured the position without a contest.
Auger went on to appeal the decision. The First Nation's custom election code – a legal framework communities can adopt as an alternative to the one set out in the federal Indian Act – required its council to settle the issue through an appeal adjudicator.
Elizabeth Gaudot, another Hay River resident, also appealed the election, citing issues around voting access.
The adjudicator was Michael Hansen, a lawyer based in Hay River.
On May 26, Hansen dismissed Gaudot's appeal but upheld Auger's, stating the residency requirement goes against the Charter.
He ordered a new election and declared that, as the rule did not comply with the Charter, the section of the First Nation's election code concerning residency held "no force or effect."
The Kátł’odeeche First Nation's leadership declined to comment directly on proceedings when reached by Cabin Radio.
However, on May 29, the band council announced it would hold a membership meeting to review issues around voting access and residency.
In the final paragraph of the notice, the council said it would seek members' support to intervene in an upcoming Supreme Court of Canada hearing in a related case.
The case, the First Nation's council stated, concerns "the ability of Indigenous governments to self-determine their own custom election codes, and to shield the customs and traditions of Indigenous communities set out in custom election codes from the strict application of Canada's Charter of Rights and Freedoms."
Intervention in a Supreme Court case is an option for groups who may be affected by the ruling to speak out and offer their perspective during the trial.
The Kátł’odeeche First Nation is suggesting that the upcoming Dickson case, first reported by the CBC, might affect future challenges to its election code or leadership decisions that invoke the Charter.
In the Dickson case, Cindy Dickson, who wishes to run for a seat on the Vuntut Gwitchin First Nation's council in the Yukon, is opposed by the leadership of that First Nation over a similar residency issue.
In a statement issued in 2021, Chief Dana Tizya-Tramm expressed relief after an initial provincial ruling upheld the community's case.
“The court’s decision confirms what we at Vuntut Gwitchin government felt very strongly was not a human rights violation, but a normal, practical requirement of good governance enacted collectively by and for Vuntut Gwitchin First Nation citizens," she said.
"I hope this decision brings clarity for other Nations in Canada to some decades-old concerns about the Charter’s relationship to modern treaties and self-government."
However, Dickson appealed that ruling and the case has reached the Supreme Court.
Self-governance in Indigenous communities is being newly examined as Canada and the Northwest Territories, among others, pledge implementation of the UN Declaration on the Rights of Indigenous Peoples.
Indigenous law specialists say the Dickson case may have far-reaching implications. On that, lawyers for both Elaine Auger and the Kátł’odeeche First Nation are in complete agreement.
"It could change the whole landscape, change how so many future cases will go," said Evan Duffy, Auger's legal representative.
"It's going to determine how the Charter applies to First Nations people and especially to their government codes... it's a huge case."
So how would this affect the Kátł’odeeche First Nation's elections?
"Intervening in this case wouldn't change the outcome of the adjudication, but would clarify how the Charter applies to future First Nation elections in Canada," said Larry Innes, the legal representative for the First Nation.
"The Dickson case has been before the courts for years. If KFN was to appeal the adjudicator's decision to the federal court, it might take a long time to get a final decision."
Whether KFN will become involved in the case, or decide to oppose Hansen's order through its own federal litigation – or neither – is still unclear.
That outcome will depend on a June 9 membership meeting, where all members will be encouraged to weigh in.
Caitrin Pilkington, Local Journalism Initiative Reporter, Cabin Radio