The Mohawk Council of Kanesatake (MCK) by-election has been nullified after the appeal board issued a bombshell ruling that has plunged Council into deeper chaos and unseated Serge Otsi Simon just weeks after a decisive victory.

“It’s all BS. They really didn’t do their due diligence on this one. They just handed me a huge, huge opportunity,” said Simon, who vowed to take the matter to court, the only remaining recourse.

With the possibility of legal action from Simon or a quorum of MCK chiefs hanging over Council, MCK grand chief Victor Bonspille – who has argued for deference to the appeal board – cancelled this week’s Council meeting and said none will take place as long as “this blatant disregard and disrespect for the Kanesatake electoral code continues,” according to an email obtained by The Eastern Door.

In the message, which was sent to Council chiefs and copied select staff and the appeal board, Bonspille insisted that Council meetings the grand chief does not call or attend are illegal and that any band council resolutions (BCR) arising from these meetings are invalid.

An unnamed candidate in the January 21 by-election appears to have launched an appeal that was the basis for the appeal board decision, as one of its complaints alleges that a candidacy package was not provided to the complainant until the day of voting.

Candidate Shirley Bonspille, grand chief Bonspille’s sister, did not reply to a request for comment. The remaining candidate, Lourena Montour, simply expressed relief that the election is finally over.

In its ruling, the appeal board primarily homed in on a litany of supposed procedural failures by Kahnawake-based PlanIt Consulting and Communications, which was under contract to manage the by-election, arguing that the irregularities it found were grievous enough to warrant drastic action.

“Obviously, there were some unexpected situations that arose. We’re sticking to the procedures that we followed and we’re still going to stand by those,” said Maris Jacobs of PlanIt, who served as the by-election’s chief electoral officer.

Meanwhile, the beleaguered consulting firm has also been decried by Simon for appointing an appeal board without holding a public meeting, despite this being mandated by the Custom Electoral Code that steers local elections.

Section 13.2 of the code reads, “A special public meeting will be held in order to select an appeal board. ln order to avoid conflicts of interest, members will be selected only once the candidates have been confirmed and prior to the election.”

Simon has accused the appeal board members of bias, claiming at least one member has attacked him on social media going back years.

“I didn’t even have a chance to question the candidates of the appeal board at the time, which I could have done at a public meeting to point out conflict of interest or ask them questions about how they feel about one thing or another and whether they can remain unbiased,” said Simon. “I never got that chance as a candidate.”

Two of three appeal board members, Eugene Nicholas and Gabrielle Lamouche, publicly agreed with criticisms of Simon’s candidacy and the timing of the election in Facebook comments posted August 31, just two weeks before being named to the appeal board.

“They didn’t really hide their intentions since they self-appointed themselves to this board,” said Simon. “It was clear they were going to snuff out any voices that voted for me if I was to win the election. They just snuffed out 105 people’s votes with one decision.”

Anticipating trouble generating enough interest to form an appeal board, PlanIt announced a public meeting would only be held if more than five Kanehsata’kehró:non – three core members and two alternates – expressed interest in joining.

“We were following procedures that allowed us to form an appeal board, which was important, especially since past elections hadn’t had that,” said Jacobs.

Nicholas and Lamouche did not respond to interview requests. The third appeal board member, Mary Hannaburg, declined to participate.

It is not the first time the appeal board has played a starring role in the drama of the Kanesatake by-election, which was held to replace Teiawenhniseráhte Tomlinson after he resigned early last year to head up the Kanesatake Health Center (KHC).

Originally slated for September 24, the by-election was abruptly suspended on September 17 – after advance voting had already begun – at the direction of grand chief Bonspille.

Bonspille insisted at the time that it was the appeal board that made the decision. However, this was outside the bounds of the appeal board’s authority at a time when it was only meant to be considering appeals to decisions pertaining to contestations of candidate eligibility, according to Jacobs.

However, PlanIt accepted the direction of the grand chief because he was the one who signed the contract with PlanIt on Council’s behalf.

This triggered a power struggle at Council, with a quorum of four of six MCK chiefs fighting to wrest back control over the process and reinstate a by-election that the community had approved at a public meeting in early 2022.

An October 4 BCR to resume the by-election was approved in the grand chief’s absence. However, it was not initially accepted by PlanIt staff, who were unsure how to proceed. Ultimately, a lawyer’s letter and subsequent meeting persuaded the firm that the BCR was binding and that it was appropriate to move forward.

The election resumed with a January 21 voting day. Simon garnered 105 votes to Shirley Bonspille’s 55 and Montour’s 42. The weeks Simon spent on Council since were tense, in part owing to acrimony between Simon and grand chief Bonspille, who bested former grand chief Simon in the 2021 general election.

However, this has been undone with the appeal board decision. While some complaints were not determined to violate the electoral code, others were affirmed.

The appeal board found that PlanIt did not send out mailings to alert eligible voters that new dates had been selected, instead posting the notice on social media, and that this impacted voter turnout, which was less than 10 percent. It also found that many band members, including at least some who live off-territory, received no notices at all, with the implication that this was also true of information relating to mail-in ballots.

“There was one round at the beginning,” said Jacobs. “Because we were resuming, we didn’t restart the entire process from the beginning. And again, if you want to refer to the code, we were following the code. With regard to public notices, we’ve followed what was in that document.”

Jacobs also said candidates were provided candidacy packages on nomination days despite the complaint to the contrary.

According to one item in the appeal, scrutineers were given behavioural consent forms to sign. Noting this is not required, the appeal board characterized this as an illegal overreach. It also concluded that an observer appointed by candidate Shirley Bonspille did not receive instruction. Finally, the appeal board confirmed that scrutineers were erroneously referred to as observers by the chief electoral officer on election day.

Section 1.13 of the Custom Electoral Code refers to the individuals tasked with observing the vote as “scrutinizers.”

The appeal board ruled that the section of the electoral code pertaining to counting procedures was breached. The board suggested that PlanIt did not fulfil its duty to count and cross-reference votes, adding that mail-in and mobile ballots were not identified.

In addition to critiques of PlanIt, the ruling seems to agree with a complaint that MCK chiefs Amy Beauvais and Brant Etienne interfered in the election by posting information on the Election Kanehsatake Facebook page on December 5 relating to the resumption of the election. While the page is widely used, Simon is its administrator.

Etienne objected to the idea that telling people about an election should be construed as interference. “I leave it up to people to see if that squares with them,” he said.

Finally, the appeal board found Simon himself to be in violation of campaign ethics rules for a January 12 open letter criticizing grand chief Bonspille, which the ruling characterizes as a clear violation of section 11.1.3, which prohibits smear campaigns and insists candidates stick to the issues.

Simon contests this, arguing that the grand chief was not part of the election and is therefore not covered by the rule. “As a candidate I have every right, and even more so as a band member, to criticize my sitting government for what it has or has not done. Good luck bringing that to federal court. You take away my right to have a say? I never criticized once any of my opponents. My platform was trying to redress what had been basically mishandled by grand chief and Council,” he said.

According to MCK chief Amy Beauvais, some on Council have concerns about parts of the ruling and are considering a legal review. Etienne similarly said that MCK is looking into the decision, adding that this outcome was predictable.

“I’m ashamed that a majority of Council has allowed it to get this far,” said Etienne. “I am deeply ashamed of that. It’s a failing on our part as a collective.”

Grand chief Bonspille characterized a legal review as inappropriate in an interview with The Eastern Door.

“My response to that is basically they’re not abiding by the electoral code that’s in place, and that they will be having a breach of it by interfering politically,” Bonspille said, adding that any challenge of the ruling will not be on MCK’s dime.

He confirmed his belief that the appeal board should have the last word. “According to our electoral code, that’s the final decision, and I’m going to respect that,” he said.

He refused to comment on the issue of Council meetings and whether they will be impacted.

According to Etienne, the climate at Council is similar to the way it has been for months.

“It’s really just a continuation of the same friction,” he said. “From day one, Victor’s whole modus operandi was to keep out Serge and to essentially put himself in a dictator’s position. This is just another example of that.”

According to Etienne, the quorum of chiefs has clarified that band council procedures outline that a majority of Council can hold a meeting and pass resolutions without the grand chief.

gmbankuti@gmail.com

Marcus Bankuti, Local Journalism Initiative Reporter, The Eastern Door