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First Nations don’t live in a harmony hut | Rob Louie

Wednesday, July 27, 2022 @ 3:00 PM | By Rob Louie

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Rob Louie
Proceeding into a precarious situation without support is not advisable; however, that is the inauspicious position that many band members in Canada find themselves when attempting to resolve a grievance within their First Nation. The most common internal grievance process relates to First Nation elections. Leaving aside the problem of vote buying for another day, when it comes to First Nation elections, a band member’s consternation usually relates to the rules of an election process not being followed, or an election code being changed unbeknownst to them.  

A First Nation election appeal typically looks like this: an electoral appeal body is comprised of a lawyer hand-picked by the band manager, or a few band staff and a hand-picked lawyer; the First Nation is named as a nominal party and represented in the electoral appeal by another hand-picked lawyer; the incumbent chief and council pay their lawyers out of band funds; and the incumbents that ran in the election are at the centre of the election appeal.

Since the average band member appealing an election cannot afford a lawyer, s/he proceeds without legal representation and without band resources. It is like going into battle without armour. A search on any legal database of band members that represent themselves will show that they rarely emerge victorious. Such a loss also has collateral consequences. The consequences of questioning leadership — be it in an election or at the band office — results, at times, in termination of employment, withdrawal of educational tuition or financial support, eviction, or a denial of benefits for things such as firewood in the wintertime.

Rhonda Camplin, an Indigenous lawyer based in Calgary, weighed in on the access to justice issue for band members. “Not only is there a financial cost, but there is also an emotional cost where the band member is often left feeling defeated, deprived of being heard and left frustrated and hopeless.” She added that the upshot is “chief and council are not held accountable, and infractions continue to occur.” Camplin believes in giving back to Indigenous communities to help them overcome some of these challenges. She is also calling on the legal community to take another look at band members that demand good governance because “part of reconciliation is helping those band members who can’t get access to justice.”

To even the odds, the Band Members Alliance and Advocacy Association of Canada (BMAAAC, pronounced bee-mack) was created and registered with Corporations Canada on Feb. 22, 2019. It is the only national non-profit organization dedicated to helping band members get access to justice to hold their elected band council accountable. Since its inception, BMAAAC has brought 19 cases to court by working with lawyers in B.C., Alberta, Saskatchewan and Ontario, so they can provide legal representation for band members vis-à-vis their band council. This is accomplished on a pro bono basis or on a significantly reduced rate with the former being 90 per cent of the time. BMAAAC also provides some of the preparation work and covers the costs for legal opinions and demand letters for band members. Its ability to cover costs comes from donations and membership fees. BMAAAC is now applying for intervener status at the Supreme Court of Canada in Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 5. The central issue in Dickson is the applicability of the Charter to Aboriginal governments. Should Canada’s top court grant intervener status, Vancouver lawyer, Ian Knapp, will represent BMAAAC.

Knapp, a partner at Mackenzie Fujisawa LLP, took BMAAAC’s first case in 2020. BMAAAC helped an Alberta band member from the Samson Cree First Nation. In this case, the chief and council made a change to its election code by implementing a $1,000 appeal fee without membership approval. A band member claimed that her band council had no authority to unilaterally add in a $1,000 non-refundable appeal fee, especially since the average total income among Samson Cree is only $19,581. After consulting with BMAAAC, Knapp agreed to provide legal representation to the band member. With Knapp now in her corner, the leadership of Samson Cree First Nation agreed to hold a band meeting to discuss the appeal fee. Band members of Samson Cree began to exercise their voice on the matter.  

Last year, access to justice was problematic for a member of Alberta’s Chiniki First Nation (CFN). So, she contacted BMAAAC after she became frustrated at the decades-old “custom” that developed wherein it is permissible for her incumbent chief and council to seek re-election. While on the face of it, this custom sounds reasonable but for the fact that this custom also holds that any challenge to the outcome of an election had to be brought to an election appeal body — an appeal body that consisted of the incumbent chief and council along with the band councils of Wesley First Nation and Bearspaw First Nation. These three First Nations collectively make up the Stoney Tribal Council. In other words, a candidate’s appeal would be decided, in part, by their competition.

BMAAAC discussed the nemo judex principle with prominent Edmonton lawyer, Evan Duffy. Duffy, a partner at Bailey, Wadden and Duffy LLP, helped fulfil BMAAAC’s mandate significantly by taking cases that had a reasonably high chance of success. So, he agreed to provide the band member with legal representation in Labelle v. Chiniki First Nation, 2022 FC 456, because this custom went unchallenged hitherto. In deciding this matter, Federal Court Justice Paul Favel ruled that “one of the circumstances where the principle of nemo judex will be violated is where a decision-maker has or is perceived as having a pecuniary or personal interest, either direct or indirect, in the outcome of the hearing before them. In the present case, I find that the (CFN Council) had both.”

Justice Favel saw fit to add, “It should not be open to successful candidates to decide whether the election, which affords them financial benefits, prestige, and authority, is invalid.” CFN made one last-ditch effort hoping to persuade the court to exercise its discretionary power under subsections 18.1(3) and 18.1(4) of the Federal Courts Act to withhold relief. According to counsel for CFN, it would be a waste of time and resources if the court remitted the matter back to the Stoney Tribal Council. Justice Favel disagreed. Labelle’s application for judicial review was not only allowed, but thanks to Duffy, he helped the CFN membership get their voice back.

Duffy also provided pro bono representation to BMAAAC and a band member from Gull Bay First Nation in Ontario. Together, they filed an application for judicial review that pertained to an election cancellation at the respondent Gull Bay First Nation. The cancellation was made pursuant to the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases). At the time of filing the application, portions of the Regulations were already declared ultra vires by the court. The applicants were seeking a similar declaration in relation to the portion of the Regulations that applied to the Gull Bay First Nation. It was brought to clarify an important governance issue regarding the validity of the Regulations and the ability of a band council to unilaterally extend their terms in office.

The application had significant merit as the Regulations were clearly ultra vires. However, after the application was filed, Parliament adopted declaratory legislation under the Budget Implementation Act, 2021, to validate the Regulations, and all steps taken pursuant to them. This was sweeping declaratory legislation that largely defeated the application. BMAAAC promptly proposed to discontinue the application on a without costs basis, due to this change in the law. The application did not even make it past the affidavit stage.

BMAAAC submitted that they acted reasonably in offering to discontinue this matter without costs once it became apparent that the change in law foreclosed the arguments on the application. Gull Bay argued, however, that it should be compensated for the expenses that it did incur. The chief estimated legal fees to be around $100,000. Counsel for Gull Bay then submitted a 500-page motion for $25,000 representing about one-third of what it cited as its actual costs through the entire process. At one point, their demand dropped to $10,000.

Duffy replied on behalf of BMAAAC that Gull Bay's leadership chose to incur expenses that were not necessary under the circumstances. He reiterated, “Their materials demonstrate what happens when one party has seemingly unlimited access to band funds for their legal fees and therefore does not hesitate to submit a 500-page motion record to address a discontinued proceeding.” He went on to say that this case illustrates why individual band members are at a significant disadvantage “when advancing their basic rights against their First Nation.”

Duffy also pointed out that opposing counsel took a position that is largely unsupported in law, demanding costs of $10,000, which exceeds what would typically be ordered on entire judicial review applications. “I submitted to the court that if there is going to be a costs award, it should favour BMAAAC in an amount fixed at $250 to assist with its public interest mandate in obtaining access to justice for Indigenous individuals in Canada.” The court agreed with Duffy and awarded BMAAAC the $250 to cover its filing fee and disbursements.

It is fair to say that a lawyer is uniquely trained to detect errors in a set of facts and then apply relevant statutes and case law thereby creating a path towards judicial relief. Yet, the average band member in Canada does not have this specialized training. The same could be said about the average Canadian, too. However, the difference is that the average band member carries an added burden of poverty, low education, suicide and over-representation in prisons while at the same time recovering from historical abuse. So, without legal representation, what realistic chance do band members have against chief and council who control their money and resources? For many band members in Canada, the battle is not just with the Crown, it is also with their own leadership.

Perhaps reconciliation within Indigenous communities needs to take place before reconciliation can happen with Canada. That can be done with the legal community’s assistance thereby ensuring that access to justice for band members is not just a mellifluous theory.  

Rob Louie is a constitutional scholar specializing in constitutional law and president of Band Members Alliance and Advocacy Association of Canada.

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