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Judicial Review - Prerogative Remedies - Quo Warranto. Buffalocalf v. Nekaneet First Nation
In Buffalocalf v. Nekaneet First Nation (Fed CA, 2024) the Federal Court of Appeal considers a rare 'quo warranto' JR issue:[23] Also connected to the Courts’ supervisory jurisdiction over Band elections is the power to review disputes when there is no decision from a "“federal board, commission or other tribunal”", but where the prerogative writ of quo warranto is sought. This is the third ground of federal courts’ jurisdiction over First Nations electoral matters. Quo warranto is a challenge to the right of a public office holder to hold office, and can include challenging the authority that one claims to act with: see Ojibway Nation of Saugeen v. Derose, 2022 FC 531 at para. 26; Marie v. Wanderingspirit, 2003 FCA 385 at para. 20 (Wanderingspirit); Key First Nation v. Lavallee, 2021 FCA 123 at para. 59; Lake Babine Indian Band et al. v. Williams et al., (1996) 194 N.R. 44 (F.C.A.) at paras. 3-4; Standingready v. Ocean Man First Nation, 2021 FC 434 at para. 13. The alleged illegality must pertain to the person’s eligibility to hold office, or to the electoral process itself. It is unavailable for alleged illegalities that are unrelated to a person’s eligibility, and is not a tool to express political grievances. It cannot be used to assert that office holders have made unwise decisions or misused powers entrusted to them.
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[29] It is interesting to note that this Court accepted that there was no "“decision”". However, such a decision was not necessary in the circumstances, because what was challenged was the authority of the voted-in councillors to exercise authority in place of the voted-out group. The Court therefore relied on its quo warranto jurisdiction: "“[a]lthough their application was for a declaration and not expressly for a writ of quo warranto, the substance of what they were seeking was a declaration equivalent to the prerogative writ of quo warranto”" (at para. 17). As such, the Court had jurisdiction per paragraph 18(1)(a) of the FCA. As outlined above, this Court stressed that quo warranto is an exception to the normal rule that judicial review must be conducted on a decision of a federal board, commission or other tribunal (at para. 20).
[30] On the basis of this short summary, it is easy to understand the important distinctions between the case at bar and Wanderingspirit. The application for judicial review of the Declaration made by the newly-elected Council and Chief is not a challenge to the right of a public office holder to hold office, and therefore cannot be assimilated to a quo warranto. It is true that the person named as Chief Electoral Officer is mentioned in the Notice of Application, but nothing turned on that nomination and neither the appellant nor the respondents make much of that nomination or genuinely analyze her position.
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