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Indigenous - First Nations Elections Act (2). Buffalocalf v. Nekaneet First Nation
In Buffalocalf v. Nekaneet First Nation (Fed CA, 2024) the Federal Court of Appeal allowed an appeal from a federal JR, here in an indigenous election matter.
Here the court sets out three routes in which the Federal Court may have jurisdiction over indigenous electoral matters (though none of them apply in this case):III. ANALYSIS
1) The jurisdiction of the Federal Courts over First Nations disputes and electoral matters
[15] As statutory courts established pursuant to section 101 of the Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, Appendix II (the Constitution Act), it is well established that the Federal Court and this Court only have the jurisdiction that is conferred upon them by statute; moreover, that statutory jurisdiction must relate to the application of a law of Canada within the meaning of section 101 of the Constitution Act: see, inter alia, ITO Int’l Terminal Operators v. Miida Electronics, 1986 CanLII 91 (SCC), [1986] 1 S.C.R. 752; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62; Windsor (City) v. Canadian Transit Co., 2016 SCC 54 (Windsor). Sections 18 and 28 of the Federal Courts Act, R.S.C. 1985, c. F-7 (the FCA) further impose a statutory limitation on the Federal Courts’ exclusive jurisdiction to hear applications for judicial review: the review being sought must relate to decisions of a "“federal board, commission or other tribunal”", as this phrase is defined in subsection 2(1) of the FCA. According to that definition, it means "“any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament.”"
[16] In their initial submissions before this Court, both parties seem to take for granted that the Federal Court and this Court have the jurisdiction to deal with the application for judicial review brought by the respondents. The appellant, in particular, argues that the signatories of the Declaration were empowered to make the collective decision to sign and deliver the Declaration per section 8.07 of the Nekaneet Constitution, and are therefore a "“federal board, commission or other tribunal”" in the exercise of this authority. As for the respondents, they appear to be of the same view. While they do not squarely address the jurisdictional issue in their initial memorandum, they emphasized at paragraph 31 of their Notice of Application that a "“federal board, commission or other tribunal”" includes any body or persons "“purporting"” to exercise jurisdiction or powers conferred by or under an Act of Parliament, and as such, that the Declaration was made by such a body of persons. They also relied on the fact that the Chief Electoral Officer that the Declaration purports to appoint for the purpose of a general election is a "“federal board, commission or other tribunal”" in her own right.
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[18] There are three main routes to ground the Federal Courts’ jurisdiction over First Nations electoral matters: (a) the Band Council acting as a federal body; (b) the supervisory jurisdiction over First Nation’s elections; and (c) the writ of quo warranto.
[19] Band Councils established under the Indian Act, R.S.C. 1985, c. I-5, are a "“federal board, commission or other tribunal”" whose decisions are subject to judicial review when they exercise their powers over band members under a federal statute: Sebastian v. Saugeen First Nation No. 29 (Council of), 2003 FCA 28 at para. 51; Sioui v. Huron-Wendat Nation Council, 2023 FC 1731 at para. 30. Pursuant to the definition of "“council of the band”" found in subsection 2(1) of the Indian Act, a band council is not necessarily selected as a result of an election under the specific procedure set out in an Act of Parliament such as subsection 74(1) of the Indian Act or in the First Nations Elections Act, S.C. 2014, c. 5. It can also be chosen according to the unwritten custom of the Band or by their own Election Codes, as is the case here: Ratt v. Matchewan, 2010 FC 160 at paras. 104-106 (Ratt).
[20] When selected through custom, the powers exercised by First Nations in relation to the selection of their leaders are incorporated by reference in the Indian Act; as such, they are conferred by an Act of Parliament, and fall within the ambit of "“federal board, commission or other tribunal”": Canatonquin v. Gabriel, [1980] 2 F.C. 729 (FCA), 1980 CanLII 4125; Ermineskin First Nation v. Minde, 2008 FCA 52 at para. 33 (Minde); Bellegarde v. Carry the Kettle First Nation, 2024 FC 699 at paras. 50-52 (Bellegarde).
[21] Where the powers exercised by Band Councils are delegated to other decision-making bodies, agents or persons, they will still come within the purview of section 18.1 of the FCA. For instance, a Housing Authority acting as an agent of the First Nation to evict someone is reviewable under section 18.1. An Elections Board reviewing election appeals and complaints is also considered a "“federal board, commission or other tribunal”", provided its powers derive from legislation effected under the Indian Act. Similarly, an Elders Council’s decision to determine an elected official’s office "“vacated”" comes within section 18 of the FCA because it was statutorily empowered under a Band Constitution: see Cyr v. Batchewana First Nation of Ojibways, 2022 FCA 90 at para. 44; Opaskwayak Cree Nation v. Cook, 2023 FC 505 at para. 30; Minde at para. 33; Bellegarde at para. 29 and case law herein cited.
[22] There is also a second line of jurisprudence to the effect that Federal Courts have supervisory jurisdiction over Band elections when executed according to Band customs. This extends to decisions made by election appeal bodies: see Minde; Francis v. Mohawk Council of Kanasetake, 2003 FCT 115 (CanLII), [2003] 4 F.C. 1133 at paras. 11-18; Ballantyne v. Nasikapow, (2001) 2000 CanLII 16594 (FC), 197 F.T.R. 184 at paras. 5-6; Ratt at paras. 96-100. This type of jurisdiction has even been extended to decisions that are "“intimately related to the electoral process”", including an Election Officer removing a candidate from the ballot, a Council’s failure to take further steps after the body designated to resolve the dispute declined to act, and the disputed officeholder refusing to resign: see Thomas v. One Arrow First Nation, 2019 FC 1663 at paras. 13-14.
[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. At paras 24-36 the court assesses related case law and concludes:[37] In light of the foregoing, I fail to see how this Court (and the Federal Court) can have jurisdiction over the application brought forward by the respondents. In the exercise of their supervisory jurisdiction pursuant to section 18.1 of the FCA, the Federal Courts’ jurisdiction only encompasses decisions or actions of federal boards, commissions or other tribunals. In a similar context, this Court endorsed the Federal Court’s ruling that a Band council vote did not qualify as a "“decision”" for the purposes of section 18.1 of the FCA: Wanderingspirit at para. 17. If this is true of a vote taken at a Band Council meeting (although irregularly held), it must equally be true for a petition signed by a minimum of 35% of the eligible voters.
[38] Even if the Declaration could arguably be considered as a "“decision”" in the sense that it affects legal rights and causes prejudicial effects, assimilating a grass-roots petition to dissolve the Government for non-election reasons to a federal body would be an impermissible stretch. Indeed, neither Justice Grammond nor the parties substantiated this claim with any precedent. While the case law has extended the notion of "“federal board, commission or other tribunal”" to all sorts of decision-making bodies exercising delegated authority from Band Councils, I am unaware of any decision where a specified threshold of the eligible electors (let alone petitioners) have been granted that status. The fact that the Declaration (and the anticipated new election) flows from custom law incorporated into federal statute law is not sufficient. To be subject to judicial review before the Federal Court or the Federal Court of Appeal, there must still be a "“decision”" made by a "“federal board, commission or tribunal.”"
[39] For all of the foregoing reasons, I am therefore of the view that the Federal Court erred in concluding that it had jurisdiction to judicially review the Declaration dissolving the Nekaneet Government.
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