A federal court judge has ruled that the N.W.T. Acho Dene Koe First Nation chief and council overstepped their powers when they extended their term of office last year.
The judgment could have ramifications for other First Nations whose elections were postponed or cancelled in light of the COVID-19 pandemic.
The Acho Dene Koe First Nation government offices are in Fort Liard, N.W.T., where most of its 550 or so members also live. The First Nation is not governed by Indian Act regulations around the election of chief and council.
Through a series of resolutions passed by the Acho Dene Koe First Nation between April 20 and Dec. 7, 2020, a regular election for chief and council scheduled for June 8, 2020 was postponed until April 14, 2021, and then later to April 26 after an outbreak of COVID-19 in the community of Fort Liard, N.W.T.
Regulations authorized deferral, chief and council say
Chief and council justified the deferral of the election — and the extension of their terms of office — by saying they were able to do so according to their own customs, and that they were authorized to do so under the First Nations Election Cancellation and Postponement Regulations which came into force on April 8, 2020.
That temporary regulatory option under the Indian Act and the First Nations Election Act was introduced by the federal government to protect the health of First Nations communities during the pandemic.
In a statement at the time, Minister of Indigenous Services Marc Miller said, "We have recommended that First Nations with upcoming elections not proceed with elections at this time, due to the current public health risks associated with large gatherings."
The regulations, Miller stated, allowed "First Nations leaders to continue exercising their roles and duties within their communities for up to six months, with a potential extension for an additional six months, as they focus on keeping their communities safe in the face of COVID-19."
Federal Court Justice Sébastien Grammond acknowledged in his April 1 ruling that those regulations allowed First Nations whose elections are governed by the Indian Act and the First Nations Elections act, to "cancel or postpone elections and to extend the term of their council" in light of the public health emergency.
– Federal Court Justice Sébastien Grammond
The council of Acho Dene Koe First Nation did not have the power to extend its own term of office.
Section 4 of those regulations allow for a First Nation governed by its own custom election code, such as the Acho Dene Koe First Nation, to do the same "if it is necessary to prevent, mitigate or control the spread of diseases on its reserve, even if custom does not provide for such a situation."
Legal challenge claimed section of regulations invalid
But on Oct. 22, 2020, Acho Dene Koe First Nation member and former chief Floyd Bertrand filed a legal challenge to chief and council's decision to postpone the election, arguing, among other things, that the regulations outlined in Section 4 are invalid, and that Acho Dene Koe election customs do not allow chief and council to extend their terms, or to postpone an election.
Justice Grammond agreed with Bertrand on both counts.
"Acho Dene Koe's customary law requires elections to take place every three years and does not authorize the council to extend its own term of office," Grammond wrote.
"The council of Acho Dene Koe First Nation did not have the power to extend its own term of office."
In reaching this conclusion, Grammond considered and rejected arguments made by the First Nation in support of its authority to extend terms of office. Among those arguments was the notion that under principles of self-government, the Acho Dene Koe were within their rights to be flexible on election customs.
But Grammond wrote that "self-government does not translate into unlimited powers for First Nations councils."
"Rather, where First Nations have not enacted positivistic laws, self-government manifests itself through the broad consensus of the community."
Grammond cited the three-year term of the previous four elections in the community as evidence for a three-year term being the Acho Dene Koe custom. Grammond found no evidence of broad community support for the idea that council could extend its term of office without an election.
"Any assertion of 'flexibility' or an open-ended power to extend the term of office must be tested against what we know of the community's views…. Acho Dene Koe members expect to have the opportunity to choose their leaders at fixed intervals," Grammond wrote.
"For more than a decade, the interval has been three years."
Section 4 of regulations invalid: Justice
After concluding Acho Dene Koe customs do not allow for council to extend its term of office, Grammond considered arguments around the notion that the First Nation was authorized under Section 4 of the First Nations Election Cancellation and Postponement Regulations to make the extension in light of the COVID-19 pandemic.
After reviewing case law, Justice Grammond concluded that the federal cabinet overstepped its powers under the Indian Act when it enacted the regulations, and that Section 4 of the regulations — Elections According to Custom — is invalid, regardless of how well-intended the regulations or their application may be.
Grammond wrote that despite the government's intention to fight the pandemic by allowing First Nations to cancel or postpone elections, it did not have the right to do so under the Indian Act.
Fixed or maximum terms of office are crucial components of democracy.
– Federal Court Justice Sébastien Grammond
"In a nutshell, the government is asking me to tolerate an invalid exercise of power because it was done for a good reason," Grammond wrote.
"This is simply incompatible with the rule of law, which requires that every exercise of state power find its source in legal rule … Going down that road would involve courts in giving their blessing, after the fact, to unlawful government action based on its desirability from a policy perspective."
By ruling Section 4 invalid, Justice Grammond did not have to consider other objections raised by Bertrand regarding the application of the regulations in Fort Liard.
In his judgment, Grammond noted that "for members of the many First Nations who have chosen to select their leaders by democratic means, the ability to vote is a fundamental interest…. Fixed or maximum terms of office are crucial components of democracy."
In his decision, Grammond ruled that with elections in Fort Liard among Acho Dene Koe members expected shortly, there was no need to quash the original decision to extend the term of council's office.
Other First Nation members may have been deprived of right to vote
Grammond wrote that, despite the close proximity of the election to his ruling, which could be understood to render the need for a ruling moot, he took on the case for its other merits.
First, Grammond wrote that the case would "clarify important issues with respect to the effect of the COVID-19 pandemic on First Nation's electoral processes" in the context of the validity of the First Nations Election Cancellation and Postponement Regulations.
Second, Grammond wrote that the case clarified the Acho Dene Koe First Nation's right to postpone elections in the future, if the regulations in question are renewed.
Grammond wrote that he was asked by the attorney general to suspend his decision on the invalidity of the regulations for 90 days, while Bertrand asked for any suspension to not exceed 30 days.
"I am sensitive to the implications of this judgment not only on the federal government, but also on First Nations that may have availed themselves of the powers granted by the Regulations and will have to hold elections on short notice," Grammond wrote.
"On the other hand, I cannot ignore the fact that members of such First Nations have been illegally deprived of the opportunity to vote for the selection of their leaders."
Grammond suspended the declaration of invalidity for 60 days, as of April 1.
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