NATIVE PEOPLES |
Elections |
Gabriel v. Mohawk Council of Kanesatake
T-33-02
2002 FCT 483, Tremblay-Lamer J.
29/4/02
15 pp.
Application for interlocutory order setting aside resolution of Mohawk Council of Kanesatake removing James Gabriel as Council Grand Chief--Applicant also wishing to be reinstated as Grand Chief until final order rendered--Judicial review proceeding commenced by applicant touching sensitive issue of process by which Council members may be selected or removed for reasons of non-confidence--Issue and events surrounding applicant's removal as Grand Chief have divided Mohawk Community of Kanesatake--Prior to 1991, selection and appointment of Grand Chief and other chiefs made by Six Nations Traditional Hereditary Clan Mothers in accordance with Band custom--In 1992, Draft Election Code (calling for democratic election of Council members, using secret ballot) adopted in principle by Band--Applicant first elected Grand Chief in 1996, re-elected in 1998, 2001--New Council members elected in 2001 elections did not share applicant's views, focussing on public accountability rather than police and security matters--At special public meeting held in December 2001, majority voted for removal of applicant as Grand Chief, only those residing in Kanesatake or Oka being allowed to vote--Next day, Council adopted resolution accepting special meeting vote, also deciding Steven Bonspille would act as interim Grand Chief until either by-election or next regularly-scheduled elections--RJR-- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 applicable: serious issue; irreparable harm; balance of convenience--Motion allowed--As to serious issue: strong prima facie case resolution dismissing him based on vote excluding non-residents illegal as discriminating against non-residents: Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203--Furthermore, strong prima facie case no custom for dismissing Council members by votes of non-confidence--Council resolution herein not adopted in accordance with Election Code--Any electoral process not respecting Code not appearing to represent generally-accepted practice and should not be viewed as Band custom--Serious issue raised--As to irreparable harm, if Court did not grant injunction and applicant subsequently succeeded with application for judicial review, would not be entitled to relief normally available to employees who have been dismissed--Further, position of Grand Chief prestigious one; loss of prestige not compensable in damages--Also would mean would not have served most of his term-- Balance of convenience favouring applicant--Court not convinced granting of injunction would exacerbate already explosive situation--Difficult to conclude consensus on removal of applicant in event of new vote--As applicant removed from office and replaced without by-election being called, pressing that applicant be allowed to resume his duties as Grand Chief until final decision made herein--Finally, respondents' actions might be seen as undermining new democratic system implemented in 1992.