Bone v. Sioux Valley Indian Band No. 290 Council
T-2517-94
Heald D.J.
6/2/96
41 pp.
Application for judicial review to obtain declaration, writ of quo warranto, writ of mandamus, injunction under Federal Court Act, s. 18-Election for Band Chief, Band Council held on March 14, 1994 by Sioux Valley Indian Band No. 290-Prior to March 14, 1994, Band election procedures governed by provisions of Indian Act-Band considering reverting to set of election procedures based on Band custom-Two plebiscites held on June 28, 30, 1993 to demonstrate support of Band membership for repeal of s. 74 ministerial order-Majority of voters in favour of proposal-Sioux Valley Dakota Oyate Custom Election Code drafted to reduce Band's custom into recognizable form-By order dated February 7, 1994, Deputy Minister revoking ministerial order of December 14, 1989-On or after March 14, 1994, council of Band selected in accordance with custom of Band-Respondent Hall elected to office of Band Chief on March 14, 1994-Applicant appealing election of respondent Hall on basis residency requirement in Code, Regulations not met-Code, paragraph 7 requiring candidates for Band Council to have resided on reserve for past 12 months prior to election-Election Appeals Board ordering new general election be held-Respondent Hall refusing to step down as chief, respondent Band Council refusing to call new election-Whether applicant out of time in bringing application under Federal Court Act, ss. 18(3), 18.1(2)-Issue of limitation provision in relation to writ of quo warranto, writ of mandamus need not be determined-Court having jurisdiction to grant declaratory relief pursuant to application for judicial review under Federal Court Act, s. 18(1)(a), (3)-Election of Band Council conducted pursuant to Band custom-Whether Code, Regulations reflecting Band's custom-Definition of "elector" in Indian Act, s. 2 not containing requirement elector be resident on reserve-Respondents correct in submitting non-resident Band members should have been given opportunity to vote in plebiscites-Non-compliance with Department's policy having no effect on validity of Deputy Minister's order repealing s. 74 order-No clear evidence establishing which draft version of Code available to voters at time of plebiscite, whether or not contained residency clause-March 14, 1994 election held in accordance with Code-Custom of Band should not necessarily be written into Code, by-laws-Code valid, election having legal basis, results standing subject to ruling of Elections Appeal Board-Conduct of Band, in acquiescing in use of Code, generally acceptable to members of band, upon which broad consensus, therefore reflecting Band's custom-Code in force as of March 14, 1994-Sioux Valley Dakota Oyate Custom Elections Regulations not available to voters at time of plebiscites-Enacted ultra vires jurisdiction of Band Council as not submitted to community for approval contrary to enabling provision in Code-Order of Elections Appeal Board declaring new general election be held invalid as Board without jurisdiction to grant such order-Whether respondent Hall disentitled from holding office by virtue of residency requirement set out in Code-Not eligible to run for Chief if did not reside on Reserve for 12 months prior to election date-Respondent Hall did not reside on Reserve as of March 14, 1993-Not eligible to run as candidate for Chief in March 14, 1994 election, not entitled to hold office as Chief-Whether quo warranto should issue-One serious impediment to order of quo warranto: applicant acquiesced in respondent's candidacy for office of Band Chief-Fact sufficient to render order in nature of quo warranto inappropriate-No basis for Court to make order in nature of mandamus requiring Band Council to hold new general election-Application allowed in part-Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5)-Indian Act, R.S.C., 1985, c. I-5, s. 74.