Rita Maud Smith (Plaintiff)
v.
The Queen and M. H. Manzer (Defendants)
Trial Division, Kerr J.—Halifax, N.S., April 11;
Ottawa, May 5, 1972.
Indians—Election of chief set aside—Special election of
new chief—Term of office, duration of—Indian Act, R.S.C.
1970, c. I-6, secs. 78(4), 79.
The election of the chief of an Indian band was set aside
pursuant to section 79 of the Indian Act and plaintiff was
elected chief at a special election held to fill the vacancy
pursuant to section 78(4).
Held, plaintiff's term of office was not for two years from
the date of the special election but only for her predeces
sor's unexpired term.
ACTION.
R. P. Muttart for plaintiff.
J. M. Bentley for defendants.
KERR J.—The parties in this action presented
a stated case to the Court, which reads as
follows:
STATED CASE'
WHEREAS the Plaintiff did commence this action
against the Defendants by filing with the Court at Halifax a
Statement of Claim on the 7th day of December, 1971;
AND WHEREAS on the said 7th day of December, 1971
the Plaintiff moved, ex parte, for an interim restraining
order to restrain the Defendants, their servants or agents
from causing, conducting, holding or so in any way aiding or
abetting the conduct or holdings (sic) of an election for the
office of Chief of the Annapolis Valley Band of Indians
until such date as the Learned Judge might set for the
hearing for an application for an interlocutory injunction;
and the said motion was dismissed with reservation of the
disposition of costs on the motion, by order of His Lordship
Mr. Justice Kerr dated December 13, 1971;
AND WHEREAS a Defence was filed herein on behalf of
the Defendants on the 12th day of January, 1972;
AND WHEREAS a Reply was filed herein subsequent to
the filing of the aforesaid Defence;
AND WHEREAS the parties hereto are mutually agreed
upon the following statement of facts for the consideration
of the Court:
1) The Plaintiff is a married woman residing at Bishop -
ville Road in the County of Kings and Province of Nova
Scotia and at all times material to this action was and is
the duly elected Chief of the Annapolis Valley Band of
Indians.
2) The Defendant, M. H. Manzer, is an employee and
agent of the Department of Indian Affairs and Northern
Development and at all times material to this action is the
electoral officer appointed by the Minister of Indian
Affairs and Northern Development pursuant to the regu
lations under and by virtue of the Indian Act of Canada.
3) M. H. Manzer was, at all material times, acting
within the scope of his duty or employment as a servant
of the Crown.
4) On the 22nd day of October, 1969, one Marshall
Smith was elected Chief of the Annapolis Valley Band.
5) On or about the 30th day of June, 1970 the election
of Marshall Smith was set aside by order-in-council.
6) A special election was held pursuant to Section
78(4) of the Indian Act pursuant to which the Plaintiff
Rita Maud Smith was elected Chief of the Annapolis
Valley Band on the 29th day of September, 1970.
7) By letter dated October 8, 1971 over the signature
of V. M. Gran, Chief, Band Management Division, and
under the letterhead of the Department of Indian Affairs
and Northern Development, it was stated that the term of
office of the Plaintiff, Rita Maud Smith, was limited to
the unexpired term of Marshall Smith, and further stated
that the Plaintiff's term of office would expire on Novem-
ber 29, 1971. This letter was presented to the Plaintiff by
the Defendant M. H. Manzer and adopted by him as his
instruction to the Plaintiff.
8) Subsequently, notice was given by the Defendant M.
H. Manzer of an election for the offices of Chief and
Councillors of the Annapolis Valley Band; whereupon,
the Plaintiff did commence an action against the Defend
ants claiming:
a) an interim restraining order; and
b) an interlocutory injunction; and
c) a declaratory order of the Court confirming the two
year term of office of the Plaintiff from the date of her
election on September 29, 1970.
9) The action commenced not having been disposed of
prior to the election called by the Defendants, the Plain
tiff was nominated as a candidate in the election held on
the 21st day of December, 1971 and was elected Chief of
the Annapolis Valley Band of Indians at that election.
NOW THEREFORE THE PARTIES HERETO respect
fully submit the following questions to the Court for its
consideration and decision:
A. Is the term of office of Rita Maud Smith two years
from the date of her election on the 29th day of Septem-
ber, 1970?
B. If the term of office of Rita Maud Smith is not two
years from the date of her election on the 29th day of
September, 1970, is her term of office the unexpired term
of office of Marshall Smith?
C. If the answers to question A and question B are
"no", what is the term of office given to Rita Maud Smith
by virtue of her election on the 29th day of September,
1970?
THE PARTIES HERETO agree that the decision of
the Court herein should be by way of declaratory judg
ment and that the costs of this entire action and stated
case be awarded to the successful party.
WHEREAS the parties hereto do indicate their agreement
to the submission of the within stated case this 22nd day of
February, A.D., 1972:
Notwithstanding her second election the
plaintiff continued her action in this Court, con
tending that there is a real question as to what
her tenure of office as chief is. In that respect
counsel for the plaintiff made the following
submission in argument:
We believe it is pertinent to set out the Plaintiff's reason
for having commenced this action. As it is evident from a
reading of the Stated Case, the Plaintiff was elected to the
office of Chief of the Annapolis Valley Band to fill the
vacancy created by the removal of a former Chief. The
election of the former Chief had been irregular and the
Minister exercised his prerogative in declaring that election
invalid. The Indian Act contemplates such a contingency
and provides the authority to conduct another election
immediately. That election was held and the Plaintiff was
duly elected on the 29th day of September, 1970, fully
believing her term of office to be two (2) years as set out in
Section 78 of the Indian Act. Subsequently, of course, the
Defendant unilaterally concluded otherwise and caused
another election to be held against the wishes of the Plain
tiff. To mitigate her damages and to insure that the Annapo-
lis Valley Band would be both in law and in fact represented
by a Chief, she allowed her name to stand as a candidate in
this election—all the while protesting the legality of the
proceeding itself, but knowing full well the practical neces
sity of assuring the electorate that the affairs of the Band
were being protected regardless of the legality of the pro
ceeding. She had a reasonable certainty that she would be
again elected in the illegal election and that the performance
of her duties as Chief would be clothed with legality by
virtue of her prior election, the term of which would not
expire until September 29, 1972. Subsequent to that date,
however, there looms large the question as to whether her
continued administration would be legal. Hence, the impor
tance of these proceedings.
Further, an important question of principle, a question of
local autonomy and the fully national question of the degree
to which the provisions of the Indian Act can be unilaterally
manipulated by the Department comes into focus. These are
the issues to be determined by this Court; and they far
surpass the purely local question of self-determination.
We are dealing with a Statute of the Parliament of Canada
which purports to regulate a whole race of people. It is of
paramount importance that these people be assured that the
plain words of that statute shall and do prevail and that
technical, bureaucratic interpretation will not frustrate them
at every turn.
Relevant portions of the electoral sections of
the Act are as follows:
74. (1) Whenever he deems it advisable for the good
government of a band, the Minister may declare by order
that after a day to be named therein the council of the band,
consisting of a chief and councillors, shall be selected by
elections to be held in accordance with this Act.
78. (1) Subject to this section, chiefs and councillors
hold office for two years.
(2) The office of chief or councillor becomes vacant when
(a) the person who holds that office
(i) is convicted of an indictable offence,
(ii) dies or resigns his office, or
(iii) is or becomes ineligible to hold office by virtue of
this Act; or
(b) the Minister declares that in his opinion the person
who holds that office
(i) is unfit to continue in office by reason of his having
been convicted of an offence,
(ii) has been absent from meetings of the council for
three consecutive meetings without being authorized to
do so, or
(iii) was guilty, in connection with an election, of cor
rupt practice, accepting a bribe, dishonesty or
malfeasance.
(4) Where the office of chief or councillor becomes
vacant more than three months before the date when anoth
er election would ordinarily be held, a special election may
be held in accordance with this Act to fill the vacancy.
79. The Governor in Council may set aside the election of
a chief or a councillor on the report of the Minister that he
is satisfied that
(a) there was corrupt practice in connection with the
election;
(b) there was a violation of this Act that might have
affected the result of the election; or
(c) a person nominated to be a candidate in the election
was ineligible to be a candidate.
Counsel for the plaintiff argued that section
78(1) is clear and unambiguous, and that the
term of office of a chief is 2 years from the date
of that person's election, subject only to a
shortening of such term in one or more of the
circumstances set forth in section 78(2), none
of which came into existence in so far as the
plaintiff is concerned, therefore her term is 2
years from September 29, 1970.
Counsel for the plaintiff referred to certain
statutes 2 , applicable to elections, wherein the
legislature expressly limited the term of office
of an individual elected to fill a vacancy to the
unexpired term of the person who vacated the
office, and he argued that Parliament was aware
of such provisions and avoided including a simi
lar provision in the Indian Act; and that no such
provision is in the Act by implication. Counsel
also referred to statutes governing the terms of
office of Members of the House of Commons
and of Legislative Assemblies.
Counsel for the defendants submitted that the
words "vacant" and "vacancy", as used in the
Indian Act, have a technical meaning in the
context of statutes respecting elections and
relate only to the unexpired portion of a term of
office. I do not accept that view. I think that the
words are used in their ordinary and natural
meaning, i.e., the fact of an office becoming
vacant.
Counsel for the defendants also contended
that the relevant provisions of the Indian Act
contemplate general elections to elect an entire
"council . .. consisting of a chief and council
lors" (section 74(1)), with special elections to
fill vacancies where an office becomes vacant
more than 3 months before the date when
another election for the entire council would
ordinarily be held (section 78(4)), without any
provision or implication that a chief or council
lor elected at such a special election can carry
his term over and beyond the next general elec
tion; and that this is consistent with the form of
government prevailing generally in Canada; also
that any such carry over might result in a coun
cil consisting of several persons with staggered
terms ending at different dates that would
require a continuous series of elections to fill
vacancies and lead to destruction of the periodi
cal general election concept.
The provision in section 78(1) that chiefs and
councillors hold office for 2 years is subject to
the other provisions of the section, including
subsection (4) which provides for a "special
election" to fill a vacancy where the office
becomes vacant more than 3 months before
"the date when another election would ordinari
ly be held." I think that this other election that
would "ordinarily be held" means a general
election to elect the council. I think that the Act
contemplates general elections periodically to
elect an entire council, with special elections to
fill vacancies that occur more than 3 months
before the next general election would ordinari
ly be held, and that the term of office of a
person elected at any such special election does
not carry over beyond the next general election.
I also consider that the purpose of section 78(2)
is not to prescribe or define the duration of the
terms of office of chiefs or councillors, but is to
declare situations in which the office becomes
vacant. It is not an exhaustive section in that
respect, for the office may become vacant, as it
did in the present case, by action of the Gover
nor in Council under section 79 setting aside an
election. We must look to other provisions to
find the duration of the terms of offices of the
chief and councillors whose offices do not
become vacant under section 78(2) or section
79.
The relevant provisions of the Indian Act
respecting elections are not passed by Parlia
ment in a vacuum, but in a framework of cir
cumstances so as to deal with a known state of
affairs. It is an Act that by virtue of the Inter
pretation Act shall be deemed remedial and
shall be given such fair, large and liberal con
struction and interpretation as best ensures the
attainment of its objects.
The fact that Parliament did not include a
provision expressly limiting the term of a chief
or councillor, elected at a special election to fill
a vacancy, to the unexpired portion of the term
of the person who vacated the office, does not
necessarily lead to a conclusion that the newly
elected person's term will carry on beyond the
next general election for the council of the
band. Reading the sections in their context and
prevailing circumstances I think that Parliament
intended to provide and did in the Act provide
for a system of periodical general elections to
elect an entire council, with special elections
under section 78(4) to elect persons to fill
vacancies.
In my view, this interpretation of the provi
sions is as consistent with the autonomy of
local bands as is the plaintiff's contention that
the term of her office as chief is 2 years from
the date of her election on September 29, 1970.
Having regard to the claim in the statement of
claim for a declaratory order confirming the
two year term of office of the plaintiff from the
date of her election on September 29, 1970, and
the form of the questions in the stated case,
which are related specifically to her said elec
tion on that date, my answers will be in respect
of the term of office given to her by virtue of
that election, and the answers are "no" to ques
tion A and "yes" to question B in the stated
case.
As agreed by the parties, the costs of the
entire action and stated case will be awarded to
the defendants.
Pursuant to Rule 475.
The references in the stated case and argument are to
sections of the Indian Act, R.S.C. 1970, c. I-6, which are
not significantly different from the corresponding sections
of the Indian Act, R.S.C. 1952, c. 149.
2 Towns Act of Nova Scotia, R.S.N.S. 1967, c. 309;
Municipal Act, R.S.N.S. 1967, c. 192.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.