T-2056-90
Claudia Jock, Dave Benedict, Lawrence Francis
and Robert Skidders on their own behalfs and on
behalf of other residents of the Akwesasne
Reserve (Applicants)
v.
Her Majesty the Queen, the Minister of Indian
and Northern Affairs, Michael Mitchell, members
of the Mohawk Council of Akwesasne and The
Mohawk Council of Akwesasne (Respondents)
INDEXED AS: JOCK v. CANADA (T.D.)
Trial Division, Teitelbaum J.—Ottawa, January
14 and March 5, 1991.
Judicial review — Prerogative writs Quo warranto
Elections on Indian reserves — Traditionalists not participat
ing in referendum at Akwesasne Reserve re: reversion to band
custom from Indian Act procedures for elections — Election
held according to custom More than two years later, quo
warranto sought — Neither ministerial order nor referendum
required Authors cited as to rules for quo warranto,
matters within Court's discretion Most, but not all, criteria
for quo warranto met — Application denied for undue delay,
failure to exhaust statutory remedies.
Native peoples — Elections — Quo warranto sought more
than two years after election according to band custom
Reversion from Indian Act election rules following referendum
in which traditionalists did not participate Neither minis
terial order nor referendum approving reversion required —
Granting of application would cause hardship, inconvenience
— Motion denied for unreasonable delay, failure to exhaust
statutory remedies.
Federal Court jurisdiction Trial Division Indian band
council 'federal board" within Federal Court Act, ss. 2, 18 —
Trial Division having jurisdiction to grant quo warranto
against individual members of Indian band council.
This was an application for (1) a declaration that elections of
June 1988 were null and void, (2) an order of quo warranto, (3)
an order enjoining the respondents from continuing to pay
salaries to the Mohawk Council of Akwesasne and its members
until a new election can be held and (4) an order requiring that
new elections be convened and held in accordance with the
Indian Act within a reasonable period of time. Prior to June
1988, elections on the Akwesasne Reserve had been held pursu
ant to the Indian Act. Following a door-to-door referendum, in
which the traditionalists did not participate, regarding a possi
ble reversion from the Act procedures to band custom regula
tions, an election was conducted on June 25, 1988 according to
custom regulations called the Akwesasne Election Regulations.
Applicants submitted that, historically, any changes to the
election process on the Akwesasne Reserve had always been
done by an Order in Council and that reversion to custom
elections was a major change that could not be made orally
with no written record. They further asserted that the door-to-
door survey had only just begun when Council passed the
resolution adopting new regulations. That meant that the
survey results were not taken into account. The applicants cited
two letters from government officials indicating that to change
the electoral regulations the approval of the traditionalists was
required but had not been obtained.
Respondents argued that the applicants did not challenge the
validity of the June 25, 1988 election or of the two subsequent
by-elections until July 1990 and that the real object of this
application was to attack the validity of the Akwesasne Elec
tion Regulations, which should be done by an action for a
declaration rather than by moving for an order in the nature of
quo warranto. Counsel for respondents mentioned several items
of correspondence which would indicate the recognition of the
legitimacy of the impugned Council and Chief by the Depart
ment of Indian and Northern Affairs (DIAND) and its approv
al of the June 1988 elections. Counsel also filed two schedules
of Indian bands which showed that the Government of Canada,
as well as the Minister have treated the Akwesasne Band as
having reverted to custom for election purposes.
The applicants having abandoned the claim for a declaration
and an injunction being denied since proceedings were not
commenced by statement of claim, the application for a writ of
quo warranto was the only issue remaining to be decided.
Held, the application should be dismissed.
There is case law establishing that a band council is a
"federal board" within the meaning of sections 2 and 18 of the
Federal Court Act, and the Trial Division has jurisdiction to
grant a writ of quo warranto against the individual members of
the Mohawk Council of Akwesasne. Such band council exer
cises powers conferred by an Act of Parliament. Subsection
74(1) of the Indian Act, (which allows the Minister to declare
by order that a band council shall be selected by elections in
accordance with the Act) is permissive, not mandatory. The
Indian Act and Regulations do not require a ministerial order
for election procedures to be brought under the Indian Act or to
revert to band custom. A referendum or other formal approval
is not required prior to a ministerial order under subsection
74(1). The fact that the traditionalists were not formally asked,
by referendum or otherwise, to approve or disapprove the new
election regulations does not, of itself, make the new regula
tions illegal.
The applicants had met most, but not all, of the criteria for
the issuance of a writ of quo warranto. The offices of councillor
and chief are of a public nature, the impugned Mohawk
Council and grand chief have exercised their respective offices,
the impugned offices were created by the Indian Act, an Act of
Parliament, the chiefs and grand chief are not dismissable at
will, and the applicants have a genuine interest in the proceed
ings as they lived on the Akwesasne Reserve at the time of the
elections. On the other hand, the applicants had let an unrea
sonable length of time elapse since the contested election of
June 1988. The Court has a discretion to dismiss an application
for quo warranto for undue delay or acquiescence. Great
hardship and inconvenience would be caused if, after more than
two years, an end would be put to the term of office of the
present Band Council. Moreover, the applicants had not
exhausted all internal relief avenues. Where the law provides
another remedy, quo warranto may not be used to contest an
election. The Indian Band Election Regulations and the Indian
Referendum Regulations allow any elector to lodge an appeal
if he believes there was a violation of the Regulations or corrupt
practices. If the applicants were disqualified from the appeal
procedures set out in the Regulations (which speak of "any
elector who voted") by not having voted, it was their own fault.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 18.
Federal Court Rules, C.R.C., c. 663, R. 469(3).
Indian Act, R.S.C., 1985, c. I-5, s. 74(1).
Indian Band Election Regulations, C.R.C., c. 952, s.
12(1).
Indian Referendum Regulations, C.R.C., c. 957, s. 31(1).
Municipal Act, R.S.N.C., 1967, c. 192.
CASES JUDICIALLY CONSIDERED
AF'PI.n:i>:
Rider v. Ear (1979), 103 D.L.R. (3d) 168; [1979] 6
W.W.R. 226; [1979] 4 C.N.L.R. 119 (Alta. T.D.); Trot -
chie v. R., [1978] I A.C.W.S. 397; Gabriel v. Canaton-
quin, [1978] 1 F.C. 124 (T.D.) affirmed [1980] 2 F.C.
792; [1981] 4 C.N.L.R. 61 (C.A.); Beauvais v. R.,
[1982] 1 F.C. 171; [1982] 4 C.N.L.R. 43 (T.D.); Badger
v. Canada, [1991] 1 F.C. 191 (T.D.); Turcotte v.
McLaughlin et Seafarers' International Union of
Canada, [1967] Q.B. 739; (1967), 64 D.L.R. (2d) 645
(Que.); The King ex rel Boudret v. Johnston, [1923] 2
D.L.R. 278; (1923), 56 N.S.R. 214 (C.A.); In re Moore
and Port Bruce Harbour Company (1857), 14 U.C.Q.B.
365 (C.A.).
CONSIDERED:
Sault v. LaForme, [1989] 2 F.C. 701; (1989), 25 F.T.R.
241 (T.D.); R. ex rel. Hennigar v. Stevens (1969), 3
D.L.R. (3d) 668 (N.S.T.D.); Leaf v. Canada (Governor
General in Council), [1988] 1 F.C. 575; (1987), 15
F.T.R. 268 (T.D.); R. v. Landry (1909), 44 N.S.R. 138
(C.A.).
REFERRED TO:
Blackfoot Indian Band, No. /46 (Members) v. Canada
and Blackfoot Indian Band, No. /46 (Chief and Council
lors) (1986), 7 F.T.R. 133 (F.C.T.D.); R. ex rel. Charles
J. Gillespie v. Wheeler, [1979] 2 S.C.R. 650; (1979), 25
N.B.R. (2d) 209; 97 D.L.R. (3d) 605; 51 A.P.R. 209; 9
M.P.L.R. 161; 26 N.R. 323; Rice c. Conseil de la bande
des Iroquois de Caughnawaga et Police Iroquoise de
Caughnawaga et Ministre des Affaires Indiennes et du
Nord (13 February 1975, Cour supérieure du Québec,
not reported).
AUTHORS Câ–ºTED
de Smith, S.A. Judicial Review of Administrative
Action, 4th ed. by J.M. Evans. London: Stevens &
Sons Ltd., 1980.
Dussault, R. and Borgeat, L. Administrative Law: A
Treatise, 2nd ed., vol. 4, Toronto: Carswell, 1990.
COUNSEL:
Lawrence Greenspon for applicants.
G. Lester for respondents Her Majesty the
Queen and the Minister of Indian and North
ern Affairs.
John D. Richard, Q.C., for respondents
Michael Mitchell et al.
SOLICITORS:
Karam, Greenspon, Ottawa, for applicants.
Deputy Attorney General of Canada for
respondents Her Majesty the Queen and the
Minister of Indian and Northern Affairs.
Lang, Michener, Honeywell, Wotherspoon,
Ottawa, for respondents Michael Mitchell et
al.
The following are the reasons for order ren
dered in English by
TEITELBAUM J.: By notice of motion the appli
cants seek the following relief:
(1) 'A declaration that the elections of June, 1988, held for the
position of Grand Chief and Twelve Band Council Mem
bers be declared null and void;
(2) An order in the nature of quo warranto;
(3) An order enjoining the respondents, Her Majesty the
Queen and the Minister of Indian and Northern Affairs
from continuing to pay to the Mohawk Council of
Akwesasne and its Members that portion of the monies
received from the respondent Her Majesty the Queen
and/or the Minister of Indian and Northern Affairs repre
senting salaries for such Council Members until such time
as a new election can be convened and held;
(4) An order requiring that new elections be convened and
held in accordance with the provisions of the Indian Act,
with a reasonable period of time; and
(5) Such further and other order as this Honourable Court
may deem just.
At the commencement of these proceedings,
counsel for the applicants informed me that the
applicants are not pursuing that aspect of their
motion wherein they request a declaration that the
elections of June 1988 held for the position of
grand chief and twelve Band Council members be
declared null and void.
Counsel agrees that in order to obtain such a
declaration, a party must commence their proceed
ings by statement of claim unless respondents give
their consent to the obtaining of a declaratory
judgment without the filing of a statement of
claim and defence and then having a trial on the
merits. No consent was forthcoming from the
respondents.
The second issue immediately dealt with at the
hearing was the issue of the applicants' request for
an injunction.
With regard to this issue, I informed counsel
that I refuse to issue the injunction that the appli
cants are requesting. The applicants filed their
notice of motion in July 1990. They had not filed
by the first hearing date, October 15, 1990, a
statement of claim. Pursuant to Rule 469(3) of the
Federal Court Rules [C.R.C., c. 663], a party
must commence proceedings by filing a statement
of claim in order to request the issuance of an
injunction.
Rule 469... .
(3) The plaintiff may not make an application under this
Rule before commencement of the action except in case of
urgency, and in that case the injunction may be granted on
terms providing for the commencement of the action and on
such other terms, if any, as seem just.
This Rule allows for the issuance of an interim
injunction without the filing of a statement of
claim but only in the case of urgency.
There is obviously no urgency in the matter
before me as the applicants from July 1990 to
October 15, 1990 had not filed a statement of
claim. I therefore refused the issuance of an
injunction.
The only issue remaining to be decided is the
applicants' request for an order in the nature of
quo warranto.
The facts of this case, as they appear from the
affidavits found in the file can be summarized as
follows:
Elections on Indian reserves may be held either
according to regulations made by the Governor in
Council (Indian Act, R.S.C., 1985, c. I-5, s. 74(1))
or according to band custom. Prior to June 1988,
elections on the Akwesasne Reserve were held
pursuant to the Indian Act (Act).
In 1988, a door-to-door referendum was held on
the Akwesasne Reserve regarding a conversion
from the Act procedures to band custom regula
tions for elections. The traditionalists did not take
part in this referendum.
On June 25, 1988 an election took place accord
ing to custom regulations called the "Akwesasne
Election Regulations" (see Tab. E, applicants'
motion record). These Regulations differed from
the regulations under subsection 74(3) of the
Indian Act in the following ways (inter alia):
(I) Under the custom regulations, the grand
chief and the 12 chiefs presiding on the
council are elected for a term of 3 years;
under the Indian Act Regulations, the term
for the chief and councillors is 2 years (sub-
section 78(1));
(2) Under the custom regulations, members of
the Mohawks of Akwesasne Reserve over
the age of 18 may vote. Under the Indian
Act Regulations, members must have
attained the age of 21 to vote (subsection
77(1));
(3) Under the custom regulations, the
Akwesasne Reserve is divided into 3 elector
al districts. Under the Indian Act Regula
tions, reserves generally consist of one elec
toral section, unless a vote has been held to
change the number of electoral sections
(subsection 74(4)).
Jurisdiction
The two issues to be determined under this
heading are:
(a) Can a band council be considered a "federal
board" within the meaning of sections 2 and 18
of the Federal Court Act [R.S.C., 1985, c.
F-7]?
The following cases clearly indicate that a
band council is a "federal board" within the
meaning of sections 2 and 18 of the Federal
Court Act:
Rider v. Ear (1979), 103 D.L.R. (3d) 168
(Alta. T.D.), following Trotchie v. R., [1978]
1 A.C.W.S. 397;
Gabriel v. Canatonquin, [1978] 1 F.C. 124
(T.D.); affd [1980] 2 F.C. 792 (C.A.); Beau-
vais v. R., [1982] 1 F.C. 171 (T.D.).
(b) Does the Federal Court, Trial Division, have
jurisdiction to grant a writ of quo warranto
against the individual members of the Mohawk
Council of Akwesasne?
Counsel for respondents submits that quo war-
ranto can only be issued against natural persons or
individuals and that the individual members of the
council are not subject to the jurisdiction of the
Federal Court as they are not a "federal board,
commission or other tribunal" as defined in the
Federal Court Act.
With respect, I do not agree with the submission
of counsel for respondents. Section 2 of the Feder-
al Court Act, R.S.C., 1985, c. F-7 defines "federal
board, commission or other tribunal" as follows:
2....
... any body or any person or persons having, exercising or
purporting to exercise jurisdiction or powers conferred by or
under an Act of Parliament, other than any such body con
stituted or established by or under a law of a province or any
such person or persons appointed, under or in accordance with a
law of a province or under section 96 of the Constitution Act,
1867.
A band council is a "federal board" within the
meaning of section 18.
As the section 2 definition of "federal board"
includes "any body or any person or persons"
meeting the requirements specified, the Federal
Court, Trial Division has jurisdiction to issue a
writ of quo warranto against an individual or
individuals ("person or persons") exercising the
jurisdiction or powers specified in section 2.
A band council exercises powers conferred by
the Indian Act, R.S.C., 1985, c. I-5 (see e.g. Rice
c. Conseil de la bande des Iroquois de Caugh-
nawaga et Police Iroquoise de Caughnawaga et
Ministre des Affaires Indiennes et du Nord (13
February 1975, Cour supérieure du Québec, not
reported). Thus a band council, such as the
Mohawk Council of Akwesasne, exercises "powers
conferred by ... an Act of Parliament".
Counsel for the applicants cited two cases, Sault
v. LaForme, [1989] 2 F.C. 701 (T.D.); and Gabri-
el v. Canatonquin, [1978] 1 F.C. 124 (T.D.); affd
[1980] 2 F.C. 792 (C.A.), in which the Federal
Court heard actions against band council mem
bers, where the council members were individually
named as defendants in the style of cause. In Sault
v. LaForme, the defendants were listed thus: Mau-
rice LaForme, Graham King, George King, Sylvia
Sault, Carol Brant, Georgina Sault. In this case,
the Court made a declaration that a resolution
passed by an Indian band council was invalid.
In Gabriel v. Canatonquin, the defendants,
impugned "hereditary chiefs" of the "Six Nations
of the Iroquois Confederacy", are also individually
listed, as follows, in the style of cause: Peter
Canatonquin, Hugh Nicholas, Peter Etienne,
Kenneth Simon, John Montour, Wesley Nicholas,
Edward Simon, Joe Nelson, Haslem Nelson. In
Canatonquin the Federal Court, Trial Division,
dismissed the plaintiff's application for leave to file
a conditional appearance. Thurlow A.C.J., as he
then was, makes the following remarks about the
jurisdiction of the Federal Court at page 130:
... this Court has jurisdiction to entertain the proceeding in so
far as it is brought for a declaration that the defendants have
been illegally elected and are illegally acting as the council of
the band.
In Beauvais v. R., [1982] 1 F.C. 171 (T.D.), the
issue is the opposite to the issue in the case before
me: can one seek an injunction against a band
council as a whole without naming individual
members? The Court answered this question in the
affirmative. The Superior Court of Quebec had
already declined jurisdiction, and, as Walsh J. of
the Federal Court stated, it would be contrary to
natural justice to conclude that no court had juris
diction to grant an injunction against the band
council in question (page 179). Applying this
obiter to the present case, one might well ask if the
Federal Court does not have jurisdiction over the
respondents, which court does have jurisdiction?
Based on the definition of "federal board, com
mission or other tribunal" in section 2 of the
Federal Court Act, The Federal Court, Trial Divi
sion, has jurisdiction to issue a writ of quo warran-
to against the respondents as named in the style of
cause.
The issue is to determine if a writ of quo
warranto should issue in the circumstances of this
case.
After listening to counsel and after reading all
the material submitted for my consideration, I am
satisfied that a writ of quo warranto should not
issue.
More than two years after the election of the
Mohawk Council of Akwesasne, the election took
place in June 1988, the applicants filed the present
notice of motion. The applicants note that subsec
tion 74(1) of the Indian Act permits the Minister
of Indian and Northern Affairs to declare by
order, a reversion to band elections, no such order
was ever made. Furthermore, the applicants claim
that band custom requires the approval of the
traditionalists for a reversion to custom election
regulations. This approval was not sought prior to
the June 25, 1988 elections.
Subsection 74(1) of the Indian Act states:
74. (1) Whenever he deems it advisable for the good govern
ment 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.
The affidavit of Alp Debreli states that neither
the Assistant Deputy Minister of Lands, Revenues
and Trusts, nor the solicitor for the respondents
have been able to provide any evidence of a minis
terial order pursuant to subsection 74(1) of the
Indian Act (applicants' motion record, Tab. E with
Exhibits).
Applicants' Submissions
Counsel for the applicants submits that histori
cally any changes to the election process on the
Akwesasne Reserve had always been done by way
of an Order in Council. He gives two examples,
based on evidence given in Mr. Mitchell's affida
vit. First, on May 6, 1952, the Governor General
in Council, on the recommendation of the Minister
of Citizenship and Immigration made an order
that the councillors of the Mohawk Band be elect
ed by majority vote of the electors of the Band
(paragraph 12, Mr. Mitchell's affidavit). Second,
on June 12, 1986, the Governor General in Coun
cil, on the recommendation of the Minister of
Indian Affairs and Northern Development pursu
ant to subparagraph 74(3)(a)(i) of the Indian Act
made an order that the chief of the Mohawks of
the Akwesasne Band of Indians in the provinces of
Ontario and Quebec be elected by majority vote of
the electors of the Band [Chief of the Mohawks of
Akwesasne Band of Indians Election Order, SOR/
86-642] (Mr. Mitchell's affidavit, paragraph 14).
Counsel also states that (page 12, transcript of
January 14, 1991):
... of course, both of those Orders-in-Council preceded the
actual change that took place, and both of those Orders-in-
Council obviously were in writing and were registered pursuant
to the Statutory Instruments Act.
Furthermore, counsel submits that Mr. Mitchell
must have been aware of the 1986 Order in Coun
cil because he became Chief as a result of that
Order in Council. Also, Mr. Mitchell gave infor
mation about both the 1952 and the 1986 Orders
in Council in his affidavit. The respondents have
argued that the adoption of the "Akwesasne Elec
tion Regulations" (custom regulations) was
authorized orally by Harry Swain, the Deputy
Minister at a meeting on June 3, 1988 at which
Mr. Swain, Mr. Goodwin (Assistant Deputy Min
ister) and Mr. Mitchell were present. Mr. Mitchell
admits at page 24 of his cross-examination that he
does not know if anybody took notes at that meet
ing and that he does not recall if there was any
body else in attendance. There is no written record
of this authorization or order allegedly given by
the Deputy Minister. Mr. Mitchell claims that he
later telephoned Mr. Swain and received oral con
firmation of the order authorizing the reversion to
custom elections.
It would appear that the respondents are argu
ing that the reversion to custom elections was
authorized orally at a meeting and confirmed by
telephone. Counsel for applicants submits that it
"defies logic" that such a major change in election
procedures could be made orally, with no written
record, when previous, lesser changes were made
in writing, by Order in Council.
Counsel for the applicants submits that in April
1988, the intention of the Band Council was to
take a door-to-door survey in each district of the
Akwesasne Reserve to determine:
(a) If the community wants Akwesasne to con
trol their own election system;
(b) If the community supports the proposed
"Akwesasne Election Regulations"
(see "Indian Time" newspaper, Exhibit C to Mr.
Mitchell's affidavit). Mr. Mitchell admits in cross-
examination that the survey was to take place
April 18-22/88, but in fact the survey started on
April 22, 1988, rather than finishing on that date,
and was completed on May 20, 1988 (cross-exami
nation of Mitchell). Notwithstanding the delay in
the survey, on April 23, one day after the survey
began, the Council passed a resolution adopting
the new regulations (Exhibit A, Mitchell's affida
vit). Therefore, the results of the survey were not
taken into consideration in the decision to adopt
the new regulations. Applicants submit, therefore,
that proper procedures were not used for the
carrying out of the survey.
In his cross-examination of Mr. Mitchell, coun
sel for the applicants questioned him on a memo
randum from Rita Dagenais, legal advisor to the
Council and Michael Mitchell, dated June 3, 1988.
In this memo, Ms. Dagenais states as follows:
I have been advised by Mr. Gaetan Pilon, Statutory Require
ments Headquarters, that there may be a problem getting the
Election Regulations ratified by the Department before June
11. Pilon was advised this week by the Department of Justice
and the Privy Council Office that the ministerial order granting
Akwesasne's reversion to customary election must be registered
by the Privy Council pursuant to the Statutory Instruments
Act. This directive has been issued because there is a court case
pending in Saskatchewan which may decide that a ministerial
order is not valid unless registered.
Counsel for the applicants presents this as evi
dence that (page 20, transcript of January 14,
1991 hearing):
... long before the June 23, 1988 election, Mr. Mitchell and his
Council were aware of that requirement [for a ministerial
order]; not only that requirement, but that the Department of
Indian and Northern Affairs was taking the position that the
ministerial order would have to be made and duly registered.
As evidence of the recognition by the Ministry
of the fact that the consent of the traditionalists
(1) was not obtained and (2) is required for a
change in the electoral regulations, the applicants
cite two letters from government officials. The
first, a letter dated June 21, 1988 from Gregor
Maclntosh, the Director of General Membership
Revenues and Band Governance, to the Regional
Director General, indicates that approximately
500 traditionalists were not consulted regarding
the proposed reversion to custom type elections.
Mr. Macintosh asks the Regional Director wheth-
er the "Longhouse people" i.e. the traditionalists,
should be asked whether they approve of the
changes. A letter dated July 6, 1988, requests the
newly elected Grand Chief Mike Mitchell to ask
the traditionalists whether they approve of the
"proposed election regulations." Mr. Mitchell
stated in cross-examination that he cannot remem
ber his exact response to this letter, but that:
... we dealt with this issue, and it was a non-issue after that
(paragraph 118, cross-examination of Mitchell).
The July 6 letter post-dates the June/88 elections,
indicating that the approval of the traditionalists
was not obtained prior to these elections.
Counsel also refers to a letter signed by Ross
David, the Condoled Chief of the Turtle Clan,
dated 5 November 1990, as evidence that even at
this late date the Mohawk Council elected in June
1988 believed that they (1) required, and (2) had
not yet received, approval from the traditionalists
of the adoption of the new election regulations (see
page 81, motion record of respondents). The letter
reads in part:
We did not wish to give a letter of concurrence to the Mohawk
Council of Akwesasne in 1988 due to the fact that the majority
of traditional people who adhere to the Great Law of Peace do
not vote in the Canadian Political System or support the Indian
Act. We wish to clearly state that the majority of traditional
families are encouraged by the steps taken by the Mohawk
Council of Akwesasne of opting out of the Indian Act Systems
of election procedures.
Presently, we are in a process of establishing procedures of
cooperation as to how self government/self determination is
possible in Akwesasne.... We will support the actions taken by
the Mohawk Council of Akwesasne in taking over the election
process.
The letter seems to be offering general support
to ongoing or future initiatives taken by the Coun
cil to ensure native control over the election pro
cess. In cross-examination, Mr. Mitchell stated
that the Council had requested this letter (para-
graph 52). Apparently, Mr. David, the signatory,
does not read or write English, but the contents of
the letter were explained to him at a meeting at
which he signed the letter (cross-examination of
Mitchell, pages 20-22).
Subsection 74(1) is permissive, not mandatory.
It states: .... the Minister may declare by
order...." Therefore, I am satisfied, the Indian
Act and Regulations do not require a ministerial
order for election procedures to be brought under
the Indian Act or to revert to band custom. Fur
thermore, subsection 74(1) of the Indian Act does
not mention a reversion to band custom regula
tions, but refers only to an order bringing election
regulations under the Act.
In Badger v. Canada, [1991] 1 F.C. 191 (T.D.),
Mr. Justice Strayer states that a referendum or
other formal approval is not required prior to a
ministerial order under subsection 74(1) [at pages
197-198]:
The power of the Minister to issue or repeal a declaration under
present subsection 74(1) with respect to bringing a band's
election under the Indian Act is in no way conditioned on the
holding of a referendum or the adoption of a band council
resolution. While it is no doubt highly important that the
Minister have regard to the views of the Band, to the extent
that those can be ascertained, the Act in no way requires some
formal expression of those views such as by referendum or band
council resolution.
Thus, the fact that in the case before me, the
traditionalists were not formally asked, by referen
dum or otherwise, to approve or disapprove the
new election regulations, does not, of itself, make
the new regulations illegal.
Respondent's Submissions
Counsel notes that, until this action (July 1990),
the applicants did not challenge the validity of the
June 25, 1988 election or of two by-elections held
in December 1989 and February 1990. He sug
gests that the real object of the applicants is to
attack the validity of the Akwesasne Election
Regulations, which should be done by an action
for a declaration. Counsel cites Choquette J. in
Turcotte v. McLaughlin et Seafarer's Internation
al Union of Canada, [1967] Q.B. 739 as below
(Tab. 14, respondents' book of authorities, cited in
Blackfoot Indian Band, No. 146 (Members) v.
Canada and Blackfoot Indian Band, No. 146
(Chief and Councillors) (1986), 7 F.T.R. 133
(F.C.T.D.) (at page 141 of the decision):
"I might add that a writ of q uo warranto is not the way to
contest an election, unless the law provides no other remedy."
Counsel mentions several items of correspond
ence which, he argues, indicate the recognition of
the legitimacy of the impugned Council and Chief
by the Department of Indian and Northern Affairs
(DIAND). First, there is a telex from Gregor
MacIntosh of DIAND to Rita Dagenais dated
May 5, 1988 (Exhibit G to Mitchell's affidavit)
which states as follows:
Further to your telephone conversation of May 4, l988 with G.
Pilon, this will confirm that this program has examined the
proposed election regulations submitted by your band council
and that your regulations are-acceptable as they fall within- the
criteria set in our policy on this matter.
Exhibit T to Mitchell's affidavit is a fax from
Mr. Goodwin, Assistant Deputy Minister of
DIAND, to Mr. Mitchell, dated May 9, 1990,
which states:
The Department ... recognizes the existing council headed by
you as Grand Chief as well as the Mohawk Council Resolutions
signed by a quorum of your existing council.
Exhibit U is a letter from Mr. Goodwin to Mr.
Mitchell dated May 17, 1990 which, according to
counsel for respondents, indicates DIAND's
approval of the June 1988 elections. At pages
95-96 (transcript, January 14, 1991) counsel
presents details of funding given to the Mohawk
Council by DIAND as evidence that DIAND "has
continued to deal with it [the Council] in accord
ance with the Indian Act."
Respondents say the November 1990 letter
signed by Ross David (mentioned above) merely
clarifies the position of the traditionalists, "which
is the position they held from 1988 on" (transcript,
January 14, 1991, page 91) and thus the letter is
not evidence of an effort by the Council to get ex
post facto approval.
Counsel explains at pages 103-109 (transcript,
January 14, 1991) that there is in fact written
evidence supporting respondents' position that
DIAND has approved the reversion to custom
elections. First, there is a ministerial order dated
December 14, 1989 (at page 83, respondents'
motion record) in which all orders made pursuant
to subsection 74(1) of the Indian Act are revoked.
A schedule of Indian bands attached to this order
lists the bands whose councils are to be selected by
elections to be held in accordance with the Indian
Act rather than by custom. This schedule does not
include the Akwesasne Band. Secondly, there is an
Order in Council, dated December 21, 1989
[SOR/90-46] (at page 93, respondents' motion
record) which revokes, inter alia, the December
14, 1989 ministerial order and substitutes a single
regulation. The attached schedule lists those
Indian bands for which election regulations set by
the Government will apply. This schedule does not
include the Akwesasne Band. Therefore, according
to counsel, this shows that the Government of
Canada, as well as the Minister of DIAND "have
treated Akwesasne as having reverted to custom
for election purposes."
Quo Warranto
According to de Smith's Judicial Review of
Administrative Action (4th ed. by J.M. Evans,
1980), the old substantive law rules for quo war-
ranto, with only slight modifications, still apply, as
listed below (at pages 463-464):
1. The office must be one of a public nature.
2. The holder must have already exercised the
office; a mere claim to exercise it is not
enough.
3. The office must have been created by the
Crown, by a Royal Charter, or by an Act of
Parliament.
4. The office must not be that of a deputy or
servant who can be dismissed at will.
5. A plaintiff will be barred from a remedy if
the plaintif has been guilty of acquiescence in
the usurpation of office or undue delay.
6. The plaintiff must have a genuine interest in
the proceedings. Nowadays probably any
member of the public will have sufficient
interest, provided that he has no private in
terest to serve.
The following matters are within the discretion
of the Court (Dussault and Borgeat, Adminis
trative Law: A Treatise, 1990, page 388):
7. Standing of the applicant.
8. The reasonableness of the length of time
elapsed since the election.
9. The appropriateness of requiring that all
internal relief avenues be first exhausted.
The following are some additional factors to be
considered in a discussion of the remedy of quo
warranto:
10. Whether the onus is on the applicant or the
respondent to prove his case.
11. Whether the remedy of quo warranto may
be granted independent of any other
remedy.
Each of these issues will now be dealt with in
turn.
1. Office of a public nature
The powers of the band council, as outlined in
sections 81 to 86 [ss. 81 (as am. by R.S.C., 1985
(1st Supp.), c. 32, s. 15) 82, 83 (as am. idem, (4th
Supp.), c. 17, s. 10), 84, 85 (repealed idem, s. 11),
85.1 (added idem (1st Supp.), c. 32, s. 16), 86] of
the Indian Act, indicate that the offices of council
lor and chief are "of a public nature".
2. Already exercised the office?
The impugned Mohawk Council and the grand
chief have been exercising their respective offices
since the summer of 1988.
3. Office created by Act of Parliament
The impugned offices can be said to have been
created by the Indian Act.
4. Not a deputy or servant
As elected officials, the grand chief and chiefs
cannot be dismissed at the will of someone else.
5. and 8. Acquiescence or undue delay
Counsel for the applicants states (not very con
vincingly) that the applicants are satisfied with the
manner in which the election took place, but they
are not satisfied with the manner in which the
reversion to custom elections took place, and, in
particular, with one effect of the reversion, which
was the extension of tenure from two years to
three years. According to counsel, the tenure of
office of the impugned officials did not become
illegal until the expiration of two years, i.e. not
until June 25, 1990. Under the Act's Regulations,
officials hold office for 2 years; under the
impugned band custom regulations, officials hold
office for 3 years. The original notice of motion
was filed on July 18, 1990, or, arguably, shortly
after the issue of length of tenure arose.
I am satisfied the issue arose on June 25, 1988,
when the contested election took place. The
impugned "Akwesasne Election Regulations"
(custom regulations) had differences in voter age
and number of electoral districts as well as the
difference in the length of tenure of the councillors
and chief. The applicants, from their complaints
about not having been consulted about the change
in regulations, seek to challenge the entire election
process which took place on June 25, 1988, rather
than simply the length of tenure of the elected
officials. I am satisfied the applicants delayed two
years before filing their notice of motion.
The Court has the discretion to dismiss an applica
tion for quo warranto for undue delay or acquies
cence. In The King ex rel Boudret v. Johnston,
[1923] 2 D.L.R. 278 (N.S.S.C.) an application for
an information for quo warranto was dismissed
where the election of a school trustee was not
challenged for 20 months and the applicant had
given no explanation for the delay in filing its
application. In In re Moore and Port Bruce Har
bour Company (1857), 14 U.C.Q.B. 365, the
Upper Canada Court of Appeal refused to grant a
writ of quo warranto against directors of a com
pany because the applicant delayed for 8 months
after the election before filing suit. Noting that a
new election would be held "in December next"
regardless, the Court stated [at page 368]:
Great hardship and inconvenience might be produced from
suffering the existing board of directors to go on so long
unquestioned, and then suddenly putting an end to their term of
office ....
It is to be remembered that in the case before me
the Council will hold new elections in June 1991
regardless of the Court's decision.
Counsel for the applicants notes that the delay on
the part of the applicants has not prejudiced the
respondents (page 40, transcript, January 14,
1991).
The respondents knew there was a problem, or at
least a potential problem with the validity of the
election as early as June 3, 1988 (the date of the
legal opinion indicating the requirement for a reg
istered Order in Council). There was also the letter
dated July 6, 1988 from the Department of Indian
and Northern Affairs indicating that the approval
of the traditionalists was required.
I believe that great hardship and inconvenience
would be produced if, after more than 2 1/2 years,
an end would be put to the term of office of the
present Band Council.
Acquiescence?
Two of the applicants, Claudia Jock and Dave
Benedict, ran as candidates in the June 1988 elec
tions. Ms. Jock was not elected. Mr. Benedict was
elected but was removed in 1989.
Counsel for the applicants argues that this is not
acquiescence; a person should not be estopped
from challenging the authority of an elected offi
cial simply because that person ran in the election.
In Badger v. Canada (supra), the applicant,
Badger, was elected, and subsequently challenged
the election regulations under which he himself
was elected. Counsel cites Mr. Justice Strayer in
Badger v. Canada, at page 198 as follows:
I would only observe that I have serious doubts that estoppel
could bar the plaintiff from attacking the order of 1982 if in
fact there was no statutory authority for the making of that
Order.
Counsel for respondents notes that Badger was an
action for declaration, not for quo warranto.
6. and 7. Standing of the Applicants
According to de Smith, the test for standing to
launch an action for quo warranto is quite easily
met. The four named applicants, Claudia Jock,
Dave Benedict, Lawrence Francis and Robert
Skidders have all lived on the Akwesasne Reserve
all or most of their lives and therefore have suffi
cient interest in the matter at hand.
9. Exhaustion of Internal Relief Avenues
Where the law provides another remedy, quo war-
ranto may not be used to contest an election. For
example, in R. ex rel. Hennigar v. Stevens (1969),
3 D.L.R. (3d) 668 (N.S.T.D.) the proper mech
anism to contest a municipal election was the
appeal mechanism of the Municipal Act [R.S.N.S.
1967, c. 192], not a writ of quo warranto. Here,
the Indian Act, R.S.C., 1985, c. I-5, Indian Band
Election Regulations, C.R.C., 1978, c. 952; and
Indian Referendum Regulations, C.R.C., 1978, c.
957 provide mechanisms for challenging an elec
tion or referendum. Subsection 12(1) of the Indian
Band Election Regulations allows any elector or
candidate to lodge an appeal within 30 days after
an election if he believes there was corrupt prac
tices, a violation of the Act or Regulations, or an
ineligible person ran as a candidate. Particulars of
the violation are to be forwarded to the Assistant
Deputy Minister.
12. (1) Within 30 days after an election, any candidate at the
election or any elector who gave or tendered his vote at the
election who has reasonable grounds for believing that
(a) there was corrupt practice in connection with the
election,
(b) there was a violation of the Act or these Regulations 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,
may lodge an appeal by forwarding by registered mail to the
Assistant Deputy Minister particulars thereof duly verified
by affidavit.
Section 79 of the Act permits the Governor in
Council to set aside election results based on a
report from the Minister as outlined below:
79. The Governor in Council may set aside the election of a
chief or councillor of a band 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 contravention 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.
Subsection 31(1) of the Indian Referendum Regu
lations allows any elector, who voted, to appeal
within 7 days to the Assistant Deputy Minister if
he believes there was a violation of the Regula
tions, or corrupt practices.
31. (1) Where a referendum is held pursuant to these
Regulations, any elector who voted on the referendum and has
reasonable grounds for believing that
(a) there was a violation of these Regulations that may affect
the results of the referendum, or
(b) there was corrupt practice in connection with the
referendum,
may, within 7 days from the date of the referendum, file an
appeal by forwarding by registered mail to the Assistant
Deputy Minister
(c) a notice of appeal; and
(d) a statutory declaration containing the grounds of appeal
and particulars thereof.
It appears that the applicants in this motion did
not participate in the house-to-house referendum
of 1988, and they may not have voted in the June
1988 election. Thus, the applicants may not be
qualified to use the appeal procedures outlined in
the Indian Band Election Regulations and the
Indian Referendum Regulations. Both Regula-
tions refer to "any elector who voted." Claudia
Jock, and Dave Benedict were eligible to use the
Indian Band Election Regulations appeal proce
dure as they were candidates in the June 1988
election. Also, the 30 day (Indian Band Election
Regulations) and 7 day (Indian Referendum
Regulations) have passed long ago. According to
counsel for the respondents (transcript, January
14, 1991, page 72) the applicants were qualified to
vote, and he does not know whether they voted or
not. Thus, if the applicants were disqualified from
the appeal procedures in the Indian Band Election
Regulations and the Indian Referendum Regula
tions it was their own fault.
According to Dussault and Borgeat (supra), the
Court has discretion to determine "the appropri
ateness of requiring that all internal relief avenues
be first exhausted" (page 388). Counsel for the
applicants argued (pages 59-60, transcript, Janu-
ary 14, 1991) that it would have been impossible
for the applicants to
... complain to the Government that there was no proper
authorization by the very government whose action, or improp
er action, is being complained of ....
Similarly, the applicants would not be able to
appeal to the Band Council whose legitimacy they
were challenging. Therefore, according to counsel
for the applicants, the procedures in the Indian
Act and the Regulations were inappropriate.
At pages 124-125 of the transcript of the January
14, 1991 hearing, counsel for the applicants
explains that a candidate in the June 25, 1988
election (who was removed from the ballot without
being informed) who followed the correct appeal
procedures by writing a letter to Mr. MacIntosh
within 30 days of the election, did not even receive
a response. According to counsel, this is evidence
that the internal appeal procedures are useless in
this case.
I am not prepared to accept this submission. The
applicants could have filed an appeal under the
Act notwithstanding the fact that they allege that
there was improper action by the government. It is
the election procedure that is being appealed not
government "improper action".
10. Onus
Counsel for the applicants, states that the onus is
on the respondents to prove that they are legally in
office (transcript, October 15, 1990).
Although the case law does not directly address
the question of onus, it does provide guidelines for
rebuttable presumptions. The issue seems to rest
on the likelihood that the elections were irregular.
According to Jerome A.C.J. in Leaf v. Canada
(Governor General in Council), [1988] 1 F.C. 575
(T.D.), at page 588:
Where there is a serious argument that the election was
irregular, it is in the interests of all parties for the Minister to
err on the side of recommending that it be set aside. The
alternative is to perpetuate a situation in which a section of the
Band is unrepresented on council or where confusion exists as
to the right of successful candidates to hold office.
On the other hand,' in R. v. Landry (1909), 44
N.S.R. 138 (C.A.), Russell J. for the Nova Scotia
Court of Appeal stated [at pages 146-147]:
I think it is not in the interest of the public that an election
should be disturbed which, it is morally certain, embodies the
determination of a majority of the duly qualified voters.
11. Quo warranto on its own?
Quo warranto can be granted independent of any
other remedy (see R. ex rel. Charles J. Gillespie v.
Wheeler, [1979] 2 S.C.R. 650).
' In In re Moore and Port Bruce Harbour Company
(1857), 14 U.C.Q.B. 365 (C.A.), as earlier cited, the Court
declined to remove directors of a company because "[g]reat
hardship and inconvenience" would result from allowing the
directors to serve for 8 months, and then suddenly removing
them. Arguably an illegal board of directors is not as serious as
an illegal band council; the powers of a board of directors are
probably more limited.
Conclusion
Although the applicants have met most of the
criteria for an application for the issuance of a writ
of quo warranto, they have not satisfied them all.
There is no doubt that the office challenged is of
a public nature. The impugned chiefs and grand
chief have already exercised their respective
offices. The impugned offices were created by the
Indian Act, an Act of Parliament. The chiefs and
grand chief are not dismissable at will. I am also
satisfied that the applicants have a genuine inter
est in the proceedings having lived on the
Akwesasne Reserve at the time of the elections.
I am also satisfied that the applicants have let
an unreasonable length of time to have elapsed
since the contested election in June 1988. I cannot
and do not accept as reasonable the explanation
that there was no need to take quo warranto
proceedings until June of 1990. If the chiefs and
grand chief are illegally holding office, they have
been so doing since June of 1988 and not only
from June 1990. In addition, the Indian Act and
the Indian Band Election Regulations and the
Indian Referendum Regulations clearly allows for
an appeal. The applicants failed to make use of
these provisions.
Therefore, the present application for the issu
ance of a declaration, interim injunction and writ
of quo warranto is denied with costs in favour of
the respondents.
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