Basil et al. v. Lower Nicola Indian Band, 2009 FC 741

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Tremblay-Lamer, J.
• Citation: 2009 FC 741,(2009), 356 F.T.R. 80 (FC)
• Date: 22 July 2009

Basil v. Lower Nicola Indian Band (2009), 356 F.T.R. 80 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. AU.006

Councillor Yvonne Basil, Councillor Mary June Coutlee, Councillor Stuart Jackson, Former Councillor Shannon Kilroy, Former Councillor Lorne Sahara, Councillor Aaron Sam, and Councillor Clyde Sam (applicants) v. Chief Donald Cyril Moses, The Elders' Investigative Committee Purportedly of the Lower Nicola Indian Band, and The Council of the Lower Nicola Indian Band (respondents)

(T-394-09; 2009 FC 741)

Indexed As: Basil et al. v. Lower Nicola Indian Band

Federal Court

Tremblay-Lamer, J.

July 22, 2009.

Summary:

Chief Moses of the Lower Nicola Indian Band (LNIB) set up the Elders Investigation Committee (EIC) to look into, and report on, allegedly irregular payments received by certain Band Councillors. The EIC filed a report finding the Councillors to be in breach of fiduciary duties and LNIB bylaws, policies and procedures. The report impeached three of them. The report also recommended that the impeached Councillors not be allowed to run again for office or serve as directors of any LNIB companies. Chief Moses determined that the three Councillors were impeached, accepted resignations from each, and expressed an intention to call a by-election as a result. The remaining Band Council, made up of Chief Moses and one Councillor, his niece, adopted three resolutions to, respectively, call by-elections to fill the vacancies resulting from the impeachment, strip the three Councillors of their honoraria and other privileges, and authorize the payment of legal fees to a law firm for, among other things, the enforcement of the impeachment. The three Councillors and others applied for judicial review.

The Federal Court allowed the application in part. The court ruled as follows: (1) the EIC findings and recommendations were accepted and found to be reasonable; (2) the impeachment of the impugned Councillors by the EIC was invalid; (3) Chief Moses validly accepted the resignations of the impugned Councillors; (4) the three Band Council resolutions were invalid; and (5) the Band Council resolutions were to be returned to Chief Moses and the LNIB community "for the remaining issues contained therein to be voted on by way of referendum".

Indians, Inuit and Métis - Topic 6222

Government - Band councils (incl. chief and councillors) - Powers - [See Indians, Inuit and Métis - Topic 6232 ].

Indians, Inuit and Métis - Topic 6222.2

Government - Band councils (incl. chief and councillors) - Duty of procedural fairness - Chief Moses of the Lower Nicola Indian Band (LNIB) set up the Elders Investigation Committee (EIC) to look into, and report on, allegedly irregular payments received by certain Band Councillors - The EIC filed a report finding the Councillors to be in breach of fiduciary duties and LNIB bylaws, policies and procedures - The report impeached three of them - The report also recommended that the impeached Councillors not be allowed to run again for office or serve as directors of any LNIB companies - The three Councillors and others applied for judicial review, complaining that they were not afforded natural justice and procedural fairness in the EIC process - The Federal Court rejected this particular complaint where: (1) the EIC provided each member of Council with an opportunity, which they declined, to appear before the EIC and to make submissions; (2) the EIC members were elected from the LNIB membership and were free of conflicts; (3) the EIC obtained independent legal advice; (4) the EIC undertook a thorough review of all documentation; (5) the EIC provided written reasons; and (6) no representations or promises were made to the applicants that a different process would take place - See paragraphs 75 to 87.

Indians, Inuit and Métis - Topic 6226

Government - Band councils (incl. chief and councillors) - Removal - Validity - Section 34 of the Lower Nicola Indian Band's (LNIB) Custom Election Rules provided for the removal from office of a Councillor who was found, by a "legal proceeding recognized by the Council", to have misused any Band funds or breached his fiduciary responsibilities - Chief Moses of the LNIB set up the Elders Investigation Committee (EIC) to look into, and report on, allegedly irregular payments received by certain Band Councillors - The EIC filed a report finding the Councillors to be in breach of fiduciary duties and LNIB bylaws, policies and procedures - The report impeached three of them - The report also recommended that the impeached Councillors not be allowed to run again for office or serve as directors of any LNIB companies - The Federal Court quashed the impeachment where the EIC did not have jurisdiction to issue it since it was not a "legal proceeding recognized by Council" pursuant to s. 34 - However, the court also held that the EIC had the jurisdiction to investigate the Councillors' alleged wrongdoings, was entitled to make the findings it did and was allowed to subsequently report these findings to the LNIB Council - The court held that the EIC findings were reasonable - See paragraphs 40 to 74, 88 to 114.

Indians, Inuit and Métis - Topic 6232

Government - Band councils (incl. chief and councillors) - Resolutions - Section 23(e) of the Lower Nicola Indian Band (LNIB) Chief and Council Policy and Guidelines, gave the Chief the power to make decisions "on behalf of Council" when those decisions were necessary for good government - Chief Moses of the LNIB set up the Elders Investigation Committee (EIC) to look into, and report on, allegedly irregular payments received by certain Band Councillors - The EIC filed a report finding the Councillors to be in breach of fiduciary duties and LNIB bylaws, policies and procedures - The report impeached three of them - The report also recommended that the impeached Councillors not be allowed to run again for office or serve as directors of any LNIB companies - Chief Moses determined that the three Councillors were impeached, accepted resignations from each, and expressed an intention to call a by-election as a result - The remaining Band Council, made up of Chief Moses and one Councillor, his niece, adopted three resolutions to, respectively, call by-elections to fill the vacancies resulting from the impeachment, strip the three Councillors of their honoraria and other privileges, and authorize the payment of legal fees to a law firm for, among other things, the enforcement of the impeachment - The Federal Court quashed the three resolutions as not having been validly passed - Firstly, the Chief's power under s. 23(e) was not validly engaged respecting the resolutions where the resolutions were based on an impeachment that the EIC had no jurisdiction to make - In addition, the resolutions did not come from a duly convened meeting - This was a "unique situation" where Chief Moses could not refer the resolutions to a proper quorum of Council, since obtaining the required quorum was impossible due to the inability of the impugned Councillors to participate in quorum, to vote on matters related to their own wrongdoings - However, the Chief had the power to accept the impugned Councillors' resignations where their oath of office provided that they were considered to have resigned if they contravened applicable rules, policies and procedures - See paragraphs 115 to 132.

Indians, Inuit and Métis - Topic 6256

Government - Elections - Power of elders - [See Indians, Inuit and Métis - Topic 6226 ].

Words and Phrases

Legal proceeding - The Federal Court discussed what constituted a "legal proceeding" for the purposes of s. 34 of the Lower Nicola Indian Band Custom Election Rules - See paragraphs 40 to 59.

Cases Noticed:

Martselos v. Salt River Nation #195, 2008 FCA 221, refd to. [para. 37].

Prince et al. v. Sucker Creek First Nation (2008), 337 F.T.R. 1; 2008 FC 1268, refd to. [para. 37].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 38].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, consd. [para. 39].

Lafond v. Muskeg Lake Cree Nation et al. (2008), 330 F.T.R. 60; 2008 FC 726, refd to. [para. 64].

Bugle v. Peoples' Government et al., [1997] F.T.R. Uned. 247; 71 A.C.W.S.(3d) 417 (T.D.), refd to. [para. 64].

Bugle v. Lameman - see Bugle v. Peoples' Government et al.

Dene Tha' First Nation v. Didzena, [2005] F.T.R. Uned. 784; 2005 FC 1292, refd to. [para. 64].

Martselos v. Salt River Nation #195, [2008] F.T.R. Uned. 15; 2008 FC 8, refd to. [para. 64].

Catholique v. Lutsel K'E First Nation (2005), 282 F.T.R. 138; 2005 FC 1430, dist. [para. 66].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, consd. [para. 77].

Annapolis Valley First Nations Band v. Toney (2004), 267 F.T.R. 186; 2004 FC 1728, consd. [para. 95].

Canadian Aero Service Ltd. v. O'Malley et al., [1974] S.C.R. 592; 40 D.L.R.(3d) 371, consd. [para. 97].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; 190 N.R. 89; 130 D.L.R.(4th) 193, consd. [para. 97].

Council of the Première Nation Malécite de Viger et al. v. Genest et al. (2006), 304 F.T.R. 92; 2006 FC 187, consd. [para. 116].

Council of the Première Nation Malécite de Viger et al. v. Canada (Minister of Indian Affairs and Northern Development) - see Council of the Première Nation Malécite de Viger et al. v. Genest et al.

Cassidy et al. v. Recalma-Clutesi et al. (2006), 296 F.T.R. 126; 2006 FC 854, refd to. [para. 122].

Qualicum First Nation v. Recalma-Clutesi - see Cassidy et al. v. Recalma-Clutesi et al.

Minde v. Ermineskin Cree Nation et al. (2008), 372 N.R. 268; 2008 FCA 52, consd. [para. 128].

Statutes Noticed:

Chief and Council Policy and Guidelines - see Lower Nicola Indian Band Laws.

Custom Election Rules - see Lower Nicola Indian Band Laws.

Lower Nicola Indian Band Laws, Chief and Council Policy and Guidelines, sect. 23(e) [para. 125].

Lower Nicola Indian Band Laws, Custom Election Rules, sect. 34 [para. 40].

Counsel:

John Drayton, for the applicants;

Joseph C. McArthur, for the respondents (Chief Donald Cyril Moses and Council of the Lower Nicola Indian Band);

F. Matthew Kirchner, for the respondent (The Elders' Investigative Committee).

Solicitors of Record:

Gibraltar Law Group, Kamloops, British Columbia, for the applicants;

Blake, Cassels & Graydon, Vancouver, British Columbia, for the respondents (Chief Donald Cyril Moses and Council of the Lower Nicola Indian Band);

Ratcliff & Company, North Vancouver, British Columbia, for the respondent (The Elders' Investigative Committee).

This application was heard at Vancouver, B.C., on June 23 and 24, 2009, by Tremblay-Lamer, J., of the Federal Court, who delivered the following decision at Ottawa, Ontario, on July 22, 2009.