Francis et al. v. Mohawk Council of Kanesatake et al.

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Martineau, J.
• Citation: (2003), 227 F.T.R. 161 (TD)
• Date: 16 December 2002
• Subject Matter: COURTS

Francis v. Kanesatake Mohawk Council (2003), 227 F.T.R. 161 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. FE.030

Darlene Francis, James Gabriel, in his capacity as Grand Chief, Clarence Simon, in his capacity as Chief, and Mary Chéné, in her capacity as Chief (applicants) v. The Mohawk Council of Kanesatake, Steven Bonspille, in his capacity as Chief, Pearl Bonspille, in her capacity as Chief, John Harding, in his capacity as Chief, and the Attorney General of Canada (respondents)

(T-1993-02; 2003 FCT 115)

Indexed As: Francis et al. v. Mohawk Council of Kanesatake et al.

Federal Court of Canada

Trial Division

Martineau, J.

January 31, 2003.

Summary:

Six Chiefs and one Grand Chief were elected Mohawk Council of Kanesatake by band custom rather than the election process under s. 74 of the Indian Act. When one of the Chiefs died, council unanimously adopted a resolution calling for a by-election. However, the remaining six Council members were deadlocked on whether the non-resident Band members were excluded from voting by the Band's electoral code (i.e., whether that code was legally binding and enforceable as band custom). When certain steps were taken to exclude non-resident Band members from the electoral process, three Chiefs and a non-resident Band member sought judicial review, injunctive relief and declaratory relief as to what the Band custom was.

The Federal Court of Canada, Trial Division, allowed the judicial review application in part. The court held that band custom remained that all Band members over the age of 18, including non-residents, could vote, and that an independent agency must oversee and direct the vote. The court held that strict enforcement of the code residency requirement would be contrary to band custom

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Trial Division - Relief against federal boards, commissions or tribunals - At issue was the Federal Court's jurisdiction respecting an Indian Band council elected by custom rather than under the election procedure of the Indian Act - The Federal Court of Canada, Trial Division, held that a band council was a "federal board" within the meaning of "federal board, commission or tribunal" in s. 2 of the Federal Court Act - Council fell under the Federal Court's jurisdiction notwithstanding it was elected by band custom rather than under the Act - The court stated that "the Act applies to both a band council elected by custom or one elected pursuant to s. 74 of the Act" - See paragraphs 13 to 18.

Indians, Inuit and Métis - Topic 6223

Government - Band councils (incl. chief and councillors) - Choice of council by custom - Band Council members were elected by band custom rather than the election process in s. 74 of the Indian Act - Since 1991, all registered Band members over age 18 (including non-residents) were entitled to vote in elections and by-elections and an independent agency oversaw and directed the vote - Certain Council members now sought to strictly enforce the Band's electoral code (dating from 1992), which excluded non-resident members from the electoral process, submitting that it was legally binding and constituted a codification of band custom - The Federal Court of Canada, Trial Division, held that a band custom included practices for the choice of council which were generally acceptable to members of the band and upon which there was broad consensus - Apart from legal obstacles to finding the version of the code relied on to be legally binding, the code (adopted in principle with only 6% of eligible voters and without notice to non-residents) lacked a sufficiently "broad consensus" to constitute the custom of the band - The code had never been strictly enforced - The band custom remained that all Band members over the age of 18, including non-resident members, could vote and that an independent agency must oversee and direct the vote - The court held that strict enforcement of the code residency requirement would be contrary to band custom - See paragraphs 20 to 67.

Indians, Inuit and Métis - Topic 6245

Government - Elections - Qualifications or right to vote (incl. residency) - [See Indians, Inuit and Métis - Topic 6223 ].

Cases Noticed:

Gabriel v. Mohawk Council of Kanesatake et al., [2002] F.T.R. Uned. 310 (T.D.), refd to. [para. 5].

Bonspille et al. v. Mohawk Council of Kanesatake et al., [2002] F.T.R. Uned. 463 (T.D.), refd to. [para. 5].

Rider v. Ear, [1979] 4 C.N.L.R. 119 (Alta. T.D.), refd to. [para. 13].

Gabriel v. Canatonquin, [1980] 2 F.C. 792 (F.C.A.), affing. [1978] 1 F.C. 124 (T.D.), refd to. [para. 13].

Trotchie v. R. et al., [1981] 2 C.N.L.R. 147 (F.C.T.D.), refd to. [para. 13].

Bigstone et al. v. Big Eagle et al., [1993] 1 C.N.L.R. 25; 52 F.T.R. 109 (T.D.), refd to. [para. 14].

Cree Regional Authority v. Québec (Procureur général), [1991] 3 F.C. 533; 127 N.R. 52 (F.C.A.), refd to. [para. 14].

Cree Regional Authority v. Canada (Federal Administrator) - see Cree Regional Authority v. Québec (Procureur général).

Samson Cree Nation v. Canada (Minister of Indian and Northern Affairs) (1999), 239 A.R. 214 (Q.B.), refd to. [para. 14].

Canada (Attorney General) v. Lavell, [1974] S.C.R. 1349, refd to. [para. 14].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [2000] 1 F.C. 325; 243 N.R. 302 (F.C.A.), refd to. [para. 15].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 15].

Francis et al. v. Mohawk Council of Akwesasne (1993), 62 F.T.R. 314 (T.D.), refd to. [para. 17].

Frank v. Bottle et al. (1993), 65 F.T.R. 89 (T.D.), refd to. [para. 17].

Joe (M.) et al. v. John (M.) et al., [1991] 3 C.N.L.R. 63; 34 F.T.R. 280 (T.D.), refd to. [para. 17].

Scrimbitt v. Sakimay Indian Band Council, [2000] 1 F.C. 513; 178 F.T.R. 210 (T.D.), refd to. [para. 17].

Bone v. Sioux Valley Indian Band No. 290 Council et al., [1996] 3 C.N.L.R. 54; 107 F.T.R. 133 (T.D.), refd to. [para. 18].

McArthur v. Canada (Minister of Indian Affairs and Northern Development), Registrar (1992), 102 Sask.R. 300; 91 D.L.R.(4th) 666 (Q.B.), refd to. [para. 21].

Chingee et al. v. Chingee et al. (1998), 153 F.T.R. 257 (T.D.), refd to. [para. 24].

McLeod Lake Indian Band v. Chingee - see Chingee et al. v. Chingee et al.

Six Nations Traditional Hereditary Chiefs et al. v. Canada (Minister of Indian and Northern Affairs) (1991), 43 F.T.R. 132 (T.D.), refd to. [para. 25].

Lac des Mille Lacs First Nation et al. v. Chapman et al. (1998), 149 F.T.R. 227 (T.D.), refd to. [para. 29].

Saulteau Indian Band No. 542 et al. v. Garbitt et al., [1997] B.C.T.C. Uned. 818 (S.C.), refd to. [para. 33].

Napoleon v. Garbitt - see Saulteau Indian Band No. 542 et al. v. Garbitt et al.

Gabriel v. Nicholas, [1983] F.C.J. No. 2 (T.D.), refd to. [para. 43].

Crow v. Blood Indian Band Council et al. (1996), 107 F.T.R. 270 (T.D.), refd to. [para. 75].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 76].

Gros-Louis et al. v. Nation Huronne-Wendat et al., [2000] F.T.R. Uned. 920 (T.D.), refd to. [para. 77].

Hall v. Dakota Tipi Indian Band, [2000] F.T.R. Uned. 209 (T.D.), refd to. [para. 77].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 78].

Counsel:

Peter Annis and Ian Houle, for the applicants;

Martin Mason and Sebastien Spano, for the respondent, Mohawk Council of Kanesatake;

Anick Pelletier, for the respondent, Attorney General of Canada.

Solicitors of Record:

Vincent Cagenais Gibson, Ottawa, Ontario, for the applicants;

Gowling Lafleur Henderson LLP, Ottawa, Ontario, for the respondent, Mohawk Council of Kanesatake;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Attorney General of Canada.

This application was heard on December 16, 2002, at Ottawa, Ontario, before Martineau, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on January 31, 2003.