Roseau River Anishinabe First Nation v. Atkinson et al., (2003) 228 F.T.R. 167 (TD)

• Judge: Kelen, J.
• Court: Federal Court (Canada)
• Case Date: January 14, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 228 F.T.R. 167 (TD)

Roseau River First Nation v. Atkinson (2003), 228 F.T.R. 167 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. MR.016

Chief Ed Hayden, Councillor Peter Atkinson, Councillor Michael Littlejohn, Councillor Mitch Laroque, Councillor Marie Henry, for and on behalf of the Roseau River Anishinabe First Nation (applicants) v. Herman Atkinson, Victor Antoine, Melvin Chaskey, Joseph French, Richard Hayden, Glen Nelson, Frank Paul, Wilson Henry, Ernie James, Gloria Johnson, Dennis Seenie, Derek I. Thomas, Kevin Laroque, Rodney Patrick, Wayne Tait, Cheryl Littlejohn, Thomas Thomas II and Martha Laroque, in their capacities as Custom Council Members of Roseau River Anishinabe First Nation and Aldine Atkinson and Grace Smith, in their capacities as purported Electoral Officers of the Roseau River Anishinabe First Nation (first respondents) and Felix Antoine, Martha Laroque, Mary Chasky, Thomas Thomas and Rodney Patrick, in their capacities as the persons purportedly elected as Chief and Council pursuant to the contested elections (second respondents) and Richard Hayden (third respondent)

(T-285-01; 2003 FCT 168)

Indexed As: Roseau River Anishinabe First Nation v. Atkinson et al.

Federal Court of Canada

Trial Division

Kelen, J.

February 14, 2003.

Summary:

The applicants (Chief and Band councillors) were elected for a four year term under the Roseau River Anishinabe First Nation Election Act. Custom Council of the Band amended the Act to reduce the term of office from four to two years. Accordingly, the applicants' term of office ended after two years and, following elections, they were replaced in office by a new Chief and councillors. The applicants sought judicial review of Council's amendment of the Act.

The Federal Court of Canada, Trial Division, dismissed the application. Custom Council followed the proper procedure for amending the Act, the applicants had actual notice of the proposed amendment, an opportunity to make representations and the amendment was clearly intended to apply retrospectively.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See second Indians, Inuit and Métis - Topic 6255 ].

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Trial Division - Relief against federal boards, commissions or tribunals - Pursuant to a 1991 order-in-council, an Indian Band opted out of elections under s. 74 of the Indian Act in favour of its own Election Act - The Band created a Custom Council made up of individuals appointed by family units of the Band - Custom Council's function was to assist, support and counsel the Band Chief and Council - Section 15 of the Election Act made the Custom Council "the prime authority and representative of the total tribal membership" - Custom Council amended the Election Act pursuant to its express authority under s. 19 of the Act - Amendment opponents sought judicial review - The Custom Council submitted that the court lacked jurisdiction, because the Custom Council was not a "federal board, commission or other tribunal" under s. 2 of the Federal Court Act - The Federal Court of Canada, Trial Division, held that the Custom Council was a "federal board, commission or other tribunal" and, accordingly, subject to the jurisdiction of the Federal Court - See paragraphs 17 to 23.

Indians, Inuit and Métis - Topic 6255

Government - Elections - Election legislation (incl. amendments to) - The applicants (Chief and Band councillors) were elected for a four year term under the Band's Election Act - Custom Council of the Band amended the Act to reduce the term of office from four to two years - Accordingly, the applicants' term of office ended after two years and, following elections, they were replaced in office - The applicants submitted that Custom Council failed to follow the procedure under s. 19 of the Election Act for amending the Act - Section 19 required a resolution authorizing the amendment and a tribal meeting to give Band members an opportunity to discuss the proposed amendment - "Tribal meeting" was not defined in the Act - The Federal Court of Canada, Trial Division, held that meeting at issue constituted a "tribal meeting" for the purposes of s. 19 - Out of respect for the Band's mode of governance, the court was not willing to read into s. 19 stringent procedural requirements for a tribal meeting - All that was required was adequate notice of the meeting and an opportunity to comment on the proposed amendment, which conditions were satisfied - See paragraphs 24 to 40.

Indians, Inuit and Métis - Topic 6255

Government - Elections - Election legislation (incl. amendments to) - The applicants (Chief and Band councillors) were elected for a four year term under the Band's Election Act - Custom Council of the Band amended the Act to reduce the term of office from four to two years - Accordingly, the applicants' term of office ended after two years and, following elections, they were replaced in office - The applicants submitted that Custom Council breached the duty of fairness by failing to give them proper notice of the amendment or the tribal meeting to discuss the amendment - The Federal Court of Canada, Trial Division, held that in amending the Act the Custom Council owed the applicants a duty of fairness - However, the basic requirements of procedural fairness (unbiased tribunal, notice and right to make representations) were met - Formal notice was not required where the applicants had actual notice of the amendment and meeting and were given an opportunity to make representations - See paragraphs 41 to 59.

Indians, Inuit and Métis - Topic 6345

Government - Band meetings - Notice of - [See second Indians, Inuit and Métis - Topic 6255 ].

Statutes - Topic 6705

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Presumption against retrospectivity or retroactivity rebutted - An Indian Band's Election Act provided for four year terms of office - The Act was amended by the Custom Council to reduce the term to two years - The governing Chief and Band Council (applicants) were removed from office and replaced after two years - The applicants submitted that the amendment could not be applied retrospectively to end their term of office after two years - The Federal Court of Canada, Trial Division, agreed that amendments were not to have retrospective effect unless such a construction was expressly or by necessary implication required by the language of the amendment - The court held that the presumption against retrospectivity was rebutted by the Custom Council's clear intention - The sole purpose of the amendment was to reduce the applicant's existing term of office to two years - See paragraphs 60 to 66.

Words and Phrases

Tribal meeting - The Federal Court of Canada, Trial Division, discussed what constituted a "tribal meeting" as required by s. 19 of the Roseau River Anishinabe First Nation Election Act - See paragraphs 24 to 40.

Cases Noticed:

Roseau River Anishinabe First Nation v. Atkinson et al. (2001), 208 F.T.R. 304 (T.D.), refd to. [para. 16].

Bone v. Sioux Valley Indian Band No. 290 Council et al. (1996), 107 F.T.R. 133 (T.D.), refd to. [para. 17].

Gabriel v. Canatonquin, [1980] 2 F.C. 792 (F.C.A.), refd to. [para. 19].

Lameman et al. v. Gladue et al. (1995), 90 F.T.R. 319 (T.D.), refd to. [para. 19].

Sparvier v. Cowessess Indian Band No. 73, [1994] 1 C.N.L.R. 182; 63 F.T.R. 242 (T.D.), refd to. [para. 19].

Francis et al. v. Mohawk Council of Kanesatake et al. (2003), 227 F.T.R. 161 (T.D.), refd to. [para. 21].

Inuit Tapirisat of Canada and the National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 41].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para; 42].

Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 42].

Hatch v. District Municipality of Muskoka (1990), 71 O.R.(2d) 611 (S.C.), refd to. [para. 43].

Lakeside Colony of Hutterian Brethren et al. v. Hofer et al., [1992] 3 S.C.R. 165; 142 N.R. 241; 81 Man.R.(2d) 1; 30 W.A.C. 1, refd to. [para. 44].

Newfoundland Telephone Co. Ltd. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 46].

Committee for Justice & Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 46].

Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81; 84 D.L.R.(4th) 105, refd to. [para. 46].

Save Richmond Farmland Society et al. v. Richmond (Township), [1990] 3 S.C.R. 1213; 116 N.R. 68, refd to. [para. 47].

Telecommunications Workers Union v. Canadian Radio-Television and Telecommunications Commission et al., [1995] 2 S.C.R. 781; 183 N.R. 161, refd to. [para. 50].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 53].

Canadian Transit Co. v. Public Service Relations Board (Can.) et al., [1989] 3 F.C. 611; 99 N.R. 330 (F.C.A.), refd to. [para. 53].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 62].

Upper Canada College v. Smith (1920), 61 S.C.R. 413, refd to. [para. 63].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 62].

Quebec (Attorney General) v. Healy, [1987] 1 S.C.R. 158; 73 N.R. 288; 6 Q.A.C. 56, refd to. [para. 64].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 2(1) [para. 18].

Counsel:

Andrew Kelly, for the applicants;

Richard Hayden, on his own behalf;

Harley Schachter, for the respondents.

Solicitors of Record:

Booth Dennehy Ernst & Kelsh, Winnipeg, Manitoba, for the applicants;

Duboof Edwards Haight & Schachter, Winnipeg, Manitoba, for the respondents.

This application was heard on January 14, 2003, at Winnipeg, Manitoba, before Kelen, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on February 14, 2003.