Shotclose et al. v. Stoney First Nation, (2011) 392 F.T.R. 115 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: June 22, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 392 F.T.R. 115 (FC);2011 FC 750

Shotclose v. Stoney First Nation (2011), 392 F.T.R. 115 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JL.015

Robert Shotclose, Harvey Baptiste, Corrine Wesley, Myrna Powderface, Cindy Daniels and Wanda Rider (applicants) v. Stoney First Nation, as Represented by its Chiefs and Councillors, and Bearspaw First Nation, as Represented by its Chiefs and Councillors, Chief David Bearspaw Jr., Trevor Wesley, Patrick Twoyoungmen, Roderick Lefthand and Gordon Wildman (respondents)

(T-2085-10; 2011 FC 750)

Indexed As: Shotclose et al. v. Stoney First Nation

Federal Court

Mosley, J.

June 22, 2011.

Summary:

The applicants, members of the Bearspaw First Nation, applied for judicial review of the decisions and actions of the Bearspaw First Nation, as represented by its Chief and Councillors, and the Stoney First Nation, as represented by its Chiefs and Councillors, which resulted in an election for the Bearspaw Chief and Council not being held on or before December 10, 2010. The applicants challenged the decisions and actions of the Bearspaw Chief and Councillors to extend the two-year terms of office mandated by custom and a September 30, 2008 Band Council resolution.

The Federal Court granted the application. The decisions and actions of the Chief and Councillors to extend their terms were declared to have been contrary to Bearspaw Band custom and therefore invalid. The terms of office of the Chief and Councillors were declared to have come to an end on December 9, 2010, and it was ordered that an election be held within 60 days to select a new Chief and Council for the Bearspaw First Nation.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - [See Indians, Inuit and Métis - Topic 6223 ].

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See Indians, Inuit and Métis - Topic 6223 ].

Courts - Topic 4071.1

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - General - The applicants, members of the Bearspaw First Nation, applied for judicial review of the decisions and actions of the Bearspaw First Nation, as represented by its Chief and Councillors, and the Stoney First Nation, as represented by its Chiefs and Councillors, which resulted in an election for the Bearspaw Chief and Council not being held on or before December 10, 2010 - The applicants challenged the decisions and actions of the Bearspaw Chief and Councillors to extend the two-year terms of office mandated by custom and a September 30, 2008 Band Council resolution - The respondents argued that there were several possible decisions by the Chief and Council that were reviewable by the court and the applicants failed to seek leave to address several decisions as required by rule 302 of the Federal Courts Rules - The Federal Court stated that "Rule 302 provides that an application for judicial review shall be limited to one decision unless the Court orders otherwise. It has been held to not apply where there is a continuous course of conduct ... In my view, this application concerns a continuous course of conduct. The decisions in question are so closely linked as to be properly considered together. Should I be found to have erred in that conclusion, I would dispense with the requirement for separate applications under Rule 55. It is clear from the evidence that there was no transparency about the course of action that was being followed by the Chief and Council" - See paragraph 64.

Courts - Topic 4071.3

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Time for - The applicants, members of the Bearspaw First Nation, applied for judicial review of the decisions and actions of the Bearspaw First Nation, as represented by its Chief and Councillors, and the Stoney First Nation, as represented by its Chiefs and Councillors, which resulted in an election for the Bearspaw Chief and Council not being held on or before December 10, 2010 - The applicants challenged the decisions and actions of the Bearspaw Chief and Councillors to extend the two-year terms of office mandated by custom and a September 30, 2008 Band Council resolution - The respondents argued that there were several possible decisions by the Chief and Council that were reviewable by the court and the applicants failed to bring a timely application for judicial review with respect to any of those decisions - The Federal Court stated that "the applicants have requested relief by way of certiorari, mandamus, prohibition and declaration under subsection 18(1) of the Federal Courts Act. These remedies, ... are not subject to the statutory time bar in subsection 18.1(2) of the [Federal Courts] Act ... The remedies sought are discretionary and may be denied where there has been unreasonable delay" - Here it was a matter of days after the election date had passed without an election having taken place that the application was filed - If the court had determined that this was an application for judicial review of an October 14, 2010 Band Council resolution, or one of the earlier decisions by the Chief and Council, it would have found that the applicants were denied reasonable notice of those decisions prior to the December 9, 2010 election date and that the statutory time-line did not begin to run until that date - See paragraphs 61 to 67.

Indians, Inuit and Métis - Topic 6222.2

Government - Band councils (incl. chief and councillors) - Duty of procedural fairness - [See Indians, Inuit and Métis - Topic 6223 ].

Indians, Inuit and Métis - Topic 6223

Government - Band councils (incl. chief and councillors) - Choice of council and chief by custom - The applicants, members of the Bearspaw First Nation, applied for judicial review of the decisions and actions of the Bearspaw First Nation, as represented by its Chief and Councillors, and the Stoney First Nation, as represented by its Chiefs and Councillors, which resulted in an election for the Bearspaw Chief and Council not being held on or before December 10, 2010 - The applicants challenged the decisions and actions of the Bearspaw Chief and Councillors to extend the two-year terms of office mandated by custom and a September 30, 2008 Band Council resolution - The Federal Court granted the application - The failure to hold the December 2010 election and the extension of the Chief and Council's terms was in breach of Bearspaw First Nation custom and the acts of the Chief and Council were in breach of procedural fairness - Bearspaw First Nation members had reason to expect that any changes to their electoral practices would be preceded by fair notice, an opportunity to be heard and a vote on the changes - Band practice required a vote to elect the Chief and Council - A survey, as implemented, was not an adequate consultation mechanism or alternative to a vote on the proposed changes - The applicants were given inadequate notice of the Chief and Council's intention to cancel the December 2010 election and they were denied a meaningful right to be heard - A reasonable apprehension of bias also arose given the process followed and the Chief and Council's direct interest in the outcome of the matter - Statements attributed to Chief Bearspaw and published in local newspapers indicated that he was contemplating a referendum to obtain approval from the community to the proposed changes in governance - The applicants therefore had a legitimate expectation that they would be consulted about the proposed changes and an opportunity to vote on them at a referendum - See paragraphs 68 to 99.

Indians, Inuit and Métis - Topic 6241

Government - Elections - General - [See Indians, Inuit and Métis - Topic 6223 ].

Cases Noticed:

Sparvier v. Cowessess Indian Band No. 73 et al., [1993] 3 F.C. 142; 63 F.T.R. 242; 13 Admin. L.R.(2d) 266 (T.D.), refd to. [para. 47].

Angus et al. v. Chipewyan Prairie First Nation Tribal Council (2008), 334 F.T.R. 187; 2008 FC 932, refd to. [para. 47].

Vollant et al. v. Sioui (2006), 295 F.T.R. 48; 2006 FC 487, refd to. [para. 47].

Gabriel v. Canatonquin, [1978] 1 F.C. 124 (T.D.), affd. [1980] 2 F.C. 792 (F.C.A.), refd to. [para. 47].

Daigle v. Tremblay, [1989] 2 S.C.R. 530; 102 N.R. 81; 27 Q.A.C. 81, refd to. [para. 50].

R. v. Skoke-Graham - see R. v. Hafey et al.

R. v. Hafey et al., [1985] 1 S.C.R. 106; 57 N.R. 321; 67 N.S.R.(2d) 181; 155 A.P.R. 181, refd to. [para. 50].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 57].

Martselos v. Salt River Nation #195 (2008), 411 N.R. 1; 2008 FCA 221, refd to. [para. 58].

Giroux v. Salt River First Nation - see Giroux v. Swan River First Nation et al.

Giroux v. Swan River First Nation et al. (2006), 288 F.T.R. 55; 2006 FC 285, varied (2007), 361 N.R. 360; 2007 FCA 108, refd to. [para. 58].

News v. Wahta Mohawks - see Wahta Mohawk Women's Group v. Wahta Mohawks.

Wahta Mohawk Women's Group v. Wahta Mohawks (2000), 189 F.T.R. 218; 97 A.C.W.S.(3d) 585 (T.D.), refd to. [para. 58].

Ermineskin v. Ermineskin Band Council (1995), 96 F.T.R. 181; 55 A.C.W.S.(3d) 888 (T.D.), refd to. [para. 59].

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. 59].

Ontario Provincial Police Commissioner v. MacDonald et al. (2009), 255 O.A.C. 376; 3 Admin. L.R.(5th) 278; 2009 ONCA 805, refd to. [para. 60].

Bowater Mersey Paper Co. v. Communications, Energy and Paperworkers Union of Canada, Local 141 (2010), 289 N.S.R.(2d) 351; 916 A.P.R. 351; 3 Admin. L.R.(5th) 261; 2010 NSCA 19, refd to. [para. 60].

Krause et al. v. Canada et al., [1999] 2 F.C. 476; 236 N.R. 317 (F.C.A.), refd to. [para. 61].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 62].

Salt River First Nation No. 195 v. Marie - see Wanderingspirit et al. v. Marie et al.

Wanderingspirit et al. v. Marie et al. (2003), 312 N.R. 385; 2003 FCA 385, refd to. [para. 63].

Servier Canada Inc. et al. v. Canada (Minister of Health) et al., [2007] F.T.R. Uned. 100; 2007 FC 196, refd to. [para. 64].

Balfour v. Norway House Cree Nation et al., [2006] 4 F.C.R. 404; 288 F.T.R. 182; 2006 FC 213, refd to. [para. 64].

Frank v. Bottle et al., [1994] 2 C.N.L.R. 45; 65 F.T.R. 89 (T.D.), refd to. [para. 68].

Francis et al. v. Mohawk Council of Kanesatake et al., [2003] 4 F.C. 1133; 227 F.T.R. 161 (T.D.), refd to. [para. 69].

Long Lake Cree Nation v. Canada (Minister of Indian and Northern Affairs), [1995] F.C.J. No. 1020 (T.D.), refd to. [para. 91].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 92].

Roseau River Anishinabe First Nation v. Roseau River Anishanabe First Nation (Council) - see Roseau River Anishinabe First Nation v. Atkinson et al.

Roseau River Anishinabe First Nation v. Atkinson et al., [2003] 2 C.N.L.R. 345; 228 F.T.R. 167 (T.D.), refd to. [para. 92].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 95].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 95].

Prince et al. v. Sucker Creek First Nation (2008), 337 F.T.R. 1; 303 D.L.R.(4th) 438; 2008 FC 1268, affd. (2009), 387 N.R. 173; 2009 FCA 40, refd to. [para. 97].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, refd to. [para. 99].

Martselos v. Salt River Nation #195, [2008] F.T.R. Uned. 15; 2008 FC 8, affd. (2008), 411 N.R. 1; 2008 FCA 221, refd to. [para. 103].

Bigstone et al. v. Big Eagle et al. (1992), 52 F.T.R. 109 (T.D.), refd to. [para. 105].

Jock et al. v. Canada (Minister of Indian and Northern Affairs) et al. (1991), 41 F.T.R. 189 (T.D.), refd to. [para. 105].

Apotex Inc. v. Canada (Attorney General) - see Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc.

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), refd to. [para. 106].

Statutes Noticed:

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 18(1) [para. 52]; sect. 18.1(1) [para. 53]; sect. 18.1(2) [para. 54].

Federal Courts Rules, 1998, rule 302 [para. 56].

Authors and Works Noticed:

Canada, Standing Senate Committee on Aboriginal Peoples, First Nations Elections: The Choices Is Inherently Theirs (2010), generally [para. 76].

Counsel:

Heather Treacy and Josh Jantzi, for the applicants;

Jeffery Rath and Nathalie Whyte, for the respondents (Bearspaw First Nation);

Ken Staroszik, for the respondents (Wesley First Nation).

Solicitors of Record:

Heather Treacy, Josh Jantzi, Fraser Milner Casgrain, LLP, Calgary, Alberta, for the applicants;

Jeffery Rath, Nathalie Whyte, Rath & Company, Calgary, Alberta, for the respondents;

Ken Staroszik and Wilson Laycraft, Calgary, Alberta, for the respondents.

This application was heard on April 12-13, 2011, at Calgary, Alberta, before Mosley, J., of the Federal Court, who delivered the following decision on June 22, 2011, at Ottawa, Ontario.