Manhole Repair Work Begins This Weekend

November 25, 2023

Creating our own Child Well-Being Law

November 29, 2023

MCFN Leadership Committee Appeal Hearing

November 28, 2023

REASONS FOR JUDGMENT AND JUDGMENT

FACTS

On Thursday, June 22, 2023, elections took place to choose councillors, a Deputy Chief and Chief of the Moose Cree First Nation. The Moose Cree First Nation is located in the James Bay lowlands in Northern Ontario and has approximately 5,073 members.

Following the election, the Appellant filed an appeal of the election to the Leadership Committee based on a number of grounds. In accordance with Provision 13.1 of the Moose Cree First Nation Election Regulations, (Election Regulations), he submits this Appeal of the 2023 General Election on the grounds of Illegal Practices.

Further, he submitted in accordance with Provision 13.6 of the Election Regulations, this Appeal against the following Candidates for Official Office in the 2023 General Election:

Candidate for Deputy Chief, Earl Cheechoo;
Candidate for Deputy Chief, Warren Hardisty;
Candidate for Elder Councilor, Barbara Faries;
Candidate for Councilor, Norman Hardisty;
Candidate for Councilor, Katherine Turner;

He further alleges that Band Council Resolution 2022/23-1759, dated March 13, 2023 signed by all the above named members of Chief and Council, is a plain, clear, and irrefutable violation of Provision 1.4 of the Moose Cree First Nation Election Regulations in addition to creating a second violation of the Election Regulations; that is, the prescribed upper limit on the Campaign Period, as described in paragraph 1.4, of the Moose Cree First Nation Election Regulations, and which is reproduced below:

Provision 1.4 of the Election Regulations states, “After August 9, 2008, a General Election shall be held no later than 60 days before the end of the current office term; should this date fall on a weekend or holiday, the Election shall be held on the first Business Day before the weekend or holiday” (emphasis added).

In his view, Band Council Resolution 2022/23-1759 illegally amends, ignores, overrides, disregards, or any other act that has the effect of negating Membership Legislation by scheduling a General Election ten (10) days before the end of the current office term.

In addition, he alleges that Band Council Resolution 2022/23-1759 simultaneously violated the Membership-defined Campaign Period. Through reading Provisions 3.3 and 3.5(1) and when read together, the Membership granted Chief and Council the discretion to set a Campaign Period between 30 and 65 days. In his view, this BCR effectively created a Campaign Period of 82-days, 17 days beyond the legal limit.

Upon learning of the illegal content of the proposed BCR 2022/23 – 1759, the Appellant alleges that all the above-named Officials were obligated not to sign the BCR and to immediately notify the Leadership Committee or the Membership of the crisis.

He further alleges that the above-named Officials had the obligation following the implementation of the illegal BCR to notify the Chief Electoral Officer, the Leadership Committee and/or the Membership of their error.

Effect of the Illegal BCR on the Fairness of the Election

The Order contained in BCR 2022/23-1759 created an illegal campaign period contrary to the provisions set out in the Election Regulations. Through the Election Regulations, the Membership granted Chief and Council a discretionary power to set a campaign period between 30 and 65 days through Provisions 3.3 and 3.5(1) when read together. BCR 2022/23-1759 creates an 82-day campaign period, 17 days longer than permitted by law. In the Appellant’s view, this action gave the incumbent/sitting candidates in the 2023 General Election an advantage over their challengers and, further, he argues, it materially affected the outcome of the 2023 General Election in their favour.

The Appellant stated that the second negative effect of extending the campaign period 17 days longer than permitted by law, is that the challenging Candidates (those not on the previous council) had additional costs imposed upon them by this illegal BCR.

He argues that in normal election years, many challenging candidates lack the financial resources to launch effective campaigns that match the incumbent’s resources which placed all challenging Candidates in an unfair, disadvantaged position in the 2023 General Election.

He argued that lengthening the campaign period had the dual effect of placing incumbent candidates in an unusual and unfair advantageous position and simultaneously disadvantaging their opponents.

The foremost effect of this Illegal Practice was the damage inflicted upon the Continuing Sovereignty of the Membership. In the Appellant’s view, the former Chief and Council ignored the authority of the Membership, undermining all attempts to assert the First Nation’s own Sovereignty.

2. ANALYSIS

Essentially, the Appellant is arguing that the result of Band Council Resolution 2022/23-1759, dated March 13, 2023, and when read together with 3.3 and 3.5(1) of the Moose Cree First Nation Election Regulations, created an 82-day campaign period, which was 17 days longer than permitted by the Moose Cree First Nation Election Regulations. This action gave the incumbent/sitting candidates in the 2023 General Election and who are named in this appeal, an advantage over their challengers.

In the Appellant’s view, this materially affected the outcome of the 2023 General Election in their favour. He further argues that by signing the BCR, the incumbent candidates for Chief and Council took part in a plain, clear, and irrefutable violation of Provision 1.4 of the Moose Cree First Nation Election Regulations.

The relevant sections of the Moose Cree First Nation Election Regulations, which apply to this appeal and to the Leadership Committee read as follows:

Section 1.4

“After August 9, 2008, a General Election shall be held no later than 60 days before the end of the current office term; should this date fall on a weekend or holiday, the Election shall be held on the first Business Day before the weekend or holiday”

The Appellant also referred to sections 3.3 and 3.5 (1) which reads as follows:

Notice of Nomination Meeting

Section 3.3

The Electoral Officer must schedule and post notices of a Nomination Meeting at a Public Place within three days of appointment if not already appointed or at least 30 days before the date of the Election.

Nomination Meeting

3.5.1

The Nomination Meeting must be held 15 days after the posting of the Nomination Meeting but no later than 65 days before the Election.

The Extension of the Campaign Period

The Appellant argues that in normal election years, many challenging candidates lack the financial resources to launch effective campaigns that match the incumbent’s resources which placed all challenging Candidates in an unfair, disadvantaged position in the 2023 General Election.

He argued that lengthening the campaign period had the dual effect of placing incumbent candidates in an unusual and unfair advantageous position and simultaneously disadvantaging their opponents.

However, during his appeal, the Appellant did not produce any evidence on the financial status of either the incumbents or the challenging candidates to support his argument that the extension of the campaign period gave an unfair advantage to the incumbents. In addition, and despite his argument, only two of the incumbent candidates were re-elected into office in the June 2023 election.

In addition, he argues that the incumbent candidates had the obligation following the implementation of the illegal BCR to notify the Chief Electoral Officer, the Leadership Committee and/or the Membership of their error. However, during his appeal, he did not produce any authority that imposes any duty on any incumbent candidates to notify anyone of any irregularities in BCR wording.

In this Hearing, the onus is on the Appellant to bring compelling evidence to prove its allegations on a balance of probabilities. The Appellant failed to produce any evidence on the financial status of either the incumbent candidates or the challenging candidates to support his argument that the extension of the campaign period gave an unfair advantage to the incumbent candidates who are the subject of this appeal. He also failed to produce any evidence of what additional costs were imposed on the challenging candidates by the passage of the illegal BCR. For these reasons, this ground of appeal must fail.

With respect to his argument that the incumbent candidates had the obligation following the implementation of the illegal BCR to notify the Chief Electoral Officer, the Leadership Committee and/or the Membership of their error, the Appellant failed to produce any authority that imposes any duty on any incumbent candidates to notify anyone of any irregularities in BCR wording or other actions of council. For this reason, this argument must fail as well.

The June 2023 Election

During the Hearing, the Leadership Committee were referred to an email dated February 23, 2023, from Lindy Linklater to Moose Cree First Nation’s legal counsel at the time, Nuri Frame which read, in part:

“I am the Director of Administration & Communications for Moose Cree First Nation and will need a consult on the following articles from our Election Regulations:

Article 1.4 states that “a General Election shall be held no later than 60 days before the end of the current office term“. The current Council’s term ends July 4, 2023; therefore, the Election Day must be held on or before May 1, 2023. The said date is based on “Days” as defined in the regulations as “calendar days excluding statutory holidays within Canada and Chief and Council designated holidays”. This is not an ideal time for a General Election given our traditional lifestyle of spring harvest. Nevertheless, it is as dictated by the timelines contained in the MCFN Election Regulations. Article 2.2 states, “the Council shall appoint a Chief Electoral Officer…at least ninety days before the date of the General Election”. Therefore, the Chief Electoral Officer should have been appointed by January 27, 2023.

Obviously, key dates have come and gone. As a result, we now have an undesirable situation, one that could generate multiple appeals and throw the election process into disarray. My suggestion would be that the Chief and Council seek membership approval to extend the Council’s term of office by several months to sort through all of this, Nuri, how would we proceed to explain to the membership that because of the dissolving of the former Chief & Council in 2019, the dates to hold the 2023 Election have changed significantly, landing the election date on May 1, 2023 and during a time when members are out on the land spring hunting, this would hinder turnout at the polls for this election.

Please advise, contact me at your earliest convenience.

Thank You.”

This is the problem that the Appellant raises as well in his argument. He cites section 1.4 of the Moose Cree First Nation Election Regulationswhich reads:

As Mr. Linklater correctly pointed out, the former Chief & Council dissolved in 2019 and as a result, a new election was required. In accordance with section 1.4 of the Moose Cree First Nation Election Regulations, the dates to hold the 2023 Election changed significantly, and meant the election date was supposed to be held on May 1, 2023 in order to comply with section 1.4 of the Moose Cree First Nation Election Regulations.

This would have meant holding the election during a time when members are out on the land spring hunting and would have affected voter turnout at the polls for this election.

As a result, council passed BCR # 2022/23-1759 on March 13, 2023, which established the new election date of June 22, 2023. The Leadership Committee felt that was no ill will or intent on the part of Chief and Council to give anyone an advantage or disadvantage in the election, but rather this was Chief and Council’s attempt to respect the wishes of the voters, particularly those who would have been out on the land during the spring goose hunt and therefore, would not have been able to take part in the election.

The term of office for the new Chief and Council would then run from July 3, 2023, to July 3, 2027 at 12:00 midnight.

Consequently, this problem of holding the election during a time when members are out on the land spring hunting will continue.

For example, in order to comply with section 1.4 of the Moose Cree First Nation Election Regulations an election would have to held May 3, 2027, 60 days before the end of the current term of July 3, 2027.

The Appellant was asked whether he is seeking a new election and he said no. He instead stated that the Moose Cree First Nation Election Regulations need to be amended in order to provide more clarity around elections.

Under the circumstances, we are inclined to agree. Therefore, under the power conferred upon the Leadership Committee at section 7.7 (a) of our Terms of Reference, specifically to review, monitor and make recommendations to the Council on the

MCFN Election Regulations, we recommend that council immediately direct that the Leadership Committee be mandated to develop amendments to the Moose Cree First Nation Election Regulations to, among other things, consider amendments to section 1.4 of the Moose Cree First Nation Election Regulations to avoid the problem of the election continually falling on or around the time of the spring hunt. Such proposed amendments to the Moose Cree First Nation Election Regulations will then be brought back to the Membership for ratification as required by the Moose Cree First Nation Membership Meeting Regulations.

We further recommend that we be provided with any financial and human resources to assist us in our task.

Respectfully,

Originally signed by Caroline Chum
Chair, Leadership Committee