A federal judge has ruled that Acho Dene Koe First Nation (ADKFN) illegally postponed its election, but the federal government says it will be appealing the decision.
In March 2020 when COVID-19 was declared a pandemic, the federal government passed legislation allowing First Nations to delay elections to avoid transmission of the virus. This was called the First Nations Election Cancellation and Postponement Regulations and 116 First Nations postponed their elections as a result of it.
ADKFN delayed the election twice, extending it nearly a year later than initially scheduled.
Floyd Bertrand, a former chief of ADKFN and current member, filed a lawsuit claiming the First Nation did not have the right to postpone, without consulting its membership.
“We wanted our input in any of the major decisions that the chief and council may have,” Bertrand told CKLB.
The first delay came in June, when the COVID risk in the territory was low.
“I just believed that it was an opportunity to postpone the election and extend the term,” Bertrand says. “There was no COVID cases in the community… There was no reason for postponement.”
On April 1, Justice Sébastien Grammond wrote in his decision, the council of ADKFN did not have the authority to delay the election.
Grammond wrote the federal regulations are invalid in ADKFN, because the First Nation’s elections are not governed by the Indian Act.
Marc Miller, minister of Indigenous Services, says in a press release the federal government will be appealing the decision.
“Last April, after hearing directly from First Nation leaders regarding their grave concerns, Indigenous Services Canada acted promptly to develop the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) to address the immediate public health risks posed by holding elections during the COVID-19 global pandemic,” he wrote.
Despite the ruling, Boyd Clark, advisor and band manager for ADKFN, says the legal dispute isn’t over.
“It is still early in the game,” he says.
Boyd says the First Nation is considering joining the federal government in its appeal.
“ADKFN made their decision to defer the election, the same as the other 115 First Nations in Canada, based upon the regulations,” he says. “Obviously, at this point in time, the decision of Judge Grammond, in the proceedings between Floyd Bertrand and ADKFN speaks to the contrary of that.”
The First Nation asserts the postponement is also authorized by its customary law, in the court documents.
But Justice Grammond wrote that ADKFN’s customary law requires elections every three years and extensions are not allowed.
However, the judge ruled against Bertrand’s request to remove those in office as the election will be held in the coming weeks.
The ruling could set a precedent for future disputes, but will likely have little impact on the current situation.
No Bertrand on the ballot
Bertrand, who was hoping to run for chief, was also declared ineligible to have his name on the ballot, according to a separate court case.
ADKFN’s court documents allege Bertrand is unable to run for the position of chief, as he owes the band council an amount of over $500.
However, he alleges in the lawsuit that he does not owe any money.
He asked the Federal Court of Canada for interim relief against the council decision that he is ineligible to run for chief, but Justice Grammond denied his motion.
“I thought we put forward a good case of supporting evidence to speak that I should be eligible to run,” Bertrand said.
Additionally, in the lawsuit he claims there is no law preventing those who owe the council money from running.
“In 2007, ADK’s council prepared a draft election code, which contained a provision declaring ineligible any person who has an outstanding debt of over $500 towards the First Nation or its subsidiaries. The parties disagree as to whether that code was validly adopted,” Judge Grammonds decision reads.
The decision says Bertrand has not shown that he will suffer irreparable harm by not being able to run and he has other avenues to challenge the election.
“I still have the opportunity to appeal the whole election,” Bertrand explains.
This would be through the appeal process created by the First Nation or by applying to the supreme court.
Justice Grammond wrote in his decision that the situation was too complex and required proper time to consider.
“These issues deserve careful consideration. However, I am unable to find that Mr. Bertrand has a strong likelihood of prevailing,” he writes.
Bertrand says despite not being able to run, he is happy the election will be going forward as scheduled and he will be researching the candidates to decide who to support.
The election will take place on April 26 and anyone interested in voting can find a list of the candidates on ADKFN’s Facebook page.
Boyd says as the pandemic is ongoing, there will be changes to this year’s election, this includes offering online voting for the first time.