Legal arguments out of a controversial election Beaufort Delta have explored how much power should an Indigenous board of directors have and who gets to decide what truth is in political debate.
Toby Kruger is the lawyer for Frederick Blake Jr., who received the most votes in September’s Gwich’in Tribal Council (GTC) Grand Chief election, but whose clear victory was overturned by the board of directors – going against the advice of its own independent Election Committee.
“We live in a free, democratic society,” Kruger argued in NWT Supreme Court recently. “The Gwich’in settlement area has no exception to that, it’s where people are free to speak their mind, particularly on issues of political importance.”
Kruger stated the people chose their desired leader through their votes — not the will of a handful of board members “that are connected to the incumbent” sitting behind closed doors.
A key complaint is whether comments on social media posts made by one candidate’s supporters diminished the reputation of the other election hopeful.
Incumbent Grand Chief Ken Kyikavichik, immediately filed a complaint following the election, after the 515 votes he received in the August 19th election was bested by Blake’s 604 votes.
Kyikavichik’s lawyer Orlagh O’Kelly quoted from a federal court case decided by a Mohawk judge, who stated deference should be owed to Indigenous decision makers.
“Indigenous decision makers are better placed than non-Indigenous courts to understand the laws and customs of Indigenous communities and also the unique circumstances of communities which they serve,” O’Kelly said.
O’Kelly also argued the GTC asked all parties to run a clean campaigns based on the truth. However, in social media posts attributed to Blake’s supporters, defamatory allegations were made against Kyikavichik.
“In their community, this is how they have decided to conduct campaigns,” she said, “and it’s not that you can’t share critical information, is that it needs to be true.”
Justice Annie Piché, a former prosecutor just appointed to the Supreme Court, engaged both lawyers in discussions throughout the day-long hearing.
“The flip side of this, is restricting the ability of members of the Gwich’in Tribal Council to express their views on current or past leadership, and I have some concerns about that,” she said at one point.
“How much should the board or the court restrict what members of the community can share with each other in terms of the performance of a leader? How they did, what issues, what people should think about in terms of re electing them?
“Who decides what is true?”
After Kyikavichik filed a complaint, the GTC’s Election Committee ruled Kyikavichik’s allegations were largely unfounded, or lacking supporting evidence. It concluded: “The decision rendered by Gwich’in voters on election day is not a decision that is subject to appeal.”
But the GTC board subsequently “determined there were election violations,” of the GTC by-laws leading up to the August 19th election. But it ruled both candidates can run in a new election, if they so choose.
Blake obtained an emergency hearing in NWT Supreme Court at the start of October, which was adjourned until October 30th.
Justice Piché said she will release her decision in writing, acknowledging all parties want an expedient ruling.
