Blake, Kyikavichik and GTC make arguments in election court case

An NWT Supreme Court justice is weighing whether to intervene in an internal decision regarding the Gwich’in Tribal Council’s August grand chief election.

Frederick Blake Jr, who won the most votes in the August 19 election, is challenging the Gwich’in Tribal Council board of directors’ decision to overturn the result and hold a new election.

Blake is asking the court to quash the board’s decision and uphold his election as grand chief.

Incumbent Ken Kyikavichik and the Gwich’in Tribal Council, however, argue the court should allow the board’s decision to stand.

The board made its decision following an appeal filed by Kyikavichik that alleged various elections violations by Blake and people associated with his campaign.

While an elections committee said Kyikavichik’s complaint was unfounded – and recommended that it be dismissed – the board found the complaint sufficient to overturn the results of the election.

In a Yellowknife courtroom on Wednesday, lawyers for Blake, Kyikavichik and the Gwich’in Tribal Council presented their arguments as the court considered Blake’s challenge.

‘Draconian remedy’

Blake’s lawyer, Toby Kruger, said overturning an election was “a draconian remedy” and “plainly unreasonable” in this case.

He said such a decision should require evidence of “egregious” violations and tampering.

Kruger argued that while the board has the power to overturn elections, it unreasonably disenfranchised Gwich’in voters and did not consider the protection of political speech in its decision.

“What is acceptable cannot be whatever the board says is acceptable,” he said.

Kruger said the case is important as Blake and Kyikavichik have very different visions for the Gwich’in Tribal Council.

He said it was the will of the Gwich’in people that Blake be elected as grand chief, noting his client won 604 votes to Kyikavichik’s 515.

Should the court interfere?

Orlagh O’Kelly, the lawyer representing Kyikavichik, said the board properly followed the decision-making process under the tribal council’s bylaw.

O’Kelly said that bylaw was approved at an annual general assembly, meaning the bylaw itself was the will of the Gwich’in people.

She argued the court should show a high degree of deference to the board’s decision, which she said was within a range of reasonable outcomes.

Jessica Buhler, representing the Gwich’in Tribal Council, agreed. She went a step further and argued the court should only interfere in the most extreme cases.

O’Kelly and Buhler both said the board made its decision not only based on Canadian law but through the lens of Gwich’in values. They said Indigenous decision-makers are best placed to understand Indigenous laws, cultural norms, traditions and values.

O’Kelly disagreed that the board had disenfranchised voters, noting the board did not disqualify Blake from running nor decide to disregard any ballots. Buhler said holding a new election would preserve the democratic right to vote.

Lawsuits, social media, election spending

The lawyers also presented their view of three allegations included in Kyikavichik’s original complaint, each of which the GTC board concluded had merit.

One of those allegations was that a lawsuit filed against the Gwich’in Tribal Council by the Gwichya Gwich’in Council – which represents Gwich’in members in Tsiigehtchic, where Blake lives – had been timed to influence voters and damage Kyikavichik’s campaign.

Kruger said that allegation ignored a conflict between the Gwichya Gwich’in Council and the Gwich’in Tribal Council that preceded the election. He said the tribal council had filed its own lawsuit against a Tsiigehtchic resident “smack dab in the middle” of the election campaign.

O’Kelly said the Gwichya Gwich’in Council’s lawsuit was different as there was a lot of publicity surrounding it. She said it was promoted through a press release and information sessions with community members.

A second allegation was that social media posts by people associated with Blake’s campaign were “intended to harm or lower” Kyikavichik’s reputation.

Kruger said those posts were political speech protected by the Charter and described them as “quite benign.” He argued the board had translated criticism of the current administration as justification to overturn the election, which he said was “disconnected” from democracy.

O’Kelly said the social media posts “may not be a big deal if it was Premier Danielle Smith” or another Canadian politician but, in this case, the cultural context was important.

She said Gwich’in Elders were concerned about the election campaign, which they wanted to be held in a culturally sensitive manner. She said board members were very aware of what happened during the campaign and its impact on members.

Finally, Kyikavichik alleged that Blake had exceeded the $10,000 campaign spending limit.

The elections committee said Blake had provided receipts too late for analysis of his campaign spending to take place, leading to “an inability to determine in a timely and concrete manner whether or not the spending limit was exceeded.” The board subsequently concluded an “inequitable circumstance amongst candidates” had resulted.

Kruger argued Blake had properly completed a declaration form that only required him to disclose personal spending. He said his client provided additional receipts later and his spending did not exceed the limit.

O’Kelly said Blake had specifically asked about donations before declaring expenses and added that the bylaw, which Blake said he had read, provided further detail about what was required.

She argued Blake knew what was expected of him and his decision to now interpret that only personal expenses had to be disclosed was “opportunistic.”

“We’re still learning about new expenses,” she added.

Justice Annie Piché has reserved her decision in the case.

Piché said while she recognizes that Gwich’in members want the case to be resolved quickly, she needs to take time to make the right decision.