Former Acho Dene Koe chief Floyd Bertrand is taking legal action with other band members against the First Nation’s current chief, Gene Hope, and council.
Bertrand was first elected in 2002 but said infighting among councillors forced him to hold another election. He returned as chief of the Fort Liard nation in 2003 and served his full two-year term until 2005.
Now Bertrand and others are seeking a return to the practice of two-year terms.
“Band members are upset and frustrated because they say they only want an election. That’s what we’ve been asking for,” said Bertrand, whose name stands on an application filed in federal court on October 22 naming Chief Hope and six serving councillors, as well as the federal government.
Bertrand says legal action became necessary when, despite petitions and band member meetings calling for an election, chief and council made the decision in September to postpone an election for the third time.
Members were expecting to vote on November 9. Now, members are supposed to be marking their ballots some time in May 2021.
According to the Indian Act, bands without custom election codes are supposed to hold elections every two years.
That means, said Bertrand, the present chief and council – who came into office in 2017 – were to stand for re-election in May 2019.
Is there a custom election code?
The May 2019 election date was pushed forward to June 2020, with chief and council said to have based that decision on the recent past precedent of chiefs and councils serving three-year terms – as well as the Acho Dene Koe Nation’s alleged custom election code.
But Indigenous Services Canada’s record of the existence of such a custom election code is unclear.
Last year, Bertrand’s wife Patricia made a request under the Freedom of Information and Privacy Act for a signed copy of the Nation’s election code. However, a response from the Access to Information and Privacy Directorate indicated no records of the code were found.
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The letter further states: “This is due to the fact that the Acho Dene Koe First Nation is under a custom election, as such we do not hold this code.”
As far as Floyd Bertrand is concerned, no custom code could be found because no custom code exists.
That position is backed up by Harry Deneron, who has served as chief multiple times over the past five decades – including the period from 2005 to 2008. He signed an affidavit in 2019 confirming the custom election code was neither voted on by eligible band members nor adopted by a band council resolution. It was Deneron, as chief, who began work toward the custom election code in 2007.
Despite the lack of a custom election code, Deneron and his council served three years – as has every chief and council since.
In June, chief and council further postponed the Acho Dene Koe First Nation election to November, citing coronavirus pandemic measures and regulations implemented by Indigenous Services Canada in April.
Those federal measures allow a band to delay an election for up to six months, although that term may be extended once.
Chief and council have “overstayed their term,” said Bertrand, and have “laughed off and just shrugged off” concerns voiced and actions taken by membership.
In response, 86 members signed another petition formally calling for an election, while informally backing Bertrand to undertake legal action on their behalf. The First Nation has a registered population of 648, of whom 116 live elsewhere.
“We’re hoping that the justice system will listen to the band members here, listen to their voices stating that we want an election for chief and council,” said Bertrand.
‘A very unusual situation’
Orlagh O’Kelly of Field Law is Bertrand’s legal counsel.
This is the second challenge to a postponed election citing Covid-19 regulations in which O’Kelly has been involved.
Late last year, she represented members of the Mikisew Cree First Nation in Alberta. They were eventually successful in forcing the First Nation’s sitting chief and council to hold an election. At that time, O’Kelly argued that federal regulations allowing elections to be temporarily postponed due to Covid-19 did not pertain to elections held under a custom election code.
However, uncertainty regarding the Acho Dene Koe First Nation’s custom election code makes things less straightforward.
“It is a very unusual situation where there appears to have been a piecemeal process that’s gone forward over the past four elections, and in terms of [filing] a legal document you have to meet all possible scenarios,” said O’Kelly.
“Even if it seems like we are taking the position that there may be a custom code, that’s kind-of the alternative argument, per se. The position of my client, and those he’s spoken to in the community, is that their election should still be under the Indian Act.”
O’Kelly is arguing that Indigenous Services Canada does not have the jurisdiction to delay the election by regulation, nor the ability to delegate decision-making authority to anyone else.
“They’ve delegated that authority to the band council, who are, by their very position, in a conflict of interest to enforce that discretion,” she said.
Bertrand’s legal action also includes a Section 15 Charter of Rights and Freedoms argument, which O’Kelly says would be the “last thing that the court would look at.” The charter argument states that the federal Prevention of Diseases regulation had an adverse impact on Indigenous people as it removed their right to vote.
O’Kelly says federal courts ordinarily take at least nine months to hear matters. She will push for an expedited process, though, and ask for an interim injunction which would require chief and council to call an election immediately.
Bertrand hopes the matter can be resolved out of court, which would mean holding an election.
“It shouldn’t have really come to this point,” he said, adding that serving the membership is a privilege and not a right.
Bertrand says he has been asked if he will run for chief again.
“It’s something I’m going to have to look at and decide, if I get approached lots. I’m not sure. I’m just taking it one step at a time. I just want to make sure our voices are heard and an election is called,” he said.
Acho Dene Koe First Nation Chief Gene Hope did not respond to a request from Windspeaker.com for an interview.