Federal judge hears arguments over Acho Dene Koe election

A federal judge this week heard a full day of arguments as former chief Floyd Bertrand challenged the Acho Dene Koe First Nation’s decision to twice delay its election.

Bertrand has taken legal action against both the First Nation’s sitting chief and council and the federal government. The First Nation used newly implemented pandemic-related federal legislation to postpone its election.

Federal Court Justice Sebastien Grammond heard from lawyers representing the First Nation, the federal government, Bertrand, and the Band Members Alliance and Advocacy Association of Canada.

Indigenous Services Canada’s regulations allowing First Nations to postpone elections during the pandemic, implemented in April 2020, have been challenged in a number of applications for judicial review. This is the first time arguments have been heard in court.

The regulations state First Nations can delay or postpone elections for no more than two six-month periods in order to “prevent, mitigate or control the spread of diseases on a reserve.”

Grammond pointed out that members of the Acho Dene Koe First Nation do not live on a reserve.

“You’re essentially asking me to disregard the text. It says for prevention of disease et cetera on reserves… it’s on reserve and off reserve. That’s a difficult one,” said Grammond.

“In order to really give effect, the purpose of the regulations, which I submit are health and safety-based, requires a broader reading of the recognition that First Nation communities more generally face the heightened risk that [is] meant to be addressed by the regulations,” said Madelaine Mackenzie, co-counsel for the Acho Dene Koe First Nation.  

Grammond said bylaws in the Indian Act appear to provide parallel powers to the new regulations. He noted 73.1.f., which allows Canada to make regulations to prevent the spread of diseases on reserves, and 81.1.a., which allows band councils to make regulations regarding health and to prevent the spread of contagious and infectious diseases.  

“If they can make regulations with respect to the same issues, does it mean that the regulation here was kind-of redundant?” the judge asked. “Could Acho Dene Koe have made the regulation under section 81.1.a.?”

He suggested 81.1.a could be used by a band to extend its term in office.

Federal co-counsel Glen Jermyn confirmed that was possible, but stressed the “stopgap” aspect of the election postponement regulations and the need for a consistent approach with all First Nations.

“It’s taking a look at a situation that’s occurring across the country in an unprecedented pandemic that came to be in March of 2020, and the government looked at the situation and said this is a serious problem. It’s a serious problem for all First Nations,” said Jermyn.

“It’s a particularly serious problem for First Nations that are isolated with no or limited access to healthcare and, accordingly, the regulations are bought in to provide … an additional tool to deal with the situation.”

He stressed the regulation meant bands would not be without governance should their election dates fall during the pandemic, at a time when important and urgent decisions were required.

Bertrand’s legal counsel, Orlagh O’Kelly, held that those bylaws in the Indian Act could not be used to amend a custom election code, as Grammond ruled in a previous decision, nor should they be able to grant power to First Nations to extend their terms of office and, by doing so, amend their election laws.

The Acho Dene Koe Nation contends it has a custom election code that governs how its elections are carried out, though that code has not been ratified.

O’Kelly, on Bertrand’s behalf, argues that the First Nation’s chief and council extended their terms of office without consulting members, “contrary to custom.”

She took exception to Canada’s argument that the regulations were as limited as possible.

“Limited from whose perspective? Because these certainly aren’t limited from the members’ perspective, who lost their right to vote now for a year. The analogy is, can [federal health minister Patty] Hajdu, under her public health authorities, enact regulations for cabinet to extend their terms in office? It’s something that most individual Canadians … would find offensive,” said O’Kelly.

Evan Duffy, legal counsel for the Band Members Alliance and Advocacy Association of Canada, argued the broader implications of the federal regulations.

Duffy, in a written submission, said the regulations allowed powers to be exercised “in the absence of consultation with grassroots band members” that provided a benefit to elected leaders, “even when the postponement is not needed.”

His client was granted intervener status. The advocacy association says its mandate is to advocate for band members across Canada experiencing financial or governance issues.

If the court determines the election postponement regulations are beyond Canada’s authority, Jermyn said Canada needed at least three months to “deal with any deficiencies in the regulations.”

However, O’Kelly said there was no evidence to justify a three-month wait. She requested 30 days.

When O’Kelly filed her court documents in October 2020, she asked for the Acho Dene Koe First Nation’s chief and council to vacate their positions immediately. However, Acho Dene Koe members are now scheduled to vote on April 26.

As an election date had been set, Mackenzie argued a decision on the case would have no practical effect and the court should decline to hear the matter.

“Fundamentally,” said O’Kelly in a written memorandum, “this application is about the limits of government authority during a public health pandemic and the manner in which fundamental democratic voting rights may be curtailed.”

Grammond, reserving his decision, said he would be “quick, given the importance.”