The Dehcho’s Acho Dene Koe First Nation council twice extended its term without the authority to do so, a federal judge has ruled.
Federal Court Justice Sébastien Grammond decided the federal government had illegally introduced regulations allowing leaders of First Nations to extend their terms in office, and Acho Dene Koe’s custom election code did not expressly allow any similar extension.
The immediate effect on Acho Dene Koe’s governance is minimal as an election is already scheduled for later this month. The judge’s declaration invalidating the extensions is suspended for 60 days from April 1, meaning the April election will go ahead and a chief and council will be elected as planned.
However, Grammond’s ruling may have broader implications for other First Nations that used the federal regulations – introduced at the onset of the Covid-19 pandemic – to extend their terms.
Members of such First Nations, Grammond said, “have been illegally deprived of the opportunity to vote for the selection of their leaders.”
Ottawa introduced regulations in April 2020 that allowed First Nations councils to twice extend their terms by up to six months at a time during the pandemic, on the grounds that elections could jeopardize public health and safety while Covid-19 remained a risk.
Grammond, though, found that the Indian Act did not give the federal government the legal authority to make those regulations. He rejected the federal government’s argument that the regulations were an important measure introduced in order to help fight the pandemic.
“In a nutshell, the government is asking me to tolerate an invalid exercise of power because it was done for a good reason. This is simply incompatible with the rule of law,” Grammond wrote.
“Going down that road would involve courts in giving their blessing, after the fact, to unlawful government action based on its desirability from a policy perspective. There is nothing further removed from the judicial role.”
The judge dismissed Acho Dene Koe’s claim that even if the federal regulations were invalid, the First Nation’s own election code allowed chief and council to extend their terms.
Grammond said there was too little evidence to back up that claim. The First Nation’s custom election code, drawn up in 2007, may never have been ratified and has consistently caused confusion and conflict among members.
Acho Dene Koe’s chief and council should have faced an election in the first half of 2020 but ultimately pushed the election date to April 2021. The election, which was again pushed back by 12 days after a Covid-19 outbreak in Fort Liard earlier this year, is now set for April 26.
Former chief Floyd Bertrand had brought the case, challenging the validity of the federal regulations and the First Nation’s decision to delay its election by a year.
Bertrand himself had intended to stand in the election but was ruled ineligible as he still owes the First Nation money.
While Grammond broadly agreed with Bertrand’s challenge regarding the postponement, he separately dismissed Bertrand’s attempt to overturn the decision regarding his ineligibility to stand.
In a statement posted to Facebook, the Acho Dene Koe First Nation responded to the decision by emphasizing that chief and council will remain in office until April 26. The decision, the First Nation said, “has minimal effect on the current chief and council.”