KFN posts date for by-election after legal warning

More than half a year after April Martel was acclaimed chief in a contested election last November, the Kátł’odeeche First Nation (KFN) has scheduled a by-election for Chief on September 12, following an election code referendum on August 10.

News of the referendum to change election eligibility rules and by-election dates came after an email from appellant Elaine Auger’s legal counsel to KFN’s, which threatened to escalate matters if the dates weren’t set immediately. Auger had hoped to be included as a candidate for Chief, but was refused as she did not meet the Nation’s residency requirements as determined by KFN’s custom election code.

In the email, which was obtained by Cabin Radio and which appears to have been sent on Monday, Auger’s lawyer Evan Duffy said they would appeal to Federal Court if necessary to make sure the election happens, and said that for April Martel to continue to act as Chief is “inappropriate.”

“We are writing to seek confirmation as to the new election date for the Office of Chief. It has now been over a month since the Adjudicator’s order. While the order does not expressly provide a time limit for the holding of the new election, it is clear that the election is required to be held without delay.

We also note that April Martel appears to continue to hold herself out as being Chief of the KFN. We continue to be of the view that this is inappropriate.”Evan Duffy, representing Auger, in an email addressed to KFN lawyer Larry Innes

KFN published a press release announcing the dates of the by-election and referendum on their Facebook page with a date for the by-election the same day as Duffy sent his email.

Larry Innes, the legal representative for KFN, said the dates for the referendum and by-election had already been set internally by June 30, and the fact that the press release was published on the same day that Duffy sent the email was mere coincidence.

Earlier this year, on May 27, independent adjudicator Michael Hansen ordered KFN to hold a re-election following several appeals of the 2021 results, including Auger’s exclusion from the ballot. Auger had moved back to the community in July, but was denied a chance to run for chief as she had not lived on the reserve for the past two years.

Hansen ruled that this refusal was a violation of Auger’s Charter rights, and wrote that the section of KFN’s election code concerning residency was of “no force or effect.”

It was a response that had Kátł’odeeche’s band council suggesting that the Charter was being used to interfere with their right to self-government. In a press release issued shortly afterwards, a comparison was drawn between KFN’s situation and the Dickson case, currently set to appear before the Supreme Court. In that release, they suggested members “uphold the ability of Indigenous governments to self-determine their own custom election codes, and to shield the customs and traditions of Indigenous communities…from the strict application of Canada’s Charter.”

The deadline for KFN to formally appeal the election adjudicator’s decision by applying for judicial review was on June 24, 2022.

Both Auger and Martel say they plan to run in the September election.

Allegation of mishandled funds

The email from Duffy contained another allegation: that Martel has been using the Nation’s money to campaign for re-election. Cabin Radio did not receive a copy of the correspondence Duffy mentions.

“I have enclosed a copy of correspondence from Ms. Martel sent to KFN members, which also enclosed a cheque for $650. Given that Ms. Martel is no longer Chief, she should not be signing letters and cheques like this, especially since a new election is imminent.

I am advised by my client that this is being viewed by KFN members as Ms. Martel seeking to use KFN funds to support her re-election campaign.”Evan Duffy, representing Auger, in an email addressed to KFN lawyer Larry Innes

However, Larry Innes says the purpose of Martel’s correspondence is being misconstrued.

“While Mr. Duffy or his client may view communications from KFN’s Chief and council to members to be ‘campaigning,’ the letter signed by Chief Martel on behalf of council simple provides information about Covid assistance funds now being made available to KFN members living off-reserve,” said Innes.

April Martel herself confirms this view, calling the allegation that she mishandled funds “ridiculous.”

“This is Covid money that Elaine herself prevented from getting released. She works in the finance department. We had to distribute this money before the deadline or we would have had to send it back.”

While Elaine Auger declined to speak with Cabin Radio, Duffy, Auger’s legal representative, said that given Auger’s proximity to the financial situation at KFN and considerations around confidentiality she would be unable to provide further details beyond the letter.

For her part, Martel says working with Auger has added additional pressure to an already stressful year, with a flood and a pandemic to contend with.

“Bullying, lashing out at me personally, making Facebook posts about me…it’s just harassment,” Martel said.

Martel also claims that the residency requirement in place, which mandates that any prospective candidate must have lived in the reserve for the past two years in order to run, is perfectly reasonable.

This is the rule that Auger alleges is discriminatory, as it prevented her from running in 2021.

“It doesn’t matter which First Nation you come from,” she told the CBC in April. “You should have the ability to not feel discriminated against.”

“Nobody’s discriminating against anybody,” said Martel. “You have every right to run for Chief or council, you just have to follow the election rules that were put in place by the people. I’m in Vancouver at the moment, and if the Chief of KFN was living here, how would that work? How would they know what was happening in the community? How would anyone get ahold of them? We want our leaders to live in the community, but still listen to the members living off-reserve.”

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Correction: July 7th, 2022 – 11:24 MT. This article has been amended to note that KFN was to select an electoral officer by June 10, not set the dates of the election by June 10.