NATIVE PEOPLES |
Elections |
Abbott v. Pelican Lake Band Appeal Board
T-650-01
2003 FCT 340, Tremblay-Lamer J.
25/3/03
11 pp.
Judicial review of decision of Pelican Lake Band Appeal Board (Board) denying appeal by applicants--On February 12, 2001, nomination meeting held by Pelican Lake Band Members pursuant to provisions of Pelican Lake Election Act--Five members selected to become members of Board-- Several days before date of election, one selected member tendered written resignation from Board--Election for Chief and Council conducted on February 28, 2001, pursuant to terms and provisions of Act--After election, applicants filed notice of appeal on grounds: (i) serious error or violation of Pelican Lake Election Act made in interpretation and application of provisions of Act which affected outcome of election contrary to s. 12(1)(a) of Act; and (ii) conduct of election extensively violated requirements and procedures of Act so as to constitute election corrupted pursuant to s. 12(1)(c) of Act--Members of Board convened on March 16, 2001 to review appeal--One member, who had earlier resigned, not present at meeting--Chief Electoral Officer (CEO) and Deputy Returning Officer (DRO) also present at meeting--Majority of Board members concluded election fair and binding--Consequently, appeal by applicants denied-- Serious flaws in constitution of Board and process followed vitiating decision ab initio--Unnecessary to consider merits of decision--Board not properly constituted because only four members present, whereas Act, s. 12(3)(a) requires five members--Applicants further submitting Board failed to observe principles of procedural fairness and natural justice-- Appeal pursuant to s. 12(3)(b) two-step process: (1) Board reviewing complaint and deciding within seven days to either dismiss complaint or proceed to hearing; (2) if Board decides to proceed with appeal hearing pursuant to s. 12(4), then all proper parties notified and hearing held within 14 days of receiving complaint--At hearing, appellants shall present case, respondents entitled to full answer and defence, and appellants shall make opportunity for rebuttal--Board shall hear any and all relevant evidence brought forth by appellants and respondents--Applicants submitting Board not following procedure set forth in Act as CEO and DRO present and made representations at initial meeting of Board--Improper for CEO and DRO to have made representations at initial meeting of Board--Presence of CEO and DRO rendered impossible neutral hearing--Furthermore, CEO provided each member of Board with document entitled "Response to the Notice of Appeal to the General Election held on February 28th, 2001"--Document set forth CEO's opinion appeal without merit and should be dismissed summarily in absence of formal hearing--This type of information should only have been provided at formal hearing in order for applicants to have opportunity to respond--Board failed to observe procedural fairness by hearing opinion of CEO, DRO without giving applicants opportunity to respond--Application allowed.