NATIVE PEOPLES |
Elections |
Willier v. Sucker Creek Indian Band No. 150A
T-57-01
2001 FCT 1325, Gibson J.
3/12/01
16 pp.
Judicial review of Electoral Officer's decision election appeal committee would not be formed--Relief sought including declaration election appeal period not expired, Electoral Officer remained in office, order setting aside decision--Outcome of November 28, 2000 election for Chief, Council close--Appeals filed in accordance with Election Regulations relating to persons included on list of electors, counting of ballots--Electoral Officer stating unable to form election appeal committee as unable to find necessary number of "qualified and unbiased" individuals to serve on that committee--Application allowed--(1) Electoral Officer erred in refusing to form election appeal committee on basis unable to find necessary number of unbiased individuals--Election Regulations, s. 12.4 providing for nine-member election appeal committee--Specifying member of appeal committee must not be part of immediate family of candidate or person appealing--Presumably reference in decision under review to "qualified" was to qualified as to age and in sense of not being part of immediate family of candidate or person appealing-- Reference to "unbiased" was to unbiased in relation to outcome of election and in relation to appeals at issue; distinct from "qualified"--Not within Electoral Officer's mandate to consider bias as that consideration not identified in Election Regulations--Speculation to consider whether unbiased and qualified individuals might have come forward at time of nomination meeting--(2) Electoral Officer remains in office; not functus officio--Appointment commenced on date specified in Council Resolution appointing her and continuing until six months after expiry of election appeal period-- Election Regulations not defining election appeal period, but disclosing Electoral Officer's mandate extending to conduct of run-off elections arising from election for councillors, chief --If Electoral Officer appointed election appeal committee as required, would have remained responsible for conduct of any run-off election called for by Committee--Election appeal period not expiring until after decision of election appeal committee--If that decision calling for run-off election, election appeal period would not expire until after run-off election held--Electoral Officer could not shorten term of responsibility by determining not to appoint election appeal committee--(3) No basis on which to conclude election appeal committee would not have authority to decide questions as to qualification of certain electors and as to validity of certain ballots at election--Sucker Lake First Nation clearly contemplated entrusting to election appeal committee role of review of election appeals, and vested committee with broad powers to remedy any election defect--Not for Court to intervene in role reserved to election appeal committee where committee had no opportunity to act and to perform function reserved to it--Material not establishing that futile to refer matter back to electoral officer.