Francis v. Mohawk Council of Kanesatake

Francis v. Mohawk Council of Kanesatake

The Court has jurisdiction under ss.18/18.1 of the Federal Court Act to review band council decisions made pursuant to custom; on the facts the Code was not ratified with a broad consensus and consistent practice since 1992 permitted non-resident members to vote and use independent agencies, therefore the November 26, 2002 decision calling a by-election under the Code was set aside; the December 4, 2002 selection of Election Supervisors and Council of Elders was unlawful and those roles must not be used until the Code, if amended, reflects the Band's custom; future elections must be open to all registered members 18+ and conducted by an independent agency without involvement of Election...

Citation
2003 FCT 115
Parties
Applicant Band Member: Darlene Francis; Applicant Grand Chief: James Gabriel; Applicant Chief: Clarence Simon; Applicant Chief: Mary Chéné; Respondent Band Council: Mohawk Council of Kanesatake; Respondent Chief: Steven Bonspille; Respondent Chief: Pearl Bonspille; Respondent Chief: John Harding; Respondent Mis En Cause: Attorney General of Canada
Court
Federal Court
Jurisdiction
Canada
Judgment Date
31 January 2003
Procedural Posture
Judicial Review / Trial Decision (reasons for Order)
Outcome
Impugned Council decision of November 26, 2002 set aside in part; declarations issued and injunctive relief granted subject to conditions; Court retained jurisdiction on mandamus and costs
Legal Topics
Custom Election, Judicial Review, Natural Justice, Charter Equality (s.15), Jurisdiction of Federal Court
Source Language
English
Administrative Law Indigenous Law Constitutional Law Electoral Law Custom Election Judicial Review Natural Justice Charter Equality (s.15) +1 more

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Parties

Darlene Francis

Applicant Band Member

James Gabriel

Applicant Grand Chief

Clarence Simon

Applicant Chief

Mary Chéné

Applicant Chief

Mohawk Council of Kanesatake

Respondent Band Council

Steven Bonspille

Respondent Chief

Pearl Bonspille

Respondent Chief

John Harding

Respondent Chief

Attorney General of Canada

Respondent Mis En Cause

Procedural Posture

Judicial Review / Trial Decision (reasons for Order)

Legal Issues

  1. 1 Whether the Federal Court has jurisdiction to judicially review decisions of a band council elected by custom
  2. 2 Whether the Electoral Code of Kanesatake constitutes the binding custom of the Band
  3. 3 Whether residency restrictions excluding non-resident band members from voting form part of the Band custom

Ratio Decidendi

The Court has jurisdiction under ss.18/18.1 of the Federal Court Act to review band council decisions made pursuant to custom; on the facts the Code was not ratified with a broad consensus and consistent practice since 1992 permitted non-resident members to vote and use independent agencies, therefore the November 26, 2002 decision calling a by-election under the Code was set aside; the December 4, 2002 selection of Election Supervisors and Council of Elders was unlawful and those roles must not be used until the Code, if amended, reflects the Band's custom; future elections must be open to all registered members 18+ and conducted by an independent agency without involvement of Election...

Court Disposition

Impugned Council decision of November 26, 2002 set aside in part; declarations issued and injunctive relief granted subject to conditions; Court retained jurisdiction on mandamus and costs

Orders

  • The Council decision of November 26, 2002 calling a special election for January 4, 2003 and a nomination meeting for December 19, 2002 is set aside as contrary to the custom of the Band
  • Declared that the election of Election Supervisors and members of the Council of Elders at the Community meeting of December 4, 2002 has no effect and is illegal because the meeting was unauthorized and held without proper notice and those persons were not lawfully elected