Joseph v. Schielke

Joseph v. Schielke

The Recall Rules were invalid because they effected a fundamental change to the Yekooche First Nation's electoral regime and therefore required enactment under the Election Code's s10.1 amendment procedure; there was no evidence the required notice, consideration period or voting occurred and there is no established customary recall practice; accordingly the recall and the resulting by-election are unlawful and the applicant is reinstated as Chief effective January 11, 2012.

Citation
2012 FC 1153
Parties
Applicant: Henry Joseph; Respondent: Partner Schielke; Respondent: Yekooche First Nation
Court
Federal Court
Jurisdiction
Canada
Judgment Date
28 September 2012
Procedural Posture
Judicial Review / Judgment
Outcome
Recall Rules declared invalid; recall of Henry Joseph unlawful; February 16, 2012 by-election void; Henry Joseph reinstated as Chief effective January 11, 2012; respondents to notify Aboriginal Affairs and Northern Development Canada; respondents to pay applicant's costs jointly and severally.
Legal Topics
Custom Election Code, Recall Rules, Amendment Procedure, Validity of Enactment, Customary Law, Charter S2(b) and S1
Source Language
English
Aboriginal Law Administrative Law Constitutional Law Election Law Custom Election Code Recall Rules Amendment Procedure Validity of Enactment +2 more

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Parties

Henry Joseph

Applicant

Partner Schielke

Respondent

Yekooche First Nation

Respondent

Procedural Posture

Judicial Review / Judgment

Legal Issues

  1. 1 Were the Recall Rules validly enacted under the Yekooche First Nation Election Code?
  2. 2 Do the Recall Rules form part of YFN customary law?
  3. 3 Does the Recall Rules prohibition on running for office offend s 2(b) of the Charter and if so is it justified under s 1?

Ratio Decidendi

The Recall Rules were invalid because they effected a fundamental change to the Yekooche First Nation's electoral regime and therefore required enactment under the Election Code's s10.1 amendment procedure; there was no evidence the required notice, consideration period or voting occurred and there is no established customary recall practice; accordingly the recall and the resulting by-election are unlawful and the applicant is reinstated as Chief effective January 11, 2012.

Court Disposition

Recall Rules declared invalid; recall of Henry Joseph unlawful; February 16, 2012 by-election void; Henry Joseph reinstated as Chief effective January 11, 2012; respondents to notify Aboriginal Affairs and Northern Development Canada; respondents to pay applicant's costs jointly and severally.

Orders

  • The Recall Rules are invalid.
  • Any recall of Henry Joseph is unlawful and of no force and effect.