Lower Nicola First Nation v. The Council

Lower Nicola First Nation v. The Council

The Court granted the interlocutory relief because there were serious issues to be tried, the conduct and political division within the First Nation created a real risk of irreparable harm to governance and membership if the by-election proceeded, and the balance of convenience and public interest favored maintaining the status quo pending judicial review; accordingly the by-election and removals were stayed with interim governance directions.

Citation
2012 FC 103
Parties
Applicants: Chief Victor York and The Lower Nicola Indian Band (represented by Chief V. York and Councillor Harold Joe); Respondents: "The Council" (represented by Molly Toodlican, Lucinda Stewart, Joanne Lafferty Jr., Mary June Coutlee, Stuart Jackson and Robert Sterling)
Court
Federal Court
Jurisdiction
Canada
Judgment Date
26 January 2012
Procedural Posture
Judicial Review of Band Council Decisions and Custom Election Rules / Interlocutory Injunction Motion Pending Determination of Underlying Judicial Review
Outcome
Interlocutory injunction granted in part: by-election and attempted removals stayed; interim governance regime ordered; underlying judicial review to proceed.
Legal Topics
Interim Injunction, Custom Election Rules, Removal From Office, Judicial Review, Balance of Convenience, Irreparable Harm, Governance of First Nation
Source Language
English
Administrative Law Indigenous Law Electoral Law Civil Procedure Interim Injunction Custom Election Rules Removal From Office Judicial Review +3 more

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Parties

Chief Victor York and The Lower Nicola Indian Band (represented by Chief V. York and Councillor Harold Joe)

Applicants

"The Council" (represented by Molly Toodlican, Lucinda Stewart, Joanne Lafferty Jr., Mary June Coutlee, Stuart Jackson and Robert Sterling)

Respondents

Procedural Posture

Judicial Review of Band Council Decisions and Custom Election Rules / Interlocutory Injunction Motion Pending Determination of Underlying Judicial Review

Legal Issues

  1. 1 Whether an interlocutory injunction should be granted to stay a by-election
  2. 2 Whether the Band Council meeting and consequent removals were valid under the Custom Election Rules
  3. 3 Whether the applicants would suffer irreparable harm if the by-election proceeded

Ratio Decidendi

The Court granted the interlocutory relief because there were serious issues to be tried, the conduct and political division within the First Nation created a real risk of irreparable harm to governance and membership if the by-election proceeded, and the balance of convenience and public interest favored maintaining the status quo pending judicial review; accordingly the by-election and removals were stayed with interim governance directions.

Court Disposition

Interlocutory injunction granted in part: by-election and attempted removals stayed; interim governance regime ordered; underlying judicial review to proceed.

Orders

  • The by-election to fill the offices of Chief and Councillor Joe is stayed pending determination of the underlying judicial review application.
  • The removal of Chief Victor York and Councillor Harold Joe is stayed pending determination of the underlying judicial review application.