Clark v. Abegweit First Nation Band Council

Clark v. Abegweit First Nation Band Council

Sections 2 and 3 of the Abegweit Election Regulations create a distinction between on- and off-reserve members on the analogous ground of aboriginality-residence and infringe s.15(1) of the Charter; section 2 (voting eligibility) is not justified under s.1 and must be struck down; section 3 (eligibility to run) is unjustified as to Councillor positions and that portion is of no force or effect, but the residency requirement for the Chief position is constitutionally justified and may remain until the First Nation decides otherwise; the Electoral Officer’s exclusion of applicants from the voters list was unreasonable.

Citation
2019 FC 721
Parties
Applicant: Judith Clark; Applicant: Barbara Jadis-Bruised Head; Applicant: Misiksk Jadis; Applicant: Terrance Jadis; Applicant: Patricia Ann Bernard; Respondent: Abegweit First Nation Band Council; Respondent: Wendy Francis (in her capacity as Abegweit First Nation Electoral Officer)
Court
Federal Court
Jurisdiction
Canada
Judgment Date
22 May 2019
Procedural Posture
Judicial Review / Judgment on Application
Outcome
Application for judicial review allowed
Legal Topics
Charter S.15 Equality, Section 1 Justification (oakes), Band Election Regulations, Residency Requirement, Voting Rights, Eligibility to Run for Office
Source Language
English
Constitutional Law Administrative Law Aboriginal Law Electoral Law Equality Rights Charter S.15 Equality Section 1 Justification (oakes) Band Election Regulations +3 more

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Parties

Judith Clark

Applicant

Barbara Jadis-Bruised Head

Applicant

Misiksk Jadis

Applicant

Terrance Jadis

Applicant

Patricia Ann Bernard

Applicant

Abegweit First Nation Band Council

Respondent

Wendy Francis (in her capacity as Abegweit First Nation Electoral Officer)

Respondent

Procedural Posture

Judicial Review / Judgment on Application

Legal Issues

  1. 1 Whether on-reserve residency requirements in sections 2 and 3 of the Election Regulations violate s.15(1) of the Charter
  2. 2 Whether any infringement of s.15(1) can be justified under s.1 of the Charter
  3. 3 Whether the Electoral Officer’s refusal to add applicants to the voters list was reasonable

Ratio Decidendi

Sections 2 and 3 of the Abegweit Election Regulations create a distinction between on- and off-reserve members on the analogous ground of aboriginality-residence and infringe s.15(1) of the Charter; section 2 (voting eligibility) is not justified under s.1 and must be struck down; section 3 (eligibility to run) is unjustified as to Councillor positions and that portion is of no force or effect, but the residency requirement for the Chief position is constitutionally justified and may remain until the First Nation decides otherwise; the Electoral Officer’s exclusion of applicants from the voters list was unreasonable.

Court Disposition

Application for judicial review allowed

Orders

  • Declaration that respondents’ refusal to add applicants to the voters list for the September 20, 2017 plebiscite violated s.15(1) of the Charter
  • Declaration that the phrase 'who has resided on one of the Abegweit Band Reserves on a full-time basis for at least six consecutive months immediately preceding election day' in section 2 of the Election Regulations is contrary to the Charter and of no force or effect