Digests

Gordon v. Canada (Minister of Indian and Northern Affairs)

T-2388-00

2001 FCT 9, Pinard J.

2/2/01

10 pp.

Motion for interlocutory injunction exempting Pasqua First Nations Band No. 79 from operation of Indian Act, ss. 74(4), 75, consequently restraining Band from holding nominations, elections complying with those sections of Indian Act--Action challenging constitutional validity of Indian Act, ss. 74(4), 75 on ground breach of Charter, s. 15 in that require persons who wish to run as candidates for Band councillor to be "ordinarily resident on reserve"--As plaintiff, Band member, not living on reserve, prohibited from holding office as Band councillor--Prior to May 1999, in accordance with Indian Act, s. 77, Band members not "ordinarily resident" on reserve not entitled to vote, be involved in election procedures--In May 1999, Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 giving off-reserve Band members right to vote, as s. 77 declared unconstitutional, but declaration of unconstitutionality suspended for 18 months to give federal government time to take action--In order to implement implications of decision, Department, First Nations entering extensive consultations (i) with respect to amending Indian Act Election Regulations; (ii) to further enhance participation of non-resident Band members in governance, other democratic processes of Bands--Department developing additional significant amendments to election procedures, which will also address issue candidacy of nor-resident Band members--Consultation process must be completed before amendments can be made--Will not be completed prior to election--In addition Band members developing custom Election Code--Once finalized, ratified, Minister will be asked to exercise discretion to issue order revoking application of Indian Act election procedure with respect to Band--Such order will permit Band to control own election procedures--Insufficient time to finalize, approve Code prior to expiration of current Chief's mandate--Constitutional validity of Indian Act, ss. 74(4), 75 too important to be dealt with in interlocutory proceeding--Requested relief affecting all 260 First Nations in Canada subject to ss. 74(4), 75--Decision should not be made on interlocutory basis--Corbiere deciding only question of right of all Band members to vote in Band council elections pursuant to s. 77--Constitutional validity of ss. 74(4), 75 and residency restriction on candidacy new, separate question never decided by any court--Granting relief requested would give plaintiff remedy immediately following issuance of statement of claim, before exchange of documents, discovery, trial--Would go farther on interlocutory motion than Corbiere went after full trial, two appeals--Application of tri-partite test from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 312--Plaintiff not establishing will suffer irreparable harm if relief not granted--At most will miss out on being candidate, will not be able to vote for non-resident in election--Also balance of convenience not favouring summary determination--In public interest to permit consultation processes currently under way to continue without judicial intervention in this case--If relief granted, all Bands undergoing elections affected by interlocutory ruling--Procedures will be in doubt--If exemption granted, will serve as compelling precedent, make it very difficult for courts not to award similar interlocutory relief--Indian Act, R.S.C., 1985, c. I-5, ss. 74(4), 75, 77 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 14)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.