T-5408-79
Forrest F. Walkem (Plaintiff)
v.
Reginald Draney, Jimmy Billy, Dempsey Albert,
and Her Majesty the Queen and the Honourable
Attorney General of Canada (Defendants)
Trial Division, Gibson J.—Vancouver, November
7 and 10, 1980.
Indians — Election — Chief of Indian Band elected as
result of casting vote of electoral officer — Electoral officer
not qualified to vote under s. 77 of Indian Act — Whether
election valid — Indian Act, R.S.C. 1970, c. I-6, ss. 76(1), 77
— Indian Band Election Regulations, C.R.C. 1978, Vol. X, c.
952, s. 9 — Federal Court Rule 475.
This is a special case for adjudication in lieu of trial pursuant
to Rule 475. There are three questions for adjudication: (A)
was the election of the Chief of an Indian Band as a result of a
casting vote made by the electoral officer, a person not quali
fied under section 77 of the Indian Act, valid?; (B) if no, who
may exercise the powers of the Council? and (C) if no, does
this Court have authority to require a new election or to give
directions as to a new election?
Held, question A is answered in the affirmative. Nowhere in
the Indian Band Election Regulations made by the Governor in
Council as authorized by section 76 of the Indian Act and
nowhere in the Indian Act is there any provision requiring that
the electoral officer (as appointed by the Band with the approv
al of the Minister) be a person qualified to vote in accordance
with section 77 of the Act. Among the reasons is that the
electoral officer, in his official capacity under the Regulations,
must carry out his duties independently and impartially. One of
those duties which he exercised was the authority given to cast
a vote so as to break the tie vote in this case. Section 9 of the
Regulations gave him such authority. There is nothing ultra
vires in the relevant statutory and regulation provisions and
there is no conflict between section 76(1)(b) and section 77 of
the Indian Act.
SPECIAL CASE in lieu of trial.
COUNSEL:
W. J. Worrall for plaintiff.
R. G. Morgan for defendants.
SOLICITORS:
Worrall, Page & Company, Vancouver, for
plaintiff.
Davis & Company, Vancouver, for defend
ants.
The following are the reasons for decision of
special case rendered in English by
GIBSON J.: This is a special case for adjudica
tion in lieu of trial pursuant to Federal Court Rule
475 after having been set down for argument by
leave of the Court granted the 22nd September
1980 by Collier J. The special case agreed to by
the parties is dated 8th September 1980 and was
filed with the Court. The questions for adjudica
tion are:
A. Was the election of Reginald Draney as Chief of the Cook's
Ferry Indian Band on the 31st day of March, 1979 as a result
of a casting vote made by the electoral officer, Tony Harding, a
person not qualified to vote in accordance with Section 77 of
the Indian Act, a valid election pursuant to the provisions of the
Indian Act?
B. If the answer to question A is "No", can Jimmy Billy and
Dempsey Albert continue to act as and exercise the powers of
the Council of the Cook's Ferry Indian Band without a duly
elected Chief?
C. If the answer to question A is "No", does this Honourable
Court have authority to
(i) require a new election, or
(ii) give directions as to a new election to be held for the
office of Chief of the Cook's Ferry Indian Band?
Section 76 of the Indian Act, R.S.C. 1970, c.
I-6, authorizes the Governor in Council to make
regulations, and reads as follows:
76. (1) The Governor in Council may make orders and
regulations with respect to band elections and, without restrict
ing the generality of the foregoing, may make regulations with
respect to
(a) meetings to nominate candidates;
(b) the appointment and duties of electoral officers;
(c) the manner in which voting shall be carried out;
(d) election appeals; and
(e) the definition of residence for the purpose of determining
the eligibility of voters.
Section 76(1) therefore authorizes the Governor in
Council, among other things, to make regulations
with respect to Indian Band elections and without
restricting the generality of those words in particu
lar with respect to "the appointment and duties of
electoral officers".
Pursuant to that enabling authority the Gover
nor in Council enacted the Indian Band Election
Regulations [C.R.C. 1978, Vol. X, c. 952]
referred to in the special case and, relevant to the
questions put in this matter defined, among other
things, an "electoral officer" and the duties of
such electoral officer, and also specifically in sec
tion 9 prescribed the mechanics for resolving the
problem, if it arose, when two or more candidates
have an equal number of votes in an election,
namely by giving such electoral officer the author
ity to cast a vote so as to break the tie vote. In so
prescribing section 9 also took away the right of
such electoral officer to vote in the election itself.
Nowhere in the Indian Band Regulations gov
erning elections made by the Governor in Council
as authorized by section 76 of the Indian Act, and
nowhere in the Indian Act is there any provision
requiring that the electoral officer (as appointed
by the Band with the approval of the Minister) be
a person qualified to vote in accordance with
section 77 of the Indian Act, which reads as
follows:
77. (1) A member of a band who is of the full age of
twenty-one years and is ordinarily resident on the reserve is
qualified to vote for a person nominated to be chief of the band,
and where the reserve for voting purposes consists of one
section, to vote for persons nominated as councillors.
(2) A member of a band who is of the full age of twenty-one
years and is ordinarily resident in a section that has been
established for voting purposes is qualified to vote for a person
nominated to be councillor to represent that section.
It is understandable why such is the case.
Some of the reasons it is understandable, it
should be noted, are that the electoral officer
under the Indian Band Election Regulations has
many official duties and in such official capacity
must carry out these duties independently and
impartially. One of the official duties that the
subject electoral officer exercised was the author
ity given to cast a vote so as to break the tie vote in
this case. As stated, section 9 of the Indian Band
Election Regulations passed pursuant to the en
abling authority of section 76(1) of the Indian Act
gave him such authority; and it was only because
of such a statutory regulation authority that he
was able to do so.
Parliament and the Governor in Council had the
authority to so provide and there is nothing ultra
vires in the subject relevant statutory and regula
tion provisions. (Cf. Rogers on Elections, 20th
edition, Stevens and Sons, Limited, London; and
Ex Parte Tuttle (1860) 9 N.B.R. 615, New Bruns-
wick Court of Appeal.)
In so providing these enabling provisions there
does not arise any conflict between section
76(1)(b) and section 77 of the Indian Act which
latter provision is concerned with and prescribes
the eligibility of voters to vote for a person nomi
nated to be chief of the band.
Accordingly the question referred to as A above
is answered in the affirmative.
As a consequence it is not necessary to answer
the questions referred to as B and C above.
Either party may prepare a declaratory judg
ment for the purpose of implementing this decision
and include a provision in it that the costs of this
action in the special case shall be to the defendants
and judgment shall issue after the form of judg
ment has been settled by the Court.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.