T-1452-87
Yvonne Leaf, Lloyd Benedict, Angela Barnes, Al-
exander Roundpoint and the Mohawk Council of
Akwesasne (Applicants)
v.
The Honourable Jeanne Sauvé in Council as
represented by the Attorney General (Respondent)
INDEXED AS: LEAF V. CANADA (GOVERNOR GENERAL IN
COUNCIL)
Trial Division, Jerome A.C.J.—Toronto, August
27; Ottawa, September 25, 1987.
Native peoples — Elections — Application to quash Order
in Council setting aside election — Electoral officer allowing
candidate nominated for both chief and councillor to run for
chief only — Application dismissed — Electoral officer
exceeding authority under Indian Band Election Regulations
— Parliament delegating to Governor in Council authority to
ensure elections conducted in accordance with Act — Failure
to conform to Regulations indicating election not conducted in
accordance with Act as required by Indian Act, s. 74 —
Regulations, s. 5(6) (governing withdrawal of candidate)
intended to ensure candidate removed only upon own wish —
No express requirement of one election for both positions — S.
4(3), providing for nomination of chief or councillor, governing
conduct of nominating meetings, not limiting substantive right
to run for office — Act, s. 79(b) not restricting Minister's
authority to investigate violations of Act only in light of
Regulations, ss. 12, 13 and 14 — Where serious argument of
irregularity, better for Minister to err on side of recommending
setting election aside.
Judicial review — Prerogative writs — Certiorari —
Application to quash Order in Council setting aside election on
Indian reserve — Applicants notified in writing of appeal of
election — Applicants not responding to invitation to comment
— Departmental officials interviewing electoral officer and
three of unsuccessful candidates — Application dismissed —
No unfairness amounting to breach of principles of natural
justice — Both sides heard — Applicants choosing not to
participate in appeal process — Certiorari not issuing when
statutory remedies not exhausted.
This is an application for certiorari to quash an Order in
Council which purports to set aside an election which took
place on the Akwesasne Band Indian reserve. The applicants
were elected councillors in the impugned elections. Pursuant to
an Order in Council, the chief is elected by the whole commu-
nity at the same time as the councillors are elected. The
community decided that candidates should not run for both
chief and councillor and, if nominated for both positions, would
have to decline one. Nine out of ten candidates nominated for
both positions withdrew from one or both. One candidate,
Lawrence Francis, replied that he intended to run for both
positions. The electoral officer removed him as a candidate for
both positions, but then decided to accept his nomination for
chief. Mr. Francis lost the election. An appeal was lodged.
Although all the candidates were advised by letter of the
appeal, only the elected chief responded. A departmental offi
cial interviewed the electoral officer and three of the unsuccess
ful candidates. By Order in Council, the election was set aside.
The applicants rely upon paragraph 79(b) of the Indian Act in
submitting that, as there had been no violation of the Act, there
is no basis for the Order in Council. They also argue that the
Minister's representatives failed to observe the principles of
natural justice in not interviewing all candidates who ran in the
overturned election.
Held, the application should be dismissed.
Subsection 5(6) of the Regulations governs the withdrawal of
a nominated candidate. The intention of the subsection is to
ensure that a candidate will be removed from the ballot only in
accordance with his own wish. In this case, a candidate was
removed against his will by order of the electoral officer. This
was a violation of subsection 5(6).
Contrary to the applicants' claim, that Parliament intended
there to be but one election for both chief and councillors,
neither the Act nor the Regulations expressly requires that
there be only one election, and subsection 74(1) uses the word
"elections" to describe how council is to be selected.
The applicants submit that subsection 4(3) of the Regula
tions, which provides for the nomination of a candidate as chief
or councillor, precludes nomination to both positions. However,
this interpretation would not necessarily preclude a double
candidacy since it could still be said that he was running for
"chief or councillor". But more importantly, a regulation gov
erning the conduct of nominating meetings should not be used
to limit the substantive right of an eligible person to run for
office.
In any case, the electoral officer exceeded her authority by
removing Mr. Francis' name from the ballot. The Regulations
do not bestow on an electoral officer the authority to decide for
how many positions a candidate may run. Thus there has been
a breach of the Indian Band Election Regulations.
The failure to conform to the Regulations respecting nomina
tions means that the election was not conducted in accordance
with the Act. Section 74 of the Act requires elections to be "in
accordance with this Act." By section 76, which provides for
Orders in Council to be made dealing with nomination meet
ings, appointment and duties of electoral officers and the
manner in which voting shall be carried out, Parliament has
delegated to the Governor in Council the authority to ensure
that elections are conducted "in accordance with this Act." The
Regulations made under this section form part of the particu
lars of that requirement.
In sections 12, 13 and 14 of the Regulations, the Minister is
required to investigate and report on violations of the Act or
Regulations. It would be inconsistent to restrict the authority
under paragraph 79(b) to violations of the Act only. The
Minister was authorized to make a recommendation and the
Governor in Council to exercise her authority under paragraph
79(b).
There was no unfairness in the procedure utilized by the
Minister's representatives. All interested parties were given an
opportunity to participate in the appeal process, but the appli
cants chose not to respond in writing when notified of the
appeal of the election. Had they done so, no doubt they would
have been interviewed.
Also, it has been held that it is inappropriate to grant the
discretionary remedy of certiorari when there is an adequate
avenue to resolve the dispute provided in the statute. The
applicants should have responded to the Minister's invitation to
state their case.
Finally, where there is a serious argument that an election
was irregular, it is in the interests of all parties for the Minister
to err on the side of recommending that it be set aside.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Indian Act, R.S.C. 1970, c. I-6, ss. 74(1), 75, 76, 77, 79.
Indian Band Election Regulations, C.R.C., c. 952, ss.
4(3), 5(6), 12 (as am. by SOR/85-409, s. 4), 13, 14.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; 115 D.L.R. (3d) 1; Jasper
Park Chamber of Commerce v. Governor General in
Council, [1983] 2 F.C. 98; (1982), 141 D.L.R. (3d) 54
(C.A.); Thorne's Hardware Ltd. et al. v. The Queen et
al., [1983] 1 S.C.R. 106; 143 D.L.R. (3d) 577; Harelkin
v. University of Regina, [1979] 2 S.C.R. 561; 96 D.L.R.
(3d) 14.
COUNSEL:
Andrew J. Roman for applicants.
Roslyn J. Levine for respondent.
SOLICITORS:
The Public Interest Advocacy Centre,
Toronto, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: The applicants are plaintiffs in
an action for a declaration that Order in Council
1987-858, dated April 30, 1987, is invalid (Federal
Court file T-1453-87). They also filed motions for
certiorari, a stay of execution, a determination of a
preliminary question of law and directions. The
motions came on for hearing in Toronto, Ontario,
on August 27, 1987, and at the request of the
parties, we proceeded with the application for
certiorari and adjourned the others pending its
outcome.
The impugned Order in Council purports to set
aside an election which took place in June, 1986 on
the Akwesasne Band Indian reserve. Each of the
individual applicants was elected at that time to
represent the Cornwall Island District of the
reserve on the Mohawk Council of Akwesasne, the
Band's governing body. The affidavit evidence
indicates that until 1986, the council was com
posed of four councillors elected from each of the
three districts of Akwesasne and a chief who was
then elected by and from the twelve councillors. In
late 1985 the council passed a resolution to change
this system to one in which the chief would be
elected by the whole community at the same time
the councillors were elected from each district. An
Order in Council was passed authorizing the
change.
On May 2, 1986 Cecilia Square, Justice of the
Peace for Akwesasne, was appointed electoral offi
cer by the council. On May 31, 1986, at a public
meeting, the community reached a consensus that
candidates would not be allowed to run for both
chief and councillor and, if nominated to both
positions, would have to decline one. As she con
sidered this a reasonable interpretation of subsec
tion 4(3) of the Indian Band Election Regulations
[C.R.C., c. 952], the electoral officer accepted this
position.
Nominations were taken for candidates for the
election, to be held June 21, 1986. When the
electoral officer received all the nominations she
found that ten people had been nominated for both
chief and councillor. She wrote to each of these ten
candidates on June 9, 1986, informing them they
had to decide which post they would contest. Nine
of the ten withdrew from one or both of their
nominations. One of the candidates, Lawrence
Francis, sought the advice of an official in the
Statutory Requirements section of the Department
of Indian Affairs. Informed that it was permissible
to run for both positions and that council did not
have the power to change the electoral laws, he
replied to the electoral officer by letter stating his
intention to continue to run for both positions. Mr.
Francis was removed as a candidate for both posi
tions for a short time, but the electoral officer later
decided to accept his nomination for chief as he
had formerly held that office.
Legal advice concerning this decision was later
sought by the electoral officer and one of the other
candidates. The answers received indicated there
might be problems with the decision but did not
provide a clearer interpretation of the statutory
requirements.
Mr. Francis lost the election for chief on June
21, 1986. Because of the circumstances surround
ing his candidacy and several other sources of
concern about the election, a group called the Ad
Hoc Committee for a Fair Election was formed
and launched an appeal of the election. A notice of
appeal was sent to the Department of Indian
Affairs. By letter dated July 18, 1986, the Depart
ment advised the electoral officer and all candi
dates including the applicants, that an appeal had
been lodged. The letter enclosed a copy of the
notice of appeal, and invited written comments.
The only response received was from Michael
Mitchell, the elected chief, writing on behalf of the
council.
In October, 1986, an official of the Department
visited Akwasasne to conduct an investigation of
the election. He reports that he interviewed the
electoral officer and three of the unsuccessful can
didates. He did not interview the applicants.
On April 30, 1987 Order in Council P.C. 1987-
858 was issued which set aside the election of the
individual applicants. The Order reads as follows:
WHEREAS the Minister of Indian Affairs and Northern
Development is satisfied that there was a violation of the Indian
Act that might have affected the results of the election of Lloyd
Benedict, Yvonne Leaf, Angela Barnes, and Alex Roundpoint
as councillors of the Cornwall Island district of the Mohawks of
Akwesasne Band of Indians in that the nomination of Lawrence
Francis for the position of councillor of the said district was
improperly withdrawn:
AND WHEREAS the details of the election of a chief and
councillors of the Mohawks of Akwesasne Band of Indians are
set out in the schedule hereto.
THEREFORE, HER EXCELLENCY THE GOVERNOR GENERAL
IN COUNCIL, on the recommendation of the Minister of Indian
Affairs and Northern Development, pursuant to paragraph
79(b) of the Indian Act, is pleased hereby to set aside the
election on June 21, 1986 of Lloyd Benedict, Yvonne Leaf,
Angela Barnes, and Alex Roundpoint as councillors of the
Cornwall Island district of the Mohawks of Akwesasne Band of
Indians, in the Province of Ontario.
In May of 1987 the candidates, the electoral offi
cer and the council were all notified of the con
tents of this order. It is this order which is the
subject of this application for certiorari.
The statutory provisions relevant to this applica
tion are section 79 of the Indian Act, R.S.C. 1970,
c. I-6 and sections 12 [as am. by SOR/85-409,
s. 4], 13 and 14 of the Indian Band Election
Regulations, C.R.C., c. 952:
79. The Governor in Council may set aside the election of a
chief or a councillor on the report of the Minister that he is
satisfied that
(a) there was corrupt practice in connection with the
election;
(b) there was a violation of this Act that might have affected
the result of the election; or
(c) a person nominated to be a candidate in the election was
ineligible to be a candidate.
12. (1) Within 30 days after an election, any candidate at
the election or any elector who gave or tendered his vote at the
election who has reasonable grounds for believing that
(a) there was corrupt practice in connection with the
election,
(b) there was a violation of the Act or these Regulations that
might have affected the result of the election, or
(c) a person nominated to be a candidate in the election was
ineligible to be a candidate,
may lodge an appeal by forwarding by registered mail to the
Assistant Deputy Minister particulars thereof duly verified by
affidavit.
(2) Where an appeal is lodged pursuant to subsection (1),
the Assistant Deputy Minister shall, within 7 days of the
receipt of the appeal, forward a copy of the appeal together
with all supporting documents by registered mail to the elector
al officer and to each candidate in the electoral section.
(3) Any candidate may, within 14 days of the receipt of the
copy of the appeal, forward to the Assistant Deputy Minister
by registered mail a written answer to the particulars set out in
the appeal together with any supporting documents relating
thereto duly verified by affidavit.
(4) All particulars and documents filed in accordance with
the provisions of this section shall constitute and form the
record.
13. (1) The Minister may, if the material that has been filed
is not adequate for deciding the validity of the election com
plained of, conduct such further investigation into the matter as
he deems necessary, in such manner as he deems expedient.
(2) Such investigation may be held by the Minister or by
any person designated by the Minister for the purpose.
(3) Where the Minister designates a person to hold such an
investigation, that person shall submit a detailed report of the
investigation to the Minister for his consideration.
14. Where it appears that
(a) there was corrupt practice in connection with an election,
(b) there was a violation of the Act or these Regulations that
might have affected the result of an election, or
(c) a person nominated to be a candidate in an election was
ineligible to be a candidate,
the Minister shall report to the Governor in Council
accordingly.
The applicants attack the validity of the Order
in Council on two main grounds. The first flows
from the language of paragraph 79(b). They argue
that what has occurred here amounts to a breach
of the Regulations (I also note their contention
that no such breach took place). Accordingly,
since there was no violation of the Act -there is no
basis for the report of the Minister and no basis for
the Order in Council. Second, they argue that in
the conduct of the investigation, representatives of
the Minister failed to observe the principles of
natural justice in not interviewing all candidates
who ran in the overturned election.
This application also raises three other issues.
First, it now appears to be well-established that in
appropriate circumstances an Order in Council is
subject to review in this Court by way of certio-
rari. (See, for example, Attorney General of
Canada v. Inuit Tapirisat of Canada et al., [1980]
2 S.C.R. 735; 115 D.L.R. (3d) 1; Jasper Park
Chamber of Commerce v. Governor General in
Council, [1983] 2 F.C. 98; (1982), 141 D.L.R.
(3d) 54 (C.A.); and Thorne's Hardware Ltd. et al.
v. The Queen et al., [1983] 1 S.C.R. 106; 143
D.L.R. (3d) 577.) Indeed, counsel for the respond
ent raised no jurisdictional objection in this case.
Secondly, the action and the adjourned motions
to which I referred in the introductory paragraph,
undoubtedly raise questions regarding the validity
of the Minister's investigation and recommenda
tion to the Governor in Council. This application,
however, concerns itself solely with the validity of
the Order in Council made under section 79.
This raises a third question. Should I go beyond
the wording of section 79 and consider the infor
mation on which the Order in Council was based,
or should I conclude that the section provides a
complete authority to issue such an order once the
Minister's recommendation is received by the Gov
ernor in Council? I am inclined to the latter view,
but I am happily relieved of the burden of a
specific determination since I find that the appli
cants' submission fails on its merits.
Was there a breach of the Indian Band Election
Regulations? Withdrawal of a nominated candi
date is governed by subsection 5(6) which reads:
5....
(6) Any candidate who has been nominated may withdraw
at any time after his nomination, but not later than 48 hours
before the time of the opening of the poll, by filing with the
electoral officer a written withdrawal of his nomination, signed
by himself in the presence of the electoral officer, a justice of
the peace, a notary public, or a commissioner for oaths, and
any votes cast for any such candidate shall be null and void.
The intention of this subsection is clearly to ensure
that a duly nominated candidate will only be
removed from the ballot by his own wish. In this
case a candidate was removed against his will by
order of the electoral officer. This constitutes a
violation of subsection 5(6) and an excess of the
electoral officer's authority, which is also set out in
the Regulations.
The applicants dispute this finding. They claim
that the electoral officer's actions in this matter
were in fact a fulfillment of the policy behind the
Regulations. They begin with the assumption that
Parliament's intention, as expressed in the Act and
Regulations, is that there should be only one elec
tion for both chief and councillors. It follows from
this that one candidate should not be allowed to
run for both positions. If successful, such a candi
date would be unable to fulfill his responsibilities
to both offices and a second election would be
required to fill the vacancy.
The applicants also rely on subsection 4(3) of
the Regulations for the proposition that a candi
date may not be nominated for two offices. Section
4 of the Regulations deals with nomination meet
ings. Subsection 4(3) reads as follows:
4....
(3) At the time and place specified in the notice, the elector
al officer shall declare the meeting open for the purpose of
receiving nominations, and any person who is an elector may
propose or second the nomination of any duly qualified person
to serve as a chief or councillor, and the meeting shall remain
open for not less than 2 hours after commencement when, if the
number of .persons nominated to serve on the band council does
not exceed the requisite number, the electoral officer shall
declare the persons so nominated to be duly elected. [Emphasis
added.]
The applicants state that the underlined portion of
this section means that a candidate may only be
nominated for chief or councillor, not both. This
rather strained reading is apparently required by
the overriding goal of one election.
I have several difficulties with this argument.
First, it is by no means clear to me that Parliament
intended that there be only one election. Such an
intention is nowhere expressed in the Act or Regu
lations and subsection 74(1) uses the plural "elec-
tions" to describe how council is to be selected.
Where the chief is elected by the councillors,
clearly only one election is necessary. But where
both chief and councillors are elected directly,
there is no indication in the Act that there may not
be two elections, one for each position. Indeed, two
elections in that situation seems to me much the
more logical solution, and would certainly solve
the problem that has arisen here. Either there
could be two separate nominating procedures, or
candidates could allow their names to stand for
both chief and councillor and decide whether to
run in the second election after seeing the results
of the first. I find nothing in the Act or Regula
tions which expressly directs otherwise.
I also am not prepared to overturn this Order in
Council on the basis of the applicants' interpreta
tion of subsection 4(3) of the Regulations. The
contention is that someone may only be nominated
for "chief or councillor", not "chief and council
lor". I am not sure that such an interpretation
would necessarily have precluded Mr. Francis'
double candidacy since, in allowing his name to
stand for both positions, it could be said he was
running for "chief or councillor". But much more
importantly, I do not think a regulation designed
to govern the conduct of nominating meetings
should be used to limit the substantive right of an
eligible person to run for office. I am not prepared
to assume, without much clearer language, that
Parliament intended to deal with such an impor
tant issue in this indirect manner. I therefore do
not agree that subsection 4(3) of the Regulations
requires a candidate to run for only one office.
The uncertainty surrounding this question has
been best illustrated by the conflicting advice dis
pensed by the Department of Indian Affairs. Mr.
Francis was apparently told he could run for both
positions. Other parties received much vaguer
advice and were given to believe the Band could
determine this issue for itself. The applicants have
also produced a letter from the British Columbia
regional office stating that no candidate is to run
for two positions at once. Finally, we have the
Minister's advice to the Governor in Council that
the withdrawal of one of Mr. Francis's nomina
tions against his will was illegal.
In light of all this controversy, was the electoral
officer within her rights to decide to follow the
Band's wishes and disallow all double nomina
tions? I think not. The officer's duties are set out
explicitly in the Regulations. Following the nomi
nation meeting, her job is to count the nominations
for each position, declare elected the acclaimed
candidates, declare that a poll shall be taken if
necessary and prepare ballots containing the
names of the candidates. She is also to witness and
accept any legal withdrawals by candidates.
Nowhere is she given the authority to decide for
how many positions a candidate may run or to
remove from the ballot candidates who have been
duly nominated. While I agree the former issue is
still an open question, this uncertainty did not
create additional powers in the electoral officer. It
was open to the Minister to find that in removing
Mr. Francis' name from the ballot she had exceed
ed her lawful authority.
Contrary to the applicants' submissions, there
fore, I find that there has indeed been a breach of
the Indian Band Election Regulations.
Nor can I accept the suggestion that the
irregularity can be confined to the Regulations.
The authority to hold elections for band councils
and chiefs is found in subsection 74(1) of the
Indian Act, which reads:
74. (1) Whenever he deems it advisable for the good govern
ment of a band, the Minister may declare by order that after a
day to be named therein the council of the band, consisting of a
chief and councillors, shall be selected by elections to be held in
accordance with this Act.
In order to fulfill the requirements of this subsec
tion, the elections must be held "in accordance
with this Act". Several other sections amplify that
requirement. Subsection 74(3) allows the Gover
nor in Council to order whether the chief is to be
elected directly or by the councillors and that a
majority of votes will determine the winners. Sec
tions 75 and 77 specify who is eligible to be a
candidate and an elector, respectively. And section
76 provides for Orders in Council to be made
dealing with, among other things, meetings to
nominate candidates, the appointment and duties
of electoral officers and the manner in which
voting shall be carried out. By this section, Parlia
ment has delegated to the Governor in Council the
authority, by Regulation, to establish procedures
which ensure that elections are conducted "in
accordance with this Act". The Regulations made
under this section form part of the particulars of
that requirement. In the present case, the failure
to conform with the Regulations respecting nomi
nations means that this election was not conducted
"in accordance with this Act" and therefore that it
constitutes a violation of subsection 74(1).
It is also helpful to consider the Regulations
dealing with election appeals. In sections 12, 13
and 14, quoted above, the Minister is expressly
obliged to investigate and report on "a violation of
the Act or these Regulations". Since the Minister's
report to the Governor in Council must include
any violation of the Act or Regulations, it would
be inconsistent in the extreme to restrict her au
thority under paragraph 79(b) to one or the other
only.
I therefore find that this violation of the Indian
Band Election Regulations authorizes the Minis
ter to make a recommendation and the Governor
in Council to exercise her authority under para
graph 79(b) of the Act.
The applicants' second argument is that the
Order in Council is vitiated because the Minister's
report on which it was based was written in viola-
tion of the principles of natural justice. The main
complaint on this issue is that the Minister's inves
tigator failed to interview the applicants as suc
cessful candidates in the election. It is argued,
therefore, that his report to the Minister "was not
prepared thoroughly and fairly and was either
actually biased or would give rise to a reasonable
apprehension of bias". The Minister's report is
said to be similarly tainted.
The process to be followed by the Minister on an
election appeal is set out in sections 12 to 14 of the
Regulations reproduced above. By subsections
12(2) and 12(3), when an appeal is lodged, the
first step is for a copy of the appeal to be mailed to
the electoral officer and each candidate in the
electoral section. Any candidate may, within 14
days of receiving his copy, respond in writing to
the particulars set out in the appeal. If the Minis
ter feels he does not have enough information after
this exchange to determine the validity of the
election, he may "conduct such further investiga
tion into the matter as he deems necessary, in such
a manner as he deems expedient" (Subsection
13(1) of the Regulations). Finally, if it appears
that there has been corrupt practice, a violation of
the Act or Regulations or improper nominations,
the Minister is to report to the Governor in Coun
cil accordingly.
It is apparent from these provisions that the
Minister has considerable discretion in determin
ing how an investigation is to be carried out and
whether there will be a report. The applicants
correctly argue that such discretion must be exer
cised fairly. To decide whether the Minister and
his delegates have acted fairly, the whole process
of the investigation must be examined. Immediate
ly after the filing of the appeal a letter was sent to
each candidate and the electoral officer notifying
them of the grounds of appeal and inviting written
replies. None of the individual applicants chose to
respond to this letter. Then, in October of 1986 a
Department official conducted an investigation
under section 13. He visited the reserve and spoke
to each of the two "sides" in this dispute: the
electoral officer and the unsuccessful candidates.
On the basis of the information he gathered
reports were prepared, first for the Minister and
then for the Governor in Council.
The question before me is whether this proce
dure was fair to these applicants. I believe it was.
They were given an opportunity to respond to the
specific grounds of appeal, which they declined.
The investigating official spoke to the electoral
officer who was in the best position to defend the
validity of the election. Had there been some
written response from the applicants, indicating
that they had information connected with the
appeal, no doubt they would also have been inter
viewed. There has been no allegation that the
information gathered was wrong or incomplete. I
am satisfied therefore that all interested parties
were given a fair opportunity to participate in the
appeal process.
My decision on this issue is also influenced by
the fact that certiorari is a discretionary remedy.
Courts are generally reluctant to grant it in review
proceedings where there is a route of appeal pro
vided by statute (See Harelkin v. University of
Regina, [1979] 2 S.C.R. 561; 96 D.L.R. (3d) 14).
Here, the statutory appeal mechanism provides an
entirely adequate avenue for the resolution of this
dispute. When it was undertaken by the Minister,
these applicants should have accepted the invita
tion to state their case, but they declined. It would
be inappropriate to now grant them discretionary
relief by way of certiorari to attack the Order in
Council which is the ultimate result of that
process.
There is one other factor which tips the scale
against setting this Order in Council aside. Where
there is a serious argument that the election was
irregular, it is in the interests of all parties for the
Minister to err on the side of recommending that it
be set aside. The alternative is to perpetuate a
situation in which a section of the Band is unrepre-
sented on council or where confusion exists as to
the right of successful candidates to hold office.
I should add, as an observation, that it would be
beneficial if this application were to result in a
definitive legal interpretation of the electoral laws
which would provide clear guidance in future Band
elections. It will not. I do wish to repeat, however,
that the Act and the Regulations indicate Parlia
ment's intention to give each Band two choices in
conducting elections. One is to elect the councillors
and have the councillors elect the chief. The
second, which was selected in the present case, is
to have direct elections for both at the same time.
Where the latter choice is exercised, the safer
course would be to conduct the elections separate
ly. This would permit candidates and electors to
know the results of one before proceeding with the
nominations and voting for the other. In my view,
nothing in the Act or Regulations prevents such an
arrangement.
This application for certiorari must therefore be
dismissed. There will be no order as to costs.
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.