Clifton v. Hartley Bay Indian Band, 2005 FC 1030, [2006] 2 F.C.R. 24


T-2422-03

2005 FC 1030

Heber Clifton, Clarence Anderson, Walter Robinson, Lorraine Bolton, Cathy Clifton, Clark Clifton, Lucy P. Clifton, Meagan Clifton, Robin Clifton, Sean Clifton, Mary Danes, Paul H. Dundas, Trina Eaton, Theresa Faulkner, Ruby J. Kingshott, Mildred Leask, Darlene Leland, Kaarlene Lindsay, Jessica McDonald, Elinor Mason, Phil Nyakis, Maisie A. Pahl, John W. Pahl, Veronica Pahl, Glenn Reece, Perry Reece, Shelly Reece, Edna Ridley, Fred Ridley, Harvey Ridley, John Ridley, Leslie Ridley, Allan Robinson, Brian L. Robinson, Delores Robinson, Douglas Robinson, Eugene T. Robinson, Jules Robinson, Malcom S. Robinson, Marie M. Robinson, Anne Suprina, and Lawrence Wilson (Applicants)

v.

David Benton in his capacity as the Hartley Bay Electoral Officer, the Hartley Bay Village Council, and the Hartley Bay Indian Band (Respondents)

Indexed as: Clifton v. Hartley Bay Indian Band (F.C.)

Federal Court, O'Keefe J.--Vancouver, March 8; Ottawa, July 25, 2005.

Aboriginal Peoples--Elections--Judicial review of Hartley Bay Electoral Officer's decisions applying Hartley Bay Band Custom Election Regulations--Pursuant to Regulations, Band members not residing on Reserve for six months prior to Hartley Bay Village Council elections not entitled to vote, stand as candidate, nominate candidates--This exclusion contrary to Charter, s. 15, not saved under section 1--Application allowed, but election results not set aside--Declaration of invalidity of offending words in Regulations suspended until November 1, 2005 to allow consultative process within community to continue.

Constitutional Law--Charter of Rights--Equality Rights--Under Hartley Bay Band Custom Election Regulations, Band members not residing on Reserve for six months prior to Hartley Bay Village Council elections not entitled to vote, stand as candidate, nominate candidates--Whether Village Council acting according to custom or Indian Act, authority flowing from Indian Act, decisions thus subject to Charter--Application of Charter, s. 15(1) analysis, set out in Law v. Canada (Minister of Employment and Immigration), applied in Corbiere v. Canada (Minister of Indian and Northern Affairs)--Exclusion from voting distinction denying equal benefit, imposing unequal burden--Differential treatment based on same analogous ground of discrimination as in Corbiere, i.e. Aboriginality-residence--Such differential treatment constituting discrimination as applicants completely excluded from participation in electoral process--Exclusion from Village Council elections found in Regulations thus contravening Charter, s. 15, not saved under section 1.

This was an application for judicial review of decisions of the Hartley Bay Electoral Officer. The Electoral Officer, applying the Hartley Bay Band Custom Election Regulations, denied members of the Hartley Bay Indian Band who had not resided on the Reserve for six months prior to the 2003 Hartley Bay Village Council elections the right to be nominated as candidates for the position of Chief or Councillor, and the right to vote in the elections.

The people of Hartley Bay belong to the Gitga'at Tribe of the Tsimshian Nation. The Gitga'at is governed through both the hereditary Clan system (the Clan Council) and the Village Council, elected pursuant to the Regulations, under subsection 2(1) of the Indian Act. Only an elector as defined by the Regulations may vote in an election, stand as a candidate, or nominate candidates for the election. The applicants argued that the residency requirement in the Regulations violated their equality rights contrary to section 15 of the Charter.

Held, the application should be allowed.

Whether the Village Council is acting according to custom or the Indian Act, its decisions are ultimately made pursuant to its authority under the Indian Act, and are therefore subject to the Charter. In Corbiere v. Canada (Minister of Indian and Northern Affairs), the Supreme Court of Canada applied the subsection 15(1) Charter analysis that it had set out in Law v. Canada (Minister of Employment and Immigration) and concluded that the exclusion of off-reserve members from voting pursuant to section 77 of the Indian Act infringed the Charter and was not saved by section 1. The same analysis was applied in the case at bar to determine whether the Regulations violated the applicants' section 15 equality rights. The exclusion of off-reserve members from voting satisfied the first requirement of the Law analysis, i.e. the exclusion was a distinction that denied equal benefit or imposed an unequal burden. The second requirement was met. As in Corbiere, the applicants were subject to differential treatment based on the analogous ground of discrimination, that is, Aboriginality-residence. The final requirement was also met as the distinction at issue in fact constituted discrimination. The applicants were completely excluded from participation in the electoral process as was the case in Corbiere. In light of the Village Council's authority on matters affecting off-reserve members, there was no justification for granting on-reserve members a right to participate in the electoral process while completely excluding off-reserve members. The two-tiered governance system in this case (the Clan Council and the Village Council) did not meet the requirement of a process which "would respect non-residents' rights to meaningful and effective participation in the voting regime of the community" as discussed in Corbiere.

The Regulations, to the extent that they excluded off-reserve members from participating in the Village Council elections, thus contravened subsection 15(1) of the Charter and were not saved under section 1 of the Charter. However, the 2003 election results were not set aside, as it would have been damaging to the community for the Court to deem void any decision made by Council since then. Instead, the words "resides on Hartley Bay Band Reserve six months prior to election" in Regulations, paragraph 2(c)(iv) were declared invalid. Such declaration was suspended until November 1, 2005 to allow the consultative process within the Gitga'at community with respect to an appropriate voting regime to continue.

statutes and regulations judicially

considered

An Act to amend the Indian Act, S.C. 1985, c. 27.

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], ss. 1, 15(1), 24(1).

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52.

Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).

Indian Act, R.S.C., 1985, c. I-5, ss. 2(1) (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 1; (4th Supp.), c. 17, s. 1; S.C. 2000, c. 12, s. 148), 77 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 14).

cases judicially considered

applied:

Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; (1999), 173 D.L.R. (4th) 1; [1999] 3 C.N.L.R. 19; 239 N.R. 1; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; (1999), 170 D.L.R. (4th) 1; 43 C.C.E.L. (2d) 49; 236 N.R. 1.

referred to:

Scrimbitt v. Sakimay Indian Band Council, [2000] 1 F.C. 513; [2000] 1 C.N.L.R. 205; (1999), 69 C.R.R. (2d) 295; 178 F.T.R. 210 (T.D.); Gabriel v. Mohawk Council of Kanesatake, 2002 FCT 483; Frank v. Bottle, [1994] 2 C.N.L.R. 45; (1993), 65 F.T.R. 89 (F.C.T.D.); Horse Lake First Nation v. Horseman (2003), 337 A.R. 22; 223 D.L.R. (4th) 184; [2003] 8 W.W.R. 473; 17 Alta. L.R. (4th) 93; [2003] 2 C.N.L.R. 193 (Q.B.); Bone v. Sioux Valley Indian Band No. 290, [1996] 3 C.N.L.R. 54; (1996), 107 F.T.R. 133 (F.C.T.D.); Francis v. Mohawk Council of Kanesatake, [2003] 4 F.C. 1133; [2003] 3 C.N.L.R. 86; (2003), 227 F.T.R. 161; 2003 FCT 115; McLeod Lake Indian Band v. Chingee (1998), 165 D.L.R. (4th) 358; [1999] 1 C.N.L.R. 106; 153 F.T.R. 257 (F.C.T.D.).

APPLICATION for judicial review of decisions by the Hartley Bay Electoral Officer that Band members who had not resided on the Reserve for six months prior to the 2003 Hartley Bay Village Council elections were not electors as defined in the Hartley Bay Band Custom Election Regulations and thus could not vote in the election, stand as a candidate, or nominate candidates. Application allowed.

appearances:

F. Matthew Kirchner for applicants.

Clarine Ostrove and Louise Mandell for respondents.

solicitors of record:

Ratcliff & Company LLP, North Vancouver, for applicants.

Mandell Pinder, Vancouver, for respondents.

The following are the reasons for order and order rendered in English by

[1]O'Keefe J.: This is an application for judicial review pursuant to section 18.1 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act, R.S.C., 1985, c. F-7 as amended [s. 1 (as am. idem, s. 14)], of the following, which the applicants have referred to collectively as the "decisions":

1. A decision, order, act or proceeding of the Hartley Bay Electoral Officer or the Hartley Bay Village Council or both, dated on or about December 8, 2003, permitting the elections for the Hartley Bay Village Council (the 2003 elections) to proceed.

2. A decision, order, act or proceeding of the Hartley Bay Electoral Officer dated on or about December 8, 2003, declaring the result of the 2003 elections.

3. A decision, order, act or proceeding of the Hartley Bay Electoral Officer or the Hartley Bay Village Council (the Village Council) or both, dated in or about November 2003, the particulars of which are better known to the respondents, declaring the Hartley Bay Band Custom Election Regulations (the Regulations) applicable to the 2003 elections.

4. A decision, order, act or proceeding of the Hartley Bay Electoral Officer made on or about November 24, 2003, that members of the Hartley Bay Indian Band (the Band) who do not reside on the Hartley Bay Band Reserve (the Reserve) or who had not resided on the Reserve for six months prior to the 2003 elections, are not eligible to be nominated as candidates for the position of Chief or Councillor or both of the Council in the 2003 elections.

5. A decision, order, act or proceeding of the Hartley Bay Electoral Officer made on or about November 28, 2003, that members of the Hartley Bay Indian Band who do not reside on the Reserve or who had not resided on the Reserve for six months prior to the 2003 elections are not eligible to be nominated as candidates for the position of Chief or Councillor or both of the Hartley Bay Village Council in the 2003 elections and are not eligible to vote in the 2003 elections.

6. A decision, order, act or proceeding of the Hartley Bay Electoral Officer or his delegate made on or about December 8, 2003, refusing to allow members of the Hartley Bay Indian Band who do not reside on the Reserve or who had not resided on the Reserve for six months prior to the 2003 elections to vote in the 2003 elections.

[2]The applicants request:

1. An order in the nature of certiorari pursuant to paragraph 18.1(3)(b) of the Federal Courts Act, quashing or setting aside the decisions or one or more of them;

2. An order pursuant to paragraph 18.1(3)(b) of the Federal Courts Act, declaring the 2003 elections to be invalid as:

(i) contrary to subsection 15(1) of the 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]; and

(ii) further, or in the alternative, not in accordance with the custom of the Band as accepted by a broad consensus of the membership of the Band.

3. An order in the nature of certiorari pursuant to paragraph 18.1(3)(b) of the Federal Courts Act, quashing or setting aside the result of the 2003 elections;

4. An order pursuant to paragraph 18.1(3)(b) of the Federal Courts Act, or section 52 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], or both, declaring the Regulations to be invalid on one or more of the following bases:

(i) the Regulations are contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms;

(ii) the Regulations were not accepted by a broad consensus of the membership of the Band;

(iii) the Regulations are not acceptable to a broad consensus of the membership of the Band; or

(iv) the Regulations are contrary to the custom of the Band;

5. An order pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms, amending the definition of "Elector" in the Regulations by striking out subparagraph 2(c)(iv) of those Regulations which reads: "Resides on Hartley Bay Band Reserve six months prior to election";

6. In the alternative, an order in the nature of mandamus pursuant to paragraph 18.1(3)(a) of the Federal Courts Act, directing the Village Council to amend the Regulations or enact new Band Custom Election Regulations, by a date to be set by the Court, that:

(i) comply with the Charter and, in particular, that permit members of the Band who do not reside on the Reserve but who are otherwise qualified to vote in Council elections to vote for all positions on the Council, to stand as candidates for any and all positions on the Council; and

(ii) are based on the custom of the Band as accepted by a broad consensus of the membership of the Band;

7. An order in the nature of mandamus pursuant to paragraph 18.1(3)(a) of the Federal Courts Act, directing the Council to hold a new election for all positions on the Village Council pursuant to the Regulations as amended or replaced pursuant to paragraph (e) or (f) above by a date to be set by the Court;

8. In the alternative, an order in the nature of quo warranto pursuant to subsection 18.1(3) of the Federal Courts Act, removing the members of the Council from office;

9. An order that this Court retain jurisdiction of this matter until the Regulations are amended or replaced in accordance with paragraph (e) or (f) above and an election is held pursuant to paragraph (g) above;

10. Costs; and

11. Such further and other relief as this Honourable Court may deem just.

Background

[3]The people of Hartley Bay belong to the Gitga'at Tribe of the Tsimshian Nation. There are currently approximately 644 Band members. Of those, approximately 455 live off-reserve. The traditional territory of the Gitga'at Tribe encompasses 5,500 square kilometres of land along the coast and coastal islands of British Columbia.

[4]Hartley Bay is a reserve located on the Douglas Channel, near the Inside Passage. The governance of the Gitga'at is through both the hereditary Clan system (the Clan Council) as well as the Village Council, elected pursuant to the Regulations, under subsection 2(1) [as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 1; (4th Supp.), c. 17, s. 1; S.C. 2000, c. 12, s. 148] of the Indian Act, R.S.C., 1985, c. I-5.

[5]The Regulations were adopted by resolution of the Band in 1979 and approved by an order amending order in Council P.C. 3692. There were minor amendments to the Regulations in 1981.

[6]Only an elector as defined by the Regulations may vote in an election, stand as a candidate, or nominate candidates for the election. One requirement to be an elector is that a person must reside on the Reserve six months prior to the election.

[7]The election which prompted this judicial review application was held on December 8, 2003.

[8]David Benton (Benton) was the Hartley Bay Electoral Officer for the Village Council elections held on December 8, 2003 (the 2003 elections). Benton applied the Regulations to the 2003 elections. The same Regulations (or substantially the same Regulations) applied in respect of the 2001 election for Village Council.

[9]On or about November 24, 2003, a nomination meeting was held, pursuant to the Regulations, for the purpose of nominating candidates for the positions of Chief and councillors for the 2003 elections. At that meeting, Benton would not accept the nomination of persons who had not resided on the Reserve for six months prior to the election. In previous elections, nominations for persons who had not met the six-month residency requirement had been accepted, and in some instances, the person was elected.

[10]On or about November 28, 2003, Benton issued a written decision regarding the qualifications of certain persons to participate in the 2003 election as candidates and electors. He ruled that:

1. The Regulations apply in respect of the 2003 election;

2. Persons who are members of the Band but who are not ordinarily resident on the Reserve are not "electors" under the Regulations;

3. Persons who do not meet the definition of "elector" under the Regulations are not entitled to be a candidate for the position of Chief or Councillor in the 2003 election, and are not entitled to vote in the 2003 elections.

[11]On December 8, 2003, based on the results of the 2003 election, Benton declared Patricia Sterritt acclaimed for the position of Chief and Edward Robinson, Ellis Clifton, Cameron Hill and Bruce Reese elected councillors for the Band.

Issues

[12]The issues as framed by the applicants are:

1. The Regulations violate the equality rights of the applicants contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms, (the Charter) and this violation is not saved by section 1 of the Charter; and

2. The Regulations do not reflect the custom of the Band as supported by a broad consensus of the Band membership.

[13]The issues as framed by the respondents are:

1. Whether the Gitga'at's two-tiered system of governance violates subsection 15(1) of the Charter; and

2. Whether the Regulations reflect the custom of the Band.

Applicants' Submissions

[14]Issue 1

The applicants submitted that the Regulations violate their right to equality under subsection 15(1) of the Charter, by preventing them from participating in Band governance for reasons based on immutable characteristics. The Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 held that the Indian Act, which excluded off-reserve members from participating in Band elections discriminated against off-reserve members and was contrary to section 15 of the Charter. The infringement was found to not be justified under section 1 of the Charter.

[15]The applicants submitted that this case is identical in all material respects to Corbiere, except for one factor: the Hartley Bay Band is a custom Band whereas the council in Corbiere was elected under the Indian Act. Accordingly, the only issue regarding the lawfulness of the Regulations is whether Corbiere applies to bands whose councils are chosen in accordance with the custom of the Band. This Court has suggested in numerous cases that Corbiere should apply to custom bands (see Scrimbitt v. Sakimay Indian Band Council, [2000] 1 F.C. 513 (T.D.); Gabriel v. Mohawk Council of Kanesatake, 2002 FCT 483).

[16]The applicants submitted that whether the Village Council is acting according to custom or the Indian Act, its decisions are ultimately made pursuant to its authority under the Indian Act, and are therefore subject to the Charter (see Frank v. Bottle, [1994] 2 C.N.L.R. 45 (F.C.T.D.); Horse Lake First Nation v. Horseman (2003), 337 A.R. 22 (Q.B.)).

[17]The applicants submitted that the Regulations wholly exclude off-reserve members from participating in Band elections. The discrimination cannot be justified because the Regulations do not create a minimal impairment of the applicants' rights. Rather, they preclude off-reserve members from participating in Band governance at all, with no regard for possible avenues of accommodation. A minimal impairment must make at least some accommodation of the right to participate in matters that affect off-reserve members.

[18]The applicants submitted that the Village Council is responsible for the governance of the affairs of the Band. The applicants submitted that the evidence shows that the powers of the Village Council extend well beyond the needs of on-reserve members. For example, the Village Council is responsible for:

(a) control over infrastructure and local governance;

(b) control of access to on-reserve housing;

(c) management and allocation of reserve land;

(d) management of the finances and capital assets of the Band;

(e) control over economic development initiatives and the benefit of the Band;

(f) administration of post-secondary education funding for all Band members;

(g) administration of health funding and programs for all Band members;

(h) control of surrender of Band lands;

(i) management and development of the natural resources on the property and within the traditional territory of the Band;

(j) engagement in and funding of the treaty process; and

(k) management and protection of aboriginal rights and title both on and off reserve lands.

[19]The applicants submitted that with respect to the hereditary chief system, the Clan Council is inadequate and cannot constitute accommodation of the applicants' rights and interests. There is no evidence before the Court as to, for example, whether notices of meetings are sent to off-reserve Band members, how the Clan Council is chosen, how off-reserve members participate in meetings and decision-making, and how the Clan Council and Village Council resolve conflicts and whose decisions prevail in the case of a conflict.

[20]The applicants submitted that the Village Council is the only entity legally recognized by Canada, and the only entity that has the full legal and political authority to manage rights and interests of the off-reserve members of the Band; the Clan Council could have no actual power to govern the Band. For that reason, the applicants must have active and real participation in the election and functions of the Village Council.

[21]The applicants submitted that the Regulations are not based on the broad consensus of the Band. Therefore, the Regulations cannot constitute a justifiable limit on the applicants' rights "as prescribed by law," as required pursuant to section 1 of the Charter.

[22]Issue 2

The applicants submitted that the Regulations were adopted without the broad consensus of the membership of the Band and do not presently enjoy the support of the broad consensus of the membership. A band's custom must include practices for the choice of council which are generally acceptable to members of the band upon which there is a broad consensus (see Bone v. Sioux Valley Indian Band No 290, [1996] 3 C.N.L.R. 54 (F.C.T.D.)). It is Band membership as a whole that must make this determination, not the Council alone and not just the on-reserve members (Francis v. Mohawk Council of Kanesatake, [2003] 4 F.C. 1133 (T.D.)).

[23]The applicants submitted that when the Regulations were adopted in 1979, they were intended to reflect the Indian Act model in place at the time, not the custom of the Band. There is no evidence that there was any discussion about traditional Band custom at the time the Regulations were drafted. There is also no evidence that the off-reserve membership was invited or even notified of the meetings at which the Regulations were discussed.

[24]The applicants submitted that in the alternative, if the 1979 Regulations did reflect the custom of the Band at that time, the circumstances have changed significantly since then, particularly with the decision in Corbiere, such that it can no longer be said that the Regulations enjoy the support of a broad consensus of the membership, including off-reserve members.

Respondents' Submissions

[25]The respondents submitted that this case is distinguishable from Corbiere in that the Gitga'at have a two-tiered governance system which is well established and facilitates the participation of all Band members regardless of their residency, in Gitga'at governance.

[26]The respondents submitted that section 15 of the Charter, is not violated in this case. In Corbiere, the concurring judgments of McLachlin J. (as she then was) and L'Heureux-Dubé J. both held that not all forms of differential treatment between on-reserve and off-reserve members constitutes discrimination. It is only when off-reserve members are completely excluded from participation in Band governance that a clear violation of subsection 15(1) of the Charter has occurred.

[27]L'Heureux-Dubé J. in Corbiere, made it clear that identical voting rights between on-reserve members and off-reserve members are not required by section 15. The respondents submitted that a system of governance and representation exists in the Band such that the interests of off-reserve members are fully protected for Charter purposes.

[28]The respondents submitted that recognition by Canadian governments does not determine where power and authority lie within the Gitga'at Tribe, based on their traditions, lands and customs. The fact that the Village Council is legally recognized means that it is the "formal" partner empowered to enter into agreements, but does not mean it is the "substantive" decision-maker on all, or many, matters.

[29]The respondents submitted that the Clan Council has jurisdiction over non-reserve issues which affect all members--including Aboriginal rights and title, protection of Gitga'at traditional territory, and treaty negotiations. The Clan Council is actively involved in economic development initiatives and has created the Gitga'at Development Corporation, in which the governing Board reflects the hereditary system of the Gitga'at, so that off-reserve members are fully represented and receive benefits equal to on-reserve members.

[30]By contrast, the Village Council's jurisdiction is related to the Indian Act, Department of Indian Affairs' policy, and to local matters of direct interest to Band members living on-reserve. Where the Village Council is required to act--by virtue of the Indian Act or Department of Indian Affairs policy--in areas under the jurisdiction of the Clan Council, the Village Council acts at the direction of the Clan Council.

[31]The respondents submitted that:

1. The Village Council has been able to secure the equivalent of 17 salmon gillnet licences which are available to on- and off-reserve members, and in fact, the vast majority of them are held by off-reserve members;

2. The eco-tourism initiatives are led by the Clan Chiefs;

3. With regard to treaty negotiations, the Clan Council gives the Village Council a mandate to participate in the treaty processes;

4. The Clan Council is the guardian of the collective rights and title of the Gitga'at people; and

5. Off-reserve members serve as Clan Chiefs. For example, Albert Clifton lives off-reserve and is the Clan Chief of the Gispudwada Clan.

[32]The respondents submitted that while there is differential treatment between on-reserve and off-reserve members, this differential treatment does not amount to discrimination. Far from a complete exclusion from band governance, off-reserve members are represented, participate and hold leadership positions in relation to the fundamental issues which impact their life and well-being as members of the Gitga'at.

[33]Absent any evidence of particular disadvantage, no violation of subsection 15(1) can be said to exist. In this case, unlike Corbiere, the applicants have not shown any particular disadvantage as a result of the Regulations.

[34]Minimal Impairment

The respondents submitted that if discrimination is found to exist in this case, the only issue is whether the Regulations minimally impair the right to representation. L'Heureux-Dubé J. specifically commented on a two- tiered system in Corbiere. Accordingly, any violation of subsection 15(1) is saved by section 1 of the Charter as the equality rights of the applicants have only been minimally impaired by the Gitga'at two-tier form of band governance. As the Court held in Corbiere, excluding non-residents from voting is rationally connected to the objective. In this case, the Regulations ensure that those with the most direct and immediate interest--the residents--maintain voting control over the decisions that will affect the future of the Reserve. However, as the existence of the two-tiered governance system provides off-reserve residents with meaningful participation in the governance of the Band, any impairment resulting from restrictions in the Regulations is minimal.

[35]Issue 2

Preliminary Objection

The respondents submitted that the Regulations were adopted over 25 years ago. A challenge to the Regulations in 2004 is barred by the applicants' excessive delay in commencing an application. A delay of 25 years in bringing judicial review of the decision to adopt the Regulations is clearly unreasonable. To allow the applicants to attempt to now establish that the Regulations were not based on a broad consensus of the Band creates substantial prejudice.

[36]There is insufficient evidence for the Court to make a conclusive finding as to whether there did or did not exist a broad consensus of the Band membership at the time the Regulations were adopted. The only evidence before the Court is that at a meeting of the Band membership in 1979, the Regulations were approved by the unanimous vote of those in attendance at the meeting. The subsequent minor amendments to the Regulations were also overwhelmingly adopted by those in attendance at the meeting.

[37]The respondents submitted that there is also no evidence as to the number of Band members in 1979, the number of Band members added to the Band list after Bill C-31 [An Act to amend the Indian Act, S.C. 1985, c. 27] in 1985, the names and residency of those who participated in meetings adopting the Regulations and their amendments, and the broader context of the adoption of the Regulations.

[38]Acquiescence

The respondents submitted that the applicants have acquiesced to both the Regulations being the "custom of the Band," and specifically, to the 2003 election being held in accordance with the Regulations. From 1979 until 2002, a period covering approximately 13 Village Council elections, there were no complaints from any of the applicants concerning the Regulations. The pattern of acquiescence from 1979 until 2002 is a bar to the applicants now challenging the Regulations.

[39]Custom Regulations

The respondents submitted that the Regulations are valid within the Indian Act framework. A Band's customs include practices for the choice of a council which are generally acceptable to members of the Band, upon which there is a broad consensus (see Bone). For Indian Act purposes, a Band electoral "custom" is dynamic (see McLeod Lake Indian Band v. Chingee (1998), 165 D.L.R. (4th) 358 (F.C.T.D.)).

[40]In the case at bar, the Band has always had a two-tiered system of governance, comprised of both a Clan Council and a Village Council. Since the early 1950s, the Village Council has been elected pursuant to either the Indian Act or custom. The Clan Council has been selected, since time immemorial, by designation and inheritance.

[41]The respondents submitted that on the question of whether the complaints lodged since 2002 concerning the Regulations illustrate the loss of a broad consensus, this is not a representative action. There are 44 applicants from Prince Rupert who are challenging the Regulations. There are over 600 Band members, approximately 200 who live in Prince Rupert. Given two decades of acquiescence to the Regulations, this constitutes a small and vocal group, but not the loss of a broad consensus.

[42]Given that the determination of the "custom" to be used in a custom election is something within the expertise of the Band, the decision to choose councils based on custom is a choice which should be shown considerable deference. The Court should give weight to the fact that the Band and the Village Council are currently engaged in an inclusive process to amend their electoral process.

[43]The respondents requested that the application for judicial review be dismissed with costs.

Relevant Statutory Provisions

[44]Subsection 2(1) of the Indian Act, states in part as follows:

2. (1) . . .

"council of the band" means

(a) in the case of a band to which section 74 applies, the council established pursuant to that section,

(b) in the case of a band to which section 74 does not apply, the council chosen according to the custom of the band, or, where there is no council, the chief of the band chosen according to the custom of the band;

[45]The applicants submitted that whether the Village Council is acting according to custom or the Indian Act, its decisions are ultimately made pursuant to its authority under the Indian Act and are therefore subject to the Charter. I agree with that statement.

[46]The Court in Corbiere, utilized the subsection 15(1) analysis set out in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, and concluded that the exclusion of off-reserve members from voting pursuant to section 77 [as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 14] of the Indian Act, infringed the Charter and was not saved by section 1.

[47]In Law, the Court set out a three-part inquiry a court is required to make to adjudicate on a claim of a violation of subsection 15(1) of the Charter:

1. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in a substantively different treatment between the claimant and others on the basis of one or more personal characteristics?

2. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and

3. Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteris-tics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration.

[48]Factor 1

In Corbiere, the Court held that [at paragraph 4]:

The first step is to determine whether the impugned law makes a distinction that denies equal benefit or imposes an unequal burden. The Indian Act's exclusion of off-reserve band members from voting privileges on band governance satisfies this requirement.

I find that the exclusion under the Regulations of off-reserve band members from voting, prima facie, also satisfies the requirement in this case.

[49]Factor 2

In Corbiere, the Court determined that Aboriginality-residence (off-reserve band member status) constitutes a ground of discrimination analogous to the enumerated grounds. The Court further held that Aboriginality-residence as an analogous ground must always stand as a constant marker of potential legislative discrimination.

[50]Accordingly, as this case also involves the issue of Aboriginality-residence, I find that this element of the Law analysis is also applicable and the applicants as off-reserve members are subject to differential treatment based on an analogous ground.

[51]Factor 3

The Court in Corbiere then proceeded to address the third step in the Law, subsection 15(1) analysis; whether the distinction at issue in this case in fact constitutes discrimination. Or, as the Court stated [at paragraph 16]:

In plain words, does the distinction undermine the presumption upon which the guarantee of equality is based--that each individual is deemed to be of equal worth regardless of the group to which he or she belongs?

[52]The Court answered in the affirmative. The analysis by McLachlin and Bastarache JJ. was articulated as follows [at paragraphs 17-18]:

Applying the applicable Law factors to this case-- pre-existing disadvantage, correspondence and importance of the affected interest--we conclude that the answer to this question is yes. The impugned distinction perpetuates the historic disadvantage experien ced by off-reserve band members by denying them the right to vote and participate in their band's governance. Off-reserve band members have important interests in band governance which the distinction denies. They are co-owners of the band's assets. The re serve, whether they live on or off it, is their and their children's land. The band council represents them as band members to the community at large, in negotiations with the government, and within Aboriginal organizations. Although there are some matters of purely local interest, which do not as directly affect the interests of off-reserve band members, the complete denial to off-reserve members of the right to vote and participate in band governance treats them as less worthy and entitled, not on the merits of their situation, but simply because they live off-reserve. The importance of the interest affected is underlined by the findings of the Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (1996), vol. 1, Looking Forward, Looking Back, at pp. 137-91. The Royal Commission writes in vol. 4, Perspectives and Realities, at p. 521:

Throughout the Commission's hearings, Aboriginal people stressed the fundamental importance of retaining and enhancing their cultural i dentity while living in urban areas. Aboriginal identity lies at the heart of Aboriginal peoples' existence; maintaining that identity is an essential and self-validating pursuit for Aboriginal peoples in cities.

And at page 525:

Cultural identity for urban Aboriginal people is also tied to a land base or ancestral Territory. For many, the two concepts are inseparable. . . . Identification with an ancestral place is important to urban people because of the associated ritual, ceremony and traditions, as we ll as the people who remain there, the sense of belonging, the bond to an ancestral community and the accessibility of family, community and elders.

Taking this all into account, it is clear that the s. 77(1) disenfranchisement is discriminatory. It denies off-reserve band members the right to participate fully in band governance on the arbitrary basis of a personal characteristic. It reaches the cultural identity of off-reserve Aboriginals in a stereotypical way. It presumes that Aboriginals living off-reserve are not interested in maintaining meaningful participation in the band or in preserving their cultural identity, and are therefore less deserving members of the band. The effect is clear, as is the message: off-reserve band members are not as deserving as those band members who live on reserves. This engages the dignity aspect of the s. 15 analysis and results in the denial of substantive equality.

[53]Madam Justice L'Heureux-Dubé approached the matter slightly differently and stated [at paragraph 95]:

Recognizing non-residents' right to substantive equality in accordance with the principle of respect for human dignity, therefore, does not require that non-residents have identical voting rights to residents. Rather, what is necessary is a system that recognizes non-residents' important place in the band community. It is possible to think of many ways this might be done, while recognizing, respecting, and valuing the different positions, needs, and interests of on-reserve and off-reserve band members. One might be to divide the "local" functions which relate purely to residents from those that affect all band members and have different voting regimes for these functions. A requirement of a double majority, or a right of veto for each group might also respect the full participation and belonging of non-residents. There might be special seats on a band council for non-residents, which give them meaningful, but not identical, rights of participation. The solution may be found in the customary practices of Aboriginal bands. There may be a separate solution for each band. Many other possibilities can be imagined, which would respect non-residents' rights to meaningful and effective participation in the voting regime of the communit y, but would also recognize the somewhat different interests of residents and non-residents. However, without violating s. 15(1), the voting regime cannot, as it presently does, completely deny non-resident band members participation in the electoral system of representation. Nor can that participation be minimal, insignificant, or merely token.

[54]The respondents submitted that the two-tiered governance system meets the requirements of providing the off-reserve members with meaningful and significant participation in Band affairs. The hereditary Clan Council is either directly or indirectly (by providing direction to the Village Council), making the substantive decisions on all matters that affect more than just the on-reserve members of the Gitga'at. While the Village Council is legally recognized by the government, it is, in fact, the Clan Council that is the "directing mind" in significant matters pertaining to the Band membership as a whole.

[55]There is little question as to the importance of the Clan Council to the Gitaga'at, and the central role it plays in Gitga'at society. However, the Village Council's participation in matters extending beyond those of a merely local nature is extensive. While the Clan Council might be the "directing mind" when dealing with off-reserve matters, it is the Village Council that has the legal authority to make the decisions that affect the rights of both on-reserve and off-reserve members. Further, while not determinative of this case, as the applicants submitted, there is insufficient evidence before the Court as to the extent of the possible participation for off-reserve Band members in Clan Council matters, or indications of how frequently meetings occur, or whether off-reserve Band members are notified of meetings. It is also unclear as to whose decision would take precedence if the Village Council disagreed with a position taken by the Clan Council.

[56]The applicants in this case are completely excluded from participation in the electoral process as was the case in Corbiere. It has not been shown that the exclusion is necessary or even justifiable. In light of the Village Council's authority on matters affecting off-reserve members, I cannot find a justification for granting on-reserve members a right to participate in the electoral process while completely excluding off-reserve members.

[57]The Court in Corbiere noted that there might be alternative methods other than a one person, one vote electoral regime to incorporate off-reserve members' participation rights. In my opinion, the two-tiered system in this case does not meet the requirements of a process which "would respect non-residents' rights to meaningful and effective participation in the voting regime of the community" as discussed by the Supreme Court in Corbiere. On the facts of this case, I find that as in Corbiere, without violating subsection 15(1), the voting regime cannot, as it presently does, completely deny non-resident Band members participation in the electoral system of representation.

[58]I therefore find that the Regulations, to the extent they exclude off-reserve members from participating in the Village Council elections, contravene subsection 15(1) of the Charter, and are not demonstrably justified as a reasonable limit pursuant to section 1 of the Charter.

[59]In my opinion, the appropriate order to grant in this case is to declare invalid the words "resides on Hartley Bay Band Reserve six months prior to election" found in paragraph 2(c)(iv) of the Regulations.

Remedy

[60]With regard to the question of remedy, a new election is scheduled to take place in December of this year. Under the circumstances of this case, it would be damaging to the community for this Court to deem void any decisions made by Council in the last year and a half. Accordingly I will not set aside the 2003 election notwithstanding the Charter breach. The remedy in this case must therefore be forward-looking while protecting the applicants' Charter rights.

[61]During the course of submissions, the parties referred to a consultative process the Band is currently pursuing with the hope of attaining what counsel for the respondents referred to at the hearing as an "appropriate voting regime that gives an opportunity to off-reserve people to vote for representation or participation on Band Council in a way that has regard for the history and values of the Gitga'at people, and balances the needs and interest of all affected band members." This is a process which is intended to be completed before the next scheduled election in December. Both parties expressed their willingness to work together towards that goal. In my opinion, it is in every instance preferable, and important, for the parties to reach a mutually acceptable solution between themselves whenever possible.

[62]The respondents requested that if I find the Regulations contravene section 15, that the declaration of invalidity be suspended until nine months after the date of the hearing of the judicial review (to approximately the end of November 2005), to allow the consultative process to continue for the full estimated amount of time required for completion.

[63]As the next election is scheduled for the month of December 2005, I will instead suspend the implementation of the declaration of invalidity until Tuesday, November 1, 2005 which is only one month shorter than the respondents requested. This will allow the consultative process within the Gitga'at community to continue to completion or as close to completion as possible, while protecting the applicants' right to participate in the next election if they so choose. If the process does not result in an agreement by that date, the additional month will provide time to deal with any required administrative matters such as the sending of any notices or information packages to off-reserve members prior to the election.

[64]In light of the findings on Issue 1, it is not necessary to deal with the applicants' second issue.

[65]The application for judicial review is allowed as noted above.

[66]The applicants shall have their costs of the application.

[67]At the hearing, counsel for the applicants requested that David Robinson and Eva Robinson be deleted as applicants. Counsel for the respondents agreed. Accordingly, these two persons are removed as applicants.

ORDER

[68]IT IS ORDERED that:

1. The application for judicial review is allowed.

2. The words "Resides on Hartley Bay Band Reserve six months prior to the election" found in paragraph 2(c)(iv) of the Regulations are declared invalid.

3. The declaration of invalidity is suspended until Tuesday, November 1, 2005.

4. The December 2003 election will not be set aside.

5. David Robinson and Eva Robinson are removed as applicants.

6. The applicants shall have their costs of the application.

v.478