ABORIGINAL PEOPLES |
Elections |
Peter Ballantyne Cree Nation v. Peter Ballantyne Cree Nation (Council)
T-801-93, T-1006-93, T-1009-93
MacKay J.
3/11/00
19 pp.
Three actions heard together on basis of agreed statement of facts and issues--Plaintiffs seeking judgments to set aside decisions of Chief and Council in February 1993, to hold second referendum, to conduct referendum without reference to requirements of Indian Referendum Regulations, to advise others to ignore results of by-election at Pelican Narrows and to authorize by Band Council Resolution adherence by Chief to Agreement--Peter Ballantyne Cree Nation engaged with other Indian bands in discussions with Saskatchewan provincial officers, federal government leading to Saskatchewan Treaty Land Entitlement Framework Agreement--Referendum held by Peter Ballantyne Band on November 23, 1992 in order for Chief to adhere to Agreement--Second referendum, held on February 23, 1993, in favour of Chief signing Agreement to indicate band's adherence--First issue: What is Peter Ballantyne Cree Nation "band custom" with respect to elections?--Second issue: Whether local election of February 24, 1993 constituted proper election, by-election--Third issue: Can Chief, Council ignore results of local by-election that does not follow Band "custom" with respect to election procedure? --First two issues, though agreed by parties to be raised for determination by Court, now moot--While there may be general interest in comment upon them, no exceptional reasons for Court, in exercise of discretion, to deal with them--To discuss these without argument of plaintiffs, as issues without effect in reality, would produce mere obiter, would not be helpful--Third question answered affirmatively--Chief, Council of Nation could ignore results of local by-election that did not follow "custom" applicable to election--In so doing, Chief, Council exercised responsibility to uphold law, that is custom, of Nation where applicable--Indian Referendum Regulations providing procedures required for referendum called for under Indian Act, ss. 38, 39--In absence of statutory, regulatory, other authority requiring referendum on matter other than set out by Act, ss. 38, 39, Chief, Council not bound to follow Regulations if they sought to assess support of band electors through referendum process--Agreement not providing for surrender, designation within terms of Indian Act, ss. 38, 39--Indian Referendum Regulations not mandatory herein--Chief, Council did not err by not following Regulations in arranging for, conducting referenda in November 1992, February 1993--Actions dismissed--Indian Referendum Regulations, C.R.C., c. 957--Indian Act, R.S.C., 1985, c. I-5, ss. 38 (as am. by R.S.C., 1985 (4th Supp.), c. 17, s. 2), 39 (as am. idem, s. 3).