Federal Court


Constitutional Law

CHARTER OF RIGHTS
Arbitrator did not err in finding that s. 3 of Charter did not apply to First Nation election

Applicant O was member of respondent First Nation and was nominated to run for Chief in election. However, O was told by election officer that he could not do so because s. 9.3(c) of Customary Election Regulations of the Peerless Trout First Nation stated that any elector who was plaintiff in civil action against First Nation was not eligible to be nominated and O had commenced civil action against First Nation that was ongoing. O appealed and brought action seeking to have s. 9.3(c) of Regulations declared invalid on grounds it was contrary to Canadian Charter of Rights and Freedoms. Master found that s. 9.3(c) of Regulations did not violate Charter. Arbitrator dismissed O’s appeal, finding that elections officer properly applied s. 9.3(c) of Regulations and that s. 9.3(c) of Regulations did not infringe Charter. O brought an application for judicial review. Application dismissed. There was no authority to support O’s argument that there was constitutional guarantee that members of First Nation could run for elected office of First Nation Council. Given clear line of authorities, arbitrator did not err in finding that s. 3 of Charter did not apply to First Nation election and therefore s. 9.3(c) of Regulations was not unconstitutional because it did not conflict with s. 3 of Charter. Arbitrator did not err in finding that eligibility requirement was not abuse of power or contrary to rule of law. It was open to arbitrator to find that s. 9.3(c) eligibility requirement was directed toward ensuring that First Nation Chief and councillors were able to fully and properly carry out duties and responsibilities and demonstrate responsible government. Arbitrator’s interpretation of s. 9.3(c) of Regulations was reasonable.

Orr v. Peerless Trout First Nation (Sep. 8, 2015, F.C., Cecily Y. Strickland J., File No. T-32-15) 257 A.C.W.S. (3d) 751.   

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