First Nations election law not complying with Canadian Charter of Rights and Freedoms

Federal appeal | Aboriginal Law | Government of Aboriginal people | Councils

First Nations held elections for chief and council, which applicant contested. First Nations appeal committee directed electoral officer to hold new election after it determined that existing First Nations election law did not comply with Canadian Charter of Rights and Freedoms. First Nations chief and council passed Band council resolution that rejected appeal committee’s direction for new election, finding that appeal committee acted outside its jurisdiction and without authority. Applicant unsuccessfully brought application for judicial review of Band council resolution. Applicant appealed. Appeal dismissed. Council could validly conclude that committee had no jurisdiction to amend election law and call election on terms that it did. Federal Court did not err in its application of standard of review when it concluded that council correctly determined that committee did not have jurisdiction. When First Nation chose to be subject to its own customary law, it became responsibility of all its members to ensure that it was not frozen in time. While most appeals simply involved factual determination, there was no doubt that in applying election law, committee could be called upon to determine some ancillary legal issues. It followed that, committee having to decide appeals before it by applying law, namely election law, also had jurisdiction to decide constitutionality of election law.

Perry v. Cold Lake First Nations Chief and Council (2018), 2018 CarswellNat 1426, 2018 FCA 73, Johanne Gauthier J.A., Wyman W. Webb J.A., and D.G. Near J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 6458, 2016 FC 1320, Simon Fothergill J. (F.C.).

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