Federal Court

Cour fdrale
Date: 20120202 Docket: T-176-12

Ottawa, Ontario, February 2, 2012 PRESENT: The Honourable Madam Justice Bdard

BETWEEN: ROSEAU RIVER ANISHINABE FIRST NATION CUSTOM COUNCIL as represented by member LYNDA ROBERTS Applicant and

TERRANCE NELSON, MICHAEL LITTLEJOHN, EVELYN PATRICK and KEITH HENRY, (being the former Chief and former Councillors of the ROSEAU RIVER ANISHINABE FIRST NATION) KENNETH HENRY JR., GARY ROBERTS, CECIL JAMES, DAWN ROBERTS and LAWRENCE HENRY, in their personal capacity, and in their capacity as current elected Chief and Council of the ROSEAU RIVER ANISHINABE FIRST NATION

Respondents ORDER

Page: 2 UPON considering the applicants motion filed pursuant to section 18.2 of the Federal Courts Act, RSC, 1985, c F-7, for interim interlocutory relief until the final determination of the underlying application for judicial review filed with this Court;

AND UPON reviewing the materials filed by all parties and hearing the submissions of the parties;

AND UPON considering that, in order to obtain an injunction, the applicant must meet the tri-partite test articulated by the Supreme Court of Canada in RJR-MacDonald v Canada (Attorney General), [1994] 1 SCR 311, 111 DLR (4th) 385, which requires the applicant to demonstrate (1) that there is a serious issue to be tried, (2) that the applicant would suffer irreparable harm if no order were granted, and (3) that the balance of convenience favours the granting of the order;

AND UPON CONSIDERING that these requirements are met and that the requested interlocutory measures should be granted.

Endorsement

This case involves an internal dispute among members of the Roseau River Anishinabe First Nation (the FN) which arose in the following context.

The applicant alleges that it is the true and genuine Custom Council of the FN.

Page: 3 An election was held in March 2011, following which Terrance Nelson was elected as Chief and Michael Littlejohn, Evelyn Patrick and Keith Henry were elected as Councillors. For the purpose of this Order, the above-mentioned respondents, when referred to as a collective, are called the first set of respondents.

The applicant alleges that, following this election, the first set of respondents refused to cooperate with it in its capacity as Custom Council and refused to abide by requests from it to attend Custom Council meetings to address the FN business and financial matters.

On May 16, 2011 the applicant sent a letter to the Chief and Councillors which reads, in part, as follows: Please be advised that the Custom Council requires Chief & Council to provide individual reports respecting financial and progress reports. The Custom Council has served the Chief & Council with two (2) notices for the above mentioned reports. Please see attached. The Custom Council have not received any notice or indication from your office to date regarding the requested information for presentation. As per direction from the Custom Council Family Representatives, we have been instructed to issue a final notice to Chief & Council to present their budget and report for 2011-2012. The next scheduled meeting of the Custom Council will be on Tuesday May 24, 2011 @ 10:00 A.M. to be held at the Ni chi Gaming Centre.

The Chief and Councillors did not follow up on the letter sent by the applicant. At a meeting held on September 20, 2011, the Custom Council adopted a resolution removing Terrance Nelson from office as Chief of the FN.

Page: 4 The applicant also called a by-election to elect a new Chief. That election was held on October 13, 2011 and the respondent, Kenneth Henry Jr., was elected.

On October 20, 2011, the applicant adopted a resolution removing Michael Littlejohn, Evelyn Patrick and Keith Henry from office as Councillors for failure to carry out their responsibilities as Councillors and failure to cooperate with the applicant. A second by-election was called and Cecil James, Dawn Roberts and Lawrence Henry were elected as Councillors. For the purpose of this Order, Kenneth Henry Jr., Gary Roberts and these latter Councillors, when referred to as a collective, are called the second set of respondents.

The first set of respondents allege that on November 1, 2011, 16 family representatives, who were different from the family representatives who participated in the Custom Council meetings of September 20, 2011 and October 20, 2011, but who claim to have been appointed on October 31, 2011 in a newly constituted Custom Council, held a special meeting of the alleged-revamped Custom Council and rescinded the resolutions passed on September 20, 2011 and October 20, 2011. They purportedly restored the first group of respondents to their respective offices of Chief and Councillors.

As a result of these above-mentioned events, the FN is left with two groups claiming that they are the legitimate Chief and Council and two groups claiming that they are the legitimate members of the Custom Council.

Page: 5 The parties do not dispute that when it adopted the resolutions of September 20, 2011 and October 20, 2011 removing the first set of respondents from office, the applicant was the legitimate FN Custom Council and adopted valid resolutions. The parties likewise all concur that under the terms of the FNs Constitution and Election Act, the Custom Council possessed the jurisdiction to remove the first set of respondents from office.

However, the applicant and the second set of respondents contend that the resolution of November 1, 2011, which rescinded the September and October resolutions, was not adopted by the legitimate Custom Council. The evidence before me does not convince me that this resolution was adopted by a duly constituted and legitimate Custom Council. I am therefore of the view, based on the limited evidence presented by the parties and for the sole purpose of disposing of this motion for interim relief, that the applicant is the legitimate Custom Council and that the resolutions that it adopted were valid, including the resolutions calling for new by-elections to elect a Chief and Councillors.

I am also satisfied, based on the limited evidence presented by the parties, that Lynda Roberts was duly appointed at a special meeting of the Custom Council to act on behalf of the applicant Custom Council for the purpose of these proceedings.

I will now apply the three-prong test applicable for ordering interlocutory measures.

All parties agree that there is a serious issue to be tried. The dispute about the legitimate Chief, Councillors and Custom Council involved in this proceeding is, indeed, a serious issue.

Page: 6 I am also convinced that the confusion stemming from uncertainty as to who are the legitimate Chief, Councillors and Custom Council of the FN creates irreparable harm for all members of the FN as it jeopardizes the FNs capacity to administer its affairs and deal with the Government authorities and other partners and stakeholders. The evidence also shows that urgent matters and issues need to be dealt with by a Chief and Council.

Finally, I am of the view that the balance of convenience favours granting the requested order. The current situation of uncertainty as to which group has the right to govern the FNs affairs and act on its behalf is untenable and the FN cannot remain in this situation until the final determination of these proceedings. It is in the best interest of the FN members that there be a Chief and Councillors who can attend to the FN business and ensure some stability until the final determination of this matter.

Considering my conclusion regarding the invalidity of the November 1, 2011 resolution, I view the results of the by-elections conducted by the applicant for the Chief position in October 12, 2011 and for the Councillor positions in November 7, 2011, as being the situation that prevailed before these proceedings. In my view, this is the status quo that should be maintained until the final determination of these proceedings. Therefore, the Court will recognize the legitimacy of the second set of respondents as Chief and Councillors of the FN until final determination of these proceedings.

The first set of respondents asked the Court to adjourn this matter until the results of the Referendum conducted by Aboriginal Affairs and Northern Development Canada, scheduled for February 16, 2012, are known. With respect, there is no evidence to support the proposition that the

Page: 7 Referendum will lead to an expeditious resolution of the issues raised in these proceedings and this order will not prevent the conduct of the referendum.

I am also of the view that this file should be case-managed in order to accelerate its treatment and achieve a final disposition as soon as possible.

Page: 8 ORDER

THIS COURT ORDERS that the motion is granted. 1. The respondent Terrance Nelson is ordered to cease holding himself out as the Chief of the Roseau River Anishinabe First Nation; 2. The respondents Michael Littlejohn, Evelyn Patrick and Keith Henry are ordered to cease holding themselves out as Councillors of Roseau River Anishinabe First Nation; 3. The respondent Kenneth Henry Jr. is to act as the Chief of the Roseau River Anishinabe First Nation until final determination of these proceedings, until a Judge of this Court orders otherwise or until a valid election is held to elect a new Chief; 4. The respondents, Cecil James, Dawn Roberts and Lawrence Henry, are to act as Councillors of the Roseau River Anishinabe First Nation until final determination of these proceedings, until a Judge of this Court orders otherwise or until a valid election is held to elect new Councillors; 5. No order is required with respect to respondent Gary Roberts whose position as Councillor has not been disputed; 6. This file will be referred to the Office of the Chief Justice for the appointment of a case manager; 7. Costs are granted in favour of the applicant.

Marie-Jose Bdard Judge