Case Brief: Bertrand v. Acho Dene Koe First Nation, 2021 FC 287
By Lorenzo Rose
What this case is about
COVID-19 has impacted many of our most important activities, including the ways we vote in elections. For many First Nations, their past practices for conducting Band Council elections are inconsistent with safety protocols. To accommodate this, the Canadian government enacted regulations to authorize First Nations to delay elections and extend the terms of their Band Councils.
On 1 April 2021, Federal Court Justice Grammond found that one section of these regulations was unauthorized by the Indian Act and declared the section invalid. This declaration was suspended for sixty days.
The court also considered whether Acho Dene Koe First Nation’s customs allow council to delay elections. He determined that these customs require elections every three years but do not allow council to extend their term.
What the court found
1. Acho Dene Koe’s custom election laws did not empower council to extend their term
As Acho Dene Koe’s elections have never been governed by the Indian Act, their council was “chosen by custom.” Unlike First Nations with a custom election code, Acho Dene Koe’s customs are not represented by a formal election code. Instead, Acho Dene Koe’s council is chosen by “various forms of Indigenous laws.”
To be a “custom” that chooses a Band council, a practice must be “generally acceptable” and enjoy a “broad consensus.” The court noted that “customs” can be election codes or similar legislation enacted by a majority vote, unwritten practices that attract broad consensus, or potentially other rules based in Indigenous laws.
Acho Dene Koe argued that the main provisions of a 2007 draft election code were part of Acho Dene Koe’s custom. The court disagreed. There was insufficient evidence of the community ratifying or following the code to conclude that it formed a “custom” by which Council was chosen. Council itself adopting the code was not sufficient.
The court also found that a three-year limit between elections was an Acho Dene Koe custom. As length of term is a “conspicuous feature” of democracies, “consistent practice in this regard attracts the community’s tacit consensus.”
The court rejected Acho Dene Koe’s argument that their council had a customary power to delay elections. Although Acho Dene Koe’s council had delayed an election once before, this was not a “general or consistent practice” and was “difficult to reconcile with the recent, consistent practice of fixed-term elections every three years.”
2. Regulations that purported to empower council to extend their term were invalid
In Canada, governments may only make regulations when they are empowered to do so by legislation. Regulations are invalid if they are inconsistent with the purpose or scope of the empowering legislation.
The Indian Act grants the federal Cabinet authority to make regulations “to prevent, mitigate, and control the spread of diseases on reserve.” Canada and Acho Dene Koe argued that this provision justified the regulation granting bands power to delay elections as the regulation was aimed at the purpose of controlling the spread of disease.
The court rejected these arguments. Parliament never intended for this power to extend to granting First Nation’s councils the authority to extend their own terms in defiance of customary law. Thus, the regulations went beyond the scope granted by Parliament and were invalid.
Why this case matters
This case only invalidates s. 4 of the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases), which deals with First Nations whose councils are selected by custom. Similarly, while the decision does not state that actions taken by a Band Council who had extended their authority under s. 4 of the Regulations are also invalid, this seems to be the implication of the decision.
Other sections, which granted similar powers to delay elections held under the Indian Act or First Nations Election Act, are not affected as their validity was not questioned. If a challenge to those provisions reaches the courts, this decision may be persuasive. However, unlike the basis of the “custom” regulation in s.4, the powers specifically enacted for Indian Act and First Nations Election Act elections specifically referenced the election provisions of those Acts as the basis of the regulations.
Finally, the decision indicates that while customary law may quickly incorporate democratic safeguards, it may not grant a First Nation’s council authority to delay an election or advance their own term. First Nations who choose their council by custom or by a custom election code should strongly consider adopting an election code that explicitly grants council authority to delay elections in exigent circumstances such as a public health emergency.