OTTAWA—A motion to be granted intervener status in the case deciding the fate of the overturned September 9, 2017 M’Chigeeng band elections was dismissed on March 5 by Judge Mandy Aylen.
Former M’Chigeeng Chief Joseph F. Hare had brought a motion under Rule 109 of the Federal Court Rules seeking an order granting him intervener status in an application to the court by former chief Linda Debassige and the M’Chigeeng First Nation Election Appeals Committee. The two parties were seeking to have an order overturning the September 9 band election set aside to allow the election to stand. Ms. Debassige and the appeals committee came to a resolution to set aside the appeal following community meetings and a number of petitions that were presented to the committee.
The reason for the original appeal of the election results was due to the use of a membership list that the appeals committee maintained was not valid. Under the new custom band membership code, membership in the band is limited under a number of criteria, including knowledge of Anishnaabe history, culture and customs. A committee determined who were eligible.
On November 8, 2017, the Honourable Mr. Justice Barnes granted, on consent of all parties, a stay of the re-election until resolution of the application for judicial review. The Honourable Justice Bell set the date for a new election for April 21, 2018.
A significant number of residents on the reserve thought they were members, based on their historical and family connections to the band and the designation on their status cards. Many said that did not realize they had to reapply to be members.
On January 15 the court was advised that the parties intended to request that order be vacated—the effect of which would be to reinstate the September 9 election and overturn the order for a new election on April 21 and return the elected chief and council to office.
Mr. Hare filed a motion on January 29 to intervene in the motion, citing his status as a former chief and elder in the community and his status as a band member who would be impacted by the decision.
Judge Aylen dismissed Mr. Hare’s application without costs.
Judge Aylen’s decision was based on the late application for status, which did not meet the specific requirements in 109(2). The judge determined that the late filing would have had the effect of skewing the process and attempt to introduce new information.
“In exercising my discretion,” wrote Judge Aylen, “I have carefully considered and weighed the relevant factors. I find that Mr. Hare’s motion is, in effect, an improper attempt to obtain full party status on this application. Mr. Hare could have brought his own application for judicial review when the Appeals Committee passed its motion on December 20 to reinstate the September 9 election results and to move to vary or vacate the reelection order. For whatever reason, he chose not to do so. Mr. Hare cannot effectively do so now through the mechanism of an intervention, as Rule 109 cannot be used to correct a failure to protect one’s own position in a timely manner.
The judge also noted that, under the guise of an intervener with a different perspective, the intervener cannot introduce fresh evidence or make submissions that are in reality fresh evidence. In effect, he would have to rely on the evidence already submitted to make his case. “Mr. Hare seeks to improperly transform the sole remaining step in this application (the motion to vary or vacate) into something entirely different, namely an analysis of the motives underlying the parties’ revised settlement agreement and an inquiry into the membership list, and in order to do so, Mr. Hare will need to file evidence that would not otherwise be filed by the applicant or the Appeals Committee. I find that Mr. Hare’s proposed intervention on this basis would be improper.”
Judge Aylen went on to find that the “interests of justice are not better served by Mr. Hare’s intervention at this late stage of the proceeding and that the court can decide the motion without his intervention.”
Although the Appeals Committee had requested cost be awarded in dealing with responding to this motion, Judge Aylen did not find the circumstances warranted the awarding of costs and so the parties would have to each bear their own costs.
Both Ms. Debassige and the Appeals Committee now are awaiting a decision on their request to vacate the order for a new election on April 21 and to reinstate the results of the September 9 election. In the meantime, the band is moving forward with process of holding an election on April 21. See story on page 1 for the nomination results.
