The decision to postpone the Mosquito-Grizzly Bear’s Head-Lean Man band election to November is heading to court.
A notice of application for judicial review has been filed on behalf of Philicia Clay and the Band Members Alliance and Advocacy Association of Canada, seeking to prevent the postponement of the Mosquito band election originally scheduled for April 26, 2021.
The court action stems from the decision made earlier this year by Chief Tanya Aguilar-Antiman and the band council to postpone this spring’s election due to the ongoing COVID-19 pandemic situation. A Band Council Resolution was passed Feb. 4 to postpone the election from its April 26 date and keep the current band council in place until November, in accordance with federal First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases). Those federal regulations came into effect April 7, 2020.
The Mosquito reserve posted a notice on their Facebook page on Feb. 5 notifying the public of the decision, stating as follows:
“Covid 19 and Covid Variant is a global pandemic impacting the world and Nation to Nation~ Safety and well-being of our members is our #1 priority; therefore, elections have been postponed to a later date. All procedures have been followed accordingly and business will continue as usual. Stay Safe. Social Distance. Wear your mask.”
Also posted was correspondence from Shalyn Quirion, governance officer for Indigenous Services Canada. In her correspondence, Quirion confirmed the Band Council Resolution dated Feb. 4 had been submitted and also confirmed that Indigenous Services Canada had updated their records to reflect that the council elected on May 6, 2019 will now serve until Nov. 5, 2021.
While on the surface it appears the band acted by the book with Indigenous Services Canada fully on board, the applicants in this case are challenging both the band’s decision as well as the federal regulations.
According to their court filing provided to the News-Optimist, they are seeking judicial review of the decision of Mosquito’s band council to extend their term to Nov. 5.
The applicants are seeking an order quashing and setting aside the decision to extend the term, and are also seeking that the offices of the current Chief and Council be vacated effective May 5. The applicants are also seeking an order compelling Mosquito First Nation to declare an election for the office of all six counsellors on May 5 or as soon as possible thereafter, and that the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases), or at least section 2 of those regulations, have no force or effect.
A host of reasons are being cited by the applicants for setting aside the decision.
They include: that the decision was made without authority or jurisdiction; was made in a procedurally unfair manner with the applicant not given an opportunity to participate in a decision; was made in conflict of interest; is unreasonable and lacks justification transparency and intelligibly; fails to explain why it was necessary to postpone the election; it was made in bad faith and for an improper purpose; if was not approved at a duly convened meeting; fails to comply with the Indian Act or other applicable regulations; that the GAC regulations are ultra vires and could not be relied upon; that it is inconsistent with Charter values; and it was otherwise unlawful, procedurally unfair or unreasonable.
The court documents state the applicant only learned of the decision after it was made and that the band council did not attempt to consult or seek feedback from members beforehand; it was also stated the applicant had still not been provided with a copy of the band council resolution.
The documents state that Philicia Clay is a band member of the reserve and a potential Council candidate. They state her application is being brought with the support of other band members concerned about the governance of the first nation and the “lack of consultation in respect of the Decision to postpone the 2021 election.”
The Band Members Alliance and Advocacy Association of Canada is claiming public interest standing in the proceedings, stating they “support the Applicant’s desire to ensure the democratic rights of the MGBHLM members are respected.”
The applicants are being represented by Evan Duffy of the Edmonton law firm Parlee McLaws LLP.
What is next is for Mosquito to respond to the application and for arguments in the matter to be heard in court. The applicants are requesting the matter be expedited to be heard prior to May 5; alternatively, they could make a motion for injunctive relief to try and prevent a postponement of the vote.
