Band members upset and heading to court after election postponement after postponement

The last two-year term served by chief and council for the Acho Dene Koe First Nation in the Northwest Territories was when Floyd Bertrand was last chief.

Bertrand was first elected in 2002, but he said infighting among councillors forced him to hold another election. He returned as chief in 2003 and served his full two-year term until 2005.

Now Bertrand and other band members are taking legal action to return to that two-year term practise.

“Band members are upset and frustrated because they say they only want an election. That’s what we’ve been asking for,” said Bertrand, whose name stands on an application filed in federal court Oct. 22 naming Chief Gene Hope and the six serving councillors, as well as the federal government.

Bertrand says membership was forced to take legal action when, despite petitions and band member meetings calling for an election, chief and council made the decision in September to postpone an election for the third time. Members were expecting to vote on Nov. 9. Now members are supposed to be marking their ballots sometime in May 2021.

According to the Indian Act, bands that do not have custom election codes are supposed to hold elections every two years.

That means, said Bertrand, this present chief and council, who came into office in 2017, were to stand for re-election in May 2019.

However, that scheduled election date was pushed forward to June 2020, with chief and council basing the decision on the recent past precedent of chiefs and councils serving three-year terms, as well as on Acho Dene Koe Nation’s alleged custom election code.

Indigenous Services Canada’s record of the existence of such a custom election code is unclear.

Last year, Bertrand’s wife Patricia made a request under the Freedom of Information and Privacy Act for a signed copy of the Nation’s election code. However, a response from the Access to Information and Privacy Directorate indicated that no records of the code were found.

The letter further states, “This is due to the fact that the Acho Dene Koe First Nation is under a custom election, as such we do not hold this code.”

As far as Floyd Bertrand is concerned, no custom code could be found because no custom code exists.

That position is backed up by Harry Deneron, who served as chief from 2005 to 2008. He signed an affidavit in 2019 confirming the custom election code was neither voted on by eligible band members nor adopted by a band council resolution. It was Deneron as chief who began the work toward the custom election code in 2007.

Despite the lack of a custom election code, Deneron and his council served three years as has every successive chief and council since then.

In June, chief and council further postponed the Acho Dene Koe First Nation election to November. It cited coronavirus pandemic measures and regulations put in place by Indigenous Services Canada (ISC) in April in the “First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases).” Those measures allow a band to delay the election for up to six months, although that term may be extended once.

Chief and council have “overstayed their term,” said Bertrand, and have “laughed off and just shrugged off” concerns voiced and actions taken by membership.

In response, 86 members signed another petition formally calling for an election, while informally backing Bertrand to undertake legal action on their behalf. The nation has a registered population of 648, of whom 116 live off-reserve.

“We’re hoping that the justice system will listen to the band members here, listen to their voices stating that we want an election for chief and council,” said Bertrand.

Orlagh O’Kelly of Field Law is Bertrand’s legal counsel.

This is the second challenge to a postponed election citing COVID-19 regulations that O’Kelly has been involved in.

Late last year she represented members of the Mikisew Cree First Nation in Alberta. They were eventually successful in forcing the Nation’s sitting chief and council to hold an election. At that time, O’Kelly argued that federal regulations allowing band elections to be temporarily postponed due to COVID-19 measures did not pertain to elections held under custom election code.

However, it is not quite as straight forward with Acho Dene Koe First Nation, which may or may not have a custom election code.

“So it is a very unusual situation where there appears to have been a piecemeal process that’s gone forward over the past four elections, and in terms of (filing) a legal document you have to meet all possible scenarios. So even if it seems like we are taking the position that there may be a custom code that’s kind of the alternative argument per se. The position of my client and those he’s spoken to in the community is that their election should still be under the Indian Act,” said O’Kelly.

Now O’Kelly is arguing that ISC does not have the jurisdiction to delay the election by regulation, nor do they have the ability to delegate the decision-making authority to another decision maker.

“They’ve delegated that authority to the band council, who are, by their very position, in a conflict of interest to enforce that discretion,” she said.

Bertrand’s legal action also includes a Sect. 15 Charter of Rights and Freedoms argument, which O’Kelly says would be the “last thing that the court would look at.” The charter argument states that the federal Prevention of Diseases regulation had an adverse impact on Indigenous people as it removes their right to vote.

O’Kelly says that it takes at least nine months for matters to be heard in federal court. They will be pushing for an expedited process, though, and asking for an interim injunction which would require chief and council to call an election immediately.

Bertrand is still hopeful that the matter can be resolved out of court, which would mean holding an election.

“It shouldn’t have really come to this point,” he said, adding that serving the membership is a privilege and not a right.

Bertrand says he has been asked if he will run for chief again.

“It’s something I’m going to have to look at and decide if I get approached lots (by band members). I’m not sure. I’m just taking it one step at a time. I just want to make sure our voices are heard and an election is called,” he said.

Acho Dene Koe First Nation Chief Gene Hope did not respond to a request from Windspeaker.com for an interview.

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.