After seven-month wait for election appeal ruling, arbitrator lobs residency issue back to nation’s housing director

Tuesday, November 22nd, 2022 2:45pm



“It puts us in this position of having to go back to the housing director who already…(showed) his decision was so flawed, we have limited confidence he’s going to give us a fair process, but we’re going to try.” — Evan Duffy, legal counsel for Eddy Tallman
By Shari Narine
Local Journalism Initiative Reporter

As far as Eddy Tallman is concerned, his appeal to run as chief for the Whitefish Lake First Nation, Alta. has been upheld and there will be a new election and he will be a candidate.

“Everything else to me is irrelevant,” Tallman said of the 23-page decision delivered by arbitrator Jeremy Taylor on Nov.14.

“I only look basically at what he said. He upheld my appeal and then it says in the very next sentence there…he’s calling an election for chief only. And if you stop there, he’s basically made a decision. I’ve won my appeal and he’s calling for an election for chief,” said Tallman.

However, Taylor’s ruling is neither that simple nor straightforward as he lays out conditions that must be met and which may or may not lead to a new election.

Tallman’s appeal was made following the April 12 election when his candidacy for chief was rejected.

Tallman’s residency was brought into question as he was residing in a house on the Nation that was listed in his daughter’s name on the residency list. The house had previously been listed in his name.

In March 2021, the membership administrator re-added Tallman’s name to the residency list. However, when the housing director updated the list in March 2022 he removed Tallman’s name, although he did not visit the residence to check on Tallman’s claims that he had his possessions in the home and did in fact reside there.

The housing director also did not communicate his decision to remove Tallman’s name from the residency list. Without his name on the residency list, Tallman could not be issued a residency letter. Candidates for chief and council must reside on the Nation.

Evan Duffy, legal counsel for Tallman, says Taylor ruled that the process used by the Nation’s housing director to assess Tallman’s residency, and therefore his eligibility as candidate for chief, were flawed for multiple reasons.

Despite Taylor’s conclusion, he did not rule that Tallman’s candidacy be upheld.

Instead, Taylor wrote, “…the authorities…show me that it would be undesirable, and may be improper, for me to make de novo (anew) decisions on Mr. Tallman’s residency.”

So Taylor returned that decision to the same housing director that took Tallman off the residency list, because he is the decision maker noted in the Whitefish Lake election custom code.

“It puts us in this position of having to go back to the housing director who already…(showed) his decision was so flawed, we have limited confidence he’s going to give us a fair process, but we’re going to try,” said Duffy, who adds he’s confident in Tallman’s residence status.

“(We’re) going back … and saying, ‘Following proper procedure and applying the law, would you issue this residency letter confirming his residence?’ If that’s the case, then the new election proceeds.”

Tallman says his name is now on the residency list. However, that does not impact the April election. He also contends that Whitefish Lake First Nation has been his “primary” home since February 2021.

However, a new election may be suspended if the housing director does not provide a residency letter stating Tallman was on the list as pertains to the April election; if he decides to remain with his original decision; or if he takes no action within the 20 days allotted by Taylor.

If any of those situations occur, said Duffy, then court action may be the only recourse.

“What I would probably do…I would write to the parties and say… ‘We think it’s wrong again. Are you going to give us a remedy, Mr. Taylor, or do we have to go to federal court?’ That’s probably how I would proceed. My reading of this judge, he’s not making the residency determination,” he said.

While Duffy asserts that Taylor’s decision did move the appeal further along in that he ruled the housing director’s process was flawed, Duffy does admit some community members are frustrated with the seven-month wait for what they see as Taylor’s non-decision.

“That certainly is the perception among some of the community members, that’s for sure,” said Duffy.

Whitefish Lake First Nation’s custom code sets out a timeframe for the entire appeal process.

The April 12 election resulted in three appeals. Taylor delivered his decision on two of the appeals, which he combined as one, on Oct 12. He denied those appeals.

According to the election code timelines, all decisions on appeals should have been rendered by mid-May. The close timeframe, says Duffy, is an indication that membership wants quick decisions.

When that timeline was breached, Duffy says, Tallman had the option to go to federal court for an order directing the arbitrator to make a decision.

“I think we would have had a good basis to do that and we would have succeeded but…how long the federal court process could take, would we have been any further ahead? I think there’s a lot of good reasons for a really quick decision. I also think that there…was a lot of submissions and evidence here (for Taylor to consider) and a lot of factors like that that went into it,” said Duffy.

Tallman is not as understanding.

“To me this was simple. It should have taken us less than a month for him to decide. He dragged it out for some reason. I don’t know why he dragged it out. He had the authority to call it six months ago,” said Tallman.

Duffy admitted, “If you told me in April, we’d be getting a decision in November, I wouldn’t have believed you.”

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