Election custom code ignored over and over again, say Whitefish Lake First Nation members

Members of Whitefish Lake First Nation 459 are waiting for an arbitrator's decision that could force a new election for chief and council. But that decision is months and months behind the schedule laid out in last year's amended customary election regulations.

And, says Nicole Auger, one of three people who filed an appeal following the April 12 election, those successful in that vote have been sworn in and the community is divided. 

“There are those who don't want a new election and those who do. There are those who feel…like their voice was not heard or does not matter. The feeling here is like we are in this big waiting room, waiting and waiting for an outcome,” said Auger.

According to the northern Alberta First Nation’s custom code, the arbitrator should have had his decision handed down by mid-May.

The code sets out a timeline for the appeal process. It states that an appeal must be made within five working days of the election or the election results being announced. Within three days of the appeal being filed, the arbitrator must determine if the evidence presented in the appeals proves election results may have been affected. The election appeal hearing must be held within 21 days of the five-day appeal period. The arbitrator is to make a decision within five working days of the appeal hearing.

Appeals were filed April 19 by Auger, Erica Jagodzinsky and Eddy Tallman.

And that’s where compliance to the appeal process set out in the custom code ended, says Jagodzinsky.

The appeal hearing in Whitefish Lake First Nation did not take place until more than two months after the election, June 13 and June 14.

In an email obtained by Windspeaker.com, arbitrator Jeremy Taylor, with Field Law, indicated he would “make every effort to get the decisions out” by Sept. 20 or the latest Sept. 26.

“…I do apologize for the fact that these decisions are not out yet, I had certainly anticipated getting them out much sooner. I recognize the parties will find that timing unsatisfactory, but I have simply not been able to find the amount of dedicated time for careful thought and analysis these issues deserve,” wrote Taylor in his Sept. 12 email addressed to Auger and Jagodzinsky, as well as to legal counsel for the band and legal counsel for Tallman.

“I feel like our election bylaw has no weight. The bylaw we voted to amend last year does not seem to matter,” said Auger.

Both Auger and Jagodzinsky registered appeals on how the election was carried out by OneFeather, who had been contracted by the band in that capacity. In separate appeals, which were merged into one for a joint decision, both women laid out how the custom election code was allegedly violated before, during and after the election was held.

In an affidavit sworn by OneFeather electoral officer Erik English on May 5, he outlines how the community hall was delayed in opening; that Internet connectivity, which OneFeather’s electronic voting platform depends on, was an issue; and how verifying voter eligibility became a lengthy process.

“At the close of polls at 9 p.m. there was still a considerable number of voters in line to vote. As the (election) code allows the electoral officer to keep the polls open until all voters present at the polls have had the opportunity to vote, I made arrangements to do so,” English wrote in his affidavit.

He closed the polls at approximately midnight and it took until 6 a.m. April 13 to conclude the vote count.

“Following announcing the results, I secured all relevant polling materials, including the ballots, by placing them in my suitcase,” wrote English.

With only three votes separating incumbent councillor James Nahachick from winning candidate Darren Auger, Nahachick requested a recount. That recount, held April 15, ended with the same results.

However, English’s handling of the ballots after the election—allegedly not packaging them the way the custom election code sets out nor returning them to the ballot box and sealing the ballot box—was among the issues raised by both Auger and Jagodzinsky.

According to a transcript acquired by Windspeaker.com of a Zoom meeting conversation between Auger, Nahachick and English on April 14, it reads English separated the ballots in his vehicle, according to the custom election code. However, Auger said there was nobody present to witness that action to have been taken.

Auger says the recount for Nahachick was not fair because of the discrepancies in how the ballots were handled.

Auger and Jagodzinsky also state that the long line-up for voting resulted in some in the line turning away and not casting votes. Voting for chief and council is only allowed in person and at the polling station on the reserve.

The women claim the discrepancies breached the First Nation’s custom election code and the long lines at the single polling station resulted in not everyone getting a voice. They are calling for a new election for both chief and council.

Tallman’s appeal centred on the exclusion of his name on the ballot for chief and he is asking for a new election for chief with his name on the ballot.

The custom election code states, “In the event of the Election Appeal Arbitrator directs that a new election shall be held for all positions, then the previous council shall be re-instated until the next Election Day.”

But while band members continue to wait for the arbitrator’s decision, business is being carried out on the First Nation by a council “whose positions are not secured,” said Jagodzinsky.

“It’s like the appeal process is not even important and it has to be because it’s part of the bylaw and it’s the right of a member to be able to put in an appeal with a reasoning,” she said.

Auger goes a step further.

“It is like we are not important enough. But we are important. We may be a small community but we matter. Our voices matter. And every member on or off reserve should have a right to a fair election, not just those who have the privilege to stay and wait in line for five to six hours,” she said.

Auger added she would like to see the election custom code amended to make voting more accessible for band members who live off reserve, which could include mail-in ballots or on-line voting.

Windspeaker.com contacted Taylor, who said, “I can’t speak to the media whatsoever.”

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