First Nation’s custom code election saga continues with federal court action

Eddy Tallman is asking the federal court to step in and order Whitefish Lake First Nation 459 (WLFN) to hold a new election for chief.

Papers were filed on March 1 in Edmonton for a judicial review of a custom code election that took place almost a year ago.

Tallman is challenging the Feb. 28 decision made by the nation’s housing director David Thunder that he is not a resident on the reserve located in northern Alberta. It was that same decision that kept Tallman’s name off the ballot for chief in the April 12, 2022 band election.

Tallman’s residency was brought into question at that time as he was residing in a house on the reserve 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 Thunder updated the list in March 2022, he removed Tallman’s name. Thunder 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.

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.

Tallman followed the process established in the WLFN election code and appealed that decision immediately after the election.

“The WLFN election code has the answers. They just need to follow the procedures and the deadlines in the election code. This would have been resolved last April/May of 2022 if those deadlines were followed,” said Tallman’s legal counsel Evan Duffy of Bailey, Wadden & Duffy LLP.

For a First Nation’s code to be effective, he adds, it must be enforced and applied in the manner intended.

Duffy contends that Thunder chose not to “follow basic rules of procedural fairness” when he didn’t go through the required steps to affirm Tallman’s residency before the election and provide him with a residency letter.

The matter was immediately referred to an arbitrator. However, arbitrator Jeremy Taylor with Field Law didn’t deliver his decision until Nov. 14, well after the three-week appeal period set out by the election code.

Taylor stated in his decision that it would be “highly undesirable…for me as a non-Indigenous decision maker to decide the residency issues…(which) properly fall to those more closely connected to the WLFN community and its customs, traditions and practices: namely, the housing director and housing department.”

Taylor laid out conditions which included giving Thunder an opportunity to revisit his decision on Tallman’s residency and issue a letter saying Tallman was a resident on the reserve.

“The conditional suspension of the new election order was done in an effort to have the decision made by the First Nation,” states the March 1 statement to the federal court.

Despite Taylor’s ruling that the process used by Thunder to assess Tallman’s residency, and therefore his eligibility as candidate for chief, was flawed for multiple reasons, Thunder did not change his residency ruling.

“What’s most difficult is that the issue has been the same all along and the answer is just so straightforward – (Tallman) was accepted to be on the residency list. The residency list is required to be maintained under the election code and it verifies who is resident,” said Duffy.

Now Tallman is requesting an expedited judicial review as nearly one-quarter of the four-year term of chief has been completed.

Duffy says even though a hearing must take place, he is hopeful for a date within the next three months. However, judicial reviews typically take six-to-12 months to be heard.

“I’m hoping that the Court will recognize the history of delays and missed deadlines and understand that this situation needs to be resolved without any further delay,” said Duffy.

Tallman’s appeal of the election was one of three appeals filed April 19, 2022, and on which Taylor ruled.

Band members Nicole Auger and Erica Jagodzinsky registered appeals on how the election was carried out. Both women laid out how the custom election code was violated before, during and after the election was held.

The decision on Auger’s and Jagodzinsky’s appeal was also issued well after the timelines set out in the election code.

In his October 2022 decision, Taylor ruled that although the mistakes in the management of WLFN’s election were numerous, there was no “material affect” on the outcome of the vote and he did not order a new election for council.

Prior to that ruling, Taylor emailed the three appellants and apologized for the length of time his decisions were taking. He said, in part, “I have simply not been able to find the amount of dedicated time for careful thought and analysis these issues deserve.”

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