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Summary
Local Journalism Initiative Reporter
Windspeaker.com
Two councillors who were elected for life to the Kapawe’no First Nation band council are fighting in court to retain their victories after the July 11 election results were overturned by an appeal committee.
And in an interesting twist, it isn't the northern Alberta Cree nation that is standing behind the decision made by the three Elder-member committee. It’s the three people who lost their bids to become the new councillors and forced the appeal committee hearing.
“So you have three people, three ordinary community members, who are stuck defending this decision by the three community Elders who made it,” said David Schulze, legal counsel for Lydia Cunningham, Christopher Halcrow and Priscilla Sutherland.
“This is the decision of the appeal committee that (Chief) Syd Halcrow named, that was funded and appointed by the First Nation and the First Nation’s not supporting its decision. The First Nation’s actually supporting the people who are challenging its own appeal committee's decision,” said Schulze.
Electronic ballots gave both Pamela Halcrow and Debra Chalifoux-Courturier their victories.
Lydia Cunningham and Christopher Halcrow, who lost in the election, and Sutherland, who was disqualified from running because of residency requirements, all appealed the election results separately.
Chief Halcrow appointed three Elders as members of the appeal committee. Four issues were put to the committee to consider: the custom election code did not allow online voting; the nomination date was not held at least 14 days prior to the election; two names were removed from the list of candidates without the electoral officer providing reasons; and the membership list was not made available by the electoral officer prior to the nominations.
On July 29, the appeal committee unanimously granted the appeals. Chief Halcrow announced a “further election” was being scheduled.
In August, Pamela Halcrow and Chalifoux-Courturier filed a judicial review of the appeals decision.
Both claimed they were told they could not attend the appeal hearing and no detailed explanation was provided by the committee for its decision.
The pair asked the court to make an initial finding for an injunction allowing them to retain their councillor positions until the court made its final decision on the matter. On Nov. 20, Justice Paul Favel denied that request. The matter in full will be heard Jan. 14, 2021.
As far as Schulze is concerned, grounds for the appeal and the subsequent judicial review fall on the shoulders of electoral officials with OneFeather, which provides election and referendum services to First Nations.
“If there were any problems with the appeal committee's decision the ones that are being alleged are actually problems that were created by the OneFeather electoral people that (Chief) Syd Halcrow hired,” said Schulze.
Allegations about the election and subsequent appeal committee decision have yet to be proven in court.
In an affidavit, Anita Cunningham, a member of the appeal committee, alleges that during some points of the appeal hearing the electoral officer “became visibly upset” and her “tone of voice became unpleasant.”
Cunningham also wrote that the appeal committee “followed the Code system” in making its decision. She also noted the committee never received a copy of its decision, which Cunningham said the electoral officer wrote up. She said the decision was made official, without any reasons included in it about the appeal result.
After learning that a judicial review had been filed in the court about the appeal committee’s decision, Anita Cunningham said she phoned the electoral officer and Evan Duffy, legal counsel for Kapawe’no First Nation, not hearing back from either, reads her affidavit.
Neither Lawrence Lewis, CEO and founder of OneFeather, nor Duffy agreed to interviews with Windspeaker.com, although both supplied email statements.
Lewis, in response to concerns wrote, “We do not comment on any active election related activities, nor the unsubstantiated claims made in appeals.”
Duffy wrote, in part, “Due to the unprecedented global health pandemic caused by coronavirus, the Nation took a range of precautions in order to permit a safe election. Some of these modifications were the subject of election appeals, which resulted in the election being overturned…. Throughout this process, the aim of the Kapawe’no First Nation has been to ensure that our unique customary laws are respected and that election proceedings are decided in a manner that is fair to all parties.”
Cunningham, Halcrow and Sutherland started a GoFundMe page on Oct. 30 with the aim of raising $75,000 to cover legal costs for the federal judicial review.
Schulze, who was directed by his clients to speak on their behalf, would not confirm if they had paid him his retainer fee, but did say “a case like this is beyond the financial capacity of most ordinary people.”
The GoFundMe page is still operational and, as of today, had only raised $554.
Since February 2020, Sydney Halcrow has served alone on Kapawe’no band council. He moved from band councillor to chief after his appointment by the now late chief Frank Halcrow, who passed away in January. Late in October 2019, the other band councillor, Peter Chalifoux, resigned. Sydney Halcrow’s appointment as chief came under scrutiny in January, however, he remained in the position.
According to Kapawe’no First Nation’s custom election code and regulation, one chief and two councillors comprise the band council. The chief is appointed by the predecessor and the councillors are elected. The chief is elected only if the reigning chief dies without appointing a successor. Chief and councillors serve until they resign or pass away.