First Nation election indefinitely postponed, decision challenged in court

The Mikisew Cree First Nation band council is being challenged in federal court over its decision to indefinitely suspend its election, citing health concerns related to COVID-19.

According to the Mikisew election code, the community must hold an election every three years on Treaty Day, June 20. An election officer must be appointed no less than 40 days before the election, court documents say. 

On April 22, Chief Archie Waquan and councillors announced on Facebook the election would be postponed for three months, according to court documents.

The chief and councillors, whose terms were to end on June 21, said they will reassess the situation in September. 

Mikisew members David Tuccaro and Roy Vermilion challenged that decision on May 12.

Typically, the First Nation is governed by a chief and six councillors. But that hasn't been the case since December 2018, when three councillors were suspended. 

Orlagh O'Kelly, counsel for Tuccaro and Vermilion, said the case is about fighting for members' rights to vote. 

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"People can get haircuts, they can go swimming in swimming pools, but they can't go vote? It just doesn't add up," said O'Kelly.   

The court document said the chief and council "exceeded their authority in cancelling the election" and "there is no explanation for the rational connection between extending their own terms in office as a 'necessary' measure to prevent, mitigate or control the spread of disease on the reserve." 

Tuccaro and Vermilion want the decision to postpone the election set aside, and the chief and councillors to be considered no longer in office after June 21.

Jeffrey Rath, counsel for the Mikisew Cree First Nation band council, said leaders made the decision to postpone the election under "remarkable and historical circumstances." 

He said an election poses multiple risks that could affect the health and safety of Fort Chipewyan residents. 

For example, anyone looking to run would have to campaign and get signatures from 10 residents for their nomination papers, increasing contact between members that could potentially spread COVID-19. 

There are currently no cases of COVID-19 in Fort Chipewyan.  

"By the time this thing either goes to court or by the time the court renders a decision, the election will already likely be scheduled and held," said Rath. He said the chief and council think the legal action is a waste of money. 

O'Kelly said there are ways to safely move forward with the election.

If the community can't do mail-in ballots, she said, there could be a drive-through voting station, online voting and in-person voting with safety precautions such as masks and hand sanitizer. 

Members should have been given advanced warning about the cancellation and an opportunity to comment, O'Kelly said. 

"Just to figure out and gauge the appetite their members have for, first of all having an election, and second of all having an election with modified procedures."

The First Nation has a registered population of 2,618 people, with 147 of them living on reserve, according to the federal government.

Rath said people who are immuno-compromised or over age 60 are being advised to avoid large groups by the provincial government.

Without modifying the code with a referendum, he said, and election would disenfranchise "everybody in the community over the age of 50 and all of the elders from participating in the election."

Rath said the chief and council are not prepared to do that. 

The First Nation will file a responding affidavit by July 3, as set out by the court, he said. A court date will be set for the end of July, Rath said.