Fort Liard First Nation member seeks judicial review over election delays

A member of Acho Dene Koe First Nation near Fort Liard, N.W.T., is seeking a judicial review of an election postponed until 2021. 

The member is asking the Federal Court of Canada to force the First Nation to call an immediate election, according to documents obtained by CBC News. That would quash chief and council's latest decision to postpone the Nov. 9 election to May 21, 2021 and, it would force all of the leaders to vacate their positions.  

"The decision-makers were biased, acted in a conflict of interest and breached their fiduciary duties in voting to extend their own terms of office," the document reads. 

In April, the federal government passed new regulations allowing First Nations governments to postpone their elections for up to 12 months during the COVID-19 pandemic. Shortly after, Acho Dene Koe's chief and council pushed the originally planned June 8 election to Nov. 9 using these new regulations.

Then, chief and council explained in a notice dated Sept. 20 that the election was being postponed for a second time to May 21, 2021 due to the "serious risk" of spreading COVID-19 among the community.

Chief Gene Hope of the Acho Dene Koe First Nation refused a request for comment. 

Election delayed twice during COVID-19

Floyd Bertrand, former chief of Acho Dene Koe First Nation, is the applicant on the legal case. He said the First Nation's record of postponing elections started before the pandemic. 

Under the Indian Act, chief and council can serve up to two-year terms.

Hope and the First Nation's six councillors were all elected in 2017, and their term would have ended in 2019. 

We don't want it to be a document that they can just shrug off.- Floyd Bertrand, former chief of Acho Dene Koe First Natioin 

Bertrand said members filled out a first petition in 2019 to force chief and council to revert to their original election date. When it was presented to the council in a public meeting, Bertrand said they were laughed out of the room. 

"People just want to be heard, and they want to decide what's the future for [Acho Dene Koe First Nation] as a whole," Bertrand said.

"That's what we want, that's what membership wants." 

Bertrand said filing the latest petition to the Federal Court, along with supporting documents showing the 2019 election delay, means the case may have more success in bringing this election to life. 

"We don't want it to be a document that they can just shrug off," Bertrand said. 

Proceedings could determine which election rules to follow 

Bertrand said he's also hoping the case will clarify whether Acho Dene Koe First Nation's elections are governed by the Indian Act, or by a set of the nation's own customs. 

First Nations in Canada have three sets of guidelines they can use to regulate their elections: the guidelines set out by the Indian Act, the First Nations Elections Act or the creation of a custom elections code, which reflects the traditional governance style of that community.

A majority of band members need to vote in favour of a custom election code for it to pass. Then, the chief and council need to send a band council resolution and a copy of the new election code to the federal government, who makes the final decision to remove any First Nation's election process from the Indian Act. 

Acho Dene Koe First Nation drafted a custom election code in 2007, Bertrand said, but never let members vote on it, throwing their election process into question. 

The member asked for an expedited hearing, with the hope of hearing the case before the end of the year, Bertrand said.