The Federal Court recently affirmed that members of a northern Ontario First Nation had the power to remove their Chief and Headmen that had been appointed for life. In Ojibway Nation of Saugeen v. Derose (2022 FC 531), the Court concluded that a holistic reading of the First Nation’s governance convention reveals that supreme political authority resides with the First Nation’s members and that the provisions allowing for a leadership review every 21 years must be interpreted as including the ability to remove the Chief and Headmen. The Court affirmed the newly selected Chief and Headmen as the lawful governing leadership of the community. They intend to replace the existing governance convention with an electoral regime. At their invitation, the Court also issued orders relating to a referendum on a new election code and an election.

The Court’s analysis and approach to interpreting the Indigenous laws of the First Nation is informative and will be valuable to other First Nations’ leadership disputes, particularly for custom bands that do not hold regular elections.

Factual background

The Ojibway Nation of Saugeen (“ONS”), located approximately 400 kilometres northwest of Thunder Bay, was first recognized as an “Indian band” under the Indian Act (the “Act”) [1] in 1985. In 1997, the federal government created a reserve for the ONS and the Chief and Headmen of ONS proclaimed the Ojibway Nation of Saugeen Indian Tribe Custom and Usage Convention (the “Convention”). ONS is a relatively small First Nation, with 100-150 members of voting age (set by the Convention to be 21 years or older), 40 of whom live on the reserve.

ONS’s Council (including its Chief) are chosen according to band custom, which can be developed through repetitive acts in time or through a single act such as the adoption of an electoral code. This is one of the ways in which First Nations’ governance can be determined. There are other First Nations that determine their leadership through the election regimes set out in the Indian Act or the opt-in First Nations Elections Act or through their community’s constitution if they have a self-government agreement.

The Convention establishes ONS’s government as consisting of a Chief and up to four Headmen, appointed by the citizens of ONS. These positions are ostensibly held for life, though a review must be held every 21 years. Although there was some dispute on the validity of the Convention itself, the Court accepted it for the purposes of its analysis, which focused largely on interpreting the Convention.

The leadership dispute

The incumbent government consisted of the original (1997) Chief and two Headmen, one of which is the Chief’s daughter. Many of ONS’s citizens were dissatisfied with the leadership (referenced in this case as the “Conduct Review Proponents”) and began efforts to replace the Chief and Headmen. This culminated in a two-day traditional gathering in June 2019. While the incumbent Chief purported to terminate the gathering after the first day, the gathering continued the following day. Those present adopted resolutions removing the Chief, rejecting the Chief’s succession plan (to appoint his wife to succeed him on death and for his son-in-law to take on a long-term leadership role), and appointing a new Chief (for one year) and four new Headmen. The incumbent Chief and Headmen refused to accept the validity of the resolutions and for the new Chief and Headmen to assume their roles.

Applications to the Federal Court

The Court considered two applications by the competing factions, each seeking declarations that would have the effect of confirming their respective position on the rightful leadership of the community.

The Court effectively reviewed the matter on a correctness standard, noting that “as a practical matter, there cannot be two persons with an equally reasonable claim to be chief; one must be right and the other, wrong.” (para 28).

Analysis

Although the Court found the Convention difficult to interpret and deficient in syntax, clarity and structure, it held that these shortcomings did not prevent a meaningful analysis:

[E]fforts should be made to understand its meaning by applying the recognized methods of legal interpretation, namely, consideration of the text, context and purpose of the provision at issue. In assessing its purpose, one should assume that it expresses a coherent political vision. One should also be attentive to the fact that Indigenous legislation such as the Convention may seek to combine features of the Western political system with Indigenous traditions. Only by paying close attention to these nuances will we respect the agency of the Indigenous community concerned and its self-government. (para 34; references omitted).

The Court considered whether the incumbent Chief and Headmen can be removed under the Convention, and if so, whether the June 21, 2019 resolutions had that effect. The incumbent Chief and Headmen argued that the review procedure in the Convention is only consultative, and that the final decision on subsequent appointments is theirs. The Conduct Review Proponents argued that the right of the citizens to review the Chief and Headmen must also include a power to remove them and appoint others, and that the power to appoint is not limited to the initial appointment.

The Court agreed with the Conduct Review Proponents. Although the Convention does not provide for regular elections, the Court found that the Convention makes clear that “citizens are ONS’s supreme authority” (para 47) and that the Convention “sought to combine the idea that the legitimacy of political institutions derives from the consent of the governed with a method of selecting leaders rooted in Anishinaabe law” (para 46). While there was not extensive evidence on Anishinaabe law, the Court noted the absence of any evidence of Anishinaabe law that citizens are required to forever follow a leader they no longer trust. The Court also found that the incumbent Chief and Headmen’s arguments were at odds with the Court’s longstanding approach to the recognition of Indigenous customs (laws) which requires “broad consensus” of members, noting that it is difficult to see how a broad consensus could be reached by members on “a system that indefinitely disempowers them or disregards their will” (para 49).

The Court also rejected arguments raised by the incumbent Chief and Headmen that the process that led to their removal was procedurally unfair or otherwise unlawful. The Court found that the alleged breaches directly resulted from the refusal by the Chief and Headman to accept that they could be removed by ONS citizens pursuant to the review procedure in the Convention.

The Court ultimately found that the resolutions of June 21, 2019 were lawful decisions made by ONS’s citizens at a traditional gathering, and that they had the effect of removing the incumbent Chief and Headmen and replacing them with the individuals so named. A declaration and writ of quo warranto were issued accordingly. The Court declined to issue a retroactive order quashing the decisions of the Chief and Headmen after June 20, 2019 as there could be decisions affecting third parties who should be heard before any decisions are quashed. Given the stated intention of the Conduct Review Proponents to hold elections with some haste, the Court ordered that ONS call a referendum for an election code by October 31, 2022 with the expectation that an election would be held within a year.

This case illustrates the Court’s approach to effecting the will of First Nations’ citizens in their own governance in a contentious situation. The Court noted that its analysis was affected by the fact that ONS did not hold regular elections that would otherwise ensure accountability, and that for their part, the Conduct Review Proponents were diligent in abiding by the Convention. As with other recent decisions [2], the Court was careful to respect the governance system chosen by the First Nation, while also maintaining the need for accountability and ensuring that rules in traditional governance systems are supported by a broad community consensus.