Over the past sixteen months, the Government of Canada has taken significant steps to limit the spread of COVID-19. These steps have had wide-ranging effects, including on First Nations’ governance. The recent Federal Court decision of Bertrand v. Acho Dene Koe First Nation (“Bertrand”) , examines some of these issues, including the legitimacy of regulations enacted under the Indian Act that purport to allow custom band elections to be postponed.
Acho Dene Koe First Nation is an Indigenous community located in the hamlet of Fort Liard in the Northwest Territories. In the Spring of 2020, in response to the COVID-19 pandemic, Acho Dene Koe’s Band Council adopted a resolution to extend the Council’s term and postpone the spring band election until the fall (the “Resolution”). In September of 2020, the Council renewed the Resolution for an additional six months, bringing the total term extension to approximately one year. The Resolution was authorized by section 4 of the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) (the “Regulations”) , enacted by the Federal Government empowering First Nation governments to delay elections in order to limit public gatherings and prevent the spread of COVID-19.
The applicant, a member and former chief of the Acho Dene Koe First Nation, submitted an application for judicial review challenging the Resolution, and arguing that section 4 of the Regulations was enacted outside the authority of the Indian Act and is therefore invalid.
This case centres around two issues:
- Did the customary law of Acho Dene Koe First Nation allow the Band Council to extend their terms and postpone council elections?
- Was the provision in the Regulations authorizing the Band Council’s resolution valid?
The Acho Dene Koe Council argued that a scheduled upcoming election as well as the anticipated repealing of the Regulations rendered the disputed issues moot. The Court applied the framework outlined in Borrowski v Canada (Attorney General)  to determine whether to dismiss the case on the ground of mootness. While the Court acknowledged the factual timeline largely voided the disputed issues, Justice Grammond exercised his discretion to hear the matter on its merits. The Court cited the desire to provide clarification on the effect of the COVID-19 pandemic on First Nations’ governance as a reason to provide a decision, despite certain issues being moot.
Acho Dene Koe Law
Acho Dene Koe conducts their elections pursuant to their customary law. In order to determine whether a certain election process is customary law, Courts have considered “practices for the choice of a council which are generally acceptable to members of the band, upon which there is a broad consensus” (para 37, citing Bigstone v Big Eagle  at 34). As such, customary law can only be established by the community, not unilaterally by a band council.
The applicant argued that the customary period for an election was two years, however the Court found that Acho Dene Koe’s practice since 2008 has been to hold elections every three years, which attracted the weight of custom.
The next issue was whether Acho Dene Koe’s law gave its Council the right to postpone the election from May 2020 to April 2021(thereby extending their own terms of office from 3 years to almost 4 years). The Court found there was insufficient evidence to establish the Council’s customary authority to do so. The Council argued that a previous one-time extension of the term period in 2007, along with several past unique alterations of Council elections, granted them the customary power to extend terms of office in exigent circumstances. The Court rejected this argument, finding that the Council failed to demonstrate that this practice is “firmly established, generalized and followed consistently and conscientiously by a majority of the community”, and noting that “very cogent evidence would be required to establish a custom that would free the council from its obligation to face its constituents at fixed intervals” (para 63).
Validity of the Regulations
With the question of customary law answered, the Court then examined the validity of the Federal regulations granting the authority to postpone the 2020 election (section 4 of the Regulations):
4 (1) The council of a First Nation whose chief and councillors are chosen according to the custom of the First Nation may extend the term of office of the chief and councillors if it is necessary to prevent, mitigate or control the spread of diseases on its reserve, even if the custom does not provide for such a situation.
The Attorney General stated that the Regulations themselves were enacted pursuant to 73(1)(f) of the Indian Act:
73 (1) The Governor in Council may make regulations […] (f) to prevent, mitigate and control the spread of diseases on reserves, whether or not the diseases are infectious or communicable;
The rule of law requires regulations be grounded in an appropriate statutory authority. This requires all regulations to be consistent with the scope of the statutory mandate, which the Court analyzed at the outset. While the Court applied a broad approach in examining the intent behind the Regulations, it also highlighted that this purposive analysis must be balanced against an examination of the means intended to be used to reach a particular end. The Court found that:
- the Indian Act only recognizes Indigenous law with respect to leadership selection, it does not purport to empower First Nations with the ability to make such laws, so absent any clear legislative wording to the contrary, the Act cannot be assumed to grant regulatory powers outside its purview;
- section 76 of the Indian Act, specifically does give the Governor in Council power to make regulations for other band elections, namely those governed by the Indian Act, suggesting that regulating elections is not within the purview of sections 73(1) or 73(3) (the latter being to “make orders and regulations to carry out the purposes and provisions of this Act”); thus, “[i]f regulating elections held pursuant to the Indian Act is not within the scope of section 73 then, a fortiori, elections held pursuant to Indigenous law must also be excluded” (para 88); and
- issues of governance and issues of land management are clearly distinct topics within the Indian Act, and many First Nations, including Acho Dene Koe, do not have reserves, but do have elections; thus, section 73(1) of the Act, which applies to reserves, does not apply to governance issues, including elections.
Although the Court acknowledged that the Regulations were grounded in serious policy considerations related to the fight against COVID-19, those policy considerations were not for the Court to consider in its analysis. Justice Grammond made this position clear:
“In a nutshell, the government is asking me to tolerate an invalid exercise of power because it was done for a good reason. This is simply incompatible with the rule of law, which requires that every exercise of state power find its source in a legal rule…Going down that road would involve courts in giving their blessing, after the fact, to unlawful government action based on its desirability from a policy perspective. There is nothing further removed from the judicial role” (at para 96).
The Court found that section 4 of the Regulations was enacted beyond the scope of the Federal Government’s authority, and was therefore invalid (though the declaration of invalidity was suspended for 60 days).
Costs were awarded separately, and the applicant was entitled to elevated costs given his undivided success at trial, and the public interest value of the litigation . Given the relative importance of the challenge to the Regulations to other First Nations, the Attorney General was ordered to pay twice the costs of Acho Dene Koe.
The Bertrand case is important for finding that section 4 of the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases), purporting to allow First Nations’ elections to be postponed, are invalid. The Government of Canada has announced that it will appeal the decision . An application to stay the decision in Bertrand by the Attorney General of Canada was dismissed , as the applicant did not meet the test for a stay as set out in RJR-MacDonald Inc. v. Canada (Attorney General) . Although a serious issue was raised, the prospect of irreparable harm was not proven, nor was the balance of convenience shown to be in the Attorney General’s favour. Thus, the spotlight will be bright on the appellate decision, which will provide important clarity on the law surrounding First Nations leadership selection during an emergent crisis.
Regardless of the outcome of the appeal, this case clarifies the requirements of customary Indigenous law on the issue of delaying band council elections, even in emergent situations. In a subsequent case, Standingready v. Ocean Man First Nation  (also decided by Justice Grammond), reliance on the Regulations to delay an election was saved by the 60 day suspension period, though the principle that customary law is established by the broad consensus of the community was further underscored.
Bertrand is also notable for its consideration of moot issues. For obvious reasons, Courts are reluctant to hear such issues, and indeed, the Federal Court recently declined to consider a First Nation election issue that it considered moot in Narte v. Gladstone . The fact that the Court utilized its discretion in Bertrand to hear issues that it considered moot highlights the broader importance of the governance and pandemic response issues that were raised.