Federal Court Affirms Removal Of First Nations Chief And Councillors Appointed For Life

• Published date: 11 May 2022
• Subject Matter: Environment, Government, Public Sector, Environmental Law, Indigenous Peoples
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian ERA Perspectives, Kyle McMillan and Bryn Gray

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...