Lingering Effects Of COVID-19 On First Nations' Election Cycles

• Published date: 26 July 2021
• Subject Matter: Government, Public Sector, Coronavirus (COVID-19), Constitutional & Administrative Law, Indigenous Peoples, Government Measures
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian ERA Perspectives, Kyle McMillan and James Christie-Brooks

Introduction

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") ¹, 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.

Background

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") ², 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.

Analysis

This case centres around two issues:

1. Did the customary law of Acho Dene Koe First Nation allow the Band Council to extend their terms and postpone council elections?
2. 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) ³ 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

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