Date: 20220629  
Docket: T-126-21  
Citation: 2022 FC 969  
Ottawa, Ontario, June 29, 2022  
PRESENT: The Honourable Madam Justice Strickland  
BETWEEN:  
CRAIG MCCALLUM, LAURA BIRD,  
JESSICA IRON as Litigation Guardian for JESSE IRON, LLOYD YEW,  
NYDEN IRONNIGHTTRAVELLER and  
RONIN IRON  
Applicants  
and  
CANOE LAKE CREE FIRST NATION, CHIEF FRANCIS IRON,  
WALTER COULINEUR, BERNICE IRON, LENNY IRON,  
LORNE IRON, WILFRED IRON, AND  
ROBERT OPIKOKEW  
Respondents  
JUDGMENT AND REASONS  
[1]  
The Applicants, by way of judicial review, challenge a decision of Chief and Council of  
Canoe Lake Cree First Nation [CLCFN] to utilize a membership code which precluded the  
Applicants, and many others, from running for office or voting in an election held on December  
16, 2020 [2020 Election]. They also bring an application, pursuant to s 31 of the First Nations  
Page: 2  
Elections Act, SC 2014, c 5 [FNE Act], contesting the election of Chief and Council and seeking  
to have the 2020 Election set aside. Alternatively, they seek a declaration that the subject  
membership code is unconstitutional.  
Background  
[2]  
It is necessary to provide some background information to properly situate the matters  
now before the Court.  
[3]  
In 1985, amendments were made to the Indian Act, RSC 1985, c I-5 which allowed  
Indian bands to control their own membership by adopting their own membership codes. More  
specifically, section 10 provides that:  
10 (1) A band may assume control of its own membership if it  
establishes membership rules for itself in writing in accordance  
with this section and if, after the band has given appropriate notice  
of its intention to assume control of its own membership, a  
majority of the electors of the band gives its consent to the band’s  
control of its own membership.  
[4]  
Section 10(6) states that, where the conditions set out in subsection (1) have been met,  
the Council of the band shall give notice to the Minister in writing that the band is assuming  
control of its own membership and shall provide the Minister with a copy of the membership  
rules for the band. Section 10(7) states that, on receipt of such notice, the Minister shall give  
notice to the band that it has control of its own membership if the conditions set out in subsection  
have been complied with.  
Page: 3  
On or about June 17, 1987, CLCFN assumed control of its band membership under  
section 10 of the Indian Act on June 17, 1987 and enacted the Canoe Lake Indian Band  
[5]  
Membership Code [1987 Membership Code]. The parties agree that Canada recognizes the  
CLCFN as a Section 10 band governed by the FNE Act. Indeed, the CLCFN is listed as a  
participating First Nations in the schedule to that Act.  
[6]  
The 1987 Membership Code includes the following:  
WHEREAS the Canoe Lake Indian Band is desirous of assuming  
control of its own membership, the following provisions shall  
constitute a Membership Code for the establishment and  
maintenance of the Band List.  
1) Unless otherwise specified, the definitions contained in the  
Indian Act, 1970 c 1-6, as amended, apply to this Code. “Meadow  
Lake Tribal Council” means the organization incorporated  
pursuant to the laws of Saskatchewan to represent 10 Member  
Bands.  
2) The Membership Code may be amended or repealed by a  
majority of the electors upon one month’s notice to the electors.  
3) The Chief and Council shall determine membership pursuant to  
the provisions of this Code.  
4) The Chief and Council may appoint persons to assist in the  
administration of the Code and the recording and keeping of the  
Band List.  
5)  
Decisions on membership within the Band shall be subject  
to review by a Membership Tribunal to be established by the  
Meadow Lake Tribal Council. The Membership Tribunal shall  
consist of not less than three persons who may be appointed from  
time to time. The Membership Tribunal shall consist of not less  
than three persons who have been entered in one or other of the  
Band Lists of the Member Bands represented by the Meadow Lake  
Tribal Council who are knowledgeable of the customs and values  
of all of the member Bands. The Membership Tribunal shall have  
the power to investigate and confirm, suspend or reverse decisions  
on membership.  
Page: 4  
6) An application for the review of a decision on membership by  
the Membership Tribunal may be made by the council of the Band,  
any member of the Band, or the person in respect of whose name  
the application for review is made or his representative within one  
month of a determination being made pursuant to Section 3  
7) Commencing on the date this Code comes into force, a person is  
entitled to have his name entered in the Band List if:  
a)  
that person was entered in the Band List or was  
entitled to be entered in the Band List immediately prior to  
this Code coming into force  
b)  
both of that person’s parents are entered or were or  
are entitled to be entered in the Band List; or,  
c)  
one of that person’s parents is or was entered in the  
Band List and the other parent is or was entered in the Band  
List of another Band;  
THIS MEMBERSHIP CODE consented to on the 17th day of June,  
1987 by the Canoe Lake Indian Band.  
[7]  
The parties agree that the 1987 Membership Code is problematic. The membership  
criteria in the Code are based on provisions of the Indian Act, as they existed following  
amendments made to the Act in 1985, which provisions have been found not to comply with the  
Canadian Charter of Rights and Freedoms [Charter] because they perpetuated discrimination  
(see McIvor v Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 [McIvor] at  
paras 117, 151; Descheneaux c Canada (Procureur Général), 2015 QCCS 3555 [Descheneaux]  
at paras 155, 171, 217-218). The crux of the discrimination identified in McIvor and  
Descheneaux was that the 1985 amendments to the Indian Act perpetuated the advantage of those  
who gained Indian status through male ancestors, rather than through female ancestors (McIvor  
at paras 93, 111-112, 122, 154-156; Descheneaux at paras 133-134, 149-155, 167-171).  
Page: 5  
Amendments to the Indian Act subsequent to the enactment of the 1987 Membership Code,  
enacted in response to McIvor and Descheneaux, have expanded eligibility for Indian status.  
[8]  
Apparently in recognition of these decisions and legislative changes, on June 15, 2016  
the CLCFN held a referendum [2016 Referendum] for the purpose of deciding whether to repeal  
the 1987 Membership Code and replace it with the Canoe Lake Cree First Nation Membership  
Code [2016 Membership Code]. A ratification report [Ratification Report] indicates the total  
number of members of the band to be 2356, the total number of eligible electors to be 679, the  
number of ballots cast and counted to be 216: with 174 voting in favour of ratification and 42  
voting against it. The Ratification Report states:  
Approval of Law requires a minimum Ratification of 50% plus 1  
of the total eligible voters at a duly convened meeting specifically  
for this purpose.  
[9]  
The validity of the ratification vote was not questioned at that time and it is generally  
agreed that Ms. Clarabelle Opikokew, the appointed Ratification Officer, as well as Chief and  
Council and CLCFN members believed that the ratification vote to have passed. Following the  
2016 Referendum, some efforts were undertaken to have CLCFN community members apply for  
membership under the expanded criteria of the 2016 Membership Code.  
[10] However, for reasons that are not apparent from the record before me, when the next  
election was held in December 2016 [2016 Election] it appears that determination of band  
membership and therefore the ability to run for office and vote was governed by the  
application of the more restrictive 1987 Membership Code.  
Page: 6  
[11] In the lead up to the 2020 Election, it came to light that that the 1987 Membership Code,  
and not the 2016 Membership Code, would be used to generate a voters list for the 2020  
Election. Mr. Craig McCallum sought to run for the office of Chief in the 2020 Election. He is  
one of the Applicants and filed two affidavits in support of this proceeding. He deposes that on  
October 28, 2020, in advance of the 2020 Election, he met with Ms. Opikokew (Ms. Opikokew  
was the Membership Clerk at that time). Ms. Opikokew informed him that the 1987 Membership  
Code was still being used to determine membership. According to Mr. McCallum, Ms.  
Opikokew advised him that although the ratification vote held in 2016 had passed, repealing the  
1987 Membership Code and enacting the 2016 Membership Code, she had never received  
direction from Chief and Council to implement the new law, or to apply the 2016 Membership  
Code. As will be discussed further below, neither party submitted evidence from Ms. Opikokew.  
[12] This meant that although the there are approximately 2600 CLCFN registered status  
Indians, of which approximately 1900 are over the age of 18 and are therefore old enough to  
vote, by applying the 1987 Membership Code, only about 700 of these people would have their  
names placed on a voter’s list entitling them to run for office and vote in the 2020 Election. The  
Applicants (other than Nyden Ironnighttraveller) were among those not included on the  
prospective voters list.  
[13] On November 3, 2020, counsel for Mr. McCallum wrote to Chief Francis Iron explaining  
why Mr. McCallum believed his name should be on the voter’s list and requesting that it be  
added to that list. No response to that letter was received. Concerned community members then  
arranged a meeting with Chief and Council to discuss the matter, which meeting was to be held  
Page: 7  
on November 6, 2020. However, at the agreed meeting time Chief and Council were not in  
chambers. When it was learned that they were at a meeting of Kohkums, Moshoms, and  
Chapans, a council of elders that gives guidance and direction to Chief and Council [Elders], the  
community members attended that meeting. The Elders granted them the floor to discuss the  
issue and Chief Francis Iron also addressed the concern. The Applicants allege that, with the  
approval of the Elders, Chief Francis Iron committed to implement the 2016 Membership Code  
and to utilize a new voter’s list generated in accordance with the 2016 Membership Code  
membership criteria. Conversely, in his affidavit evidence, Chief Iron deposes that he only  
agreed to review the issue and report back to the community about whether the 2016  
Membership Code should be used. That evening, Ms. Opikokew posted on Facebook that the  
voter’s list had been updated (to reflect the 2016 Membership Code membership criteria). The  
affidavit evidence of Mr. McCallum that she was subsequently instructed by Chief Francis Iron  
to remove the post is uncontested, and it was acknowledged by Chief Iron when he was cross-  
examined on his affidavit that he had instructed Ms. Opikokew to take down the Facebook post  
so that he could seek legal advice and consult with members.  
[14] On November 9, 2020, Ms. Judith Iron, an applicant in this matter, submitted an  
application to the Meadow Lake Tribal Council [MLTC], copied to others including CLCFN  
Chief and Council. She set out the background to the situation and stated that the Elders had  
approved the updating of the voter’s list but that Chief Francis Iron had subsequently instructed  
Ms. Opikokew to remove her Facebook post advising that an updated voter’s list had been  
prepared. Ms. Iron sought a review by the MLTC of the decision to utilize the 1987 Membership  
Page: 8  
Code. Ms. Iron deposes that she received no response to her application. Chief Francis Iron’s  
evidence was that he did not receive the letter.  
[15] On November 11, 2020, Chief Francis Iron published a Memo to CLCFN members dated  
November 11, 2020, stating:  
A meeting was held on Friday, November 6, 2020 with the KMC  
Group and other band members. During this meeting, the eligible  
voters list was discussed along with a request to expand voting  
status to band members not currently listed. At this meeting I  
stated that the list would be reviewed, and the issue will be dealt  
with accordingly. At no time were promises made to have this list  
expanded without the proper processes being adhered to. Since the  
meeting, we have received a primary opinion from a law group  
regarding the membership code.  
[16] Chief Iron cut and pasted into the Memo a communication received from Mr. Dusty T.  
Ernewein of McKercher LLP responding to telephone calls from Chief Iron. This advises that the  
amending provision of the 1987 Membership Code states that amendment may occur upon  
approval of a majority of electors of CLCFN. The Referendum results indicated that there were  
679 eligible voters for the Referendum. Accordingly, a majority would be 340 votes in favour of  
amendment. However, only 216 votes were cast, with 174 in favour of amending. Counsel  
concluded that “The Referendum vote appears to have failed to satisfy the amending  
requirements of approval of a majority of electors. As such the 1987 Code would still be law.  
[17] Chief Iron went on to state in the Memo:  
Regarding our current membership code, it needs to be brought up  
to par with thorough consultation and input from all band  
members. Unfortunately, this issue will have to be rectified after  
the upcoming election by the elected leaders. I sincerely apologize  
Page: 9  
for any miscommunication or misinformation that may have been  
received.  
[18] The 2020 Election proceeded on the basis of a voters list which was generated based on  
the membership criteria contained in the 1987 Membership Code and which excluded the  
Applicants and more than a thousand other CLCFN community members. The Electoral  
Officer’s Report states that there were 722 eligible voters.  
Relevant Legislation  
Indian Act, RSC 1985 c I-5  
2 (1) In this Act,  
Band List means a list of persons that is maintained under section 8  
by a band or in the Department;  
member of a band means a person whose name appears on a Band  
List or who is entitled to have his name appear on a Band List;  
Band Lists  
8 There shall be maintained in accordance with this Act for each  
band a Band List in which shall be entered the name of every  
person who is a member of that band.  
10 (1) A band may assume control of its own membership if it  
establishes membership rules for itself in writing in accordance  
with this section and if, after the band has given appropriate notice  
of its intention to assume control of its own membership, a  
majority of the electors of the band gives its consent to the band’s  
control of its own membership.  
Page: 10  
Membership rules  
(2) A band may, pursuant to the consent of a majority of the  
electors of the band,  
(a) after it has given appropriate notice of its intention to do  
so, establish membership rules for itself; and  
(b) provide for a mechanism for reviewing decisions on  
membership.  
Exception relating to consent  
(3) Where the council of a band makes a by-law under paragraph  
81(1)(p.4) bringing this subsection into effect in respect of the  
band, the consents required under subsections (1) and (2) shall be  
given by a majority of the members of the band who are of the full  
age of eighteen years.  
Acquired rights  
(4) Membership rules established by a band under this section may  
not deprive any person who had the right to have his name entered  
in the Band List for that band, immediately prior to the time the  
rules were established, of the right to have his name so entered by  
reason only of a situation that existed or an action that was taken  
before the rules came into force.  
Idem  
(5) For greater certainty, subsection (4) applies in respect of a  
person who was entitled to have his name entered in the Band List  
under paragraph 11(1)(c) immediately before the band assumed  
control of the Band List if that person does not subsequently cease  
to be entitled to have his name entered in the Band List.  
Notice to the Minister  
(6) Where the conditions set out in subsection (1) have been met  
with respect to a band, the council of the band shall forthwith give  
notice to the Minister in writing that the band is assuming control  
of its own membership and shall provide the Minister with a copy  
of the membership rules for the band.  
Notice to band and copy of Band List  
Page: 11  
(7) On receipt of a notice from the council of a band under  
subsection (6), the Minister shall, if the conditions set out in  
subsection (1) have been complied with, forthwith  
(a) give notice to the band that it has control of its own  
membership; and  
(b) direct the Registrar to provide the band with a copy of  
the Band List maintained in the Department.  
Effective date of band’s membership rules  
(8) Where a band assumes control of its membership under this  
section, the membership rules established by the band shall have  
effect from the day on which notice is given to the Minister under  
subsection (6), and any additions to or deletions from the Band List  
of the band by the Registrar on or after that day are of no effect  
unless they are in accordance with the membership rules  
established by the band.  
Band to maintain Band List  
(9) A band shall maintain its own Band List from the date on  
which a copy of the Band List is received by the band under  
paragraph (7)(b), and, subject to section 13.2, the Department shall  
have no further responsibility with respect to that Band List from  
that date.  
First Nations Elections Act, SC 2014 c 5 [FNE Act]  
2 The following definitions apply in this Act.  
elector means a person who is registered on a Band List, as  
defined in subsection 2(1) of the Indian Act, and  
(a) in relation to an election, is 18 years of age or older on  
the day of the election;  
Contestation of election  
31 An elector of a participating First Nation may, by application to  
a competent court, contest the election of the chief or a councillor  
of that First Nation on the ground that a contravention of a  
Page: 12  
provision of this Act or the regulations is likely to have affected  
the result.  
Court may set aside election  
35 (1) After hearing the application, the court may, if the ground  
referred to in section 31 is established, set aside the contested  
election.  
First Nations Elections Regulations, SOR/2015-86 [Regulations]  
Provision of information  
3 (1) At least 65 days before the day on which an election is to be  
held  
(a) the First Nation must provide the electoral officer with  
the information set out in subsection (2), if the First Nation  
holding the election has assumed control of its own  
membership under section 10 of the Indian Act; and  
(b) the Registrar must provide the electoral officer with the  
information set out in subsection (2), if the Band List of the  
First Nation holding the election is maintained in the  
Department under section 11 of the Indian Act.  
Compilation of list  
(2) The electoral officer must compile a voters list that contains the  
following information:  
(a) the names of all electors, in alphabetical order; and  
(b) each elector’s band membership or Register number or,  
if the elector does not have a band membership or Register  
number, their date of birth.  
Revision of list  
(3) The electoral officer must revise the voters list if it is  
demonstrated that  
(a) an elector’s name has been omitted from the list;  
(b) an elector’s name is incorrectly set out in the list; or  
(c) the name of a person not entitled to vote is included in  
the list.  
Page: 13  
Issues  
[19] Although the Applicants made lengthy (60 pages) and highly detailed submissions and  
identified issues and multiple sub issues, in my view, the issues in this proceeding can be  
appropriately framed and analysed as follows:  
i. Which membership code is in force?  
ii. Was there a contravention of the FNE Act or the Regulations that was likely to have  
affected the outcome of the 2020 Election?  
iii. If the 1987 Membership Code remains in force, is it constitutional?  
iv.  
If the 1987 Membership Code is unconstitutional, what is the appropriate remedy?  
Evidence  
[20] The ApplicantsRecord includes the following evidence which has been filed in this  
proceeding:  
i. Affidavit of Craig McCallum, sworn January 14, 2021  
ii. Affidavit of Laura Bird, sworn January 14, 2021  
iii. Affidavit of Jessica Iron, sworn January 14, 2021  
iv.  
Affidavit of Nyden Ironnighttraveller, sworn January 29, 201  
v. Affidavit of Lloyd Yew, sworn February 2, 2021  
vi.  
vii.  
Affidavit of Ronin Iron, sworn January 28, 2021  
Affidavit of Judith Iron, sworn March 3, 2021  
Page: 14  
viii. Supplemental Affidavit of Craig McCallum, sworn March 4, 2021  
ix. Affidavit of Lynda Bachiu, sworn March 4, 2021  
x. Affidavit of Wilfred Iron, sworn December 2, 2021  
xi. Affidavit of Chief Francis Iron, sworn December 2, 2021  
xii. Affidavit of Lisa Iron, sworn December 3, 2021  
xiii. Transcript of cross-examination of affidavits: Craig McCallum, December 13, 2021  
xiv. Transcript of cross-examination of affidavit: Laura Bird, December 13, 2021  
xv. Transcript of cross-examination of affidavit: Judith Iron, December 13, 2021  
xvi. Transcript of cross-examination of affidavit: Jessica Iron, December 13, 2021  
xvii. Transcript of cross-examination of affidavit: Nyden Ironnighttraveller, December 13,  
2021  
xviii. Transcript of cross-examination of affidavit: Lloyd Yew, December 14, 2021  
xix. Transcript of cross-examination of affidavit: Wilfred Iron, January 31, 2022  
xx. Transcript of cross-examination of affidavits: Chief Francis Iron, January 31, 2022  
xxi. Transcript of cross-examination of affidavit: Lisa Iron, January 31, 2022  
[21] The Respondent’s Record contains:  
i. Supplementary Affidavit of Councillor Wilfred Iron, sworn March 25, 2022.  
[22] Chief Francis Iron has also caused a certified tribunal record [CTR] to be filed.  
Page: 15  
[23] While I have reviewed and considered all of this evidence, for purposes of these reasons,  
it is not necessary to mention or refer to each individual item. In my analysis, I have referenced  
the most pertinent evidence in the context of the issue being addressed.  
Preliminary Matter  
[24] Although in their written submissions the Applicants devoted considerable attention to an  
anticipated prematurity argument, they advised when appearing before me that this was no  
longer a live issue. Accordingly, it is not addressed in these reasons.  
Issue 1: Which membership code is in force?  
[25] In their Notice of Application, the Applicants state that this is an application for judicial  
review in respect of the CLCFN decision to unconstitutionally and unlawfully deny the  
Applicantsband membership, and its attendant rights and privileges, including by failing to  
implement the 2016 Membership Code. In their written submissions, the Applicants more  
specifically describe the judicial review aspect of this matter as pertaining to the unilateral  
decision of CLCFN Chief and Council not to follow the 2016 Membership Code.  
[26] The Applicantswritten submissions do not address the applicable standard of review and  
they do not frame the challenged decision of Chief and Council with respect to the ratification  
and application of the 2016 Membership Code in terms of a reasonableness or correctness  
analysis. In my view, the decision of Chief and Council regarding the interpretation of the 1987  
Membership Code and, based on this, that the 2016 Membership Code had not been properly  
Page: 16  
ratified and therefore did not govern the 2020 Election, is to be assessed on the reasonableness  
standard.  
[27] When a court reviews the merits of an administrative decision, the presumptive standard  
of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019  
SCC 65 [Vavilov] at paras 10, 23, 25). This is inclusive of matters of statutory interpretation  
(Vavilov at para 115- 121). On judicial review, the reviewing court asks whether the decision  
bears the hallmarks of reasonableness justification, transparency and intelligibility and  
whether it is justified in relation to the relevant factual and legal constraints that bear on the  
decision (Vavilov at para 99).  
Applicants’ position  
[28] The Applicants submit that Ms. Opikokew was appointed as the Ratification Officer with  
respect to the 2016 Referendum. As such, she was legally empowered to determine the result and  
she determined that the vote had properly passed. The Applicants submit that the fact that a  
ratification vote to repeal and replace the 1987 Membership Code with the 2016 Membership  
Code was held “and that the person lawfully empowered to determine the result determined that  
the vote passed, is conclusive of the issue” and that the Respondents were obliged to comply  
with the law.  
[29]  
Based on this view, the Applicants submit that the Respondents seek to collaterally  
attack the 2016 Referendum ratification vote by alleging that Ms. Opikokew, as the Ratification  
Page: 17  
Officer, erred in concluding that the vote passed and that it is an abuse of process for the  
Respondents to now challenge the 2016 Referendum ratification vote in this proceeding.  
[30] Alternatively, that s 2 of the 1987 Membership Code is ambiguous and, therefore, this  
Court can rely on the CLCFN’s common understanding and custom to determine its meaning.  
The broad consensus after the 2016 Referendum ratification vote was held was that the 1987  
Membership Code required only a simple majority to amend or repeal that Code, that is, if more  
than 50% of the ballots cast were in favour of that measure. The Applicants submit that although  
similar ambiguous language in other statutes has been interpreted differently by other courts, in  
the context of the CLCFN, the community understood the phrase to mean a simple majority.  
That is the proper interpretation that should be applied by this Court, not the Respondents’ more  
recent interpretation based on the opinion of external legal counsel that a double majority was  
required in order to pass.  
Respondents’ position  
[31] The Respondents submit that s 2 of the 1987 Membership Code requires that a “majority  
of the electors” to vote to amend or repeal the Code. As fewer than 50% of the electors voted in  
the 2016 Referendum, the vote did not pass. The Respondents point to case law interpreting the  
phrase “the majority of the electors” as requiring a double majority. That is, requiring a majority  
of eligible voters to vote, and a majority of those who do vote, to vote in favour of the  
proposition at issue. The Respondents also submit that the Ratification Report does not state  
whether the vote passed and there is no evidence that the Ratification Officer made that  
determination. And, as the list of eligible voters was not updated to reflect the 2016 Membership  
Page: 18  
Code during the 2016 Election, it was clearly understood that the 2016 Referendum had not  
passed.  
Analysis  
[32] The core of the dispute between the parties is whether the 2016 Referendum ratification  
vote served to validly repeal the 1987 Membership Code and replace it with the 2016  
Membership Code. This issue is dispositive because if the 2016 Membership Code was in force  
prior to the 2020 Election, then CLCFN was obliged to assess membership and therefore  
eligibility to vote and run for office pursuant to that Code. In that event, the decision to utilize  
the 1987 Membership Code with respect to the 2020 Election would be unreasonable and a  
reviewable error.  
i.  
Interpretation of the 1987 Membership Code  
[33] As the Applicants acknowledge, provisions in the Indian Act containing wording similar  
to s 2 of the 1987 Membership Code have been interpreted to require a double majority to  
determine the electors’ assent.  
[34] In Cardinal et al v The Queen, [1982] 1 SCR 508 [Cardinal], the Supreme Court held  
that the phrase “assented to by a majority… of the band… at a meeting… thereof summoned for  
that purpose…” contained in then s 49 of the Indian Act must be interpreted as meaning that the  
assent must be given by a “majority of a majority of eligible band members in attendance” (at  
para 15).  
Page: 19  
[35] In Abenakis of Odanak v Canada (Indian Affairs and Northern Development), 2008 FCA  
126 [Odanak], the Federal Court of Appeal cited and adopted the Supreme Court’s interpretation  
in Cardinal, holding that s 10(1) of the Indian Act which refers to “a majority of the electors of  
the band” required “a majority of the majority” to vote in favour of taking control of the band’s  
membership (at para 47). The Federal Court of Appeal stated its reasoning as follows:  
[41] The expression “a majority of the electors of the band” is  
used in subsections 2(3), 10(1) and (2), sections 13.1 and 13.2  
and subsections 39(1) and (2) of the Act. Elsewhere, in sections  
74, 85.1 and 120 of the Act, specific terms concerning voting  
rights are associated with the words “majority of the votes of the  
electors of the band” or “majority vote of those electors of the  
band”.  
[42] There is no mistake in interpreting the words “majority of  
the electors” in section 10 of the Act according to the interpretation  
given by the Supreme Court of Canada in Enoch Band of Stony  
Plain Indian Reserve No. 135 v. Canada, 1982 173  
(SCC), [1982] 1 S.C.R. 508. That case concerned the interpretation  
to be given to the words “majority … of the band … at a meeting  
… summoned for that purpose” in section 49 of the Indian Act,  
R.S.C. 1906, c. 81, which dealt with the surrender of all or part of  
the reserve’s lands. Estey J., writing on behalf of the Supreme  
Court of Canada, stated the following (paragraph 13 of the  
reasons):  
13 It may be helpful to analogize the first  
requirement of the majority to that of a prescription  
of quorum and it may be helpful to refer to the  
second requirement that the assent be given at a  
meeting as simply a prescribed mechanical method  
of determining the will of the meeting on the issue  
of assent. In adverting to the common law  
principle, supra, I had in mind The Mayor,  
Constables, and Company of Merchants of the  
Staple of England v. The Governor and Company of  
the Bank of England (1887), 21 Q.B.D. 160 at p.  
165 where it was stated by Wills J. in reference to  
the acts of a corporation being those of the major  
part of the corporators corporately assembled:  
This means that, in the absence of special  
custom, the major part must be present at the  
Page: 20  
meeting, and that of that major part there  
must be a majority in favour of the act or  
resolution.  
In more recent times and to the same effect,  
see: Gillanders J.A., in Glass Bottle  
Blowers’ Association of the United States  
and Canada v. Dominion Glass Company  
Limited, [1943] O.W.N. 652 (Labour Court);  
and Itter v. Howe (1896), 23 O.A.R. 256. To  
require otherwise, that is to say more than a  
mere majority of the prescribed quorum of  
eligible band members present to assent to  
the proposition, would put an undue power  
in the hands of those members who, while  
eligible, do not trouble themselves to attend,  
or if in attendance, to vote; or as it was put  
by Gillanders J.A. in Glass Bottle  
Blowers’, supra, at p. 656, it would “give  
undue effect to the indifference of a small  
minority”.  
[43] In this case, the first majority of electors constitutes the  
quorum. The decision must then be made by the majority of those  
who attend the meeting. Otherwise, this would amount to giving  
the indifference of those who did not attend a significance that it  
should not have.  
[46] It is interesting to note that, with the enactment of  
subsections 39(2) and (3) of the Act, in the case of an absolute  
surrender or a designation of lands, Parliament added to the  
majority-of-the-majority vote the possibility of holding a second  
round of voting which takes into consideration the more flexible  
rule of “a majority of the electors who did vote” (subsection 39(2))  
or “a majority of the electors voting” (subsection 39(3)).  
[36] Section 1 of the 1987 Membership Code explicitly adopts the definitions used in the  
Indian Act. Further, s 2 of the 1987 Membership Code provides that the code “may be amended  
or repealed by a majority of the electors”. This wording mirrors the language in s 10 of the  
Indian Act, which requires that “a majority of the electors of the band gives its consent” to taking  
Page: 21  
control of the membership. Indeed, the remainder of the 1987 Membership Code also directly  
adopts other provisions of the Indian Act.  
[37] I can see no basis to depart from the binding authority of Cardinal and Odanak in  
interpreting s 2 of the 1987 Membership Code. Accordingly, the approval of the “majority of the  
electors” requires approval by a “majority of a majority” of the electors.  
[38] The result of this finding is that, regardless of what may have been believed by the  
Ratification Officer, Chief and Council and members of the CLCFN, in the absence of a double  
majority there was no authority by which the 1987 Membership Code could have been amended  
or repealed. Accordingly, subject to any CLCFN custom that would serve to vary s 2 of the 1987  
Membership Code which is discussed below it remains in effect. Chief and Council did not  
err in their determination in that regard.  
ii.  
Collateral attack  
[39] The evidence establishes that it was, at least initially, generally believed by the CLCFN  
community members that the 2016 Referendum ratification vote had validly passed. This is  
demonstrated by:  
-
A video of the counting of the 2016 Referendum ratification votes which makes it  
very clear that all involved in that process were of the view that 108 votes  
(presumably plus 1) were needed of 216 cast in order for the 2016 Referendum to  
succeed. And, having received 176 votes, that the 2016 Referendum had passed. Ms.  
Page: 22  
Opikokew, as the Ratification Officer, was counting the ballots and Chief Francis  
Iron was in attendance;  
-
On June 30, 2016, Chief Francis Iron gave an interview to the Northern Pride  
newspaper in which he described the successful 2016 Referendum as a big  
accomplishment and that it had been one of his goals when he assumed office to  
make sure something like it passed. He added that the extension of rights would  
allow band members to feel truly part of the community, which they did not before as  
they were not allowed to vote or to be included for housing and funding. The article  
states “In order for the vote to pass, 50 percent plus one was needed. In total, 216  
people voted and 174 chose to expand rights. The article goes on to report that the  
same vote on Flying Dust First Nation held on June 20 failed to yield the same  
results. The article states that under the Indigenous and Northern Affairs rules which  
Flying Dust followed but Canoe Lake did not 50 percent of the band membership  
plus one needed to vote, but not enough people from Flying Dust first Nation had  
cast a ballot. When cross-examined on his affidavit, Chief Francis Iron confirmed  
that the information in the news article came from him. He also confirmed that Ms.  
Opikokew had determined that the 2016 ratification vote had passed, but disputed  
that she made a determination that the 1987 Membership Code had been repealed.  
Chief Iron also confirmed that everyone was under the impression that the 2016  
Referendum had passed;  
-
After the 2016 Referendum, efforts were made to have community members apply  
for band membership. The affidavit of Mr. Lloyd Yew deposes that about two years  
ago (his affidavit being sworn on February 2, 2021) he attended a meeting in Ile-a-la-  
Page: 23  
Crosse called by Joseph (Butch) Iron who was addressing about 20 people. Mr. Iron  
advised those in attendance that they did not need to apply for status through the  
Government of Canada but instead could just sign a form to immediately become a  
member of the CLCFN. Mr. Yew states Mr. Iron attended Ile-a-la-Crosse for this  
purpose about four times. He attaches as an exhibit to his affidavit the application  
form, signed by Mr. Iron, which is entitled:  
APPLICATION TO BECOME A CANOE LAKE CREE  
NATION MEMBER  
Nehiyiw Opahsihk Kakikih Akisowin”  
MEMBERSHIP CODE RATIFIED JUNE 15, 2016  
PURSUANT TO SECTION (2) OF THE CODE  
-
When cross-examined on his affidavit, Chief Francis Iron confirmed that after the  
2016 Referendum “foot workers” or people who were “pretty well contractors” (as  
opposed to members of a membership committee) worked on the application form  
document and were tasked with getting it out to CLCFN community members. When  
asked if these people went out to various communities to sign people up for  
CLCFN’s membership list in accordance with the 2016 Membership Code, he agreed  
and confirmed that the form attached to Lloyd Yew’s affidavit was the form taken to  
community meetings for people to sign.  
[40] Based on this evidence, I am satisfied that, at least initially, Chief Francis Iron and the  
other CLCFN community members believed that the 2016 Referendum had passed and that the  
2016 Membership Code was in effect.  
Page: 24  
[41] This leads to the Applicantsarguments on collateral attack. As I understand the  
submission, their view is that the Ratification Officer, Ms. Opikokew, had the legal authority to  
determine whether or not the 2016 ratification vote had passed. She, like everyone else, believed  
that only a simple majority was needed to repeal and replace the 1987 Membership Code and she  
made a determination that the 2016 ratification vote had properly passed. The Applicants assert  
that when questions arose about who was eligible to vote or run for office in the 2020 Election,  
the Respondents did not challenge the decision of the Ratification Officer. Instead, based on the  
opinion received from external legal counsel that a double majority was required in order for the  
2016 Referendum to pass, Chief Francis Iron unilaterally decided the outcome of the 2016  
Referendum and, accordingly, that Chief Iron and the CLCFN did not have to follow the  
Ratification Officer’s prior, legally made, decision. The Applicants state that now, in “separate  
proceedings”, the Respondents seek to attack the 2016 ratification vote “not by directly  
appealing or judicially reviewing the result, but indirectly by claiming that they do not have to  
follow a lawfully made decision because they believe that the decision was wrongly made”.  
[42] The Applicants rely on R v Wilson [1983] 2 SCR 594 in support of this position. There a  
trial judge in provincial court had held that interception of private communications of the  
appellant had not been lawfully made. On appeal to the Manitoba Court of Appeal, the Crown  
argued that the provincial court judge was without jurisdiction to go behind the interception  
authorizations and thereby made a collateral attack upon the order of a superior court. The Court  
of Appeal agreed and held that an authorization granted by a superior court of record cannot be  
collaterally attacked in any court. The Supreme Court of Canada, when the matter came before it,  
held at page 600:  
Page: 25  
7
8
In the Manitoba Court of Appeal, Monnin J.A. said:  
The record of a superior court is to be treated as  
absolute verity so long as it stands unreversed.  
I agree with that statement. It has long been a fundamental  
rule that a court order, made by a court having jurisdiction to make  
it, stands and is binding and conclusive unless it is set aside on  
appeal or lawfully quashed. It is also well settled in the authorities  
that such an order may not be attacked collaterallyand a  
collateral attack may be described as an attack made in  
proceedings other than those whose specific object is the reversal,  
variation, or nullification of the order or judgment. Where appeals  
have been exhausted and other means of direct attack upon a  
judgment or order, such as proceedings by prerogative writs or  
proceedings for judicial review, have been unavailing, the only  
recourse open to one who seeks to set aside a court order is an  
action for review in the High Court where grounds for such a  
proceeding exist. Without attempting a complete list, such grounds  
would include fraud or the discovery of new evidence.  
…..  
16  
The cases cited above and the authorities referred to therein  
confirm the well-established and fundamentally important rule,  
relied on in the case at bar in the Manitoba Court of Appeal, that  
an order of a court which has not been set aside or varied on appeal  
may not be collaterally attacked and must receive full effect  
according to its terms.  
[43] I do not think that Wilson greatly assists the Applicants as it pertains to collateral attack  
by a lower court on an order of a superior court.  
[44] Nor is this a situation where an a judgment issued by a court is attacked in a different or  
wrong forum, as was the case in Toronto (City) v. CUPE, Local 79, 2003 SCC 63 [CUPE].  
There, the Supreme Court described the rule against collateral attack as being that a judicial  
order pronounced by a court of competent jurisdiction should not be brought into question in  
subsequent proceedings except those provided by law for the express purpose of attacking it(at  
Page: 26  
para 33, citing Danyluk v Ainsworth Technologies Inc., 2001 SCC 44 at para 20) (emphasis in  
CUPE).  
[45] In the administrative law context, the Applicant quotes from Donald L. Lange, The  
Doctrine of Res Judicata in Canada, 4th ed (Markham, Ont: LexisNexis, 2015) at 465, which  
states, as a general principal, that:  
“Collateral attack cases involve a party, bound by an order, who  
seeks to avoid compliance with that order by challenging the order  
itself and its enforceability not directly but indirectly in separate  
forum. The order being attacked usually involves an activity. A  
party is ordered either to do something or to refrain from doing  
something. The fundamental policy behind the doctrine of  
collateral attack is to maintain the rule of law and preserve the  
repute of the administration of justice.”  
The doctrine is often considered in administrative law when, for  
example, a second proceeding involves the non-compliance with  
an administrative order that has not been previously challenged  
through the administrative appeal process but is challenged in the  
second proceeding…  
[46] There is no doubt that the rule against collateral attack can also be applied to  
administrative orders and decisions. For example, the Supreme Court of Canada described the  
rule against collateral attack, in an administrative law matter, in British Columbia (Workers’  
Compensation Board) v British Columbia (Human Rights Tribunal), 2011 SCC 52, as follows:  
[28] The rule against collateral attack similarly attempts to  
protect the fairness and integrity of the justice system by  
preventing duplicative proceedings. It prevents a party from using  
an institutional detour to attack the validity of an order by seeking  
a different result from a different forum, rather than through the  
designated appellate or judicial review route: see Canada (Attorney  
General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585,  
and Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1  
S.C.R. 629.  
Page: 27  
[47] However, I am not persuaded that the rule against collateral attack has application in this  
matter. That is because the Ratification Report prepared by Ms. Opikokew is not an order or a  
decision. Nor does it directly compel Chief and Council to do or not to do anything.  
[48] The Ratification Report lists information such as the total number of band members  
(2356), the total number of eligible voters (679), the number of ballots cast (216) and then states:  
RESULTS: YES: 174 NO: 42 TOTAL 216  
Approval of Law requires a minimum Ratification of 50% plus 1  
of the total eligible voters at a duly convened meeting specifically  
for this purpose  
[49] The Ratification Report does not include any statement of the Ratification Officer’s  
finding as to the result or consequence of the vote. It does not state or declare that the 1987  
Membership Code is repealed and replaced by the 2016 Membership Code, nor does it order  
Chief and Council to take any action in that regard. The Ratification Report does not address  
whether a majority or double majority vote of the electors was required for the 2016 Referendum  
ratification vote to pass. While I agree that the evidence suggests that Ms. Opikokew was of the  
view that the vote had passed, I do not agree that the Ratification Report amounts to a prior  
“order or judgment” that the Respondents now collaterally attack.  
[50] Further, and relatedly, in this judicial review, the Applicants assert that they are  
challenging the decision of Chief and Council to utilize the 1987 Membership Code with respect  
to the 2020 Election. However, the implementation of membership codes is not a decision of  
Chief and Council, or the Ratification Officer. Whether or not to repeal and replace the 1987  
Membership Code is the decision of the CLCFN electors exercised by way of the ratification  
Page: 28  
vote. That is, it is a membership decision determined in the manner prescribed in s 2 of the 1987  
Membership Code.  
[51] If the 2016 Membership Code was not validly effected by the vote of the majority of the  
electors, then Chief and Council had no authority to direct that it be utilized to determine  
membership for purpose of the 2020 Election. Accordingly, although the Applicants assert that  
they are challenging decision of Chief and Council to utilize the 1987 Membership Code with  
respect to the 2020 Election, the interpretation by counsel for Chief and Council that s 2 of the  
1987 Membership Code meant that the 2016 Referendum vote did not have the majority needed  
to effect the 2016 Membership Code. This, in turn, meant that by default the 1987 Membership  
Code remained in effect. Section 3 of the 1987 Membership Code states that Chief and Council  
shall determine membership pursuant to the provisions of that Code. They had no authority to do  
otherwise.  
[52] In summary, the Respondents are not collaterally attacking an order of the Ratification  
Officer because she did not make one. Further, based on the legal interpretation of s 2 of the  
1987 Membership Code by their counsel, Chief and Counsel reasonably determined that the  
2016 Referendum ratification vote had not been successful. Given this determination, Chief and  
Council had no authority to cause the 2016 Membership Code to be utilized in the 2020 Election.  
Page: 29  
iii. Abuse of process  
[53] Nor do I agree with the Applicants that the Respondents have engaged in abuse of  
process. The Applicants rely on Behn v Moulton Contracting Ltd, 2013 SCC 26 at paras 39-40 to  
support this argument.  
[54] In Behn, after the Crown granted licences to a logging company to harvest timber on the  
territory of a First Nation, a number of individuals from that First Nation erected a camp that  
blocked the company’s access to the logging sites. The company brought a tort action against  
these individual members who argued, in their defence, that the licences were void because they  
had been issued in breach of the constitutional duty to consult and because they violated the  
community members’ treaty rights. The company filed a motion to strike these defences.  
[55] In my view, this circumstance differs from Behn as there the individuals concerned had  
been invited to raise any concerns that they had with respect to the proposed licenses but failed  
to do so. Accordingly, their subsequent defence to the tort action by attacking the issued licenses  
was found to be an abuse of process. In this matter there is no evidence that the Applicants raised  
their concern with the Respondents prior to the lead up to the 2020 Election and that the  
Respondents failed to address the concern. Rather, the evidence before me is that concerns about  
the validity of the 2016 Referendum vote did not come to a head until the lead up to the 2020  
Election. In that event, there would have been no reason for any party to challenge its validity at  
an earlier time.  
Page: 30  
[56] The Applicants also rely on Cameron v Canada (Indian Affairs and Northern  
Development), 2012 FC 579, in which this Court considered an argument concerning s 10 of the  
Indian Act. However, that case does not explicitly address abuse of process. And, as I have found  
above, the Ratification Report is not a prior order or decision. The response to the application for  
judicial review by the Respondents is, therefore, not an attempt to relitigate a prior order or  
decision.  
[57] Finally on this point I note that in Behn, the Supreme Court referred to Canam  
Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.) in describing the doctrine of abuse of  
process as “engag[ing] the inherent power of the court to prevent the misuse of its procedure, in a  
way that would be manifestly unfair to a party to the litigation before it or would in some other  
way bring the administration of justice into disrepute”. In my view, the Applicants have not  
established an abuse of process by the Respondents in this matter.  
iv.  
Custom  
[58] The Applicants next argue that because s 2 of the 1987 Membership Code is ambiguous,  
it must be interpreted within the context of the common understanding of the CLCFN of that  
phrase and its custom to determine its meaning.  
[59] First, any ambiguity concerning the interpretation of the phrase was resolved by the  
Supreme Court of Canada in Cardinal and by the Federal Court of Appeal in Odanak.  
Page: 31  
[60] Second, a custom is a practice which is “firmly established, generalized, and followed  
consistently and conscientiously by a majority of the community, thus evidencing a broad  
consensus” (Francis v Mohawk Council of Kanesatake, 2003 FCT 115, [2003] 4 FC  
1133 [Francis] at paras 35-36; Beardy v Beardy, 2016 FC 383 [Beardy] at para 97; McKenzie v  
Mikisew Cree First Nation, 2020 FC 1184 [McKenzie] at para 71). The codification of a written  
law, passed by a majority of members, is itself an expression of the customs of the community  
(Beardy at para 102; Whalen at para 33). The burden of establishing a custom falls on the party  
who alleges it (Beardy at para 102; Whalen at para 41).  
[61] The Applicants submit that the broad consensus within CLCFN “was that s. 2 of the 1987  
Membership Code should be interpreted as only requiring a simple majority” as demonstrated by  
the fact that “everyone” viewed the 2016 Ratification vote to have passed on a simple majority.  
However, there is no evidence that the specific issue of whether a simple or double majority was  
required was ever considered by the members. Further, subsequent to the 2016 ratification vote,  
it was the 1987 Membership Code that was for reasons that are not explained utilized in the  
2016 Election and the evidence establishes that the membership practices used by the band  
administration did not change after the 2016 Referendum. Chief Francis Iron’s evidence was that  
the 1987 Membership Code was used in the 2016 Election and Lisa Iron deposed that the current  
(post-2020 Election) practice is also to use the criteria in the 1987 Membership Code to  
determine eligibility for membership in CLCFN.  
Page: 32  
[62] This does not support that a practice of utilizing the 2016 Membership Code is firmly  
established, generalized, and followed consistently and conscientiously by a majority of the  
community.  
[63] In conclusion on this first issue, in my view Chief and Council reasonably relied upon the  
legal opinion interpreting s 2 of the 1987 Membership Code as requiring a double majority in  
order to repeal that Code and, because a double majority was not achieved by the ratification  
vote in the 2016 Referendum, that the 1987 Membership Code remained in effect. The initial  
effecting of the 1987 Membership Code, and any decision to repeal and replace it with the 2016  
Membership Code or otherwise, are CLCFN decisions and not the decisions of the Ratification  
Officer or Chief and Council. Accordingly, as neither Chief and Council or the Ratification  
Officer had the authority, in these circumstances, to utilize the 2016 Membership Code, I do not  
agree that Chief and Council made a unilateral and unreasonable decision to disregard the 2016  
Referendum results and instead utilize the 1987 Membership Code for purposes of determining  
membership for the 2020 Election. Nor do I agree that Chief and Council are collaterally  
attacking a decision of the Ratification Officer or have engaged in an abuse of process.  
Issue 2: Was there a contravention of the FNE Act or Regulations that affected the result of  
the 2020 Election?  
Applicants’ position  
[64] Relying on their position that the 2016 Membership Code was in force, the Applicants  
submit that this Code should have been used to determine that they were eligible to vote and  
stand for election in the 2020 Election. They submit that CLCFN contravened the FNE Act by  
Page: 33  
failing to provide the electoral officer with an accurate voters list based on the 2016  
Membership Code. The Applicants also submit that the “Membership List” maintained by the  
Respondents, on which the Applicants’ names appear, should be treated as the Band List. This  
lists all members of CLCFN pursuant to s 8 of the Indian Act and, as the Applicants are on that  
list, they should have been permitted to vote. The Applicants submit that the Respondents’  
failure to obtain evidence from the former registration clerk of CLCFN should lead the Court to  
draw an adverse inference about what that clerk’s evidence would have been.  
Respondents’ position  
[65] The Respondents submit that the list of electors provided to the electoral officer was  
accurate and that all members entitled to vote were able to vote. The Respondents state that  
being named on the “Membership List” does not entitle a person to vote, as that list includes  
“affiliates” as well as members of CLCFN. They submit that the fact that CLCFN does not  
maintain a “Band List” of members did not affect the results of the 2020 Election, as the only  
people who would have been on a “Band List” and who were not included on the “Voter’s List”  
were those under the age of 18 and therefore not eligible to vote. The Respondents submit that  
the Applicants could have named the electoral officer, who was the person who made the  
decision as to who could run or vote in the 2020 Election, as a respondent. As they did not, any  
gap in the evidence is attributable to the Applicants.  
Analysis  
Page: 34  
[66] Section 31 of the FNE Act contains two elements that must both be met to successfully  
contest an election for chief or a councillor:  
i. There must be a contravention of the FNE Act or the Regulations; and  
ii. The contravention is likely to have affected the result of the election.  
[67] Pursuant to s 35, the Court may, if these elements are established, set aside the contested  
election.  
[68] The onus, or legal burden of proof, is on the applicant to establish that a contravention of  
the FNE Act or the Regulations has occurred and that the contravention was likely to have  
affected the result of the election [Bird at para 28-30; McNabb v Cyr, 2017 SKCA 27 at para 23  
[McNabb]); Opitz v Wrzesnewskyj, 2012 SCC 55 at para 52 [Opitz]; Papequash v Brass, 2018  
FC 325 at para 33 [Papequash]; O’Soup v Montana, 2019 SKQB 185 at para 29 [O’Soup]). The  
standard of proof for establishing that the requirements of s 31 have been met is the balance of  
probabilities (Good v Canada (Attorney General), 2018 FC 1199 at para 49 [Good]; Papequash  
at para 33; McNabb at para 23; O’Soup at para 29, 92).  
[69] The Applicants allege contraventions of sections 9, 12, 15, and 27 of the FNE Act, and a  
contravention of s 3 of the Regulations.  
[70] To support this assertion, the Applicants devote considerable energy and text to the issue  
of what is or is not the applicable “Band List” in this matter. The Respondents further muddy the  
waters by introducing the concept of an “affiliate”. Having reviewed the evidence and the  
submissions, I find as follows.  
Page: 35  
[71] The Indian Act defines a “Band List” as a list of persons that is maintained under s 8 by a  
band or in the Department. An “elector” is defined as a person who is registered on a Band List,  
is 18 years old and is not disqualified from voting at band elections. A “member of a band” is a  
person whose name appears on a Band List or who is entitled to have his name appear on a Band  
List. Section 8 of the Indian Act states that there “shall be maintained in accordance with this Act  
for each band a Band List in which shall be entered the name of every person who is a member  
of that band”. And, as discussed above, section 10 bands control their own membership based on  
their membership rules. Section 10(9) states that a band shall maintain its own Band List from  
the date on which a copy of the Band List is received from the Department.  
[72] The affidavit of Wilfred Iron, a CLCFN Councillor and respondent in this matter, states  
that since the 1987 Membership Code was effected there have been amendments to the Indian  
Act that have changed who is entitled to Indian status under that Act. He asserts that the 1987  
Membership Code is still in effect and, because of this, there are many people with Indian status  
who have ties to CLCFN but who are not considered to be “members”. He states that CLCFN  
allows non-members who are registered to CLCFN with Indigenous Services Canada [ISC] to  
access band administered programs and services “that would normally only be available to  
CLCFN members”. However, non-members are not entitled to vote or run for office.  
[73] Mr. Iron states that CLCFN accordingly maintains a “Membership List” which lists all  
community members who are “members” pursuant to the 1987 Membership Code as well as all  
community members (to whom Mr. Iron refers as affiliatesor non-members”) who are  
registered with ISC as being associated with CLCFN. Additionally, because political rights are  
Page: 36  
reserved to members, CLCFN also maintains a “Voter’s List” which lists all individuals 18 years  
of age or older who are “members” of CLCFN [Voter’s List]. Only those listed on the Voter’s  
List are entitled to run for office or vote in CLCFN elections. Mr. Iron attached a copy of the  
Membership List as an exhibit to his affidavit and states that a copy of the Voter’s List (for 2020)  
is attached as an exhibit to the affidavit of Craig McCallum.  
[74] In their submissions, the Respondents refer to all of the community members on the  
Membership List who are not “members” (pursuant to the 1987 Membership Code) as  
“affiliates”. This term is not found in the Indian Act, the 1987 Membership Code, or elsewhere.  
[75] In effect, and in other words, recognizing that the 1987 Membership Code is  
unconstitutional, CLCFM leadership developed a workaround being a two-tier membership  
status. Mr. Iron’s affidavit is silent as to when CLCFN began to permit non-members to access  
programs and services and when and how “affiliates” names were added to the Membership List.  
[76] Although the Applicants assert that the document described in the index of the CTR as  
the “Band Membership List” should be treated as a Band List as defined in the Indian Act, and  
for purposes of voter eligibility in the 2020 Election, that document is the same document  
described as the Membership List attached as an exhibit to the affidavit of Wilfred Iron. There is  
no evidence that CLCFN has ever maintained a distinct document entitled the “Band List” as  
required by the Indian Act. And, as the Applicants indicate in their submissions, when cross-  
examined on her affidavit Lisa Iron, who has been the CLCFN Membership Clerk since April  
2022, confirmed that no Band List is maintained.  
Page: 37  
[77] I do not agree with the Applicants that the Membership List should be treated as a “Band  
List” and that, because their names appear on the Membership List, that they are band members  
and electors. As I have found above, membership is determined by the 1987 Membership Code.  
The fact that “non-members” are listed on the Membership List does not in and of itself make  
them “members”. To be members they would have to meet the membership criteria of that Code.  
[78] The Applicants also assert that because none of the persons giving evidence for the  
Respondents could provide personal knowledge as to the Band List and the information given to  
Mr. Gordon Alger, the Electoral Officer for the 2020 Election, an adverse inference should be  
drawn that the Membership List is a Band List as set out in s 8 of the Indian Act.  
[79] More specifically, the Applicants submit that Ms. Opikokew was the Membership Clerk  
in the lead up to the 2020 Election and, as such, she maintained the Membership List and  
gathered the information necessary for the Electoral Officer to compile the 2020 Election voter’s  
list as required by s 3 of the Regulations. The Respondents knew that Ms. Opikokew intended to  
retire but they failed to obtain affidavit evidence from her prior to her retirement. The Applicants  
assert that they had no control over Ms. Opikokew and have been hampered by intimidation and  
summary dismissals of their supporters. Accordingly, as a key witness under the sole control of  
the Respondents whose retirement occurred “in circumstances that are clearly suspicious” the  
Applicants submit that the Respondents had an obligation to put forward Ms. Opikokew’s  
evidence, failing which this Court should draw the adverse inference that her evidence would  
have been that the Membership List (the document described in the index of the CTR as the  
“Band Membership List”) was the “Band List” (pursuant to s 8 of the Indian Act) for CLCFN  
Page: 38  
during the 2020 Election. Further, that a Voter’s List that Ms. Opikokew generated after the  
November 6, 2020 meeting with the Elders (based on the 2016 Membership Code) should be  
considered to be a voter’s list required by s 3 of the Regulations.  
[80] I my view, there is no merit to these assertions.  
[81] First, the alleged evidence of intimidation stems from the affidavit of Lloyd Yew. He  
states that after he made a donation to Mr. McCallum’s effort to fund this litigation he attended a  
meeting of the Economic Development Board, of which he was a board member. At the meeting,  
Councillor Wilfred Iron expressed anger about the donation and said that as the Council had  
appointed Mr. Yew to the board it was unacceptable that he was assisting the litigation against  
Council. Mr. Yew states that he resigned his position as a board member and that he “felt used  
and pressed to resign, and believe this was an attempt to intimidate me for supporting the  
Applicants”.  
[82] I am not persuaded that Mr. Yew’s resignation in these circumstances supports that the  
Applicants have been “hampered by intimidation and summary dismissals of the supporters” as  
they submit. They also do not explain how they were hampered. Nor is there any evidence  
supporting that Ms. Opikokew’s retirement was “clearly suspicious” in light of Mr. Yew’s  
resignation, or otherwise. I also do not see a connection between the incident described by Mr.  
Yew and the Respondents’ failure to tender evidence from Ms. Opikokew.  
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[83] I am also not persuaded that the Respondents had exclusive control over Ms. Opikokew.  
Nor do the Applicants submit any evidence demonstrating that they attempted to obtain evidence  
from Ms. Opikokew who they describe as a key witness and that she refused their efforts.  
Further, as the Respondents point out, it was open to the Applicants to name the Electoral Officer  
as a respondent in this matter or to otherwise seek his evidence concerning the compiling of the  
2020 Election voters list pursuant to s 3 of the Regulations.  
[84] In any event, even if Ms. Opikokew did prepare a voter’s list revised to reflect the 2016  
Membership Code criteria following the meeting with the Elders, given that I have found that  
that Code had not been ratified by a double majority, and was therefore of no effect, her evidence  
on this point would not establish that that list should be considered the 2020 Election voter’s list  
under s 3 of the Regulations.  
[85] As to the specifics of the Applicants’ allegations of contraventions of the FNE Act and  
Regulations, while I agree that CLCFN Chief and Council did not comply with the Indian Act as  
they failed to keep a Band List identifying electors (instead utilizing what was referred to as a  
Voter’s List), this in and of itself is not a contravention of the FNE Act. And, in any event, the  
maintaining of a Band List developed pursuant to the 1987 Membership Code would not have  
changed who was eligible to vote in the 2020 Election and, therefore, would not affect the  
outcome of that election.  
[86] The Applicants allege that Sections 9 and 15 of the FNE Act were contravened. However,  
these sections state that only an elector of a participating First Nation is eligible to be nominated  
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as a candidate for the position of Chief or councillor of, or to vote in an election held by, that  
First Nation. The Applicants have not alleged that any persons who ran for office or cast ballots  
in the 2020 Election were not electors. They have not established a contravention of these  
provisions.  
[87] Section 12(a) prohibits a person, in connection with an election, by intimidation or  
duress, from attempting to influence another person to nominate or refrain from nomination of a  
particular candidate; accepting or declining a nomination; or, withdrawing as a candidate. In this  
matter, there is no evidence that the Applicants were dissuaded from voting due to intimidation  
or duress. They were not permitted to vote because they were not on the voters list prepared by  
the Electoral Officer (which was based on the Voter’s List). The Applicants have not established  
a sufficient factual basis for this section to have application. Similarly, s 12(b) and (c) have not  
been shown to have any application to the facts of this matter.  
[88] Section 27 prohibits a person from intentionally obstructing the conduct of an election.  
The Applicants’ submission is, essentially, that because their names were not on a Band List that  
this amounts to intentionally obstructing the conduct of the 2020 Election. However, the election  
was not obstructed. Their complaint is concerned with eligibility to vote. No contravention of  
this section of the FNE Act has been established.  
[89] As to section 3 of the Regulations, this pertains to the preparation of a voter’s list by an  
electoral officer in advance of an election. Specifically, pursuant to s 3(1)(a), at least 65 days  
before an election the First Nation must provide the electoral officer with the information set out  
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in s 3(2). That is, the names of all electors and each elector’s band membership or Register  
number, or if the elector does not have either of those umbers, then their date of birth. The  
electoral officer must then compile a voter’s list containing that information.  
[90] I agree with the Applicants that the Respondents’ evidence does not address how the  
Voters List for the 2020 Election was prepared by Ms. Opikokew.  
[91] For example, Mr. Wilfred Iron’s affidavit is silent about who draws up the Voter’s List  
and when cross-examined on his affidavit he deposed that he was not directly involved in the  
process of Ms. Opikokew getting membership information to Gordon Alger, the Electoral  
Officer for the 2020 Election, in order for him to compile the 2020 Election voter’s list pursuant  
to the Regulations. Chief Iron’s affidavit is silent about voter’s lists. On cross-examination, he  
deposed that he had no idea who prepared the Voter’s List, he thought it was done in  
consultation with the membership clerk, which was Ms. Opikokew for the 2020 Election, and  
ISC. He stated that the Voter’s List was not made by Gordon Alger, the Electoral Officer for the  
2016 Election. Chief Iron later deposed that the Voter’s List was not drawn up in consultation  
with ISC, that the only person who had access to the information was Ms. Opikokew and, she  
created the Voter’s List. When asked if he had directed Ms. Opikokew to use the Voter’s List  
prepared based on the 1987 Membership Code after Chief Iron’s received the legal opinion  
indicating that the 2016 Membership Code had not been properly ratified, he stated that he did  
not direct her to do anything. When asked how Ms. Opikokew knew whether to prepare the  
Voters List based on the 1987 Membership Code or the 2016 Membership Code, he stated that  
he could not speak for Ms. Opikokew and suggested that she had acted prematurely in advising  
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members after the meeting with the Elders that the 2016 Membership Code would determine  
who would be placed on the Voters List.  
[92] Given that is not contested that Chief Iron directed Ms. Opikokew to remove her  
Facebook post indicating that the Voter’s List had been updated to reflect the 2016 Membership  
Code it is reasonable to believe that there were communications between him as Chief and Ms.  
Opikokew, as the Membership Clerk, concerning which of the membership codes was to be  
considered as having application for purposes of the 2020 Election.  
[93] However, nothing turns on this. As I have found above, the 1987 Membership Code was  
in effect at the time of the 2020 Election. This is dispositive. Only “electors” as defined in the  
FNE Act are entitled to vote (s 15 of the FNE Act) or be a candidate (s 9 of the FNE Act) in  
elections under that Act. A person must be registered on a Band List in order to be an elector. In  
this matter, there was no Band List, only a Membership List and a Voter’s List. The Voter’s List  
included all of the community members who are “members” pursuant to the membership criteria  
set out in the 1987 Membership Code and were 18 years of age or older. That information was  
provided to the Electoral Officer who, based on same, generated a voter’s list for the 2020  
Election pursuant to s 3 of the Regulations.  
[94] The Applicants’ argument is premised on their view that the Membership List should be  
considered as a Band List and, because their names are on the Membership List, they are electors  
and their names should have been given to the Electoral Officer for purposes of generating the s  
3 voter’s list. For the reasons I have set out above, this reasoning cannot succeed as the 1987  
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Membership Code was not repealed and, pursuant to the 1987 Membership Code, the Applicants  
(other than Nyden Ironnighttraveller) were not eligible for membership and were therefore not  
electors in the 2020 Election.  
[95] In these circumstances, the Applicants have not established that there was a contravention  
of s 3 of the Regulations that is likely to have affected the result of the 2020 Election.  
Accordingly, as the requirements of s 31 of the FNE Act have not been met, I will not exercise  
my discretion, pursuant to s 35, to set aside the election.  
Issue 3: If the 1987 Membership Code remains in force, is it constitutional?  
Applicants’ position  
[96] The Applicants submit that the 1987 Membership Code is unconstitutional on the basis  
that it unlawfully discriminates on the basis of sex or an analogous ground contrary to s 15 and  
28 of the Charter, and s 35(4) of the Constitution Act, 1983. The Applicants filed a Notice of  
Constitutional Question, however, this is limited to the assertion that the 1987 Membership Code  
discriminates on the basis of sex, violates s 15 of the Charter and is not justified under s 1 of the  
Charter.  
[97] In their written submissions the Applicants provide a historical review to demonstrate  
that provisions contained in the version of the Indian Act in effect in 1987 have been found by  
the courts to violate s 15 of the Charter in the context of registration as an Indian in the Indian  
Register. As a result of these decisions, Parliament took steps to address this sex-based  
Page: 44  
discrimination though a series of amendments to the Indian Act. The Applicants submit that the  
1987 Membership Code largely adopts the impugned provisions of the Indian Act and, therefore,  
they are unconstitutional on the same basis (referencing McIvor, Descheneaux , Corbiere v  
Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 [Corbiere] and other  
jurisprudence).  
[98] The Applicants submit that the 1987 Membership Code widens the existing gap between  
the Applicants (who were already discriminated against by the Indian Act) and those who are  
entitled to membership under the 1987 Membership Code (who were unaffected by the  
discriminatory denial of status) and reinforces, perpetuates and exacerbates the historical  
discrimination and disadvantages to which the Applicants have been subjected to. The  
Applicants submit that this constitutes discrimination on the basis of sex contrary to s 15 of the  
Charter, which is not justified under s 1 of the Charter. The Applicants submit that the  
Respondents appear to accept that the 1987 Membership Code is discriminatory and needs to be  
changed. However, they submit that this has been a longstanding issue and the efforts currently  
being made to address the discrimination are insufficient.  
Respondents’ position  
[99] The Respondents acknowledge that the 1987 Membership Code essentially freezes in  
place the status provisions of the Indian Act as they existed in 1987 and that these provisions  
have since been deemed unconstitutional. The Respondents submit that they have attempted to  
remedy the issues with the 1987 Membership Code by way of the 2016 Referendum and by the  
extending all membership rights, excepting “political rights”, to individuals affiliated with  
Page: 45  
CLCFN but who are not members under the 1987 Membership Code. Further, that CLCFN is  
also in the process of holding another referendum with the hope of ratifying a new membership  
code.  
Analysis  
[100] Given the agreement of the parties on this issue, it is sufficient to say that I agree with  
them that the 1987 Membership Code discriminates against the Applicants and other CLCFN  
community members on the basis of sex, contrary to s 15 of the Charter.  
[101] Section 7 of the 1987 Membership Code freezes in place eligibility for membership as it  
was at the time immediately prior to the 1987 Membership code coming into force. At that time,  
entitlement to be on the CLCFN Band List was based on the criteria in s 6 of the Indian Act. This  
includes the former ss 6(1)(a) and 6(1)(c) of the Indian Act, which disadvantaged the  
descendants of female ancestors with Indian status as compared to descendants of male ancestors  
with Indian status. As found in McIvor, those provisions were an “echo of historic  
discrimination” (McIvor at para 111).  
[102] For bands whose membership is managed by the Department of Indigenous Services  
pursuant to s 11 of the Indian Act, the legislative amendments in response to McIvor and  
Descheneaux have expanded eligibility for Indian status, and therefore for band membership.  
However, for the CLCFN under the 1987 Membership Code, persons who have become eligible  
for Indian status due to these legislative changes remain ineligible for membership in CLCFN  
because their ancestors were not eligible for membership immediately prior to the 1987  
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Membership Code coming into force. This ‘echo’ of ss 6(1)(a) and 6(1)(c) is a prima facie  
infringement of the rights to equality protected by s 15 of the Charter. And, as in McIvor and  
Descheneaux, the infringement of the Applicants’ rights under s 15 is not justified pursuant to s 1  
of the Charter.  
[103] Although the Applicants made a general allegation that the 1987 Membership Code  
infringes s 28 of the Charter (granting Charter rights and freedoms equally to male and female  
persons) and s 35(4) of the Constitution Act, 1982 (guaranteeing the Aboriginal and Treaty rights  
in s 35(1) equally to male and female persons), they have not in any way particularized or  
elaborated upon this or provided any supporting evidentiary basis. Accordingly, I find it  
unnecessary to engage with this allegation.  
Issue 4: If the 1987 Membership Code is unconstitutional, what is the appropriate remedy?  
Applicants’ position  
[104] The Applicants submit that the traditional remedy for a law found to be unconstitutional  
is that it will be declared of no force and effect pursuant to s 52(1) of the Constitution Act, 1982.  
While courts commonly suspend a declaration of invalidity to give governments time to address  
the unconstitutionality where the declaration would create a gap in the law, that approach is  
unacceptable and inappropriate in these circumstances. The Applicants submit that the  
declaration of invalidity should take effect immediately, as the discriminatory impacts of the  
1987 Membership Code have been well known within CLCFN for over a decade and remain  
unaddressed. And, while there are current efforts underway to enact a new membership code,  
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ratification is a lengthy process and the ability to meet a majority requirement is not guaranteed,  
especially in light of voter apathy. The Applicants submit that the individuals with a  
constitutional entitlement to membership in CLCFN are already known, as they are reflected in  
the Indian Register maintained by ISC, and they should not be denied this entitlement while  
efforts possible repeated efforts are made to address this long standing problem.  
[105] The Applicants also submit that, in addition to a declaration of invalidity pursuant to s  
52(1) of the Constitution Act, 1982, the Court has the ability to effect an appropriate, just and  
novel remedy pursuant to s 24(1) of the Charter. The Applicants submit that such a remedy is  
necessary to achieve justice and provide a responsive remedy in these circumstances. They  
propose that this Court order that CLCFN return control of its Band List to ISC, which would  
mean that membership would be determined by ISC pursuant to s 11 of the Indian Act until such  
time as a constitutionally compliant membership code is passed by CLCFN. Alternatively, the  
Court could order that CLCFN is prohibited from removing any person currently on the Band  
List (Membership List) who holds a constitutional entitlement to membership and order that  
anyone who can demonstrate such an entitlement to be added to the list.  
Respondents’ position  
[106] The Respondents submit that it is not necessary to overturn the results of the 2020  
Election, nor would this be appropriate in these circumstances. Rather, the issue for this Court is  
what remedy is appropriate given the unconstitutionality of the 1987 Membership Code. The  
Respondents submit that this Court has previously suspended declarations that First Nations’  
customary laws are invalid to allow the First Nation to effect its own process to address the  
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constitutionally problem prior to the next election (for example Clifton v Hartley Bay Indian  
Band, 2005 FC 1030 [Clifton] and Thompson v Leg’a:mel First Nation, 2007 FC 707  
[Thompson]). The Respondents submit that First Nations should be allowed to fashion solutions  
to legislative issues in keeping with their own laws and traditions (referencing Awashish v  
Conseil des Atikamekw d’Opitciwan, 2019 FC 1131 and Linklater v Thunderchild First Nation,  
2020 FC 899 [Linklater]). The Respondents submit that any declaration of invalidity should be  
suspended for a period of one year to allow a referendum to take place to replace the 1987  
Membership Code with a new code drafted with the input of CLCFN community members and  
in keeping with CLCFN’s laws and traditions.  
Analysis  
[107] The affidavit evidence of Wilfred Iron is that on April 21, 2021, Council established a  
committee to review the 1987 Membership Code so that another referendum can be held to ratify  
a new membership code. He deposes that a draft code has been generated and community  
information sessions were scheduled for January 2022 with a new ratification vote to occur in  
June 2022. However, the Court was not provided with an update subsequent to Mr. Iron’s  
December 2, 2021 affidavit and, as the Applicant points out, it is not a certainty that a new code  
will be ratified.  
[108] While this uncertainty mitigates against a lengthy deferral of the declaration of invalidity,  
I do not agree with the Applicants’ suggestion that the declaration of invalidity should take  
immediate effect. Among other things, this would bring into question the legitimacy of the  
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current Chief and Council – who were elected utilizing a voter’s list prepared pursuant to the  
1987 Membership Code in a circumstance where no new membership code has been effected.  
[109] I do agree with the Applicants that this issue is not a new one and that they should not be  
deprived of the possibility of full membership rights for a further, extended period of time.  
However, in my view, neither of the novel s 24 Charter remedies proposed by the Applicants are  
appropriate interim measures to fill the void if the 1987 Membership Code were declared invalid  
with immediate effect. Specifically, that the Court order CLCFN to return control of its Band  
List (Voter’s List) to ISC, the effect of which would be that membership would be determined by  
ISC pursuant to s 11 of the Indian Act. I note that s 13.2(1) states that a band may, at any time  
after assuming control of its Band List under s 10, decide to return control of its Band List to the  
Department if a majority of the electors of the band gives its consent to that decision.  
[110] To return control of band membership to ISC would be a very significant step which, in  
the normal course, is a question of governance to be determined by the members of the band.  
Given the reasonable option of a deferred declaration of invalidity, I see no justifiable basis upon  
which the Court should consider such a drastic ingress into the affairs of the CLCFN before first  
permitting the CLCFN the opportunity to resolve its own membership issues by effecting a new,  
constitutionally compliant membership code (see Linklater at para 34; Clark v Abegweit First  
Nation, 2019 FC 721 at para 77).  
[111] As to the second proposed novel remedy, it is not the role of this Court to assess which  
individual members of CLCFN hold a constitutional entitlement to membership or which have  
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demonstrated such an entitlement so as to determine who may or may not be placed on a Band  
List (Descheneaux at para 231). Aside from the obvious practical difficulties this approach  
would entail, it ignores the purpose of being a section 10 band, which is to permit the First  
Nation to control its own membership based on membership criteria that it adopts.  
[112] Accordingly, and although I have found that the 1987 Membership Code, which  
determines who are the electors that would be permitted to run for office and vote in that  
election, is unconstitutional as it breaches s 15 of the Charter and is not demonstrably justified as  
a reasonable and limit pursuant to section 1 of the Charter, in my view, the community will not  
be well served by this Court declaring the 1987 Membership Code immediately invalid. I agree  
with the Respondents that the best possible resolution of this matter is that CLCFN itself  
complete a new referendum process and enact a new, constitutionally valid, membership code.  
There is, of course, no guarantee that a second referendum will achieve the double majority  
needed for ratification and, as I indicted to the parties at the hearing of this matter, the  
discriminatory two-tier membership now in effect cannot continue for a further extended period  
of time.  
[113] I will declare the 1987 Membership Code to be invalid as contrary to section 15 of the  
Charter. I will suspend that declaration for 12 months from the date of this decision to permit  
CLCFN the opportunity to adopt a new constitutionally valid membership code by vote of the  
“majority of the electors of the band”, as that term is defined in Cardinal and Odanak). That is, a  
double majority.  
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[114] I will not set aside the 2020 Election. However, given that the election of the current  
Chief and Council was based on the unconstitutional 1987 Membership Code, I will order that a  
new election must be called following the adoption of, and utilizing, a new membership code.  
Further, and keeping in mind the principles set out in Doucet-Boudreau v Nova Scotia (Minister  
of Education), 2003 SCC 63 at paras 55-59 when issuing a remedy under s 24(1) of the Charter,  
I will also order that if at the end of the 12-month suspension of the declaration of invalidity a  
new constitutionally compliant membership code has not been validly ratified, then, as of that  
date, CLCFN shall to deemed to have returned control of its Band Listto ISC until such time  
as a new constitutionally compliant membership code has been validly ratified. The effect of this  
would be that CLCFN band membership would then be determined by ISC pursuant to s 11 of  
the Indian Act. In that event, I will also order that a new election must be called following the  
return of control of the band list to ISC.  
Costs  
[115] In their written submissions, the Applicants seek costs on a solicitor-client basis in any  
event of the cause. They submit that the within proceeding is a complex public interest case that  
seeks to correct serious significant electoral and band membership issues and which engages  
constitutional issues and discrimination affecting hundreds of members of the CLCFN  
community, thus warranting solicitor-client costs (citing Whalen v Fort McMurray No 468 First  
Nation, 2019 FC 1119 [Whalen]). The Applicants submit that they had to fund this litigation  
through personal resources and community donations and that their financial contributors “were  
subject to summary dismissal from their positions by the Respondents as a result”. They submit  
that such reprehensible conduct can warrant justify an award of solicitor client costs (citing  
Page: 52  
Balfour v Norway House Cree Nations, 2006 FC 616 at para 21-22). Conversely, that the  
Respondents had the full benefit and support of CLCFN’s financial resources to fund their  
position to the litigation (citing Knebush v Maygard, 2014 FC 1247 [Knebush] at paras 59-61;  
Cowessess First Nation No 73 v Pelletier, 2017 FC 859 at para 24).  
[116] The Respondentswritten submissions request that the Applicantsapplication for  
judicial review and election appeal be dismissed with costs to the successful party.  
[117] When the parties appeared before me I directed that they attempt to reach agreement on  
an agreed lump sum. Failing that, they were to submit bills of costs and brief submissions on  
costs. These submissions have now been received.  
[118] The Applicants have provided a bill of costs based on Tariff B Column III with total  
fees and disbursements amounting to $22,991.86. They have also filed an affidavit of Craig  
McCallum sworn on May 27, 2022. This deposes that their counsel, MLT Akins LLP, has issued  
four invoices totalling $33,207.70, copies of which are attached as exhibits. Further, that  
$71,252.50 in additional legal fees have been accrued; a pre-bill to that effect is also attached as  
an exhibit. Mr. McCallum states that to date he has paid his counsel’s invoices through  
community fundraising which raised $28,205.00, direct donations and, from his own funds. The  
remaining fees have not been invoiced as Mr. McCallum does not have the financial resources to  
pay them.  
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[119] The Applicants continue to seek costs on a solicitor-client basis in the amount of  
$101,460.20 or, alternatively, in an elevated lump sum of $70,000.00, relying on their prior  
written submissions. They acknowledge that solicitor-client costs are rarely granted and are  
typically only granted where a party’s conduct was “reprehensible, scandalous or outrageous” or  
the litigation was brought in the public interest (Whalen at para 13, 16). They submit, however,  
that applying the factors set out in Whalen to the facts of this case, solicitor-client costs are  
warranted.  
[120] The Respondents have provided a bill of costs based on Colum III of Tariff B listing fees  
in the amount of $11,520.00 and disbursements in the amount of $1627.45. They also list their  
actual fees in the amount of $46,862.00. The Respondents submit that there is a trend of  
awarding costs on a lump sum basis which approach is useful where the Tariff calculated fees do  
not serve the objective of making a reasonable contribution to the costs of litigation (referencing  
Nova Chemicals Corporation v Dow Chemical Company, 2017 FCA 27 [Nova Chemicals] at  
para 17). They submit that their Tariff B costs are approximately 25% of their actual fees and  
that costs should be awarded to the successful party pursuant to the Tariff.  
[121] The Respondents submit that they have not engaged in any wrongful conduct during the  
course of the proceedings that would support an award of costs on a solicitor-client basis. And  
while cases providing clarity to the application of First Nation’s laws are important to good  
governance, this does not necessarily rise to the level of widespread societal impact that would  
support the awarding of costs on a solicitor-client basis. Further, should success be divided, then  
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the proper course of action to address any perceived imbalance in resources is to decline to  
award costs against the Applicants and have each party bear its own respective costs.  
Analysis  
[122] Pursuant to Rule 400 (1) of the Federal Courts Rules (SOR/98-106), the Court has full  
discretionary power over the amount and allocation of costs and the determination of by whom  
they are to be paid. In exercising that discretion the Court may consider the factors set out in  
Rule 400(3) which include: the result of the proceeding; the importance and complexity of the  
issues; whether the public interest in having the proceeding litigated justifies a particular award  
of costs; any conduct of a party that tended to shorten or unnecessarily lengthen the duration of  
the proceeding; and, any other matter that the Court considers relevant. The Court may fix all or  
part of any costs by reference to Tariff B and may award a lump sum in lieu of, or in addition to,  
any assessed costs (Rule 400(4)).  
[123] With respect to the awarding of solicitor-client costs, the general rule has been stated by  
the Supreme Court of Canada to be that solicitor-client costs are awarded only on very rare  
occasions, for example when a party has displayed reprehensible, scandalous or outrageous  
conduct, or, where reasons of public interest may justify the making of such an order (Mackin v  
New Brunswick (Minister of Finance), [2002] 1 SCR 405 [Mackin] at para 86; Quebec (Attorney  
General) v Lacombe 2010 SCC 38 at para 67)).  
[124] On the first basis, the Applicants acknowledge that there was no misconduct by the  
Respondents within the litigation itself that would warrant solicitor-client costs. They submit,  
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however, that pre-litigation conduct can be a relevant factor in that regard, (referencing Knebush  
at paras 39-40). They submit that the confrontation of Lloyd Yew over his financial support to  
Craig McCallum is relevant pre-litigation misconduct as this would have the effect of  
discouraging financial contributions meant to equalize the playing field for Craig McCallum as a  
public interest litigant. The Applicants assert that the Respondents are using their positions as the  
government to maintain their systemic financial advantage by “starvingthe Applicants of  
funding.  
[125] I note that solicitor-client costs were not awarded in Knebush. Rather, in that case Justice  
Mandamin referred to Roseau River Anishinabe First Nation v. Nelson, 2013 FC 180 [Nelson] at  
paras 71-76 [Roseau River] but found that the conduct in Roseau River was much more serious  
than in the matter before him. In Roseau River, Justice Russell described egregious conduct  
which included a deliberate plan to thwart the legitimate decisions of the band council. Justice  
Russell concluded that the evidence established reprehensible, scandalous and outrageous  
conduct and that, in those circumstances, there was also a strong public interest component for  
solicitor-client costs in that case.  
[126] I make no finding on whether or not pre-litigation conduct as opposed to conduct  
connected to the litigation can ground an award of solicitor-client costs. However, even if it  
can, I am not persuaded that the single incident relied upon by the Applicants in this matter  
would warrant this. Mr. Yew resigned from his position and there is no evidence that any other  
CLCFN community members were dissuaded from contributing to fundraising as a result of that  
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incident which involved one Council member, Mr. Wilfred Iron. This is not a situation of  
egregious conduct as was the case in Roseau River.  
[127] With respect to solicitor-client costs in public interest litigation, the Supreme Court of  
Canada in Carter v Canada (Attorney General), 2015 SCC 5, found that s 24(b) and s 14 of  
the Criminal Code unjustifiably infringed s. 7 of the Charter and were of no force or effect to the  
extent that they prohibited physician-assisted death for a competent adult person in stated  
circumstances. The Supreme Court awarded special costs on a full indemnity basis against  
Canada. In considering special costs, the Court held:  
[136] The appellants argue that special costs, while exceptional,  
are appropriate in a case such as this, where the litigation raises a  
constitutional issue of high public interest, is beyond the plaintiffs’  
means, and was not conducted in an abusive or vexatious  
manner. Without such awards, they argue, plaintiffs will not be  
able to bring vital issues of importance to all Canadians before the  
courts, to the detriment of justice and other affected Canadians.  
[137] Against this, we must weigh the caution that “[c]ourts  
should not seek on their own to bring an alternative and extensive  
legal aid system into being”: Little Sisters Book and Art  
Emporium v. Canada (Commissioner of Customs and Revenue),  
2007 SCC 2, [2007] 1 S.C.R. 38, at para. 44. With this concern in  
mind, we are of the view that Adams sets the threshold for an  
award of special costs too low. This Court has previously  
emphasized that special costs are only available in “exceptional”  
circumstances: Finney v. Barreau du Québec, 2004 SCC 36,  
[2004] 2 S.C.R. 17, at para. 48. The test set out in Adams would  
permit an award of special costs in cases that do not fit that  
description. Almost all constitutional litigation concerns “matters  
of public importance”. Further, the criterion that asks whether the  
unsuccessful party has a superior capacity to bear the cost of the  
proceedings will always favour an award against the  
government. Without more, special costs awards may become  
routine in public interest litigation.  
[138] Some reference to this Court’s jurisprudence on advance  
costs may be helpful in refining the criteria for special costs on a  
full indemnity basis. This Court set the test for an award of  
Page: 57  
advance costs in British Columbia (Minister of Forests) v.  
Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R.  
371. LeBel J. identified three criteria necessary to justify that  
departure from the usual rule of costs:  
1.  
The party seeking interim costs genuinely  
cannot afford to pay for the litigation, and no other  
realistic option exists for bringing the issues to trial  
in short, the litigation would be unable to  
proceed if the order were not made.  
2.  
The claim to be adjudicated is prima  
facie meritorious; that is, the claim is at least of  
sufficient merit that it is contrary to the interests of  
justice for the opportunity to pursue the case to be  
forfeited just because the litigant lacks financial  
means.  
3.  
The issues raised transcend the individual  
interests of the particular litigant, are of public  
importance, and have not been resolved in previous  
cases. [para. 40]  
[139] The Court elaborated on this test in Little Sisters,  
emphasizing that issues of public importance will not in  
themselves “automatically entitle a litigant to preferential  
treatment with respect to costs” (para. 35). The standard is a high  
one: only “rare and exceptional” cases will warrant such treatment  
(para. 38).  
[140] In our view, with appropriate modifications, this test serves  
as a useful guide to the exercise of a judge’s discretion on a motion  
for special costs in a case involving public interest litigants. First,  
the case must involve matters of public interest that are truly  
exceptional. It is not enough that the issues raised have not  
previously been resolved or that they transcend the individual  
interests of the successful litigant: they must also have a  
significant and widespread societal impact. Second, in addition to  
showing that they have no personal, proprietary or pecuniary  
interest in the litigation that would justify the proceedings on  
economic grounds, the plaintiffs must show that it would not have  
been possible to effectively pursue the litigation in question with  
private funding. In those rare cases, it will be contrary to the  
interests of justice to ask the individual litigants (or, more likely,  
pro bono counsel) to bear the majority of the financial burden  
associated with pursuing the claim.  
Page: 58  
[141] Where these criteria are met, a court will have the  
discretion to depart from the usual rule on costs and award special  
costs.  
[128] In the matter before me, the Applicants submit that they are public interest litigants  
advancing matters of substantial public importance to the general community and the  
membership of CLCFN. While I agree that the constitutional issue the Applicants raise is very  
important to the CLCFN community, as stated in Carter, almost all constitutional litigation  
concerns “matters of public importance”. This in and of itself is not sufficient to warrant  
solicitor-client costs. Rather, the issues raised must involve matters of public interest that are  
truly exceptional they must have a significant and widespread societal impact (Carter at paras  
139-140). I am not persuaded that this litigation has a significant and widespread societal impact.  
The issues raised by the Applicants are specific to the 1987 Membership Code and the CLCFN,  
and largely focus on the 2016 Referendum and the subsequent conduct of the 2020 Election,  
which circumstances and events are unique to CLCFN. In my view, this is not a “rare and  
exceptional” case warranting solicitor-client costs.  
[129] I do agree that this is a circumstance where there is an imbalance between the resources  
at the disposal of the parties and that this is, at its heart, a governance dispute. However, while  
this is a relevant factor, alone it does not warrant costs on a solicitor-client basis (Whalen at paras  
21, 25, 27).  
[130] In conclusion, I am not persuaded that this matter warrants an award of costs on a  
solicitor-client basis.  
Page: 59  
[131] The outcome in this matter was mixed. While the Applicants did not succeed in their  
application for judicial review, this was because the Respondents reasonably relied on a legal  
interpretation of the 1987 Membership Code that a double majority was needed in order for the  
2016 Referendum ratification vote to pass, with the effect that the 1987 Membership Code  
remained in force. The Applicant’s FNE Act application did not succeed. However, the  
Applicantschallenge to the constitutionality of the 1987 Membership Code did succeed which  
is a very significant outcome for them and many other CLCFN “non-members”. Indeed, the  
Respondents conceded the Applicants’ position on the unconstitutionality of the 1987  
Membership Code.  
[132] I observe in passing that I find it striking that the validity of the 2016 Referendum  
apparently did not arise until the lead up to the 2020 Election. In his affidavit, Chief Iron states  
that “[t]here had been some confusion on Council and amongst CLCFN’s membership after the  
Referendum as to whether the vote to adopt the 2016 Membership Code had passed. As such, at  
the November 6, 2020 meeting I told community members that I would review the issue and  
report back to the community about whether the 2016 Membership Code should be used. Chief  
Iron does not state what the confusion was, when it arose or who was confused. Chief Iron’s  
evidence when cross-examined on his affidavit was that after the 2016 Ratification vote no  
questions were raised about whether it had properly passed. He then deposed that “Nothing came  
up at all about the 2016 Referendum. And then we we had an election in December, and we  
carried on with the same election rules as before, and nobody brought it up till this election”.  
Chief Iron was not asked and did not explain why the 1987 Membership Code had been used to  
determine membership and voting rights for the 2016 Election if every one, including him,  
Page: 60  
believed the 2016 Referendum had passed. It also seems unlikely that the Membership Clerk,  
Ms. Opikokew would, of her own accord, have decided to use the 1987 Membership Code in  
developing the voter’s list for the 2016 Election, particularly if she believed that the 2016  
Referendum had passed. Yet there is also no evidence in the record indicating that any CLCFN  
members raised any concerns about this. Nor is there any explanation in the record of why, after  
sending people into the field to sign up band members based on the 2016 Membership Code, that  
effort was apparently abandoned as there is no evidence that, as a result of that effort, new  
members were added to the voter’s list.  
[133] In any event, the evidence is clear that at some point Chief and Council were alive to the  
unconstitutionality of the 1987 Membership Code. As a work around, “non-members” were  
added to the Membership List to afford them funding, housing and other benefits but not the  
right to vote or run for office. The 2016 Referendum was held, but the 2016 Membership Code  
was not used in the 2016 Election to determine membership. The matter came to a head in the  
lead up to the 2020 Election and it was only after the Applicants commenced this litigation on  
January 15, 2021 that a committee was struck, on April 21, 2021, to attempt to effect a new  
membership code. As noted above, the Respondents also conceded in this litigation that the 1987  
Membership Code was unconstitutional.  
[134] In these circumstances, in my view, the Applicants are entitled to their costs.  
[135] In Whalen, as in this case, the applicant sought costs on a solicitor-client basis or, in the  
alternative, lump sum costs or a cost award on an elevated scale. There, Justice Grammond  
Page: 61  
restated the general purposes and principles underlying cost awards as well as the circumstances  
in which solicitor-client costs award may be warranted and ultimately concluded that an award of  
costs according to the Tariff would be insufficient and that a lump sum on an elevated basis was  
warranted. Lump sums must not be “plucked from thin air”, and have been found to fall within a  
range of 25-50% of the actual legal costs of the successful party (Nova Chemicals at paras 15,  
17; Whalen at para 33).  
[136] In my view, a similar approach is appropriate in this matter and I award a lump sum of  
40% of the Applicantsactual costs, for an award in the amount of $40,584.08.  
Page: 62  
JUDGMENT IN T-126-21  
THIS COURT’S JUDGMENT is that  
1. The application for judicial review of the decision of CLCFN Chief and Council to  
utilize the 1987 Membership Code for purposes of the 2020 Election, rather than the  
2016 Membership Code, is dismissed;  
2. The Applicants’ application brought pursuant to s 31 of the First Nations Election  
Act, contesting the election of Chief and Council and seeking to have the election  
held on December 16 2020 set aside, is dismissed;  
3. The 1987 Election Code is constitutionally non-compliant and is declared invalid;  
4. The declaration of invalidity is suspended until 12 months from the date of this  
decision, being June 29, 2023;  
5. The December 16, 2020 election will not be set aside. However:  
i.  
if the CLCFN has ratified a new membership code on or before June  
29, 2023, then, on or before the day that is 3 months from the date of  
ratification of the new membership code, a new election will be held.  
CLCFN membership for the purposes of that new election shall be  
determined by the new membership code;  
ii.  
if the CLCFN has not ratified a new membership code on or before  
June 29, 2023 then Chief and Council shall, on that date, give notice in  
writing to the Minister that the CLCFN no longer has a membership  
Page: 63  
code and, therefore, no longer meets the criteria of s 10(1) of the  
Indian Act. Control of CLCFN’s Band List shall be deemed to have  
been returned to the Department of Indigenous Services upon the  
giving of that notice. Also on June 29 2023, a new election will be  
called by Chief and Council to be held within three months of that  
date. CLCFN membership for the purposes of that election shall be  
determined pursuant to s 11 of the Indian Act and the Band List  
maintained in the Department of Indigenous Services; and  
6. The Applicants will have their costs paid by the Respondents in the all inclusive lump  
sum amount of $40,584.08.  
"Cecily Y. Strickland"  
Judge  
FEDERAL COURT  
SOLICITORS OF RECORD  
T-126-21  
DOCKET:  
CRAIG MCCALLUM, LAURA BIRD, JESSICA IRON  
as litigation guardian for JESSE IRON, LLOYD YEW,  
NYDEN IRONNIGHTTRAVELLER and RONIN IRON  
v CANOE LAKE CREE FIRST NATION, CHIEF  
FRANCIS IRON, WALTER COULINEUR, BERNICE  
IRON, LENNY IRON, LORNE IRON, WILFRED  
IRON, AND ROBERT OPIKOKEW  
STYLE OF CAUSE:  
BY VIDEOCONFERENCE USING ZOOM  
MAY 19, 2022  
PLACE OF HEARING:  
DATE OF HEARING:  
JUDGMENT AND REASONS:  
DATED:  
STRICKLAND J.  
JUNE 29, 2022  
APPEARANCES:  
Michael W. Marschal  
Sonia Eggerman  
FOR THE APPLICANTS  
FOR THE RESPONDENTS  
Nikita B. Rathwell  
SOLICITORS OF RECORD:  
MLT Aikins LLP  
Regina, Saskatchewan  
FOR THE APPLICANTS  
FOR THE RESPONDENTS  
McKercher LLP  
Saskatoon, Saskatchewan  


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