Courchene v. Sagkeeng First Nation

Judicial review - Voting - Customary practice - Discretion - Band council decision-making

The Federal Court of Canada released a decision on October 16, 2014 in Courchene v. Sagkeeng First Nation, upholding a decision by the Chief and Council of the Sagkeeng First Nation to hold a second vote by its membership on the Sagkeeng 2014 Hydro Accord Law.

At the initial membership vote, the Hydro Accord Law was defeated 265 to 120 by a show of hands.  The applicants argue that it was unreasonable for the Chief and Council to arrange for a second vote on this matter because it would offend Sagkeeng First Nation's Process Law, which embodies the First Nation's customary practices.

The Chief and Council submit that the decision to schedule a second vote was based on a number of concerns, namely that there was not enough consultation with the community before the first vote; a number of people at the consultation meetings interfered with the presentations about the Hydro Accord Law; only a relatively small fraction of the First Nation participated in the vote; and the vote was cast by a show of hands. By arranging a second vote, the Chief and Council argue they could encourage a larger voter turnout and conduct better educational sessions with the First Nation about the Hydro Accord Law.

The Court dismissed the application for judicial review and agreed with the Chief and Council that it was appropriate to arrange for a second vote. In doing so, the Court noted that the Process Law provides only general procedures and principles of the First Nation's customs and, in absence of precise and comprehensive details, discretion will fall to the Chief and Council to make reasonable decisions.