Henry v Roseau River Anishinabe First Nation

The RRAFN became self-governing in 1991 and established two governing bodies for this purpose: in addition to having one elected chief and four elected councillors, they also have a custom council made up of representatives chosen by each RRAFN family. The custom council had previously removed elected chiefs and councillors three times since 2003, with the Federal Court ruling on the propriety of each past removal, each time finding in favour of the custom council's power to do so.

In this case, the respondent custom council argued they had the power to carry out the removal pursuant to sections 14 and 15 of the RRAFN’s Election Act. However, the applicants disagreed and accordingly asked the Court to quash the custom council’s decision and declare the July by-election null and void.

In determining the authority of the custom council, the Court briefly considered the customary procedure of the RRAFN. Evidence put forth by the applicants suggested that the custom council could remove chief and councillors from office if customary procedure was followed. On this evidence the applicants argued that the custom council did not adhere to customary procedure. The Court, however, noted that it was not prepared to declare that RRAFN customary procedure existed because there was no evidence indicating it had ever been used; the applicants’ description of customary procedure looked incomplete; and the custom council did not endorse this procedure to make the removal.

The Court considered whether there was a proper quorum for the custom council’s removal meeting. Due to a two-month delay in disclosing the meeting minutes and in the absence of a meeting motion, the Court made the inference that the custom council did not have the requisite number of eligible members present at the removal vote. The Court made further note that the custom council did not give the applicants written notice of its updated and specific concerns; did not give the applicants notice that their removal was being put to a vote; and did not allow the applicants reasonable time to address the custom council’s concerns.

In considering whether the custom council had the authority to remove the applicants, the Court examined relevant provisions of the Election Act and found that, although s. 14 establishes a power to remove, it is a power conferred on all members of the RRAFN and not on the custom council alone. In the Court's view, for a removal to be valid under s. 14 of the Election Act it would require a referendum or other vote open to the entire membership of RRAFN. Accordingly, the Court held that the custom council did not have the authority to remove the applicants from office. In doing so, the Court declined to follow three previous Federal Court decisions that upheld the custom council's removal of past elected chief and councillors; the Court distinguished the source of legal authority for the removal upheld in the first of these cases and refused to follow the other two decisions as the custom council's authority under s. 14 had not been argued in either case.