A complex legal appeal that has the potential to unseat half of the Penticton Indian Band council is now in the hands of a federal judge who must decide the seemingly simple issue of whether or not the appeal documents were properly delivered.
If the judge decides they were, then an appeal will proceed to try to overturn the results of the 2017 byelection that filled five of eight seats on council and may once again call into question the legitimacy of the elected body.
The plaintiff is PIB member Jacqueline McPherson, who’s represented by Penticton lawyer Erik Lund.
“The bottom line is that we believe that the people of the PIB have the right to determine for themselves whether the… byelection was conducted in a fair and procedurally correct manner,” Lund wrote in an email.
“If the court grants my client’s application then I expect that this is exactly what will happen. At that point it will be up to the voters of the PIB to determine whether a new election is justified.”
Lund also noted McPherson is a representative plaintiff for “numerous” PIB members who are well aware of the gravity of what they’re doing.
“My client and the group that she represents have prosecuted an application for judicial review through the Federal Court process at both great expense and personal time commitment,” said Lund.
“They have paid for the litigation out of their own pockets. They have taken time from work and their personal lives to participate in the case. This has included drafting affidavits and subjecting themselves to rigorous cross-examination on those affidavits by defence counsel.”
Court documents obtained by The Herald recount how nine people ran in the byelection, which was prompted by a wave of resignations following the December 2016 election.
For the byelection, band council took the unusual step of firing its long-time electoral officer Valerie Baptiste and hiring an independent, third-party electoral officer, ostensibly to eliminate any appearance of bias.
The position was filled by Julia Buck, who works as in-house legal counsel for the Westbank First Nation.
Although hired by the PIB, Buck’s position of electoral officer was to be completely separate from her regular job in Westbank.
PIB members went to the polls Nov. 22, 2017, and elected Kyle Windwalker Alec, Frederick Kruger, Ernest Jack, Joan Philip and Inez Pierre.
Deadline to appeal
According to the band’s custom election code, any PIB voter has a right to appeal an election result to the electoral officer within 30 days by lodging the complaint by registered mail.
On Dec. 20, 2017, the appeal was delivered by registered mail to Buck at both the PIB office and the Westbank First Nation office. McPherson also had the appeal delivered by a bailiff to the PIB office the next day.
Buck then emailed McPherson on Dec. 22, 2017, to say the appeal had not been officially received and therefore would not proceed. After refusing to reconsider, McPherson requested a judicial review of Buck’s decision on Jan. 30, 2018.
The sole issue to be decided in the review, which was heard by Federal Court Justice Glennys L. McVeigh on July 3 in Vancouver, is whether or not Buck was properly served with the appeal.
McPherson claims she followed the past practice of using the PIB office to reach the electoral officer and took the additional measure of sending the documents to Buck at her Westbank office.
Buck, however, contends that because her duties as electoral officer were independent of both the PIB and Westbank First Nation, the appeal ought to have been sent to a post office box she rented in Penticton specifically for the byelection.
McPherson claims the existence of the post office box was never publicized, except as a return address on envelopes containing mail-in ballots. Buck, however, insists her phone number and email address were publicized and McPherson ought to have contacted her to find out where the appeal should have gone.
Additionally, McPherson claims that Buck, as a practising lawyer, was required to list the post office box with the Law Society of B.C., but never did. Buck claims she wasn’t acting as a lawyer while serving as electoral officer and therefore wasn’t required to list the address.
While the issue at hand seems relatively straightforward, the judge reserved her decision.
“As a general rule, I would expect the timeline (for a decision) to be measured in months rather than weeks, but there is no way for us to know until the judgment is released,” said Lund.
Basis of appeal
The band’s custom election code states a voter can appeal an election result on three grounds: the election was corrupt, the election code was violated or an ineligible candidate was allowed to run.
McPherson’s appeal covers all three, starting with the hiring of Buck.
She claims council, acting without the five members required for a quorum, unilaterally fired former electoral officer Valerie Baptiste, who had been duly elected by members to serve through 2020.
Buck was ineligible for the job anyway, says McPherson, because the custom election code permits the electoral officer to cast a vote in the event of a tie, but because Buck is not a member of the PIB nor an Indigenous person, she couldn’t legally vote in a PIB election.
McPherson’s complaints spiral outwards from there, including allegations the nomination meeting was conducted improperly, some ballots were sent out with candidates not listed alphabetically and that proper measures weren’t taken to locate off-reserve members, all of which runs contrary to the custom election code.
The PIB hasn’t yet responded to the allegations in the appeal and declined comment for this story. Its lawyer, Kelowna-based Lindsay Nillson, didn’t respond to a request for comment.
The merits of the appeal, if it’s allowed to proceed, will be decided by PIB members.
The custom election code requires the appeal package be sent by the electoral officer to each of the nine candidates who ran in the byelection.
If the nine can’t unanimously agree that the byelection result was valid, McPherson may then file a motion of non-confidence signed by 15 eligible voters, triggering a general band meeting to resolve the issue.
If the majority of voters at the meeting wants a new byelection, then the electoral officer must call one.
A byelection is already pending to fill the seat of Alec, who resigned, but it’s believed council is awaiting the result of McPherson’s appeal before deciding its next move. The next scheduled elections for chief and council are in late 2020.
Underlying the appeal is the issue of whether or not band council had a quorum required to legitimately make decisions.
For years, each band council resolution included a note at the top stating a quorum consists of five council members. After the wave of resignations in 2017, there were just three councillors and the chief left.
When some band members began questioning council’s legitimacy, council on Sept. 20, 2017, published a legal opinion it obtained that determined a quorum exists if the chief and a majority of “available” councillors are present at a meeting, regardless of how many of them are actually there.
Included in McPherson’s appeal package, however, is an unrelated affidavit signed by Chief Chad Eneas on Sept. 21, 2017, that states quorum consists of five members.
Duty to proceed
McPherson’s appeal touches on many simmering issues and has the potential to disrupt band business. However, she and her supporters believe they’re obligated to follow through with it.
“The integrity of the election process in a free and democratic society is of the utmost importance. This is particularly true for the PIB given the recent difficulties and acrimony that have arisen,” said Lund.
“Just how seriously my client and her supporters take this matter is shown by what they have done to attempt to vindicate the rights of all electors of the Penticton Indian Band.”