Judge orders new appeal hearing in contested Fond du Lac election

Appeal board improperly formed in 2017, Federal Court rules

A map showing Fond Du Lac's location in Northern Saskatchewan. Wikimedia Commons

An appeal into the 2017 election of chief of Fond du Lac Denesuline Nation must be re-heard, a federal judge has ruled.

The ruling, from Honourable Mr. Justice Favel, dated December 21, brings the case back to the days immediately following the 2017 vote, the election’s runner-up says.

Kevin Mercredi lost to Louis Mercredi in the September 15, 2017 election by a mere two votes.

However, Mercredi appealed the results on the basis that three of the polling clerks who were appointed to assist the chief electoral officer were selected after having already voted in the election. According to Fond du Lac’s election law, electoral officials, including polling clerks, may not participate in a elections as a candidate, nominator, seconder or voter.

The appeal was to be heard by an appeal board, which was supposed to have been set 45 days prior to election day. However, in 2017, that board was not set. The chief electoral officer later named five people to the board, but no band council resolution was passed for their appointment. A band council resolution is required under the election act.

That appeal board originally ruled in Kevin Mercredi’s favour, declaring the office of Chief vacant and calling a  by-election.

A week later, after being prompted by a letter from the Chief-elect’s legal counsel, they unanimously reversed the decision and dismissed the appeal, stating that “due to a time factor we feel that there are some issues that were overlooked and things were not followed through in the proper order.”

A little under a  month later, Kevin Mercredi requested judicial review of the appeal board’s second decision.

At the time, he called the board’s rejection of his appeal “mob rule.

“Just a show of hands should not deny me my rights as a candidate,” he said.

After hearing arguments from both Kevin Mercredi and Fond Du Lac, Justice Favel deemed that the appeal board had been formed improperly. He denied Kevin Mercredi’s request that the office of chief be vacated and a by-election called.

Instead, Favel ruled that a new appeal board be formed and the original appeal be heard again.

“The Court has acknowledged on several occasions that it would prefer to find the least intrusive manner in which to oversee election matters out of respect for the efforts the First Nation and its membership have taken to enact rules governing their election processes,” Favel wrote.

“A newly constituted Appeal Board will be in the best position to assess the merits of the Applicant’s appeal. Sending this matter back to a newly constituted Appeal Board also respects the intentions and aspirations of the community.”

Kevin Mercredi was pleased with Favel’s decision.

“This decision is giving authority back to the people, according to our election act,” he said.

“It’s putting us back on track to finish off the process, which was done improperly, to do it right. It puts us right back to the day after the election. Now they’ve got to follow the process of the election act.”

Kevin Mercredi said it’s up now to chief and council to ensure the entire community is properly informed as to what the plan is to move forward. He hasn’t heard yet from Fond du Lac, but knows that they are aware of Favel’s ruling.

He acknowledged that the ruling doesn’t necessarily mean the First Nation will be heading to a by-election, but said that if he does eventually become chief, there will be changes. He said he knows of many people in the community who are displeased and said that if things turn out differently, some deals and agreements may need to be reviewed.

“We’ll see how this all goes, how this plays out, navigating these legal waters,” he said.

“They’ve admitted it was improper. They should honourably respect the judge and the wishes of the membership. The onus is on the assumed chief and council to act accordingly.”

Several attempts to contact Fond Du Lac and Chief Louis Mercredi were unsuccessful. The community’s lawyer was not available for comment. A response from Fond du Lac will be published should one be made available.