Judge finds band council "undemocratic"

In a 37-page decision rendered Feb. 17 by Federal Court Justice Pierre Blais-the first of four applications for judicial review filed by band councillor Marcel Balfour to be decided-the actions of former Norway House Cree Nation chief Ron Evans and several of his councillors were harshly criticized.

Judge Blais ruled that Chief Evans engaged in "usurpation of power" and that a "sub-group" of councillors held numerous "secret meetings" and had engaged in "deplorable blackmail and influence peddling."

Other unusually critical phrases appeared in the court judgement. Blais wrote that Evans and his core supporters on council were guilty of "failure to respect representative democracy," engaged in "unauthorized activities" and acted in "bad faith" and had put "democracy at risk."

Evans, an ordained minister, resigned as chief of Norway House last August to become Grand Chief of the Assembly of Manitoba Chiefs, a position he still holds. Norway House is located about 850 km north of Winnipeg. The council administers more than $100 million of federal and other funds and assets each year.

"This ruling is a tremendous victory for the band members in Norway House whose democratic rights have been violated for so many years under the current leadership," said Balfour. "Chief Evans and councillors [Mike] Muswegon, [Eliza] Clark and [Langford] Saunders abused their power to try to prevent this case from ever going to trial, including by locking me out of council, ordering the theft of my computer and litigation files, taking away my salary, and trying to evict me from my home."

Balfour holds a law degree. He represented himself during the preliminary phases of his court action and then sought the assistance and advice of two other lawyers. He is an adoptee who moved back to the reserve as an adult and then became involved with members of the community who opposed the Evans administration. He argued in court documents that the inner circle around the chief sought to exclude him from council business and prevent him doing his job as a duly elected councillor. He received more votes for council than did any other candidate and said he plans to run for chief in the upcoming Norway House election.

"They did not succeed," said Balfour. "But I have yet to obtain any meaningful access as a councillor to the financial records involving hundreds of millions of dollars that are under the control of the respondents in this case."

The two lawyers who assisted Balfour were clearly delighted by the decision.

"This is an extraordinary case of ongoing abuse of power," said Jackie Esmonde, the Toronto lawyer who appeared in Federal Court for Balfour. "I feel that Judge Blais was shocked by them. Certainly the strong wording of the judgement speaks for itself."

Andrew Orkin is a human rights lawyer based in Hamilton, Ont. He has represented many First Nations in Canada and internationally. He assisted Balfour extensively over the two-year period before the case reached court.

"This is a very important human rights ruling, not just for the citizens of Norway House Cree Nation," said Orkin. "Violations of representative democracy and the rule of law cannot and must not be tolerated, in any order of government in Canada."

Blais found that a four-year contract offered by council to a defeated councillor after the last election was an attempt to subvert the democratic process. The judge came down hard on a practice he was persuaded was commonplace, the cancellation of most scheduled council meetings by Evans.

"Such action constitutes a usurpation of power... on the part of the chief," the judge wrote. "[This] scenario is contrary to the notion of democracy and is in violation of the fiduciary obligation the chief holds towards his band members and the promotion of their interests."

After Balfour published newsletters in which he was critical of actions by council, his salary and per diems were held back and he was stripped of his portfolios. Court documents show that council told him they would be reinstated if he promised to stop speaking out in public.

"This is a clear indication of influence peddling and blackmail directed towards the applicant. Such behavior is deplorable and has no place in democratic institutions, which the [Norway House] band council purports to be. The respondents clearly acted in bad faith, and have not justified their actions with any valid reasons."

Blais ordered that Balfour's allowances and portfolios be restored immediately, with back pay "notwithstanding any appeal."

Balfour was critical of the federal government for not intervening when he complained of the treatment he was receiving.

"The chief guilty party in all this, in my view, is also the department of Indian Affairs. Its officials are totally complicit in these kinds of goings-on wherever they occur across Canada," added Balfour. "I asked them long ago to take corrective action in Norway House, but they simply refused to do so, and so I was forced to go to court. They should have intervened long ago."

Three other applications brought by Marcel Balfour were heard in Federal Court on Feb. 20 and 21 before a different judge. Balfour was seeking orders ensuring him full access to band financial records and access to council meetings. He also asked for an order quashing the council decision to not hold a by-election after Evans resigned, as is required under the band's Election Procedures Act. Instead, councillor Fred Muskego was appointed acting chief when Evans left.

Andy Orkin made it plain he did not want this decision to be seen as an indication that all band councils have governance problems.

"I don't want this to be confused with the Bob Nault 'We've got to impose democracy on this corrupt segment of Canadian society.' The overwhelming majority of First Nations in Canada are democratically, accountably and uncorruptly governed," said Orkin, during a telephone interview on Feb. 21. "Certainly all of the clients I've had are trying to make things work under impossible circumstances and make an honest job of it. And a democratically accountable job of it."

This case was the exception to the rule, he said.

"But there are some profound exceptions and I think that one of the exceptions is Norway House, on the face of what this judge has said and on the fact of Marcel's allegations. Now, allegations are one thing but when judges start saying 'He's right,' it's another thing completely because you have an independent person evaluating those allegations," he said.

Grassroots activists have long complained that council meetings are called and held without the knowledge of those who might disagree or when or where they are unable to attend, as Orkin said was found in this case.

"There's another expression for that. It's called the usurpation of power-a term the judge used-by a cabal. Merely because someone's role is chief and he's got some cronies who are councillors and they can get a so-called majority together in a room when nobody else can attend and pretend that they are the council is a usurpation of power," he said. "Council meetings have to be called with notice, the public has to be notified, people have to know what the agenda is and what's going to be discussed. That is the very essence of democracy so that somebody like Marcel can be present, even if he gets over-ruled, so that he can see the books, review the documents, look at the financial records and write letters to the newspapers about what's happening."

Orkin said the band council members defended those actions by saying that they couldn't include Balfour in meetings because then "what band council was doing got out and they characterize that as dragging Norway House's name through the mud. Well, excuse me, that's not how democracy works. Democracy works when, if there are questionable or simply unwise things happening, it does get out. It must get out. And that's Marcel's approach to governance and that the judge seems to think he's right and I think he's right."

A call to lawyer Normand Boudreau, who represented Evans and his co-respondents in this action, was not returned. A source close to Evans said no comment would be made until after the appeals process is completed.