Federal Court Motion Won by Elders Council of Barriere Lake
Barriere Lake in focus ⬿

Federal Court Motion Won by Elders Council of Barriere Lake

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John Ahni Schertow
January 19, 2009
 

Earlier this month, a Federal Court Judge ruled in favour of the Barriere Lake Algonquins, calling into question Indian and Northern Affairs (INAC) 2008 decision to replace the First Nation’s traditionally-elected Chief and Council with a ‘minority faction.’

The leadership dispute is still far from over, however the ruling outlines a set of points that affirm Barriere Lake’s standing list of Demands.

Please see the press release below for more information.

Federal Court Motion Won by Elders Council of Barriere Lake: Minister Interfered in Internal Affairs

On March 25 2008, the Elders Council of Barriere Lake filed a judicial review (JR) application of INAC’s decision to recognize Casey Ratt’s dissident faction over customary chief Benjamin Nottaway and his council (Wawatie et al v Indian and Northern Affairs Canada). At the time, the Minister had received applications from two different groups claiming to form the legitimate government of Barriere Lake. Why had Ratt’s council been recognized over Benjamin Nottaway’s?

The INAC Minister brought a motion to dismiss the case for JR in the Federal Court, claiming that no “decision” had been taken; it was simply a mechanical act that had led the Minister’s office to process one application over the other. In late August of 2008, the case was heard before a Prothonotary (the principal clerk of a court), who decided in favour of the Crown. The Elders requested that their council appeal the Prothonotary’s decision.

The appeal was heard on November 24 2008 in a Toronto court room, with several supporters in attendance. Last week we learned that Judge Zinn overturned the decision of the Prothonotary, and according to their council, affirming three crucial principles:

  1. The Court has recognized that the Minister is accountable for his actions and not immune from review.
  2. The Mitchikanibikok Anishnabe Onakinakewin (Algonquins of Barriere Lake Customary Governance Code) is a constitutionally protected Aboriginal right that triggers a duty for the government to consult with Barriere Lake when a decision by the Minister could potentially adversely affect these rights.
  3. The Court affirmed that in a First Nations community like ABL, the Minister has no authority to determine the legality of the government, which is to be determined by the customary code of the community. In this sense, all decisions made by the Ratt council – if determined by the judicial review to have been wrongfully recognized as the legitimate governing party – may be null and void. This means that any efforts the dissident council has made to undermine the Trilateral and other agreements may be taken to be invalid.

It goes without saying that this is excellent news. The Elders Council’s legal representatives, David Nahwegahbow and Nicole Richmond, are commended for their hard work and impressive summations for the Court of a complicated case.

Please see the attached document for Mr. Justice Zinn’s reasoning in the case: January 6, 2009 – Reasons for Order and Order (pdf)

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