Federal Court contemplates ‘caretaker Council’

The Federal Court will soon issue a judgment on an injunctive relief motion after a hearing was held Tuesday to consider the status of the incumbent Council following the surprise cancellation of the August 2 election, which plunged the community into an ongoing governance crisis.

While the fallout from the decision by chief electoral officer Graeme Drew to cancel the election at the last minute has been marked by bitter division, the positions of the Mohawk Council of Kanesatake (MCK) - represented by law firm Dionne Schulze - overlapped considerably with those of the only respondent who filed a responding motion record, Amanda Simon, even as that submission castigated the Council and questioned its motives.

MCK’s motion requested a declaration that the five incumbent chiefs - Amy Beauvais, John Canatonquin, Denise David, Brant Etienne, and Serge Otsi Simon - remain in office for the duration of the proceedings, but limited to simple administrative powers, with the Federal Court retaining the authority to decide what constitutes simple administration in the event of disagreement. The incumbent MCK chiefs would also be ordered to be given access to Council resources, such as their email addresses and offices.

Amanda Simon’s submission expressed that she would be amenable to a “caretaker Council” with limited administrative powers on the condition that it be ordered to restart the electoral process.

“My goal was really to have an election as soon as possible as it’s in everybody’s interest,” said Amanda’s lawyer, Vincent Carney, in an interview with The Eastern Door.

“I think democratic rights are time sensitive. I’ve given it some thought, and that’s why I think it’s urgent that (Kanehsata’kehró:non) be given their right to choose a new Council. The last Council, they had their chance. They have made their legislative initiatives, they were rejected. Their mandate expired.”

He said he felt a recognition of the incumbent MCK chiefs as a caretaker Council would be sensible and would be supported by established case law.

“My hope is only that the court goes one step further and ... orders them to proceed with an election,” he said. Carney argued in court that the Custom Electoral Code dictates that only Council is empowered to appoint a chief electoral officer, emphasizing in an interview with The Eastern Door that it is mandatory for Council to exercise its responsibility to do so.

“The power is vested uniquely with the Council,” he told the Court, casting the appointment as a statutory mechanism that would be within the purview of a caretaker government.

However, it is unclear how Justice Phuong T.V. Ngo might rule on this, given the reluctance she expressed in her questions at the hearing.

“I’m struggling with how this fits within a narrow mandate,” she said at one point, asking Carney to elaborate on his position that this act could be taken within an administrative capacity.

Incumbent chief Serge Otsi Simon told The Eastern Door he still wants to consult the community on whether a new election should be held immediately or following a revision of the code within six months, adding that he’s glad the status of the Council is finally going to be clarified by the Federal Court.

“For me, it’s a relief that it’s finally moving ahead,” he said. “I’m looking forward to another election under whatever the community chooses.”

Several respondents who were represented by lawyer John Pepper, Jr. - including former grand chief Victor Bonspille - did not have their positions heard by the court. His other clients are Valerie Bonspille, Shirley Bonspille, Derek Denis, Kahionhate Riley Denis, and Mary Nicholas.

Pepper had tried to file a late motion on their behalf, citing a flareup of gout for the delay, but this deviation from procedure was not accepted by justice Ngo, who was relying on the motions in her analysis of the case. He was therefore not allowed to weigh in on the substantive issues discussed on Tuesday.

Nicholas Dodd, representing the MCK for Dionne Schulze, had not consented to an exception for Pepper’s motion the day before. He cited the time that had passed since the MCK’s motion was filed and that no reason had been given for the request.

The Eastern Door contacted Pepper’s office so that he could elaborate on what he would have filed on behalf of his clients, but the call was not returned by deadline.

A contingent of community members, including at least some of the respondents represented by Pepper who were candidates in the cancelled election, have been holding meetings to initiate an election themselves, arguing that the true governance power in Kanesatake lies with them, a position they say is justified by Section 2.1 of the electoral code: “The participating majority of adult members are the final authority in all matters pertaining to all Kanehsata’kehró:non and their territory.”

According to one community member familiar with these meetings, a session on Saturday was attended by around 40 people, and a four-member “People’s Committee” has been tasked with looking into soliciting tenders.

In August, Indigenous Services Canada (ISC) seemed to look approvingly on the effort, with Nathalie Turgeon, ISC’s acting regional director general for Quebec, writing “ISC acknowledges the importance of this initiative and encourages the community to move forward in accordance with its customary governance practices.”

The group held a meeting with representatives of Annie Neashish, who was the electoral officer in 2021. However, Neashish was since named as a respondent in the Federal Court effort launched by the MCK, citing her engagement with the group.

The lawyers for the parties involved were asked to agree upon a timeline for an expedited hearing in relation to a judicial review application launched by the MCK, for which they were given a deadline of Tuesday, October 14. A judgment on the injunctive relief motion is not expected before then.

Ngo encouraged the parties to come to an agreement that might obviate the need for judicial review, which would consider further questions pertaining to the MCK’s legal action, such as a confirmation that the position of chief electoral officer is vacant.

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Marcus Bankuti, Local Journalism Initiative Reporter