GULL BAY FIRST NATION, Ont. — If Chief Wilfred King gets his way, members of Gull Bay First Nation who challenged a Council decision to postpone the 2020 election because of COVID-19 will have to pay significant court costs.
King says the lawsuit was ill-advised and a waste of money.
But in a court filing, a lawyer for the applicants suggests that Gull Bay's leadership is now "trying to settle some type of score" with them "for simply having made the mistake of challenging the Chief and Council and for seeking to have their democratic rights vindicated."
Gull Bay First Nation is located 200 km north of Thunder Bay, on the western shore of Lake Nipigon.
About 300 members live on-reserve, while 1,100 reside off-reserve.
Gull Bay's election is held every four years.
One was due to take place Nov. 27, 2020.
However, in April 2020 – at the onset of the COVID-19 pandemic – the federal government introduced regulations that allowed First Nations to postpone elections and extend terms of office if "necessary to prevent, mitigate or control the spread of diseases" on reserves.
The Gull Bay council initially postponed that First Nation's election until May 2021, but ultimately delayed it a further six months.
A councillor and a former councillor, supported by the Band Members Alliance and Advocacy Association of Canada, applied in March 2021 to the Federal Court of Canada to set aside the decision to delay the election, and to declare that the term of the existing Council had already expired.
The application outlined several different grounds, including that it was unreasonable, it was made in a procedurally unfair manner, and that community members were never told why the election couldn't be held with mail-in balloting if necessary.
But the allegations remain unproven, as the court never made a decision.
The process came to a halt when the applicants filed a motion to discontinue the matter.
Chief King, in a statement, called the lawsuit "pointless" and said the applicants are now trying to use the court to escape responsibility for the costs the Council incurred responding to the suit.
The Band Members Alliance and Advocacy Association of Canada was formed in 2019 by Rob Louie, an Indigenous man and former criminal defence lawyer now living in Alberta.
The non-profit BMAAAC was established to help First Nation people who can't afford legal fees when disputing the actions of Chiefs and Councils.
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"It's a David and Goliath situation, because the Chief and Council have the money or the resources, and the band doesn't," Louie said in a Trail Times story last year.
BMAAAC was also an intervenor in a challenge to an election postponement in a First Nation in Northwest Territory.
The appellant in that case won a court decision last April that said the federal government had no power to allow his First Nation to override its customary law, which doesn't permit elections to be postponed.
"We moved forward on that premise," Louie told TBNewswatch. But "what happened was that the federal government turned around and created new law around it."
That legislation validating election postponement regulations took effect at the end of June.
Louie said "So we thought there was no point in going ahead with this. This would have been a complete waste of money and resources for both sides...It was over."
Gull Bay First Nation argues that it should be compensated for the expenses that it did incur.
It's seeking $25,000, representing about one third of what it has cited as its actual costs through the entire process.
Noting that the law firm working for applicants BMAAAC, Brian King and Rod Wigwas has done so on a pro bono basis, King said they are now "asking the court to excuse them from paying costs for the litigation that they are now abandoning."
The money the First Nation spent, King said, was "effectively wasted because of this poorly advised lawsuit."
He added that "The financial burden on Gull Bay First Nation was increased by baseless allegations of misconduct being made by the applicants, which have also now been abandoned."
The applicants submit that each side in the case should bear its own costs.
Their lawyer alleges in his filing that Gull Bay's leadership chose to incur expenses that were not necessary under the circumstances.
"Their materials demonstrate what happens when one party has seemingly unlimited access to band funds for their legal fees and therefore does not hesitate to submit a 500-page motion record to address a discontinued proceeding."
He adds that the case illustrates why individual band members are at a significant disadvantage "when advancing their basic rights against their First Nation."
The court has not yet made a decision regarding costs.
Gull Bay's election is now scheduled to take place on Nov. 20, 2021.
