By Marcus Bankuti, Local Journalism Initiative Reporter The Eastern Door
Following last week's Federal Court decision, which granted injunctive relief by designating the outgoing Mohawk Council of Kanesatake (MCK) chiefs as a caretaker council with a limited administrative mandate, the "quorum of five" returned to the office without incident on Monday.
"We're getting our footing back," said MCK incumbent chief Serge Otsi Simon, one of the five caretaker council chiefs alongside Amy Beauvais, John Canatonquin, Denise David, and Brant Etienne. "We're trying to consult with some of the people, some of the staff, what we missed, what's going on, explaining our positions."
The group's work will be to ensure that services to the community and projects already underway continue unimpeded by Kanesatake's governance turmoil, that the community's legal interests are protected, and to perform other administrative functions until the Federal Court can hear the application for judicial review launched by the MCK.
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"With respect to the balance of convenience, I find that maintaining the status quo that was in place in the community prior to the election being cancelled, until the underlying application can be judged on the merits, weighs in favour of granting the injunctive relief sought," wrote judge Phuong T.V. Ngo in the court's ruling.
Anything besides tending to matters of simple administration would be beyond the scope of the caretaker council's mandate.
"I know people are going to keep us on a short leash when it comes to what's a caretaker mode," Simon said. "We've got to be careful on what we deal with and how we deal with it. We don't want to aggravate the situation."
Any disagreement about whether an action conforms to this mandate would first be subject to discussion between parties involved in the Federal Court action, and if they cannot agree, they could seek a case management conference with the court.
In her decision, Ngo noted that the court has previously found that governance confusion can irreparably harm members of First Nations communities.
She also confirmed the judicial review application will be heard on an expedited basis.
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The election, which was cancelled by electoral officer Graeme Drew on August 1 the day before the vote, will not resume until the judicial review process has wrapped up next year.
Amanda Simon, a respondent in the case, had requested an expedited schedule and that the court require that the caretaker council launch a new election process right away. However, in her decision, Ngo wrote that she was not satisfied that appointing a new chief electoral officer could fall within the mandate of a merely administrative council.
"I'm disappointed because I don't think hiring an electoral officer is a big political move," said Vincent Carney, Amanda Simon's lawyer.
"Obviously, the key relief we were seeking was just to restart the election and have a caretaker council exercise its important powers, but the judge was being cautious and basically punted it to the merits, as we call those," he added.
"It is disappointing in a way because I think everybody wanted the election to restart, but since the process has been judicialized, we're kind of at the mercy of the court, and the court thought it was prudent to just defer it to final determination, basically."
He noted that the Kanesatake Custom Electoral Code requires that Council take steps to execute an election every four years, making it, in his view, essentially an administrative function.
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"It's understandable that the judge was cautious with regard to our advocation for restarting the election, to push it to the merits, but we wanted to take our chance. We took a gamble, and we thought we had a strong argument for it, but ultimately it didn't pan out," he said.
Carney credited his client Amanda Simon for pushing for an expedited schedule for the judicial review, however, leading to a timeline that he said could still see an election launched by April or perhaps sooner. He expects a hearing to take place in January or February.
That judicial review will settle a number of outstanding questions and set the stage for an election to finally take place.
In stating the relevant facts of the case, Ngo writes that an attempt by some community members to organize a new election is being conducted in a way not permitted by the Custom Electoral Code.
A responding record on behalf of a group of respondents - Victor Bonspille, Valerie Bonspille, Shirley Bonspille, Derek Denis, Kahionhate Denis, and Mary Nicholas - was not considered at the hearing on the injunctive relief motion because their lawyer, John T. Pepper, did not follow proper procedure for filing it, which he attributed to illness.
However, the respondents will still have the opportunity to participate in the expedited schedule pertaining to the application for judicial review.
Marcus Bankuti, Local Journalism Initiative Reporter
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