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Salt River dispute heads to Federal Court Judge grants extension of 30-day time limit to three ousted councillors, but chief appeals
Paul Bickford
Northern News Services
Published Monday, September 30, 2013
THEBACHA/FORT SMITH
A dispute at Fort Smith's Salt River First Nation has landed in court.
Three councillors ousted at a special meeting of electors on April 29 - Judith Gale, Joline Beaver and Connie Benwell - have filed an application for judicial review with the Federal Court of Canada, naming Chief Frieda Martselos as the respondent.
"Our claim is that we were unjustly ousted," said Gale.
As stated in court documents, the ousted councillors argue there is sufficient evidence to suggest there were reviewable errors in their ousting.
"Questions of jurisdiction, breaches of natural justice and procedural fairness are at issue in relation to the actions and conduct of the respondent," states the documents.
They are also asking the court to find that a May 13 membership meeting was legally called by the ousted councillors and had a quorum, and properly voted to oust Martselos as chief.
However, the court proceeding may be stopped in its tracks because of an appeal by Martselos and her lawyers.
The application for judicial review was only accepted by the federal court after a judge granted an extension of the 30-day time period in which to submit such an application.
Martselos and her lawyers have appealed that decision to the Federal Court of Appeal.
"We're just waiting for a trial date for the appeal," said Cynthia Westaway, the Ottawa lawyer for the three ousted councillors. Westaway is taking on the case free of charge.
Martselos did not return a call seeking comment on the court case.
However, in court documents, she and her lawyers state the application by the ousted councillors was filed on July 26, meaning it was about 60 days past the 30-day limit under the Federal Courts Act.
"No extension of time should be granted permitting the applicants' proposed application to judicially review the electors' April 29, 2013, decisions," the documents state. "The application is without merit."
They say the ousted councillors did not offer a reasonable explanation for the delay.
The documents also state that, as chief, Martselos had the authority under Salt River's custom election regulations to call the April 29 meeting of electors at which the three councillors were removed by a membership vote, and had sufficient grounds to do so.
Contrary to the applicants' claim, Martselos' lawyers wrote there is no evidence she exercises unilateral authority or acts improperly.
Martselos and her lawyers dismiss the May 13 meeting, saying it was not called in accordance with the band's custom election regulations.
When contacted by News/North, one of Martselos' lawyer, David Rolf of Edmonton, declined to comment because the matter is before the courts.
Westaway explained the request for an extension was approved for a number of reasons. The three ousted councillors first turned to the Department of Aboriginal Affairs and Northern Development Canada to see if it could offer any help in the dispute and that took some weeks, she said.
"When the government told them finally that they were not going to be of any help because it was a custom election band, they knew that they would then have to try to pursue a legal option and they had to find a lawyer."
The three councillors were ousted just a few weeks after Martselos became chief for the second time on April 2.
Gale said Martselos infringed on the three ousted councillors' constitutional rights by not giving them the benefit of natural justice.
"She had ousted us and didn't even give us a chance to defend ourselves with a lawyer or even our own representation," Gale said, while also claiming the chief has autocratic ways and is not transparent concerning band affairs.
"We still consider ourselves legitimate councillors of Salt River First Nation and we do have quite a few people that do still consider us for that position, as well," Gale added.
She said she and the other ousted councillors had tried to remedy the situation through an amicable
dialogue with Martselos, but the chief refused.
Westaway believes the application for a judicial appeal will be successful.
"I think that the Federal Court places a strong emphasis on fairness, procedure and notice, and grounds for removal are really a key part of the judicial review process, so I am confident in this case," the lawyer said.
Westaway said the three removed councillors had been democratically elected.
"So they find that to be ousted without proper notice, without a proper process, and, in their view unfairly, is a violation of the democratic process. They were elected, and they should be reinstated and fulfilling their roles."
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