A Federal Court of Canada judge has set aside the 2010 Natuashish band council election and ordered a new vote in the Labrador community.
"I find that the band's March 5, 2010, election was not conducted in accordance with the principles of natural justice," Justice Donald Rennie wrote in his decision, issued this week.
There were four aspects of the electoral process of "particular concern," according to the judge: the call of the election on short notice, contrary to the bylaw; the control of the ballot boxes following the vote; the number of spoiled ballots; and the failure to account for the number of ballots printed.
"I find that substantial problems pervaded this election," the judge wrote.
"It cannot be said that the principles of fairness and impartiality were respected in the election process."
A litany of problems with the 2010 election were identified in the judge's decision:
- The lack of a revised voters list meant dead band members may have been listed as eligible voters.
- Off-reserve voting in Happy Valley, Goose Bay and St. John's took place without scrutineers present, and non-residents may have participated in the election.
- Defective ballots meant that check boxes were not properly aligned with the candidates' names. That problem, the judge noted, contributed to a spoiled ballot rate of 13 per cent in the race for female councillor. The resulting margin of error could have seen five possible winners for the two positions.
- Questions were raised over the custody of the ballot box in the hour after the close of voting. The ballot box ended up neither in the custody of the returning officer nor the band manager, the judge wrote, but instead in the hands of the newly elected chief, Simeon Tshakapesh. At one point, the RCMP were called in, but declined to take control of the ballot box.
- The number of total ballots printed was never disclosed, despite requests.
Tshakapesh narrowly defeated the incumbent chief, Prote Poker, by 20 votes.
Poker was among those who filed the court action contesting the results.
New election ordered
The court ordered that the March 5, 2010, election results be set aside and a new election be called and conducted within three months.
That coincides with the timing of the next scheduled vote; according to customary band practices, band elections are held every two years.
The current band chief and councillors will remain in place until the new vote takes place.
Contacted by CBC News, Tshakapesh said he won't be commenting until he's been briefed by his lawyer.
Poker, meanwhile, said the 2010 election campaign had been kept short to reduce the opportunity for illicit shipments of alcohol being used to ply voters.
"We were trying to avoid alcohol’s influence on the vote," Poker told CBC News. "But as it turns out, I think, there was alcohol coming in; we couldn’t stop it. There was a lot of drinking going on during that election."
Poker said he plans to run again in the next election, stressing the importance of the continued prohibition on booze. "The alcohol ban saved lives in our community."
Booze ban controversy
The 2010 Natuashish election was controversial from the outset, largely turning into a referendum on the community's booze ban.
Soon after his victory, Tshakapesh ordered the RCMP in the community to stop enforcing liquor bylaws that came into effect in 2008. Poker, the previous chief, had championed the liquor ban.
A subsequent plebiscite ultimately saw Natuashish residents vote to keep the prohibition in effect.
In court documents, Poker alleged that alcohol was used to buy votes, and said the Mushuau Innu First Nation declined to investigate alleged corruption related the 2010 election.
While the judge acknowledged in his decision that "there is also evidence that alcohol was used by candidates on both sides, to influence the outcome," he made no findings with regard to the allegation.
The judge considered arguments that the incumbent chief Poker was involved with some of the decisions that precipitated the unfair election, and should be denied relief by the courts as a result. But Rennie rejected those claims.
"There is an overarching public interest in ensuring that band confidence in band elections is merited, as it strengthens band governance," the judge noted. "In consequence, given the importance of the electoral process, relief will not be withheld."