Indigenous laws and decision-makers reviewing the valid exercise of Indigenous legal traditions are entitled to deference.
A recent judicial review of election results under the Dene Tha’ First Nation custom election code finds that courts should give deference to Indigenous laws and decision-makers when reviewing Indigenous laws enacted as part of the power of self-governance.
In Pastion v. Dene Tha’ First Nation, 2018 FC 648, Justice Grammond of the Federal Court, citing Woodward’s own Alan Hanna, found that the Canadian courts have an overall tendency to deny and suppress Indigenous law, especially in the area of community governance (see Alan Hanna, “Spaces for Sharing: Searching for Indigenous Law on the Canadian Legal Landscape” (2018) 51 UBC L Rev 105). Yet, “Indigenous legal traditions are among Canada’s legal traditions,” Grammond J noted. “They form part of the law of the land.”
The Pastion decision provides important guidance to courts and other decision-makers about the high level of deference that should be given to Indigenous laws when reviewing the valid exercise of Indigenous legal traditions.
Pastion was an appeal of a recent Dene Tha’ First Nation custom election for Chief. After the votes had been tallied, the incumbent Chief Joe Pastion disputed the results on the basis that the third-place candidate was ineligible and his inclusion on the ballot had detrimentally affected the result. The first-place candidate had unseated Mr. Pastion by 29 votes. The third-place candidate, Mr. Didzena, who was not ordinarily resident on a Dene Tha’ reserve, received 44 votes.
The Nation’s Election Appeal Board rejected Mr. Pastion’s complaint on two grounds: first, the challenge did not follow the procedure set out in the Election Regulations; second, the Regulations did not require an eligible candidate to be ordinarily resident on reserve. The Board stated in its reasons that no infraction of the Regulations had occurred and, further, that any alleged infraction “did not significantly alter the results of the election.” Mr. Pastion sought judicial review of the Board’s decision, relying on the so-called “magic number test” to argue that the number of votes cast for an allegedly ineligible candidate exceeded the difference in votes between the winner and runner-up.
At trial, the parties did not agree about what the Board decided. Mr. Pastion argued the Board’s statement that the alleged infraction had not impacted the results was proof that the Board had considered the candidate ineligible. The Respondent Nation, in contrast, said the Board found Mr. Didzena eligible and its reasoning with respect to whether the result was significantly affected was simply an alternative argument that justified the Board’s dismissal of Mr. Pastion’s appeal.
At the Federal Court, Grammond J upheld the Board’s decision and endorsed deference to Indigenous decisionmakers applying Indigenous laws. Because Indigenous decisionmakers are sensitive to Indigenous experience generally and to the conditions of the particular nation or community involved in a decision, Grammond J reasoned, they are particularly well-placed to understand the purposes that Indigenous laws pursue.
The enactment of Indigenous election legislation, such as the Election Regulations at issue in this case, is an exercise of self-government. The application of laws is a component of self-government. It is desirable that laws be applied by the same people who made them. Therefore, where Indigenous laws ascribe jurisdiction to an Indigenous decision-maker, deference towards that decision-maker is a consequence of the principle of self-government.
[Pastion v. Dene Tha’ First Nation, 2018 FC 648, para 23]
Justice Grammond upheld the Board’s decision on a standard of reasonableness and reinforced the need to defer to Indigenous decisionmakers, especially Elders, as they are “obviously in a better position than non-Indigenous courts to understand Indigenous legal traditions.” Citing the Supreme Court of Canada’s [SCC] decision in Opitz v Wrzesnewskyj, 2012 SCC 55,  3 SCR 76 [Opitz], Justice Grammond remarked that the annulment of an election is an extraordinary remedy that disenfranchises, in a sense, the whole population entitled to vote.
The status of the magic number test
The “magic number” test is a simple concept. However, it inherently favours the challenger because it depends on the assumption that all rejected votes were cast for the successful candidate. In reality, this is almost impossible to prove.
Grammond J confirmed that the “magic number” test is no longer mandatory after Opitz. Although the SCC applied the magic number test in that case, they remarked on its shortcomings and left open the possibility that another, more realistic method for assessing contested election applications might be adopted by a court in a future case. Developing on that point, Justice Grammond suggested that expert evidence be adduced in similar cases to show the statistical probability of a different outcome on the basis of reasonable assumptions.