Updated: Nov 13, 2020
A judge in federal court has dismissed Shay Yellowbird’s application for a court injunction this Monday. Having been elected on July 28th to the Samson Cree Nation council (placing 5th of all candidates with 363 votes), Yellowbird was removed on August 10th whereafter a by-election was immediately announced and the ex-councilor was informed he could not run in it. The application would have had him remain in council until his judicial review was complete, if it had not been dismissed—although Yellowbird still intends to pursue the judicial review process, which will take several months. Yellowbird seeks to reclaim his position in order to highlight the “abuse of power and finances from Samson Cree against me as a youth, in addition to an unbiased…interpretation of the election bylaws.”
The judge felt that Yellowbird’s case did not pass the three-part test for a court injunction, which must meet the following criteria (of which Yellowbird offered his own retort):
Are serious issues raised?
Yellowbird’s lawyer contends that there was an absence of due process and abuse of authority by Samson Cree Nation, which indeed constitute “serious issues.” In addition to the fact that the election appeal board acted without authority, the applicant argued that the Samson Cree Nation abused their authority by pushing through a by election—and then subsequently an inauguration—when this case had not yet been resolved. Furthermore, the last councilor to file a judicial review in Samson (in 2005) was able to retain his seat until his judicial review was complete. The applicant argued that precedence is not being followed by the chief and council.
Will the applicant suffer irreparable harm?
Yellowbird’s lawyer argued that to have him removed him with an appeal board decision puts his reputation at risk, claiming he was solely doing his newly elected job as an essential service. To allow Samson Cree Nation and the appeal board to operate this way is a form of harm against one’s character.
Does the court injunction favour balance of convenience?
Yellowbird’s lawyer argued that the electoral rights of the Samson Cree Nation membership were not respected with the July 28, 2020 election results. As a result, the voter turnout was low for the by-election held on August 18, 2020. Per the applicant’s argument, the election appeal board failed to follow both the legal rules of transparency and procedural fairness, bringing into question the integrity of the whole appeals process. By not being transparent with respect to Yellowbird’s appeal, the applicant claims that the appeal board was not following certain sections of the Samson Cree Nation election law, and by imposing the conditions that he could not run in the by election constituted a tacit form of election rigging.
The applicant claimed that removing Yellowbird from his elected position went against Part 3 of the election law concerning the eligibility of candidates, whereby the removal of a sitting councilor requires a referendum as outlined in schedule D. The court thus needed to maintain the integrity of the election process and confirm the election results of July 28, 2020.
Yellowbird was removed on a minor technicality in the Samson Cree Nation election law section 4.1 which states:
“In order to facilitate their full participation in all elections, any employee who is nominated as a candidate for office in an election, and accepts that nomination, will be given a leave of absence without pay pending the final determination of that election.”
As Yellowbird was given less than 24 hours to prepare his defense for his appeal, and even then there was redacted information in the appeal documents, the applicant claimed that he never violated 4.1, arguing that he was not paid during his leave of absence, never went into the workplace, and was deemed an essential worker as outlined in the AHS guidelines. Samson Cree Nation adopted the AHS guidelines in March 2020 when COVID-19 restrictions came into place. As the Samson Cree Nation election law does not have any special provisions relating to extraordinary circumstances like a pandemic, the AHS guidelines, which Samson Cree Nation adopted, would take effect.
Yellowbird and his legal team claim that this was never a case of him “working,” but that he was a victim of a manipulated appeals process which did not care about being transparent and only sought his removal.
Yellowbird himself informed us that the chief’s cross-examination (which occurred September 18th) saw him testify that he was in touch with the appeal board technician to receive information related to any appeals that were filed, long before any of the appellants or Samson Cree Nation membership knew; undermining the law and being involved with the appeal process, Yellowbird argued, clearly constituted an abuse of due process. “[This is an abuse] of our Cree terms and beliefs; to exchange a vision of leadership based in a collective voice for one of sneaky actions. As Samson people, the Cree notion of tapwewin considers honesty a virtue among us.”
Yellowbird issued a statement on his Facebook page:
“The Indian Act protects chiefs and councils because they fall under the Indian Act system as ‘Indian agents.’ The Indian Act derives from the federal government, where Canada’s constitution and laws stand, where the federal courts uphold. Not only am I going up against chief & council, but I am going up against a system. A system that is designed to oppress our people and create oppressors.
I take the stance [that] I did nothing wrong and had every right to defend myself against an elitest [sic] abuse of power. This chief is utilizing nation funds against a nation member which is sad because I’m paying everything out of pocket for my lawyer while [he] has hired 3 to fight my case. This decision today may be a drawback, but it is not the final decision in my case. This is far from over—the truth will come out sooner than later. I remain steadfast to the cause and position for other young people behind me.”
Case data can be found in federal court file No. T-936-20.