Federal court judge rules in favour of Acho Dene Koe First Nation member’s complaint about election delay
A federal court judge has ruled that the N.W.T. Acho Dene Koe First Nation chief and council overstepped their powers when they extended their term of office last year. The judgment could have ramifications for other First Nations whose elections were postponed or cancelled in light of the COVID-19 pandemic. The Acho Dene Koe First Nation government offices are in Fort Liard, N.W.T., where most of its 550 or so members also live. The First Nation is not governed by Indian Act regulations around the election of chief and council. Through a series of resolutions passed by the Acho Dene Koe First Nation between April 20 and Dec. 7, 2020, a regular election for chief and council scheduled for June 8, 2020 was postponed until April 14, 2021, and then later to April 21 after an outbreak of COVID-19 in the community of Fort Liard, N.W.T. Regulations authorized deferral, chief and council say Chief and council justified the deferral of the election — and the extension of their terms of office — by saying they were able to do so according to their own customs, and that they were authorized to do so under the First Nations Election Cancellation and Postponement Regulations which came into force on April 8, 2020. That temporary regulatory option under the Indian Act and the First Nations Election Act was introduced by the federal government to protect the health of First Nations communities during the pandemic. In a statement at the time, Minister of Indigenous Services Marc Miller said, “We have recommended that First Nations with upcoming elections not proceed with elections at this time, due to the current public health risks associated with large gatherings.” The regulations, Miller stated, allowed “First Nations leaders to continue exercising their roles and duties within their communities for up to six months, with a potential extension for an additional six months, as they focus on keeping their communities safe in the face of COVID-19.” Federal Court Justice Sébastien Grammond acknowledged in his April 1 ruling that those regulations allowed First Nations whose elections are governed by the Indian Act and the First Nations Elections act, to “cancel or postpone elections and to extend the term of their council” in light of the public health emergency. The council of Acho Dene Koe First Nation did not have the power to extend its own term of office. – Federal Court Justice Sébastien Grammond Section 4 of those regulations allow for a First Nation governed by its own custom election code, such as the Acho Dene Koe First Nation, to do the same “if it is necessary to prevent, mitigate or control the spread of diseases on its reserve, even if custom does not provide for such a situation.” Legal challenge claimed section of regulations invalid But on Oct. 22, 2020, Acho Dene Koe First Nation member and former chief Floyd Bertrand filed a legal challenge to chief and council’s decision to postpone the election, arguing, among other things, that the regulations outlined in Section 4 are invalid, and that Acho Dene Koe election customs do not allow chief and council to extend their terms, or to postpone an election. Justice Grammond agreed with Bertrand on both counts. “Acho Dene Koe’s customary law requires elections to take place every three years and does not authorize the council to extend its own term of office,” Grammond wrote. “The council of Acho Dene Koe First Nation did not have the power to extend its own term of office.” In reaching this conclusion, Grammond considered and rejected arguments made by the First Nation in support of its authority to extend terms of office. Among those arguments was the notion that under principles of self-government, the Acho Dene Koe were within their rights to be flexible on election customs. But Grammond wrote that “self-government does not translate into unlimited powers for First Nations councils.” “Rather, where First Nations have not enacted positivistic laws, self-government manifests itself through the broad consensus of the community.” Fort Liard, N.W.T., is the base for Acho Dene Koe First Nation.(Alex Brockman/CBC) Grammond cited the three-year term of the previous four elections in the community as evidence for a three-year term being the Acho Dene Koe custom. Grammond found no evidence of broad community support for the idea that council could extend its term of office without an election. “Any assertion of ‘flexibility’ or an open-ended power to extend the term of office must be tested against what we know of the community’s views…. Acho Dene Koe members expect to have the opportunity to choose their leaders at fixed intervals,” Grammond wrote. “For more than a decade, the interval has been three years.” Section 4 of regulations invalid: Justice After concluding Acho Dene Koe customs do not allow for council to extend its term of office, Grammond considered arguments around the notion that the First Nation was authorized under Section 4 of the First Nations Election Cancellation and Postponement Regulations to make the extension in light of the COVID-19 pandemic. After reviewing case law, Justice Grammond concluded that the federal cabinet overstepped its powers under the Indian Act when it enacted the regulations, and that Section 4 of the regulations — Elections According to Custom — is invalid, regardless of how well-intended the regulations or their application may be. Grammond wrote that despite the government’s intention to fight the pandemic by allowing First Nations to cancel or postpone elections, it did not have the right to do so under the Indian Act. Fixed or maximum terms of office are crucial components of democracy. – Federal Court Justice Sébastien Grammond “In a nutshell, the government is asking me to tolerate an invalid exercise of power because it was done for a good reason,” Grammond wrote. “This is simply incompatible with the rule of law, which requires that every exercise of state power find its source in legal rule … Going down that road would involve courts in giving their blessing, after the fact, to unlawful government action based on its desirability from a policy perspective.” By ruling Section 4 invalid, Justice Grammond did not have to consider other objections raised by Bertrand regarding the application of the regulations in Fort Liard. In his judgment, Grammond noted that “for members of the many First Nations who have chosen to select their leaders by democratic means, the ability to vote is a fundamental interest…. Fixed or maximum terms of office are crucial components of democracy.” In his decision, Grammond ruled that with elections in Fort Liard among Acho Dene Koe members expected shortly, there was no need to quash the original decision to extend the term of council’s office. Other First Nation members may have been deprived of right to vote Grammond wrote that, despite the close proximity of the election to his ruling, which could be understood to render the need for a ruling moot, he took on the case for its other merits. First, Grammond wrote that the case would “clarify important issues with respect to the effect of the COVID-19 pandemic on First Nation’s electoral processes” in the context of the validity of the First Nations Election Cancellation and Postponement Regulations. Second, Grammond wrote that the case clarified the Acho Dene Koe First Nation’s right to postpone elections in the future, if the regulations in question are renewed. Grammond wrote that he was asked by the attorney general to suspend his decision on the invalidity of the regulations for 90 days, while Bertrand asked for any suspension to not exceed 30 days. “I am sensitive to the implications of this judgment not only on the federal government, but also on First Nations that may have availed themselves of the powers granted by the Regulations and will have to hold elections on short notice,” Grammond wrote. “On the other hand, I cannot ignore the fact that members of such First Nations have been illegally deprived of the opportunity to vote for the selection of their leaders.” Grammond suspended the declaration of invalidity for 60 days, as of April 1.
For Oilers, Archibald’s selfish anti-vaccine stance is not worth the risk – Sportsnet.ca
EDMONTON — One is a player who opted to honour his commitment to his new team in Edmonton. The other, just another selfish anti-vaxxer who is betting on himself, somewhat foolishly.
One is a player the general manager staked his reputation on, with much pedigree and a handful of Stanley Cup rings. A guy who came to town billed as a leader, and then backed it up when he rolled up his sleeve despite obvious misgivings about being vaccinated.
Sure, Duncan Keith should have gotten vaccinated a month sooner. But give him some credit for putting the team — society and the Oilers — ahead of himself. Even if he waited until the 11th hour to do it.
Then there is depth winger Josh Archibald, who will be replaced by Game 1 of the regular season if he doesn’t give his head a shake. He is from that young, conspiracy-oriented demographic that has been suckered in by far-right disinformation, and tweets about idiocy like “the plandemic.”
“I’m happy that he’s going to be part of our team this year, fully vaccinated,” Oilers general manager Ken Holland said of Keith, a player Holland had seriously dug in on to convince him to get vaccinated. Mike Smith took some work, too, we are told, but now both are vaccinated and ready to do what they were brought in to accomplish.
The other player is more selfish than that.
Archibald is a nice, fourth-line penalty killer in a normal season. He’ll get you 10 goals a year. But for this, the third COVID-affected NHL campaign, an unvaccinated Archibald just isn’t worth it.
Holland and head coach Dave Tippett sat down with Archibald on Tuesday and spelled out how many games he would miss and what it would mean to be Canada’s only unvaccinated NHL player. It would cost him up to 40 per cent of his $1.5 million salary. Maybe more.
Now Holland sits, and hopes that Archibald changes his mind before the GM has to send him to AHL Bakersfield. He is virtually untradeable, as Archibald could not play games in Canada for a U.S.-based team, and poses a risk that no fourth-liner can justify.
“There are a team or two out there that have made the decision that unvaccinated players are not welcome at training camp. I have not made that decision as of this time,” Holland said on Wednesday. “I think the player is going through the process to decide. It’s a difficult decision. I’ll give [Archibald] the appropriate time, and I’ll see where I’m at in a week, 10 days from now. We’ll see.”
Editor’s note: With overwhelming consistency, research has shown vaccinations against COVID-19 are safe and effective. Residents of Alberta who are looking to learn more about vaccines can find up-to-date information here. Further details on COVID-19 and the country’s pandemic response are available on Canada’s public health website.
In a strange twist of fate, Keith — who received his vaccination in the United States only this week — is in quarantine until next Friday, while the unvaccinated Archibald is undergoing daily testing while attending Edmonton Oilers training camp.
But here’s the reality of all this: A Canadian team simply can not have an unvaccinated player on its roster.
By Holland’s math, an unvaccinated player who must serve a 14-day quarantine every time he comes over the U.S. border and into Canada, would miss “30-plus games” this season. He’d also miss a ton of practice time, and would lose one-200th of his pay for every day missed due to the federally mandated quarantine.
It would be impossible to hold his place on an NHL roster.
“After you quarantine for 14 days, if we’re playing well you’re not just taking someone out to put that person in,” Holland said. “The number of times we cross the border, it’s going to be very difficult.”
Had Keith and Smith not relented, the Oilers’ season would have been derailed.
Related reading: Edmonton Oilers goaltender Alex Stalock contracted COVID-19 before the shortened 56-game season. Now, the 34-year-old is likely going to miss the 2021-22 season due to a heart condition.
Now that Holland has his starting goalie and No. 3 defenceman in the fold, why on earth would you want an unvaccinated, 13:33-minutes per game player flying on the same charter and inhabiting the same dressing rooms as Connor McDavid and Leon Draisaitl?
Between the peer pressure, the risk of lost salary, and the ridiculous nature of his stance, I expect Archibald to relent and get the jab. Let’s face it: It’s a business, and there is no moral high ground in sport.
“In July I heard talk that there were 80, 90 unvaccinated players,” Holland recounted. “We had a Board of Governors meeting (Tuesday), and Bill Daly said we’ll be in single digits of players unvaccinated going into the season. So, basically, 70, 80, 90 players eventually made the decision to get vaccinated.”
Some because they didn’t want to lose the salary, and some because they put their team and others before themselves.
There is one player left on a Canadian team who puts himself before everything else, and his name is Josh Archibald.
Kiermaier on getting hit by pitch by Blue Jays' Borucki: 'Oh yeah, it was intentional' – Yahoo Canada Sports
The Tampa Bay Rays clinched a spot in the postseason on Wednesday, but that was the secondary story against the Toronto Blue Jays.
During the game prior, Rays centrefielder Kevin Kiermaier was the centre of attention as he from Toronto catcher Alejandro Kirk, which the Rays refused to hand back to the visiting club. Less than 24 hours later during the series finale between the two AL East teams, Kiermaier re-entered the spotlight as he was struck by a pitch thrown by Blue Jays reliever Ryan Borucki in the eighth inning.
Borucki was ejected after the umpires met to review the struck batter, which then caused Blue Jays manager Charlie Montoyo and a very red-faced pitching coach Pete Walker to storm onto the field.
Walker was also tossed from the game for his outburst.
Kiermaier didn’t let up after the 7-1 victory, focusing on the late-game dramatics.
“Oh yeah, it was intentional,” “Pretty much almost went behind me. I thought it was a weak move, to be quite honest. It’s over. It didn’t hurt by any means, so I don’t care. Whatever. We move on. We got a series win, and I hope we play those guys, I really do.”
When Kiermaier was asked why he wants to face the Blue Jays again, it was mysterious to say the least. “The motivation is there,” he said. “That’s all that needs to be said.”
Despite Kiermaier being so sure it was intentional, Montoyo had a different idea of what happened, but was certainly sympathetic to the Rays’ reaction.
With just 10 games remaining in the regular season, Toronto is on a hot Wild Card race with fellow divisional rivals Boston Red Sox and New York Yankees. The two clubs involved in the ruckus will not face each other again unless the Blue Jays earn a spot in the postseason and are able to beat their opposition in that single-game playoff matchup.
As if the MLB postseason wasn’t dramatic enough, now there’s an underlying narrative ready to boil over at any moment if the two face each other in a series.
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Eichel stripped of Sabres captaincy, placed on LTIR – TSN
Jack Eichel is no longer captain of the Buffalo Sabres.
Sabres general manager Kevyn Adams said Thursday morning Eichel has been stripped of the ‘C’ after three seasons in the role.
“I spoke to Jack two days ago, I spoke to the team yesterday and addressed this, Jack Eichel is no longer the captain of the Buffalo Sabres,” Adams said. “From our perspective, the captain is your heartbeat of your team, and we are in a situation where we felt we needed to make that decision.”
Adams added the Sabres will not have a captain this season.
Adams also confirmed that Eichel will start the season on long-term injured reserve as he remains in a holding pattern with the team on how to best treat his neck injury.
“I think we would all agree that we were hoping to avoid surgery…unfortunately, yesterday Jack did not pass his physical. At this point, Jack is not willing to move forward with what our doctors are suggesting…we will continue to work toward a solution,” Adams said.
TSN Hockey Insider Darren Dreger reported Wednesday that there is nothing close on the trade front for Eichel, who has been looking for a trade throughout the off-season.
“Well, it’s tough to pinpoint a timeline but we do know there is ongoing discussions with Jack Eichel’s agent Pat Brisson and Kevyn Adams, the general manager of the Buffalo Sabres. They’re on good terms, they have an excellent relationship,” Dreger said on Insider Trading. “We also know that Jack Eichel will start the regular season on LTIR. Now, he saw a team of specialists over the course of the off-season. Some encouraged the artificial disc replacement surgery; however, the Buffalo Sabres remain adamant that the fusion surgery is the best option.
“It’s possible that Eichel gets traded and has the disc replacement surgery under the blessing of a new club, but there’s no guarantee and it doesn’t seem like anything is real close on that front.”
Eichel was limited to 21 games last season due to the neck injury and there has been a long-standing dispute with the team this summer over how to treat the injury.
The 24-year-old centre has been the subject of trade talk since the end of last season and his former agents released a statement in July trying to spur a trade. He switched agents to Pat Brisson in August.
“What’s critically important to make sure is clear is that we’re in control of this process,” Adams said in July, prior to the statement from Eichel’s then-agents. “We have a player under contract. We don’t feel any pressure.
“If there’s a deal out there that we feel is the right thing for the Buffalo Sabres, that’s going to help us improve – whether that’s improve right away or improve down the road, those are all the things weigh – we’d be open to it. But we’re not in a position where we feel we’re just going to do something to do it. That doesn’t make any sense.”
Eichel had two goals and 18 points in 21 games last season and has five years remaining in the eight-year, $80 million contract he signed with the Sabres in 2017.
He had served as captain of the Sabres since 2018.
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