No decision yet in TIB election dispute
The validity of the 2012 Tk’emlups Indian Band election will become clearer this month when a judge rules on a petition to have the results set aside.
Kamloops provincial court Judge Chris Cleaveley reserved his decision after hearing submissions on Monday, Feb. 18, from David Paul, representing the band, and petitioner Marie Baptiste, who unsuccessfully challenged incumbent Shane Gottfriedson for the job of chief.
The judicial hearing is the second to be held in the matter, which revolves around incorrect information on voting day and polling location in the November election.
The crux of the issue is information mailed to TIB members who live off the reserve.
Some received voting instructions giving Nov. 28 as the election date, while others and all who live on the reserve were given documents identifying Nov. 10 — the actual date — as election day.
Paul argued the mistake was simply a clerical error and was included in about 50 of the 377 off-reserve mailouts that were sent.
He noted the ballots and other documents in the package had the correct date, as did election information contained in the TIB newsletter, newspaper and broadcast advertisements and online.
In response to Cleaveley’s question if a newspaper advertisement should be considered as a means to get information to people who do not live on the reserve, Paul replied Internet advertising would provide that outcome.
“That’s assuming everyone had a computer,” Cleaveley told Paul.
The only person to call and ask about the incorrect date, Paul told the court, was Baptiste, who asked about the situation on Nov. 21.
Paul told the court the petition should also be denied based on timelines established in TIB regulations, which allow for disputes to be considered if they are raised within 15 days of the election.
In her submission, Baptiste asserted she tried to contacted TIB lawyer Linda Thomas on Nov. 20 to ask about the conflicting information and was told Thomas was busy with a treaty-negotiation issue happening that day and to call back on another day.
Baptiste said she tried to contact TIB electoral officer Marcus Hadley at that time, leaving messages on his voicemail that were not returned until Nov. 28.
In that conversation, Hadley confirmed 377 mail-in ballots were sent out, with 11 received before the actual Nov. 10 election date. Baptiste later learned 100 of the mailed-out packages were returned undeliverable and noted Hadley told her he was not going to try to determine the correct addresses.
Paul told Cleaveley the petition is seeking a remedy not permitted under TIB regulations, explaining Baptiste is asking for the process to be overturned.
TIB rules say only councillors can be challenged.
Cleaveley pointed out to Paul that Baptiste is not a lawyer and he took her wording to mean she wanted the chief and all councillors removed when she asked for the election to be overturned.
In response to Paul’s contention the judge should have no jurisdiction, a point he backed up with several other legal decisions, Baptiste replied by quoting TIB regulations that allow for a judge to “hear and determine the matters raised in a petition in a summary manner without formal pleadings.”
She noted band council had approved a resolution in September 2012 appointing Cleaveley as a “friend to the band for the 2012 Tk’emlups te Secwepemc elections.”
Other aspects in her petition not included in the two legal points — timeline and remedy sought — discussed Monday include the wrong polling-station address sent to off-reserve voters and the inclusion of two candidates on the ballots who had withdrawn from the election.
Off-reserve voters were told they could vote “between 8:00 am. and 8:00 pm. at the Gymnasium of the Sk’elep School of Excellence, 315 Yellowhead Hwy, Kamloops BC.”
The actual voting location was Moccasin Square Gardens, 357 Yellowhead Hwy.
The names of Alice McCaleb, a candidate for chief, and Lyndsey “Dessa” Gottfriedson, a candidate for council, remained on the ballot even though they had withdrawn.
Baptiste said leaving them on the documents could have skewed election results.
There were 902 eligible voters in the election, with 399 casting ballots for chief — Gottfriedson received 250; Baptiste garnered 103.
In reply to Baptiste’s submission about the wrong date, Paul again told the court it was clerical and “affected all candidates equally.”
He also disagreed the 15-day period to challenge an election could be triggered when someone learns of an issue of concern “because otherwise, something like this could come up weeks or months later.”