The case of an ousted Saskatchewan band councillor was brought before a federal court Wednesday, probing at the intersection of Indigenous law and the Canadian constitution.
Former Thunderchild First Nation (TCFN) councillor Michael Linklater was removed from office in July because he doesn’t live on reserve, about 100 km northwest of North Battleford.
Linklater questions whether the decision by Thunderchild’s appeal tribunal panel infringes on his charter right to equality.
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Saskatchewan band councillor ousted from role flags potential charter infringement
During the hearing, Linklater’s lawyer, Jeff Howe, characterized the case as exciting and challenging.
“This is a complex case with many ramifications,” he said, highlighting its potential to set legal precedent.
“We’re at the very edge of the law.”
The virtual hearing was overseen by Justice Sébastien Grammond, who issued the first federal court ruling in Cree and Dene in 2019.
Howe argued Thunderchild’s appeal panel should have ruled that the residency requirement in the First Nation’s election act is unconstitutional.
Linklater wants to be reinstated. A federal court granted him an injunction in September, putting the by-election to replace him on hold until Grammond delivers his decision.
Thunderchild has a right to self-government, while Linklater has a right to equality under the constitution, Howe said. The constitution is considered the supreme law of Canada.
Howe argued that the Charter applies to Thunderchild’s election act, and that both sets of legislation should work in harmony.
“The Thunderchild government constitution and laws are part of Canada’s constitutional fabric,” he said.
TCFN officials were present for the virtual hearing, but did not make any submissions. Thunderchild’s operations director did not respond to a request for comment from Global News.
Many band members live off reserve
Linklater has lived in Saskatoon for nearly three decades, where he had a high-profile basketball career with the Saskatchewan Rattlers.
When Linklater was elected in October 2018, he received the second most votes out of all of the candidates, Howe said.
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Howe said the election result speaks volumes about the will of TCFN’s electorate, of which many members live in Saskatoon and Edmonton.
He flagged a potential amendment to Thunderchild’s residency clause, where one or two seats could be reserved for councillors off reserve, with the remainder dedicated to those who live on reserve.
Grammond said he’ll make a judgment on the matter “as soon as possible.”