Is Inuit org a public or private body? Nunavut judge to issue ruling

Inuit beneficiaries in Iqaluit watch NTI and QIA election results come in on screens set up inside the Igluvut building Dec. 8, 2014. That election led to allegations that QIA’s management of the process confused voters, breached principles of procedural fairness and deprived eligible voters of the right to cast a ballot. Justice Susan Cooper is expected to issue a ruling. (FILE PHOTO)

Madeleine Redfern, a former community director candidate who is now mayor of Iqaluit, will no longer contest the outcome of a Qikiqtani Inuit Association election from 2014.

But she still wants a judicial review of the Inuit organization’s election procedures which she alleges led to her losing a community director’s position by one vote.

That’s what Redfern’s lawyer, Crista Osualdini, told Justice Susan Cooper at the Nunavut Court of Justice in Iqaluit, May 8, in the latest appearance before the court of a civil suit that is now more than two years old.

But to make her ruling, Cooper must first determine if the QIA is a public or private body.

And that decision could set an important legal precedent for how Inuit organizations, most of which are structured as private corporations, are held accountable under the law.

“This application is really about democratic process and fairness. This is not about my client’s candidacy and the ultimate results of the election,” she said.

Prior to becoming Iqaluit’s mayor, Redfern ran in a QIA election held Dec. 8, 2014, for its community director position in Iqaluit, an election that was held at the same time as a separate election for QIA president.

An election for the vice presidency of Nunavut Tunngavik Inc. was also held that same day, using the same polling stations.

Redfern lost to Simon Nattaq—an Iqaluit city councillor—by one vote: 396 to 395.

In a lawsuit filed a month later, Redfern alleged the QIA discriminated against Inuit voters in Ottawa at the time of the election, on the grounds they were not provided with ballots for the community director election when they showed up to Ottawa polling stations.

The QIA also breached its own duty of procedural fairness by not following its election bylaws, Redfern alleges, and by failing to meet expectations of voters that led to confusion on election day.

Redfern’s suit originally sought to quash the election results and hold another election.

But she’s not asking for that anymore. Osualdini changed the focus of her arguments to the way the QIA and its chief returning officer ran the election.

That will first require Cooper to determine if the QIA is a public or private body.

Osualdini argued that the QIA—a private corporation—could qualify as a public body in light of the duties it performs, and therefore become subject to judicial review.

That’s because the association manages benefits for 14,000 Inuit in the Qikiqtani region while also holding surface title to Inuit Owned Lands within its regional jurisdiction, she said.

“Those are public purposes that the QIA operates for,” she said, while also citing the role that designated Inuit associations play in implementing the Nunavut Land Claim Agreement.

Osualdini added that the QIA breached its own electoral laws by operating a satellite polling station in Ottawa under vague, or misleading, advertising regarding which ballots were available on the premises.

The QIA’s election advertising did not mention that only ballots for the executive elections would be available in Ottawa.

But voting for the Iqaluit community director position had to be done exclusively in Iqaluit, or by proxy voting.

Proxy voting is when a registered voter casts an additional vote under the instruction of an absent voter, after providing a signed statement from both parties.

It would not have been “unduly onerous” for the QIA to provide community director ballots in Ottawa, which Osualdini argued was “conceptually different” from other QIA polling stations.

The QIA’s lawyer, Sylvie Molgat, repeated to the court that her client followed its regulations to the letter and that very little consensus on the allegations has been found by the two parties in their two-year-long dispute.

Community director positions have been historically held only in the respective community, Molgat said, and the QIA, “did everything it could to encourage all eligible voters to vote and facilitate their ability to do so” through proxy voting.

The staggered nature of QIA elections make them inherently regional in nature and the timing of a community director position and executive election was simply a coincidence, she said.

Proxy voting was included on official election advertisements and could have been arranged as late as election day, she said.

“Where are all these disgruntled voters that didn’t understand?” Molgat asked the court.

The clarity of the advertisements, Molgat said, “appeared to be clear for everyone but the applicant.”

As for the public or private role of the QIA, which will determine what kind of action Cooper can take in her decision, Molgat argued that the association is undeniably private, while also performing some public functions.

“It’s like fitting a square peg into a round hole,” she said on defining the QIA as a public body.

And while the QIA does have a role under the land claim agreement, being a member of the association in no way affects an Inuk’s rights under the NLCA—an important distinction, Molgat said.

“To suggest that the court has say over QIA’s private governance is ludicrous,” Molgat stated, adding that the court’s valuable time has been left dealing with “abstract questions.”

If the court rules in their favour, Molgat informed Cooper that her client will seek costs for the “inordinate amount of time spent on this matter.”

After hearing submissions, Cooper reserved her decision for a later date, which was not provided when she adjourned court.