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Federal judge quashes removal of Thunderchild Coun. Michael Linklater

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WATCH: A federal court has ruled on the ousting of Thunderchild First Nations Coun. Michael Linklater because he does not live on reserve – Nov 26, 2020

The ousting of a Thunderchild First Nation (TCFN) councillor who does not live on reserve has been deemed invalid by a federal judge.

Michael Linklater was turfed in July for failing to meet the residency clause in Thunderchild’s election act.

Last month, Linklater took his case to a federal court, questioning whether the decision by Thunderchild’s appeal tribunal violated his Charter right to equality.

Read more: Saskatchewan band councillor ousted from role flags potential charter infringement

In a written decision released Wednesday, Ottawa-based Justice Sébastien Grammond quashed the appeal tribunal’s decision, effectively reinstating Linklater as councillor.

Grammond determined Linklater, who lives in Saskatoon, was not removed from council legally because the tribunal did not address whether the residency clause violates the Charter.

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The tribunal had previously said it does not have jurisdiction to make that determination, concluding it can only apply Thunderchild law.

Grammond disagreed.

“Thunderchild and Canadian law do not exist in complete isolation from each other, as the Appeal Tribunal seems to have assumed,” he wrote in the 23-page judgement.

Grammond declined to rule on the potential charter violation, instead passing it back to Thunderchild.

“It is preferable to return the matter to the Appeal Tribunal, who will be in a better position to make a decision sensitive to the relevant context, including Cree culture and the specificity of Thunderchild’s political institutions,” he wrote.

Read more: Federal court hears ‘complex’ case of ousted Thunderchild First Nation councillor

Officials from the First Nation in western Saskatchewan did not respond to requests for comment, so it’s unclear when the tribunal will make its decision.

Linklater said he’s happy with the judgement because it empowers Thunderchild’s governance system to apply Canada’s supreme law.

“The judge did a great job in striking a balance,” he told Global News.

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“As sovereign Nations, in having our own governance structure as well as our own constitution, it’s important that we make sure that we are following the Charter.”

While officials did not comment on the case, Grammond noted the TCFN government supported Linklater’s position in its submissions to the appeal tribunal.

Referendum request denied

Grammond denied Linklater’s request to order a referendum to amend the residency clause.

The federal court generally cannot call elections or referenda for First Nations, Grammond said, as it would interfere with their political processes.

Linklater said he has four months of council work to catch up on, and will push for a referendum.

Despite the controversy, he isn’t nervous to step back into his role.

“When you get into a position of leadership, it’s important to make sure that you stand your ground for what you believe in,” he said.

“This is an issue not only that our First Nation has struggled and needed to deal with, but other Nations.”

Where Indigenous and Canadian laws intersect

The case is part of a longstanding debate on whether Canada’s Charter applies to Indigenous communities, said University of Saskatchewan law professor Dwight Newman.

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“It is a case that speaks to the broader issues of the recognition of Indigenous law and the recognition of Indigenous governance,” he said in an interview on Wednesday.

Newman, who specializes in Indigenous rights law, said the case sets legal precedent.

“The federal court says, ‘We’re not going to deal with (the charter question), but we think the Thunderchild First Nation appeal tribunal should,” he said.

In the past, it’s likely the court would have ruled on the charter issue, he said.

“I think the judge is trying to find a way — within the context of all the ways that governance got reshaped by colonialism — to now find a way to re-empower Indigenous communities in making certain legal decisions,” he said.

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