The Peter Ballantyne Cree Nation could soon hold a by-election for Councillor positions in Pelican Narrows.

The election took place in April 2021 and unfolded in a strange manner. A COVID-19 outbreak would delay the vote in Sturgeon Land, but impact Pelican Narrows too.

Francis Highway was contesting for one of five Councillor positions in Pelican Narrows, placing sixth, being 10 ballots behind.

On April 13, Head Electoral Officer Burke Ratte (HEO) issued a notice for ballot count postponement in Sturgeon Landing and that all ballots cast in the general election will not be counted until after Sturgeon Landing has completed its election activities.

The next day, Ratte issued another notice nullifying the ballots cast in Pelican Narrows in its Advance Polls and Election Day Polls.

“According to the notice, the nullification of the ballots stemmed from one Deputy Electoral Officer (DEO) counting the ballots for the Councillor positions in Pelican Narrows on April 13, 2021 and April 14, 2021, contrary to the Head Electoral Officer’s direction. As such, new dates would be scheduled for election activities in Pelican Narrows,” Justice Paul Favel said in his decision. “On April 19, 2021, the HEO posted a notice entitled “Polling dates – PBCN” setting out two dates, April 26, 2021 and 27, 2021, for a new election in both Pelican Narrows and Sturgeon Landing.”

Highway requested in writing on April 26 that a recount of ballots be conducted on the Pelican Narrows vote on April 13. Yet he claims his request was denied.

On April 25, Ratte “posted a notice advising that all ballots cast during the Election in Pelican Narrows for the position of Chief would be counted on April 27, 2021. Accordingly, the ballot count for Councillor positions in Pelican Narrows, as conducted by the DEO on April 13, 2021 and April 14, 2021, stood.

Highway appealed several other matters including the improper ballot box and potential bias from citizens selected as Deputy Electoral Officers whom may have connections to electoral candidates

The Appeals Tribunal held a hearing in June to address Highway’s concerns of electoral irregularities. The Tribunal did acknowledge irregularities, but it concluded that as a whole the irregularities did not impact the outcome of the election. Highway’s notice of appeal did not contain a request for a recount, and the Tribunal’s decision did not reference the ballot recount issue.

Justice Favel concluded that the conduct of the Appeals Tribunal was procedurally fair and conducted according to the First Nation’s Election laws. Favel noted that while there were irregularities within the election itself, they did not rise to the level of overturning it.

However, Favel ruled there was confusion over when the polls closed.

“The Election Code did not empower the HEO to alter the process set out in the Election Code when he issued Page: 23 the April 13, 2021 notice postponing the ballot count, the April 14, 2021 notice nullifying the ballot count, or the April 19, 2021 notice setting out new election dates in both Pelican Narrows and Sturgeon Landing,” Favel wrote. “It is understandable that these notices caused confusion. More confusion followed with the April 25, 2021 notice from the HEO stating that, as a result of Justice Grammond’s Order, only the ballots for the position of Chief would be counted on April 27, 2021 with the closing of the polls in Sturgeon Landing. However, the ballot count for Councillor positions in Pelican Narrows on April 13, 2021 and April 14, 2021 stood.”

The Federal Court acknowledged that a recount should have been conducted.

“Overall, the Appeal Tribunal failed to provide any thought or weight to the Applicant’s submissions on this point or explain why they were disregarded. Accordingly, the Decision is not justifiable, transparent, or intelligible; nor is it justified in relation to the facts and the law constraining it,” stated Favel. “While the record does not contain any information about whether any ballots were spoiled or rejected during the initial count, it is presumed that a recount would require even closer scrutiny of the ballots, which may reveal errors in the initial count.”

Favel remitted the recount issue back to the Appeal Tribunal for consideration.