Federal judge rules Michael Linklater’s removal from Thunderchild First Nation council was invalid
Michael Linklater, former councillor for Thunderchild First Nation, is pictured Aug. 12, 2020. (Francois Biber/CTV Saskatoon)
SASKATOON -- A Federal Court judge has quashed the Thunderchild First Nation Appeal Tribunal’s decision to remove Michael Linklater from the band’s council.
Linklater was elected Headman of Thunderchild in October 2018. In July 2020, however, the Thunderchild Appeal Tribunal removed him from council, as he had failed to establish his residence on Thunderchild lands after his election, as required by Thunderchild’s election laws.
The tribunal dismissed Linklater’s argument that the residency requirement is of no force or effect, as it discriminates between First Nation members based on residence, contrary to section 15 of the Canadian Charter of Rights and Freedoms. The Appeal Tribunal held that it had jurisdiction to apply only Thunderchild laws, not Canadian laws such as the Charter.
Linklater, known for his professional basketball career internationally and with the Saskatchewan Rattlers, challenged the decision earlier this year.
Linklater argued that the tribunal failed to exercise its jurisdiction by declining to rule on the Charter issue. He also wanted a judge to declare the residency requirement to be of no force or effect and to order a referendum to repeal or amend the residency requirement.
“I am allowing Mr. Linklater’s application in part,” Justice Sébastien Grammond said in a Nov. 25 decision.
“I agree that the Appeal Tribunal has jurisdiction to review Thunderchild legislation for its compatibility with the Charter. Thunderchild and Canadian law do not exist in complete isolation from each other, as the Appeal Tribunal seems to have assumed. However, I decline to decide the Charter issue myself.
“In the circumstances of this case, 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. I also decline to order the holding of a referendum, as this would interfere in Thunderchild’s political process without any legal basis.
“As a result, the Appeal Tribunal’s decision is quashed with the result that Mr. Linklater was never legally removed from council.”