Northern B.C. First Nation election still in limbo months after appeal filed

It's been four months since Nak'azdli Whut'en members cast their votes for four open council seats. But those who were newly elected have still not been sworn in because an appeal filed under the First Nation's custom election code remains unresolved.  

Now, frustration is growing in the B.C. community about 100 km northwest of Prince George, with people wondering why the appeal board is taking so long and whether their custom election code is functioning the way they'd hoped.

"I have no idea what the delay is and nobody's saying anything," said band member Nicholette Prince, who filed the appeal of the election results.

"It's just not a very healthy situation right now."

Prince filed the appeal when she saw the Aug. 9 election results and that band member Vincent McKinnon Jr. had won a seat.

"I appealed it because he has a criminal record. I don't know why he even ran," she said.

Nak'azdli's custom election code states that candidates are not eligible to run for election if they've ever been convicted of an indictable offence, "except offences of a political nature relating to the exercise or defence of Nak'azdli's Aboriginal rights or title."

Appeal board

It's up to an appeal board to review the evidence and decide if McKinnon should be able to take his seat or not. That process is supposed to be followed according to the nation's custom election code, which was passed in 2015, that stipulates timelines and steps in the process.

Community members say they've been left in the dark wondering why those timelines haven't been met and why the five-member board still hasn't come to a conclusion about the appeal.  

According to the election code, "Where an Appeal is filed, the outgoing Council members shall remain in office until the Appeal is denied or, where the Appeal Board orders a by-election, until the new Election has taken place and the new Council members take office."  

Aileen Prince was elected to council in the August election but hasn't been able to be sworn in because of the appeal, even though she is not subject to the appeal in any way.

"The election code says they would have an appeal board and it would have 21 days to do this appeal and then within three days of the appeal being completed we would be sworn in," she said.

She said despite her calls to leadership and the band office, nobody is giving her updates on what's happening with the appeal.

"Who's actually being accountable for this? We just don't know," she said.

CBC has not been able to interview anyone on council about the situation. Chief Alec McKinnon said he couldn't speak about the appeal because he has a conflict of interest — Vincent McKinnon Jr. is his brother.

'I had a couple minor situations'

Vincent McKinnon Jr, who won a council seat with 79 votes, said the election code is to blame for why things are taking so long.

"It's a bad document," he said.

He also said the appeal should not exclude him from taking his seat, arguing he is eligible to sit on council because his past criminal convictions aren't subject to the election code rules.

He admits he has a criminal history and said he had a "troubled childhood," but said all of his past charges were pursued by Crown prosecutors as summary, not indictable, offences.

"I had a couple minor situations but nothing that should stop me from — I'm not a sexual predator or anything like that," he said.

Court records online show that between 2001 and 2006 Vincent McKinnon Jr. was convicted of two separate mischief charges, an assault charge and he was also found guilty of breaching his probation on at least two occasions.

A staff member at the Prince George courthouse confirmed to CBC News that those charges were pursued against McKinnon as summary offences.

Summary versus indictable

Nicholette Prince said she's not clear on what that distinction is from a legal perspective.

There are three types of criminal charges in Canada: summary, hybrid and indictable. Hybrid charges can be pursued either way; it's up to Crown counsel. Mischief, assault and breaches of probation are all hybrid offences.   

"I put in the appeal because in my view, those are serious offences," she said.

"If he appeals and the committee says those offences aren't serious enough to not allow him to sit on council, then that's fine. I'm not going to protest that. It's my prerogative to put forward that appeal based on what my reading is of the election code."

McKinnon said his life looks a lot different today and that the past should be left in the past.

"Nowadays, I have a beautiful family, I'm a red seal heavy duty mechanic, I have a great career. The only reason I wanted to become councillor was to help the community, help the kids," he said.  

"The people voted… they should get what they want. The band works for the people and that's exactly what they voted for," he said.

McKinnon said he's consulting with a lawyer about the appeal and is planning to take legal action against the band and Prince. He also said he's in the process of requesting a pardon for his past convictions.  

"Just let it be noted that if this appeal is granted, I'm not going nowhere. I'll be in the re-election and I'll have the paperwork for it then," he said.

Limited options for recourse

McKinnon said he's getting text messages and calls every day from people asking what the status of the appeal is.

Aileen Prince said people have been asking her about it, too.

"There's a lot of community members asking the same questions that I am… And I think there's a lot of community members saying enough is enough," she said.

I think there's a lot of community members saying enough is enough.- Aileen Prince

Because the nation uses a custom election code, community members have limited options for recourse compared to elections held under the Indian Act. Ottawa won't get involved, so it's up to the band members to resolve things as written out in the code or take the matter to court.

Aileen Prince said she doesn't really care what the outcome of the appeal is at this point. She just wants an answer.

"If he's going to be on council, fine. If he's not going to be on council, fine. Whatever it is, we can deal with it," she said.

Moving forward she says she hopes the eligibility rules can be applied or appealed before the ballots are cast, to avoid this kind of situation in the future.