Friday, October 02, 2009

The Coalition responds!

Dear Sir/Madam:
Thank you for writing. Please be advised if, in your opinion, inaccurate postings regarding The Coalition of Concerned Metis Citizens of BC have appeared on this site they are not our words. You will notice we've carefully avoided offering our opinion because of a lack of knowledge regarding Metis politics in your province.
However, we do believe in the democratic process, and as part of it, the right to freedom of speech and expression. Therefore, we will continue to display the views of both sides subject to the condition, of course, they're not defamatory.
To this end we are showing the contents of a file attached to your e-mail entitled, October 2nd - CCMC News Bulletin.
Clare L. Pieuk
Clare L Pieuk

Thank you for this opportunity to respond to the inaccurate posting on your blog about the validity of the Coalition it is in this email that I inform, we are in the process of being formed in the Province of British Columbia. The Coalition is in response to the overwhelming issues that we face as Metis citizens, and I believe these challenges are not only in our Province of BC, but across the Metis Nation homeland.

I have taken the liberty in attaching the legal ruling that we have obtained after the Metis Nation AGM in regards to the interpretations and justifications of MNBC's legal opinions of
bringing forth the CCMC resolution at the AGM.

In due time the Coalition will be structured to become a entity that will voice the concerns of the Metis Citizens in British columbia. I do understand that those factions that have contributed to the Metis Nation's current stature will be trying to discredit the Coalition
as witnessed by the postings on your blog.

I must add that we will endevour to provide a professional alternative to the current situation, and look forward to future change that will affect all of our Metis families in a positive manner.

Thank you for this opportunity to respond.

The Coalition of Concerned Metis Citizens (CCMC)
October 2nd, 2009
CCMC News Bulletin – Legal Opinion regarding the proposed Special Resolution
CCMC representatives have continued to review the results of the recent MNBC AGM decision that ruled the proposed non-confidence Special Resolution out of order for reasons CCMC adamantly disagrees with.
CCMC representative and spokesperson Daryl Piper, who presented the CCMC Special Resolution, requested an immediate written clarification from the AGM Chairs (Mark Stevenson and Don Caverley) and MNBC legal counsel Mr. Joseph Gereluk to explain their interpretations and justifications that clearly impacted the AGM delegates in writing. CCMC spokesperson Piper was assured that a response would be immediately forthcoming. CCMC representative Daryl Piper has yet to receive any such written explanation.
CCMC is providing the following independent legal review comments received Thursday, October 01, 2009. CCMC has decided to share the legal opinion as it demonstrates the continued lack of good governance and fair processes to enable true Métis Nation self government.
Based on the strength of the independent legal opinion CCMC will be reviewing all options that may be available to re-address the AGM ruling that does not appear to be supported in law through the courts and/or other means. However, CCMC wants to stress that our members support good governance but based on the situation, increased personal attacks on CCMC members, and lack of professionalism from MNBC leadership and their management team CCMC feels forced to consider all possible remedies. It is clear from the transcripts and actions during the AGM that a number of MNBC representatives do not understand the important role of a government institution:
Legal Opinion:
1. Overview
The CCMC has engaged me to review, among other matters, the legal opinion offered by Mr. Joe Gereluk to the assembly gathered at the Métis Nation of British Columbia (the “MNBC”) Annual General Meeting (the “AGM”) on September 26th, 2009, which was relied upon by the chairs (the “Chairs”) of the AGM, Mr. Don Caverley and Mr. Mark Stevenson, to conclude that the special resolution presented by Mr. Daryl Piper at the AGM was “out of order” on procedural grounds and therefore ineligible to be considered by AGM delegates. The accuracy of the analysis and conclusions reached in the following opinion is dependent upon the accuracy of the Materials (as defined below) which have been provided to me by the CCMC.
2. Materials

I have reviewed the following materials for the purpose of providing the CCMC with the
analysis underlying this opinion:

(1) The Métis Nation British Columbia Constitution Act (the “Constitution”);

(2) The Métis Nation Governing Assembly Act (the “MNGA Act”);

(3) The Métis Provincial Council of British Columbia Bylaws (the “Bylaws”);

(4) The resolution proposed by Daryl Piper at the AGM (the “Resolution”);

(5) The Métis Nation British Columbia Citizenship Application Form (the
Citizenship Form”); and

(6) Transcript of day one of the AGM (the “Transcript”);
(collectively the “Materials”).

3. Opinion

The Chair’s Ruling on the Resolution
Although the Chair Mr. Mark Stevenson asked Mr. Joe Gereluk for his opinion on whether the Resolution was “out of order,” the Transcript reveals that the Chair never made a ruling based on Joe Gereluk’s opinion. This is an unusual omission as the Transcript discloses that the Chair mistakenly thought he made “ruling” on a few occasions. For example, at one point in the Transcript, the Chair advises: “you have a second for that? To challenge the ruling of the Chair?” It was incumbent on the Chair to make a ruling prior to voting taking place as logic dictates that one can not vote on a ruling that has not been made by the Chair. This is a significant procedural error on the part of the Chair which casts doubt on the validity of the vote overturning the alleged “ruling” which, as the Transcript discloses, was not made by the Chair, despite his having thought so.

Joe Gereluk’s Opinion
The Transcript reveals that Mr. Joe Gereluk, legal counsel for the Métis Nation British Columbia, makes no specific reference to sections of the Constitution, the MNGA, or the Bylaws when asked by the Chair to advise on the legal validity of Mr. Tom Spence’s suggestion at the AGM that Section 71 of the Constitution required the Resolution presented by Daryl Piper to be given first reading by the Métis Nation Governing Assembly in compliance with the MNGA Act.

The Transcript advises the following:

Joe Gereluk: “I am legal counsel for the Métis Nation British Columbia, and thank you for giving me the opportunity to speak on this motion. I am compelled to refer to the history of the MNBC as far back as 2000 and the Duncan Annual general meeting. At such time the assembly at that AGM made it clear and voted unanimously to assert their right to be the third order of Government in Canada. As an aboriginal group the Métis Nation British Columbia they made it clear that they were not bound by the Provisions of the Society Act but the MNBC was going to be bound by a constitution that they were going to develop for themselves, that would govern the state and affairs of the Métis Nation, and we were going to pursue self-government or self- governance under that constitution. In the ensuing year pursuant to community consultation, consultation with Métis citizens around the province, consultation with consultants and with the work of various technicians and including some of the people who are at the head table, a constitution for the governance of the Métis nation was developed and that constitution formed the basis of the affairs and how the government of the Métis nation would be handled. Again I make it clear that at the 2002 AGM the Society Act specifically stated it “does not apply” to MNBC governance. At that time the bylaws of the Métis Provincial Council of British Columbia which was the legal entity was Schedule B to the Society Act and that required several performances that don’t apply today because there are new bylaws in effect. The Constitution specifically sets out.”
Joe Gereluk: “I want to make it clear that the bylaws only govern the internal affairs of the secretariat and if I can draw on a legal term “supremacy of constitution” or “constitutional supremacy.” The bylaws of the Métis Provincial Council of British Columbia which is the secretariat and acts only under the auspices of the Métis Nation is, and governed by and is determined, the process is determined by the constitution, so it would be, is in error to say that the bylaws of the secretariat govern the Nation. The Nation is governed by the constitution and it is strictly.”

Joe Gereluk’s opinion, set out directly above, does not answer the question asked of him by the Chair, namely, does the Constitution require, by virtue of Section 71, that the Resolution presented by Daryl Piper be given first reading by the Métis Nation Governing Assembly pursuant to the MNGA Act? Joe Gereluk mostly speaks at length about his recollection of what the Constitution was supposed to contain and accomplish, which is unhelpful as legally speaking it is what the Constitution and Bylaws state, as presently written, that governs the affairs of the assembly at the AGM.

The latter part of Joe Gereluk’s opinion advises that the Bylaws only govern the internal affairs of what he refers to as the “secretariat”, which is the Métis Provincial Council of British Columbia (the “MPCBC”). Likewise, he advises that it would be an error to say that the Bylaws govern the Métis Nation British Columbia. A detailed review of the Materials reveals that Joe Gereluk’s broad and sweeping statements are not supported in law.

Review of Materials

The Constitution
Section 71 of the Constitution advises: “All legislation, legislative amendments, constitutional amendments and resolutions shall be considered and given first reading by the MNGA in accordance with the provisions of the Métis Nation Governing Assembly Act.” On its face, it is self evident that Section 71 is intended to require that any changes to constitutional legislation and constitutional amendments first be vetted by the MNGA. This interpretation is supported internally by Section 30 of the Constitution which advises: “The Métis Nation Governing Assembly shall review and ratify legislation, regulations, rules, resolutions and constitutional amendments for presentation and final ratification at an Annual General Meeting or Special General Meeting.”

This interpretation is further supported by the following provisions of the MNGA Act
which flesh out the requirement of Section 71 of the Constitution:

4.4 The MNGA shall, at a Governing Assembly, draft, review and consider Legislation and amendments to the Constitution for first reading, also referred to as ratification herein, and presentation to the MNBC.
4.6 Legislation or amendments to the Constitution that have been ratified by the Governing Assembly shall be presented for final approval or ratification by the Métis Citizens in attendance at an MNBC Annual General Meeting or Special General Meeting.

4.7 Legislation or amendments to the Constitution which have been ratified by the Governing Assembly shall be provided to the MNBC at least forty (45) days prior to an Annual General Meeting or Special General Meeting to be included in the agenda of that Annual General Meeting or Special General Meeting.

As one can see, Sections 4.4, 4.6, and 4.7 make it abundantly clear that the role of the MNGA is to review and consider constitutional legislation and amendments relating to the Constitution. As a result, it is evident that Mr. Daryl Piper’s Resolution was not caught by the ambit of Section 71 of the Constitution, or Sections 4.4, 4.6 and 4.7 of the MNGA Act, as his Resolution did not seek to propose constitutional legislation, or amend or revise the Constitution in any way. Mr. Daryl Piper’s resolution relied on Section 23 of the Constitution to accomplish its ends, and accordingly Section 71 of the Constitution can not, in law, be used to justify a finding that the Resolution was “out of order.”

The Bylaws
The Bylaws, in their present form, were filed and registered by the registrar of companies at the request of Mr. Joe Gereluk on June 7, 2007, pursuant to a special resolution passed by the directors of the MPCBC. The Bylaws play an integral part in MNBC affairs, albeit largely from a supportive and administrative standpoint. Section 69 of the Constitution advises: “A Secretariat known as the Métis Provincial Council of British Columbia shall be continued or created under the BC Society Act for the sole purpose of carrying out the administrative duties of the MNBC, MNGA and the Senate.”

Accordingly, provided the Bylaws are used to support the ends of the Constitution, they are, in a manner of speaking, an extension of it. One need only read the Bylaws alongside the Constitution to see how the documents work together and specifically contemplate the existence of the other. For example, many of the important capitalized words in the Constitution such as “Member” and “Citizen” are defined in the Bylaws, but not in the Constitution. Likewise, Section 9 of the Bylaws advises “[e]very Member must comply and uphold the Constitution and these bylaws, and Section 11 of the Bylaws advises “[g]eneral Meetings of the Society shall be held in accordance with the provisions of the MNBC Constitution. Even the “oath of citizenship” on the Citizenship Form, which I have reviewed in detail, requires applicants to agree to “abide by all the rules and bylaws of the Métis Nation British Columbia,” which lends further importance to the Bylaws in the governance of the affairs of the MNBC. Given the above, and the purposeful absence of language in the Constitution advising that the Bylaws are not to be relied upon at annual general meetings, it is evident that they can. Accordingly, as long as Mr. Daryl Piper’s Resolution was using the Bylaws to support a constitutional end, which it was, namely enforcing Section 23.8 of
the Constitution, then it ought to have been voted upon by the assembly gathered at the
AGM and should not have been ruled “out of order.”

A review of the Transcript reveals that there are strong grounds for believing one or both of the Chairs and Mr. Joe Gereluk may be found to have carried out their respective duties at the AGM in a negligent manner.


Anonymous Anonymous said...

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2:19 AM  

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