The Lower Nicola Indian Band's Oct. 2 chief and council election will proceed as scheduled despite a conflict regarding the eligibility of several candidates.

Fred Schiffner, chief electoral officer for the election, nearly resigned this week due to a dispute with Chief Don Moses.
In an email to the current Lower Nicola councillors sent on Sunday, Schiffner claimed that Moses had written to him several times stating that some nominees were ineligible to run.

Schiffner wrote that he tried to address Moses' concerns; however, unlike Moses, Schiffner determined that the candidates were eligible according to Lower Nicola's election rules.

“Unfortunately, Chief Moses is not willing to abide by my decisions and the logic behind those decisions,” he wrote.
Schiffner had asked that the council either pass a resolution terminating his contract with the band or pass a resolution declaring its confidence in his ability to conduct the election.

Although a resolution supporting Schiffner was not passed, he said Wednesday afternoon that the council has expressed its confidence by consensus. “Knowing the way that First Nations work, consensus is an acceptable method of approval.”

Moses says that Schiffner is free to determine which candidates are eligible.

“It's up to him. I'm not going to say anything further.”

However, Moses adds that Schiffner could be held liable if he acts improperly.

“He's only indemnified if he makes the right decisions.

“He's got to look at it very seriously.”

The Lower Nicola Elders Investigative Committee (EIC) found that Mary June Coutlee, Stuart Jackson, and Clyde Sam misappropriated $1.2 million of band money. Coutlee, Jackson, and Sam are all running in the election.

“The Federal Court (of Canada) upheld that ruling,” says Moses, referring to a July 2009 decision by Justice Daniele Tremblay-Lamer that accepted the EIC's findings.

“Therefore, they have been found guilty of breaching their fiduciary duty.

“All that remains is to determine the extent of the penalty.”

The former councillors did not appeal either the EIC or Federal Court rulings, Moses notes.

“In effect, they accepted they were guilty.”

The Lower Nicola election rules require that candidates not be in arrears to the band and have no criminal record.

Nominees are also ineligible to run if they refuse to undergo a criminal record check.

Schiffner says that based on those and other criteria, the candidates he has received complaints about can run, even if they have outstanding matters before the courts.

“The election code of the Lower Nicola Indian band clearly states that they are eligible.”

However, in Moses' interpretation, Coutlee, Jackson, and Sam have been found guilty of misappropriation and as such are in arrears since they will have to repay the band money.

Chief candidate and incumbent councillor Aaron Sam said Tuesday that a lawyer had contacted the Federal Court Registry to schedule an appearance in court and hopefully secure an order to allow Schiffner to continue without interference.

By Wednesday morning, consensus among council had been reached, according to Sam. “(The court appearance) was scheduled for this afternoon, but Mr. Schiffner decided he was ready to proceed.”

“He's adamant that he's going to allow those people to run and we'll see what happens,” says Moses.

Depending on who wins, “It could mean another appeal. It could mean another election.”

Schiffner says, “You have to place some confidence with the voters.”

If voters feel a candidate has done wrong, they will show their disapproval at the ballot box, he says.

“They won't vote for him. It's that simple.”

Schiffner said he sent out the mail-in ballots on Wednesday.

Out of 29 council candidates on the original slate, there are now 16 remaining, including Coutlee, Jackson, and Clyde Sam.

There are two chief candidates: Aaron Sam and Victor York.

Nominees can still withdraw their names until Sept. 16.