The elders' council for the Ta'an Kwach'an Council did have the authority to appoint Ruth Massie as acting chief while awaiting a new election, Justice Ron Veale has ruled.

The Yukon Supreme Court judge handed down what is being described as a precedent-setting decision Friday, after several days of testimony and submissions in December.

While upholding the elders' decision, the judge also emphasized in his 32-page ruling the election for chief and deputy chief 'must proceed as quickly as possible.'

Chief Massie said this morning the decision removes the uncertainty around her appointment. It also validates the work she and the council's board of directors have done since she was named acting chief last spring, she said.

It also validates and accepts the traditions and customs of the Ta'an Kwach'an to seek guidance from their elders in times of need, she said.

'They acted in a time of crisis.'

Massie said it's not up to her to set a date for a new election. That is the responsibility of the elders' council, which was scheduled to meet today with the lawyer to review Veale's ruling.

Bonnie Harpe, a former chair of the Ta'an board who lost to Massie by two votes in the 2003 election for chief, filed the challenge to the decision by the elders' council.

Harpe also filed and won her challenge of the 2003 election results based on her contention that a third candidate for chief should not have been allowed to run because of a previous criminal record for an indictable offence.

The judicial council convened to hear Harpe's challenge ruled in her favour a year later, and overturned Massie's election as chief last spring.

But with no chief, and with no deputy chief, since he had resigned shortly after the election, the Ta'an Kwach'an could not conduct any business because its board of directors could not form a quorum.

A council of seven elders was convened last May, and decided to appoint Massie as acting chief until a new election could be held, no later than last Oct. 30, though the court action by Harpe resulted in further postponement, the judge noted.

Harpe suggested one elder was in a position of conflict because she was part of Massie's immediate family, and that both Massie and the council's lawyer had provided advice and recommendations to the elders' council.

Veale, however, ruled there was no serious conflict, and that there was nothing unusual about Massie and the lawyer providing advice and recommendations to the elders' council.

He did note that Massie was asked to leave the room while the elders considered how to proceed.

'I am satisfied the elders did make an independent decision,' writes Veale.

Harpe is out of town and could not be reached for comment this morning.

Her lawyer, Andre Roothman, said this morning Harpe is interested in appealing the decision, though financing is an issue.

An appeal of this nature, he said, would cost somewhere in the neighbourhood of $25,000 to $30,000, of which $15,000 or so would be needed just to prepare the proper documentation for the B.C.-Yukon Court of Appeal.

He said Harpe told him Friday she is not interested in running in the next election, but is interested in flushing out the issue of traditional and customary powers for the elders' council, though the question of financing is a significant consideration.

Veale's decision, Roothman said, sets a precedent for other Yukon first nations when considering the strength and application of traditional and customary authority for elders' councils when issues arise that are not addressed in the first nation's constitution.

What's not clear, and what Harpe would like to see defined more clearly, is how far that traditional and customary authority can go in settling matters not addressed by the constitution, he said.

Veale notes that in the Ta'an Kwach'an's 2004 amended constitution, there was no provision for elders to play a role in appointing a hereditary chief.

But the first nation's 1990 constitution specifically stated the elders had a role in the appointment of a hereditary chief, if it became vacant and there was no one designated to take over the position, he noted.

For whatever reason, the judge writes, that provision was not included in the updated constitution.

He writes that in his decision, he needed to address two questions:

• did the elders' council have traditional powers in the appointment of chiefs?; and

• if so, could that authority be used to address the situation that arose last May when the judicial council voided the election results?

The elders' council did have a role in appointing chiefs under certain circumstances, as it was stated by witnesses during the trial, and as was obvious in the first nation's 1990 constitution, the judge found.

He also found that in times of crisis, the elders were looked upon for advice and guidance. It was that guidance and advice that was sought from the elders last May when the Ta'an found themselves unable to do business because it had no quorum, the judge ruled.

'In these circumstances, I find that the elders' council quite appropriately and validly expressed that traditional power.'

Veale also dismissed Harpe's contention that the court should have stepped in and appointed an administrator to look after matters until a new election could be held.

To do such a thing would have been a return to the days of the Indian Act band that is controlled by Ottawa, says the decision.

To do such a thing, writes the judge, would have gone against the spirit of self-government that underlies the first nation's constitution.