Nearly a month after Ruth Massie was elected as the official chief of the Ta'an Kwach'an Council, Yukon Supreme Court Judge Ron Veale has released his reasons for permitting the election to go ahead.

Veale made his decision on Nov. 8, ordering the election go ahead on Nov. 20 despite a lack of quorum at the Aug. 27 council meeting, where the election writ was issued.

That followed a February court order that the election for chief and deputy chief for the first nation proceed.

'In my view, the validity of the date for holding the election should not be left in doubt,' Veale wrote in his decision.

'There is no evidence to indicate that the lack of quorum has, in any way, materially affected the nomination of candidates or any part of the election process to date.'

The court order of last February was made as part of the proceedings over the 2003 election, which saw current acting chief Ruth Massie defeat Bonnie Harpe by two votes.

A legal battle then ensued. Harpe challenged Massie's appointment as interim leader by the first nation's elders' council.

Veale upheld the decision of the elders' council and ordered that a new election be held.

The decision, issued last Thursday, states that last Aug. 27, the board for the first nation met and issued the writ for the Dec. 20 vote.

While it was believed the acting chief and six family members had formed the quorum, it was later learned that one of the family directors, Roberta Behn, wasn't a Ta'an citizen and was ineligible to sit as a director.

'This fact was not brought to the board's attention until after the election writ was issued,' Veale noted.

While a member of Behn's family challenged the quorum and its authority to issue the writ with the first nation's judicial council, Veale had already ruled in a previous decision the judicial council doesn't have the jurisdiction to review a decision of the elders' council.

'That decision applies to this resolution of the board as well,' Veale stated. 'The judicial council does not have the jurisdiction to review the resolution of the board to issue an election writ for Nov. 20, 2006.'

An independent elections office had been rented with advertising of the writ and voting date out and nominations closed on Oct. 6 by the time it came to court, Veale pointed out.

Mail-in ballots had also already been sent out with about 20 already received. An advance poll was also being conducted during the court hearing.

Harpe and Massie were the only candidates to run for chief, with three citizens seeking office as deputy chief.

'The only uncertainty is the application before the judicial council to declare the election date void based on the lack of quorum at the board meeting of Aug. 27 when the election writ was issued for Nov. 20,' the decision reads.

The matter before the court, Veale wrote, was whether it has the power to declare whether the Nov. 20 election should proceed and if it does, whether that power should be used.

'It is most unusual that a governing body, charged with conducting an election, applies to a court for a declaration that an election should proceed on a specific date,' Veale wrote.

'I draw some comfort from the fact that both candidates for the office of chief were present in court and consented to the declaration (Nov. 20 election date).

'Thus, the two protagonists from the previous contested election are consenting to a declaration that the election proceed on Nov. 20,' he noted.

When courts deal with election issues, it is usually following the vote over irregularities in the process.

'In my view, it would not be appropriate for courts to engage in the prospective assessment of electoral conduct before an election date,' Veale wrote. 'It makes little sense to pronounce on electoral conduct or procedures before it can be measured against the election outcome.'

In this case, the court is not being asked to validate the results, but rather to decide whether the election should proceed given that there was not a quorum during the meeting to decide the election writ.

'The question is really whether the court should give certainty to the hold ing of the election or whether the issue of the board's lack of quorum should be left until after the election,' it was noted.

Veale then pointed to case law in coming to his decision the vote be held.

The declaration for the vote to go ahead doesn't impact the jurisdiction of voters to challenge the outcome that could arise from process flaws, voting irregularities, ineligibility of candidates or other matters that could impact the results.

'This decision simply states that there should be no doubt that the election of chief and deputy chief should take place on Nov. 20,' Veale stated.