Arbitrator Marko Vesely has ruled against a petition seeking the removal of Chief Jason Louie and Councillor Sandra Luke from the Lower Kootenay band council.
“I find that this case is close to the line in terms of the conduct that would warrant removal,” Vesely wrote in his conclusion. “I am troubled by aspects of the Respondents’ conduct, in particular their failure to repay any of the money since the Court of Appeal’s decision was issued. However, I find their explanation as to why they believed they could receive the money in 2009 and why they have not yet paid it back to be sufficient to satisfy me that their breach of fiduciary duty was not a conscious or willful one that would amount to a breach of their Oath or that would otherwise justify the extraordinary remedy of removing them from office and preventing them from running for re-election for five years.”
“I do not view the arbitrator’s decision as a victory,” Chief Jason Louie said on Sunday. “There is no glory and there are no winners. What we must do now as a community is find a way to work toward healing. This won’t be an easy task with no quick solutions. The Lower Kootenay Band has always been a resilient community. In due time we will pick up the pieces and move forward.”
Vesely was hired by the LKB council in an effort to put an end to the issue that has divided the tiny community of Lower Kootenay for seven years. In 2009, after receiving a $125,000 payout on a land deal with the Regional District of Central Kootenay, the council of the day went behind closed doors and voted each of the five members a one-time $5,000 honorarium. In a subsequent court case the councillors contended they followed a process guided by then Band Manager Joe Pierre, who is now deceased.
Although the payments were reported in the Band’s financial statements, the issue did not become a subject of controversy until 2011. Since that time, resident Wayne Louie and his nephew, Robert Louie Jr. (uncle and brother of Jason, respectively), have been seeking redress for the payments on behalf of their supporters.
At one point, in a sparsely attended Band meeting, 11 residents voted unanimously that the payments did not have to be returned.
Vesely addressed the issue of a community divided in his report.
“If the parties agree on anything it is that their shared community is deeply divided,” he wrote. ‘As Robert Louie, Sr. stated in his affidavit, ‘I have a heavy heart here. Our Band is in a crisis. I’ve never seen the Band so dysfunctional and fractured.’ Jason Louie referred to the Band as a ‘divided community.’ I find this division within the community runs deeper than the issue raised in this petition and should not be taken as evidence of a loss of confidence in the Respondents by the Band membership at large…”
When the issue was placed in the hands of the arbitrator, LKB councilors agreed to abide by his decision. During the arbitration hearing two weeks ago, however, Robert Louie Jr. and Wayne Louie made it clear they would only be satisfied if the decision went their way.
“My congratulations to Jason and Sandra. Let the healing begin!” Rita Scott said after receiving Vesely’s report. Scott, a lawyer and Creston resident, represented Jason Louie and Sandra Luke at the hearing.
Robert Louie Jr. was not as enthusiastic.
“We have carefully reviewed the ruling,” he said soon after receiving the arbitrator’s findings. “With all due respect, the arbitrator misapprehended the facts, and made a number of errors in law. It should be noted that Wayne Louie lost at trial in the Louie v. Louie court case, but won on appeal. So, an appeal is being prepared, because this ruling is legally and morally wrong.”