On May 20th of 1999, the Supreme Court gave 18 months for the Federal government to engage in consultations with First Nations peoples in what was called the Corbiere Decision. It was to find a method to balance the rights of on and off-reserve Natives. At the end of the consultations an amendment to Indian Act would take place. The Indian Act’s Section 74 on elections will no longer include the words “is normally a resident” as they would be struck out on November 20th, 2000.
The immediate impact would be that non-resident members would be allowed to vote in band council elections. The second impact is that you cannot discriminate based on residency.
Eastern James Bay Crees never had to worry about non-resident voting because we are currently allowing non-resident Crees to vote. The second impact is much more interesting in its implications and will be looked at after some history. In July 1999 the AFN (Assembly of First Nations) put forth a proposal on how to deal with the issue saying that time was of the essence. There was no response to that and on December 9th, 1999 the Minister of Indian Affairs made an announcement saying they were going to set up a process to address elections and they would be starting in January. The process started with the Federal government giving $200,000 each in funding to the AFN, Native Council of Canada, Congress of Aboriginal Peoples, National Association of Friendship Centres and the Native Women’s Association of Canada.
The AFN started a technical working group to look at the problem saying the funding wouldn’t allow a global consultation but at least they could keep people informed.
There was a working paper authored by the Canadian Department of Justice,
which looked at elections, regulations and options on how to implement nonresident voting. The second was done by the AFN and looked at more than just the voting in elections.
It was only in June 2000, at the National Gathering, that most First Nations even got to look at these two papers.
In August, the AFN and other Native organizations funded by the Federal Government had a meeting to discuss the election regulations. A set of new election regulations was handed to everyone by the Federal Government. Native organizations were told that these had been ok’d by Cabinet.
The AFN says that there were no indications on how to implement the new regulations and portions dealing with the Corbiere Decision were left out. “There was no training plan and no specific resource identification to be able to implement the regulations,” said Carolann Brewer, AFN executive coordinator of Corbiere. Comments on the regulations were requested by September 23rd from the Federal Government.
The AFN says this was impossible given that the changes to referendum conduct took everyone by surprise. “It was evident to us that this would come as a shock to many First Nations, who had no idea that the referendum regulations would be changed. There was no discussion of this and no notification to any First Nations,” said Brewer. National Grand Chief Matthew Coon Come responded by saying he was concerned over the lack of discussion aimed at balancing the rights of individuals and communities. He also was concerned that there were no mechanisms in place by which First Nations could implement this decision. “The National Chief felt this was an exercise in off-loading by the Federal Government,” said Brewer. The AFN office has also said that the Canada Gazette had inaccuracies in saying there had been discussion on referendums and people were being misled if they were told there were such discussions.
The AFN sees the problems of following the new band election regulations as two-fold: no one has had time to look over the new regulations or be trained in them and so they can’t administer them. “We have confusion in the regional offices on how they can be applied. Even Indian Affairs, in August, was unsure of how to apply them,” said Brewer.
The second problem is that the AFN feels there are some responsibilities that have been laid at the feet of First Nations. This meant First Nations Bands would have to compile a membership list that included all off-reserve members and providing the electoral officer with their names and addresses. “In many situations that’s not so easy because not all First Nations necessarily know where all their members are. In a number of First Nations there is only a part-time membership cleric, which makes maintaining an up to date membership list difficult,” said Brewer. Brewer says the Federal advertising campaign identifies the band office as the place to call for more information and most bands are not in a position to respond. A lot of bands didn’t think the new regulations would apply across the board and thought they would be exempt. Bands will be expected to provide complete lists of electors and their addresses. “That’s going to be extremely difficult,” said Brewer.
Bands who operated under custom code elections may find the new election regulations will apply to them according to the AFN if the Order in Council allowing custom code elections is struck down. A number of court challenges to the custom code are already happening and the majority of bands use custom code elections. Out of 633 First Nations in Canada only 283 use Section 74 of the Indian Act to conduct their elections.
A concern of on-reserve chiefs is the referendums and the Supreme Court recognized that the needs of the community must balance the needs of the individual. Brewer said that in some communities off-reserve voters could surrender the band land base. Brewer says this isn’t the overwhelming position but dialogue should serve to alleviate those concerns. Don Kelly, AFN spokesperson, said that the AFN supports the Supreme Court decision and believes that the band leadership represents all its members, on and off-reserve.
One of the regulations seems to talk about mail-in ballots but some bands would like to set up polling stations in large urban centers where a lot of their off-reserve membership may be located. Some bands are worried that mail-in ballots are open to fraud.
The options and how bands want to conduct polling and elections haven’t been addressed according to the AFN.
“I think the Government (Federal) has an inkling of the implications of this decision and they are scared stiff off it,” said Brewer. Brewer doesn’t think the provincial governments have even considered the implications of the Corbiere decision and how it may apply to them. “This is potentially going to have impacts on so many areas. It could have fiscal impacts between the federal and provincial governments,” said Brewer. “The provinces are implicated too.”
That First Nations citizens have a connection to their government and taxation was one of the areas discussed in the Corbiere decision. “Aboriginal residency will stand as a constant marker of potential discrimination and whether this relates to and they (judges) named off a number of areas which included a tax credit. In view of that there are implications which will go across the board,” said Brewer. It’s something that has to be looked at, said Brewer.
Brewer said that the AFN is requesting an extension to the November 20 deadline from the Supreme Court. The Lesser Slave Lake Council had already requested an extension but the AFN is requesting one on the grounds that there has been an inadequate consultation process. The extension may be defeated by procedures leaving bands with elections coming soon after the November 20 deadline with little hope for help. The AFN is telling bands without the resources or ability to adhere to the Corbiere decision to turn to the Federal Government. The AFN wants to sit down with the Federal Government to determine just how and when the Corbiere Decision can be implemented. “Just when can Corbiere be implemented? That depends on the amount of cooperation we get from the Federal Government,” said Brewer.