Custom band elections are more difficult to understand than most Canadians realize.
Take for instance Garden Hill First Nation in Manitoba, located 300 kilometres southeast of Thompson.
Recently, the First Nation adopted rules preventing anyone under 50 from running in the up-coming election for chief and anyone under 40 from running for councillor.
The new rules also bar anyone living in a common law relationship from running.
Under these new rules about 80 per cent of the community is ineligible to run for chief or councillor, reported a band member.
As a custom band, Garden Hill has been removed from the Indian Act rules on elections. The band develops its own election code. The Conversion to Community Elections System Policy, however, requires selection codes to comply with the Canadian Charter of Rights and Freedoms.
“We expect First Nations to enact custom election codes that are compliant with the Charter of Rights and Freedoms,” Aboriginal Affairs and Northern Development Canada (AANDC) says.
Yet, clearly election rules at Guarden Hill do not comply with the Charter. In particular, age and marital discrimination are illegal.
Nevertheless, the government acknowledges that its hands were tied when it came to bands operating under their own election rules.
“Garden Hill First Nation selects leadership through a custom code process, outside the electoral provisions of the Indian Act. AANDC has no role in the selection of community leadership, or how governance disputes are resolved,” according to AANDC.
This leaves the courts as the only option for band members who see their human rights being abused by their band council.
“The courts continue to be the appropriate body to make determinations about a community’s leadership-selection in the event that disputes can not be resolved internally,” read the government statement.
There are other problems with custom elections. In 2013, off-reserve community members of the Attawapiskat First Nation–the native community that made national headlines with its housing crisis–were required to travel back to Attawapiskat to cast ballots.
This is a serious problem for roughly half of the band members who don’t reside on the reserve. Mail-in ballots and remote polling stations were not an option.
This custom election ordinance violates the Supreme Court of Canada’s 1999 Corbiere decision, which ruled that all members of a First Nation are entitled to participate in band elections whether they live on or off-reserve.
Most First Nations operate under custom codes. According to a Senate report, 252 bands hold elections in accordance with the electoral provisions of the Indian Act, and 334 bands use custom election codes.
Custom elections are clearly a two-edged sword: they provide a degree of self-government , but they also can violate human rights.
Perhaps the answer lies in recommendations in the 2010 Senate Committee on First Nations Elections: The Choice is Inherently Theirs. While the report argues for the adoption of custom codes, it also that some custom codes do not respect principles of natural justice and procedural fairness. Under custom codes, appeals are often referred to the federal court, resulting in a lengthy and costly process for band members who seek justice through the courts
As a result, the Senate committee recommended the establishment of an independent First Nations electoral commission to “assist in developing electoral codes that meet standards of good governance.” Through this commission, First Nations would need to develop custom codes that meet standards in compliance with the Charter.
If this happened, more Canadians would understand—and accept—custom band elections because they would be fairer. It is not fair to disenfranchise 80 percent of Garden Hill First Nation. Everyone agrees with that.