Band custom election codes may not always be what they are cracked up to be.
This should be a warning for Manitoba First Nations that come under these systems. Band custom allows an Indigenous community to be removed from the Indian Act's electoral processes and to follow its own.
“According to data from Aboriginal Affairs as current as this month, there are 36 bands that operate under the rules set out by the Indian Act and 26 that follow community or custom leadership selection process.”
Nationally, however, the data shows that the majority of First Nations overall now come under custom or community systems. The Indian Act is becoming more the exception to the rule.
Manitoba bands have encountered problems with custom systems before. Back in 2012, Shamattawa First Nation and Roseau River Anishinabe First Nation both experienced electoral woes when both communities almost ended up with two chiefs in rival governments.
Both communities have custom laws that allow the community to oust leaders in the middle of their term.
The problem begins when a community signs off on a band custom election code, Aboriginal Affair's role in the community's affairs has ended. The ministry will not intervene in any dispute involving a custom band. While this may sound nice on the surface from a self-government angle, it makes for serious trouble when different parties have different interpretations of the community's processes and laws.
Many custom codes also lack adequate appeals processes or clear laws for removal from office.
Part of the sad reality is that political leadership within First Nations communities oftentimes does not respect the established political process. Back in 2011, community members at Cote First Nation in Saskatchewan attempted to pass a vote of non-confidence in their leadership. Some community members accused them of fraud and embezzlement involving up to $27 million of band money, most of it from a 2008 land claim settlement.
However, despite the claims and the vote, members of council refused to step down. Spokespeople with Aboriginal Affairs were quick to stress that the community was responsible for resolving any internal disputes. "Our role is very hands-off," said one spokesperson.
Similarly, years ago, the elected chief and council at Roseau River refused to recognize the legitimacy of the custom council — a body with powers granted in the community's own constitution — when it asked the chief and council to step down.
The first answer would be for elected First Nations leadership to respect their own established institutions. However, with that not happening, what are community members to do?
Although custom systems seem to be popular, the answer for communities plagued by leadership woes may be in coming under different legislation. In 2014, the First Nations Election Act became law. The law is optional. Although designed for Indian Act bands, the law could apply to custom bands if they opt into it. The law offers clear penalties for electoral offences, which would be an improvement for many communities. It is designed with stability in mind, with four-year chief and council terms and fixed election dates.
If this is not the route taken, the solution would be clean up all the electoral and appeals processes in the custom band. Lastly, band leaders and the whole community need to respect the institutions and processes set up. Otherwise, the system can't work and the only option is to always go to court.