Photo courtesy of Manfred Joehnck
The majority of First Nations in Canada are now holding their elections under custom election rules rather than the Indian Act.
The Fraser Institute took a look at the trend to determine if it was better or worse for First Nations and determined that it all depends on how the election rules are set up.
Custom election terms are generally four years, compared to two under the Indian Act. Election disputes can be settled internally or through the courts under the custom elections, while Indigenous Affairs gets involved under the Indian Act.
The Fraser Institute report finds there is a rush to get away from the Indian act, but sometimes not enough thought is put into how to replace it.
Report co-author, Joseph Quesnel, says that can create more problems.
“We are saying decisions should be made at the band level, but it’s just in the race to get away from it just make sure you don’t get caught in something worse.” he said.
In Saskatchewan, only about 20 First Nations still hold elections under the Indian Act. Most others are using the custom election rules.
Quesnel says once a First Nation signs off on custom election rules, the federal government steps back. That means disputes often end up in lengthy expensive legal battles.
“And almost invariably, it ends up in court,” he said. “Which is generally more divisive and costly for the community involved.”
The institute does not say if one system is better than the other, but it does recommend proper consideration for human rights and electoral input be part of the process.
A third option is the relatively new, First Nations Elections Act, passed in 2014. It is kind of a hybrid between the two systems, with more First Nations control and less involvement from the Indigenous Affairs Department.
The Gordon First Nation is currently under the act. Its last election, held a year ago, is still before the courts after being disputed.
A Queen’s Bench judge threw the results out because of some missing ballots. That decision has been appealed to the Court of Appeal, but its decision has still not been rendered.
In the meantime, the disputed chief and council have already held office for about a year.