Band Elections

Under the Indian Act, 1985, Indian bands are governed by a system of Chief and Council. These bands are often referred to as “First Nations”. There are approximately 615 First Nations in Canada most of which have their own land base referred to as “reserves”. Under the Indian Act, each band is entitled to elect only one Chief and one councillor for every hundred band members. However, no band will ever have less than two band councillors.

Sections 74 to 79 of the Indian Act, 1985 deal with elections of band council. All bands who do not have their own custom election codes must follow the rules of the Act. The details of the election process are described in the Indian Band Election Regulations:

http://www.canlii.org/en/ca/laws/regu/crc-c-952/latest/crc-c-952.html

The following site provides basic information about each of the First Nations in Canada:

http://pse5-esd5.ainc-inac.gc.ca/fnp/Main/index.aspx?lang=eng

Approximately 252 First Nations elect their Chief and Council according to the election provisions of the Indian Act. There are 333 First Nations that have chosen to opt out the Indian Act election provisions and have developed their own rules – often referred to as custom election codes.

For those bands who follow the Indian Act rules, Chief and Council are elected by a majority of votes of the electors (those entitled to vote) of the band. For those that have their own custom codes, there may not be any elections at all (for example, there may be hereditary chiefs).

For CAP’s report on Band Custom Election codes:

http://www.abo-peoples.org/policy/Justice_Is_Equality_PostCorbiereJuly08.pdf

For a list of which First Nations have custom election codes, please follow this link:

http://www.abo-peoples.org/policy/Band_Council_Elections.html

Additionally, there are 29 First Nations that conduct their elections according to the rules contained in their self-government agreements. Please see the Governance section of this website under Self-Government in order to see these agreements.

A significant case which impacted who could vote in band council elections was the Corbiere case. The Supreme Court of Canada (SCC) found that the requirement in section 77 to be “ordinarily resident on reserve” was a violation of the equality right under section 15 of the Charter of Rights and Freedoms because it discriminated on the basis of “Aboriginality-residence”.

As a result, the words “and is ordinarily resident on the reserve” were declared invalid by the SCC. The case can be found at this link:

http://csc.lexum.umontreal.ca/en/1999/1999scr2-203/1999scr2-203.html

Canada’s response to the case is summarized in the following INAC presentation:

http://www.ainc-inac.gc.ca/fns/cw/corb_e.pdf

Canada amended both the Indian Band Council Election Regulations and the Indian Referendum Regulations as a result. The regulations for elections can be found above and the following link contains the referendum regulations:

http://www.canlii.org/en/ca/laws/regu/crc-c-957/latest/crc-c-957.html

However, the Corbiere decision only related to one’s ability to vote in band council elections. The ability to run for office in a band council election was still prohibited. The Federal Court of Canada’s decision in Esquega addressed this situation. It decided that the prevention of off-reserve members from running for council was an equality violation similar to that found in Corbiere:

http://decisions.fct-cf.gc.ca/en/2005/2005fc1097/2005fc1097.pdf

The Federal Court of Appeal decision in Esquega which upheld the decision but narrowed it somewhat can be found at:

http://decisions.fca-caf.gc.ca/en/2008/2008fca182/2008fca182.pdf

The Parliament of Canada published a research report on the Indian Act which has summarized many of the important cases and changes to the Act:

http://www2.parl.gc.ca/Content/LOP/ResearchPublications/prb0912-e.pdf

Other information about band elections will be posted shortly. I encourage bands to submit their custom election codes so that I can post those as well.

Any information about custom election codes can be sent to my e-mail address at:

palmater@nonstatusindian.com

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