Weighing Alternatives to Indian Act Elections: Custom Election Codes and the FNEA

Many First Nations conduct elections based on the provisions in the Indian Act. Under the Indian Act, the Chief and Council hold office for two years unless their office becomes vacant. The two-year term for Chief and Councils elected under the Indian Act are a challenge for many First Nations.  The cost of holding elections on a frequent basis as well as frequent turn over in elected leadership can create practical governance challenges.

Some First Nations object to conducting their elections under the Indian Act for principled reasons as well. The Indian Act is a colonial law which has tried to displace the traditional governance systems of First Nations. As First Nations across Canada reassert their traditional laws and lawmaking powers, returning to a traditional method of choosing their leadership has become increasingly popular.

There are different paths that a First Nation can take to move away from the Indian Act.  The two most common are:

• Opt-in to the First Nations Election Act
• Adopt a Custom Election Code

The First Nations Election Act

The First Nations Election Act (FNEA) came into force on April 2, 2015. It establishes a legislative electoral system that operates on an opt-in basis. Like the Indian Act system, the First Nations Election Act and Regulations provide a complete code for elections. The main difference is the FNEA provides that chiefs and councillors hold office for four years.

To opt-in to the FNEA, chief and council of a First Nation must adopt a Band Council Resolution requesting that the Minister of Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) add their First Nation to the schedule in the act. This request must be accompanied by a proposed date for the next election.

While the FNEA doesn’t give much detail about the opt-in process, in practice, CIRNAC has required that Chief and Council conduct robust community consultations prior to passing an opt-in BCR. Evidence of those consultations may be requested before the Minister approves the opt-in request.

Custom Election Codes

Custom election codes are created through the inherent power held by First Nations to govern themselves. It is a power that the First Nation has always had. The Government of Canada recognizes custom election codes by listing the First Nation on a ‘schedule’ (attachment) to the Indian Act, which has the effect of making the Indian Act election rules no longer apply to that First Nation.

In a custom election code, the First Nation decides how the election will take place. The Indian Act rules on length of time in office and voting procedures do not apply. The rules are determined by the First Nation’s custom election code. Developing a custom election code is an important process, and almost always involves extensive consultation with members. In some First Nations, special community drafting committees are created to make sure that there is a variety of points of view incorporated into the code.

Beyond terms of office and voting procedure, custom election codes allow for creative instruments, such as Elders Councils – who can review election results and make decisions regarding new elections, instead of sending election disputes to Canadian courts.

The transition from the Indian Act to a custom election code requires an order from the Minister. As a result, First Nations can and should submit draft versions of the code to CIRNAC.  CIRNAC will review the draft custom election code, make comments, and often suggest changes before a final code is submitted by the First Nation for approval.

At times, CIRNAC can be restrictive in its review and try to make the custom election code as near to the Indian Act as possible.  However, with strong advocacy, a First Nation can push back to get the election code that makes the most sense for its members.

Once the draft Code is ready to go, it must be ratified by the members of the First Nation through a referendum vote.

Proceed with Caution

Your First Nation’s custom election code is your law (in fact, many First Nations refer to theirs as an “Election Law” rather than a “code”). Like any law, it will be interpreted, discussed, and sometimes it may be argued over and disputed. Because of the importance of the election process, OKT always recommends that a lawyer assist with the drafting, or at least review the drafted custom election code before it is ratified by the membership.

OKT has worked with First Nations across Canada to assist with drafting custom election codes, to explain how the First Nations Election Act works, and to represent First Nations in court at election appeals. We also have extensive experience in revising existing custom election codes. What we have seen through our experience is that it is important to proceed with caution when considering a change to a custom election code or to the First Nations Election Act. 

The First Nations Election Act offers an alternative to the Indian Act, but remains fundamentally a process shaped and controlled by Canada. In many ways, it is simply an updated form of the election provisions in the Indian Act. 

A poorly drafted custom election code can leave a First Nation in a more difficult situation than remaining under the Indian Act.  If the code is unclear or incomplete, then it can lead to expensive and time consuming challenges in court or in some circumstances an unenforceable election. Both of these scenarios can cause uncertainty and discontent among members. 

As a result, it is important for communities to decide early in the process what legal resources and opinions they will need to successfully travel down the road of electoral change. 

Disclaimer: This article provides general information only and is not meant to be used as legal advice for specific legal problems. If you need legal advice, then please contact us directly at bbrookwell@oktlaw.com and cshefman@oktlaw.com.