Federation condemns study on voting rights

By Lloyd Dolha

A federally funded study by the Congress of Aboriginal People says the majority of First Nations’ band elections are undemocratic has outraged a Saskatchewan First Nations leader, who is now questioning the sincerity of Ottawa’s recent apology to residential school survivors.

Chief Lawrence Joseph, leader of the Federation of Saskatchewan Indian Nations (FSIN) condemned the federal government for funding the study.

“This flies in the face of the residential school apology,” said Chief Joseph, in an interview. “Shame on the Congress of Aboriginal People. Shame on Indian Affairs.”

Joseph called the study, conducted by the Congress of Aboriginal Peoples (CAP) and financed by Indian and Northern Affairs Canada (INAC) “baloney.”

CAP leader Patrick Brazeau said Saskatchewan chiefs likely refused to cooperate with the study in band governance “because they have something to hide.”

“We received the most resistance from the FSIN and it’s chiefs,” said Brazeau. “ The FSIN has rejected us. If they don’t cooperate, it’s probably because they have something to hide.”

But Joseph condemned CAP as little more than an extension of the federal government that isn’t credible. He noted the “duly elected chiefs” of the FSIN have passed three resolutions stating that the Congress of Aboriginal Peoples is not a legitimate aboriginal organization.

But Joseph said that he was never asked to be a part of the study.

“They never tried. They’ve never come to us,” he said.

CAP, which claims to represent some 150,000 off-reserve aboriginal people, received funding and technical expertise from INAC to produce the study Justice is Equality: Post Corbiere Report, which was released on Monday, July 14.

It states that many First Nations still have rules in place that exclude their off-reserve membership from casting ballots in band council elections because their written codes do not give them the right or specifically exclude them in some cases.

The codes in question, called custom electoral codes, follow the traditions of individual First Nations’ communities. These custom codes do not fall under the Indian Act, which was amended in 2000 to give off-reserve voting rights to aboriginals as set out in the 1999 Supreme Court of Canada decision in Corbiere.

The report says that many of the 344 of Canada’s 600 band councils follow custom codes that reveal “Upon close scrutiny, many of the codes revealed fundamental flaws either in their substantive or procedural elements.”

Justice is Equality sought to review electoral codes in 60 select First Nations communities to determine the extent of their compatibility with several federal statutes, including the Charter of Rights and Freedoms, and international human rights standards.

The study also undertook to determine the extent of First Nations’ compliance with the 1999 Corbiere decision. It’s findings identify several areas where improvements in democratic governance and compliance with federal law. It says that despite the affirmation of off-reserve voting rights through Corbiere, residency on-reserve is still an eligibility requirement for voting in far too many instances.

The CAP study further revealed that in the very few cases where off reserve members are not prohibited from voting in custom election codes, they are still not provided a reasonable opportunity to do so because there are no mechanisms in place to assist them in exercising their right with such as a transparent mail-in ballot.

“The right to vote is a fundamental human right. It cannot be denied to First Nations citizens, whose communities rely in large part on the equal respect for the dignity of each individual,” states the report.

As a result, CAP is advocating that aboriginal residency be added to the list of prohibited grounds of discrimination identified in the Canadian Human Rights Act.

The study also notes that while the Canadian Human Rights Act contains the section 67 exemption from its applicability to aboriginal peoples, there is currently the federal initiative to repeal that section in the legislation contained in Bill C-21. Should that become law, custom band election codes may become vulnerable to human rights complaints.

In fact, CAP argues that the Canadian Human Rights Commission already has jurisdiction to hear such complaints because, under the human rights act, a narrow interpretation must be given when dealing with exceptions and the commission must hear all complaints that are not “directly pursuant to the Indian Act.”

“Since custom codes are in essence removed from the Indian Act, we believe the Canadian Human Rights Commission Tribunal has full jurisdiction to hear these complaints,” states the report.

“The most fundamental element of building sustainable and prosperous communities is the application of fairness and accountability inherent to effective democratic governance,” said Brazeau. “Yet there appears to be an obvious reluctance by many chiefs and councils to respect and reflect their intended purpose of these measures at the community level in their own back yards here in Canada.”

INAC released the information on the condition that First Nation bands involved would remain anonymous.