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On May 20, 1999 the Supreme Court of Canada ruled on the case of John Corbière et al v. The Batchewana Indian Band in Northwestern Ontario and Her Majesty the Queen (Canada). At issue was the constitutional validity of the words ”and is ordinarily resident on the reserve” in Section 77(1) of the Indian Act, which had the effect of prohibiting non-resident Band Members from voting in Band Council elections held under the Indian Act. The Supreme Court declared that the 7 words in Section 77(1) were unconstitutional, because they discriminated against the equality rights of non-resident band members by preventing them from voting. The Supreme Court suspended the implementation of this decision for a period of 18 months, to give the government time to consult with both with on-reserve and off-reserve Indian band members, and to develop a new electoral system.

Stage I of the consultation process focused on the affected regulations under the Indian Act - namely the Indian Band Election Regulations and the Indian Referendum Regulations. Of particular interest to DIAND during this stage were suggestions for amending those regulations so that an electoral system could be created which would meet the needs of band councils and band members residing both on and off-reserve.

DIAND provided funding to a number of Aboriginal organizations to enable them to consult directly with their constituents. CAP established the CAP Corbière Commission which held town hall type meetings or hearings at selected locations across the country.

The purpose of these meetings was to talk to as many off-reserve status Indians as possible about the effects of the Corbière decision. During the course of its commission hearings CAP asked people to consider and respond to four key policy questions.

They are:
- What are your reasons for wanting to vote in the elections and referenda of your band?
- What kinds of band decisions or issues do believe you should have the right to vote on?
- Are there any band decisions or issues for which you feel it is not important that you have the right to vote?
- What steps do you think your band should take to give you notice of upcoming elections or referenda?

In addition the Corbière Commission sought more specific input on the band election and referendum regulations. The following are some examples of the kinds of specific issues that CAP asked people to think about:

Appeals - who is entitled to launch an appeal and what grounds should there be for launching an appeal and investigation of appeals.

The CAP Corbière Commission launched its hearings on March 31, 2000. Thereafter, the CAP Corbière Commission employed a variety of methods for conducting regional consultations including:

Meeting size and style varied, depending on circumstance. In some instances there were large crowds of 150-200 participants and a conference format was used. There were also workshop type meetings with 30-40 participants. In addition there were focus group type meetings that enabled in-depth discussion of the issues and involved from 5-20 participants. In all, CAP estimates that approximately 450 people from across Canada participated in its Corbière Commission consultations.

As a result of these consultations, CAP produced a Corbiere Commission report, which included 11 recommendations (see Stage I).

In April, 2001, Stage II was launched as the “Communities First: First Nations Governance Initiative”. This consultation process was intended to lead to legislative change on an “integrated and sustainable electoral reform consistent with the Charter”.

The Congress of Aboriginal Peoples, through its member organizations, conducted its own consultations. The legislation proposed by the federal government intended to address three main subjects:

During the Stage II consultations, CAP’s regional affiliate organizations conducted information sessions. CAP’s participation in the Stage II consultations was undertaken with the recognition that the government’s process had limitations. Specifically, the exclusion of citizenship issues and the limited scope of the consultations were regarded as a “piece-meal” approach to governance and insufficient to bring about the type of substantial change required.

Beyond the community based consultation process, CAP was provided with a further opportunity to participate in the Joint Ministerial Advisory Committee (JMAC), which was constituted to “assist in developing policy proposals for the development of draft legislation.” JMAC’s direction to the government included the following recommendations for the drafting of a bill:

Include a Preamble and a statement of purpose to guide the interpretation and implementation of the Act;
Include a non-derogation clause;
Address the legal status and capacity of bands;
Provide statutory or default regimes in respect of leadership selection, governance structures and procedures, and financial accountability to apply to every band that does not choose to design its own regime;
Enable the Governor-in-Council to enact regulations that will provide the details of the default regimes, following an appropriate consultation process;
Enable bands to design their own regimes in respect of leadership selection, governance structures and procedures, and financial accountability, provided that certain essential elements are addressed, while leaving to each band the particular way in which those elements are addressed;
Eliminate or reduce the current roles of the Minister and Governor-in-Council in band governance;
Establish an independent institution to assist bands with governance, particularly during the transitional period between enactment of the legislation and the coming into force of the default or band designed regimes, and to replace some of the current functions of the Minister and Governor-in-Council;
Bind the Crown.

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The Legislative Stage

On October 9, 2002, the Government tabled Bill C-7, the First Nations Governance Act, in the House of Commons. Bill C-7 was referred to the Standing Committee on Aboriginal Affairs at First Reading. This unusual step was taken so that substantial amendments could be made to the bill as a result of review by the Standing Committee.

In early 2003, the Standing Committee held approximately 60 meetings across the country on Bill C-7. Presentations were made by over 500 witnesses, including First Nations organizations, community leaders and individuals, as well as other interested participants including legal and church communities. CAP’s presentation to the Standing Committee, entitled “Its About Fairness” is included as Appendix B.

Bill C-7 underwent the most extensive review in the history of Parliament, with the Standing Committee setting records for the greatest number of hours of deliberation of any bill. In May, 2003, the Standing Committee reported back to the House of Commons with 51 technical and substantive amendments.

Unfortunately, Bill C-7 became a casualty of the Liberal leadership selection process that was underway at the same time. Bill C-7 was abandoned by the Rt. Hon. Paul Martin when he became the Leader of the Liberal Party of Canada in November, 2003 and the bill died on the Order Paper when the House of Commons prorogued on November 12, 2003.

Since that time, there has been no further legislative activity by the Government of Canada to complete “Phase II” of the Corbiere initiative and much of the work remains unfinished.

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Corbiere: The Unfinished Business

In 2006, the Government of Canada initiated two specific initiatives that will address potential improvements that were lost with the demise of Bill C-7. These include a commitment to fill the legislative void with respect to Matrimonial and Real Property on reserve and Bill C-44, An Act to Amend the Canadian Human Rights Act (which will ensure that the Canadian Human Rights Act is fully applicable on reserve).

Beyond these initiatives, there are a large number of issues relative to Band Council governance and the need to ensure that the rights of off-reserve Band Members are respected.

As a result of CAP’s consultation process under the Communities First: First Nations’ Governance Initiative, CAP’s constituents identified the following concerns:

There must be equal recognition of Aboriginal peoples and Aboriginal peoples’ governments in federal legislation, including off-reserve Aboriginal peoples’ organizations
The individual equality rights violations embedded in the Indian Status entitlement and band membership provisions must be corrected
The equality rights of Aboriginal women must be addressed in any governance or self-government legislation
Off-reserve Aboriginal peoples’ organizations should be properly resourced to meet the program and service needs of off-reserve Aboriginal people and at a level proportionate to the funding provided on-reserve Aboriginal people
Off-reserve Aboriginal peoples’ organizations should be funded at least on an equal basis with on-reserve organizations in respect to their participation in consultation processes
Equality rights with respect to political participation in elections and other forms of leadership selection must apply to all custom bands as well as bands operating under the Indian Act election system

There is a need to ensure financial and political accountability of Indian Act Band Councils
There is a need to ensure equal rights of political participation in all aspects of Indian Act elections and leadership selection
There is a need to examine the definition of “band” under the Indian Act, as well as the government’s role and federal policy regarding new band creation

The application of Charter equality principles to all aspects of political participation by off-reserve band members under the Indian Act (off-reserve band members must be provided the right to run for office and nominate candidates, as well as to vote in elections)
Recognition of a statutory right of individual members to be informed of and have access to membership lists, rules, laws and any other form of decision-making by bands and band councils
Statutory requirements for basic financial accountability such as tabling of annual financial audits, disclosure of salaries and leadership and band officials (elected or employees), participation in membership decisions affecting financial affairs and access to information generally on the management of band funds and assets
The need for recall mechanisms where leaders have violated the people’s trust or simply refuse to carry out their duties
Maintenance of the principle of one person, one vote for all Indian Act electors
A system of proportional representation to ensure balanced representation of on and off-reserve band members or alternatively, separate councils for off-reserve band members
Application of the Charter of Rights and Freedoms to all Indian Act bands and band councils and any form of Aboriginal government
Need for an independent agency to oversee Indian Act election processes
Need for dispute resolution mechanisms including an ombudsperson
Extension of the term of Indian Act band councils to four or five year

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The Congress of Aboriginal Peoples remains committed to the need for change in all these areas, and will continue to seek opportunities to bring about positive change in these areas.

Post Corbiere Study

Election codes that are adopted as an alternative to Section 74 of the Indian Act provide the foundation for the exercise of democracy for more than half of the Band Councils in Canada. Many of these alternative election processes – often referred to as “custom” election processes – predate the Corbiere decision.

The Department of Indian Affairs and Northern Development revised the policy that governed alternative election processes concurrent with the amendments to the Indian Act regulations that governed Indian Act elections. However, there is very little information available regarding whether or not pre-existing custom election codes comply with the findings of the Corbiere decision.

Commencing in September, 2007, the Congress of Aboriginal Peoples studied the issue of whether existing “custom” electoral codes reflect the principles contained within the Canadian Charter of Rights and Freedoms (including the findings in the Corbiere decision), the Canadian Human Rights Act (in anticipation of the repeal of Section 67), and federal legislation governing the management of private information collected to conduct custom elections.

Thirteen information sessions were held across the country during the fall and winter of 2007. This report is available here.

Band Council Elections

The term Band “custom” code actually refers to a variety of leadership selection processes.

If the Band uses the Indian Act, you can contact the Department of Indian Affairs to obtain information on your Band’s election process.

If the Band uses a “band custom” process, you will have to obtain information directly from the Band Office.

How do I know if my Band uses “Indian Act” or “Band Custom” election rules?

For a list of Band Councils that use BAND CUSTOM rules, select your Region below: