Best Practices - Reviewing Custom Election Codes

In March 2005, eight First Nations in Quebec, all of whom conduct their elections in accordance with a custom election code (therefore, section 74 of the Indian Act does not apply), participated in a workshop on the development and drafting of custom election codes. This workshop was organized by the Quebec Regional Office of Aboriginal Affairs and Northern Development Canada.

In attendance, were individuals employed by the First Nations and whose responsibilities included the review and revision of their community's custom election code. These individuals had a keen interest in sharing and obtaining as much information as possible that would assist them in fulfilling the mandate they had been given by their First Nation.

To kick-off the workshop, representatives from each First Nation were invited to present their election code and to describe how it had been developed. In addition, each representative discussed the various community consultations that took place regarding their code. The feedback received from the participants was very positive. Each person learned a great deal from the experience of others. Three areas are particularly noteworthy:

  • Methods used to engage and consult with both on and off-reserve members;

  • Nomination of candidates; and

  • the mechanisms that allow off-reserve electors to exercise their vote without having to attend a polling station on the reserve.

1. Consultation and Engagement Process

It was generally agreed that it is essential for First Nations to inform and engage their membership in the review and revision process early-on and often so that there is a level of “buy-in” to the process and to the election system. Information sessions should be held in the community and, if there are urban areas where a significant number of members reside, it is often useful to hold one or two sessions in these areas. Most participants in the workshop indicated that community meetings were held on two occasions:

  • Prior to the initial review of the code - To gather information, thoughts and ideas on provisions that need to be added, modified or removed from the existing code. At this meeting, ideas, comments and suggestions that were brought up are compiled. Following this session, a committee of four or five persons will often be established to examine all the points brought forth at the meeting and to decide if and how these points will change the code.

  • At the time the new draft code is presented to the community - Again, members are afforded an opportunity to provide comments, ideas and thoughts on the code. The committee will once again determine how the draft code will be modified following this consultation.

Once the committee has arrived at a final draft, a copy is distributed to all members of the First Nation for a ratification vote. It has proven helpful if the revised code includes a short summary of the important points that have changed. This enables community members to clearly learn how the electoral system will be different if the new code is adopted from the way it is now.

2. Nomination of Candidates

Participants at the workshop also discussed different ways for candidates to be nominated at an election. The most popular method for candidates to be nominated is verbally at a nomination meeting by electors present. The nomination must then be seconded by another member present. However, many First Nation representatives expressed interest in a self-nomination process. In this process, a person wishing to become a candidate must complete a “nomination package”. This package consists of a form for the candidate's name, address, telephone number, date of birth and other similar information, as well as a petition signed by a set number of electors (for example: 25) indicating their support of the person's candidacy. The advantage to this system is that it ensures that a candidate has a significant level of community support. Since the process to become a candidate is more involved than simply being the subject of an oral nomination and secondment, there is a level of assurance that the person having carried this process through is serious about the candidacy.

3. Voting by First Nation Members not Residing on the Reserve

The Supreme Court of Canada decision in Corbiere v. Canada declared that subsection 77(1) of the Indian Act, which limited the right to vote at band elections to First Nation members residing on the reserve, was against the Charter of Rights and Freedoms. Subsequently, all members of a First Nation, at least 18 years of age, were extended voting rights at their band's election held in accordance with the Indian Act. The court decision also obligated Canada, through regulations, to develop a mechanism by which off-reserve members could exercise this new voting right without having to travel excessive distances. Thus, a mail-in balloting system was developed.

Although the Corbiere decision was not applicable to First Nations who held their elections under a custom system at the time, it was generally agreed at the workshop that First Nations should strongly consider this decision and its potential implications on custom bands in the review of their election codes.

There are a few mechanisms by which off-reserve members can cast a vote without having to attend a polling station on the reserve:

  1. Mail-in ballots to all off-reserve members:
    At least 30 days prior to the election, the electoral officer sends a mail-in ballot voting package to all off-reserve members who are voting age. This requires that the First Nation undertake measures to ensure that they have a complete and up-to-date list of addresses. Experience has shown that many ballot packages are returned because the addresses were not accurate or that ballot packages have gone astray.

  2. Mail-in ballots are sent only on request:
    The electoral officer sends a mail-in ballot package to those electors who specifically request one by phone or in writing. The electoral officer has the assurances that the ballot package is being sent to the correct address and only those electors who are interested in voting receive a package.

  3. Advance polls in urban areas:
    Polling stations are established in select urban areas where a significant number of members reside. However, such polling stations do not eliminate the necessity of the mail-in ballot system, as not all members residing off-reserve reside in the selected urban areas.

  4. Electronic voting by telephone or the Internet:
    Some municipalities in Canada have instituted a system where electors can cast their votes over the telephone by punching in a personal identification number (pin) that has been pre-assigned, and then selecting their choice of candidates by punching designated numbers of the telephone keypad. The Internet also provides a similar mechanism for casting a vote. However, this type of system is costly to develop and implement, and requires extensive technological investment. It may also be difficult and prohibitive for some electors to access.

The Governance Branch delivered a presentation at this workshop that outlined major elements of an election code and points to be considered in each.

It should be noted that since this meeting, First Nation members not residing on reserve are now permitted to nominate or second the nomination of First Nation members vying for the position of councillor, as well as be nominated as a candidate themselves.

To obtain additional information or assistance on drafting election codes, please contact the Elections Unit at (819) 953-6151.