Introduction
Presently, Kitselas operates on an election system, which is regulated
under the Indian Act and the Indian Band Election Regulations. But a
recent Supreme Court of Canada decision (the Corbiere decision) is going
to result in some major changes to that system. This decision provides
you with an opportunity to re-examine your own election system and perhaps
find a better way to manage your community.
What is the Corbiere decision?
The Indian Act has very successfully divided our people into two classes:
“on-reserve” and “off-reserve” members. Along with
those classifications, the regulations have imposed a number of discriminatory
practices. One of these regulations affected who could vote during Chief
& Council elections. Four members of the Batchewana Band (near Sault
St. Marie) challenged these regulations under the Canadian Charter of
Rights and Freedoms.
On May 20, 1999, the Supreme Court of Canada
made a ruling that struck down the words “and ordinarily resident on
the reserve” from the section of the Indian Act which defines who can
vote in elections.
The Court gave the Department of Indian Affairs and Northern Development
(DIAND) until November 20, 2000, to consult with First Nations and come
up with a new set of regulations.
How does the Corbiere decision
affect Kitselas?
Kitselas conducts its elections under the Indian Act system. DIAND
determines all the rules and the procedures.The rules will change. Regardless
of what Kitselas does, you can no longer operate under the old election
system.
Non-resident members will be allowed to vote
in elections after November 20, 2000.
The Assembly of First Nations (AFN) has warned: “There exists
a potential for liability of First Nations Councils if they exclude
non-resident members from processes and decisions that directly affect
them.”
What do other communities
do?
There are 196 First Nations communities in B.C. 97 of them (or 49%)
do not operate their elections under the Indian Act. Four communities
operate under the Nisga’a Treaty and one under the Sechelt Constitution
Act. The rest have community-based election processes – and each
one of them is different. Some incorporate traditional customs and decision-making
processes. Others have simply customized the election process to suit
their community’s needs. Two Tsimshian communities have community-based
systems: Hartley Bay and Kitkatla.
What does Kitselas need to
consider?
Whatever choices Kitselas makes, it cannot conflict with such things
as the Indian Act, the Corbiere decision, the Charter of Rights and
Freedoms, the Constitution Act, the Human Rights Act, and the Canada
Elections Act.
What about community values?
When designing an election process, you’re really creating a vision
of how you want the community to be. What is important to Kitselas?
What values do Kitselas people have that make us distinct? For example,
the Charter of Rights and Freedoms addresses the issue of individual
rights. But Kitselas has a collective identity. Is there a need to protect
community rights as well? Balance and harmony is important to your community.
The DIAND election process is a “winner takes all” approach.
Is there a need to ensure harmony and balance in your election system?
Kitselas people are connected to the land and resources. No matter where
you reside, your traditional territory is your “home” and
a major part of your identity. How can the election system include that
value? The election process must be consistent with Canadian law and
provincial legislation – but, most importantly, it must be consistent
with the Kitselas way of doing things.
What guidelines does the Elections
Committee have?
In addition to all of the above, your Committee has identified some
other things that need to be considered in your election system. We
have adopted these as our Guiding Principles.
Accountability - you must ensure that the election
process and the people elected are accountable to the people of Kitselas.
Avenue for redress - there needs to be a way
to appeal decisions or to recall our elected officials if necessary.
Community ownership - you must ensure that this
is your election process and that it reflects the way you want to conduct
business.
Communication - you need to make sure that the
community (both “on-” and “off-reserve”) knows what
your elected officials are doing and what decisions are being made.
Inclusiveness - you need to include everyone
in the process and reach out to the non-resident (“off-reserve”)
population.
Fairness - the system must be equitable and fair,
so that everyone has equal rights. Not only must justice be done, it
must be seen to be done – everything must be clear and visible.
Impartial process - the system can’t favor
a particular party or faction.
Focus on the community - the system must meet
the needs of Kitselas members and be understood by everybody.