Two years, too short: why a custom First Nations election policy is the key to stability
June 22, 2015 - Based on findings of the Royal Commission of Aboriginal Peoples of 1996, statements from the Assembly of First Nations and various First Nations communities, it is clear that First Nations are transitioning away from federal government policy to become self-sufficient and independent. A viable solution to political instability created by flawed election policy is for First Nations to create custom elections, allowing First Nations to acquire community input to develop their own election policy to develop political stability, address the unique needs of their communities and eventually achieve self-governance.
First Nation elections in Canada are controlled by a number of different federal government policies. There are currently several pieces of legislation that determine leadership selection processes on reserve including the Indian Act, custom election policies, self-governance agreements and the recently implemented First Nations Elections Act. Based on the 1996 Royal Commission on Aboriginal Peoples (RCAP), Aboriginal peoples desire self-government and self-determination[1] and have an inherent right to govern themselves under section 35 of the Canadian constitution.[2] In a 2012 presentation to the Standing Senate Committee on Aboriginal peoples, the Assembly of First Nations reiterated the fact that First Nations are attempting to transition into stable, self-governing communities,
“First Nations are in a period of transition and moving towards increased autonomy and self-government. Our approach to governance reform – our collective strategy – is to create the foundations of good governance that will support the transition of our Nations from essentially administering federal programs and services on behalf of Canada or “self-administration” under the Indian Act to self-government with appropriate accountability to our citizens.”[3]
However, current First Nation election policy does not allow those communities to become stable and self-governing and does not reflect the recommendations from the RCAP or the Senate Standing Committee on Aboriginal Peoples report. In fact, First Nation election policy prevents Aboriginal peoples from becoming self-governing and self-determining by creating political instability, leaving social and economic development seriously lacking within many First Nation communities across the country. Former Chiefs of Ontario Regional Chief, Angus Toulouse, said that two years is not enough time to develop, plan, and be accountable for results, “The frequency of elections can also create instability and uncertainty for community members, business ventures and overall community development. Clearly, there are better ways, and First Nations must drive the solutions.”[4]
Former Millbrook First Nation Chief Lawrence Paul also denounced two year electoral cycles, noting that short terms limit long-term planning and investment and limits leadership’s ability to act in the best interest of its citizens.[5] The instability created by short terms of office is also apparent in the United States Congress, as representatives are elected every two years similarly to Chiefs and Council under Indian Act electoral provisions. Two year electoral cycles in Congress were to give citizens the opportunity to hold government accountable and to elect new representatives if needed. An examination of Argentina’s Senate election cycles by Ernesto Dal Bo and Martin A. Rossi supports the notion that shorter terms contribute to political instability and inaction, “if campaigning commitments clash with legislative duties, a shorter term may lower legislative effort[. . .] if legislative efforts yield rewards that accrue over time, a shorter term lowers the expectation of reaping such rewards, which again discourages effort.”[6] If First Nations intend to transition towards self-governance, they must be able to become politically and economically stable through the development of their own custom election policy, which would allow communities to address their unique needs, to carry out their mandate and to improve their socioeconomic situations rather than preparing for an election every two years.
Two hundred and thirty-eight First Nations elect their Chief and council in accordance with election provisions in sections 74 through 79 of the Indian Act,[7] requiring an election for Chief and council to be held every two years. The extremely short two-year term often creates constant leadership changes, making it difficult for Chief and council to complete their mandate[8] – just as the newly elected leadership put their plans into action, they must begin preparing for another election. In addition, two year terms may be especially challenging for Chiefs and Council who have never held office as Theresa Hood, interim Band Manager of the Nuxalk First Nation, explains:
“With the elections within our community, we find that two-year election is not a long enough term for our council. They feel they are just learning our organization and the term ends. Once they have learned what happens internally, then we have another election, and it has such a high turnover within our council, then the process has to start all over again. We go backwards every time a new election happens. We also lose key members of our council every election, council who hold key portfolios.”[9]
First Nations acknowledge that electoral policy under the Indian Act is weak and does not provide enough time for leadership to complete their mandate, hinders long-term planning, and limits the ability to embark on ventures or partnerships, which leaves many communities static in terms of social and economic development.
Thirty-six First Nations in Canada are self-governing,[10] meaning they have either worked out self-governance agreements with the Crown or are not covered by treaty. These Nations are able to develop their own election methods, though they must still be in line with the Charter of Rights and Freedoms. Self-governing Nations have the utmost freedom in determining their leadership selection processes and can use traditional leadership selection methods such as hereditary chiefdoms or tribal councils. According to Aboriginal Affairs and Northern Development Canada, there are currently 90 self-government negotiations currently in process across the country, indicating that many communities are in the process of becoming self-governing.[11] However, many First Nations are not yet stable enough to become self-governing and need to transition from federal government control to independent Nations.
The First Nations Elections Act appears to offer First Nations a viable alternative to Indian Act election provisions as they move towards self-governance. Under the First Nations Elections Act, communities can opt-in to the legislation and would subsequently extend their terms of office from two years to four years, ideally allowing leadership ample time to develop and stabilize their communities. However, the First Nations Elections Act extension of terms of office from two to four years does not benefit every First Nation and does not address their diverse and unique needs. In order for First Nations to address their own needs, moving towards self-government, they must be able to create custom election policy and establish leadership selection processes that benefit each community individually.
According to Aboriginal Affairs and Northern Development Canada, 343 First Nations have developed their own custom election regulations and are exempt from Indian Act election provisions.[12] These community developed election policies must be approved by the Minister of Aboriginal Affairs and Northern Development. The creation of custom First Nation election policy allows First Nations to address their own particular needs by developing community based policy with community input. In addition, custom election policy allows communities to incorporate their traditional methods of governance, as a Cree community may govern differently than an Ojibway community. Custom election policies typically include extended terms of office, limiting the size of council and strengthening the nomination process for candidates.[13] Many First Nations have extended their terms of office to three years and others have staggered council elections – having half the council elected after three years and the other half three years later allowing for some continuity.[14] While the most recent data available from First Nations using custom codes is limited to 206 communities, 58 communities have opted to stay with two-year terms, 84 have adopted three-year terms, while 64 have embraced terms longer than three years.[15] It appears as though First Nations are discarding the two-year terms in favor of longer terms to become politically stable while transitioning to self-governance.
[2] http://laws-lois.justice.gc.ca/eng/Const/page-16.html
[3] http://www.afn.ca/uploads/files/parliamentary/regionalchiefjodywilson-raybould.pdf p.2
[4] http://www.parl.gc.ca/Content/SEN/Committee/403/abor/rep/rep03may10-e.pdf p. 20
[5] http://www.parl.gc.ca/Content/SEN/Committee/403/abor/rep/rep03may10-e.pdf p.19
[6] http://faculty.haas.berkeley.edu/dalbo/Term%20Length%20Final.pdf p.3
[7] http://www.aadnc-aandc.gc.ca/eng/1323193986817/1323194199466
[8] http://www.parl.gc.ca/Content/SEN/Committee/403/abor/rep/rep03may10-e.pdf p.19
[9] http://www.parl.gc.ca/Content/SEN/Committee/403/abor/rep/rep03may10-e.pdf p.20
[10] http://www.aadnc-aandc.gc.ca/eng/1323193986817/1323194199466
[11] http://www.aadnc-aandc.gc.ca/eng/1323193986817/1323194199466
[12] http://www.aadnc-aandc.gc.ca/eng/1323193986817/1323194199466
[13] http://www.parl.gc.ca/Content/SEN/Committee/403/abor/rep/rep03may10-e.pdf p.29
[14] http://fngovernance.org/resources_docs/CustomElectionCode_FactSheets.pdf
[15] http://fngovernance.org/resources_docs/CustomElectionCod_BackgroundTemplate.pdf p.25
Authored by Matt Pascuzzo, summer policy intern at Northern Policy Institute
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