Custom leadership selection codes for First Nations

1 Custom leadership selection codesfor First Nations2 Custom leadership selection codes for First NationsContentsI. Introduction ..3A. Objectives ..3B. Approach and Scope ..3II. Key Findings ..5A. leadership selection and First Nations ..5B. Current Approaches to leadership selection ..6C. First Nations guidelines or rules for leadership selection ..7D. Issues affecting First Nation leadership selection ..8E. Guides and Resources on leadership selection .. 12 III. leadership selection .. 13A. Generic Model .. 13B. Elements of a Custom election code .. 25 Glossary .. 30 Resources .. 31 Appendix A. Custom code , self-government and Indian Act provisions .. 34 Appendix B. Custom Election code Fact Sheets .. 35 Appendix C.

2 Custom election codes .. 52 Appendix D. Sample training material .. 533 Custom leadership selection codes for First NationsI. IntroductionA. ObjectivesThe main objective of this report is to help communities to develop or amendcustom election codes . To that end, it provides: Background on leadership selection ; A discussion of the legal and other issues in drafting a Custom code ; Generic and actual samples of codes and the elements within them; Approaches to training;While it describes a range of options, it does not recommend one particularpath over another. There is too much difference between one community andanother to allow for wholesale adoption of a code used elsewhere. Eachcommunity will develop its own approach, one that best reflects its pastexperiences and its aspirations for the future.

3 The goal is to support theme that came through repeatedly in talking to communities was thatthe voice of the people must be heard. For that reason, another objective is toexplain some of the approaches that communities have taken to gather andreflect the thoughts of their citizens in developing and revising customelection Approach and ScopeThis report describes various approaches to Custom election codes that havebeen used or are in development. In some cases comments are also includedabout how well a particular option has worked for a report was prepared by Coutts & King Inc. under the direction of theGovernance Advisory Section of the National Centre for First NationsGovernance. It draws on interviews with First Nations across Canada,analysis of Custom codes and election procedures in self-governmentagreements and a number of relevant court Nations that were interviewed had adopted a Custom code already, wereconsidering or in the process of developing their First code , or were revisingan existing Custom code .

4 All were assured of confidentiality in sharinginformation. Anywhere that a specific community or nation is identified inthese materials, it is from a publicly available source, not from the leadership selection codes for First NationsPeople in the First Nations contacted generously shared their thoughts andexperiences. Most provided their Custom election codes , either in draft orfinal is clear from the interviews that what is put down on paper is often theresult of a long and sometimes difficult process of discussion within thecommunity, and the need to balance many differing considerations. A hugethanks to the people in First Nations communities, who helped immeasurablyon this project by providing insights into that leadership selection codes for First NationsII. Key FindingsA. leadership selection and First NationsLeadership selection is at the heart of good governance: citizens need to feelthat their leaders have been selected through a valid and fair , First Nations used a variety of selection processes.

5 In themodern era, however, leadership selection in most communities has beendominated by the Indian Act and its associated regulations. As commentatorsnote, under federal government control:The Minister responsible for Indian Affairs and hisdeputies were given wide powers over selectionand deposition of Band efforts [were made] to suppress traditionalnative structures of self-government, and to teachthe elements of English-style good government ,through imposition of elected band councils ..2 However, the Royal Commission on Aboriginal People confirmed in its 1996report the inherent right of all aboriginal peoples in Canada to governthemselves, and to do so under structures of their own choosing:The right of self-determination is vested in all theAboriginal peoples of Canada, including FirstNations, Inuit and M tis By virtue ofthis right, Aboriginal peoples are entitled tonegotiate freely the terms of their relationship withCanada and to establish governmental structuresthat they consider appropriate for their (Emphasis added)The report notes that there will be many ways for Aboriginal Nations toconduct their internal affairs.

6 In some instances these will draw upon a 1 Historical Review: Our Way (The Saskatchewan Indian Position), Saskatchewan Indian,June 1975, . Accessed March 13, 20082 Prospects for Aboriginal Justice in Canada, Palys, Ted S., School of Criminology, SimonFraser University, undated, ~ . Accessed February 15, Report of the Royal Commission on Aboriginal Peoples, October 1996, . Accessed February 27, leadership selection codes for First Nationsnation s traditions. In others they may synthesize traditional, non-traditionaland non-Aboriginal government procedures. Along those lines, communities are increasingly turning to Custom leadershipselection codes . Their goals typically include allowing their leaders to operatemore effectively and reclaiming or reaffirming aspects of their traditionalleadership selection .

7 A Custom election code sets out in writing what theprocess is, how its integrity is ensured, and how, if and when necessary, thecommunity can change it. Often, the Custom election code is a step along thepath that will lead ultimately to Current Approaches to leadership SelectionA First Nations community may conduct leadership selection under one ofthree possible approaches: Election procedures under a self-government agreement. Self-government agreements are federal acts passed into law byParliament. An agreement typically sets out the requirement for a self-governing nation to create a constitution (including a leadershipselection process) that is in accordance with the agreement. Anexample of this approach is the Westbank First Nation agreement,finalized in Alternatively, the agreement may include thosespecific elements itself, as was the case in the Cree Naskapi (of Quebec)Act, passed in A Custom election code .

8 A community that does not have a self-government agreement may use a Custom election code . The courtshave defined Custom as having to include practices generallyacceptable to members of the band and upon which there is a broadconsensus. To adopt a Custom election code , a community must seekto be exempted from the election provisions of the Indian Act. Toquote from the INAC website: ..removal from the Indian Act electionprovisions requires the issuing of a ministerial order in accordancewith subsection 74(1) of the Act which must then be registered inaccordance with the Statutory Instruments Act. 6 4 Westbank First Nation Self-Government Agreement, Section 43 (b), Accessed February 15, See Part II of the Act. Accessed February 2, Accessed January 28, leadership selection codes for First Nations Indian Act and related regulations.

9 Sections 74 through 79 inclusive,and the associated regulations, set out processes for these approaches, self-government provides the greatest flexibility andautonomy in developing the provisions of a code , followed closely by acustom code , while the Indian Act provides the least. Appendix A comparesthe kinds of provisions that are or might be possible under each words might be possible are important to note. The provisions of a self-government agreement are set through negotiation with the federalgovernment and considered by Parliament as a whole, while those of acustom code are subject to approval by the Minister of Indian Affairs statutes and codes , including the Indian Act, however, can be challengedin court under the Canadian Charter of Rights and table summarizes available information on the use of Custom codes andself-government agreements by region:Region:Number of nationsWithcustomSelf-governingTotal*Atl antic33721%Quebec3921977%Ontario1395540% The Prairies1799754%British Columbia19896652%* Percentage of all First Nations in the region using Custom or self-government election codesSource: First Nation Profiles at , other publicly availableinformation and.

10 May understate number of communities using Custom codes , as this information is notreported for some communities on the Profiles First Nations guidelines or rules for leadership selectionTraditional leadership approaches can be dealt with in a number of ways: The preamble to the Custom election code can discuss traditionalapproaches, such as a code of honour that leaders are expected to 7 :s_74//en#anchorbo-ga:s_74. Accessed January 28, leadership selection codes for First Nationsfollow. Provisions of the code itself can make reference to this codeand to the consequences of candidates failing to meet its The community can create a parallel governance system in addition tothe one described in the Custom code . This can consist, for example, ofa hereditary or elders advisory council that provides guidance to theelected chief and council.