Rejected candidate in Alberta First Nation election goes to court over residency requirement
|National Post 21 Jan 2019 at 16:36|
OTTAWA ‚ÄĒ¬†A member of a northern Alberta First Nation has gone to Federal Court after he was prevented from running for chief in a November election, arguing the decision to reject his nomination because he lives several kilometres off the reserve was unconstitutional.
Wayne Cunningham believes a provision of Sucker Creek First Nation‚Äôs election code, which states that anyone running for office must have lived on the reserve for at least six months before being nominated, discriminates against the majority of band members who live elsewhere.
The case is not the first of its kind. Since a landmark 1999 Supreme Court decision that found an Indian Act provision that prevented off-reserve residents from voting in band elections was unconstitutional, various court rulings have struck down residency requirements for those wishing to run for office. Most recently, a Federal Court judge last August that its chief and council live on reserve, finding that it reinforced ‚Äúthe historical stereotype that off-reserve band members are less worthy and entitled.‚ÄĚ
‚ÄúWe need to ensure that all band members are treated equally under the Charter of Rights and Freedoms,‚ÄĚ Cunningham said. ‚ÄúI have no intention of living on the reserve at this point in time. I never did. How can you expect someone ‚Ä¶ to come, live on the reserve, build a house, and leave whatever they have behind? ‚Ä¶ And they might not even get elected.‚ÄĚ
Cunningham said he‚Äôs lived most of his life in Joussard, a small community roughly 13 kilometres from the Sucker Creek reserve. He said only about one quarter of the First Nation‚Äôs nearly 3,000 members actually live on the reserve.
Cunningham decided to run for office last year after becoming disillusioned with the band‚Äôs financial transparency. His judicial review application says he was nominated as a candidate for chief at a meeting on Nov. 10, but the nomination was rejected three days later by the First Nation‚Äôs electoral officer, because he didn‚Äôt live on the Sucker Creek reserve.
The election was held on Nov. 28, and the incumbent, Chief Jim Badger, was re-elected. On Dec. 6, Cunningham filed an appeal with the First Nation‚Äôs election appeals committee, arguing that a new election must be ordered. ‚ÄúPreventing off-reserve members from running for chief or council perpetuates the wrong stereotype that off-reserve band members are uninterested in band governance, are less qualified to be in leadership positions, and are less worthy of consideration and respect,‚ÄĚ he wrote in his appeal, which was denied later that month. In a letter, the appeal committee stated that it was not in the committee‚Äôs mandate ‚Äúto capriciously redefine the election regulations to deal with this matter.‚ÄĚ
Cunningham is now demanding that the Federal Court overturn the committee‚Äôs decision, declare the residency requirement unconstitutional and order a new election.
In an interview, Badger told the Post he‚Äôs sympathetic to Cunningham‚Äôs case, and agrees that the residency requirement is probably ‚Äúantiquated.‚ÄĚ But he said there was no time to deal with the issue before the last election, and the community would have to vote on any change to the election code in a referendum. He didn‚Äôt say how he would respond to the Federal Court case, but he said there will be a community meeting on the issue next month. ‚ÄúI do want some way of addressing their needs somehow,‚ÄĚ he said of members living off reserve.
Can you imagine if all the chief and council were from Vancouver, how silly that would be?
Still, Badger also said that reserve residents have specific concerns that are different from those of members living elsewhere, including poorer infrastructure. He pointed to a lack of sidewalks and street lamps on the reserve. ‚ÄúThere are some basic differences,‚ÄĚ he said. ‚ÄúThat‚Äôs just being realistic.‚ÄĚ
He also pointed out that many of the First Nation‚Äôs members live in Calgary, Edmonton and Vancouver. ‚ÄúCan you imagine if all the chief and council were from Vancouver, how silly that would be?‚ÄĚ he said.
But Cunningham said it‚Äôs a ‚Äúdemocratic right‚ÄĚ to run for council. ‚ÄúAnd you as a voter have a democratic right whether you want to choose that person or not,‚ÄĚ he added.
Lawrence Lewis, the electoral officer hired by Sucker Creek First Nation, said he was obliged to reject Cunningham‚Äôs nomination because it violated the election code. ‚ÄúIn many respects, I totally agree with where he‚Äôs at, but my hands are tied,‚ÄĚ he said.
Cunningham‚Äôs appeal pointed to several relevant court cases, including a 2007 Federal Court ruling that decided off-reserve members of the Gull Bay First Nation in Ontario could run for council.
But Lewis said those cases don‚Äôt automatically apply to Sucker Creek. ‚ÄúThese decisions are specific to each nation ‚Ä¶ because each nation has a custom (election) code,‚ÄĚ he said.¬†Cunningham said some community members argue that the previous court decisions ‚Äúdidn‚Äôt happen in Sucker Creek so therefore we don‚Äôt have to acknowledge it.‚ÄĚ
Sucker Creek‚Äôs election code also says that only residents of the reserve are allowed to vote, which used to be a requirement under the Indian Act. But Badger said that hasn‚Äôt been applied since the Supreme Court‚Äôs 1999 Corbiere decision, which found that the Indian Act provision violated the charter rights of people living off reserve.
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