Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 6 - Evidence - Meeting of May 13, 2009
OTTAWA, Wednesday, May 13, 2009
The Standing Senate Committee on Aboriginal Peoples met this day at 6:31 p.m. to study on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and on other matters generally relating to the Aboriginal Peoples of Canada (topic: issues pertaining to Indian Act elections).
Senator Nick G. Sibbeston (Deputy Chair) in the chair.
[English]
The Deputy Chair: Welcome, all senators that are here tonight, members of the public, our witnesses and the viewing audience. We will be televised through the CPAC and over the web.
I am Nick Sibbeston, the deputy chair of the Standing Senate Committee on Aboriginal Peoples. I will be chairing the meeting tonight in the absence of our chair, Senator St. Germain. Our mandate on this committee is to study legislation and matters pertaining to the Aboriginal peoples of Canada.
On April 1, 2009, this committee agreed to focus its work on examining issues relating to elections held under the Indian Act regime. Specifically, the committee intends to seek the views of affected First Nations and other interested groups with respect to three elements: One, the extension of terms of office of chiefs and councils, which are currently two years under the Indian Act; Two, the establishment of fixed or common day election dates; and Three, possible removal mechanisms should terms of office be extended.
The committee will also be seeking the views of First Nations on whether and how changes in these areas would enhance political accountability of the leadership to its citizens. To this end, we will be holding meetings in a number of areas in our country, beginning in about two weeks' time when we will be in Winnipeg and Dauphin to meet primarily with First Nations representatives on this issue.
This evening we have representatives from the Department of Indian and Northern Affairs Canada, but first I will introduce the senators that are here tonight.
There is Senator Patrick Brazeau from Quebec; Senator Nancy Raine from British Columbia; Senator Daniel Lang from the Yukon; Senator Elizabeth Hubley from Prince Edward Island; Senator Sharon Carstairs from Manitoba; and Senator Lillian Dyck from Saskatchewan.
Let me introduce the witnesses who will address us this evening. They are Brenda Kustra, Director General, Governance Branch, Regional Operations Sector, Indian and Northern Affairs Canada; Marc Boivin, Manager, Governance Branch, Indian and Northern Affairs Canada; and Nathalie Nepton, Director, Band Governance Directorate, Indian and Northern Affairs Canada.
Please feel free to proceed and when you are done, we would appreciate it if you will be open to questions from the senators.
[Translation]
Brenda Kustra, director general, Governance Branch, Lands and Trust Services, Indians and Northern Affairs Canada: Thank you, good evening to everyone. We are here tonight to inform and to answer your questions about the election systems used by Canada's First Nations.
[English]
Thank you for inviting us here this evening to present to you on the subject of elections in First Nations communities in Canada.
Reforming First Nations elections has been the subject of study for many years, going back to 1998 when we did some joint work with the Assembly of First Nations in the area of policy development, and through legislative initiatives where we struck a Joint Ministerial Advisory Committee on First Nations governance in the year 2001.
We have currently been working with the Assembly of First Nations, the Congress of Aboriginal Peoples, and the Assembly of Manitoba Chiefs to pursue various elements of electoral reform.
I had the honour to be here at the Senate last June, 2008, to kick off a discussion on elections and provided an overview of elections at that time. Today I would like to present an update on the work we are doing, and also provide you with a little bit of information in terms of some of the statistics around the election framework in First Nations across Canada.
There are three ways in which First Nations leaders are selected in the communities across Canada. Forty-one per cent of the nations, which is 250, elect their leaders under the provisions of the Indian Act, the federal legislation. Fifty- four per cent of the communities elect their leaders according to a community custom that is outside of the provisions of the Indian Act. Five per cent of the nations in Canada, which is 29, elect their leaders through a process they have designed through their self-government arrangements.
The role of INAC varies greatly depending on the electoral regime in the communities. Under the Indian Act, INAC is involved in the approval of electoral officers, approving the number of council positions in individual communities, reviewing, investing and making recommendations on election appeals, as well as removing elected officials from office under very specific circumstances when there have been breaches of the legislation or regulations.
This regime under the Indian Act is currently being challenged in the courts. Residency provisions of the legislation have been struck down in the decisions related to Corbiere, which provided opportunities for members who lived off- reserve to vote in their community election, and most recently in the Esquega/Gull Bay decision, which provided for off-reserve members to actually run for council. Up until this time it was required that people actually live on the reserve if they were to seek an elected position in the community.
First Nations leaders are also challenging the provisions of the Indian Act and they are challenging these provisions specifically with reference to the two-year term of office. They feel that two years is too short a period of time for leaders and council to actually get a grasp of the position that they are in and to develop and implement plans, negotiate agreements and effect real change in the communities.
Community members are also challenging the provisions of the Indian Act.
There are many cases in which the mail-in ballot system is subject to abuse and fraud, and there are ineffective mechanisms to deal with corrupt practice. The election appeal process is long and cumbersome, and in many cases takes many months to resolve. We have experienced situations where the actual appeal process could take between 12 to 18 months, and when you have a council that is in office for only two years, they are living under the shadow of an appeal for that entire period.
There is a process in the Indian Act as it exists right now for First Nations to be removed from the electoral provisions of the Indian Act. This process is called the conversion to community custom. In 1996, the department developed a formal policy to facilitate this conversion from the Indian Act to community custom.
In this process, a community is required to develop an election code that suits the needs of their community. They are required to consult with their community and to actually get approval from their community on the process that they would like to take forward. The conversion to custom policy also requires that the community election code is compliant with the Charter of Rights and Freedoms and the principles of natural justice. The code must also provide for an amendment process.
Once an Indian Act band is removed from the provisions of the Indian Act, there is no longer a role for INAC in that system, and the community can, at any time, according to the amendment provisions in their act, change their electoral code.
When I referenced the fact that the code must be consistent with the Charter, I am specifically making reference to voting rights for off-reserve members, a realistic mechanism by which off-reserve electors can participate in electoral processes, and the opportunity for off-reserve electors to hold positions on band council.
Since 1996, when this policy came into effect, 39 First Nations in Canada have been removed from the provisions of the Indian Act and are operating under their own electoral system. British Columbia is the province in which the greatest number of conversions are taking place.
I made reference earlier to the fact that 5 per cent of the First Nations operate under self-government agreements. It is important for us to understand that the leadership selection processes, which are included in those self-government agreements, must also be Charter-compliant and set out a clear process for leadership selection through the development of a Constitution.
Many First Nations have strong and effective leadership selection systems. Some face significant challenges. There are communities in which some election systems have never been written down; they have never been codified. The community operates under an oral tradition. In these situations, it is very difficult for individuals to appeal the election process in their community.
In some communities, there are different electoral codes that seem to be operating at different times. This is particularly evident in communities where you have rival factions competing for leadership and you do not necessarily have a good understanding of the exact code by which the community is operating. This causes a great deal of conflict in the community and certainly unrest with respect to the overall governance in the community. There are a number of cases currently before the court challenging the provisions of community election codes as well.
Prior to the Supreme Court of Canada decision in Corbiere, which extended voting rights to non-resident band members, election codes developed for the purpose of converting to the Indian Act were not required to allow off- reserve members to vote. Basically, what this means is that community codes that existed prior to 1999 may currently be operating in a situation where off-reserve members are denied the right to vote. It would only be at the urging of community members to the elected officials that that code could in fact get changed. There is no role for the federal government to impose any changes in those communities.
The same situation holds true with respect to the residence of individuals who would like to run for council. In those communities that passed codes prior to the Esquega/Gull Bay decision, there is no requirement for those communities to allow members who live off-reserve to run for office. It is strictly the intention of the community as to whether or not they wish to revise their code to allow that to happen.
As I indicated, we have been doing some work with a number of partners over the last couple of years, people who are interested in looking at the electoral provisions of both custom codes and Indian Act codes. In 2008, we did some work with the Congress of Aboriginal Peoples, and that particular organization did an analysis of roughly 80 custom election codes, specifically to determine whether or not those codes were Charter-compliant. There is no requirement for First Nations to register their custom codes with the Department of Indian Affairs, and as a result, when many disputes arise, we do not have a current custom code to refer to. Residents or members of communities who have issues with their code are required to go to the court or whatever local dispute mechanism is identified in their individual code.
As I indicated earlier, the appeal process in Indian Act elections is long and complicated. As a result of recent judicial reviews, the department has made changes in terms of the way we handle the circulation of election appeals to appellants and interested parties. This provides everyone with an opportunity to review and provide comments on investigation studies that are taking place with respect to election appeals. However, it substantially elongates the process of making final decisions with respect to dispute resolution.
Currently, the department has received an invitation from the Atlantic Policy Congress to work with them on looking at extending the term of office for community elections. They are interested in moving away from the two-year term of office to something longer. They have also expressed an interest in potentially looking at other elements of the election provisions of the Indian Act.
I would like to share some of the rationale that the Atlantic chiefs have indicated in their proposal to us with respect to the two-year term of office.
The chiefs in the Atlantic region have indicated that the two-year term of office does not provide sufficient time or opportunity for chief and council to really learn and exercise their roles and responsibilities as elected officials. They feel that the two years is also an inadequate time frame to develop strategic and community plans, to implement actions and to assess performance.
They also feel that two years is not a long enough period of time to actually attract investment to First Nations communities. They often start negotiations and then it is time for an election. If the council or chief lose their positions, the potential investors are dealing with a new slate of individuals at the community level.
The Atlantic chiefs have also indicated that there are other elements they would like to look at in terms of the mail- in ballot system and other issues that many of their communities have faced in the past.
One thing relates to a balance of council between off-reserve members and on-reserve members. With the Esquega/ Gull Bay decision, it would be possible to have the council comprised 100 per cent of folks who live off-reserve. They would like to see how they can balance the composition of council to better reflect the needs of the community.
INAC is interested in working with willing First Nations or groups of First Nations across the country to explore opportunities for electoral reform. These are initiatives put forward by First Nations leaders and organizations, and we are willing to work with groups that come forward. We have also done some work with the Assembly of Manitoba Chiefs. They are also interested in looking at the term of office and the potential for a common election day.
There are 250 elections under the Indian Act, and roughly 50 per cent of those take place every year, so there are roughly 125 elections every calendar year. With the mobility in First Nations communities, it is often difficult for communities to keep track of where their members live in order to get information to them about the electoral process.
Many think that a common election day would make it easier for the electors to exercise their rights in community elections.
Senator Brazeau: Thank you to all three of you for appearing before the committee.
I have three or four pages of questions, but I will try to limit them.
As are you aware, I have worked quite extensively on these matters for a number of years. In particular, I have worked with Ms. Kustra on this issue since 2001, so we go back a bit.
My first question is very short. Would you agree that some of the issues that are being proposed by the Assembly of Manitoba Chiefs and the Atlantic Policy Congress with regard to reforming governance under the Indian Act is exactly what would have been achieved under the proposed First Nations governance act introduced by the former Liberal government in 2002?
Ms. Kustra: Many of the issues that are being raised were also raised during the time of the development of the First Nations governance act; things like the balancing of council, the term of office, recall provisions and more specificity around how community elections are conducted. Those kinds of things were included in the provisions of that proposed act, and we see those same concerns coming forward now from the Assembly of Manitoba Chiefs and the Atlantic Policy Congress.
Senator Brazeau: The second bullet on page 6 of your PowerPoint presentation says:
At the time a First Nation is removed from the Indian Act system the election rules laid out in the code are deemed to be compliant with the Charter and with principles of natural justice.
I assume you mean the codes are deemed by INAC to be compliant.
Ms. Kustra: That is correct.
Senator Brazeau: I have studied custom codes extensively in the past. I can safely say that the majority of custom codes in Canada could have differing election rules. Many of these custom codes still discriminate against people, preventing them from participating in the democratic process. I can also say that they are not necessarily Charter compliant.
If codes are not in written form and filed with the department, how can the department deem them to be Charter compliant and to follow principles of natural justice?
Ms. Kustra: When a community requests to be removed from the Indian Act, they are required to submit a written code, which is reviewed for compliance with the Charter of Rights and Freedoms and the principles of natural justice. That is a requirement to be removed from the Indian Act. There is only one time that the department has an opportunity to do that assessment of a community custom code, and it is at that point.
A code could be deemed Charter compliant when it is submitted to the department for consideration. If it is, a recommendation would be made that the community be removed from the Indian Act. However, after that time the community could revise their code according to their amendment process, or their revision process, as many times as they want, and they never have to resubmit it to INAC.
We can assure the community and Canadians at large that those codes are compliant on the day on which the community moves out of the Indian Act into community custom, but after that there is no role for the government. The accountability is from the individual citizens to the elected chief and council.
Senator Brazeau: Would you also agree that there may be situations in which a community would submit a written custom code to the department that the department would deem to be compliant with the Charter, after which the chief and council could call an election without notice and could deny some residents, on- and off-reserve, the right to participate?
Ms. Kustra: First, there is no role for the department in making that assessment. However, if the chief and council are following their written code, then individuals in the community who feel that their rights are being negatively impacted would appeal to whatever appeal mechanism is in the code, and in many cases it would be the Federal Court.
If the chief and council and the leadership were not following their code and the individual members appealed to the court, it is likely that the court would find that the code was not followed and would overturn the results of the election.
Senator Brazeau: I ask these questions because I had the opportunity, in the work I did previously, to hear complaints from many First Nations citizens from across Canada about the electoral systems by which they had to abide, regardless of whether they were able to participate. I have binders of correspondence of complaints that I received in the last few years.
Does the department have any statistics on this? I see on page 11 of your presentation that the department is not in a position to provide any statistics or information on this issue. If INAC is providing funding for communities to hold elections without knowing that people are able to participate in those elections, I have a problem with the department washing its hands and saying that it does not deal with custom codes and has no enforcement power over those codes, and therefore there is no need to keep those statistics.
Ms. Kustra: The enforcement powers of the custom codes are largely through the courts rather than through the Department of Indian Affairs. Through the recognition and acceptance of the custom codes the department is recognizing the authority of the chief and council and of the community to establish an electoral system that will work for the community.
I again go back to the accountability between the citizens and the elected officials to make that system work, rather than to rely on the federal government as the enforcer, if you will.
Senator Brazeau: I will go back on that point later with respect to Peguis, so I will give you a heads up on that.
Does the department have any opinions as to whether custom codes that have been filed with the department provide a more democratic process than the current Indian Act election process?
Ms. Kustra: I do not have any specific analysis, Senator Brazeau, on that issue. When we review the custom codes that are submitted, part of the review of course is that the code being presented does reflect a democratic process for the people in that community on the day on which it is submitted and the decision is made to permit the community to move out of the Indian Act into a community custom system.
We do ensure that the process is democratic at the front end, but as I say, what happens after that is really part of the accountability mechanism at the community level.
Marc Boivin, Manager, Governance Branch, Indian and Northern Affairs Canada: I would just add that the codes we can speak definitively about are the ones that are submitted, as Ms. Kustra said, with respect to having to get out of the Indian act. They tend to be good codes. They do have similarities with the Indian Act system because obviously the Indian Act system has a lot of the fundamentals that all elections have, so they tend to have similarities. However, they tend to be more robust and address many of the weaknesses of the Indian Act system. We can only speak authoritatively on the ones presented to us for the purpose of conversion.
Senator Carstairs: How many staff are in the governance branch? How many are Aboriginal and what is the highest ranking position of an Aboriginal Canadian in the branch?
Ms. Kustra: At this point in time I believe we have 30 people working in the governance branch in total. I do not have the Aboriginal percentage off the top of my head, and the highest ranking Aboriginal person in the branch would be Nathalie Nepton, who is the director of the band governance branch.
Senator Carstairs: On page 3 of your presentation you give the breakdown between those elections held under the Indian Act and the others. In essence, only 41 per cent are held under the Indian Act. What indicator do you have showing better governance in those communities governed by the Indian Act compared to the others?
Ms. Kustra: We have election disputes in Indian Act elections and in custom elections, and the issue of governance goes beyond the electoral system. It relates to issues of accountability; citizen participation; open, transparent processes; engagement in the community; and, community planning. The electoral system is really only one factor that feeds into good governance at the community level, and one must take all of those things into account when considering communities that demonstrate capable, well-functioning governments and those that do not.
Senator Carstairs: That is clearly true, but in your experience is there better governance in those communities that are governed under the Indian Act for the purposes of elections or is there no real differentiation between the group under the Indian Act and the other group?
Ms. Kustra: There is a range of experience in both categories. I do not think I could say that there is better governance under one system than the other. It depends on the leadership and the community at large.
Senator Carstairs: You have indicated of course that there is, within the custom or self-governing units, only one real way to appeal and that is through Federal Court. Is there a legal aid system made available to Aboriginal Canadians who would choose to appeal a lack of compliance, as they saw it, with the Charter?
Ms. Kustra: No, there is not, Senator Carstairs.
Senator Carstairs: Has that been considered or contemplated?
Ms. Kustra: Not to my knowledge.
Senator Carstairs: There has clearly been some questioning about the two-year term, and yet the House of Representatives in the United States, which I think most people would regard as an effective way of governing, is in fact a two-year term. What is your response to that?
Ms. Kustra: We are operating in a system now which is a two-year term, and the reason we are looking at the change is that community leaders are coming forward asking for that change. They have also said they would like to look at recall provisions if they are going to a longer term of office. As I said earlier, we are responding to the requests of leaders and communities to look at that term of office, and ultimately, it will be the recommendations that come forward from that work as to how the legislative change might take place.
Senator Carstairs: I would be more concerned about what the members of the community have to say than what the leaders have to say about a two-year term.
Senator Lang: There are quite a few issues here. One that comes to mind immediately is the fact that we are going to Manitoba, as the chairman pointed out, in about two weeks' time. On page 15 of your presentation you state:
INAC respects the path the Manitoba chiefs have chosen. However, given the decision to proceed without legislation in the AMC's next steps, the department does not see a role for itself.
Could you further explain ``given the decision to proceed without legislation''? What does that mean?
Ms. Kustra: The Manitoba chiefs have decided that they will consult their communities with respect to legislative reform that would see them move out of the Indian Act through the custom conversion policy rather than create a legislative framework that would be applicable to Manitoba First Nations.
Because we are not talking about legislation but rather a process of conversion to custom, that is a discussion between the leaders and the community. As Senator Carstairs indicated, she would be interested in knowing what the community says. That is exactly what the Manitoba chiefs will be doing in the spring and summer period. They will go to their communities and talk to them about the process of electoral reform and get a sense from them whether they want to proceed with a process that would be a conversion to custom or whether they want to follow a legislative framework.
Senator Lang: Could you inform the committee how many First Nations are presently under third-party management?
Ms. Kustra: I do not have those numbers with me; I am sorry, senator.
Senator Lang: If I am not mistaken, I think that number was given to us sometime ago and was in the neighbourhood of 30. These are obviously communities with a lot of problems. If you look at your page 12, which shows a variety of elections issues, with this type of thing happening within the community and going to third-party management, obviously many of these problems have been brought on by it or are a part of it.
I would like to know if you could bring back to the committee a statement as to, out of those 30, 40 or 50, whatever the numbers that are in third-party management, how many of those were custom elections and how many were under the Indian Act elections?
The Deputy Chair: Ms. Kustra, is the fact that the issue of third-party management is under a different directorate or division in the department the reason you do not have that particular information available?
Ms. Kustra: Yes, it is not part of the mandate of my directorate. There is a link to the electoral processes. If there is a community that has a governance dispute that in fact compromises the delivery of essential programs and services, then a decision might be made to put the community into third-party management because there is no leadership in the community, and the essential services are being compromised to the members in that community.
However, in cases where we have electoral leadership disputes in communities, and the community has a strong system for program delivery and there is no concern that essential programs and services to members are being compromised, there would not be a decision made to put that community into third-party management.
It is not a decision that is automatic when there is a dispute. It is really based on the ability of the community to continue to serve its members.
Senator Lang: I would like to go back to another issue, and that is the issue that Senator Brazeau raised. It is the question of the custom code. I notice that every time you speak of that, you make it very clear that the day you approve that code, as far as you are concerned, it must be Charter compliant and it must meet all the requirements of natural justice; but if there are changes down the road and they do not meet the Charter requirements, it does not matter to you because you have done your job and this is now separate and apart from any responsibility of INAC. Is that the correct? Is that the position you are taking?
Ms. Kustra: That is basically correct. There are court decisions that have challenged custom codes with respect to Charter compliance. The courts have ruled that certain custom election codes do not respect the Charter of Rights and Freedoms and have required that those codes be updated at the community level.
Senator Lang: Who is responsible for ensuring that they adhere to the ruling brought forward? Someone must be the referee; is that right?
Nathalie Nepton, Director, Band Governance Directorate, Indian and Northern Affairs Canada: As with all court decisions, it really depends on the two parties. Whoever the decision is against, it is their obligation to carry out the court's orders.
Ms. Kustra: There is an oversight role for the department, though.
Senator Lang: At that stage, you do not require that they provide you with a document that they revised their code in order to be Charter compliant, even after a court said they must do so?
Ms. Nepton: In the case of a judicial review of a custom code's legitimacy or validity of its provisions, it goes back to the First Nation in order to implement that decision, just as it would in any civil matter. The department is not a party to the action. The dispute is between the individual and the band. The department is not a party to the action, so that is why it does not have a role to play in that context.
The Deputy Chair: Would the First Nations not consider that it is their own business and they do not want the department to continue delving into their lives? Would you not think, Senator Lang, that First Nations, in a sense, would be incensed if the department continued vetting and monitoring and so forth? It seems to me that would be the issue.
Senator Lang: I guess I would put it this way: It is not unlike taking a municipality under a municipal act in any province into third-party management, or if they are in violation of very significant parts of their Charter, the province steps in and ensures they adhere. That is my question.
It is one thing to make a decision that if things are wrong and they must be corrected. I would assume there must be a third party that ensures they are following what was laid out to be followed. If they do not do that, who does? I am thinking about the individual who lives in the community, has very little power, a small voice. Their rights may well end up being infringed upon. That is my question.
I do not think the department should be running the business, but on the other hand, there must be something out there that says if things have gone awry, they ensure it is corrected. Someone may check and see that is it is indeed corrected. That is called accountability. Who do you account to?
Senator Hubley: Thank you very much for your presentations this evening. I have a couple of questions.
Those bands that have moved from the Indian Act to another form of elections, what do they give as their reason for doing so?
Ms. Kustra: One of the key reasons for moving to custom is to change the term of office. Many of the custom codes that are presented to us follow the Indian Band Election Regulations quite closely except for the term of office. With custom election codes, we often see terms of office of three, four and five years.
There is also an opportunity in some cases for the community to import some of their traditional customs into the democratic electoral process and to create the kind of balance that they cannot achieve under the provisions of the Indian Act.
Senator Hubley: Do they ever cite reasons like having governance that is comparable to other municipalities or communities so that they would then better be able to communicate with those, have the same style of governance and perhaps find some mutual strength in that? In other words, being able to partner with other communities and things of that nature.
Ms. Kustra: I think the communities really look at the election system as separate and apart from some of their broader governance initiatives and their overall accountability and ability to partner with corporate Canada, other municipalities, et cetera. I think they see strength in an election system that they have designed and operate themselves as opposed to a system in which they continue to be under the system of federal legislation and under what they probably view as the heavy hand of government.
Senator Hubley: One of the issues we have studied is economic development. The First Nations communities that have had successes in that regard, and many of them have, have partnerships with other municipalities and, obviously, businesses.
I am wondering if you see that putting in a governance system that allows them the time to develop these relationships would be a positive thing. Is it something that they view as being important or something that we just feel might be helpful?
Ms. Kustra: It is an important element. There are examples of very prosperous First Nations who elect their leaders under the Indian Act. I am sure the committee, having looked at economic development, would have looked at the situation of the Osoyoos First Nation and Chief Louie, who was elected under the provisions of the Indian Act. We can also think of the Westbank First Nation, which is now operating under the self-government agreement. They have decided to fully design all aspects of government in addition to their leadership selection.
Membertou First Nation in the Atlantic provinces as well would be a good example of a community under the Indian Act, under the two-year term, which has prospered and flourished and made significant partnership arrangements with others to benefit their community.
Senator Hubley: For the bands that govern their elections on a two-year term, is there continuity? Does the chief get elected maybe every two years for a period of time, so that there is some continuity in that governance, or is it a new chief every two years?
Ms. Kustra: There certainly are situations where chief and council are elected for a number of terms. It goes back to the track record or the performance of a chief and council in delivering on economic opportunity for the community or being responsive to the needs of the community. It gets back, in my view, to the leadership of the individuals rather than the system.
Senator Dyck: Why would an individual First Nation choose to go the custom route? Does it have anything to do with the size of the community, the number of members, or whether it was a community that could be deemed financially healthy and was doing well economically? Does it have to do with whether it was a particular First Nation that had a large number of Bill C-31 First Nations that were returning to the community that had changed the overall mix within the community? I do not know whether in your data banks you collect that type of information, and if you do, could you perhaps provide us with that information?
Ms. Kustra: That is a very good question. There are probably a variety of reasons that First Nations communities come forward and wish to operate under a community custom as opposed to under the Indian Act.
If we were to look at the over 300 nations that are operating under a community custom, we would find communities of all sizes with membership that is both on and off reserve. We would find communities where there is a large on-reserve population and others where the population is split. We would have communities that are financially healthy and also those that are struggling. It is a reflection of the aspirations of the community because there is a community approval process associated with the transfer from the Indian Act to custom.
Senator Dyck: You were saying that an individual First Nation that wishes to convert needs to submit a written document to your department. You must have some kind of standard checklist or a certain minimum kind of customary code that each First Nation must meet. Is there such a framework, and is that framework shared with the individual First Nations? For example, does it say on the form that you must have these following principles, and check the boxes if you do?
Ms. Kustra: The election codes submitted to the department must be compliant with the Charter of Rights and Freedoms, must provide voting rights for off-reserve members, must have an appeal mechanism and must have an opportunity for off-reserve electors to participate in the electoral process.
The department offers what we call ``custom code workshops.'' In a particular region, where we have a number of First Nations or even only one who has expressed an interest in pursuing the development of a community custom code, Ms. Nepton's staff along with Mr. Boivin's hold workshops to explain to the community the process of moving from the Indian Act into a community custom and the requirements, such as the ones I have listed here.
Quite often, the process takes in excess of two years from the time a community starts to think about moving to custom to the point where they have a vote in the community to make a decision that they do want to proceed with the code that they have developed. Then it is submitted to the department for consideration.
Senator Dyck: I do not know about the other senators, but in my mind, it would be useful to have several examples. We are talking about these things, but I have never seen one.
Is there a variation from what you would consider the bare minimum to something that you consider to be quite elaborate and foolproof, as it were, that would work extremely well? I do not know whether it would be useful to provide examples to the committee.
The Deputy Chair: Would you be able to provide a number of copies of these election rules?
Senator Lang: I assume that all these custom codes are public documents; are they not?
Ms. Kustra: No, they are not. The custom codes are public documents from the perspective of a community. They should be available to all the members in the community, but they are not necessarily public documents that are widely available across the country.
Some nations, I believe, have their election codes posted on their community websites; others do not.
In circumstances where we have disputes in communities, often members will call the department asking for copies of the code, and as I mentioned earlier, we do not have the current copies of the code. We only have the copy that would have been submitted at the time the community requested a move out of the Indian Act. Many communities were never under the Indian Act, and the election regime that they use to elect their leaders would be basically totally unknown to us.
The Deputy Chair: Ms. Kustra, would you be able to provide us with just a sample copy, without necessarily knowing which First Nation it is, to give us an idea of the types of election rules there are?
Ms. Kustra: Yes, I can.
Senator Dyck: The research analyst has just handed me something from your website, a Sample Leadership Selection Code.
The Deputy Chair: Does that suffice for you?
Senator Dyck: It looks like it would be what you use when you go out to hold workshops.
Ms. Kustra: Yes, that is correct. That has all the basic elements of what we believe to be a good electoral code. Communities work from that as a template and flesh it out to reflect the perspectives and the wants and needs of the individual community, while still addressing all of the key components of a code that are required in order for us to accept it.
The Deputy Chair: Does that satisfy you?
Senator Dyck: Yes.
Senator Peterson: Thank you for your presentation. Most First Nations that have appeared before this committee have indicated to us an inherent distrust of INAC and the Indian Act. Do you feel that more First Nations would gravitate toward custom elections if INAC were more supportive and encouraged them and worked with the bands in consulting their communities, particularly providing financial help?
Ms. Kustra: We definitely do work with communities who express an interest in moving to community custom. In any given year, we probably conduct between eight and fifteen workshops with communities who are interested in moving this way. We provide the sample codes for their consideration, and in some areas there is some support provided to the community to proceed with the ratification process. Where they have large amounts of material that must go out to inform their members, we often provide support in terms of developing information packages for them to share to seek the consensus of their community.
Senator Peterson: Could you give us your views on the potential section 35 implications of election provisions in the Indian Act dealing primarily with the terms of office and establishing fixed election dates? Does this impact on the rights of First Nations?
Ms. Kustra: Not being a lawyer, I do not feel comfortable answering that question with respect to the implications on section 35 rights. A number of lawyers across the country have submitted opinions from time to time to First Nations organizations with respect to that question.
Senator Peterson: I would think your department would have a view on this. Perhaps you could provide that at some later date.
My concern is that the Crown is exiting from this whole process. They are obviating their fiduciary responsibilities and their duty to consult. I get a sense that they say, ``You have done that work. We are out of here. We are giving up on you.'' Is that true or not?
Ms. Kustra: Where we remove ourselves from electoral processes, it is at the request of the First Nation. It is not something that we impose on First Nations communities. All our work with the communities to move from the Indian Act to custom is done in response to community requests. The work that we are doing right now with the Assembly of Manitoba Chiefs and with the Atlantic Policy Congress is all in response to requests from those organizations to work with them. They want either to develop new legislation that is more rigorous and better reflects the needs of a particular group, or to work with the organization and the communities to move out of the Indian Act through the custom conversion process. It is in response to their requests; it is not driven by the federal government.
Senator Peterson: In Manitoba, which have you just spoken about, they have suggested now that the department has retreated because they want to go to the communities and discuss it with them. You removed yourself, is that true? You said you were helping but you have now removed yourself?
Ms. Kustra: It is the mandate to the chiefs to go to their community to discuss issues with respect to future electoral processes in the community. That is clearly a discussion that must take place between the citizens, the residents, the members of the community, and the leaders. We will respond to the information that is brought back after that process is concluded.
Senator Peterson: However, the minute they do that, you do remove yourself from the discussion. That is, when they say, ``We are going to talk about community rather than the legislative approach.''
Ms. Kustra: They have indicated that they want to go to the community to talk to them about how they wish to proceed. Given the view that you also shared in one of your opening comments, namely that there is dislike for the Indian Act and for the department, there will probably be a more frank discussion if the department is not at those community meetings.
However, if we are asked to go in and provide information or to hold a workshop, as I have already indicated, we would certainly be prepared to do that.
Senator Peterson: It seems that more discussion between the chiefs and their community is a good thing, not a bad thing.
Ms. Kustra: Yes.
Senator Peterson: We should encourage them and help them and not withdraw.
Do you have any data to demonstrate what is taking place in Atlantic Canada with regard to election preferences? I did not see anything in your briefs.
Ms. Kustra: Yes. The Atlantic Policy chiefs have come forward to ask us to work with them on a process that would lead to a longer term of office and potentially the development of codes that would better reflect the needs of their communities, basically to reform the Indian Act for the communities in the Atlantic region only. That is, not for anywhere else in Canada; only for those particular communities.
Senator Peterson: Section 35 does not come in on this at all? We have been through that. You will check it. Thank you.
Senator Raine: I am finding this fascinating but I have some questions. First, in your pie chart, you talk about the percentages under the different types of election procedures. Regarding custom, do I understand that only 20 of those are post-Corbière? There is a further group that were always custom based, so they do not have to live up to the Charter. In other words, they just do their own thing. Is that correct?
Ms. Kustra: That is correct.
Senator Raine: Out of the 336, how many would that be?
Mr. Boivin: Of the 336, roughly one third have never been subject to an Indian Act election order.
Senator Raine: Two thirds have and some of them are further along because they have come into custom post- Corbiere?
Mr. Boivin: The idea of moving out of the Indian Act started in the 1970s. Bands moved out in the 1970s and the 1980s. That is why the numbers do not balance. The ones there when the official policy went into place are the ones on which the department put that review funnel.
Senator Raine: Is it fair to say that there are a significant number of First Nations communities in our country where they do not have to follow any of what we would call a check list that would ensure the principles of democracy as we understand it, but also we have not seen their codes? That is to say, we do not know what their codes are.
Ms. Kustra: That is correct. However, we should also not assume that they are not following principles of natural justice or have not changed their code to be Charter compliant or to provide opportunities for off-reserve members to vote.
Senator Raine: I appreciate that. They may be doing a great job.
I hope that you keep statistics. You get complaints from individual band members, not from bands. I interpret that to mean that the council and the chief are presenting a position on behalf of the band. I am talking about individual First Nations members who are coming to you and saying, ``Something is going wrong with my council. I do not approve. I need someone to look into this.'' Are those complaints coming from Indian Act bands or from custom- elected bands?
Ms. Kustra: If it is a complaint related to an electoral process, there is a very specific process identified in the Indian Act to appeal an election. Individual band members who are concerned that the Indian Act provisions were not followed, or feel there was a breach of the regulation, or there was some corrupt practice can file an appeal with the department within 45 days of the election. There is a whole process that we go through to investigate the appeal and, ultimately, either uphold the election results or dismiss, in whole or in part, the election results.
However, there are other complaints that come in from community members. Access to their audit is one that we hear fairly often; letters come in. Those are handled through a complaints and allegations union in INAC which is separate and apart from the elections unit. The department works with the elected leaders to try to get them to provide the information that the individual band member is seeking.
However, in some cases, that information will ultimately be provided by the department if the individual cannot get it from their council or their band administration.
Senator Raine: You do not track that at all, do you?
Ms. Kustra: No, we do not.
Senator Raine: We are trying to get at a better way for people to improve the governance systems for our First Nations. There is one thing that keeps striking me: You have talked quite a few times about bands wanting to move out of the Indian Act. However, you are not talking about moving out of the Indian Act; you are just saying for the election purpose?
Ms. Kustra: That is correct.
Senator Raine: The Indian Act still rules every other aspect of their life.
Ms. Kustra: That is true, unless they are a self-governing First Nation. They can exercise jurisdiction under another piece of optional legislation. For example, if they are taxing under the First Nations Fiscal and Statistical Management Act, the provisions of the Indian Act would not apply to them with respect to taxation. However, other provisions with respect to land use may, unless they are exercising jurisdictions available under the First Nations Land Management Act, for instance.
Senator Raine: The majority of the 250 plus 336 are still under the jurisdiction of the Indian Act? ``Jurisdiction'' is the wrong word. Where I am getting at is: Other jurisdictions have very defined legislation that sets them up, that includes financing; accountability; budgeting; elections, of course; and auditing and transparency. As a result, citizens have a right to see the financial matters of their jurisdiction. That is a right that I think we expect in a democracy. Does that happen when you set up a customs form of governance or under the Indian Act form of governance for First Nations?
Ms. Kustra: On a broad basis, no, it does not. The process of conversion to custom is strictly for the election provisions. However, some of the other items that you are speaking about, were subject matters that were part of the legislative process that Senator Brazeau referred to at the beginning of the session. The proposed First Nations Governance Act did include measures around accountability, citizen participation, law-making, administration of government, enforcement of laws, et cetera, and it was a broader set of initiatives dealing with governance. It dealt with much more than just leadership selection.
Senator Raine: My final question is to you because you have a lot of experience in this. Do you wish that act had been passed? It seems like we are going down the same path again.
Ms. Kustra: I believe many of the provisions of that bill would have been very beneficial for First Nations communities because I think it would have addressed a lot of the issues that we still face today. However, to put forward a piece of federal legislation, particularly as it affects First Nations and changes to the Indian Act, requires a great deal of support across the country. Circumstances were such that such support was not there to move forward.
The Deputy Chair: We are finished the first round now. Ms. Kustra, considering there are a great number of appeals coming from elections, has your department, either in headquarters or in the regional offices, set up groups of people that are knowledgeable and effective in dealing with these appeal matters?
Ms. Kustra: Yes, we have a group under Ms. Nepton's leadership that deals with election appeals. They share information and best practices, review allegations, process matters, et cetera. There is a dedicated group in the headquarters at the INAC office that looks after that.
The Deputy Chair: Are there any in the regional offices closer to the action, as it were, or must they come and be dealt with by headquarters?
Ms. Kustra: The regulations require that the appeals be submitted to headquarters. Ms. Nepton's group works closely with the people in the regional office where there is additional context required. Certainly, once we get into the hiring of investigators, if that is required, and/or tracking down individuals, we work very closely with the regional offices.
The Deputy Chair: Do you have a timeline in terms of when these appeal matters are to be dealt with?
Ms. Kustra: There is no finite period of time. The more complicated an appeal is and the more people involved in the appeal, the longer the process takes. As I indicated, in some cases, it takes up to 18 months to get through the process.
When you have a two-year election cycle, you end up backing into that.
The Deputy Chair: We are now into the second round.
Senator Brazeau: I am a bit confused with something that you said a little earlier. If I understood correctly, out of the 336 current custom bands, there are approximately one-third out of those that were never subject to the Indian Act. Is that correct?
Ms. Kustra: That is correct.
Senator Brazeau: If you look at page 8 of the slide presentation, it says that, since 1996, only 20 communities reverted back to their customary elections.
Ms. Kustra: It is actually a total of 39, Senator Brazeau. Since 1996, it is the total of 39 but, since the Corbiere decision in 1999, there have been 20. So, it is that total 39 divided into two pieces.
Since 1996, there have been 39 First Nations that have come out of the Indian Act into custom. That would be 39 of the 200-plus that were subject to the Indian Act at one time.
Senator Brazeau: That may be why I am not a mathematician.
Mr. Boivin: Right now, there are 250 under the Indian Act. If we pull the time back to 1996, there would have been 250 plus 39.
Senator Carstairs: Two hundred and eighty-nine.
Mr. Boivin: Yes. Then there was the gap between 1996 and the 70s where a slew of bands converted, as well.
Senator Brazeau: I will share my opinion and there will be questions at the end.
I am aware — and I have seen this far too often — that a lot of communities reverted back to what they call a customary method of selecting their leaders when, in fact, most of the criteria and the principles contained in their customary codes is a carbon copy of the section 74 elections under the Indian Act, except for a few minor changes such as terms of office. That has been done by and large to continue to deny the off-reserve members the right to vote, because the Corbiere decision did not rule with respect to custom elections.
Therefore, First Nations communities saw the opening to play with the system a little bit, to basically do what they wanted, and call it custom.
When we hear the word ``custom,'' and tie that to Aboriginal peoples, it sounds good. However, when you get to the nitty-gritty of some of these custom codes, there are a lot of problems. I will leave it at that for now.
Having mentioned earlier that the department is working with the Assembly of Manitoba Chiefs, and will be meeting them in a few weeks with respect to what direction they want to go, is the department providing resources for the AMC to be able to consult with their citizens on-reserve?
The reason I ask that is because I think any governance reform that will be successful, when we are talking about the Indian Act, has to come from the grassroots people themselves. It is one thing to hear leaders saying that they would like to increase their terms of office and have fixed dates, but there is also a self-serving interest in hearing leaders speak directly to any governance reform.
The key in any reform is to have the citizens of a particular community recognize and accept the principles and the system that will be adopted, so that the community will support it. There will be more buy-in into it and it will be more democratic, whatever that looks like.
The key is to ensure that the leaders will actually be consulting with their membership on this issue. For example, the department, hypothetically, says we support AMC to go in this direction, hoping they will meet with their constituents, and steps back and waits to hear from the chiefs. How will we know if they actually met with their citizens and provided the opportunity for those citizens to have a forum to discuss this very issue?
What role will the department have in this?
Ms. Kustra: There are a couple of points you have raised. With respect to resources to engage their community, no, the department is not providing any resources to the Assembly of Manitoba Chiefs for the chiefs to engage in their community.
Part of the role and responsibility of a chief, I believe, is to be out there talking to your community about changes in the way the community is run. Certainly, electoral processes fit into that. I would see that over the next couple of months, the Manitoba chiefs will be out there talking to their community about the potential for electoral reform and seeking the views of the community.
The Assembly of Manitoba Chiefs has indicated to us that they would be coming back in September, after this engagement with their communities, to advise us what they have heard and how they wish to proceed. As part of the dialogue that would take place there, I am sure the chiefs would be coming forward to talk to us about the number of meetings that have been held in their communities, what the people have said, in which direction they want to go and the issues and concerns that have been raised. Then we can figure out a way forward together, if that is possible.
Senator Brazeau: I agree with you that one of the responsibilities of a leader is to do that. As imperfect as the mainstream system is here in Canada, there are mechanisms where we can get rid of leaders if they do not fulfil their responsibilities.
Having said that, under the Indian Act and custom rules, there are no recall mechanisms that citizens can take advantage of to get rid of some of those leaders who may have questionable practices. This was the case in the Peguis situation a few years ago, where citizens from that community came forward before the department and raised some serious allegations with respect to corruption and some questionable practices from the leadership during an election.
You can correct me if I am wrong on any of these statements, but that case was brought to the Federal Court. The Federal Court ruled in favour of the new leadership, saying there were corrupt practices and that the department did not follow up and investigate some of those practices. I think we see a huge gap here.
Citizens have to go to court, but there should be a mechanism that they can go to which does not cost too much money. They should be able to raise allegations, if they are indeed happening — because they are happening all over the country — so that they can have these issues dealt with, with the assistance of the department, which should have a role.
Ms. Kustra: I will ask Mr. Boivin to speak to that since he was the officer on that file.
Mr. Boivin: In terms of Peguis, the First Nation did access the mechanism available to them to complain of the corrupt practices that were allegedly occurring in the election. They accessed the appeal mechanism.
The department went through the process, conducted an investigation, was in receipt of an investigation report and came to a conclusion. The process did work its way through. The department did engage the appeal, did investigate and was in receipt of a report.
What happened in Peguis was that the department concluded that the evidence before the decision-maker at the time was not heavy enough to warrant that the corrupt practices actually occurred. The people who had submitted the appeal were not pleased with the department's decision and they went to court. The court ruled that the department erred in its decision-making process.
We have learned a lot from that decision. It was a watershed in the way we evaluate things and we have moved forward from that; it was about three years ago. The fundamental point was that the process was there for those electors to complain of the election; it was taken seriously in the department and the process did engage.
Senator Brazeau: Thank you for the clarification. I appreciate that. All I will suggest is that a role for the department should be to look over the interests of the voters in those communities. Far too often, they are suffering the consequences of the leadership issues that are happening in those communities, which we do not hear about because of situations you know far better than I, probably.
The Deputy Chair: Thank you. I will take that as a statement rather than a request for a response.
Senator Carstairs: Senator Brazeau has addressed the issue I have addressed, which is how to get to the court. The average cost of taking a motion to the Supreme Court of Canada these days is $100,000. I would suspect that the Federal Court is about the same.
How is someone in an Aboriginal community, Peguis or Rousseau River or any one of the other Aboriginal communities in my province, supposed to take the process to court if they think the Department of Indian Affairs let them down?
The Deputy Chair: While you are preparing your thoughts, just to give you an idea of the cost of litigation, I recently spoke to a lawyer who was familiar with the cost of litigation in these matters in one of the Northern provinces. In the last two years, one band spent $2 million on litigation; and over the course of five years, in a particular area of the province, $20 million was spent on litigation, taking issues like this to the Federal Court. It is very costly to deal with election appeals and so forth. Particularly when bands have money, when there is a lot at stake, people become very contentious and litigate.
We obviously need to find a much simpler, cheaper and more efficient way of dealing with appeals than we presently have, which is a very cumbersome and costly system.
Are you now prepared to respond to Senator Carstairs?
Ms. Kustra: The response is that there is no source of funding to support individuals to go to court and file an appeal in a custom election process.
Senator Carstairs: If it is a matter of potential violation of the Charter, as it would be with some of the custom elections, are the individuals made aware of the Court Challenges Program?
Ms. Kustra: The short answer is that we in the department would not be aware of challenges that would be taking place against custom election codes. As Ms. Nepton indicated earlier, we are not party to those processes. If that is the case, we would not be in a position to advise one way or the other because we may not even know challenges are going on.
Senator Carstairs: That is a nice segue into my final question. I was quite shocked that the governance branch would not be made aware of third-party management. It seems to me that if the government makes a decision that a third party needs to manage a particular Aboriginal community, that one of the first things that you would want to examine is whether there is appropriate governance going on in that community and whether all of the governance procedures, limited though they may be, are in force and effect. It does not surprise me overly much because I know of the silos that exist in departments of government and also between department and department. It would seem to me that it is just logical that if a community is put under third-party management, then your branch would have an interest in that.
Ms. Kustra: The decisions around putting a community into third-party management are largely based on the financial management systems, the financial accountability frameworks, the balance sheets in the community. That is the main driver for third-party management. As a result, those decisions are made on the basis of financial matters. Where you have strong governance, you probably do not have weak financial systems that go awry where you have huge debts, et cetera. From that perspective, we ``know what is going on.'' We are definitely involved in the decisions around third-party management where they relate to the compromise of the delivery of essential services that I mentioned earlier as a result of governance disputes.
Senator Carstairs: I am aware of that. I understand that your department would not have a direct interest or engagement in saying that this has been administratively badly handled in a particular community. However, if you are looking at overall governance, it would seem to me that if you have a system of accountability and good governance, then you are less likely to have economic and structural problems with budgets and those kinds of things, which is why they usually end up in third-party management. It seems to me a light would go on when the government is looking at a third-party management issue, and they would then go to your branch and say, ``Have there been any governance issues with this particular community in the past?''
Ms. Kustra: Part of what happens, Senator Carstairs, is the working relationship between the community and our regional offices. Often the governance officers, the funding services officers that are located in the regional offices and working on a day-to-day basis with the community, will identify areas of need with respect to capacity. This could be capacity building for financial management skills or putting in place systems of checks and balances or some deficiency they feel needs to be addressed at the community level. In this case there are resources available to support the community to gain the capacity they need so they can get out of a third-party management situation and ultimately improve their overall governance structure. From that perspective, there is a relationship there on the overall governance, but it is not the kind of thing where I have a list of communities in third-party management. Where there is a need to help support the capacity building, we do get involved.
The Deputy Chair: We have a long list of senators who would like to ask questions. Is it possible to limit ourselves to one good question in the interests of concluding our meeting before midnight tonight?
Senator Hubley: You had mentioned holding workshops. Ms. Nepton, you have conducted some of those workshops, have you?
Ms. Nepton: That is right, both Mr. Boivin and I have conducted them.
Senator Hubley: When you step in to give those workshops, what sort of subject matter do you review at that time? Who do you deal with? Who can go to the workshops? How long would you estimate the process is from holding an election under the Indian Act and then holding an election under customs?
Ms. Nepton: Hopefully, I remember all of your questions. With respect to the content, we go over the basic contents of a leadership selection code. It is the code that Senator Dyck was referring to that was pulled off the Internet. Basic questions would be addressed, such as what would be your composition of council? How do you start an election process? What triggers it? There is possibility of recall mechanisms. It must have an appeal mechanism, possibilities of bye-elections and all of those important items, as well as the conduct of the election itself, ballots, who takes care of vote counting, that sort of thing.
Our participants vary. Some are just members of council, so you will have chiefs and councillors, and sometimes we have people who have the overall governance portfolio.
We go to communities or meet with community members by request. Anybody can phone us up or phone the regional office, and we will answer any questions. We even look at draft codes. I think Mr. Boivin would agree that we have looked at many iterations of community codes. It is not a one-try process. We work, and we exchange ideas.
One of the good things about the workshops is that sometimes they are also communities that are already under custom and they are thinking of amending their codes for certain things that do not work, but they are looking for new ideas. Sometimes it creates this dynamic where we engage in a discussion with custom First Nations, and it becomes an exchange of best practices. What does my community do? How have you dealt with this problem? The best feature of the course is when the responses or the solutions for the problems come from other First Nations.
Mr. Boivin: You asked about time. The conversion process is a community-driven process. The department supports it by providing advice, and there are some examples to help them. As Ms. Nepton said, we go back and forth, but it is a community-driven process. It depends on the momentum in the community to move it forward. Generally, the shortest it could possibly take from the time a community wakes up one morning and says, we would like to go to custom, to actually being in custom, in my experience, is about 18 months. Because it is a community-driven process and chief and council do change every two years, because they are Indian Act first nations, sometimes the momentum can drop and the process goes dormant in the community.
The Deputy Chair: Senator Lang, you are from the Yukon, so you merit half a question.
Senator Lang: You are so kind, Mr. Chair.
The Chairman: Since I am limiting the senators, I will also limit the witnesses to just one response.
Senator Lang: I know this can go on all evening. I am quite surprised, at least in some areas, that is there is not transparency or public access to some of this information, or there appears not to be. I want to go back to the custom elections codes. I understand 336 First Nations are under custom code elections, and 112 do not have anything in writing.
Mr. Boivin: Those 112 First Nations have never come under the Indian Act.
Senator Lang: You do not have their codes.
Mr. Boivin: That is correct.
Senator Lang: How many of the First Nations with custom election codes that have done the conversion have their election codes made public and accessed by their general membership and the public? You could provide that in writing if you do not have that with you tonight.
Ms. Kustra: We do not have that with us, and the only way we can get the information is from the individual community websites.
Senator Lang: I would like to see what happens.
Senator Dyck: I am looking at the sample leadership selection code, which you call a custom election code. Personally, I think that is a misnomer. It is still an Indian and Northern Affairs Canada election code. It is not a code that has been designed by the members. It is not a traditional method of elections. The terminology is a bit confusing.
I had always thought that if someone had a customary election, it would be not be under the Indian Act but would be part of that First Nation before the Indian Act was imposed upon them. I notice that you say ``the term of office for the positions of chief and councillors shall not exceed three years.'' Why is it three years and not four years?
Ms. Kustra: It is an example. We could have put three or five or six. In reality, it is a blank to be filled in by the community in terms of what term of office they would like to pursue.
Senator Dyck: Putting that on this form indicated that bands might consider three years to be the preferred option. You do say in the notes that it shall be no longer than five. You have imposed a standard upon the First Nation. I do not think the term ``custom'' is accurate.
Senator Peterson: Is there any difference between the Indian Act elections and self-government elections?
Ms. Kustra: Yes, there are differences. Self-government elections are designed to reflect the aspirations of the community. To a large degree, they do not follow the Indian Act. They have appeal mechanisms that are different from the Indian Act. Some of them have criteria for the selection of chief and council, which is not in the Indian Act. There is a wide variety of provisions in self-government agreements.
Senator Raine: Moving forward, would you have any recommendations or advice to give us when the committee travels to Manitoba? Are you finding areas of frustration in dealing with the way the different codes are working? Is there something you can share with this committee?
Ms. Kustra: If I may, it would be useful for the committee to hear from First Nations who operate under a custom code to find out from them how it is working; what they feel the strengths and weaknesses of that code are; pose some of the questions that you have asked here in terms of whether their code provides for members who live off reserve to vote; and whether their codes are Charter compliant in their view. Those are questions that have to be answered directly by representatives of the First Nations.
As well, it would be important to speak to communities that have had a lot of governance issues and to see whether they have ideas as to what a better system could look like and what role they might see for the federal government in the future, if any. There is also the possibility of a First Nations elections institution to manage all of the elections and conduct the appeals so that that entire process is out from under INAC and into an independent institution. The committee might be interested in hearing the views of people on whether they might wish to consider that in terms of any future role of the federal government.
Senator Raine: Our researcher passed me a slip of paper that says the department requires all First Nations under the Indian Act to have annual audited financial statements and that these are available to its citizens.
Ms. Kustra: That is correct.
Senator Raine: You state there is not the same requirement for custom elections.
Ms. Kustra: The nations that elect their leaders under custom are still required to produce audited financial statements and make them available to their First Nation. Those provisions apply to all First Nations communities, not only those that elect their leaders under the Indian Act.
Senator Raine: If you want to have the codes that are not Charter compliant and Corbiere compliant brought to those standards, there must be some kind of carrot. I do not know if you have ever envisioned what that could be.
Ms. Kustra: It is a slippery slope.
Senator Brazeau: With respect to the audited financial statements, it is also my impression that all First Nations communities must make their audited financial statements available to their members. I also believe, and you can correct me if I am wrong, that there are contribution agreements specifying that these financial statements must be posted on First Nations websites.
Ms. Kustra: There is no requirement in the agreement that they be posted on websites, but there is a requirement to make the statements available to members.
Senator Brazeau: There are no enforcement provisions if, for example, a First Nations community upon request from a First Nations citizen, does not provide those financial statements that are guaranteed to the citizens.
Ms. Kustra: If the individual is a member of a First Nation and cannot get the statement from the First Nation, the department can provide the statement. First, we would like the individual to address their question to the community administrators to try to get access to the information through the community rather than through the government.
Senator Brazeau: Thank you for that because I played that ping pong game and wrote to the department, which told me that I should see my chief to get the audited financial statements. At the time I wrote, I was still waiting.
The Deputy Chair: This concludes our proceedings tonight. I thank senators and staff, and officials from Indian Affairs. Your testimony will be helpful to us in our work.
(The committee adjourned.)