Avoidable drafting pitfalls in First Nation custom election codes

By default, First Nations elections are governed by the Indian Act. Many Nations are choosing to step out from under the Indian Act and into self-determined governance, through the creation of custom election codes.

Custom election codes provide Nations with the ability to design governance structures and election processes that reflect their own laws, values, traditions and practical present-day realities. However, with that flexibility comes risk: Election codes are viewed as a “supreme law” for governance and must stand up in practice or risk facing legal challenge.

This Insight highlights common drafting pitfalls to avoid in custom election codes.

Why implement a custom code?

Custom election codes allow Nations to remove themselves from the “one-size-fits all” election rules under the Indian Act and develop governance structures that better reflect the Nation’s laws, values, traditions and current realities. Stepping away from an election framework imposed by Canada provides a Nation with the opportunity to create election procedures, eligibility rules, appeal rights, amended processes and accountability measures that are practical and meet the needs of the Nation. For example, a common criticism of the Indian Act election rules is rigid 2-year term limitation on elected Chief and Council. A Custom Election Code allows Nations to break from this framework and impose term lengths more appropriate to their community circumstances.

The ability to take a nuanced and Nation-specific approach to a custom election code can support a Nation’s self-determination, increase member confidence in elections and make election and governance rules more practical and easier to apply.

However, care must be taken in drafting a custom election code given its importance to the Nation’s good governance, and its susceptibility to a number of drafting pitfalls.

Common and avoidable drafting pitfalls:

1. Residency requirements – Balancing community presence and Charter risk

When evaluating leadership candidates, living on-reserve is a common consideration –especially for remote communities. After all, it’s reasonable to assume that those living in community are better equipped to navigate the unique considerations of their particular community. While this instinct is understandable, drafting provisions around candidate location poses unique challenges that must be balanced against the potential benefits. Limiting leadership candidates to on-reserve members may raise equality concerns under the Canadian Charter of Rights and Freedoms.

Section 15 of the Charter says that “every individual is equal under the law and is entitled to equal protection and benefit of the law without discrimination on the bases of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Courts have also recognized additional grounds as analogous to the ones listed under section 15(1) and are similarly protected. “Aboriginal-residence” (off-reserve band member status) is one such ground.

Many communities have limited on-reserve housing available, making it difficult or impossible for a candidate who lives off-reserve to relocate to community. When there is a universal residency requirement this can effectively bar all those members who live outside of community from participating in Nation governance.

There are, however, certain circumstances where a residency requirement can hold up to a Charter challenge. Residency requirements may be defensible where they are grounded in community values, governance priorities and based on an Aboriginal, treaty or “other rights.”

In practice, this means residency requirements should be clearly connected to legitimate governance objectives and drafted with an awareness of both on-reserve housing realities and potential Charter challenges.

2. Candidacy and conduct rules – Avoiding unintended Charter exposure

Candidacy requirements and Council codes of conduct are often built into election codes to promote accountable leadership. In some cases, a Nation may want to include rules about drug or alcohol use and testing.

However, Canadian law treats substance use disorder as a disability protected by section 15 of the Charter. This means that rules that effectively punish people for addiction can be challenged and need to be approached carefully, especially in the context of drug and alcohol policies and mandatory drug testing.

Instead of specifically targeting substance use, it’s more defensible to focus on conduct expectations. Council codes of conduct can establish clear expectations around a Chief or Councillor’s behaviour and performance.

3. Appeal processes – Designing a process that is clear, fair and realistic

Nations do not need to provide an internal election appeal process within a custom election code. In some cases, setting up an appeal body may be too burdensome, and relying on the courts is more practical. However, where the Nation has capacity, an internal appeal process can support self-government and by keeping disputes within the community.

If included in a custom election code, the appeal process must be clear, fair and reasonable. This means setting out who can hear appeals, how decisions are made, timelines and what procedural fairness looks like in different contexts. The goal is to strike a balance between finality with basic fairness for those affected.

Drafting should reflect the Nation’s actual capacity and realities – including careful consideration of who may sit on an appeal body. For example, on the one hand, prohibiting family members of Council from sitting on an appeal body may avoid conflicts of interests. On the other hand, however, this restriction can be difficult in smaller communities where many members have family relations.

A well-designed appeal process balances finality with procedural fairness and strengthens confidence in the election system. A poorly designed one risks doing the opposite.

4. Amendment provisions – Keeping the code adaptable

Once in force, custom election codes function as the supreme governance law of the Nation. They are intended to reflect the will of the Nation – and their amendment process should do the same. Typically, this is done through a referendum vote.

Properly drafted, an amendment process must strike a careful balance, ensuring quorum (how many members must participate in the referendum for it to pass) and approval (what percentage of votes is required to pass the referendum) thresholds reflect clear member support without becoming practically impossible to meet. Thresholds should be high enough to demonstrate broad consensus among membership but not so high that changing the custom election code becomes impossible. Unrealistic quorum or approval requirements can prevent necessary changes to the election code from occurring.

For major changes, it is generally expected that the Nation will hold a referendum vote. A custom election code can be challenged if members feel it does not reflect the Nation’s wishes. The risk of a challenge increases where amendment processes are unclear, referendum thresholds are too low and changes are made without meaningful engagement.

Above all, amendment provisions should protect democracy while remaining workable for the Nation. This helps ensure that election codes continue to reflect the community they govern.

5. Removal provisions

Custom election codes can include rules to remove a Chief or Councillor before their term ends. However, those rules must be clear, workable and strictly followed. The key is finding the right balance between leadership accountability and procedural fairness.

At a minimum, the custom election code must clearly authorize removal and set out a fair process. This includes giving notice to the affected member of Council of the proposed removal, giving them a chance to respond and setting out a fair decision-making process before removal takes place. Where these elements are missing or unclear, removal decisions are more likely to be challenged.

A common removal trigger is repeated, unexcused non-attendance of regularly scheduled Chief and Council meetings. However, these requirements should be reasonable and reflective of meeting frequency and practice of leadership – For example, missing three meetings in a row will have a different impact on a Council that meets weekly compared to a Council that meets monthly or quarterly.

Courts have upheld removals where the custom election code clearly sets out who could remove a Chief or Councillor, on what grounds and through what process – even where drafting was imperfect. However, ambiguity around authority, procedure or timelines increases the risk of litigation, costs, delay and instability.

Clear, fair and proportionate removal rules protect both accountability and stable governance. Any removal process set out in a custom election code for must be followed for it to be legally justified.

6. Code provisions must generally be practical and executable

Once a Nation adopts a custom election code, it becomes the supreme law of governance and is expected to be followed as written. Courts will respect and uphold election codes that are clear, workable and grounded in genuine community support. They will also intervene where rules are ignored, unclear or disconnected from how a Nation actually governs – or where the custom election code is contrary to the Charter. Thoughtful, realistic drafting helps ensure governance rules strengthen self-government rather than invite dispute or court involvement.

Key takeaways

Custom election codes are a powerful tool for Nations to create an election process representative of their laws, values, traditions and present-day needs and realities. Custom election codes allow for Nations to reframe community priorities for governance, such as extending leadership term limits, imposing a code of conduct and dealing with complaints and election appeals internally, rather than through Indigenous Services Canada. When done correctly, custom election codes are a clear avenue towards self-determination.

At the same time, they are susceptible to various drafting pitfalls and risk having an unintended effect. The implications can be significant and undermine governance in the Nation and can lead to delays in approval by Indigenous Services Canada, member pushback, uncertainty in implementation or being overturned if challenged in court. MLT Aikins works collaboratively across sectors to advocate for the rights and interests of Indigenous Nations and communities. If your Nation has any questions about legal services or drafting Custom election codes, the MLT Aikins Indigenous practice group would be happy to assist.

 

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