On March 26, members of Iskatewizaagegan #39 Independent First Nation lined up six feet apart and, one by one, entered the community’s administration office for the chief and council election. They showed IDs to an official; workers passed ballots through a slit in an isolation tent. After each voter left the premises, the deputy electoral officers, wearing gloves, came in and disinfected the area before the next person entered.
Tania Cameron, the electoral officer, implemented these provisions — which the Anishinaabe community, also known as Shoal Lake #39, paid for — in response to the coronavirus pandemic. If postponement had seemed like a viable option, Cameron says, she would have suggested it to the community. But, she explains, “if there's any kind of delay in the election, you have a governance gap, which essentially means the community is without an official chief and council, and during this pandemic time, they didn't want that — so we had to go ahead with the election.”
Crown-Indigenous Relations and Northern Development Canada had sent out a notice on March 17 stating that if elections held under the Indian Act and First Nations Elections Act didn’t move forward as scheduled, communities ran the risk of a governance gap. (According to the Indian Act, elections must be held every two years.) At the time, 14 elections were scheduled to take place in First Nation communities across Canada over the next 10 days. “The final decision to postpone an election is within the purview of First Nations and must be made by the Council and the Electoral Officer,” read the email. “It should be noted that the decision to postpone an election does not constitute an extension of the term of office. At the end of the mandate, a First Nation will find itself dealing with a governance gap.”
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Toronto-based Anishinaabe lawyer Maggie Wente caught wind of the email when concerned communities began contacting her. “The problem stems from the fact that the Indian Act and the First Nations Election Act, which is what this email pertains to, set term limits within them,” says Wente, who has advised on Indian Act matters, reserve-land management, and First Nations governance throughout her career. “Under the Indian Act, it's a two-year term limit, and, under the First Nations Election Act, it's a four-year term limit. And there's no provision, in either of those acts, for either the First Nations government or for the federal government to grant an extension — even an emergency extension.”
The day after the Shoal Lake #39 election, Minister of Indigenous Services Marc Miller sent out a message saying that Indigenous Services Canada recommended that First Nations not proceed with elections. Instead, they should work ISC on an individual basis to ensure leadership continuity. But the announcement came too late for M’Chigeeng First Nation, on Manitoulin Island. “Unfortunately, that [ISC] statement wasn't made until the day before our actual election date, and I didn't receive that information until the day of the election,” says Winnie Panamick, chair of the First Nation’s elections-appeals committee. “I'm sure if the community had been aware of it at least two or three weeks prior, surely they would have insisted that we cancel our election.”
Public Health Sudbury and Districts had advised that it would be safe to continue as long as the proper precautions were in place, she says. Voters were encouraged to choose the option to mail in their ballots by sending a written request to the electoral officer (off-reserve members were automatically sent a mail-in ballot). As an additional precaution, all staff, officers, and members of the election-appeals committee were screened before they started work. In 2005, M’Chigeeng First Nation ratified its custom election code, which allows it to hold an election in a way that upholds its traditional customs and law. After its last election, in 2016, the community had to bring in a third party, appointed by Indian Affairs, to govern it due to an appeal that took six months to resolve through the courts. That’s one reason it pushed ahead with this election: it didn’t want to have a governance gap again.
Atikameksheng Anishnawbek First Nation Chief Valerie Richer says that her community will be heading to the polls on June 27 and has been waiting since February for Miller to sign off on a custom election code that would remove it from Section 74 of the Indian Act, which pertains to chief and band council elections. The code would allow for online voting, making it easier to follow social-distancing protocols. First Nation elections governed under the Indian Act or First Nation Election Act are routinely done through in-person voting — the option of mail-in ballots is usually reserved for community members who live off-reserve. A custom code would also allow the community to control other aspects of the election — term length, for example, and the number of councillors. “For us, it doesn't make sense to even consider an Indian Act election, because we have a safe process in place that is under our own law, and we think it's about time that Indian Affairs or ISC gets out of the way and lets communities govern ourselves,” says Chief Richer. “But here we are, still in this paternalistic relationship with them.”
Richer says that election preparations are underway: nomination forms are being mailed out; an electoral officer has been hired. ISC is aware of the election date, which was submitted in December. The last step is to get the minister’s signature. But, as far as she is concerned, her community’s approval is the most important thing. “My community already adopted this [election code]. Chief and council adopted this. So we're going ahead with the vote,” she says. “My direction comes from the community and not the minister of ISC.”
Questions remain as to how the nations will receive support from the government and what provisions will be put in place if they decide not to proceed with elections. When asked how the process will work, Vanessa Adams, press secretary for Marc Miller, tells TVO.org in an email that “Indigenous Services Canada has been in direct communication with communities facing these decisions and we are working together to maximize continuity and minimize disruption so that leadership can continue to focus on the health and well-being of their community members.”
For Wente, this all comes back to the Indian Act and its continued control over First Nations communities. "All of the warts of the act and the archaic notions about how First Nations ought to be allowed, or not, to govern themselves, become apparent in this kind of time,” she says. “Because what they're really trying to do is take control of the ship for themselves in a way that we should all be applauding.”
This is one of a series of stories about Indigenous issues brought to you in partnership with Carleton University’s School of Journalism and Communication.
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