LOCAL GOVERNMENT ELECTIONS and the CREE-NASKAPI (of Quebec) ACT
On November 11, 1975, the James Bay and Northern Quebec Agreement (JBNQA) was executed by the Grand Council of the Crees (of Quebec), Northern Quebec Inuit Association, Government of Quebec, Government of Canada and certain crown corporations such as Hydro-Quebec.
The Northeastern Quebec Agreement (NEQA) was signed on January 31, 1978 by the Naskapis of Schefferville Band, Grand Council of the Crees (of Quebec), Northern Quebec Inuit Association, Government of Canada, Government of Quebec and certain corporations such as Hydro-Quebec.
Section 9 (Local Government over Category IA Lands) of the JBNQA provides that "there shall be recommended to Parliament special legislation concerning local government for the James Bay Crees on Category I A lands allocated to them."
Section 7 (Local Government over Category I A-N Lands) of the NEQA provides for similar undertakings respecting local government for the Naskapis of Quebec on Category I A-N lands allocated to them.
Consequently pursuant to Section 9 of the JBNQA and Section 7 of the NEQA, the Cree and Naskapi and the Government of Canada negotiated the terms and provisions of the Cree-Naskapi (of Quebec) Act which was assented to on June 14, 1984.
Thus, the Cree-Naskapi (of Quebec) Act (CNA) provides for an orderly and efficient system of the Cree and Naskapi local government and control of Category I A and Category I A-N land by the Cree and Naskapi Bands respectively, and for the protection of certain individual and collective rights under the JBNQA and NEQA. (Preamble to the Act)
Part I - Local Government of the Cree-Naskapi (of Quebec) Act provides for the following:
Pursuant to Section 12 (1) and (2) and Section 14 (1) the Cree-Naskapi (of Quebec) Act, the Cree and Naskapi Bands are separately constituted as corporations and bear the following names:
"The members of each of the Cree bands are Cree beneficiaries who are enrolled or entitled to be enrolled on the community list in respect of that band pursuant to Section 3 of the James Bay and Northern Quebec Agreement". (Section 17 of the Cree-Naskapi (of Quebec) Act)
The members of the Naskapi Band are the Naskapi beneficiaries of the Northeastern Quebec Agreement. (Section 20 of the Cree-Naskapi (of Quebec) Act)
It should be noted that the Indian Act does not apply to the Cree Bands or the Naskapi Band, nor does it apply on or in respect of Category I A and I A-N land except for the purpose of determining which of the Cree and Naskapi beneficiaries are "Indians" within the meaning of the Indian Act. (Section 5 of the Cree-Naskapi (of Quebec) Act) Therefore and in this manner, the Cree-Naskapi (of Quebec) Act replaces the Indian Act for the Cree and Naskapi First Nations and their respective community lands.
However, the provisions of the Cree-Naskapi (of Quebec) Act do not provide for the constitution of the Ouje-Bougoumou First Nation as a separate band corporation because the Crees of Ouje-Bougoumou, as a distinct First Nation, are not a party to, nor a band under the James Bay and Northern Quebec Agreement.
The nine Cree (First) Nations and the Naskapi Nation of Kawawachikamach exercise local governance in accordance with the following aspects of aboriginal law:
Traditional law and customs are dealt with in a section of the present discussion paper.
In particular, the Ouje-Bougoumou Cree Nation exercises local governance in virtue of traditional law and customs as neither the Cree-Naskapi (of Quebec) Act nor the Indian Act applies to them or in respect to their community lands. (The other Cree (First) Nations and the Naskapi Nation of Kawawachikamach also apply traditional law and customs). However, the Ouje-Bougoumou Cree Nation, in the exercise of their legislative authority, incorporates certain provisions into the Cree-Naskapi (of Quebec) Act.
In respect to Band Elections, Part II of the Cree-Naskapi (of Quebec) Act provides for the following:
Pursuant to Sections 64 and 65 of the Cree-Naskapi (of Quebec) Act and in virtue of traditional law (particularly for the Ouje-Bougoumou Cree Nation), the Cree (First) Nations and the Naskapi of Kawawachikamach have enacted and adopted election by-laws. The 'band' election by-laws of the Cree and Naskapi First Nations include provisions for the following:
The election by-laws are presently in force and have not been disallowed by the Minister pursuant to Section 66 (3) of the Cree-Naskapi (of Quebec) Act. However, the Ouje-Bougoumou Cree Nation claims that DIAND does not recognize its by-laws. In any case, legislation (i.e. by-laws or similar instruments) enacted in virtue of traditional law does not require the approval of the Minister of DIAND.
The Governor-in-Council has not made any regulations respecting elections pursuant to Section 67 of the Cree-Naskapi (of Quebec) Act. It appears that 'band' election by-laws enacted and adopted by the Cree and Naskapi First Nations are deemed appropriate and suitable by the Government of Canada.
During the past year the Cree-Naskapi Commission has received formal representations from two communities. It became apparent during the course of the Commissions investigations that there was a good deal of confusion about the election process and procedures both as contained in the By-laws of the First Nations. In some cases the Cree-Naskapi (of Quebec) Act appear to conflict with the application of traditional law which is not contemplated in the Act.
It is in this context and background that the present discussion paper on band elections and the Cree-Naskapi (of Quebec) Act must be read and understood.
Traditional Law and Customs
A proverb states that "Every land has its own law." And so it is within Eeyou Istchee - as the Cree people call their traditional and historical territory or homeland.
The Cree leadership has often stated that the Cree people and nation exist in Eeyou Istchee as a distinct nation with their government, culture, language, tradition, customs and territory. Consequently, the Cree people establish and exercise traditional laws.
Chief George Wapachee of the Nemaska First Nation in his statement entitled - 'Personal Perspective of Arguments of Grounds of Contestation' - states that "... everything is done with the best intentions and (is)on the whole acceptable to our members. We have always acted by consensus on certain matters..... We realise this may not be formally written down somewhere but most native communities do carry on through an oral history and traditions, this is what works for us since we have to live with each other and respect each others' rights and privileges ...... we had to work with what was best for the community in the traditional sense."
Therefore, the Cree notion of traditional law is based, principally, on 'doing things the right way with best or good intentions in a manner that is on the whole acceptable by consensus.'
Chief George Wapachee implies that traditional law is exercised in this case in an election process when circumstances warrant it. For an example, the election process is postponed when an elder passes away. In this example, the Cree people focus not on specific 'rules' but rather on their principal and core values such as sharing, caring, respect and self-discipline - which are essential to "doing things the right way with best or good intentions." In this sense, traditional law defines custom as social morality.
Furthermore, the Chief of the Nemaska First Nation states that the members of the community decide by consensus on the criteria for residence within their community (and in essence decide on the membership of their community and hence determine enrollment in the 'community list'). The 'rules' are also taken into account for 'band' elections. Such 'rules' in the by-law require the posting of the 'community list'. These rules are a new element but traditional law and custom nevertheless continue to apply to 'band' elections. In the case of the Nemaska First Nation (and the same can be said for other Cree communities as well as for the Naskapi), tradition adapts to changing situations and readily integrates new attitudes and practices. The Cree way of determining membership of the community by traditional law adapts to the changing situations such as the formalization of 'band' elections and readily integrates new attitudes and practices that are acceptable by the community such as the posting of the 'community list'.
Therefore, traditions are not static practices and institutions that existed in the past, but is an evolving body of norms of life in Cree society.
It is often said that 'custom makes law'. For the Cree people, traditional law may flow from customs of Cree society and culture. However, traditions appeal to values and actions that sustain customs. Consequently, traditional law flows from 'Eeyou' values as it is to a large extent, dependent on addressing the question of 'doing things the right way' rather than 'what do people do.'
In local government elections, the application of traditional law and customs is not provided. However, the Cree and Naskapi Peoples exercise traditional law and customs for local government elections.
LOCAL GOVERNMENT ELECTIONS AND THE CREE-NASKAPI (OF QUEBEC) ACT
Since the establishment of the Cree-Naskapi Commision in 1986 and especially during the past two years, the Commissioners have received a number of representations which raise questions of various aspects of Part II of the Cree-Naskapi (of Quebec) Act. This Part deals with "Band Elections". Concerns have also been expressed about Election By-laws passed under the Act as well as with electoral procedures.
The principal duties of the Cree-Naskapi Commision are to prepare biennial reports on the implementation of the Cree-Naskapi (of Quebec) Act and to investigate and report on representations submitted to it. Section 165 of the Act is explicit. It reads as follows:
"165. (1) The Commission shall (a) prepare biennial reports on the implementation of this Act, in accordance with subsection 171 (1); and (b) except as provided by subsections (2) and (3), investigate any representation submitted to it relating to the implementation of this Act, including representations relating to the exercise or non-exercise of a power under this Act and the performance or non-performance of a duty under this Act."
In the case of the contestation of election results, the responsibility for determination and interpretation of contemporary law as well as the material facts in dispute rests with a Judge of the Provincial or Superior Court as provided for in Section 78 of the Act. The role of the Cree-Naskapi Commision extends only to reporting on the implementation of the Act ( here specifically in relation to Band Elections sections), and to dealing with representations concerning the exercise or non-exercise of powers and the performance or non-performance of duties under the Act and the Agreements.
This would include the exercise of powers to pass and implement Election By-laws as well as the performance of duties by election officials and others.
Over the more than thirteen years of the Commission's existence the most important single subject of individual representations has been the regulation and conduct of band elections. Some may surmise that this is due in part to the natural disappointment of unsuccessful candidates and their supporters. While this may be true in a few cases, it has been the Commissioners' experience that these representations have revealed substantive concerns with the existing electoral arrangements. More specifically, this includes concerns about the election provisions of the Act itself, concerns about By-law provisions, concerns about application of traditional law and customs as well as the practices surrounding the conduct of elections and contestation of election results. The Commissioners also have serious concerns about lack of training for local election officials as well as a general lack of awareness of election rules and procedures on the part of candidates and electors. In addition, the Commission is concerned about the inadequacy of the present process respecting election results.
Elections and Local Government:
The recognition, affirmation and detailed provision for local government in the Cree and Naskapi communities of Northern Quebec is one of the most important raisons d'etre for the Cree-Naskapi (of Quebec) Act.
Apart from membership and land, the most important element of local government is the integrity of the process by which the people exercise their authority over themselves. The Cree and the Naskapi, in common with most Canadians, consider that the only legitimate governmental authority is that which is derived from the people themselves. The legitimacy of the Cree and Naskapi governments can only be measured therefore by the extent to which their decision-makers hold a clear and widely accepted mandate from the people. This is not to suggest that every decision on every issue needs a specific mandate. Rather it is to say that any Chief and/or Chief and Council can speak or act authoritatively for the people only to the extent that they are speaking or acting within the accepted powers and duties of their office and only to the extent that they were given a clear and decisive right to hold that office. From this perspective, election laws are of critical importance. These laws must reflect the basic values of the people, as well as their views on the most appropriate process for delegating the exercise of their powers to their governments. The laws must also provide for the revoking of that delegation and for correcting any abuse of the delegation process itself. Elections laws are simply the mechanism for periodic delegation, revocation and correction by the people.
The Current Situation
For thousands of years the Cree and Naskapi peoples have exercised forms of self-Government in virtue of their inherent rights. These forms have evolved with time and experience in the same way as have the forms used by other nations. Many of the traditional laws, customs and practices continue to this day unaffected by the provisions of the Cree-Naskapi (of Quebec) Act. Such traditional laws, customs and practices are protected by section 35 of the Constitution Act 1982 as well as by the Agreements which themselves are constitutionally protected. An example of a traditional law, customs and practice applied to election procedures to-day would be the postponement of electoral activity when a death occurs in the community. This is a valid law, practice and custom which,(should it conflict with the Cree-Naskapi (of Quebec) Act or by-laws) would prevail. Its paramountcy is buttressed by the aboriginal rights guarantees of the Constitution Act 1982. The values and usages of the traditional law should be considered when amendments to the Act and/or changes to the By-laws are being considered. Legislation should be drafted so as to respect traditional law, practice and custom.
Election officials normally include a Returning Officer, a Deputy Returning Officer and one or more Assistant Returning Officers. These individuals all have important responsibilities under traditional law, the Act and the By-laws. It is all too frequently the case that these officials have only a vague idea of their duties. In at least two representations considered by the Commission, officials actually gave inaccurate information to candidates. In one case an official commented that the community's Election By-law was "not the way we do things around here"! Further investigation indeed confirmed that the By-law was basically a "generic" election By-law prepared apparently by outside lawyers with little or no community input. It appeared to be largely unknown to the community, somewhat irrelevant to their election process and partially ignored by their officials. This sort of situation is inconsistent with functional self-government. The communities need resources to conduct open public workshops and other measures to develop Election By-laws which reflect the values and preferences of the people. The Cree-Naskapi (of Quebec) Act should be amended to facilitate this aspect of self-government and to respect traditional law, practices and customs.
The Commissioners are also concerned that, regardless of what legislative and By-law provisions are in place at any given point in time, local elections officials should receive mandatory training and resources so that they fully understand their responsibilities and are able to carry them out.
Electors' lists are another area of concern to the Commissioners. At the present time the provisions of the Act governing who may vote are lengthy and not entirely clear. The relevant sections read as follows:
In relation to the Naskapi, the Act says:
Section 3 of the James Bay and Northern Quebec Agreement outlines criteria of eligibility for enrolment as a beneficiary. In order to demonstrate the complexity of the process the text of sections 3.2.1., 3.2.2. and 3.2.3. are reproduced:
The provisions of this paragraph shall not prevent any person omitted from the official lists of beneficiaries prepared in accordance with paragraph 3.3.6 from exercising his right to appeal pursuant to Sub-section 3.4.
Section 3 of the Northeastern Quebec Agreement contain similar provisions for the Naskapi people.
Section 18 of the Cree-Naskapi (of Quebec) Act is also relevant. It reads as follows:
In the case of elections in Chisasibi Section 19 of the Act is also relevant. That section says:
All of the provisions quoted above relate solely to determining who is eligible to vote in theory. In practice, not only are the legal eligibility criteria important, the updating of the lists themselves is a major issue. Many individuals are not resident in their own community but live in another community because of their employment, marriage or for other reasons. Also the normal updating of lists required by the coming of age or death of electors is also a problem chiefly because of lack of timely revisions to the lists. These situations require that the voting rights of electors be clear and understood by all concerned.
It is very clear that all of these provisions impact directly upon questions about who should be included on electors' lists. It is also clear that election officials, appointed for a short term, frequently on a part-time basis cannot be expected to understand these rules sufficiently well to respond to questions from candidates and voters unless they receive some specific training. Some questions will inevitably require a legal opinion and clearly the Returning Officers should have access to the services of a lawyer without having to seek approval for funds etc., in each case.
Another area of concern revealed in the representations received by the Commission relates to the process for contestation of election results. The process requires action by the candidate or other persons contesting the election result, action by the Returning Officer and determination by a Judge. The initial complaint must be filed within five days. The Returning Officer must then petition the court within two weeks. Consequently, for the Cree as well as the Naskapi people, the process respecting contestation of election results could be long and expensive.
The entire process for the contestation of election results is provided for in section 78 of the Act, which reads as follows:
Clearly this is a long, complex and potentially very expensive process which may be appropriate for the contestation of results of federal, provincial or large municipal elections. It is however a dauntingly inappropriate process for the Cree and Naskapi communities where candidates, concerned voters etc., do not normally have the resources for litigation or even basic legal advice. In the experience of the Commissioners it has meant, in practical terms, that election results often cannot be effectively contested.
The Calling of Elections
Section 74 (2) of the Cree-Naskapi (of Quebec) Act provides that: "(2) and may hold a general election at any time". This section allows a community, in effect to dismiss its entire Chief and Council and call a new election at any time. There is however no similar provision for removing a single member of Council (including the Chief) and for calling an election to replace the incumbent. This is an issue that should be reviewed when amendments to the Cree-Naskapi (of Quebec) Act are being considered.
Principle of Majority
Concern has been raised about the principle of majority for the purposes of general 'band' elections. In particular, community members have questioned the fairness and appropriateness of the present system of a simple plurality in which the candidate for the office of Chief receiving the highest number of valid roles cast in respect of that office is elected Chief. Therefore, a minority of electors of a community and participating in a general election can elect a candidate for the office of Chief. Similar concerns exist in relation to the election of Councillors with a small percentage of votes casted.
The Cree and Naskapi communities should consider these specific issues when reviewing the revision of the Cree-Naskapi (of Quebec) Act and local election by-laws.
The processes and procedures of local government elections should reflect the will, needs and aspirations of the Cree and Naskapi communities. This report and its recommendations should be considered in this light.
Revised September 19, 1999