Frequently Asked Questions
Q: What are the options for leadership selection for First Nations?
A: There are four ways in which a First Nation may select its Chief and Council:
Following the framework elections set out in the Indian Act and Indian Band Election Regulations
Using the optional First Nations Elections Act and First Nations Elections Regulations.
Adopting a Custom Election Code (sometimes referred to as “band custom”).
Election procedures under a self-government agreement.
Q: How are Millbrook Chief & Council elections currently governed?
A: Millbrook elections are currently governed by the Indian Act. This means that the selection of Millbrook Chief & Council must follow the process and procedures set out in the Indian Act and the Indian Band Election Regulations. Under the Indian Act, Millbrook’s elections are subject to the following rules:
Council Composition: the number of councillors is determined based on the band’s population, with one Chief, and one Councillor for every 100 band members (there must be a minimum of 2 and a maximum of 12 councillors).
Term Length: Chief & Council serve two-year terms, meaning elections must be held every two years.
Election Oversight: elections are overseen by an electoral official approved/appointed by ISC.
Appeals Process: election appeals are submitted to Indigenous Services Canada (ISC), which has the authority to investigate and, if necessary, set aside election results.
Q: What are some of the limitations of the Indian Act electoral system?
A: The Indian Act has created many challenges for effective governance. Expert reports have identified several weaknesses with the Indian Act electoral system, including:
Administrative weaknesses, such as loose nomination procedures and a mail-in ballot system that is open to abuse and fraud.
Excessive federal government oversight/control.
Lack of adequate and independent appeals process.
Chief & Council being accountable to ISC, rather than to community members.
Absence of defined offences and penalties, and weak removal provisions.
No flexibility to set terms of office or determine the size of council.
In addition, the Indian Act is a colonial piece of legislation that has historically attempted to suppress and replace the traditional governance structures of First Nations. Many First Nations object to conducting elections under the Indian Act for this reason and are instead choosing to reassert their inherent right to govern themselves, under the governance structures of their own choosing, through custom leadership selection codes (i.e., Custom Election Codes).
Q: What is a custom election code and how is it different from the Indian Act?
A: A Custom Election Code is a community-led election law that directs the way a First Nation will conduct elections for Chief & Council, in accordance with the First Nation’s own customs and needs. A Custom Election Code can provide a complete set of rules and processes that determine how leadership of the First Nation are elected and held accountable for their actions.
Unlike the Indian Act election rules, a Custom Election Code can include detailed and clear procedures for how Millbrook Chief & Council will be structured, how leadership will be elected, how long their term of office is, who will be eligible to run for a position on Council, and how those leaders will be accountable to the community. It gives Millbrook the power as a community to make decisions about Millbrook leadership and governance. Under the Indian Act, much of this power still lies with the Minister of ISC.
For Millbrook, adopting a Custom Election Code means creating a law that is made by Millbrook, for Millbrook.
Q: Why is Millbrook developing a Custom Election Code?
A: In previous opinion poll, a majority of Millbrook community members indicated a desire to pursue a Custom Election Code.
Millbrook wishes to establish its own Custom Election Code for many reasons. First, Millbrook wishes to determine its own leadership structure and election process to increase transparency and accountability instead of following the colonial election rules of the Indian Act. Secondly, the Indian Act only allows for members of Council to sit in their positions for two years. As a result, this does not allow sufficient time to move forward with initiatives or projects identified by Millbrook as priorities.
When properly drafted, Custom Election Codes are far more likely to provide a system of governance that is culturally appropriate, politically responsible, transparent and accountable. A Custom Election Code will allow Millbrook to take control over its own election process, improve leadership stability and accountability, promote transparency, and support long-term planning.
Q: What is the process for switching from the Indian Act to a Custom Election Code?
A: All Custom Election Codes developed by First Nations must be sent to ISC for approval. The reasons Custom Election Codes must be sent to ISC for approval is to ensure the Custom Election Code:
Is in clear, written format.
Includes a process for how election appeals will be dealt with, without the involvement of ISC / Government of Canada.
Addresses how amendments will be made (the process for amendments must involve membership approval).
Complies with the principles of natural justice, including procedural fairness.
Is consistent with the Canadian Charter of Rights and Freedoms.
Has been approved by Millbrook electors, by a majority vote.
Once ISC has reviewed and approved the Custom Election Code, the Minister then issues an order that stops the Indian Act election rules from applying to Millbrook. After that, the Custom Election Code would apply to Millbrook leadership elections and ISC will have no more involvement in the Custom Election Code or in Millbrook elections, including appeals.
Q: Is a Custom Election Code the same as using the First Nations Election Act?
A: No. The First Nations Election Act (“FNEA”) is federal legislation that became law in 2015. It establishes a legislative electoral system that First Nations can choose to opt into. Like the Indian Act system, the FNEA and its regulations set out rules and processes that apply for Chief & Council elections. Under the FNEA, the term of office for Chief & Council is four years, instead of two as is the case under the Indian Act.
While the FNEA offers an alternative to the Indian Act, it is still fundamentally a process shaped and controlled by Canada. In many ways, it is simply an updated version of the Indian Act’s election rules. To opt into the FNEA, Chief & Council adopt a Band Council Resolution requesting the Minister to add the First Nation to a schedule in the FNEA.
Q: Will adopting a Custom Election Code mean that all aspects of the Indian Act no longer apply to Millbrook?
A: No. Adopting a Custom Election Code will only remove Millbrook from the election provisions under the Indian Act. All other aspects of the Indian Act would continue to apply to Millbrook.
Q: What are the voting requirements to approve the Custom Election Code?
A: To adopt a Custom Election Code, the community must hold a ratification vote, and a majority of Millbrook voters (50%+1) must vote by secret ballot to approve the Custom Election Code.
Q: What happens if voters do not approve the Custom Election Code?
A: If a majority of voters do not approve the Custom Election Code, Millbrook leadership elections will continue to be conducted under the Indian Act. However, additional community engagement on the Custom Election Code could be undertaken, further revisions made, and another ratification vote can be held in the future.
Q: Can a Custom Election Code be changed after it is adopted?
A: Yes. Any changes / amendments must be approved through a community vote.
Q: Will a Custom Election Code change Canada’s obligations to Millbrook or impact Aboriginal and Treaty rights?
A: Adopting a Custom Election Code does not change the fiduciary nature of Canada’s relationship with Millbrook. A Custom Election Code is intended to give Millbrook more control over its own leadership selection process, but adopting a Custom Election Code does not relieve Canada of its general fiduciary duty owed to Millbrook and its citizens.
Adopting a Custom Election Code does not impact Aboriginal and Treaty rights protected under s. 35 of the Constitution Act, 1982. Rather, adopting a Custom Election Code is a way for Millbrook members to implement their own law and take control of their leadership selection process.
Q: Have any other communities moved ahead with a Custom Election Code?
A: Across Canada, 343 of 634 First Nations have adopted a Custom Election Code. In Atlantic Canada, 18 First Nations have moved to the First Nations Elections Act and First Nations Elections Regulations, seven are under the Indian Act and nine First Nations have adopted custom codes, including Wasoqop’a (Acadia), Glooscap, Lennex Island, Abeweit and Qalipu, to name a few.