Mlib q and a number 1

One of the Members forwarded some very pointed questions about the draft Membership Code through social media. The questions are important so we are posting the detailed responses.

1. Who are the members of the Working Group that developed the draft amendments to the Custom Election Code and Membership Code?

Answer: The members of the Working Group are as follows:        

Yasmin Ali, MLIB Councillor Adele Chingee, MLIB Band Manager Marion Jackson, MLIB Membership Administrator Jodie Ware, MLIB Supervisor of Education and Employment Training Deborah Prince, Manager, MLIB Land Referral Office Albert Peeling, MLIB Legal Counsel Regina Toth, Consultant Rick Krehbiel, Consultant

2. Where did the Working Group get their recommendations and proposals?

Answer: Some recommendations for amendment have been proposed by working group members, particularly regarding operational re-drafting and operation of the 2004 codes.

However, recommendations have also come from other sources. Many were raised by band members in the 10 years since the last Codes were approved. Also, Electoral Officer Loreen Suhr has met with the group on two occasions and procedural recommendations from her and from former Electoral Officer Gina Beddome have been included.

The working group has met twelve or more times since the end of June including two meetings with Chief and Council. Members als made presentations to the AGA and conducted an information booth and member survey. The first round of community meetings in Calgary, Vancouver, Prince George and McLeod Lake was completed two weeks ago, and the second will begin at the end of next week. Comments from these meetings are being applied to refine the draft codes prior to the ratification vote.

3.

“These proposed changes give far too much power and control in decisions - to whichever Chief and Council at the time and it actively discriminates against Severalty members!”

Answer: This appears to be a general statement, so specific changes will be discussed below. Generally speaking, in some circumstances the role of Chief and council would be enhanced, such as the hearing of appeals. However in most areas there is no change from their existing responsibilities under the present codes and in other areas their powers are more constrained, such as more stringent penalties for failure to attend meetings or violations of the codes.

Severalty is addressed below.

4.

“Severalty is in land only, severalty members have made this decision, but it doesn't mean their (sic) exempt from the "community"...to be able to vote...but not run, makes absolutely no sense, only that it violates basic rights.”

Answer: Dealing with severalty issues is particularly difficult and sensitive. No Canadian first nation except McLeod Lake has had to deal with it so the band is essentially on new ground. To be clear however, the choice to take land in severalty does have implications beyond the land alone. It means, in the words of the treaty 8 that those members have chosen to “live apart” from the band’s reserves. In addition, the new codes must reflect the provisions of the various trust agreements which restrict severalty members and their descendants from benefitting from the proceeds of the land base which they did not contribute to.

Because severalty members are not included in the band's land base or main sources of revenue, it is suggested it would be inappropriate for them to be in a position of making decisions for those members who are. At the same time, the codes recognize that severalty members are still band members entitled to the basic services that flow from federal transfer payments. For that reason they would still be able to vote for chief and council and for any future elected bodies that are not involved in governing land and trust revenues. Also nothing would prevent a severalty member from being employed by the band.

Should this change in the future as a result of changes in the trust agreements, section 9.3 of the 2013 code would provide that the code would be automatically amended to reflect the change.

Regarding violation of basic rights, there is actually no general right to run for elected office in any governing body in Canada. The right always comes from the laws or rules in place for each government.

In McLeod Lake's case, the right to run for office comes from the Custom Election Code so there is no violation of basic rights if the code limits eligibility.

5.

“Appeals process - "Councils decision would be final".... they are the reasons for appeals, this is a MEMBERSHIP decision not a panel of 6 people, leave it at the AGA for members to decide.”

Answer: It is important to be clear that the appeals provided for in this section of the Membership Code are not appeals against Council decisions so it would be incorrect to conclude that "they (Council) are the reasons for the appeals". Rather the appeals would be against decisions of the Membership committee.

It is also very important to understand how the membership application process would work. First, the purpose of the Membership Code is to clearly set out the rules for eligibility. Second, the purpose of the Membership Committee is to determine whether an application satisfies those criteria. If it does, the applicant will be accepted. If it does not, the applicant will be refused. Third, if the applicant does not agree with the Committee's conclusion or process, the applicant has the right to appeal to Council who would review the Committee's work and make a final decision on the application. The final decision

clause is intended to make it clear that the Band controls its membership so appeals outside the band are not appropriate.

An analogy is in the national immigration system, where new Canadians are admitted or not admitted according to administrative criteria and not according to public opinion. In McLeod Lake’s case, the members make their decision when conditions for membership are established. There is no need for discretion after that, so decision making at an AGA would serve no useful purpose. The working group has suggested a better use of scarce time at an AGA would be in ceremonial welcoming or initiation of new members.

6.

“Election Code Appeals are increased from $100 to $500....really....more of a discouragement to appeal than to encourage individuals running to be honest and responsible in their election shenanigans.”

Answer: Appeals are very costly to the band in terms of direct expenses to support the process and in terms of lost staff and council time. The intention here is simply to ensure that any appeals are serious and to help offset some of the band’s costs incurred by the appeal.

7.

“Chief vacancy is to go to election...but other vacancies to be filled by next in line???? Makes me wonder what the motivation is.”

Answer: The motivation is simply to balance the interests of good governance with expediency. The process of having the Chief's opponent in a position to assume office if the office is vacant is an encouragement for perpetual attacks on the incumbent. Principled opposition is one thing, but an incentive to maneuver for an immediate change of power is another. The recommendation is that the members as a whole be enabled to decide the succession should a vacancy arise, just as they decided who should be Chief originally.

Regarding Councillor's vacancies, there has been no suggestion that the "next in line" alternative carries with it the same problems. Because this is more immediate and less costly than a by-election, there appears to be no compelling reason to change for councillor vacancies.

8.

“I agree that the definitions of Severalty from the Feds and our Govt is grey. I will never encourage a decision that dis-allows my friends, family and ancestors, who chose severalty, not able to actively participate in community elections both with voting and running. I am sure individuals who chose severalty agree that they cannot make decisions when it comes to communal property but how can we favour exclusion? I definitely do not agree with chief and council making the decision for other people considered transferees, this is an AGA decision and when our community amended this 10 years ago, the decision was to bring it to the

membership so they had a voice, not silence them. I also WILL NOT support the proposed changes to the election code.”

Answer: I have hopefully addressed the severalty issue above and can only add that it would be very difficult for a severalty member to participate in band governance when the most important issues of land management and financial affairs are not open to them. I repeat that the codes change nothing except the capacity to run for office. Other restrictions have their source in the treaty and the trust agreements and cannot be altered by the Membership Code alone.

Regarding transferees the only reason that council would be involved is because another band under the Indian act is involved. In other words, government-to-government! Council still relies on the membership application process to inform its decision and nothing would prevent it from obtaining further input from the membership through the operation of section 3.15.

9.

“How can we amend the membership code in the fall when it specifically states that it needs to be at an AGA?”

Answer: It is correct that section 7.1 of the Membership Code refers to the AGA. However the procedure is expressly optional (“may be amended …) and it appears to provide for a mail in ballot alternative. The section is so badly drafted that we have obtained legal advice that so long as the mail-in amendment process is fair and reflects the will of the members, it would be valid.

Problems with the amendment procedure in the 2004 Membership Code are set out below. For reference, section 7.1 of the Code provides as follows: “7.1. This Membership Code may be amended by fifty percent plus one (50%+ 1) of all eligible electors of the McLeod Lake Indian Band, during the Annual General Assembly of the McLeod Lake Indian Band, either in person or by mail-in ballot.”

First, discretionary language in the phrase “may be amended by …” implies that other amendment procedures could be used. If section 7.1 was the only amendment procedure, the phrase would be “shall be amended by …”.

Second, it is not clear whether “fifty percent plus one” refers to the number of eligible voters who must be present for an amendment vote, or whether it is intended to be the majority needed to pass an amendment. If it is intended to set the number of electors who must be present, then it is not clear what majority would be necessary to approve the amendment.

Alternatively, if it means that fifty percent plus one of all eligible electors is the threshold needed for approval of an amendment, then the number of voters who would need to be present at the AGA would far exceed historical attendance. (There are over 320 adult band members, in which case at least 161 would be required.)

Third, the phrase “during the Annual General Assembly” is not the same as “at the Annual General Assembly”. It is thus not clear whether the intention is to conduct a vote as part of the AGA proceedings, or simply during that time period.

Fourth, the phrase “either in person or by mail-in ballot” is ambiguous. Stated in that way, it means it must be one or the other. On one hand, conducting a mail in vote during the three day time period of an AGA does not seem feasible. But if the intention was to have an inperson vote, there would have been no need to include the reference to a mail-in ballot.

Possibly the intent was to conduct both, but if so, it could have been correctly stated.

Taken overall, it is therefore impossible to clearly determine how this section is intended to operate. Where this problem has been tested elsewhere, the courts have determined that an alternative process that is conducted fairly and is capable of reflecting the members’ intention will be valid. This is reflected in the legal opinion the working group has received.