Q&a

McLeod Lake Indian Band Amendment of Custom Election Code (2004) and Membership Code (2004) Questions and Answers General Questions 1.

Q: Why does McLeod Lake have these Codes and what are these codes based on?

A: McLeod Lake voted in 1986-87 to take control of its own membership rules and later, to take control of its own voting procedures. Members believed it was better to decide these matters themselves than to let the Department of Indian Affairs control them under the Indian Act. Section 10 of the Indian Act sets out the procedure that was used to establish the Membership Code and obtain member support; section 74 of the Indian Act did the same for the Custom Election Code.

2.

Q: Why are the Codes being amended and why now?

A. There are several reasons why the Codes are being updated at this time. Bill C-3 and the Band’s economic successes have attracted more applications for Band membership. The 2004 codes have become outdated and also lack clarity on several important questions, such as membership application procedures. These problems have been identified over the years by administrative staff, council and members at quarterly meetings and the 2012 Annual General Assembly.

3.

Q: What is Bill C3 and how does it relate to this?

A: “Bill C-3” is a federal Act which amended the Indian Act by extending Indian status to certain children who were previously unfairly denied status. It is similar in effect to Bill C-31 in 1985.

Because Bill C-3 relates to Indian status it has no direct relationship to Band membership, i.e. a person without Indian status can still be a Band member. However, Bill C-3 has definitely increased the number of applications for Band membership, and is one of the reasons that the Membership Code is being amended.

4.

Q: Would the 2013 version of these Codes repeal the 2004 versions?

A: Yes. All former codes would be repealed by the 2013 Codes.

5.

Q: Who can vote on these amendments?

A: Any band member eighteen years of age or older on October 28, 2013 can vote on whether to accept the amendments.

6.

Q: Can new members vote in this ratification vote?

A: Yes, members who were approved prior to the vote and who are at least 18 years old on the day of the vote are eligible to vote.

7.

Q: Why a mail in ballot? Is there another way?

A: A mail in ballot is less costly than a vote in person at a poll. It also gives a greater number of members an opportunity to vote, since it would be difficult and costly to operate a poll in every community where members live. There may be options such as on-line voting in the future.

8.

Q: How many votes are needed to pass the amended codes?

A: The Custom Election Code would need fifty per cent plus one of the votes actually cast. For example, if 200 ballots were received, 101 would ratify the amendments. The Membership Code requires fifty per cent plus one of the total number of eligible voters to approve the amendments.

There are at least 357 eligible voters, so 178 “yes� votes would be needed to ratify the amended Membership Code.

9.

Q: Can we add the possibility of revisiting the Trust on the Election & Membership Code ballot?

A: No. Amending the Trust may be necessary in the future but it would be a separate process.

Membership Code 10.

Q: Who are the members of the Band?

A: The members of the Band are those persons who are registered on the Band List. The original members of the Band are those persons who were registered as Band Members when the treaty adhesion agreement came into effect on March 27, 2000. The total current membership includes any new members who have been added since that time

11.

Q: Can anyone else join?

A: Yes, new members can be accepted if they are eligible and fulfill the requirements of the Membership Code.

12.

Q: Does Indian Status matter?

A: No. A non-status person can be a band member if the person is descended from a McLeod Lake Indian Band member and meets other membership requirements. Indian status is determined only by the federal government under the Indian Act, band membership is decided only by the band under its Membership Code.

13.

Q: Who decides who can be a member?

A: Under the 2004 Code, it is not entirely clear but decisions have normally been made by the Membership Administrator in consultation with whoever might be of assistance for a particular application. Under the 2013 Membership Code, decisions would be made by a three member committee. It is important to understand that this Membership Committee would determine whether or not an applicant met the requirements of the Membership Code. If an applicant meets those requirements, the application will be accepted. If not, the application will be rejected. These are known as administrative decisions.

14.

Q: Can someone appeal the Membership Committee’s decision?

A: Yes, an unsuccessful applicant could appeal to the Band Council.

15.

Q: Why does the Band Council do appeals?

A: The Band Council is the governing body of the Band and has a fiduciary responsibility to act in the Band’s best interests. They are thus in a position to ensure the integrity and accuracy of all band decisions, including memberships, through an objective appeal process.

16.

Q: How would the Membership Committee affect the Membership Administrator’s work?

A: The Committee structure would make it clear that the Membership Administrator is not expected to make decisions on whether or not to accept membership applications. The Administrator would thus be able to provide support to the application process without fear of having conflicting responsibilities.

17.

Q: Could someone who was denied under the 2004 Code apply under the 2013 Code?

A: Yes, but the decision may or may not be the same depending on the individual circumstances.

18.

Q: Why is membership based on the year 2000?

A: March 27, 2000 was the date that McLeod Lake Band’s adhesion to Treaty 8 came into effect.

The amount of land that was included in that agreement was based on the number of band members as of that date. Specfically, the band received 128 acres (53 hectares) of collective reserve land for each member enrolled as of that date.

19.

Q: What is a non-Status?

A: Non-status Indians are aboriginal people whose ancestors lost their Indian status in some way through “enfranchisement” under the Indian Act.

20.

Q: Can a non-status person become a Band member?

A: Yes, if they are descended from a member of the Band.

21.

Q: Can non-aboriginal people become band members?

A: No, there is actually less chance of non-aboriginal people becoming band members under the proposed membership code than there is under the 2004 code because the 2004 code allowed any adopted child to become a band member. There was also a provision for “Honourary members” which could include nonaboriginal employees or spouses. The proposed 2013 code would require connection by descent (i.e. “blood line”) to a McLeod Lake member, and the Honourary Member category has been removed.

22.

Q: What is the benefit of the age change?

A: Changing the age from 18 years to 19 years will make the age of adulthood consistent with the age at which a person is eligible to receive trust benefits. The age change will apply to the age for voting and running for office.

23.

Q: We no longer use the term “custom” in the Membership Code, so does the word “custom” in the Custom Election Code create uncertainty?

A: Possibly, but the term is used in the Indian Act so is used here to make it clear that McLeod Lake band elections are held under band rules and not under the Indian Act.

24.

Q: What happens with “blended marriages” of severalty and communal land members, and what happens if they split up?

A: In the marriage, each member would still be in their original category. In other words, Severalty members would continue to be Severalty members and communal members would continue to be communal members. McLeod Lake has enacted a Matrimonial Property Act under the McLeod Lake Indian Band Land Code that would govern the distribution of property if the marriage broke down. The Act may have to be reviewed if the new Code is ratified.

25.

Q: If there is a cap or restrictions on becoming a member, will there be a problem with growth and sustainability of the land base if you end up with fewer members in the years to come? Also, what happens with the assets if you don’t get a bigger land base with new members being added?

A: This is an important question of balance. On one hand, increasing the number of members who participate in band programs could result in a smaller share for everyone if the Band’s revenues are static, as for example, funding from the federal government under the Indian Act. However, if the Band does not grow with new members, it may become stagnant and eventually disappear.

However, because much of the Band’s revenue is now created by the Band itself, new members can actually contribute to the Band’s earning potential and increase the band’s overall growth and sustainability. Balance and sustainability can be achieved when eligible members can join and contribute in this way.

26.

Q: What are the limitations of benefits to those members in the five-year wait after an application for membership is approved?

A: Under the 2013 membership code, new members who apply and are accepted would be eligible to receive only available federal funding benefits such as health and education support for the first five years. This is intended to insure that only people who seriously want to be band members will apply. It will hopefully discourage people who think they can “get rich quick” and reassure those members who are concerned that band resources will be depleted by new members.

27.

Q: Can my new born daughter become a member?

A: If you or the baby’s father are band members, your baby would be entitled to be enrolled as a Band member.

28.

Q: Will there be a section in the application process for those newborns whose parents are already members?

A: We anticipate that there would be a very simple administrative process for enrolling new babies.

29.

Q: Do new born children have to wait five years before they become eligible for benefits?

A: No, they are members by birth rather than by application. However, they are of course limited by any age requirements involved in benefit programs and services.

30.

Q: What rights and benefits did the honorary members receive?

A: Honourary members received no concrete benefits. This category of membership was purely ceremonial.

31.

Q: Is the Membership Code a public document?

A: The proposed 2013 Code would provide that the Membership Code is protected by federal privacy legislation. The 2004 Code does not address this issue.

32.

Q: What is the role of the Membership Committee?

A: The Membership Committee would review membership applications and determine whether an application meets the criteria for membership set out in the Membership Code. If so, the application would be approved; if not, the application would be declined.

33.

Q: How much of the Membership Committee’s decision-making is discretionary authority?

A: Membership is essentially a birthright, so if an applicant meets the conditions for membership, the application will be approved. If not, the application will be rejected. There is thus very little, if any, room for discretionary or arbitrary decision-making by this Committee.

34.

Q: Who should be on the Committee? How long would their term be and what would be the aptitudes of the Committee members?

A: These are matters that would be decided and implemented after the Code passes. The most important consideration is that whoever sits on the committee is bound by the checks and balances provided in the code.

35.

Q: Would the Committee have the ability to make recommendations to the Membership Code?

A: Yes. Any band committee is expected to contribute to making procedures more cost-efficient and effective for the membership.

36.

Q: Would new members be sworn in at the AGA? A: A formal welcoming ceremony has been suggested and would be relatively easy to arrange.

37.

Q: What if there is a conflict of interest?

A: A conflicts of interest is a situation where a public official can use his or her position to create a personal benefit for themselves or their family. Conflicts of interest on the Membership Committee would be dealt with in the same way that they are dealt with on Council or other Band committees. Specifically, the person with the conflict of interest would simply have to physically

withdraw from discussion of the issue that they were in conflict with, and take no part in making the decision.

38.

Q: How many times would the Membership Committee meet?

A: The Committee would be required to meet at least once per year, but would be able to meet more often if necessary to get the work done. This would depend mainly on the volume of applications.

39.

Q: What is the benefit for new members and what do they get?

A: This would depend on the category of membership, so please refer to the Schedules A – E of the draft Membership Code, 2013.

40.

Q: If I wanted to become a Band Member and was accepted for transfer in, would I be entitled to education support?

A: As set out in Schedule D of the Membership Code, 2013 a transferee member would be entitled to education funding provided by the federal government if the member met program eligibility requirements. A transferee would also be entitled to participate in programs funded or operated by the Band, again subject to availability and eligibility requirements.

41.

Q: What about transferee’s kids? My sister has two kids from a different Band. Are they allowed to apply and does it go through the Committee under the new Code?

A: If your sister is a McLeod Lake Band member or a descendent of a McLeod Lake Band member, her children would be entitled to apply for transfer and membership in McLeod Lake. This is the case under either the 2004 Code or the proposed 2013 Code, and Band Council Resolutions supporting the transfer are required from both bands. The transfer procedure is clarified in the 2013 Code.

42.

Q: There is a member from this Band who would like to come back. How does this work?

A: The member is entitled to apply to transfer his or her membership back to McLeod Lake Band and would then become a “transferee” member if accepted.

43.

Q: Can my spouse transfer in from another Band?

A: If your spouse is descended from a member of the McLeod Lake Indian Band, he or she may apply to transfer their membership. There is no provision to transfer in members who are not related through ancestry.

44.

Q: Why can’t other spouses transfer in?

A: There have been problems in the past with marriage break-ups after a non-descendant has become a band member. Also the spouse already enjoys some benefits under the previous band.

Note that the children of the marriage would become eligible for membership through the McLeod Lake band member.

45.

Q: How long does the application process take? Is there a deadline?

A: These are administrative processes that would be developed if the 2013 amendments are approved by the members. There are no guidelines whatever in the 2004 Membership Code but as a starting point, the proposed 2013 would require at least one meeting per year of the Membership Committee.

46.

Q: Are we legally bound to accept new members?

A: Because McLeod Lake Indian Band has taken control of its own membership, there is no legal requirement that new members be accepted. However, if the Band does not grow, it will stagnate or disappear so the Band has chosen to accept new members through the provisions of its membership codes.

Severalty 47. Q: What is a Severalty member?

A: Severalty members are band members, including their immediate family members, who chose to take 160 acres (65 hectares) of private land rather than be included in the calculation of the band’s communal land entitlement under the Adhesion to Treaty 8. Under the Treaty 8 formula, each member of the band contributed 128 acres (52 hectares) to the bands total land base. The Severalty members thus did not contribute to the band’s lands and resources.

48.

Q: What are the entitlements of Severalty members? What actual benefits do they receive?

A: The entitlements of Severalty members are set out in Schedule “E” of the Membership Code.

Basically these members would be entitled to participate in benefits and programs funded by the federal government, provided they are status Indians. They would also be able to vote in Band elections and apply for employment or contractual opportunities for which they might be qualified.

49.

Q: Do the Severalty members have to apply for federal government benefits such as education on their own?

A: No, they are still Band member so would access general band funding in the same way as other Band members.

50.

Q: How does it work if Severalty members were to run for a Band Council leadership position?

A: Severalty members would not be eligible to run for most leadership positions. Because they have chosen to provide for their needs by taking private land rather than participating in the acquisition of communal reserve land, they are not entitled to participate in the governance or benefits involving the reserve lands. Treaty land rights are collective rights, and if they are not connected with the land, they are not entitled to exercise the rights.

51.

Q: What can Severalty members run for if not for Council?

A: Severalty members could run for, or be appointed to, committees or offices that are not related to management of reserve land or benefits from the lands or trusts.

52.

Q: Are there any loopholes in the Trust where Severalty members would be able to access trust funds?

A: The Trust has been in operation for more than thirteen years, and no such “loopholes” have been identified to date. In addition to the drafting of the Trust Agreement, the calibre of Trustees elected by the band has managed the funds very responsibly.

53.

Q: Could a child become a Band Member if the Dad is a Severalty member with Indian status?

A: Severalty members are still band members, and the child of a band member is automatically eligible for band membership. In this case, status would not matter and the child would be a Severalty member.

54.

Q: How many Severalty members are there?

A: Twenty-three band members elected to take severalty lands in 2000.

55.

Q: Are Severalty members allowed to live on reserve?

A: By definition, Severalty members have chosen to “live apart” from the Band. However, the Band has jurisdiction over land use under its Land Code, so it could develop a legally binding policy that could regulate anyone, including Severalty members, residing on reserve land.

Custom Election Code 56.

Q: Are there educational qualifications to run for Chief and Council?

A: No, this is misinformation. There is no educational requirement for candidacy included in the proposed Custom Election Code.

57.

Q: Does this affect other codes?

A: Yes. The intent is to have voting procedures conducted under a single set of rules. The procedures in the Custom Election Code would apply to other codes such as the Land Code and the Trust agreements, provided that those codes would take priority if there was any difference.

Future amendments would continue this process of aligning the procedures.

58.

Q: How many times does Council meet?

A: Council holds regular monthly Council meetings but Chief and Council are also involved in almost daily internal and external meetings related to programs and services, funding, economic development, resource management, administration and many other matters related to the Band’s affairs.

59.

Q: What about time zone issues?

A: Under the proposed Custom Election Code, 2013 elections would be conducted according to the time in McLeod Lake, and the Electoral Officer would be the official time keeper.

60.

Q: During a tie vote, what is the length of vacancy? Is the re-vote a mail-in ballot or a poll? How long can you go without a Chief?

A: The proposed 2013 Code requires a recount to be made within 24 hours of the voting day and any run-off election to “be held as soon as reasonably possible” by mail-in ballot. During a vacancy in the Chief’s office, the duties would be carried out by the Deputy Chief.

61.

Q: What are the criteria for an Appeal Board member?

A: Under the proposed 2013 code, one member of the election Appeal Board would be an adult Band member and the other two would be adult non-members. All three must be free of conflicts of interest in the election, and none may be a Band employee, a member of Council or a candidate for office.

62.

Q: Can there be litigation during a Council term?

A: Yes, a member of council may be involved in litigation of a purely personal matter, such as for example, past payments on a contract or salary. However, a member of council would not be permitted to sue against a council policy decision or position, since the member would then be essentially suing themself. In that case, the council member would be expected to step down.

63.

Q: How many terms can a person run?

A: There is no limit on the number of terms a member can run for a position as Chief or councillor.

64.

Q: What if a person was running for Chief and put in their address as the Prince George area?

Would they qualify? What about Mackenzie? Can someone from Edmonton run?

A: The proposed 2013 Custom Election Code makes it clear that any eligible member can be nominated for chief, regardless of where he or she lives at the time of the nomination. However, a member who is elected as Chief must live in the area of McLeod Lake, Bear Lake, Prince George, Mackenzie and Chetwynd while they are in office.

65.

Q: How does the consecutive missing of meetings work? What happens when a Council member misses three meetings? What is the procedure for missing a meeting?

A: The basic approach is to ensure elected members of Council attend meetings to carry out the duties they were elected to perform. Under the proposed 2013 Custom Election Code, a member of Council who missed three consecutive meetings without the approval of a quorum of Council would be required to resign, unless the absence is due to illness. In that case, a member of Council would be expected to step down if he or she missed six consecutive meetings due to the illness.

66.

Q: Does this apply to regular or special or quarterly meetings?

A: These attendance requirements apply to regular monthly Council meetings. There is another procedure that would impose a three hundred dollar financial penalty if a Council member misses other meetings, such as quarterly meetings, without approval, provided that there has been at least forty-eight hours’ notice of the meeting.

67.

Q: What happens if a member of Council goes to jail?

A: In those unfortunate circumstances, the member’s position on council would be declared vacant.

68.

Q: What if a member of Council decides to go to school and becomes unavailable? What if they’re on holidays and a meeting is taking place? Or what if the person has to go to Rehab? Are there second chances, because people can change?

A: Again, the underlying principle is that people who are elected to Council should be prepared to attend meetings and do the work their position requires. While Council can authorize temporary absences, missing meetings for three to six months would be unfair to the Band members. A member who resigned or was deemed to have vacated their office would be able to run again if nominated in the future.

69.

Q: if a member of council is required to resign or the position is declared vacant, would this trigger a by-election?

A: Yes, unless the vacancy occurred within six months of a coming scheduled election, in which case the position would remain vacant until the election.

70.

Q: How would the Appeal Board deal with allegations of vote buying during the election process, or allegations of swearing false affidavits?

A: The Appeal Board only has jurisdiction to consider whether the election was conducted according to the requirements of the Custom Election Code. Buying votes and swearing false affidavits may constitute criminal activity and the allegations would be referred to the RCMP.