Court topples First Nation’s rule councillors must live on reserve
OTTAWA • A Federal Court judge has thrown out an Alberta First Nation’s requirement that its chief and council live on reserve, in a case that weighed the First Nation’s right to self-government against the Charter rights of its citizens.
The decision builds on other cases that have gradually extended voting and governance rights to band members living off-reserve, including a 1999 Supreme Court of Canada ruling that found First Nation citizens are often only seen as “truly Aboriginal” if they live on reserve.
In this case, launched by a councillor for the Bigstone Cree Nation who was removed in 2015 for failing to move onto reserve lands, the First Nation argued its customs and right to selfgovernment must be respected as “integral to the process of reconciliation” between Canada and its Indigenous peoples.
But in her decision last week, Judge Sylvie Roussel found that a residency requirement for elected officials “reinforces the historical stereotype that offreserve band members are less worthy and entitled, not on the basis of merit, but because they live off reserve.”
As a result, she tossed out the requirement in the First Nation’s election code and overturned the decision to remove the councillor, Clifford Cardinal, from his position.
“Mr. Cardinal is pleased with the court’s decision,” Allyson Jeffs, Cardinal’s lawyer, said Wednesday in a statement.
“In particular, he hopes the door is open for more off-reserve members to lend their skills and experience to leadership by standing for elected office.”
The Bigstone Cree Nation includes the communities of Wabasca, Chipewyan Lake and Calling Lake in northern Alberta. In April 2017, the total population was just under 8,000 people, of which roughly 4,500 — more than half — lived off reserve.
In 2009, the First Nation signed a land settlement with the federal and provincial governments that acknowledged its right to selfgovernment. It also adopted a new election code that designated a certain number of council seats for each of the three communities, but required that the chief and councillors be living on their reserves within three months of their election.
In an affidavit, Bigstone Elder Bert Alook said it’s a long-standing custom for the chief and council to live on reserve. “The people want their leaders to live amongst them,” he said. “Our people believe that the best leadership comes from those living on the reserve.”
Cardinal, who has lived 150 metres outside the boundary of the Calling Lake reserve since the 1980s, was first elected to council in 2010. In court documents, he claimed to have moved in with his son, who was living on reserve, to satisfy the residency requirement. When he lost the next election in 2014, he said, he moved back home.
But the results of the 2014 election were overturned on appeal, and Cardinal was re-elected in a byelection in November 2014. After failing to prove that he’d moved back onto the reserve, he was kicked off council in March 2015.
Cardinal suggested he was unfairly targeted by those who wanted his seat on the council. But in court documents, Chief Gordon Auger claimed Cardinal had been given several opportunities to prove his residence, and that the same rules have been applied to other councillors.
In her decision, the judge rejected Cardinal’s claim that the chief and council had acted unfairly. But she found the rule itself violates the Charter rights of offreserve band members and perpetuates “the erroneous notion that band members who live off the reserve have no interest and a reduced ability in participating in band governance.”
She found the requirement imposed a burden on off-reserve citizens, since “relocation comes only at a great cost, both personally and financially.” She also noted that both Cardinal and Auger agreed there’s a housing shortage on the Calling Lake reserve.
Further, Roussel found that the First Nation’s arguments about why the chief and council should live on reserve played into stereotypes about who is “truly Aboriginal.”
The decision is the latest ruling to expand the rights of off-reserve band members. Until 1999, only First Nation citizens living on reserve were allowed to vote in band elections under the Indian Act. That changed with the Supreme Court of Canada’s landmark Corbiere decision, which found the law “presumes that Aboriginals living off-reserve are not interested in maintaining meaningful participation in the band or in preserving their cultural identity, and are therefore less deserving members of the band.” Since then, other decisions have overturned residency requirements for those wishing to run for office.
In this latest case, court documents show the residency rule has been a contentious issue for the Bigstone Cree Nation at least since 2012, when a former chief argued in a council meeting that they were discriminating “against each other.” There was even a proposal in 2017 to change the election code to allow councillors to live within a 30-kilometre radius, but it appears the community never voted on it.
Despite the decision, which is still subject to appeal, Cardinal’s political career may be over. His lawyer said he doesn’t plan to seek re-election in the band’s upcoming election in September.