Candidate, First Nation battle over residency
Bid for office rejected for not living on reserve
OTTAWA • A member of a northern Alberta First Nation has gone to Federal Court after he was prevented from running for chief in a November election, arguing the decision to reject his nomination because he lives several kilometres off the reserve was unconstitutional.
Wayne Cunningham believes a provision of Sucker Creek First Nation’s election code, which states that anyone running for office must have lived on the reserve for at least six months before being nominated, discriminates against the majority of band members who live elsewhere.
The case is not the first of its kind. Since a landmark 1999 Supreme Court decision that found an Indian Act provision that prevented off-reserve residents from voting in band elections was unconstitutional, various court rulings have struck down residency requirements for those wishing to run for office. Most recently, a Federal Court judge last August threw out the Bigstone Cree Nation’s requirement that its chief and council live on reserve, finding that it reinforced “the historical stereotype that off-reserve band members are less worthy and entitled.”
“We need to ensure that all band members are treated equally under the Charter of Rights and Freedoms,” Cunningham said. “I have no intention of living on the reserve at this point in time. I never did. How can you expect someone … to come, live on the reserve, build a house, and leave whatever they have behind? … And they might not even get elected.”
Cunningham said he’s lived most of his life in Joussard, a small community roughly 13 kilometres from the Sucker Creek reserve. He said only about one quarter of the First Nation’s nearly 3,000 members actually live on the reserve.
Cunningham decided to run for office last year after becoming disillusioned with the band’s financial transparency. His judicial review application says he was nominated as a candidate for chief at a meeting on Nov. 10, but the nomination was rejected three days later by the First Nation’s electoral officer, because he didn’t live on the Sucker Creek reserve.
The election was held on Nov. 28, and the incumbent, Chief Jim Badger, was re-elected. On Dec. 6, Cunningham filed an appeal with the First Nation’s election appeals committee, arguing that a new election must be ordered. “Preventing off-reserve members from running for chief or council perpetuates the wrong stereotype that off-reserve band members are uninterested in band governance, are less qualified to be in leadership positions, and are less worthy of consideration and respect,” he wrote in his appeal, which was denied later that month. In a letter, the appeal committee stated that it was not in the committee’s mandate “to capriciously redefine the election regulations to deal with this matter.”
Cunningham is now demanding that the Federal Court overturn the committee’s decision, declare the residency requirement unconstitutional and order a new election.
In an interview, Badger told the Post he’s sympathetic to Cunningham’s case, and agrees that the residency requirement is probably “antiquated.” But he said there was no time to deal with the issue before the last election, and the community would have to vote on any change to the election code in a referendum. He didn’t say how he would respond to the Federal Court case, but he said there will be a community meeting on the issue next month. “I do want some way of addressing their needs somehow,” he said of members living off reserve.
Still, Badger also said that reserve residents have specific concerns that are different from those of members living elsewhere, including poorer infrastructure.
Lawrence Lewis, the electoral officer hired by Sucker Creek First Nation, said he was obliged to reject Cunningham’s nomination because it violated the election code. “In many respects, I totally agree with where he’s at, but my hands are tied,” he said.
Sucker Creek’s election code also says that only residents of the reserve are allowed to vote, which used to be a requirement under the Indian Act.