British Columbia Association of Aboriginal Friendship Centres



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Located downtown Victoria BC, the BCAAFC is the umbrella association for 24 Friendship Centres throughout the Province of British Columbia. Friendship Centres provide a number of quality services to the Aboriginal communities located in an urban setting.

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Corbiere Decision
 
The Corbirere Decision [NAFC, BCAAFC & UNN]


 
History
  • Involved the Batchewana First Nation Band, located beside the city of Sault Ste-Marie, Ontario.

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  •  Population: 1,978 - 36% live on reserve (701 members); 64% live off-reserve (1,627 members)

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  • Off-reserve members of Batchewana Band challenged residency requirements for voting.

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  • Indian Act residency voting requirements for Batchewana struck down at trial on appeal.

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  • Supreme Court of Canada (SCC) ruled on the constitutional validity of residency requirements for all First Nations elections which fall under thr Indian Act. Approximately 275 First Nations hold their elections under what is known as the 'Custom Code'. There are approximately 650 First Nations in total.

 
 
The Ruling
  •  On may 20, 1999, the SCC declared invalid the words "...and is ordinarily resident on the reserve..." in sub-section 77 (1) of the Indian Act.

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  • The provision was found to be an unjustified violation of the equality rights guaranteed by Section 15 of the Canadian Charter of Rights and Freedoms.

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  • The Court suspended the effect of its declaration for a period of 18 months.

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  • The ruling effects all of the 275 First Nations that exclude non-resident members from participating in elections

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  • Non-resident members will be entitled to vote in elections held after November 20, 2000, or as soon as First Nations election processes are implemented which address the change.

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  • The scope, or far reaching effects, of the decision has yet to be determined.

 
 
The Decision Affects...
  • Band elections held after November 2000
As well, despite suspension on Chief and Council elections, involvement of off-reserve members in certain kinds of decisions starts immediately. 

For Example:

  • Decision making on trust funds.
  • Referanda regarding surrenders and leases of reserve land.
  • Ratification of specific claims and self-government agreements.
  • Conversion to INAC's Community Election System policy.

The decision did not address expanding federal jurisdiction over programs and services off-reserve. It also did not address the access to on-reserve programs by off-reserve members.

 

It May Affect...
  • Current or new applications under the Conversion to Community Elections Policy of Indian Affairs and Northern Development (INAC).
  • Management of band trust funds.
  • Management of reserve lands and resources.
  • Custom election codes.

 
 
Frequently Asked Quesions:
  • When do residents living off-reserve get to vote in band elections?
 - As the decision stands, all band members will be able to vote in band elections held on or after November 20, 2000.  How that will take place has yet to be determined.
  • If my First Nation has an election between now and November 20, 2000, are the results still valid?
 - Yes. The Corbiere decision applied immediately only to the Batchewana Band. The ruling comes into effect for all other First Nations only on November 20, 2000.
  • What if Friendship Centre members inquire as to whether or not they can vote, either in their home community or in their urban community?
 - Any action taken is currently at the discretion of band councils. However, the AFN is recommending that bands in these situations explain the nature of Corbiere and when it comes into effect. Materials have been developed which can be used for information purposes; in addition, web sites have been developed and/or updated.
  • Does the Supreme Court's ruling mean that as an off-reserve band member, I will get access to programs and services on-reserve?
 - The Supreme Court's ruling deals specifically with the voting rights of off-reserve band members. In Corbiere, the Court did not directly rule on off-reserve access to program delivery. It is anticipated that these issues will be addressed in PhaseII or PhaseIII, should these "Funding Phases" be approved by INAC.
  • I have obtained status under Bill C-31, live off-reserve and have membership in my band. How does this ruling affect me?
 - If your First Nation conducts its elections pursuant to the electoral provisions of the Indian Act, you will be able to vote in band council elections after November 20, 2000 or until a legislative amendment is made, which ever occurs first. Until that time, according to the Indian Act, you do not have the right to vpte. If your First Nation conducts its elections according to a custom code, the full implications of the ruling have yet to be determined.
  • Does this decision apply to bands with custom codes?
 - Except for bands which have negotiated self-government agreements, all bands operate under the Indian Act. A number of bands with custom codes include all members, whether living on or off-reserve, in band elections. Although there is always a chance that custom codes which include members who reside off-reserve may be challenged, the issues would likely not involve the code itself, but incidental issues such as access to programs, services or housing. Bands whose codes exclude members living off-reserve, may find their codes open to challenge on the same basis as Corbiere.
  • Section 25 of the Charter of Rights and Freedoms says that the Charter cannot abrogate or degorate from Aboriginal, Treaty or other rights that pertain to Aboriginal people. Wouldn't Custom Codes be exempt from the decision on this basis?
 - There has been some speculation that custom codes may be exempt from the decision. This can really only be determined on a case by case basis, and such an election code may still be subject to a legal challenge. A member who has been excluded could challenge the Order in Council and custom code.



For More Information Contact....
BC Association of Aboriginal
Friendship Centres
#200 - 506 Fort St.
Victoria, BC V8W 1E6
Phone: (250)388-5522 Fax: (250)388-5502




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