Off-reserve member wants right to run

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Before Pasqua First Nation members decide who gets on their council, the Federal Court of Canada has to determine who?s eligible to run for council.

It?s the latest fallout from a 20-month-old court decision that rules that some of the Indian Act?s regulations for band elections and off-reserve members violate the Charter of Rights and Freedoms.

Marsha Gordon, a band member who lives in Regina, is challenging new Indian Act regulations that allow off-reserve members to vote in band elections, but not to run.

Gordon has launched a lawsuit against the Department of Indian Affairs and Northern Development and her band over the new federal regulations. She?s also applied for an interim injunction that would allow her to run for band council.

Gordon and her lawyers filed the injunction in Federal Court Jan. 30, eight days after nominations closed in the band election.

?This federal legislation is continuing to drive communities apart,? Gordon said.

The lawsuit stems from changes made to the Indian Act after the Corbiere decision in May 1999. At that time the Supreme Court of Canada ruled that a section of the Indian Act prohibiting people living off reserve from voting in band elections violates the Canadian Charter of Rights and Freedoms.

However, Canada?s highest court gave DIAND 18 months to develop new rules for band elections?until November 2000. In October of that year, DIAND issued new rules that allowed band members living off reserve as well as on reserve the right to vote in band elections. However, those living off reserve don?t have the right to run for council, nominate others to run for chief and council positions, or second anyone.

?The legislation now says that I can vote, but it won?t let me have a say in who those candidates are,? said Gordon.

?I think that?s a fundamental democratic right that they?re trying to take away.?

In arguments before Federal Court Judge Yvon Pinard Jan. 30 in Regina, Gordon?s lawyer said the legislative changes continue to discriminate against band members living off reserve.

?It prevents off-reserve Indians from electing a member of their own constituency,? said Bob Hrycan.

Pasqua First Nation Chief Todd Peigan said his band is caught in the middle. While Gordon?s lawsuit also names the band as part of the application in the injunction, he and his council don?t like the changes made by DIAND.

?We?re not in the business of justifying the Indian Act,? Peigan said in an interview. ?We didn?t write it and we didn?t have much say in the matter.?

Through the injunction, Gordon wants on the ballot, not to delay the Pasqua election. A ruling prohibiting the band election from going ahead Mar. 5 would cause more headaches because DIAND would have to manage the band?s affairs in their interim until a new chief and council are elected.

The band will abide by whatever the judge decides, Chief Peigan added.

Pasqua First Nation is also in the process of developing its own rules for band elections, he said.

In Federal Court, the lawyer representing the federal government admitted the new regulations are flawed. However, James Gunvaldsen-Klassen added, the court system isn?t the place to deal with the issue.

An injunction would not only throw the Pasqua First Nation band election into turmoil, but also the elections on as many as 50 First Nations across Canada, he said.

The federal government can?t say they didn?t have enough time to develop new regulations allowing those living off-reserve a vote in their band elections, because the Supreme Court of Canada gave them an 18-month grace period to develop that legislation, argued Hrycan.

More than 900 of Pasqua First Nations? 1450 members live off reserve, said Chief Peigan, who isn?t running for re-election in the March 5 band vote. Most of those living off reserve, such as Gordon, reside in Regina.