Supreme Court's Corbiere decision making waves

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Lawyers who worked on the Corbiere case concerning the voting rights of off-reserve members that was decided by the Supreme Court of Canada on May 20 say the media's misunderstanding of the decision may have triggered an incident at the Abegweit Reserve in Prince Edward Island. On May 25, three women who were off-reserve members tried to vote in a band election and wound up being charged with obstruction.

Toronto lawyer Bill Henderson, who represented the Batchewana band in this case, e-mailed Sage to say that our reporting of the decision was "slightly misleading and may be a source of problems for those who rely on it."

"Your report suggests that off-reserve members are now entitled to the same voting rights as on-reserve members," he wrote. "That is not what the court said. In fact, the court said the opposite: "The principles of substantive equality do not require that non-residents have identical voting rights to residents, but rather a system that gives non-residents meaningful and effective participation in the voting regime of the band."

The decision struck down a phrase in Section 77 of the Indian Act that limited the voting rights of off-reserve residents, saying the phrase violated the equality provisions of the Canadian Charter of Rights and Freedoms. The court gave the government 18 months to come up with a way that will allow all members of First Nations communities to participate meaningfully in the governance of their home communities.

Lawyers close to the case say off-reserve members may find they'll be allowed to vote on major issues such as land claim settlements, but local issues will still be voted on only by reserve residents. The discussions will take place between the federal government and Native leaders over the next 18 months.

"The Supreme Court said there's a whole range of possibilities, a whole range of interests. The parties need to get together and work on a good faith solution. The court said, in effect, 'Go be creative; go be constitutional,'" said one lawyer, who asked not to be named.

Batchewana Chief Vernon Syrette told Sage on June 16 that his community is now holding community meetings to discuss and decide the best way for his community to ensure compliance with the court decision. He said he and his council have maintained all along that off-reserve members should participate in major decisions that affect their rights but not on local matters that affect only reserve residents.

Syrette thinks the court's direction was for each First Nation to come up with its own method of providing reasonable participation in band affairs for off-reserve members. He also said that now the court has forced the issue by imposing the 18-month deadline, the Indian Affairs department should provide funding so that off-reserve members can participate in the process of creating and implementing a revised system of voting that includes them.

"We're holding the federal government accountable for this," he said. "We're working on a proposal now."

Terrence Lavallee, the former chief of the Cowessess First Nation in Saskatchewan, said his band paid close to $1 million to ensure that off-reserve members participated in the ratification of the band's treaty land entitlement agreement, a process that will have some similarities with what Syrette thinks the court needs to satisfy the Constitution's equality requirements.

"It won't be cheap," Syrette said.

The president of the Native Women's Association of Canada, Marilyn Buffalo, thinks Batchewana is on the right track.

"Good for Chief Syrette. He should hold them accountable," she said. "The challenge, in the light of this decision, will be for all First Nation leaders to declare jurisdiction over all of their members and I believe the onus is on the department to support the chiefs once they declare jurisdiction."