Abegweit band asks federal court for decision on off-reserve voting rights

The Abegweit First Nation Band Council has applied to Canada's Federal Court for a decision on whether band members who live off-reserve should be allowed to vote in council elections.

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The band does not allow its approximately 80 offreserve members to vote in band elections, under its custom election code. The band council held a referendum on the issue in 2010but didn't get the required 75 per cent majorityof those who voted, which included on- and off-reserve band members. About150 peoplelive on the reserve.

Seeing as they couldn't get at this any other way, they decided to take this on for the greater good. Don MacKenzie, Mi'kmaq Confederacy ofPEI

"The band council is kind of in a tough place, where you don't want to sue yourself, but you want to do the right thing," said Don MacKenzie, executive director of the Mi'kmaq Confederacy of PEI.

The Abegweit band follows an independent process of how council elections are carried out which doesnot follow the process laid out under the Indian Act. About a third of Canadian bands follow their own rules governed by their customs.

The question the band council is askingthecourtto answer is;"Do the rules governing elections for the Chief and Council of the AbegweitFirst Nation Band contravene section 15(1) of the Canadian Charter of Rights and Freedoms in that they donot allow for voting by off reserve Band members?"

The Supreme Court of Canadaissued a decision in 1999 that not allowing off-reserve members to vote was a charter violation said MacKenzie.

MacKenzie said he believes the Abegweit band is the first in Canada to challenge its own custom code.

"Seeing as they couldn't get at this any other way, they decided to take this on for the greater good."

The band has filed the application with the court, so it's now open to challenge or opposition.

MacKenzie is a lawyer and will himself represent the band in court with co-counsel John Hennessey from the Charlottetown law firm McInnes Cooper. MacKenzie saidhis regular salary with the Confederacy will cover his work on the case.

He believes the court costs for the band will be "somewhere in the thousands of dollars" and the band hopes for a decision in 2016.

Running for office 'not a clear legal obligation'

Meanwhile off-reserve members of P.E.I.'s other first nation, the Lennox Island band, are allowed to vote in their band council elections, after a referendum there allowed the band to change its custom code.

Lennox Island also has a band council position for an off-reserve member.

But for now, the Abegweit band did not want to "muddy the waters" by including the issue of off-reserve members running for positions, said MacKenzie.

"It's not a clear legal obligation the way the right to vote is," he said, adding the band could tackle that issue in the future.

The Federal Court is Canada's national trial court which hears and decides legal disputes arising in the federal domain, including claims against the Government of Canada, civil suits in federally-regulated areas and challenges to the decisions of federal tribunals