Lone challenger of 7-term Alberta chief plans legal action after being stripped from ballot
New custom election code of the O'Chiese First Nation could head to federal court, like other codes before it
Adrian Strawberry ran for chief of O'Chiese First Nation in 2015 and lost, but was barred from running again in 2017 after the band adopted new election rules.
That led to incumbent Darren Whitford being acclaimed to a seventh consecutive term as chief of the First Nation in central Alberta, a job that carries a six-figure salary.
Now, Strawberry plans to take his case to federal court after those same rules made it nearly impossible for him to challenge the outcome of the February election.
Strawberry appealed the chief electoral officer's decision to strip his name from the candidate list but was summarily rejected under the new rules, which stipulate that only a registered candidate is eligible to file an appeal.
"Obviously I'm disappointed," he said after receiving formal notice that his appeal had been declared invalid.
"However, I'm not at all surprised. I was really expecting that."
In theory there is one other avenue for Strawberry to challenge the election results, but he said the new rules make it virtually impossible in practice.
He could file a complaint as a band member — but that would require a petition signed by 75 per cent of the electorate.
Strawberry figures that bar is unattainably high and so he plans to take the matter to federal court.
He can no longer appeal directly to Indigenous and Northern Affairs Canada (INAC), which administered past elections on the O'Chiese First Nation but now takes a hands-off approach since the band adopted its own "custom election code" last fall.
"When a dispute arises concerning a community or custom leadership selection process, it must be resolved according to the related provisions in a community's code, or by the courts," department spokesman Shawn Jackson told CBC News in an email.
The O'Chiese code was approved in a referendum by a vote of 170-139.
The First Nation has a registered population of 1,376, according to INAC.
Most First Nations now use custom codes
A growing number of Indigenous communities have been adopting their own custom election codes, according to INAC, and at least 346 of 618 federally recognized First Nations now operate under some form of community-based electoral rules.
"While the vast majority of these First Nations have written election codes, a handful have a traditional process for leadership selection, which includes hereditary selection," Jackson said.
The goal of the custom codes is to provide Indigenous people with more say over how they select their leaders, but numerous disputes have arisen on First Nations across Canada surrounding the interpretation and application of local rules.
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Sacha Paul, a Winnipeg-based lawyer who works in the field of Indigenous law, has seen many of the disputes play out in court but believes in custom election codes, overall.
"Anytime you have an Indigenous government deciding how they want to govern themselves, I think that's positive," he said.
"Undoubtedly, each individual choice can pose challenges, and of course all we see are the individual challenges, and all I see as a lawyer are the concerns, but I think it's positive for First Nations governments to decide the path that they want to go forward."
'Double-edged sword'
Custom election codes can present a "double-edged sword" for First Nations, according to Joseph Quesnel and Kayla Ishkanian, who wrote a recent report on the topic for the conservative-leaning Fraser Institute.
"Clearly, much disagreement and many tensions still exist over custom codes and how they are implemented and enforced," the report reads.
"The central problem is that disagreements are often not handled well internally."
The report highlights the words of a federal judge who oversaw a 2009 dispute on the Roseau River Anishinabe First Nation and noted the courts were becoming "a regular recourse for band election matters."
The report also noted how some custom election codes could run up against the Charter of Rights and Freedoms over potentially discriminatory candidacy rules.
Controversy arose in 2014, for example, on the the Garden Hill First Nation over the requirement that candidates for chief be at least 50 years old and that anyone in a common-law relationship was deemed ineligible to run.
As for his own legal action, Strawberry said his lawyers are still drafting the specifics and he couldn't say exactly when documents would be filed.
The O'Chiese First Nation's chief electoral officer, Bernie Makokis, did not reply to a request for an interview.
O'Chiese election raised in Parliament
Jim Eglinski, the Conservative MP for Yellowhead, which includes the O'Chiese First Nation, has raised questions about the band's new election code in the House of Commons and, on April 6, he received a reply from the government.
Liberal MP Yvonne Jones, the parliamentary secretary to the minister of Indigenous and northern affairs, said "it is the First Nation's role to ensure that its elections are conducted in a transparent and legal manner."
"However, application of the community election rules must still comply with the Canadian Charter of Rights and Freedoms, and individuals who believe those rights have been infringed can access the courts for redress," Jones added.
While it still leaves the onus on him and the court system, Strawberry said he was "extremely happy" to see the issue come up in Parliament.
"I'm just glad some of the MPs are paying attention and not brushing this under the rug," he said.
