Introduction.

1) A Preamble
2) Fundamental Principles (Coming) 
3) Governing Body (Coming) 
4) General Matters (Coming) 
5) Citizenship Matters (You are on this page)
6) Amendments (Coming)

This discussion paper, of several pages, makes use of the numbered references to identify the statements and ideas under discussion. CLICK on the links above to go to other pages.

 Part Five - Citizenship Matters: 

In this constitution, there are two classes of citizen. The bona fide legitimate Citizen, and the Associate Citizen. The constitution identifies the things that would cause a Citizen to lose Citizenship, and a process by which such a person might appeal a decision that removes the status of Citizenship.

Part Five also describes the process by which the Chapleau Cree First Nation (CCFN) citizens choose their leaders. Specifically, that of a citizens' nomination and election process, in what is called a 'Band Custom Format.' The process specifies particular events that must happen for an election to be legitimate. It describes the duties of the Electoral Officer that must be carried out for an election to be valid. 

Also described, is the process by which a citizen may object to or appeal the electoral process or the results of the election, the responsibilities of the Electoral Officer in the appeal process, and  the procedures the Officer follows to resolve a citizens objection or appeal.

My Summary:
I have many concerns about this section. Although this document was reviewed by one or more legal experts, I find several serious faults in Part Five that  I would have expected to be identified as problematic and controversial. So much for lawyers.  These concerns are also the reasons that I think the process of developing a constitution should definitely not be rushed. It takes time and thought to discover the flaws in the draft document. One cycle of review and criticism is not enought for a document that sets out how we will live in this and the next generations of the CCFN.

I will discuss my concerns in order of seriousness, rather than the order of presentation in the document.
My concerns, in order of importance are:

1. The process of deciding the results of an election
2. The process and time schedule that is prescribed for the election process
3. The inclusion of concepts, terms, and objects that may change or become antiquated over the years
4. The concepts of a Citizen and an Associate Citizen
5. The absence of some critically important contingency processes
6. The lack of clarity in some sentences in Part Five
7. Redundancy,  repetition, and logical order of process in Part Five

Although in other parts of the draft there are specific criteria and methods  for decision making, in the most important process of government, there is no specitication for what designates one over another at the end of an election. Without such a specification, a candidate in the election is able to appeal the results of the election, and consequently charge the consitution under which the election was held to be of no force.In effect the constitution itself would be subject to revision or declared invalid.

For example, in an election of 16 candidates, what is the method of determining those that take office? Does a vote of 75% of the eligible vote for a candidate give one the right to claim the contested position? Does a simple ranking of votes determine who, of the 16 is permitted to take office?
In other words, there is no specification for what determines  one candidate over another as being the rightful occupant of the position of Councillor or Chief. 

If this is the document by which we live and govern ourselves, it must be more clear. 

A side issue might also be dependent upon the decisions we make, based on the preamble. Is election the chosen proces for determining leadership?

A more important issue might be coming in the near future. Robert Nault, Federal Minister of Indian Affairs announced on January 19, 2001, that he intends to introduce legislation that would place First Nation elections under the control of Elections Canada. These new developments might actually void any inclusion of an election process in our constitution. 

We might want to make a very strong assertion that self governance is not something that can be defined for First Nations. This in itself, is an argument worthy of consideration.
 

The Process and Time Schedule That is Prescribed for the Election Process
The process and time schedule as defined in the draft constitution is questionable. The document says that an election is held every three years, prior to June 30.

The CCFN is particularly unique, in that its membership is spread across and throughout the world. If we have chosen democracy as our method of governance, then an election process must be one that allows for timely communication to those members, and also a fair and reasonable time for such members to respond and exercise their democratic choice.

The document specifies that nomination meeting is held one week from the date of the call for an election. The document does not specify whether an off-reserve CCFN citizen can be nominated. It can be argued that without restriction, off reserve members can run for office, and that restriction would be considered a discriminatory act. The time required to inform all members of a nomination meeting, and for a citizen to consider and choose to seek nomination must be reasonable if the process is to be fair, as stipulated in the Preamble and Fundamental Principles (2.1),(3.1)  when it speaks to mutual respect, the well being of our people, regardless of where they may be.(5.1) 

It can be argued that CCFN members who reside in places other than Fox lake have a right to be represented by citizens who are also off reserve.In such a case, the one week between the call for an election and the nomination meeting could be declared unconstitutional, and the called election be declared invalid.

If we rely on the postal service for nomination meeting notices, the elapsed time to deliver, receive the notice, deliberate on seeking office, and arranging for travel, and actually travelling to that meeting might well be more than seven days. The seven day period might be determined to discriminate. The Corbiere Decision follows similar logic, and our Band Custom has allowed off reserve councillors.

The time between calling an election and the nomination meeting must be a longer duration to be equitable to CCFN members who wish to be represented by a CCFN citizen who resides some distance from Fox Lake.

The document also states that a nominee can not withdraw from an election within 48 hours of the opening of the polls. Considering this, an election, according to this document can be (is allowable,by the constitution) held no earlier than 9 days from the call of an election. In other words, an election can be held nine days from the call for an election. Again, this is an ureasonable amount of time to inform our citizens, who must consider candidates for nomination, the Electoral Officer to prepare voters lists, off reserve ballots and deliver ballots and voting procedures to off reserve members, voting lists to members who may request the list in order to inspect it and or challenge it , and subsequently, for  members to vote and return ballots, etc.

The draft constitution stipulates that an off reserve ballot must be received 'at the polling station' by appropriate means no later than 24 hours before the polls open. This stipulation trims the time between the call of an election, and the actual election can acually be from nine days to eight days for off reserve members. This is not an adequate and fair time for members to exercise their democratic and political will, and it can be argued that the duration is unfair and unconstitutional. Click here to see what the act (revised after Corbiere) stipulates

Also, For regulations for referendums, click here.

There are other items such as this within the text of the document.
 

The Inclusion of Concepts, Terms, and Objects That May Change or Become Antiquated Over The Years
The document makes reference to things that might change, and thereby cause controversy, and allow a declaration of an unresonable constitution. For example, the concept of marriage is currenly in question in Ontario. Will the citizens of CCFN restrict citizenship (18.1.1)  to a couple in other than what we now understand as 'marriage'?

Other examples are the term 'Band Office Complex.' (25.1) and 'Band Office' (25.5), AND '(Canada Post)' (25.7.3)  In seventy-five years, will these terms be meaningful?

Many other examples can be found thoughout the text of the document. Each can allow a constitutional challenge should an issue be considered important.
 

The Concepts of a Citizen and an Associate Citizen
The first class is the bona fide and legitimate Citizen who, through a family lineage that certifies that person  genetically related to other Chapleau Cree people, has obligations, rights, and privileges within the Chapleau Cree First Nation. Such a Citizen is entitled to benefit from any land claim settlement or other claim settlement to which the governments of Canada, the Province of Ontario, or other jusrisdiction may may come to agreement with the Chapleau Cree First Nation.

The second class is something called an 'Associate' Citizen. The Associate Citizen does not have rights to any benefit that might be come as a result of a land claim settlement, or other claims that may come to settlement for the Chapleau Cree people.

There are several problems with these concepts of citizenship. For example:
If it can be proven that a Traditional family adoption was at some time in effect and practice within the CCFN members, and that adoptees had equal rights in the eyes of the community, then the restrictions placed on adoptees are uncostitutional, and therefore, an adoptee is rightfully a citizen, and can claim a right to hold a seat on council.

If this turns out to be an acceptable reasoning, then the criteria for genetic relationship becomes highly questionable. Where are those lawyers???

There are several inconsistent ideas within the criteria for citizenship and associate citizenship, which can invalidate the document.
 

The Absence of Some Critically Important Contingency Processes
Several examples can be found in the text of the draft that indicate missing contingencies that would minimize conflict and dissention. For example, it is possible that in some year(s), no youths are of the age to become a member of council. What, then, becomes of that council seat? A contingency might state that someone else takes that seat through some means. Those means are not described. What would be the criteria that would ensure that replacement person would consider the interest of future youth?

Should the seat remain empty, there are implications. The balance of a seven member council is reduced to six, and long term policy that does not consider youth can be implemented..

Several other contingencies are omitted from the document.

The Lack of Clarity in Some Sentences in Part Five
Many sentences are unclear in meaning or intent. For example, 25.12 re notarized or Electoral Officer initialied documents. If the intent is election document security and integrity, is the Electoral signature accompanmied by a date, which would allow support of a fairly timed election process? Should the signature be counter signed or witnessed to ensure the integrity of the document?
 

Redundancy,  Repetition, and Logical Order of Process in  Part Five

Several redundancies exist. For example, 20.1.4 and 20.1.5.1

I have run out of time.. for today...

More to come later, for other sections.

Again, we have a once-in-a-people opportunity. 
Maybe we should think for a while about that. 
Maybe April 6, 2001 is not enough time. 
 

End of Part Five. (Scroll up to choose another Part)