Living here: the problem of residency

The one issue that dominated Nunavut's third general election campaign had nothing to do with the candidates in the running. Instead, it was about who couldn't run, and why.

Former Nunavut politician Jack Anawak. (CBC)Voters in Repulse Bay and Kugaaruk were in electoral limbo for more than a month, while they awaited a judge's decision on a challenge by former Nunavut politician Jack Anawak, who was told he could not run in the Akulliq constituency because he hadn't been a resident of the territory for the past 12 consecutive months, as required under the Nunavut Elections Act.

And Okalik Eegeesiak, who was running in the Iqaluit Centre constituency, was yanked off the ballot on Oct. 17, after the RCMP determined that she had resided in Nunavut for the past 10 months — two months shy of the same 12-month requirement.

Both Eegeesiak and Anawak are well-known in Nunavut. Anawak is a former Member of Parliament, was one of Nunavut's first MLAs, and was Canada's ambassador of circumpolar affairs. Eegeesiak has worked for organizations like Inuit Tapiirit Kanatami and the Inuit Broadcasting Corp.

At the same time, both have lived in Ottawa at some point within the past year for work and school. And while Eegeesiak and Anawak said they've kept addresses in Nunavut, it was not enough to satisfy the territory's chief electoral officer.

The question of what classifies as a Nunavut resident is bound to affect many Nunavummiut, as they become increasingly mobile and travel across Canada for work and school.

Q: What does the law say about who can run in Nunavut elections?

Section 11(1) of the Nunavut Elections Act, passed in 2002, states that any Nunavummiut who is eligible to vote on Oct. 27 has a right to be a candidate.

So who can vote? Section 7(1) of the act says that eligible voters must be Canadian citizens who are at least 18 years old, and must be "a resident in Nunavut for a consecutive period of at least 12 months" before election day.

The Elections Act devotes a whole other section, Section 4, to defining "residence."

From Section 4(2): "The residence of a voter is the place of the voter's home or dwelling to which, when absent, the voter intends to return."

The act does allow for people who leave Nunavut "for a temporary purpose, including the pursuit of education or employment" to maintain residence in the territory.

But Section 4(5) makes it clear that voters who leave their original residence for longer periods of time, "with the intention of residing elsewhere," lose their residency status in Nunavut.

Q: How are candidates deemed to be eligible?

Candidates had until Sept. 26 to file their declaration forms with their local returning officers. In the declaration form, candidates must affirm that they are eligible under the act to vote and to be a candidate — which would include having been a resident of Nunavut for 12 consecutive months prior to Oct. 27.

Those who declared themselves to be eligible candidates, but were later found to be ineligible, could be charged under the Elections Act. They could also be charged with perjury under the Criminal Code.

Q: Why do Anawak and Eegeesiak believe they are eligible to run?

Okalik Eegeesiak was removed as a candidate in Iqualit Centre on Oct. 24. (CBC)While both individuals are in different and separate cases, Anawak and Eegeesiak both generally argued that they are permanent Nunavut residents, even when they've gone away for work and school.

Eegeesiak has cited Fells vs. Spence, a 1984 Northwest Territories Supreme Court decision that gave a more generous interpretation of a "resident" for election candidacy purposes.

In that case, the court ruled that a candidate did meet the residency requirement, despite having lived in Ontario for several years to work and attend school. The candidate, who grew up in Yellowknife, frequently travelled back to the N.W.T. to visit, carried an N.W.T. driver's licence and health card, and had expressed an intent to move back to the territory.

"The case that I'm referring to [Fells v. Spence] was cited in the Supreme Court of Canada," Eegeesiak told CBC News in an Oct. 7 interview, referring to the 1993 Supreme Court case Haig v. Canada.

"Basically, the conclusion by the Supreme Court of Canada is that democracy wants candidates, that it should be up to the voters," she said.

Eegeesiak herself admitted that she had moved "back and forth [to] Ottawa" over the past two or three years for work-related reasons.

At the same time, she argued that she was born and raised in Iqaluit, and has a house and post office box there. Her children and grandchildren also live in Nunavut, she said.

Anawak, a former Nunavut MP and MLA, went to Ottawa when he was appointed Canada's ambassador of circumpolar affairs from 2003 to 2006, then stayed to take a post-secondary diploma program in business administration.

However, he maintains a mailing address in Iqaluit and owns a business in Nunavut (he also owns a house in Repulse Bay, which is leased to the territorial government). As well, Anawak has returned to the territory on numerous occasions for personal and political reasons.

However, that was not enough for Nunavut court Justice Earl Johnson, who dismissed most of Anawak's bid to overturn Elections Nunavut's rejection of his candidacy.

In a decision handed down on Oct. 7, Johnson ruled that "residency requires physical presence and the activities that occur in a household," and owning a business or property in Nunavut is not sufficient.

Johnson noted that Anawak was considered an Ontario resident for tax purposes for the year ending Dec. 31, 2007, and he continued to receive mail from an Ottawa address until August 2008. He also referred to comments by the chief electoral officer, who said Anawak's two children had said he moved back to Nunavut in February 2008.

Q: What about Anawak's charter challenge of the Elections Act?

On Oct. 14, Johnson heard Anawak's constitutional challenge of the Nunavut Elections Act, in which he argued that the 12-month residency requirement fails to recognize Nunavut's predominantly Inuit population, thus violating Anawak's rights under the Charter of Rights and Freedoms.

To deny Anawak, an Inuk, the right to vote and run in a Nunavut election discriminates against him, argued his lawyer, Steven Cooper.

"Bottom line is that if an Inuk, who is born and bred and raised on the land, goes away for some time and comes back, is not entitled to vote, then something is wrong with the system. The whole concept of Nunavut is lost," Cooper said in an interview on Oct. 14.

But Johnson dismissed Anawak's argument in a decision dated Nov. 5, stating that Anawak was "confusing" his constitutional rights, between his rights to vote and run in Inuit political institutions tied to Nunavut's 1993 land-claim agreement, and his rights to vote and run in public government.

"The [Nunavut Land Claim Agreement] vests in Inuit beneficiaries the right to vote, be a candidate and receive the financial dividends flowing from the agreement," Johnson's decision reads in part.

"While the NLCA is a land claims agreement ... the public government flowing from it is not."

Johnson added that there was no evidence "that voting in a public government is an Inuit right that has existed over time and is of integral significance to Inuit society."

Citing case law, Nunavut's legislative assembly's law clerk and legal counsel for the Nunavut attorney general have argued that legislatures have the right to determine their own residency criteria.

Q: What happened next?

Johnson's decision cleared the way for Elections Nunavut to schedule a byelection in the Akulliq constituency for Dec. 15. The byelection replaces the election contest that was underway before Anawak brought his case to court.

Eegeesiak was officially removed from the ballot in Iqaluit Centre on Oct. 24, following the RCMP investigation that found she had not lived in Nunavut for the entire 12 months preceding Oct. 27. Nunavut Elections stated that Eegeesiak failed to provide any new evidence proving her residency during a hearing held before she was removed from the ballot.

Q: How does this issue affect Nunavummiut?

The question of residency — where one has lived, for how long — could affect Nunavummiut who may want to pursue politics in the future.

Inuit have become increasingly mobile in recent years, with many travelling to southern Canada for post-secondary studies and work.

While Inuit have moved across Canada, Ottawa is considered to have the largest Inuit population outside the North, with an estimated 1,000 to 2,000 "Ottawamiut" working, studying, or seeking medical services there. The city boasts a resource centre and a daycare for Inuit.

It's a question that Nunavut's courts and lawmakers may have to wrestle with: is the letter of the law — in this case, the Nunavut Elections Act — too strict for Nunavummiut on the move?

With files from Patricia Bell