Kátł'odeeche First Nation member challenges custom election code as discriminatory

Elaine Auger is challenging the K'atl'odeeche First Nation's election code after being denied the right to run for chief because of a two-year residency rule.

Elaine Auger says residency requirement in code breaches constitutional rights

Elaine Auger stands in front of a sign at the K'atl'odeeche First Nation. Auger is appealing the First Nation's decision not to let her run in last year's election. (Submitted by Elaine Auger)

A member of the K'atl'odeeche First Nation (KFN) in the Northwest Territories is challenging the First Nation's election code after being denied the chance to run in the last election because she didn't meet residency requirements. 

Elaine Auger returned home to the reserve in 2021, after pursuing education and career opportunities in the south. 

She was away for five-and-a-half-years, and returned home three months before the nomination deadline. 

The election for chief would have been on Nov. 2, 2021, but with no one else to run against her, April Martel was acclaimed as chief for another three-year term.

In a press release, Auger said she wanted to run as KFN chief so she could use her education and experience to help her community. 

But elections officials refused to put her name on the ballot because she did not meet the election code's requirement that candidates be residents of the reserve two years prior to the election. 

Auger believes that rule is discriminatory under the Canadian Charter of Rights and Freedoms.

Auger appealed the decision in September 2021 after nominations closed, but her appeal was denied by electoral officer Heather Coakwell based on the First Nation's position that their election code is grounded in customary law. 

Auger requested an appeal through third-party adjudication. That appeal process wrapped up last week at the Chief Lamalice Complex on the KFN reserve near Hay River. Yellowknife lawyer Michael Hansen was the appeal adjudicator.

Auger said she expects the adjudicator's decision will come sometime in the next week. 

"All members should be treated equally and given a fair opportunity to participate in the leadership of the KFN," Auger wrote in a press release.

Auger also wrote that there has been a long history of attempts by the KFN to draw unreasonable distinctions between on-reserve and off-reserve members.

First Nation has right to determine residency rules, says lawyer

Lawyer Larry Innes represented KFN at the adjudication hearing. 

Innes said his client believes they have the inherent right to self-government and self-determination.

"These rights include the ability to establish residency requirements for candidates under KFN's own laws," said Innes.

He said the custom election code should be upheld, adding that some band members believe that these election codes protect the identity of KFN as a distinct Dene society. 

Innes said the First Nation's position is that allowing Canadian law to take precedence over KFN law goes against self-determination.

"The election held in 2021 under the custom election code was held in accordance with the law approved and ratified by the KFN membership. These laws are not made by chief and council, they are made by members," said Innes, although he did acknowledge that customs, traditions, and practices in regard to self-government will continue to evolve over time.

Innes also said KFN believes that the debate is useful and represents a sign of a healthy democracy.

Regardless of the decision, Auger hopes her challenge of the election code, based on discrimination, will encourage others to speak up.

"This has been going on for years," said Auger. "It doesn't matter which First Nation you come from, you should have the ability to not feel discriminated against."