Customary

Under the Indian Act, a First Nation Council can be chosen based on the custom of the First Nation. Some First Nations continued to do this after elections were introduced. The Indian Act allows a council and Chief to be chosen this way. But the Minister of ISC can decide that the First Nation must use the election process in the Indian Act instead.

First Nations that have not used customary law in the past can also change to using customary law. The Minister must approve a change from Indian Act elections to a Customary Code. The government has a policy that covers this. The Customary Code must be approved by a majority of members or community support can be shown in another way.

A customary way of choosing leaders must be based on custom for it to be held up by a court if it is challenged. This means the community must generally agree that it is a custom. This could be shown because most members voted in favour of it or even because it has been in use over time by most of the community. Custom cannot be proven just by showing people in reserve government like the Chief and councillors accept it. Custom can also change over time.

In a customary election, everything is decided by the custom or the Customary Code. This includes:

• number of votes needed to be elected
• who can vote
• number of councillors
• who can run
• nominations of candidates
• how often elections are held
• whether there are recounts and how they happen
• whether someone can be removed from office and how

Customary Codes must set out a way for election appeals to be decided.

First Nations cannot choose to return to Indian Act elections. They can choose to change to the First Nations Elections Act by a council resolution.