What is the test for holding an election purportedly by band custom?

This principle was applied in Wanderingspirit v. Marie, 2003 FCT 670, where the trial judge rejected the holding of an election, purportedly by band custom, where there was no notice of an election, no nominations in advance and the voting was done without secret ballot at a meeting with approximately 10 percent of the electors present. Rouleau J. stated at para. 45: “It is true that "custom" is not frozen in time and may be changed. However, any change requires a broad consensus of the members of the band. Unless and until an established custom for the selection of chief and councillors has been changed the established custom continues to apply. An election conducted in a manner inconsistent with the pre-existing custom will, therefore, be invalid unless there is proof that the pre-existing custom has been changed by the broad consensus of the band. Such a consensus requires more than a simple majority. It requires a manifestation of the will of the band members to be bound by a new set of rules.”