Order Amending the Sechelt Indian Band Constitution: SOR/2019-307
Canada Gazette, Part II, Volume 153, Number 18
SOR/2019-307 August 19, 2019
SECHELT INDIAN BAND SELF-GOVERNMENT ACT
Order Amending the Sechelt Indian Band Constitution
P.C. 2019-1225 August 17, 2019
Whereas subsection 10(1) of the Sechelt Indian Band Self-Government Act (“Act”) provides that the constitution of the Sechelt Indian Band (“Band”) shall be in writing;
Whereas paragraph 10(1)(d) of the Act provides that the constitution of the Band may include a membership code for the Band;
Whereas paragraph 10(1)(e) of the Act provides that the constitution of the Band may establish rules and procedures relating to the holding of referenda of the Band;
Whereas paragraph 14(1)(s) of the Act provides that the Band Council has, to the extent that it is authorized by the constitution of the Band to do so, the power to make laws in relation to the conduct of Band elections and referenda;
Whereas section 12 of the Act provides that the Governor in Council may, on the advice of the Minister of Crown-Indigenous Relations, by order, declare in force an amendment to the constitution of the Band if the amendment has been approved in a referendum held in accordance with the constitution of the Band and the Governor in Council approves the amendment;
And whereas in a referendum held in accordance with the constitution of the Band on May 25, 2019, the Band approved the amendments to the constitution as summarized in the attached schedule;
Therefore, Her Excellency the Governor General in Council, on the advice of the Minister of Crown-Indigenous Relations, pursuant to section 12 of the Sechelt Indian Band Self-Government Act, approves and declares in force the amendments to the constitution of the Sechelt Indian Band approved by the Band in a referendum held on May 25, 2019, as summarized in the attached schedule.
Summary of amendments to the constitution of the Sechelt Indian Band approved by the Band in a referendum held on May 25, 2019:
- (a) amendments to the Definitions and Part I, Division (1), section 3 with respect to Band membership to ensure that all members are entitled to vote in Band elections and run for office in Band elections;
- (b) amendments to the Definitions, Part I, Division (4) and Part II, Division (1) to update and clarify qualifications for those running for office, to extend voting rights to non-resident members and to ensure that non-resident members are entitled to run in Band elections;
- (c) amendments to Division (4) to update and clarify the procedure for Band referenda, elections and by-elections and to require that a Sechelt Indian Band election and referendum law be enacted to set out the processes to be followed in referenda, elections and by-elections (which law could be amended in the future to allow for procedural amendments without the need to amend the constitution); and
- (d) miscellaneous editorial amendments.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
The Sechelt Indian Band Constitution (the Constitution) previously did not comply with the equality rights relating to voting and running for office in Sechelt elections protected by section 15 of the Canadian Charter of Rights and Freedoms (the Charter).
Amendments to the Constitution were required to allow Sechelt (also known as shíshálh) members who are not resident on Sechelt Lands to vote and run for office in the next band elections, which are currently scheduled for March 2020, thereby making it compliant with the Charter.
The Sechelt Indian Band Self-Government Act, which was passed in 1986, was the first formal Aboriginal self-government arrangement in Canada. The Sechelt Constitution, which also came into effect in 1986, included provisions on voting rights and the qualifications for running in band elections, which were consistent with similar Indian Act provisions at the time. Specifically, the Indian Act provisions limited voting rights to those members who were ordinarily on-reserve residents and denied voting rights to those who were not.
The Indian Act provisions were subsequently found to be inconsistent with equality rights under the Canadian Charter of Rights and Freedoms in Corbiere v. Canada (Minister of Indian and Northern Affairs),  2 S.C.R. 203. Following the Corbiere decision, section 77 of the Indian Act has been read down to exclude the words “ordinarily resident on the reserve” to make it Charter-compliant, but the Constitution was not similarly amended.
During the shíshálh’s participation in the British Columbia Treaty Commission process in 2004, Canada advised the shíshálh council that the Constitution was not compliant with the Charter in that it continued to prohibit off-reserve members from voting or running in Sechelt elections. From 2013 to 2017, the shíshálh council advised Canada that its focus was on other community priorities and thus, discussions about constitutional amendments to address the issue of Charter-compliance in the Corbiere decision were deferred.
In March 2017, following the election of Chief Warren Paull, the resolution of the non-resident voter rights issue was flagged as a priority by the band. Chief Paull has made a commitment to his community that they would not have another election without the inclusion of non-resident voters.
To amend the Constitution to make it Charter-compliant, pursuant to the amendment provisions set out in section 12 of the Sechelt Indian Band Self-Government Act.
To amend the Constitution to implement administrative changes of a non-substantive nature that would remove detailed voting procedures from it and enable the shíshálh Nation to make minor procedural changes to their Constitution without first requiring Governor in Council approval.
The amended Constitution will ensure that the rights of shíshálh members, who are both resident and non-resident on Sechelt Lands, are protected thereby ensuring compliance with the Charter as well as the Corbiere decision. Specifically, the amendments give non-resident members the right to vote and run for office in band elections and referenda.
These amendments also include revisions to the Constitution which address minor administrative issues. In particular, detailed voting procedures have been removed from the Constitution and instead they will be set out in laws, as provided for in the Sechelt Indian Band Self-Government Act. This will allow the shíshálh Nation to make minor procedural changes to their Constitution in the future without requiring Governor in Council approval to bring these changes into force.
Since 2017, through regular Self-Government Agreement Implementation Committee meetings, counsel for both Canada and the shíshálh Nation have worked collaboratively to address issues associated with how the Constitution does not comply with the Charter, and, more specifically, the Corbiere decision.
These amendments fulfil a commitment made by the Minister of Crown-Indigenous Relations to Chief Warren Paull in January 2019. This, in turn, will allow Chief Paull to follow through on a commitment that he made to his community.
Modern treaty obligations and Indigenous engagement and consultation
In 2013, the shíshálh Nation first voiced that changes to the Constitution were required and they provided a draft version of an amended Constitution to Canada for review and comment. At the time, however, the shíshálh Nation was seized with other community priorities, so work on this initiative was put on hold.
In 2017, the shíshálh Nation established a committee that was tasked with reviewing and providing suggested amendments to the Constitution. On September 21, 2018, an amended version of the Constitution was provided to Canada, through the shíshálh’s Recognition of Indigenous Rights and Self-Determination discussions.
On January 8, 2019, a meeting between the Minister of Crown-Indigenous Relations and Chief Warren Paull reaffirmed both parties’ desire to progress quickly on the revisions to the Constitution. Following close collaboration between counsels for both parties, the amended Constitution was sent to Canada by the shíshálh Nation on March 14, 2019, and was approved on April 15, 2019, by the Minister of Crown-Indigenous Relations.
On May 25, 2019, a community referendum was held by the shíshálh Nation and majority support was affirmed for the proposed amendments to the Constitution.
Section 12 of the Sechelt Indian Band Self-Government Act provides that the Governor in Council, may, on the advice of the Minister of Crown-Indigenous Relations, by order, declare in force an amendment to the Constitution of the Band, if the amendment has been approved in a referendum held in accordance with the Constitution of the Band and the Governor in Council approves the amendment. The amendment was approved in a referendum held on May 25, 2019.
Costs and benefits
These amendments have no direct or indirect financial implications and, therefore, no cost-benefit analysis has been conducted.
Small business lens
There are no associated impacts on small business because of the amendments and, therefore, the small business lens does not apply to this Order.
There is no incremental change in administrative burden on business because of the amendments and, therefore, the “One-for-One” Rule does not apply to this Order.
Strategic environmental assessment
In accordance with The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required for the amendments.
Gender-based analysis plus
No differential gender-based analysis plus (GBA+) impacts are anticipated because of the amendments. The amended Constitution will guarantee that the voting rights of all Sechelt Indian Band members are protected regardless of whether they live on- or off-reserve.
Implementation, compliance and enforcement, and service standards
These amendments came into force on the date of their registration.
Treaty Management West
Crown-Indigenous Relations and Northern Affairs Canada