First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases): SOR/2020-84

Canada Gazette, Part II, Volume 154, Number 9

Registration

SOR/2020-84 April 8, 2020

INDIAN ACT

FIRST NATIONS ELECTIONS ACT

P.C. 2020-240 April 7, 2020

Whereas the Governor in Council is of the opinion that there is an outbreak of a communicable disease, namely coronavirus disease 2019 (COVID-19) and the introduction or spread of COVID-19 poses an imminent and severe risk to public health in Canada;

Whereas some First Nations had begun or were about to begin the process of electing their chief and councillors;

Whereas some First Nations have cancelled or postponed elections to avoid the introduction or spread of COVID-19 and some do not or will not have a council in place at the end of the tenure of the chief and councillors;

And whereas it is necessary to ensure continuance of governance of First Nations during the outbreak and spread of COVID-19;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Indigenous Services, makes the annexed First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) pursuant to

• (a) section 73 and subsection 76(1) of the Indian Act ^{footnote a}; and
• (b) section 41 of the First Nations Elections Act ^{footnote b}.

First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases)

Interpretation

Definitions

1 The following definitions apply in these Regulations.

• council has the meaning assigned by the definition council of the band in subsection 2(1) of the Indian Act. (conseil)
• election has either the same meaning as in section 2 of the Indian Band Election Regulations or the same meaning as in section 2 of the First Nations Elections Act, as applicable. (élection)
• First Nation has the meaning assigned by the definition band in subsection 2(1) of the Indian Act. (première nation)

Elections under the Indian Act

Extension of tenure

2 (1) Despite subsection 78(1) of the Indian Act, if the extension is necessary to prevent, mitigate or control the spread of diseases on the reserve, the council of a First Nation whose chief and councillors are elected under that Act may, within 90 days before the day on which a tenure of office of the chief and councillors ends, extend that tenure.

Measure to be taken

(2) A council that extends the tenure of the chief and councillors must at the same time either

• (a) cancel the election in accordance with subsection (3); or
• (b) postpone the election in accordance with subsection (4).

Cancellation of election

(3) If an election is cancelled under paragraph (2)(a),

• (a) on the day on which it decides to extend the tenure of the chief and councillors, the council must call a new election for a day that is no more than 30 days before the day on which the extended tenure ends;
• (b) unless otherwise directed by the Minister or by a person authorized by the Minister, the electoral officer who has been appointed by the council must, in the presence of two witnesses who must make a declaration that they witnessed the destruction,
  • (i) destroy all election documents that contain personal information, and
  • (ii) destroy without opening all envelopes they have received that contain a mail-in ballot;
• (c) the electoral officer and any deputy electoral officers are removed from office; and
• (d) any action required under the Indian Band Election Regulations to have been performed before the election is deemed not to have been performed.

Postponement of election

(4) If an election is postponed under paragraph (2)(b),

• (a) on the day on which it decides to extend the tenure of the chief and councillors, the council must fix a new day for the election that is no more than 30 days before the day on which the extended tenure of office ends; and
• (b) the electoral officer must, until the day on which the election is held, retain under seal all envelopes that contain a mail-in ballot they have received.

Elections under the First Nations Elections Act

Extension of term

3 (1) Despite subsection 28(1) of the First Nations Elections Act, if the extension is necessary to prevent, mitigate or control the spread of diseases on the reserve, the council of a First Nation whose chief and councillors are elected under that Act may, within 90 days before the day on which a term of office of the chief and councillors ends, extend that term.

Measure to be taken

(2) A council that extends the term of the chief and councillors must, at the same time and despite sections 5 and 6 of that Act, either

• (a) cancel the election in accordance with subsection (3); or
• (b) postpone the election in accordance with subsection (4).

Cancellation of election

(3) If an election is cancelled under paragraph (2)(a),

• (a) on the day on which it decides to extend the term of the chief and councillors, the council must call a new election for a day that is no more than 30 days before the day on which the extended term ends;
• (b) the electoral officer who has been appointed by the council must destroy
  • (i) all election documents that contain personal information,
  • (ii) all mail-in ballot packages that they or any deputy electoral officer that they appointed has received, and
  • (iii) all ballots cast during advance polling;
• (c) the electoral officer and any deputy electoral officers are removed from office; and
• (d) any action required under the First Nations Elections Regulations to have been performed before the election is deemed not to have been performed.

Postponement of election

(4) If an election is postponed under subparagraph (2)(b),

• (a) the council must, on the day on which it decides to extend the term of the chief and councillors, fix a new day for the election that is no more than 30 days before the date on which the extended term ends; and
• (b) the electoral officer must, in accordance with the First Nations Elections Regulations, retain any envelope that contains a mail-in ballot and any ballot cast during advance polling.

Elections According to Custom

Extension of term

4 (1) The council of a First Nation whose chief and councillors are chosen according to the custom of the First Nation may extend the term of office of the chief and councillors if it is necessary to prevent, mitigate or control the spread of diseases on its reserve, even if the custom does not provide for such a situation.

Non-application of general provisions

(2) Sections 6 and 7 do not apply to this section.

Special Case

Election that did not take place

5 (1) If an election that would have been held in the 30 days before the day on which these Regulations come into force did not take place in order to prevent, mitigate or control the spread of diseases on a reserve, a new election must be held within six months after the day on which these Regulations come into force.

Chief and councillors who are in office

(2) The chief and councillors who were in office on the day that is 30 days before the day on which these Regulations come into force are deemed to be in office from the day on which these Regulations come into force until the day on which the new election is held.

Limitation on extension

(3) The tenure of office or term of office of the chief and councillors may, in accordance with section 2 or 3, be extended by a period not exceeding six months. Despite section 6, the tenure or term must not be extended more than once.

General

Limitation — extension of tenure or term

6 A tenure of office or term of office of a chief and councillors of a First Nation must not be extended under subsection 2(1) or 3(1) by more than six months. The tenure or term must not be extended more than twice.

First cancellation or postponement

7 (1) The first time that a given election is cancelled or postponed under these Regulations, the council of the First Nation must provide to the Minister a resolution to that effect as soon as it is feasible.

Subsequent cancellation or postponement

(2) The subsequent time that a given election is either cancelled or postponed under these Regulations, the council of the First Nation must provide to the Minister a resolution to that effect before the day on which the particular election was to have occurred.

Repeal

First anniversary

8 These Regulations are repealed on the first anniversary of the day on which they come into force.

Coming into Force

Registration

9 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Terms of office of chief and councillors elected under the Indian Act or the First Nations Elections Act are fixed to two years and four years, respectively. There are no authorities which would permit extensions of those terms when an election cannot be held. The inability for the First Nations to elect their leaders before the end of the mandate creates a situation of governance vacuum.

Many First Nations have expressed the desire to extend the electoral terms of their current chief and council to avoid the real public health risks of holding an election during a pandemic (potential spread of disease). The First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) [the Regulations] allow First Nations to delay an election, for a limited period of time, until the emergency situation passes.

Background

In the current context of the spread of the COVID-19, there are concerns regarding the elections of chiefs and councillors scheduled for the next few months as public health experts are recommending the use social distancing and avoidance of large gatherings wherever possible. In a horizon covering the next 100 days, 12 elections under the Indian Act and two elections under the First Nations Elections Act must be held.

In the current legislative context, neither the Indian Act nor the First Nations Elections Act give the Minister the powers to extend the terms of the currently elected and expiring chiefs and councillors. The final decision to postpone an election is under the purview of First Nations and must be made by the band council.

Elections could be cancelled in accordance with security and public health measures, but this would result in a governance gap. In these critical times, as expressed by Canada’s political leaders, Chiefs and Councils rightly need the power to continue to lead their communities.

Section 73 of the Indian Act and section 41 of the First Nations Elections Act provides authority to make regulations respecting elections of Chiefs and Councillors.

A state of health and sanitary emergency has been declared in all Canadian provinces and it is in this context that the Regulations offer a solution by providing the chiefs and band councils the authority to extend their tenure for a limited period of time in order to deal with the challenges imposed by the scale of the current crisis.

Objective

The Regulations provide First Nations councils whose mandates are to expire in the coming months with the possibility to extend their mandate for a limited period of time in order to avoid the spreading of disease.

Description

The Regulations allow First Nations with expiring terms of office to extend their term and cancel or postpone elections for six months when it is expected that health risks will no longer be a health and sanitary concern, with a potential second and ultimate extension of six months.

Chiefs and councils requiring an extension of their tenure of office will be maintained in office and will continue to assume their leadership role and ensure a complete continuity of the delivery of essential services to their communities upon adoption of a band council resolution, within the last 90 days of expiry of their mandates.

These Regulations will be repealed on the first anniversary of the day on which they came into force.

Regulatory development

Consultation

Although not held at a national level, consultations took place with all First Nations with expiring tenure of office through official ministerial correspondence. Given the urgency of the situation, the Minister requested an expedited remedy to the situation. The Department did not receive any notice objecting to the Minister’s intention to support extension of the tenure of offices of chiefs and councils.

Given that the Regulations are made to address an unforeseen pandemic situation, which affects First Nations scheduled to hold elections of their leaders, and that a regulatory remedy is deemed to be an efficient solution, it is not considered necessary to undertake consultations over and above those already conducted by the First Nation with its members.

Modern treaty obligations and Indigenous engagement and consultation

There is no potential modern treaty implication as this initiative responds to the needs and interests of the concerned First Nations. This initiative does not require the Government of Canada to fulfil any consultations/engagement requirements described in a modern treaty.

Instrument choice

Non-regulatory options were not considered feasible. Regulations are the most appropriate way to address the emergency situation in these unusual times.

Regulatory analysis

The First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) is carried out in response to a request from concerned First Nations who have their elections coming up during a disease outbreak which would put members at risk if they are required to gather in groups to vote.

Due to the current pandemic situation, First Nations have the option to postpone their elections, or go ahead as per the appropriate legislation (Indian Act or First Nations Elections Act). If they choose not to have an election before the end of a tenure of office, there is a governance gap situation. They have to designate a person that will furnish the essential services, before the expiry of the current mandate. This person is likely to be a band official with no elected status.

These First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) allow First Nations to extend, by band council resolution, the tenure of office of elected chiefs and councils for a period of up to six months, with a further possibility to extend for a maximum of six months, to ensure all governance functions can be maintained during the current COVID-19 pandemic.

Benefits and costs

There are no costs associated with extending the terms of office for First Nation chiefs and councils under the election provisions of the Indian Act and on the First Nations Elections Act.

Small business lens

The small business lens does not apply to this initiative, as it does not result in any costs for small businesses.

One-for-one rule

The one-for-one rule does not apply to this initiative, as it does not result in any administrative costs or savings to businesses.

Regulatory cooperation and alignment

Given the emergency of the situation, this initiative is not under a regulatory cooperation work plan.

Strategic environmental assessment

This initiative has no potential for environmental effects.

Gender-based analysis plus

This initiative has no potential for gender-based analysis plus (GBA+) impacts.

Implementation, compliance and enforcement, and service standards

These Regulations come into force on the day they are registered.

Contact

Yves Denoncourt
Acting Director
Governance Operations Directorate
Lands and Economic Development
Indigenous Services Canada
Email: yves.denoncourt@canada.ca