Bill S-6 and the First Nations Elections Act: The Modernization/Paternalization of Voting under the Indian Act

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1 Volume 15, No. 3 July 2012 Aboriginal Law Section Bill S-6 and the First Nations Elections Act: The Modernization/Paternalization of Voting under the Indian Act J. Douglas Shanks* and Jordan R.D. Lester** The Harper government has introduced Bill S-6 1, short title First Nations Elections Act, in an attempt to reform voting procedures in First Nations elections. The Prime Minister referred to the Bill as a creative and collaborative way to shed a part of the Indian Act and to achieve practical, incremental real change. 2 Beginning in October 2010, the Minister of Aboriginal Affairs collaborated with leaders from the Atlantic Policy Congress of First Nations Chiefs (APC) and the Assembly of Manitoba Chiefs (AMC) to develop recommendations on a bill to address concerns about the election process under the Indian Act 3 (the Indian Act ). According to Aboriginal Affairs and Northern Development Canada, of the 617 First Nations in Canada, 240 (roughly 40 percent) hold elections in accordance with the provisions of the Indian Act. 4 The remainders have community-designed election codes, or select their leaders under the rules in their self-government agreements. The election of Chiefs and Band Councils is currently dealt with under sections 74 to 79 of the Indian Act, and the regulations thereunder. Some of the key concerns of these provisions surround, among other things, the process for nominating candidates, the elections appeals system, and the length of office term. Bill S-6 addresses these concerns, but as will be discussed throughout this article, still comes up short in its attempt to shed government paternalism from First Nations elections. 1 An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations, 1 st Sess., 41 st Parl., 2011 [Bill S-6], online: Parliament of Canada < 7>. 2 Ontario, Legislative Assembly, Debates of the Senate (Hansard), 41 st Parl. 1 st sess., No. 148(2) (15 March 2012) at 1630 (Hon. Dennis Patterson), online: Parliament of Canada < [Hon. Dennis Patterson, Third Reading]. 3 R.S.C. 1985, c. I-5 [Indian Act]. 4 Aboriginal Affairs and Northern Development Canada, Backgrounder First Nations Elections Act (6 December 2012), online: AANDC <

2 2 Logic behind Bill S-6 The ultimate goal of Bill S-6 is to modernize First Nations elections. 5 To do so, the federal government is attempting to introduce clear, consistent, and reliable framework that First Nations communities can use to elect effective governments. 6 The Honourable Senator Dennis Patterson said in third reading that Bill S-6 makes it possible for each First Nation community to address its electoral needs, priorities and directions on its own terms. 7 The irony of this statement is that the Bill actually goes further than the AMC and APC recommendations, allowing for more Ministerial discretion, including the ability to include First Nations as participating First Nations within a schedule without the First Nations opt-in or consent. 8 Effectively, Bill S-6 is opt-in legislation for First Nations that conduct their elections under the Indian Act. Even if a First Nation does not currently follow the Indian Act with respect to its elections, Bill S-6 allows a First Nation to be added to the schedule of the First Nations Elections Act upon request. 9 This request will take the form of a band council resolution. Many First Nations have a long-standing practice for electing chiefs and band council members. The federal government recognizes this, hence the seemingly voluntary nature of Bill S-6. As a further safeguard to protecting the interest of First Nations, section 35(1) of the Constitution Act, protects the right of aboriginal peoples to self-government. While several of the changes introduced by the Bill do reflect this understanding, either mistakenly or intentionally, Bill S-6 does appear to give the federal government the power to significantly interfere with a First Nations right to self-government. Nevertheless, elections of First Nations under the Indian Act were in such a state as to encourage the AMC, APC, and federal government to come together to improve electoral fairness. Notable features of Bill S-6 5 Ontario, Legislative Assembly, Debates of the Senate (Hansard), 41 st Parl. 1 st sess., No. 148 (8 December 2011) at 1540 (Hon. Dennis Patterson), online: Parliament of Canada < e.htm?language=e#48>. 6 Hon. Dennis Patterson, Third Reading, above note 2. 7 Ibid. at Bill S-6, above no 1 at cls. 3(1)(b) and (c). 9 Ibid. at cl. 3(1)(a). 10 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

3 Chief and council hold office for four year 11 Under section 78 of the Indian Act, the chief and councillors of a band can only hold office for two years. One of the criticisms of this provision is that two year terms of office are far too short to accomplish priorities. As well, most appeals and litigation relating to an election s results last far longer than two years. Obviously, this short length for a term can lead to instability following an election. Bill S-6 addresses this issue by bringing First Nations elections in line with the length of term for office of the federal, provincial, and most municipal governments. Candidacy and nominations procedure 12 Section 75 of the Indian Act sets out the eligibility requirements for a person to be nominated as a candidate for an election as chief or councillor. However, this section is noticeably thin. Bill S-6 adds more structure to the process, introducing some seemingly obvious provisions, such as: an elector cannot become a candidate unless the elector provides his or her consent, 13 an elector may not be nominated as candidate for chief and councillor in the same election, 14 and an elector must not nominate more than one candidate for the position of chief or councillor. 15 An analysis of these new provisions suggests that under the Indian Act, a candidate could have been nominated for chief and councillor, against his or her will, by a person who had nominated several other people as well. It should be noted however that the Indian Band Election Regulations do provide for a process of withdrawing a nomination after the fact. 16 Contested elections 17 Under section 79 of the Indian Act, the Governor in Council was able to set aside the election of a candidate based solely on the advice of the Minister of Aboriginal Affairs and Northern Development. The Indian Band Election Regulations current lays out the procedure for appealing an election result to the Minister/Governor in Council. 18 This is effectively the only appeal mechanism provided for under the Indian Act. Under Bill S-6, the Minister has no role in receiving, investigating or deciding election appeals. Instead, an elector of a participating First Nation may contest the election of a chief or councillor to either the Federal Court or Superior Court of the Province where the community is located. 19 If the Court is satisfied that a contravention of the First Nations 11 Bill S-6, above note 1 at cl. 28(1). 12 Ibid. at cl Ibid. at cl. 9(3)(b). 14 Ibid. at cl. 9(2). 15 Ibid. at cl. 9(4). 16 Indian Band Election Regulations, CRC, C. 952, s. 4.5 [Indian Band Election Regulations]. 17 Bill S-6, above note 1 at cl Indian Band Election Regulations, above note 16 at ss Bill S-6, above note 1 at cl. 31.

4 4 Elections Act occurred and it is likely to have affected the result, the Court may set aside the contested election. 20 Offences and penalties 21 Under the Indian Act, the only penalty for contravening the elections provisions is to have the election set aside. 22 Other than that, there are no defined offences and penalties. With Bill S-6 come provisions similar to other election laws, laying out penalties for defined offences such as obstructing the electoral process and engaging in corrupt activities in relation to an election. 23 Violating the First Nations Elections Act can bring a penalty of up to 5 years in prison or a fine of up to $5, These provisions give the statutory regime teeth and suggest that democratic protection will be taken very seriously. Comments on Bill S-6 The Standing Senate Committee on Aboriginal Peoples (the Committee ) provided several observations about Bill S The Committee took issue with several clauses, including the provision on election appeals. By switching the appeals process from the Minister to the Courts, Bill S-6 does not achieve the objective of establishing an efficient, accessible and low-cost appeals process. 26 The reason for this criticism is that the costs of going to Court could be prohibitive for those who cannot afford litigation. The Canadian Bar Association s National Aboriginal Law Section echoes this criticism, noting that a court-based appeal system would also be time consuming. 27 The AMC and APC recommended the establishment of an independent and impartial appeals body. According to the CBA, this would provide a more cost effective, accessible, and culturally appropriate method of dispute resolution. 28 Another issue the Committee had with Bill S-6 was the powers granted to the Minister to add First Nations to the schedule of participating First Nations under clauses 3(1)(b) and 3(1)(c). According to the Committee, these provisions continue a colonial and paternalistic approach to First Nations governance. 29 The Committee recommended that these provisions only be used in the rarest of cases, whereas the 20 Ibid. at cl. 35(1). 21 Ibid. at cl Indian Act, above note 3 at s Bill S-6, above note 1 at cl. 37(1). 24 Ibid. at cl The Standing Senate Committee on Aboriginal Peoples, Observations to the Fourth Report of the Standing Senate Committee on Aboriginal Peoples (Bill S-6), No. 4 (13 March 2012) (Chair: Hon. Gerry St. Germain), online: Parliament of Canada [The Standing Senate Committee Observations]. 26 Ibid. 27 Letter from Aimée E. Craft, Chair of the Aboriginal Law Section of The Canadian Bar Association, to the Hon. Gerry St. Germain (28 February 2012) re Bill S-6, First Nations Elections Act at p. 5, online: CBA< [CBA Letter]. 28 Ibid. at p The Standing Senate Committee Observations, above note 25.

5 CBA went one-step further, recommending that these powers only be exercised in relation to First Nations currently governed by customary elections if approved by a majority of secret votes by a majority of the electors of that First Nation, or as approved in accordance with prevailing customary practices. 30 Senator Lillian Eva Dyck raised an interesting point in her criticism of Bill S-6, specifically clause 3(1)(b). She said that as pressure mounts to increase natural resource development on or near First Nation land, there is great potential for significant dissension, and as First Nation communities, provincial governments and private sector organizations try to negotiate agreements, there likely will be protracted leadership disputes in First Nation communities. 31 This is turn, the Honourable Senator said, could lead to abuse of the clause by the federal government. During third reading of the Bill, Senator Dennis Patterson said, [o]n the face of it, it looks like the perpetuation of the paternal approach, but it will bring struggling First Nations into a much more modern electoral system. 32 This statement speaks volumes about the misdirection of Bill S-6. First Nations have an inherent right to self-government, and the ultimate goal of the federal government should be for First Nations to develop their own custom election codes or other self-government arrangement reflecting their own history and traditions. Bill S-6 fails to do this. While some of the provisions of Bill S-6 are required in order to have a properly functioning election, it does nothing to promote the creation of self-government agreements. * J. Douglas Shanks is a partner with the firm of Cheadles LLP in Thunder Bay. Doug was called to the Bar in Doug practices mainly in the fields of corporate/commercial and business law and also has extensive experience in civil litigation. ** Jordan R.D. Lester is a student-at-law at Cheadles LLP in Thunder Bay. Prior to entering law, Jordan spent several years as a reporter for the CBC. Beginning in August 2012, he will be articling as a clerk at the Superior Court of Justice in Thunder Bay. 30 Ibid.; CBA Letter, above note 27 at pp Ontario, Legislative Assembly, Debates of the Senate (Hansard), 41 st Parl. 1 st sess., No. 148(2) (3 April 2012) at 1940 (Hon. Lillian Eva Dyck), online: Parliament of Canada 32 Hon. Dennis Patterson, Third Reading above, note 2 at 1650.