Many First Nations across Canada have been faced with the unenviable situation of having to hold regularly scheduled band council elections due to the impacts of COVID-19.
Operating under the confines of the Indian Act, First Nations were being forced to choose between the health and safety of their community members, on the one hand, or accepting a “governance gap” following the expiry of the term of the Chief and Council without an elected Chief and Council to take their place. After significant criticism from First Nation leaders across Canada, the Federal Government has announced new regulations to cancel or postpone elections during the pandemic.
First Nations elect their Chief and Council in one of four ways:
- following the procedures outlined in the Indian Act and the Indian Band Election Regulations;
- using the new and optional First Nations Elections Act and the First Nations Elections Regulations;
- according to the community’s constitution as part of a self-government agreement; and
- using a traditional leadership selection process or band custom grounded in Indigenous law and the inherent right of self-government.
The terms under both a First Nation’s constitution and a leadership selection process or band custom vary based on the requirements set by each participating First Nation; however, under the Indian Act, elections must be held every two (2) years and under the First Nations Election Act elections must be held every four (4) years. Both the Indian Band Election Regulations and the First Nations Elections Act require that a Chief and Council be elected following the expiration of the terms of the previous Chief and Council. First Nation communities whose elections are scheduled to take place during the COVID-19 pandemic will likely be unable to conduct elections while also adhering to safe physical distancing requirements.
In response to this issue, and pursuant to sections 73 and 76(1) of the Indian Act, and section 41 of the First Nations Elections Act, the Governor General has passed the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) (the “Regulations”). The Regulations respond to the need for continued governance for First Nation communities during the outbreak of COVID-19. The Regulations impact elections under the Indian Act, the First Nations Elections Act, and elections carried out pursuant to custom election systems. The Regulations were made under subsection 73(1)(f) of the Indian Act, which enables the Minister to make regulations “to prevent, mitigate and control the spread of diseases on reserves, whether or not the diseases are infectious or communicable…”
The Regulations provide that First Nation Chief and Council may extend their term in office by a maximum of six (6) months by way of a band council resolution. The decision to extend the term of the Chief and Council can only be made within the ninety (90) day period prior to the anticipated election and requires the anticipated election to be cancelled or postponed. If a Chief and Council decide to cancel the election, all mail-in ballots will be destroyed and the electoral officer and deputy electoral officer will be removed from office. In contrast, if a Chief and Council decide to postpone the election, all mail-in ballots will be retained by the electoral officer and remain sealed until the newly scheduled election.
When the Chief and Council decides to extend their term in office they must fix a new date for the election, which must take place prior to the expiration of the new, extended term, but no more than thirty (30) days prior to such expiration. If necessary, to protect the health of the community, a Chief and Council can extend their term in office two consecutive times, allowing for a total extension of 12 months.
The Regulations are retroactive and apply to elections that were cancelled after March 25, 2020. The Chief and Councillors who held office prior to the election being cancelled are deemed to continue to hold office until the newly scheduled election. Further, if an election was cancelled between March 25, 2020 and April 25, 2020, a new election will have to be held within 6 months of April 25, 2020.
Following the cancelation or postponement of an election and selection of the new election date, the Chief and Council will still be required to adhere to the election requirements and timelines set out in the Indian Band Election Regulations or the First Nations Election Regulations.
The timelines established under the Indian Band Election Regulations require:
- the provision of a voter list, including each voter’s last known address, to the electoral officer at least 79 days before the election;
- notice of the nomination meeting (the “Meeting”) be provided 30 days before the Meeting occurs;
- the Meeting must be held at least 42 days before the election; and
- mail-in voting packages must be mailed to voters who do not reside on reserve 35 days before the election is to be held.
The timelines established under the First Nations Election Regulations are slightly more accelerated than those under the Indian Band Election Regulations and require:
- the provision of a voter list, including each voter’s last known address, to the electoral officer at least 65 days before the election;
- notice of the nomination meeting (the “Meeting”) be provided 25 days before the Meeting occurs;
- the Meeting must be held at least 35 days before the election; and
- mail-in voting packages must be mailed to voters who do not reside on reserve 30 days before the election is to be held.
Given the timelines under both the First Nations Election Regulations and the Indian Band Election Regulations, Chief and Council who postpone or cancel their elections should begin preparing for the newly scheduled election shortly after the decision to cancel or postpone is made. Presumably, these timelines may be impacted by the decision to merely postpone the election as a new Meeting will not be required and new mail-in voting packages will not have to be sent, if they were previously sent in accordance with the First Nations Election Regulations or Indian Band Election Regulations.
Interestingly, the Regulations purport to apply to Chief and Council elections carried out pursuant to customary election codes. The Regulations provide that “[t]he 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.” This provision draws attention to the very problem that is inherent within the Indian Act generally: all authority is delegated from the Federal Government to a First Nation. Even where a First Nation has a customary election with foundations in Indigenous law, the presumption is that a federal regulation would prevail in the event of a conflict. Where a clear conflict exists between a customary election code based on Indigenous law and this federal provision, the courts will be required to address the conflict that is at the heart of First Nation and Crown relations.
Dusting off the Indian Act to create new federal regulations to deal with elections issues during the pandemic is required at this time but it also highlights the antiquated nature of this federal legislation. The Indian Act relies on delegated authority and this version of law is increasingly difficult to sustain in the context where Indigenous laws and inherent rights to self-government are recognized and protected under section 35 of the Constitution Act, 1982. Politicians and courts have been reluctant to deal with conflicts between Indigenous law and federal law, but side-stepping this issue is becoming increasingly difficult. History has shown that times of uncertainty can be a catalyst for progressive transformation. Throughout this pandemic, First Nation government across Canada continue to protect, govern and meet the needs of their citizens, Elders, Knowledge Keepers and those who are most vulnerable. This is not done because of the Indian Act, it is done in spite of it. Perhaps this pandemic will be the catalyst to finally move beyond the Indian Act.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.