GOVERNMENT RESPONSE TO THE THIRD REPORT OF THE
STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
The Government of Canada believes that strong and effective First Nation
governments must be transparent and accountable to their membership. A free
and fair leadership selection process promotes accountability of leaders back to
communities rather than to the Government of Canada and is a cornerstone to
greater self-government and to better outcomes.
Accordingly, the Government has been working in collaboration with First Nations
partners to develop, at their request, an optional legislative framework for the
election of band councils. The Government also remains committed to
supporting First Nations-led initiatives to build stronger election systems, whether
they are community-designed or legislated.
GENERAL RESPONSE
As a starting point, it is important to note that the title of the Committee’s report is
consistent with the Government’s policy on the negotiation of Aboriginal selfgovernment. One of the Government’s objectives in supporting initiatives to
improve the way First Nations elect their leaders is to promote strong First
Nations governments. In turn, stronger First Nations governments are positioned
for and may wish to explore self-government. When a First Nation becomes selfgoverning, it will have a constitution and law-making power over the subject of
leadership selection.
The Standing Senate Committee’s report concludes, and the Government
agrees, that the Indian Act election system contains some weaknesses that act
as a barrier to strong First Nations governments. For example, the requirement
under the Act to have elections every two years makes it difficult for First Nations
leaders to set longer term strategic direction, as well as to plan for and implement
sustainable processes before they must face yet another election. Other
weaknesses of the current Indian Act election regime include the absence of
defined election offences and penalties, and a lengthy appeals process overseen
by the Department of Indian Affairs and Northern Development.
As a running theme through its report, the Committee highlights how community
election codes constitute the most appropriate alternative for First Nations to
elect their leadership. For many First Nations who already have the foundational
elements of good governance, their community-designed election code allows
open and transparent elections to take place, providing a solid and effective
mechanism for redress when necessary. However, not all First Nations want to
focus their energies and resources in developing a community election code and
converting from the Indian Act, and in ensuring the continuity of the process over
one or more political administrations in light of the many other high priority
issues. Consequently, many have indicated a preference for a legislated election
system.
Moreover, a small percentage of First Nations who already have community
election codes experience recurring disputes, some of which have led to
breakdowns in governance, imposition of third party management, and lengthy
and costly court actions between community members, all of which impact
negatively on community well-being. While the issues and litigation remain
outstanding, the governance uncertainty discourages any significant investment
in economic or social opportunities. These disputes are based on lack of
community consensus on the actual election rules and procedures, exacerbated
by the absence of a viable redress mechanism. Disputes can be quite acute as
evidenced by situations where, on more than one occasion, two separate and
distinct election processes have been held in parallel in the same community,
with those elected at each claiming to be the legitimate and duly elected leaders.
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For some First Nations, a strong legislated election system rather than a
community election code best suits their needs and the community dynamic;
therefore, the Government disagrees that the development of community election
codes is a viable solution across the board for all First Nations.
The Standing Senate Committee’s recommendations are addressed individually
below.
RECOMMENDATION 1
“That the Department of Indian Affairs and Northern Development firmly commit
to assisting all First Nations who currently hold elections pursuant to the Indian
Act in moving to community based codes;
That the Department of Indian Affairs and Northern Development, in consultation
with the Assembly of First Nations and other affected First Nations organizations,
establish clear targets and timelines for the reversion to community-based codes
for all First Nations who currently hold elections pursuant to the Indian Act;
That the Department of Indian Affairs and Northern Development dedicate
sufficient funds to assist First Nations in developing and ratifying communitybased codes for those First Nations which currently hold elections pursuant to
the Indian Act; and that such funding be adequate to meet the agreed upon
targets and timelines for the reversion to community-designed codes;
That the Department of Indian Affairs and Northern Development ensure that
sufficient funding also be made available for First Nations currently under the
customary method of leadership selection to update their codes in accordance
with standards of procedural fairness, consistency with Canadian law and with
effective governance practices;
That the Department of Indian Affairs and Northern Development undertake a
review of the Band Support Funding Program to ensure that First Nations
elections, whether conducted by custom or pursuant to the Indian Act, are
appropriately resourced; and that adequate funding for elections continue to be
made available to First Nations once they revert to a community-designed
leadership selection process; and
That the Department of Indian Affairs and Northern Development provide an
annual progress report to the Standing Senate Committee on Aboriginal Peoples
at the end of each fiscal year on the number of First Nations that have converted
to community-based codes in that year and the amount of money the Department
has transferred to First Nations to assist them in moving to community-based
codes.”
Response
Currently, First Nations select their leaders in one of three ways: 247 First
Nations hold elections under the Indian Act election system, 338 select their
leadership under their unique community election code, and 29 have leadership
selection systems that are linked to their community constitutions developed
under a self-government agreement.
The Government recognizes that First Nations can develop their own community
election codes. In application since 1996, the Conversion to Community Election
System Policy outlines the process for First Nations wishing to develop a
community election code and remove themselves from the electoral provisions of
the Indian Act. Prior to the Minister issuing an order for the removal of a First
Nation from the election provision of the Act, the policy stipulates that the First
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Nation must develop a written election code consistent with the Canadian
Charter of Rights and Freedom, containing provisions for the meaningful
participation of off-reserve members in the election process, both as candidates
and electors, and the settlement of election appeals. The community election
code must also receive the approval of the community at a ratification vote.
The Department of Indian Affairs and Northern Development (INAC) makes
financial support available, through the Professional and Institutional
Development Program, to First Nations who wish to develop or review their
community election code. These funds can be accessed by both First Nations
under the Indian Act election system or First Nations already holding their
elections under their own community code to modify and update these. Over the
past five years, the Department has allocated approximately $1.6 million in
funding to 75 First Nations for this purpose. In the same time period, the Minister
has issued 12 orders removing First Nations from the application of the election
provisions of the Act.
In addition to financial resources, the Department provides support and advisory
services to First Nations on the development of their community election code,
on reaching out and engaging their communities and on the ratification process.
In the last seven years, the Department has also convened approximately 10
workshops to bring together several First Nations who either have undergone a
conversion process, are in the middle of such a conversion or who are
contemplating it. The workshops provide an opportunity for First Nations to talk
to each other and share their experiences and best practices as well as to
identify pitfalls. The workshops are facilitated by departmental subject matter
experts who also answer questions and provide guidance. Funds are provided to
participants to cover expenses to attend these workshops.
Based on the above description of the processes and supports available to First
Nations wishing to either convert from the Indian Act election system or review
and modify their existing community election system at their own pace, the
Government takes the position that current policies and resources are in line with
the Committee’s recommendation.
Further to this, INAC will not be pursuing the other component of this
recommendation, namely to establish targets and timelines for all First Nations
under the Indian Act election system to convert to a community election code. It
is not possible for INAC to establish and commit to specific targets for
conversions since it has little control over the processes within First Nations
except to support them at the pace they determine. Specific reports can always
be provided to the Committee on a request basis and we would be pleased to
offer information on First Nations developing community election codes, on the
funding being allocated and on the number of First Nations removed from the
Indian Act election provisions. The development of community election codes
and conversion from the Indian Act is First Nations driven and initiated. Financial
assistance and expert advice is made available, but First Nations must submit
proposals and drive the process in their communities.
RECOMMENDATION 2
“That First Nations leadership establish appropriate consultation mechanisms to
ensure the meaningful participation of all community members in the
development, implementation, and future amendment(s) of community based
codes.”
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Response
This recommendation is directed to First Nation leaders and will be best
addressed by them. When contemplating changes to leadership selection or
election processes in a First Nation community, it is essential that membership
be consulted and allowed to provide input. The Government is supportive of
efforts made by First Nation leaders in this respect. Hence, part of the funding
allocated to support First Nations in developing or reviewing a community
election code is meant for consultation with community members and for holding
a referendum on the topic.
RECOMMENDATION 3
“That the Department of Indian Affairs and Northern Development, in
collaboration and consultation with the appropriate First Nations and/or Treaty
Organizations, take the immediate steps to establish a First Nations Electoral
and Appeals Commission, operating on a national and/or regional basis,
empowered to hear appeals arising from First Nations and to promote and
strengthen First Nations electoral capacity.”
Response
On the premise that the current elections appeals process managed by the
Department is cumbersome and costly1, the Committee suggests that an
independent body be empowered to hear First Nations elections appeals. The
Committee further suggests that this body could strengthen and promote
increased electoral capacity for First Nations and help develop effective,
transparent and accountable First Nations governments and election practices.
The Government of Canada recognizes the need to make changes in the way
appeals are managed. However, there are important challenges and
unanswered questions with the creation of a First Nations electoral and appeals
commission as an alternative.
Many community election codes already have appeal mechanisms. These are
often community-based bodies given powers within the community election code
to receive, review and decide upon election complaints and appeals. Where
these bodies are established in an open and transparent manner and are viewed
as legitimate by the community, they seem to be effective in resolving issues
brought before them. This conclusion is based on the fact that approximately five
to ten election disputes under community election codes are brought to the
Department’s attention in any given year, a number far inferior to the actual
number of elections taking place under these codes.
If such a commission were to be created to investigate and decide on election
appeals, it would be faced with the challenge of having to interpret every
individual election code, all containing unique rules and procedures. If the intent
of the Committee’s recommendation is to create an institution similar to the Office
of the Chief Electoral Officer of Canada (Elections Canada) for First Nations
elections, it is essential to point out that Elections Canada’s mandate involves the
administration of one federal election law and one uniform set of election
procedures, rules and materials applicable across the country. This challenge
would quickly disappear in the context of one election law for all First Nations;
1
The election regulations under the Indian Act set out provisions for First Nations voters to launch an appeal of an
election with the Minister of Indian Affairs and Northern Development and his Department. To do so, he or she must
submit an affidavit setting out the grounds for the appeal within 45 days of an election. When the Minister receives an
appeal, a copy of it is sent by registered mail to all the candidates at the election and the electoral officer, who may
provide a response and comments within 14 days. After receipt of the responses and any other information, the
Department may conduct an investigation. If there is enough evidence to show that the election was invalid, the Minister
can ask the Governor in Council to overturn the election of one or more candidates.
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however, such an approach is not viewed as desirable by either the Committee,
the Government or First Nations.
Grounds for election appeals fall into one of two categories. Either the grounds
involve technical breaches of the rules that may have had an impact on the
results of the election, such as polling hours not being respected, or they involve
allegations of corrupt practices, such as vote buying and voter intimidation.
Investigating corrupt practices, determining guilt and meting out penalties is a
role only the courts can play and would not be appropriate for an election
appeals commission. Drawing from the current experience under the Indian Act
election system, a large percentage of the appeals launched are on the grounds
that corrupt practices occurred in connection with an election. Therefore, the
commission would not be able to hear a large majority of election appeals.
Since issues surrounding improprieties in municipal, provincial and federal
elections are ultimately decided in the courts, perhaps they should also be
considered as a viable alternative to solving election issues when the appeal
mechanisms in community election systems are either ineffective or non-existent.
In terms of the promotion of electoral capacity in First Nations which the
Committee suggests would be rendered by a First Nations electoral and appeals
commission, it is important to note that the National Centre for First Nations
Governance and Tribal Councils, both of which are funded by the Department of
Indian Affairs and Northern Development, have mandates to support First
Nations in their governance initiatives. Since leadership selection is a
fundamental building block of governance, the National Centre and Tribal
Councils are well positioned to provide the necessary support and promotion of
electoral capacity to First Nations.
In short, the Government agrees with the premise set out by the Committee that
the current system of recourse is inadequate and that First Nations electors
require something more effective than turning to the Minister. However, the
Government does not agree that the model proposed by the Committee is the
only alternative solution, or that it could be implemented without further
engagement and policy work.
RECOMMENDATION 4
“That the Department of Indian Affairs and Northern Development, in
collaboration with interested regional First Nations organizations, establish pilot
projects to develop and implement First Nations led electoral initiatives and to
guide policy and/or legislative development in this area.”
Response
The Department of Indian Affairs and Northern Development is working with First
Nations organizations interested in electoral reform initiatives. Over the last year,
the Assembly of Manitoba Chiefs and the Atlantic Policy Congress of First Nation
Chiefs, with funds provided by the Department, have engaged and consulted
First Nations leaders, Tribal Council representatives, governance experts and
community members in their respective regions, providing forums for discussion
on election reform. Following their work, rather than contemplating a move to
community election codes, both organizations have concluded that the
development of an alternative legislative framework for elections would best suit
the needs of their member First Nations. On October 1st in Halifax, a joint
announcement was made with the Atlantic Policy Congress of First Nations
Chiefs and the Assembly of Manitoba Chiefs, to launch a national engagement
based on the recommendations of these insightful First Nations leaders. This
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engagement will inform the development of a modern piece of opt-in election
legislation for First Nations who see this approach as their best alternative.
CONCLUSION
In responding the Committee’s report, the Government is pleased to have been
provided an opportunity to describe the policies, programs and initiatives
currently in place that support improving how First Nations select their leaders.
The Government of Canada remains committed to working with First Nations
partners to ensure transparent and accountable governments through the
development of alternatives that respect their realities and needs.