Vol. 149, No. 8 — April 22, 2015

Registration

SOR/2015-86 April 2, 2015

FIRST NATIONS ELECTIONS ACT

First Nations Elections Regulations

P.C. 2015-436 April 2, 2015

His Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to section 41 of the First Nations Elections Act (see footnote a), makes the annexed First Nations Elections Regulations.

TABLE OF CONTENTS

(This table is not part of the Regulations.)

FIRST NATIONS ELECTIONS REGULATIONS

INTERPRETATION

1. Definitions

ELECTORAL OFFICER AND DEPUTY ELECTORAL OFFICERS

2. Appointment of electoral officer

VOTERS LIST

3. Provision of information

4. Addresses

NOMINATION MEETING

5. Notice of nomination meeting

6. Nomination of candidates

7. Nomination meeting

CANDIDATES

8. Candidacy fee

9. Declaration and fee

10. Withdrawal of candidacy

ELECTIONS

11. Close of nomination meeting

12. Notice of acclamations

13. Content of ballots

14. Notice of election

15. Mail-in ballot

16. Mail-in ballot package

17. Mail-in ballot

18. Advance poll

19. Polling stations

20. Polling station materials

21. Ballot

22. Rejection or acceptance of mail-in ballot

23. Ballots

24. Declaration

DISPOSAL OF BALLOTS AND ELECTION DOCUMENTS

25. Retention of documents

CANDIDACY FEE

26. Return of candidacy fee

COMING INTO FORCE

27. S.C. 2014, c. 5 or on registration

FIRST NATIONS ELECTIONS REGULATIONS

INTERPRETATION

Definitions

1. (1) The following definitions apply in these Regulations.

Indian Act

(2) Unless the context otherwise requires, other words and expressions used in these Regulations have the same meaning as in the Indian Act.

ELECTORAL OFFICER AND DEPUTY ELECTORAL OFFICERS

Appointment of electoral officer

2. (1) The council of the First Nation must, by resolution, appoint an electoral officer or, if it is not possible for the council to form a quorum, the Minister must appoint an electoral officer, who

Certification

(2) A person is certified if they successfully complete a training program that is approved by the Minister on the responsibilities of the electoral officer under the Act and these Regulations.

Revocation of certification

(3) The certification is revoked if the electoral officer is found guilty of an offence under the Act.

Appointment of deputy electoral officer

(4) The electoral officer may appoint one or more deputy electoral officers.

VOTERS LIST

Provision of information

3. (1) At least 65 days before the day on which an election is to be held

Compilation of list

(2) The electoral officer must compile a voters list that contains the following information:

Revision of list

(3) The electoral officer must revise the voters list if it is demonstrated that

Demonstration of omission and inclusion

(4) For the purposes of subsection (3),

Addresses

4. (1) At least 65 days before the day on which an election is to be held, the First Nation must provide the electoral officer with a list setting out the last known postal address and email address of each elector who does not reside on the reserve.

Provision of electors’ names and addresses

(2) On the request of a candidate for election as chief or councillor, the electoral officer must provide the candidate with a list of the names of electors and the address of any elector who has consented to have their address released to the candidates.

NOMINATION MEETING

Notice of nomination meeting

5. (1) At least 25 days before the day on which a nomination meeting is to be held, the electoral officer must

Content of notice

(2) A notice of a nomination meeting must contain the following information:

Record of names

(3) The electoral officer must record the names of electors to whom a notice of the nomination meeting was sent or delivered, the postal address and email address of those electors and the date on which the notice was sent or delivered.

Voter declaration form

(4) A voter declaration form must be signed by the elector and attest to the following information:

Witness

(5) A voter declaration form must contain the name, address, telephone number and signature of a witness who is at least 18 years of age and who attests to the fact that the person completing and signing the voter declaration form is the person whose name is set out in the form.

Witness

(6) The voter declaration form of the elector who enlisted the assistance of another person under subsection 17(2) must be signed by a witness that attests to the fact that the elector is the person whose name is set out in the form and that the ballot was marked in the manner directed by the elector.

Nomination of candidates

6. (1) An elector may nominate a candidate and second the nomination of a candidate,

Witness

(2) The witness to the elector’s signature appearing on the voter declaration form is not to be considered a seconder to the nomination.

Mailed nominations

(3) Mailed nominations that are not received by the electoral officer before the beginning of the nomination meeting are void.

Nomination meeting

7. (1) A nomination meeting for an election must be held at least 35 days before the date of the election.

Reading nominations

(2) At the beginning of the nomination meeting, the electoral officer must read aloud the nominations that have been received.

Two nominations

(3) If the same person receives two written nominations for the same position, the second nomination is considered to second the first nomination.

Duration

(4) A nomination meeting must remain open for at least three hours.

CANDIDATES

Candidacy fee

8. The council of a First Nation may by resolution impose a candidacy fee of up to $250 on every candidate for election as chief or councillor.

Declaration and fee

9. (1) To become a candidate, a nominee must remit to the electoral officer or deputy electoral officer, by 6 p.m. on the third day following the day on which the nomination meeting closes,

In trust

(2) The electoral officer must hold the candidacy fees in trust.

Withdrawal of candidacy

10. (1) A candidate may withdraw their candidacy at any time prior to the close of the polls by submitting to the electoral officer a written declaration of withdrawal, signed by the candidate in the presence of the electoral officer, a justice of the peace, a notary public or a commissioner for oaths.

Death of candidate

(2) A candidate who dies before the close of the polls is considered to have withdrawn their candidacy.

Candidacy fee

(3) A candidate who withdraws forfeits the candidacy fee and is considered to have received no votes.

ELECTIONS

Close of nomination meeting

11. As soon as feasible after the deadline set out in subsection 9(1) expires, the electoral officer must

Notice of acclamations

12. (1) If, after candidates have been elected by acclamation, the number of positions filled is greater than or equal to the number of positions that are required to be filled for the council of the First Nation to have quorum, the electoral officer must post in at least one conspicuous place on the reserve, and mail to every elector who does not reside on the reserve for whom an address was provided under subsection 4(1), a notice that sets out the names of the persons who have been elected by acclamation and states that an election will not be held.

Refund of candidacy fee

(2) Candidates who are elected to the position of chief or the position of councillor by acclamation are, for the purposes of section 11 of the Act, considered to have received more than five percent of the total votes cast and are entitled to be refunded the candidacy fee.

Return of candidacy fee

(3) The electoral officer must return the candidacy fee to candidates elected by acclamation as soon as feasible.

Content of ballots

13. (1) As soon as feasible after the deadline set out in subsection 9(1) expires, the electoral officer must prepare ballots setting out

Additional distinguishing information

(2) If two or more candidates have the same name, the electoral officer must add to the ballots any additional information that is necessary to distinguish between those candidates.

Notice of election

14. No later than 30 days before the day on which the election is to be held, the electoral officer must post in at least one conspicuous place on the reserve a notice that sets out

Mail-in ballot

15. An elector who wants to receive a mail-in ballot must make a written request to the electoral officer that includes a copy of their proof of identity.

Mail-in ballot package

16. (1) No later than 30 days before the day on which the election is to be held, the electoral officer must mail to every elector who has made a written request a mail-in ballot package consisting of

Six or more days before election

(2) If an elector makes a written request for a mail-in ballot six or more days before the day on which the election is to be held, the electoral officer must mail, or deliver at an agreed time and place, a mail-in ballot package to the elector as soon as feasible after receipt of the request.

Voters list

(3) The electoral officer must indicate on the voters list, next to the name of each elector to whom a mail-in ballot package was mailed or delivered, that a package has been provided to that elector and keep a record of the date on which, and the address to which, each package was mailed or delivered.

Mail-in ballot

17. (1) An elector may vote by mail-in ballot by

Assistance of another person

(2) If an elector is unable to vote in the manner set out in subsection (1), the elector may enlist the assistance of another person.

Voided mail-in ballot

(3) A mail-in ballot is void if the mail-in ballot package is not received by the electoral officer or deputy electoral officer before the time at which the polls close.

Safekeeping of mail-in ballot

(4) The electoral officer or deputy electoral officer must ensure the safekeeping of the mail-in ballot packages until they are opened in accordance with section 22.

Advance poll

18. (1) The electoral officer may establish an advance polling station at any location that the electoral officer considers suitable and hold an advance poll for the period beginning on the tenth day and ending on the fifth day before the day on which the election is to be held.

Procedures

(2) The procedures set out in sections 20 and 21 apply to advance polling stations.

On close of advance polling station

(3) As soon as the advance polling station closes, the electoral officer must seal the ballot box in a manner that prevents it from being opened without breaking the seal, place their initials on the seal, invite two witnesses to initial the seal, and ensure the safekeeping of the ballot box until the counting of the votes following the close of the polling stations on the day of the election.

Polling stations

19. The electoral officer must establish at least one polling station on the reserve on the day of the election unless the electoral officer is unable to do so, in which case the electoral officer must establish a polling station as close to the reserve as possible.

Polling station materials

20. (1) The electoral officer must, before the poll is open, ensure that each polling station is equipped with ballot boxes, ballots, materials for marking the ballots and any other necessary materials for the conduct of the vote.

Compartments

(2) The electoral officer or deputy electoral officer must provide a compartment at each polling station where the electors can mark their ballots without being observed by any other person.

Security

(3) The electoral officer or deputy electoral officer may designate a person to maintain order at a polling station.

Hours

(4) Polling stations must be open from 9:00 a.m. to 8:00 p.m. on the day of the election.

Candidate’s representatives

(5) A candidate is entitled to two representatives in a polling station.

Sealed ballot box

(6) The electoral officer or deputy electoral officer must, before the polling station is opened, open the ballot box, call all persons present to witness that it is empty, seal the box in a manner that prevents it from being opened without breaking the seal and place it in a location that is visible to the voters.

Seal

(7) The seal of a ballot box must not be broken and the ballot box must not be opened during the time that the polling station is open.

Repeat of procedure

(8) If another ballot box is required during the time that the polling station is open, the electoral officer or deputy electoral officer must repeat the procedure set out in subsection (6).

Ballot

21. (1) Subject to subsection (3), the electoral officer or deputy electoral officer must provide a ballot on which their initials have been placed to any person who has not voted at an advance poll, who attends at a polling station and whose name is set out in the voters list.

Marked voters list

(2) The electoral officer or deputy electoral officer must place a mark on the voters list next to the name of each elector who was given a ballot.

Mail-in ballot

(3) An elector who received a mail-in ballot package under section 16 may obtain a ballot and vote in person at a polling station if the elector

Procedure

(4) After receiving a ballot, an elector must

Ballot box

(5) The electoral officer or deputy electoral officer must, without unfolding the ballot, verify the initials placed on it and return the ballot to the elector to deposit in the ballot box or, at the elector’s request, deposit it in the ballot box.

Privacy

(6) Subject to subsection (7), while an elector is in the compartment provided for marking ballots, no other person is allowed to be in the compartment or be in a position to see the manner in which the elector marks their ballot.

Assistance

(7) At the request of any elector who is unable to vote in the manner set out in subsection (4), the electoral officer or deputy electoral deputy must, in the presence of a witness that the elector has selected, assist that elector by marking their ballot in the manner directed by the elector and return the ballot to the elector to deposit in the ballot box or, at the elector’s request, deposit it in the ballot box.

Note on voters list

(8) The electoral officer or deputy electoral officer must make a note on the voters list next to the elector’s name to indicate that the ballot was marked by the electoral officer or deputy electoral officer at the elector’s request.

Spoiled ballot

(9) An elector who has inadvertently made their ballot unusable may return it to the electoral officer or deputy electoral officer and is, on one occasion, entitled to obtain another ballot, and the electoral officer or deputy electoral officer must write the word “cancelled” on the spoiled ballot and preserve it.

Forfeiture

(10) Any person who has received a ballot and who declines to vote or who leaves the polling station without voting forfeits their right to vote at the election.

Voters list

(11) In the case of a person who forfeits their right to vote, the electoral officer or deputy electoral officer must make a note on the voters list next to that person’s name to indicate that the person received a ballot and declined to vote and, if possible, write the word “declined” on the back of the ballot and preserve it.

Entitlement to vote before closure

(12) Every elector who is inside the polling station at the time fixed for closing the poll is entitled to vote before the poll is to be closed.

Rejection or acceptance of mail-in ballot

22. At the time and on the date set for the counting of the votes in the notice referred to in section 14, the electoral officer or deputy electoral officer must, in the presence of everyone present, open each envelope containing a mail-in ballot that was received before the close of the polls and, without unfolding the ballot,

Ballots

23. After all mail-in ballots have been deposited in a ballot box, the electoral officer or deputy electoral officer must, in the presence of everyone present, open all ballot boxes and

Declaration

24. (1) Subject to subsection (2), after the completion of the counting of the votes, the electoral officer must, in the presence of everyone present, declare to be elected the candidates having the highest number of votes.

Five or fewer votes

(2) If the difference between the number of votes of a candidate with the highest number of votes — who would otherwise be declared elected — and another candidate for the same position is five or fewer, the electoral officer must establish a date, time and place for a recount of the votes cast for those candidates and announce that date, time and place in the presence of everyone present.

Time of recount

(3) A recount must commence within 24 hours after the announcement by the electoral officer that a recount is necessary.

Handling of ballots

(4) If the recount is not to be conducted immediately after the counting of the votes, the electoral officer must

Recount

(5) On the date and at the time and place established for a recount, the electoral officer must open the sealed ballot box and the sealed envelopes in the presence of everyone present and conduct a recount.

Declaration

(6) After the completion of the recount, the electoral officer must, in the presence of everyone present, declare to be elected the candidates having the highest number of votes and, in the case where a draw has been held in accordance with section 24 of the Act, any candidate who has won the draw.

Statement

(7) Within four days after completion of the counting of the votes or, if there has been a recount, within four days after the recount, the electoral officer must

DISPOSAL OF BALLOTS AND ELECTION DOCUMENTS

Retention of documents

25. (1) The electoral officer must deposit all ballots in envelopes, seal them and ensure their safekeeping along with other election documents, for a period of 120 days following the election.

Destruction of documents

(2) At the end of the period set out in subsection (1), the electoral officer must destroy the ballots and election documents, unless they are served, in accordance with section 34 of the Act, with an application to contest the election.

CANDIDACY FEE

Return of candidacy fee

26. Within 30 days of the day on which the electoral officer declared the results of the election, the electoral officer must

COMING INTO FORCE

S.C. 2014, c. 5 or on registration

27. These Regulations come into force on the day on which the First Nations Elections Act, chapter 5 of the Statutes of Canada, 2014 comes into force but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

There are weaknesses in the current Indian Band Election Regulations, which guide band council elections held under the Indian Act. In some instances, these weaknesses have led to doubts as to the legitimacy of a First Nation’s election. When the electoral process by which a band council is elected is brought into question, the legitimacy of the band council itself can be challenged. Under these conditions, a band council can have difficulty governing, making decisions and launching important projects. The commonly agreed upon weaknesses of the Indian Band Election Regulations are

Background

First Nations select their chief and councillors in one of the following three ways:

Currently, of the 618 First Nations in Canada, 237 hold elections under the Indian Act, 343 select their leadership according to their own community or custom election codes and 38 are self-governing.

The First Nations Elections Act was born out of a consensus among First Nations that hold their elections under the Indian Act, that the latter contains several weaknesses that impede First Nations governments. Among these are

To address the agreed upon weaknesses, the First Nations Elections Act was developed after an extensive engagement process led by First Nations organizations between 2008 and 2010. It presents an alternative election system that First Nations can opt into. Key differences are

The First Nations Elections Act provides powers to the Governor General in Council to make regulations respecting

With the First Nations Elections Regulations providing the rules and procedures surrounding the electoral process, a First Nation can hold an election under the First Nations Elections Act.

Objectives

The First Nations Elections Act presents an opportunity to develop new and modern regulations for the conduct of First Nations elections, containing processes similar to provincial and federal election rules. In developing the First Nations Elections Regulations, it is important to consider the weaknesses of the Indian Band Election Regulations, under the Indian Act, to ensure they are not carried over.

Sound election regulations under the First Nations Elections Act will benefit First Nations by offering a modern regulatory framework for the conduct of their elections. First Nations leaders elected under the First Nations Elections Act and its regulations will have increased legitimacy amongst their members within their own communities and amongst potential investors and stakeholders. This increased legitimacy would be a contributing factor in attracting partnerships and investments that would benefit the First Nation as a whole.

Description

The First Nations Elections Regulations, under the First Nations Elections Act, provide rules and procedures for the electoral process similar to those found in federal and provincial election laws. The Regulations contain rules related to the establishment and revision of a voters list, the posting and distribution of notices, the nomination of candidates, a mail-in ballot system, voting procedures for advance and ordinary polling stations and the counting of votes.

The First Nations Elections Regulations

The following chart illustrates the differences between the First Nations Elections Regulations and the Indian Band Election Regulations and outlines the comparative process for federal elections under the Canada Elections Act.

Item Indian Band Election Regulations
(Indian Act)		 First Nations Elections Regulations
 (First Nations Elections Act)		 Canada Elections Act
Electoral officers The electoral officer is appointed by the First Nation council with the approval of the Minister. (see reference *) Electoral officers must be certified through a training program approved by the Minister. (see reference **) The electoral officer is appointed by the First Nation council, and the Minister’s approval of the appointment is no longer required. The Minister (see reference ***) is able to appoint an electoral officer only when the band council cannot form quorum to make binding decisions. Returning officers are selected by the Chief Electoral Officer through a competitive process.
Election period 79 days 65 days 36 days
Nomination of candidates Can be made by mail or orally at a nomination meeting. Can be made by mail or orally at a nomination meeting. A First Nation may choose to impose a fee of up to $250 on each candidate to be refunded if the candidate receives more than 5% of the total votes cast. Candidates must remit a nomination paper that includes the signature of at least 100 electors, as well as the deposit of $1,000, to the returning officer of the particular electoral district by 2 p.m. on the 21st day before the election.
Candidate acceptance Persons nominated automatically become candidates, and their names are placed on the ballot unless they withdraw in writing. Persons nominated must submit a written declaration and acceptance of nomination, and, if applicable, the candidacy fee, or their name will not appear on the ballot. The candidate’s nomination paper, described above, contains a statement of consent to the nomination that the prospective candidate must sign.
Mail-in ballots The electoral officer sends a mail-in ballot to all off-reserve electors whose addresses appear on the list provided by the First Nation. The electoral officer will also respond to specific requests for a mail-in ballot and can do so until polling day. Electors wishing to vote by mail-in ballot must provide a written request to the electoral officer along with a photocopy of an identification document. The electoral officer will send mail-in ballot packages to all those electors whose request is received on or before the 6th day before the election. After this time, no mail-in ballots will be given out, and the elector will have to vote in person either at an advance poll or at the polling station on election day. Mail-in ballots are provided to electors who complete an application and provide identification and proof of address up to the 6th day before the election.
Advance polls No provision The electoral officer may hold advance polls between the 10th and 5th days before the election, on and off reserve. Advance polls are held in each electoral district on the 10th, 9th and 7th days prior to the election.
Recount No provision If the margin of votes between a winning candidate and one or more runners-up is five or fewer, the electoral officer must recount the ballots for these candidates. If the margin of votes between the winning candidate and a runner-up is less than 1/1 000 of the votes cast, the returning officer makes a request to a judge for a recount.
Disposition of ballots The electoral officer returns ballots and other election material to the Department of Aboriginal Affairs and Northern Development. The electoral officer must keep the ballots and other election material until at least 120 days following the election. The Chief Electoral Officer is charged with the safekeeping of the election materials.

“One-for-One” Rule

The “One-for-One” Rule does not apply to the First Nations Elections Regulations. The Regulations do not result in an administrative burden for businesses, nor do they remove the administrative burden.

Small business lens

The small business lens does not apply to the First Nations Elections Regulations. The Regulations do not impose any level of compliance costs and/or administrative costs on small businesses, as they do not impose any requirements on businesses.

Consultation

The First Nations Elections Act was developed from recommendations provided by First Nations organizations, namely the Atlantic Policy Congress of First Nations Chiefs and the Assembly of Manitoba Chiefs. These organizations developed the recommendations after having consulted and engaged with First Nations leaders, governance experts and community members in their respective regions between 2008 and 2010.

The recommendations that pertain to the First Nations Elections Regulations were as follows:

The parties primarily affected by the First Nations Elections Regulations are members of those First Nations who will choose to hold their elections under the First Nations Elections Act. As per subsection 3(1) of the Act, a First Nation council will signal this choice by adopting a band council resolution asking the Minister of Indian Affairs and Northern Development to add the name of the First Nation to the schedule. It is expected that interest in moving to this legislation will come initially from Atlantic Canada, where 27 of the 35 First Nations hold their elections under the Indian Act. The remaining eight First Nations hold their elections under their own community election rules (custom codes). First Nations in other parts of the country have also expressed an interest since the passage of the First Nations Elections Act.

Aboriginal Affairs and Northern Development Canada and the Atlantic Policy Congress of First Nations Chiefs embarked on a consultative and engagement process that has provided opportunities to First Nations to share their thoughts and ideas concerning the content of the proposed Regulations. As a starting point to this exercise, the Atlantic Policy Congress of First Nations Chiefs hosted two workshops that brought together subject matter experts in the area of First Nations elections to discuss and provide recommendations for the content of the proposed Regulations. These recommendations were compiled into a discussion guide that formed the basis of the consultation exercise. In July 2014, the guide was posted on the Atlantic Policy Congress of First Nations Chiefs’ Web site at www.apcfnc.ca/media/first-nations-elections-act-update and distributed to individual First Nations. Aboriginal Affairs and Northern Development Canada also made this discussion guide available on its Web site at www.aadnc-aandc.gc.ca/elections. First Nations leaders and community members were invited to provide their thoughts and comments to Aboriginal Affairs and Northern Development Canada or to the Atlantic Policy Congress of First Nations Chiefs through an online comment form, or by email, fax or mail.

Prior to the prepublication of the proposed First Nations Elections Regulations in Part I of the Canada Gazette, Aboriginal Affairs and Northern Development Canada received fewer than 10 comments through its online consultation process. Many comments did not pertain to the Regulations. Rather, they were about the terms of office established in the First Nations Elections Act or were administrative and policy suggestions for First Nations for the maintenance of a database to facilitate communications with members not residing on reserve. One comment was very supportive of the improved process for the nomination of candidates and another acknowledged that the Regulations would address some of the issues with First Nations elections. The Atlantic Policy Congress of First Nations Chiefs did not report receiving individual comments in response to its online consultation process, but informed Aboriginal Affairs and Northern Development Canada that the feedback following the presentations the organization made and the discussions it held were positive.

The proposed First Nations Elections Regulations were prepublished in Part I of the Canada Gazette on February 7, 2015, followed by a 30-day comment period. During this period, Aboriginal Affairs and Northern Development Canada received nine comments, all of which were received through the comment box that was still available online. The online comment box asked specific demographic questions about the person providing the comment. The majority of the comments originated from First Nations band members whose First Nations hold their elections under the Indian Act.

Three comments pertain to matters set by the First Nations Elections Act. One such comment suggested that there should be additional qualifications for candidates, such as a minimum high school education and free of a criminal record. Two others outlined concerns with the Minister of Indian Affairs and Northern Development not having a role in election appeals and these having to be addressed in the courts, similar to appeals in municipal, provincial and federal elections.

Two comments pertained to a potential future regulation surrounding the removal from office of a chief or councillor by petition (often called “recall”). Since a recall regulation is not necessary for the First Nations Elections Act to become operational, the development of such a regulation will be discussed and considered at a later time.

One comment noted that the Regulations also need to address conflict of interest in First Nations governments and set requirements for referendums when major decisions are contemplated. These matters are not within the scope of the regulatory powers afforded in the First Nations Elections Act.

One person simply stated they did not like their own First Nation’s community election code.

Finally, two comments addressed the Regulations in a positive manner, one of which stated, “The proposed Regulations address some of the issues we have been concerned with over the years. These Regulations will make the nomination and election process more streamlined and less prone to abuse and fraud.”

In a discussion, an electoral officer commented on the deadline for receipt of a written request for a mail-in ballot. This deadline in the proposed Regulations was the tenth day prior to the election. It was pointed out that this excessively long period of time could disenfranchise several electors, who may, for circumstances beyond their control, become aware that they are unable to vote on polling day after the tenth day before the day of the election. These electors could easily obtain a mail-in ballot and use it to cast their vote. Considering this comment, the deadline to request a mail-in ballot has been extended to the sixth day prior to the election, thus giving electors four more days to avail themselves of this voting method.

Aboriginal Affairs and Northern Development Canada also solicited feedback and comments on the proposed First Nations Elections Regulations during a training session on the First Nations Elections Act, held on March 6, 2015, in Vancouver, British Columbia. A comment raised at this session concerned the timing for mail-in ballots to electors who have made requests at subsection 16(1) of the Regulations, which must occur no later than 30 days before the election. It was pointed out at that in some parts of the country, 30 days is insufficient for the distribution and return of mail-in ballots through the regular mail stream. However, this is a minimum time frame and any electoral officer who has concerns around timing can distribute mail-in ballots earlier than 30 days before the election.

Rationale

First Nations who choose to hold their elections under the First Nations Elections Act will see the following benefits: a shorter election period, a more robust process for the nomination of candidates and the distribution of mail-in ballots, and the ability to hold advance polling stations where deemed warranted to increase voter participation and reduce the dependency on mail-in ballots. The offences and penalties provided in the First Nations Elections Act, which is enforced by local law enforcement, prosecuted by the Public Prosecution Service of Canada, will deter questionable election activities, such as vote buying, bribery and voter intimidation. Under the First Nations Elections Act, the courts are able to impose fines and terms of imprisonment on persons found guilty of an offence. No risk to the First Nations Elections Regulations has been identified, and they would not negatively impact other areas or sectors.

Benefits
Overall reduction in costs of elections borne by First Nations

A significant portion of the total cost incurred for an election is to compensate the electoral officer for his or her time, and in some cases, to cover travel expenses. In addition, there are costs incurred for printing materials, notices and ballots, for postage, envelopes, general office supplies, rental space for off-reserve polling stations, ballot boxes and voting screens. Aboriginal Affairs and Northern Development Canada provides the Band Support Funding grant to First Nations to support the cost of “maintaining a government.” Elections are an important component of this general activity. Although the grant is based on a formula that takes into account many factors, such as the total membership of the First Nation and its geographic location, it does not consider the First Nation’s electoral system or the term of office.

First Nations who move from the Indian Act election system to the First Nations Elections Act will realize cost savings from only having to hold a general election every four years, instead of the every two. Considering that the average cost of an election held under the Indian Act is $10,000, a First Nation who moves to holding its elections under the First Nations Elections Act will, in an eight-year period, realize savings of $20,000, which is the cost difference between four and two elections.

These savings could be redirected to further governance improvements within the First Nation. With longer terms of office, First Nations governments will be better positioned to plan and implement longer-term measures that in themselves could result in overall cost savings. For example, goods or services acquired through contractual agreement tend to be less costly if the agreement is over a longer period.

Less opportunity to engage in fraudulent activities surrounding mail-in ballots

The First Nations Elections Regulations provide a mail-in ballot system that is much less susceptible to abuse and fraudulent activity. Requiring that electors make their own requests to obtain a mail-in ballot will reduce the number of mail-in ballots that are distributed, which will reduce opportunities for the buying and selling of these ballots. Furthermore, advance polls will reduce the need for mail-in ballots for many electors.

Committed and serious candidates

Requiring candidates to submit their written consent, and in some cases a candidate fee of up to $250, ensures that those whose names appear on the election ballot have a degree of commitment to the electoral process and to potentially being elected. The requirements will result in committed candidates, some of whom will become dedicated leaders. Committed and dedicated leadership making sound decisions in a First Nation can have significant impacts on the overall well-being of the First Nation and its members.

Certified electoral officers

Under the Indian Band Election Regulations, the appointment of an electoral officer is approved by the Minister of Indian Affairs and Northern Development. Further, as a matter of policy, certain requirements, such as the requirement for a proposed electoral officer to have followed a training program, have been made a condition of approval. To fill the gap created by the First Nations Elections Regulations not allowing for the Minister of Indian Affairs and Northern Development to play an approval role in appointments, the First Nations Elections Regulations contain a requirement that electoral officers be certified by following a training program approved by the Minister of Indian Affairs and Northern Development. This will ensure that elections are conducted by trained and knowledgeable individuals, thereby reducing the potential for errors that could result in delays in the electoral process, or in some cases, the setting aside of an election in its entirety.

Costs

Aboriginal Affairs and Northern Development Canada currently develops materials and provides training to support elections held under the Indian Act. As the number of First Nations who opt to hold their elections under the First Nations Elections Act increases, the number of First Nations under the Indian Act election system would decrease. Therefore, existing resources will be employed to support electoral officers and no increase in costs will result from the new regulatory framework.

For the short term, the certification of electoral officers will be provided free of charge through Aboriginal Affairs and Northern Development Canada’s training programs using existing resources.

Implementation, enforcement and service standards

Aboriginal Affairs and Northern Development Canada has developed materials and provide training to support elections held under the First Nations Elections Act and the First Nations Elections Regulations. Several current electoral officers have been invited to attend a training session to receive their certification. First Nations who have opted in to the First Nations Elections Act can also request that a staff member receive the training and certification. These individuals would then be able to conduct elections under the First Nations Elections Regulations, as they are appointed by First Nations councils. Aboriginal Affairs and Northern Development Canada will collaborate with First Nations and First Nations organizations to ensure that there are sufficient numbers of certified electoral officers available to conduct elections.

Also in collaboration with First Nations organizations, Aboriginal Affairs and Northern Development Canada will consult First Nations and electoral officers who have conducted elections under the First Nations Elections Regulations. Should gaps or issues be identified, regulatory amendments may be considered.

Contact

Marc Boivin
Senior Policy Analyst
Aboriginal Affairs and Northern Development Canada
10 Wellington Street, 8th Floor
Gatineau, Quebec
K1A 0H4
Telephone: 819-934-0591
Fax: 819-953-3855
Email: marc.boivin@aadnc-aandc.gc.ca