Vol. 149, No. 13 — July 1, 2015

Registration

SOR/2015-148 June 12, 2015

INDIAN ACT

Order Amending the Indian Bands Council Elections Order (Micmacs of Gesgapegiag)

Whereas, by Order in Council P.C. 1951-6016 of November 12, 1951, it was declared that the council of the Maria Indian Band, in Quebec, shall be selected by elections to be held in accordance with the Indian Act (see footnote a);

Whereas, by Band Council Resolution dated August 22, 1988, it was resolved that the name of the band be changed to the Micmacs of Gesgapegiag;

Whereas the council of the Micmacs of Gesgapegiag adopted a resolution, dated May 21, 2015, requesting that the Minister of Indian Affairs and Northern Development add the name of the First Nation to the schedule to the First Nations Elections Act (see footnote b);

Whereas the selection of the First Nation’s chief and councillors by elections held under the First Nations Elections Act (see footnote c) would better serve the needs of the First Nation;

And whereas the Minister of Indian Affairs and Northern Development no longer deems it advisable for the good government of the First Nation that the council of that First Nation be selected by elections held in accordance with the Indian Act (see footnote d);

Therefore, the Minister of Indian Affairs and Northern Development, pursuant to subsection 74(1) of the Indian Act (see footnote e), makes the annexed Order Amending the Indian Bands Council Elections Order (Micmacs of Gesgapegiag).

Gatineau, June 11, 2015

BERNARD VALCOURT
Minister of Indian Affairs and Northern Development

ORDER AMENDING THE INDIAN BANDS COUNCIL ELECTIONS ORDER (MICMACS OF GESGAPEGIAG)

AMENDMENT

1. Item 4 of Part VI of Schedule I to the Indian Bands Council Elections Order (see footnote 1) is repealed.

COMING INTO FORCE

2. This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the orders.)

Issues

A First Nation wishing to hold its elections under the First Nations Elections Act and the associated First Nations Elections Regulations must be added to the Schedule to the First Nations Elections Act. Accordingly, paragraph 3(1)(a) of the First Nations Elections Act states that the Minister of Indian Affairs and Northern Development may, by order, add the name of a First Nation to the Schedule if that First Nation’s council has provided a resolution requesting that the First Nation be added to the Schedule.

On November 12, 1951, the Micmacs of Gesgapegiag (known at the time as the Maria Indian Band), from the province of Quebec, was brought under the application of section 74 of the Indian Act. Thereafter, the First Nation’s chief and councillors were selected pursuant to the election provisions of the Indian Act and the accompanying Indian Band Election Regulations. After having held community discussions and consultations, the council of the Micmacs of Gesgapegiag adopted a resolution on May 21, 2015, requesting to the Minister of Indian Affairs and Northern Development that the name of the First Nation be added to the Schedule to the First Nations Elections Act.

Background

First Nations in Canada select their leadership in one of the following three ways: according to their own community or custom leadership selection system; pursuant to their community’s constitution contained in a self-government agreement; or, under the election provisions of the Indian Act and the associated Indian Band Election Regulations. The First Nations Elections Act and the associated First Nations Elections Regulations, in force since April 2, 2015, is a fourth option for leadership selection in First Nations.

The First Nations Elections Act offers an alternative election system born out of a consensus among First Nations that hold their elections under the Indian Act, and the associated Indian Band Election Regulations, that the latter contain several weaknesses that impede First Nations governments. To address the commonly agreed upon weaknesses, the First Nations Elections Act and the associated First Nations Elections Regulations were developed from recommendations provided by First Nations organizations after an extensive engagement process with First Nations leaders, governance experts and community members across Canada. The First Nations Elections Act and the associated Regulations provide a robust election system with rules and procedures for the electoral process similar to those found in federal and provincial election laws.

A First Nation holding elections under the Indian Act can seek a change to its electoral system and adhere to the First Nations Elections Act and the related Regulations. Subsection 74(1) of the Indian Act provides the power to the Minister of Indian Affairs and Northern Development to amend the Indian Bands Council Elections Order to revoke the application of section 74 for the band. Section 3 of the First Nations Elections Act provides the power to the Minister of Indian Affairs and Northern Development to add, by order, the name of a First Nation to the Schedule to the First Nations Elections Act.

After having held community discussions and consultations, the council of the Micmacs of Gesgapegiag, elected pursuant to the election provisions of the Indian Act and the accompanying Indian Band Election Regulations, has adopted a resolution on May 21, 2015, asking the Minister of Indian Affairs and Northern Development to add the name of the First Nation to the Schedule to the First Nations Elections Act.

Objective

The Order Amending the Indian Bands Council Elections Order (Micmacs of Gesgapegiag), made pursuant to subsection 74(1) of the Indian Act, purports to remove the application of the election provisions of the Indian Act for the Micmacs of Gesgapegiag. The Order Amending the Schedule to the First Nations Elections Act (Micmacs of Gesgapegiag), made pursuant to section 3 of the First Nations Elections Act, purports to add the Micmacs of Gesgapegiag as a participating First Nation under the First Nations Elections Act and to fix the date of the first election of the council of the Micmacs of Gesgapegiag at August 20, 2015.

By choosing to hold its elections under the First Nations Elections Act, the Micmacs of Gesgapegiag will especially benefit from a shorter election period, a robust process for the distribution of mail-in ballots and for the nomination of candidates, and an overall reduction in the costs of elections.

Once added to the Schedule, the Micmacs of Gesgapegiag’s leaders elected under the First Nations Elections Act and its Regulations will be better positioned to make solid business investments, carry out long term planning and build relationships, leading to increased economic development and job creation for the community.

Description

A First Nation can seek a change to its electoral system and adhere to the First Nations Elections Act and the related Regulations. The addition of a First Nation to the Schedule to the First Nations Elections Act is made by order of the Minister of Indian Affairs and Northern Development, pursuant to section 3 of the First Nations Elections Act, when the council of the First Nation, after having held community discussions and consultations, signals its decision to opt into the First Nations Elections Act 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 to that Act. A First Nation holding elections under the Indian Act that will now be added to the Schedule to the First Nations Elections Act must concurrently be removed from the application of the election provisions of the Indian Act. This is made by order of the Minister of Indian Affairs and Northern Development pursuant to subsection 74(1) of the Indian Act.

A First Nation that chooses to hold its elections under the First Nations Elections Act will benefit from 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.

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 under the First Nations Elections Act. Several current electoral officers attended a training session to receive their certification. First Nations who are opting into 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 Act, as they are appointed by First Nations councils.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these orders, as they do not result in any administrative costs or savings to business.

Small business lens

The small business lens does not apply to these orders, as they do not result in any costs for small business.

Consultation

Given that opting into the First Nations Elections Act is made at the request of a First Nation, it is not considered necessary to undertake consultations over and above those already conducted by the First Nation with its members.

The council of the Micmacs of Gesgapegiag undertook its consultation and engagement with the community members over the months of April and May 2015 to consider the adoption of the First Nations Elections Act for the selection of the First Nation’s chief and councillors.

Rationale

The First Nations Elections Act is designed as an optional legislation providing a robust election system for willing and interested First Nations. The First Nations Elections Act does not change the Indian Act election system, and First Nations can continue to hold their elections under the Indian Act if they wish. Similarly, First Nations that hold their elections under their own community or custom election code can continue to do so. However, all First Nations may wish to consider the benefits of opting into the First Nations Elections Act.

After having held community discussions and consultations, a First Nation council must signal its decision to opt into the First Nations Elections Act by adopting a band council resolution asking the Minister of Indian Affairs and Northern Development to add its name to the Schedule to the First Nations Elections Act.

On May 21, 2015, the council of the Micmacs of Gesgapegiag adopted a resolution stating that the council of the First Nation undertook consultations and engagement with the community members for the selection of the First Nation’s chief and councillors; the First Nations Elections Act presents a better electoral option for the First Nation; and, the name of the First Nation should be added to the Schedule to the First Nations Elections Act.

The Minister of Indian Affairs and Northern Development no longer deems it advisable for the good government of the Micmacs of Gesgapegiag that the council of the band be selected by elections to be held in accordance with the Indian Act. Therefore, the Minister of Indian Affairs and Northern Development, pursuant to subsection 74(1) of the Indian Act, makes the Order Amending the Indian Bands Council Elections Order (Micmacs of Gesgapegiag); and, pursuant to section 3 of the First Nations Elections Act, makes the Order Amending the Schedule to the First Nations Elections Act (Micmacs of Gesgapegiag).

Implementation, enforcement and service standards

There are no compliance and enforcement requirements and no implementation or ongoing costs which can be directly associated with adding First Nations to the Schedule to the First Nations Elections Act.

In compliance with the First Nations Elections Act and the First Nations Elections Regulations, the conduct of elections and disputes arising therefrom are the responsibility of the First Nations and the electoral officers appointed by the First Nations; however, the First Nations Elections Act provides that an election can be contested by application to a federal or provincial court. The offences and penalties provided in the First Nations Elections Act, which is enforced by local law enforcement and 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.

Aboriginal Affairs and Northern Development Canada, in conjunction with First Nations organizations, will pursue ongoing consultations with First Nations and electoral officers who have conducted elections under the First Nations Elections Act and associated First Nations Elections Regulations to identify any potential gaps or issues.

Contact

Marc Boivin
Acting Director
Governance Policy and Implementation
Aboriginal Affairs and Northern Development Canada
10 Wellington Street, 8th Floor
Gatineau, Quebec
K1A 0H4
Telephone: 819-994-6735
Fax: 819-953-3855
Email: Marc.Boivin@aandc-aadnc.gc.ca