Vol. 150, No. 16 — August 10, 2016

Registration

SOR/2016-216 July 26, 2016

INDIAN ACT

Order Amending the Indian Bands Council Elections Order (Wuskwi Sipihk)

Whereas, by Order in Council P.C. 1989-2523 of December 21, 1989, it was declared that the council of the Indian Birch Band, in Manitoba, shall be selected by elections to be held in accordance with the Indian Act (see footnote a);

Whereas, by band council resolution of March 6, 1996, it was resolved that the name of the Indian Birch Band be changed to the Wuskwi Sipihk First Nation;

Whereas the council of the Wuskwi Sipihk First Nation adopted a resolution, dated June 10, 2016, 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);

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

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

Gatineau, July 22, 2016

Carolyn Bennett
Minister of Indian Affairs and
Northern Development

Order Amending the Indian Bands Council Elections Order (Wuskwi Sipihk)

Amendment

1 Item 14 of Part IV of Schedule I to the Indian Bands Council Elections Order (see footnote 1) is repealed.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 governed by the Indian Act wishing to hold its elections under the First Nations Elections Act (the Act) and the associated First Nations Elections Regulations (the Regulations) must be added to the schedule to the Act. Paragraph 3(1)(a) of the 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 December 21, 1989, the Wuskwi Sipihk First Nation (known at the time as the Indian Birch Band), in the province of Manitoba, 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 accompanying Indian Band Election Regulations.

The council of the Wuskwi Sipihk First Nation adopted a resolution on June 10, 2016, requesting that the Minister of Indian Affairs and Northern Development add the name of the First Nation to the schedule to the Act, and that the date of its first election under the Act be fixed at October 14, 2016.

Background

Before the Act and the Regulations came into force on April 2, 2015, First Nations governed by the Indian Act selected their leadership under the election provisions of the Indian Act and associated Indian Band Election Regulations or according to their own community or custom leadership selection system.

The Act offers an alternative election system born out of a consensus among First Nations — who hold their elections under the Indian Act and the Indian Band Election Regulations — that this electoral system contains several weaknesses that act as a barrier to strong First Nations governments. To address the commonly agreed upon weaknesses, the Act and the Regulations were developed from recommendations provided by First Nations organizations after an engagement process with First Nations leaders, governance experts and community members across Canada. The Act and the 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 Act and the Regulations. By virtue of subsection 74(1) of the Indian Act, the Minister of Indian Affairs and Northern Development can amend the Indian Bands Council Elections Order so that the electoral provisions of the Indian Act no longer apply to a particular First Nation. Section 3 of the 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 Act.

The council of the Wuskwi Sipihk First Nation, elected pursuant to the election provisions of the Indian Act and accompanying Indian Band Election Regulations, adopted a resolution on June 10, 2016, 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 and that the date of its first election under the Act be fixed as October 14, 2016.

Objective

The Order Amending the Indian Bands Council Elections Order (Wuskwi Sipihk), made pursuant to subsection 74(1) of the Indian Act, removes the application of the election provisions of the Indian Act for the Wuskwi Sipihk First Nation. The Order Amending the Schedule to the First Nations Elections Act (Wuskwi Sipihk), made pursuant to section 3 of the First Nations Elections Act, adds the Wuskwi Sipihk First Nation as a participating First Nation under the Act and fixes the date of the first election of the council at October 14, 2016.

By choosing to hold its elections under the Act, the Wuskwi Sipihk First Nation will especially benefit from its band council having a four-year term of office, and from election rules that offer a shorter election period, a robust process for the distribution of mail-in ballots and for the nomination of candidates, and the ability to hold advance polling stations to increase voter participation and reduce dependency on mail-in ballots. The cost of elections will also be reduced primarily due to elections being held every four years instead of every two years.

Once added to the schedule, the Wuskwi Sipihk First Nation’s leaders elected under the Act and the 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 is added to the schedule to the Act by order of the Minister of Indian Affairs and Northern Development, made pursuant to section 3 of the Act. The council of a First Nation signals its decision to opt into the 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 the Act. A First Nation added to the schedule must be removed from the election regime of the Indian Act, by means of an order of the Minister of Indian Affairs and Northern Development made pursuant to subsection 74(1) of the Indian Act.

Under the Regulations, an electoral officer must be certified by virtue of having successfully completed a training program approved by the Minister of Indian Affairs and Northern Development on the responsibilities of the electoral officer under the Act and the Regulations. Indigenous and Northern Affairs Canada will collaborate with First Nations and First Nations organizations to ensure that there are a sufficient number of certified electoral officers available to conduct elections under the Act. Several current electoral officers attended a training session to receive their certification. First Nations who are opting into the Act can also request that staff members, appointed by First Nations councils, receive the training and certification. Those staff members would then be able to conduct elections under the Act.

“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 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 Wuskwi Sipihk First Nation with its members.

The council of the Wuskwi Sipihk First Nation has indicated that changing the electoral system has been widely discussed in the community during the months of April, May and June 2016.

Rationale

The Act is designed as an optional legislative scheme that provides a robust election system for willing and interested First Nations. The 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.

On June 10, 2016, the council of the Wuskwi Sipihk First Nation adopted a resolution stating that the council undertook consultations and engagement with community members to consider the adoption of the Act; that the Act presents a better electoral option for the First Nation; that the name of the First Nation should be added to the schedule to the Act; and that the date of the first election under the Act should be fixed as October 14, 2016, in the Order made pursuant to section 3 of the Act.

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

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 Act.

In compliance with the Act and the Regulations, the conduct of elections and disputes arising from them are the responsibility of the Wuskwi Sipihk First Nation and the electoral officer appointed by the First Nation; however, the Act provides that an election can be contested by application to a federal or provincial court. The offences and penalties provided in the Act — which are 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 Act, the courts are able to impose fines and terms of imprisonment on persons found guilty of an offence.

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

Contact

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