FEDERAL REG

SOR/2016-222: Indian Bands Council Elections Order (Nooaitch) — Order Amending Indian Act

REGISTRATION OF FEDERAL REGULATION - VIA PART II OF THE GAZETTE

Registered
July 27, 2016


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 ... (Click for more)


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Published on July 27, 2016

Bill Summary

SOR/2016-222: Indian Bands Council Elections Order (Nooaitch) — Order Amending Indian Act

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 March 4, 1997, the Nooaitch Indian Band, in the province of British Columbia, 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. After having held community discussions and consultations, the council of the Nooaitch Indian Band adopted a resolution on May 16, 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 November 21, 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. After having held community discussions and consultations, the council of the Nooaitch Indian Band, elected pursuant to the election provisions of the Indian Act and accompanying Indian Band Election Regulations, adopted a resolution on May 16, 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 November 21, 2016. Objective The Order Amending the Indian Bands Council Elections Order (Nooaitch), made pursuant to subsection 74(1) of the Indian Act, removes the application of the election provisions of the Indian Act for the Nooaitch Indian Band. The Order Amending the Schedule to the First Nations Elections Act (Nooaitch), made pursuant to section 3 of the First Nations Elections Act, adds the Nooaitch Indian Band as a participating First Nation under the Act and fixes the date of the first election of the council at November 21, 2016. By choosing to hold its elections under the Act, the Nooaitch Indian Band 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 Nooaitch Indian Band 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. After holding community discussions and consultations, 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 First Nation with its members. The council of the Nooaitch Indian Band undertook its consultation and engagement with the community members as indicated in the band council resolution to consider the adoption of the Act for the selection of the First Nation’s chief and councillors. 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 May 16, 2016, the council of the Nooaitch Indian Band 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 November 21, 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 Nooaitch Indian Band 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 (Nooaitch) pursuant to subsection 74(1) of the Indian Act; and made the Order Amending the Schedule to the First Nations Elections Act (Nooaitch) 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 Nooaitch Indian Band 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: [email protected] Footnote a R.S., c. I-5 Footnote b S.C. 2014, c. 5 Footnote c R.S., c. I-5 Footnote d R.S., c. I-5 Footnote 1 SOR/97-138

This Bill does not amend any statutes.

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