FEDERAL REG

SOR/2016-224: Eskasoni Band Council Elections Order — Order Repealing 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)


Published on July 27, 2016

Bill Summary

SOR/2016-224: Eskasoni Band Council Elections Order — Order Repealing 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 April 30, 2004, by order of the Minister of Indian Affairs and Northern Development (SOR/2004-105), it was declared that the council of the Eskasoni Band, in Nova Scotia, shall be selected by elections to be held in accordance with the Indian Act. On May 10, 2016, the council of Eskasoni adopted a resolution 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 13, 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. 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 Eskasoni, elected pursuant to the election provisions of the Indian Act and accompanying Indian Band Election Regulations, adopted a resolution on May 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 13, 2016. Objective The Order Repealing the Eskasoni Band Council Elections Order, made pursuant to subsection 74(1) of the Indian Act, removes the application of the election provisions of the Indian Act for the Eskasoni Band. The Order Amending the Schedule to the First Nations Elections Act (Eskasoni), made pursuant to section 3 of the First Nations Elections Act, adds the Eskasoni Band as a participating First Nation under the Act and fixes the date of the first election of the council at October 13, 2016. By choosing to hold its elections under the Act, the Eskasoni Band will especially benefit from its 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 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 First Nation with its members. The council of Eskasoni indicated in the resolution that it will continue to raise awareness about its decision to move to the First Nations Elections Act by providing information and engaging in discussions with its band members both on and off reserve. 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 10, 2016, the council of Eskasoni adopted a resolution stating that the adoption of 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 13, 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 Eskasoni 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 Repealing the Eskasoni Band Council Elections Order pursuant to subsection 74(1) of the Indian Act; and made the Order Amending the Schedule to the First Nations Elections Act (Eskasoni) 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 Eskasoni 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/2004-105

This Bill does not amend any statutes.

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