The House resumed from May 28 consideration of the motion that Bill , be read the second time and referred to a committee.
Mr. Speaker, I am sad to say that the bill represents yet another of the bait-and-switch approaches of the government. In good faith, the first nations have suggested the need for legislation in a certain area. The government went forward and drafted a bill and then put in a poison pill that no first nation can live with.
This was to be an opt-in bill. That was the purpose of the bill, that first nations could decide whether to adopt the template for first nations elections as outlined in the bill. Then the government put in paragraphs (b) and (c) of one clause that give the minister unprecedented powers to impose it on a first nation.
Yet again, the Conservatives cannot help themselves. Why can they not listen? They pretend they do not know, but the bill actually came from the Senate and all of this was debated in the Senate. The Assembly of First Nations, the Atlantic Policy Congress and all of these people told the government that, and yet there is no concession that there needs to be an amendment and that these egregious paragraphs of the clause need to be removed.
The bill is to establish an alternative regime to the one in the Indian Act to govern the election of chiefs and councillors of certain first nations. Among other things, the regime would provide that chiefs and councillors hold office for four years. It would provide that the election of a chief or councillor might be contested before a competent court and sets out the offences and penalties in relation to the election of that chief or councillor. The enactment would also allow first nations to withdraw from the regime by adopting a written code that sets out the rules regarding the election of members of their council.
Although the Liberal Party is very supportive of what was the intent of the bill, we will be moving amendments that would remove the part that is so offensive to first nations in terms of, yet again, the paternalistic approach—father knows best—of the minister being able to impose this on what was intended to be a purely opt-in piece of legislation.
Although we will support the bill, and again we agree with the choice to adopt an improved election process over that contained within the Indian Act, we insist that Parliament must ensure that Bill does not give the new powers that go against the opt-in nature of this legislation.
For first nations that currently hold elections under the Indian Act, this opt-in legislation contains many improvements to the election process, including extending the term of office for chiefs and council from two to four years and removing the involvement of the minister and the department in the appeals process in setting out offences and penalties for corrupt and fraudulent activities.
However, given the opt-in nature of Bill , it is unacceptable that the Conservatives have included a clause that introduces a new power for the minister to compel first nations currently under their own custom election code to go under the elections process established in the bill. The Assembly of First Nations calls this “inappropriate use of federal legislation”.
Further, rather than creating a new independent and impartial first nations elections appeals body, the government chose instead to refer the appeals process to the court system, which might prevent first nation citizens from bringing forward legitimate appeals, as the cost of going to court could be prohibitive.
While the bill is largely based on consultations with first nations, the Conservatives have included elements that were not supported during the consultations and have refused to remove or amend the offending sections. Yet again, the government has no idea what consultation means. Consultation means we go out and ask the questions and actually listen to the answers.
Consultation does not mean an information session, just dictating “take it or leave it” and then not coming back with the amendments or some evidence that we had heard what was said.
It is clear that no first nations, even the first nations who brought the idea of this bill to government, are in favour of these two paragraphs in clause 3 that give this unprecedented power to the minister.
As we said before, Bill is largely based on the outcome of a consultation process conducted by the Assembly of Manitoba Chiefs and the Atlantic Policy Congress of First Nations Chiefs, which resulted in the publication of the discussion paper, “Improving the System for First Nations Elections”, in October 2010.
The discussion paper identified problems with the election provisions under the Indian Act. There are 240 first nations in Canada that hold elections under the Indian Act electoral systems, 341 first nations that hold elections under their community or custom election code and 36 first nations that currently select their leaders under self-government agreements.
Bill would allow first nations under the Indian Act system or custom codes to opt in to the proposed legislation through a band council resolution.
The AMC-APC discussion paper identifies several reasons why there should be another option for first nations that wish to leave the outdated Indian Act system.
The term of office for elected chiefs and councils under the Indian Act is only two years, which places communities in a continual state of electioneering and undermines long-term planning.
The mail-in ballot is prone to abuse.
The appeals process to the is paternalistic and complicated and often takes too long to produce findings and a final ruling.
The absence of defined election offences and associated penalties, like those in the Canada Elections Act, allows alleged cheating and activities like selling and buying of votes to go unpunished.
The AMC-APC discussion paper made suggestions to remedy these concerns, which are included in Bill : namely, the term of office is increased to four years; the mail-in ballot system is improved; the minister is removed from the appeals process; and new election offences and penalties are prescribed.
In addition to these concerns, the discussion paper as well as the May 2010 report by the Senate committee on aboriginal peoples, “First Nations Elections: The Choice Is Inherently Theirs”, suggested that a new and independent impartial elections appeal body be established to provide culturally appropriate and cost-effective appeals.
The government chose instead to refer the appeals process to the court system, which might prevent first nations citizens from bringing forward legitimate appeals, as the cost of going to court could be prohibitive. It appears that this is simply a transfer of costs related to appeals from the department to individual first nations citizens.
The Senate committee's observations on Bill also noted that, “...the proposed approach may not practically address the need for an expeditious and culturally appropriate appeals process”.
Bill is an optional piece of legislation and is clearly preferable for first nations that are dissatisfied with the current Indian Act system but have decided not to enter in a community or custom election code.
However, the bill as currently written, provides in paragraph 3(1)(b) the with explicit powers to bring first nations currently under the Indian Act system or a custom code under Bill if:
the Minister is satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation;
Paragraph 3(1)(b) is deeply problematic for two reasons. First, it would give the minister new powers to place first nations, which are currently under custom code, under the new first nations election act, despite the fact that under current legislation the minister has no power to intervene in custom code first nations without a formal request from the first nation or a court order. The minister does have similar powers under the Indian Act, but not related to custom code first nations.
Second, the terms “protracted leadership dispute” and “significantly compromised governance” are not defined in the legislation. Paragraph 3(1)(b) should be amended to define these terms and clarify that paragraph 3(1)(b) does not apply to custom code first nations, which should retain the ability to choose if and when they wish to enter into new legislation.
I would recommend to the government and to the minister to read what happened in the Senate. Here on this side we are blessed to have senators who do extraordinarily good work. I commend to the government the six reasons as stated by Senator Lillian Dyck in her speech in the Senate as to why this bill needs to be amended.
She gives six reasons. The first is that no one agreed with these measures, except for the Department of Indian Affairs. The second is that it is unconstitutional; third, the minister gains new powers; fourth, there are better ways to intervene; fifth, there is no guarantee that the minister would not use the clause inappropriately; and sixth, it is just not the right thing to do in the 21st century, when we are trying to have first nations communities build capacity to develop their own custom code elections.
In her speech, Senator Dyck went on to quote from the organizations that had provided the genesis for this bill and explained that both the regional first nations organizations, the Assembly of Manitoba Chiefs and the Atlantic Policy Conference, who were the instigators of this legislation, were asked only for opt-in provisions with regard to paragraph 3(1)(b). She quotes Chief Nepinak of the Assembly of Manitoba Chiefs, who stated:
If I may, I would agree with a recommendation that 3(1)(b) and (c) be severed from the legislation. I agree with your characterization of these provisions to be reflective of a time that has come and gone, a paternalistic approach to management of the relationships within our communities.
She went on then to quote Mr. John Paul of the Atlantic Policy Conference, stating:
Imposing the will on a community externally has consequences. We have learned over the years that if anyone imposes their will upon communities, they are very negative about that kind of stuff.
Then she went on to quote Chief Jody Wilson-Raybould of the Assembly of First Nations, saying:
Unfortunately, the power set out in subclauses 3(1)(b) and (c) of this proposed bill . . . is actually an example of an inappropriate use of federal legislation, an inappropriate use of federal legislation I referred to at the First Nation-Crown gathering. These provisions essentially give the minister the ability to impose core governance rules on a First Nation, which, if ever used, would be resented by that First Nation, would not be seen as legitimate in the eyes of that nation, and would probably add fuel to an already burning fire.
Dr. Dyck then went on to quote the witness from the Canadian Bar Association, who stated that that clause should:
...explicitly exclude First Nations with self-government agreements and First Nations that are currently operating under customary systems of governance, unless their consent is obtained in accordance with either their customary practices or, in the absence thereof, by a double majority vote.
Witnesses from the Assembly of First Nations, she says, as well as the Assembly of Manitoba Chiefs and Chief Cook-Searson from Saskatchewan, all thought that paragraph 3(1)(b) should be deleted from the bill. The message was very clear: paragraph 3(1)(b) should be deleted because it is unacceptable practice in the 21st century and because without excluding the first nations operating under custom code elections, the bill goes beyond the scope of opt-in legislation for first nations under the Indian Act.
Dr. Dyck then went on to her second reason to delete the clause: its unconstitutionality.
She again quoted the witness from the Canadian Bar Association, who said that application of paragraph 3(1)(b) to first nations with customary systems of governance potentially infringes on constitutionally protected rights of self-governance. The witness stated:
Allowing the minister to prescribe a form of election for First Nations that currently operate in accordance with customary elections would represent a significant interference with protected rights of self-government.
She went on to quote the witness, who stated that:
The broad discretion afforded to the minister to include participating First Nations could then impact on constitutionally protected rights and international legal principles.
Dr. Dyck then went on:
In addition, while the government officials stated that the minister has ordered a new election only three times in First Nation elections in the last 10 years, and while they insisted that the minister would only do so in rare circumstances, such an action would be a continuation of archaic colonial practices and is completely contrary to the inherent right of First Nations to govern themselves.
She stated she felt that:
Granting such legislative power to the minister of AAND is particularly troublesome coming right after the Crown-First Nation accord in January, where National Chief Atleo urged the government to "re-invigorate the original relationships that were based on mutual recognition, sharing, and trust" and reset the agenda.
Dr. Dyck talked about the third reason to delete paragraph 3(1)(b), explaining again that new powers under the custom code first nations through this clause are unacceptable. She said:
There are 341 First Nations that operate under custom election codes. If Bill S-6 passes, the minister would be able to intervene in any protracted leadership disputes they may have, and such intervention would supersede the voluntary Custom Election Dispute Resolution Policy.
That is the policy that is now in practice.
Her fourth reason to delete paragraph 3(1)(b) was that:
...there are better ways to intervene in prolonged election disputes. AANDC witnesses stated it was necessary to order such First Nations to hold Bill S-6 type elections because in Indian Act elections there are no provisions defining election offences or setting penalties for such offences. However, this could be remedied simply by amending the Indian Act to contain the same provisions as in Bill S-6 that outline the offences and penalties. If the minister then orders an Indian Act election for a First Nation that operates under custom code, the Indian Act election would have the same offences and penalties as under Bill S-6.
The fifth reason Dr. Dyck cited was that:
...there is no guarantee that the minister will not use clause 3(1)(b) inappropriately. The department argues that First Nations can trust the minister not to use this clause inappropriately because the minister of AANDC has intervened only three times in the past 10 years; however, there is no guarantee that this will hold true in the future.
As we know, there is very little trust between first nations and the government at this time.
It is concerning to Dr. Dyck, as she has said:
For example, as pressure mounts to increase natural resource development on or near First Nation land, there is great potential for significant dissension, and as First Nation communities, provincial governments and private sector organizations try to negotiate agreements, there likely will be protracted leadership disputes in First Nation communities.
Her sixth reason was that it is simply not the right thing to do in the 21st century. I quote her closing. She said:
Honourable senators, please let us do the right thing, let us do the honourable thing: Let us pass an amendment to delete clause 3(1)(b). I outlined six reasons why we should do this. First Nations deserve our support in amending Bill S-6 to delete clause 3(1)(b). Please, honour their request.
Mr. Speaker, today I have the privilege of speaking in support of Bill . Before I start, I would note that I will be sharing my time with my colleague, the member for .
The bill we have before us today is the result of a comprehensive process of engagement that stretches back more than four years. I think that raises a question as to how fast we are trying to ram something through the House, when its birthdate was four years ago.
First nations community leaders and members across Canada have all had input on the bill. The engagement that took place over these years, led by first nations organizations with the support of the government, has allowed Bill to be inspired and developed, in large part by the people it would affect most, first nations community members.
It is the participation of first nations individuals and organizations that I would like to highlight today. In particular, I would mention the determination of the two first nations organizations, the Assembly of Manitoba Chiefs, under the leadership of former Grand Chief Ron Evans, and the Atlantic Policy Congress of First Nations Chiefs.
Individually at first, and then together with the support of Aboriginal Affairs and Northern Development Canada, the Assembly of Manitoba Chiefs and the Atlantic policy congress, this legislation evolved.
These organizations began their work in their home regions. Convinced of the need for electoral reform, they consulted at length with local leaders and communities. The quality and scope of regional consultations, and the similarity of their recommendations, encouraged the government to ask the Assembly of Manitoba Chiefs and the Atlantic policy congress to carry on the process and jointly lead a national engagement.
The aim of the Canada-wide effort was to share the recommendations of the Assembly of Manitoba Chiefs and the Atlantic policy congress and to seek the input and support of other first nation leaders and organizations across the country. With the support of Aboriginal Affairs and Northern Development Canada, the Assembly of Manitoba Chiefs focused its efforts in Saskatchewan, Alberta and British Columbia, while the Atlantic policy congress covered Ontario and Quebec.
If the opposition should question the extent of this engagement, l would suggest that they look no further than British Columbia. Former Grand Chief Ron Evans of the Assembly of Manitoba Chiefs, and his team, sat down first with the chief negotiators at the First Nations Summit in North Vancouver. The team then met with the Nuu-chah-nulth Tribal Council on Vancouver Island. They appeared before the British Columbia First Nations Summit assembly, and the Chiefs' Council of the union of British Columbia chiefs.
I would also add that the consultations undertaken by both the Assembly of Manitoba Chiefs and the Atlantic policy congress included more than just chiefs and band council leaders. From the very beginning, the Assembly of Manitoba Chiefs and the Atlantic policy congress reached out to individual band members across Canada. Their concern was not just with the steps in the engagement process that underpin the first nations elections act, but also the tools and mechanisms of engagement.
With dedicated modules on their respective websites, they outlined the recommendations and provided the reasoning behind each of them. With the addition of a simple feedback form, it was possible for individuals to express their ideas and thoughts about the initiative being proposed.
The government placed high value on this feedback during development of Bill . The first nations elections act is not only informed by engagement, it is a stellar example of the benefits of engagement. It is an example of how collaborative efforts among first nations people, their leaders, their representative organizations and the federal government can devise solutions and achieve common objectives. It demonstrates the clarity that emerges from an open and authentic sharing of ideas.
Consider the consensus that flowed from this national effort. First nations people and their communities across Canada identified the same weaknesses in the Indian Act election system. Both groups of individuals found, first of all, that two-year terms of office were not satisfactory. A loose nomination system was not good. A mail-in ballot system was open to abuse and no defined offences and penalties were in place at that time.
The recommendations presented to the department, in 2010, by the Assembly of Manitoba Chiefs and the Atlantic policy congress are astonishingly similar. As a result, there is widespread agreement on the path to an effective and meaningful electoral reform agreement, which is now before the chamber in the form of Bill . It is reform that would provide first nations with a solid legislative alternative to the Indian Act. It would create a truly democratic, open and transparent electoral system that would benefit first nations communities.
I also want to draw attention to the concurrent and complementary work of the Standing Senate Committee on Aboriginal Peoples. The committee's report, entitled “First Nations Elections: The Choice is Inherently Theirs”, is based on testimony delivered at approximately 20 public hearings in British Columbia, Manitoba and Ontario. These hearings ensured even greater opportunities for concerned citizens to weigh in on issues related to first nations electoral reform. In addition, these hearings and the committee's detailed report further legitimized the comprehensive process of enlightenment and engagement at the heart of the legislation.
Bill responds directly to a recommendation provided by the Senate committee and to several recommendations provided by the Assembly of Manitoba Chiefs and the Atlantic policy congress. It is informed by the feedback obtained from national engagement efforts. One noteworthy recommendation was for longer terms of office. With this longer term, first nations governments will be much more stable and better positioned, to not only work on their long-term plans, but to solidify other aspects of their governments as well.
Once the whole package is examined, I am sure the House will agree they can effectively hear and decide upon first nations elections as well. Indeed, the first nations elections act would honour the process by which it was created. It is legislation that results from a progressive electoral reform initiated to address weaknesses in the Indian Act and to bring modern governance to first nations.
Our government has brought forward this legislation as a legislative alternative, particularly for those first nations currently operating under the Indian Act It would allow them to hold elections under a legislative system that is strong and modern, and comparable to municipal, provincial and federal election systems in Canada. I commend the Assembly of Manitoba Chiefs and Atlantic policy congress for their efforts on behalf of all first nations communities, and for showing all Canadians how an open, collaborative and participatory process can help propel a matter as complex and fundamental to our democracy as electoral reform.
I am counting on all members of the House to show their support for the hard work of the Assembly of Manitoba Chiefs and the Atlantic policy congress by the adoption of Bill .
Mr. Speaker, it is a pleasure to rise on Bill . I thank my colleague from Palliser, who has done great work on behalf of first nations people throughout Canada over his years as a member of Parliament. He deserves to be commended for that.
When I was first elected in 2006, I was very fortunate to have been appointed parliamentary secretary to the department of Indian affairs, as it was known at that time. After receiving that appointment from the , and coming from Manitoba, I was tasked with many of the issues that face first nations people.
One of the first meetings I had in my office in Winnipeg was with Ron Evans, then first nations grand chief of the Assembly of Manitoba Chiefs. One of the first things to come out of his mouth at that meeting was in relation to these very topics we are talking about today. He said that he had a dream of seeing Manitoba and the entire country changed such that first nations electors could directly elect and do so in a common way on a common day. I was struck by his fervour for seeing a new system of electing first nations councillors and chiefs.
When I heard his message, I absolutely embraced it and immediately advocated taking his position to Ottawa to communicate it to then minister of Indian affairs, the Hon. Jim Prentice, and anyone else who would listen. I must say that Ron Evans did a great job communicating that philosophy.
When we look at the issues facing first nations in Manitoba and throughout the country, one of the core challenges is that upon someone becoming an elected councillor or chief, he or she is immediately faced with a very short electoral cycle.
As many of us will recall, when we were first elected in 2006, it was a minority Parliament. To become fully acquainted with all of the opportunities, roles and powers that come with being a member of Parliament requires time to become apprised of the role we are in. One of the challenges I think many of us found in the minority era was the fact that our electoral cycles were quite short and did not allow members to fully deliver on the roles they were given, because electoral politics became such a significant part of their day-to-day activities. One never knew when the next electoral event would happen.
That is the situation first nations chiefs and councillors face. They have a two-year cycle, which is very short. When they are first elected as councillors or chiefs, it takes them significant time to appreciate the finances and the files before the band. As they always have an eye on the next electoral event, they quickly realize that instead of chasing every file with the fervour they would like, they need to engage in the real politics of the role. No one should be blamed for that. It is just part of becoming an elected official.
It is very difficult to maintain the cohesion of a vision and actual policies within a two-year context. After two years, if they and their councils see a major change because of electoral results, there is a huge new process for having the entire council come together again with a collective vision to move forward for the community.
When former grand chief Ron Evans first brought this idea to me, it was definitely something I viewed as a historic change that should happen.
I am so proud that our and the parliamentary secretary have taken the time to craft this legislation on the basis of many of the recommendations the Assembly of Manitoba Chiefs first brought forward, not only in 2006-07, when it was more in the discussion phase, but at the 2008 grand assembly held just outside Grand Beach, Manitoba. I was fortunate enough to attend that meeting with a few other members of Parliament, including former Liberal member Tina Keeper, who is no longer in this House.
There was much support from all parties for those resolutions, which were passed unanimously by the Assembly of Manitoba Chiefs, which again, as many in this House know, represents a significant body of first nations in Canada. As the Treaty 1 through Treaty 8 first nations in Manitoba, they have a historic relationship with Canada as some of the first signatories to the important treaties that really helped develop western Canada. To have this specific body of chiefs speak with such unanimity on this issue really, in my opinion, gives a lot of force to the philosophy of what is being suggested.
Another element that I think probably gets less attention but is very important, at least to the original drafters of the concept, Ron Evans and the other chiefs and councillors who first recommended it, is a common election day. It would have a significant effect on the body politic in the jurisdiction. In this case, it was Manitoba.
The dream of Ron Evans was to have a single election day, which would allow both first nation and non-first nation people to appreciate the governance and the politics and the electability of first nation people. By having it on one day, it would become a significant event in Manitoba. There would be considerable attention and considerable media coverage. It was his dream that this would bridge some gaps that exist between first nation communities and non-first nation communities. A celebrated electoral event would bring more transparency to the process and would allow all Canadians, all Manitobans, in this case, to see in full public view the people who were being elected. He felt that this degree of transparency would lead to a real culture of governance improvement. If elections were not held in the dark days of February but rather were held on a common day, it would bring a greater degree of transparency to the entire process. It would be a simple change that would lead to better governance for all first nations.
I think the common day is something that is perhaps not given as much attention in this bill, but it is a significant innovation. Upon being embraced by first nations, I think it would lead to a greater degree of transparency. It would lead to the larger society embracing it as an actual legitimate governance structure, akin to municipal levels of government and provincial levels of government, because they would view it as something much like the election events people in this House take part in.
I am very hopeful that this bill will be a great first step, for those first nations that want to opt in, in delivering the type of transparent governance they believe their electors deserve.
Mr. Speaker, I am rising to speak to Bill .
Before I start, I would like to read from the United Nations Declaration on the Rights of Indigenous Peoples. In article 18, is says:
Indigenous peoples have the right to participate in decision-making in matters that would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
That particular section of the UN Declaration on the Rights of Indigenous Peoples is particularly important because, of course, what we are talking about today is how first nations elect their chiefs and council members.
I will turn for a moment to the legislative summary. It indicates that, “First Nations may choose to opt in to the new elections regime proposed under the legislation, or they may be brought under the new elections regime by ministerial order in some circumstances.”
I would agree with previous speakers that moving to a four-year term on an opt-in basis absolutely makes sense, but there are other elements of this legislation that first nations have spoken out against. If the government would entertain some amendments to this piece of legislation, I am sure we could all agree on how to move forward.
I would like to go back to the legislative summary:
According to Aboriginal Affairs and Northern Development Canada, 240 First Nations hold elections pursuant to the Indian Act, 341 First Nations conduct “custom” or community-based elections rather than elections under the Indian Act, and 36 First Nations select their leaders according to their self-government agreements.
This is an important point because of the fact that there are already a variety of ways by which first nations select their leadership.
The legislative summary notes that the Senate released a report entitled, “First Nations Elections: The Choice is Inherently Theirs” and says:
It indicated that the existing two-year term of office imposed on First Nations by the Indian Act is too short to provide political and economic stability, often creating deep divisions in communities. The report further noted that Indian Act election systems are often fraught with administrative difficulties and inconsistencies, resulting in frequent election appeals.
The legislative summary goes on to talk about the number of times attempts have been made to make reforms to the Indian Act around the elections process. It notes that:
Attempts to reform the Indian Act election system arise from growing First Nations dissatisfaction with the operation of the regime, including its administrative weaknesses, such as loose nomination procedures and a mail-in ballot system that is open to abuse.
Other substantive concerns with Indian Act elections relate to the degree of ministerial intervention, the lack of an adequate and autonomous appeals process and the absence of flexibility to set the terms of office and to determine the size of councils.
It is those points around the ministerial intervention and the autonomous appeals process that are sticking points in the current piece of legislation.
The summary goes on to talk about the fact that a number of recommendations arose as a result of the report of the Royal Commission on Aboriginal Peoples, and some of these recommendations that are not included in this piece of legislation are as follows, and this is from 1996:
With respect to elections, a key proposal was to develop community leadership selection systems and remove the application of the Indian Act as a preliminary measure to re-establishing traditional forms of leadership....To accomplish this, the following steps were suggested: community-level development of custom codes; community development of local dispute resolution procedures; the establishment of regional First Nations capacity and advisory bodies;
And so on.
Again, some of the elements that were recommended back in 1996 are not present or appropriately resourced under the current legislation. I mentioned earlier that one of the sticking points was under clause 3(1), which states that the minister may, by order, add a first nation to this schedule of first nations participating in the new election system.
Once again, I know that the former parliamentary secretary pointed out the fact that this power has been in place, but here we are reinforcing and reiterating that power once again. This is one point where first nations are saying to butt out. They should be able to have an appeals process internally to look at this. I will speak to this point in a little more detail later.
The other problem with this legislation is the regulations in clause 41. The clause provides for the Governor in Council to have broad and general powers to make regulations with respect to elections. Again, I will touch on this point a little later.
With regard to the support, initially we had the Assembly of Manitoba Chiefs and the Atlantic Policy Congress that were engaged in consultation around the development of the legislation. However, this is a pattern that we continue to see with the government. There are reports and recommendations from first nations, and then the government disregards some or all of those recommendations and reports.
This is the case in point. According to the legislative summary:
Opinions on the ensuing legislation are divided among First Nations organizations involved in the engagement process: while some support the new legislation, others do not view it as reflective of the report and recommendations.
Some First Nations leaders expressed strong support for Bill S-6. At the December 2011 announcement of the new legislation...the Atlantic Policy Congress, echoed the government's view that the Act will support sound governance and increase economic development in First Nations communities.
The current Grand Chief of the Assembly of Manitoba Chiefs, Derek Nepinak, however, has expressed strong opposition to Bill S-6. In a written statement, quoted in several media outlets on 7 December 2011, 37 Grand Chief Nepinak stated that the proposed legislation does not fulfill the recommendations put forth by the Assembly of Manitoba Chiefs, and represents an apparent “attempt by the Minister to expand governmental jurisdiction and control of the First Nations electoral processes that are created pursuant to the Indian Act or custom code.”
In particular, Grand Chief Nepinak has criticized the following features of Bill S-6: in certain circumstances, the Minister’s ability to bring First Nations under the legislation without their consent; the lack of a First Nations appeals process; and the conduct of draws to resolve tie votes in elections for band council chiefs and councillors.
There is not the kind of support that the government is touting. I want to turn to a legal opinion from December 29, 2011. This has been provided primarily to first nations using a customary election code or regulations, and this is the legal opinion, and this is why it is important for first nations that are currently under custom code:
Based on a preliminary review of the proposed legislation, Bill S-6 may offer an improvement over the existing Indian Act election provisions. However, for those First Nations that already operate under their own customary election codes or regulations, opting into the First Nations Elections Act would provide only marginal benefits and may in some instances be viewed as a step back in a First Nations pursuit of self-government.
While there may be specific provisions within Bill S-6 that a particular First Nation may find attractive (such as a four year election term), First Nations should consider amending their existing custom codes or regulations to incorporate any provisions of interest as opposed to opting into the First Nations Elections Act.
I mentioned earlier clause 41 and the concerns. What we saw with Bill , the safe drinking water for first nations act, was that bill was enabling legislation that laid out a process and some content for regulations.
Of course, what happened is that there is no meaningful provision for first nations to be involved in the development of regulations and the subsequent implementation of regulations. That is the same case in this legislation.
The legal brief says:
The Regulations—the Devil is in the Details
At this time, all that the Government has shared with First Nations are the provisions within Bill S-6. Section 41 of the Bill provides for the regulatory making powers of the Governor in Council. The Regulations to be passed include those dealing with the appointment, powers and duties of Electoral Officers, the certification (decertification) of Electoral Officers, who are electors, who and how candidates may be nominated, how voting is to be conducted, and the removal of a Chief or Councillor by way of a petition and anything else in the Act that requires regulation.
Those are pretty broad scopes of power under the regulations, and nowhere in Bill does it talk about how first nations will be included in that process. People are right to raise flags around that.
The brief goes on to say:
Ultimately, how attractive this legislation will be to any First Nation will depend greatly on what is, or is not included or provided for within the Regulations. However, it should be kept in mind that Regulations are designed and intended to be amended easily and quickly. Therefore, while a First Nation may opt into the First Nations Elections Act on the basis of what it considers to be attractive Regulations, there is no guarantee that the Governor in Council will not change these Regulations to something that a First Nation may find less appealing.
That is why when we had Bill before committee, New Democrats proposed that a clause be inserted that required regulations to come back before the House and referred to the appropriate committee, so there would be some parliamentary oversight. Otherwise, there would be no parliamentary oversight.
There is a precedent for it because in 2003 or 2004, the Quarantine Act had a clause that had the regulations come back before the appropriate committee.
Under the clause opting into the first nations election act, pursuant to section 3(1)(b), the minister may order a first nation to use the first nations elections act in circumstances where the minister is satisfied that a protracted leadership dispute has significantly compromised the governance of that first nation. What qualifies as leadership dispute in the first instance, let alone a protracted leadership dispute? There is no definition, no qualifiers around that.
Under what circumstances is there significantly compromised governance? This section is extremely subjective and at the sole discretion of the minister there is a potential that any first nation could be forced to use the first nations election act if chief and council cannot agree on issues such as budgets, funding, housing and so on, on what the minister may consider to be a timely basis.
On the opting out piece, opting out of the first nations election act, while it is simple for a first nation to be added to the first nations election act, being removed from its operation is a far more complex undertaking. To be removed from the act, a first nation must satisfy a number of specific requirements and the minister “may”, not “shall”, remove the first nation from the operations of the act.
The key requirement that must be satisfied includes establishing a new election code that is approved by a majority of the majority of the voters. The code must include amendment procedures and there can be no outstanding charges under the act against any member of the first nation. Even if these requirements are met, it still remains at the minister's discretion as to whether the transfer out of the act will be approved or not. Therefore, we again caution first nations already using a custom election code or regulation, their customary powers should be guarded and protected jealously since it may be difficult to regain these customary powers once a first nation opts into the first nations elections act.
I mentioned earlier the appeals procedure. When I quoted Article 18 of the UN Declaration on the Rights of Indigenous Peoples, it indicated that representatives needed to choose their own procedures as well as maintain their own indigenous decision-making institutions. The appeal procedure is problematic in this act.
Under sections 30 to 35 of the proposed legislation, there is only one way to appeal an election: apply to either the Federal Court of the court of Queen's bench for a review of the election. The only ground available to overturn an election is to prove that a provision of the legislation or regulations was contravened and the contravention was likely to affect the outcome of the election. Internal appeal mechanisms are not provided for.
Using the courts is a costly and time-consuming process. The legislation does not provide for funding of these appeals to the court. Therefore, only applicants who can afford to hire a lawyer are likely to pursue an appeal. Further, appeals to the courts can be time-consuming and may take months for an appeal to be dealt with. On a side note, we only have to look to what is going on currently with various alleged misdemeanours, or perhaps outright fraud, under the current Canada Elections Act and the amount of time it takes for that process to unfold. We are going to see the same kind of process when it comes to forcing first nations to resort to the courts in order to sort some of this out.
On the other hand, if the regulations are to provide that the first nations will fund appeals or if courts make a practice that all or most appeals will be funded or paid for by the first nations, significant expenses may be incurred by first nations following every election. Many, if not most, custom election codes or regulations provide for some form of internal appeal process that will allow first nations members to file and have heard an appeal or grievance in regard to an election, usually without the need to hire a legal counsel. These processes will allow for most members with a grievance to participate in the appeal process if so inclined.
Further, if an appeal is unsuccessful, the aggrieved member may still choose to pursue the matter to court. That is, most of the existing custom election codes and regulations provide or allow for both an internal appeal process and a court-driven appeal. The proposed legislation only provides for the courts to be the final arbiter of election disputes. That is an enormous problem. It would seem perfectly reasonable, and again I go back to the 1996 Royal Commission on Aboriginal Peoples report, that indicated dispute resolution mechanisms needed to be developed by the first nations themselves. It would seem a perfectly reasonable approach to take.
I referenced clause No. 41 earlier in my speech about the problem with having regulations developed essentially without input and without any oversight.
In addition, we proposed another amendment with regard to Bill , which would be an appropriate amendment for this legislation with regard to looking at whether there would be unintended consequences with legislation.
With respect to Bill , we proposed that within five years after the act came into force, a comprehensive review of the provisions and operations of the act and of the regulations made under this act would have to be undertaken by such committee of the Senate and of the House of Commons as may be designated and so on.
The purpose of having some sort of five year review would be to look at what was happening with the regulations and also to look at whether the act was achieving its intended objective.
We heard from other members who spoke in the House about the fact that the legislation would provide stability in the communities and add to economic development opportunities.
I was first elected in 2004 and was in constant election mode. I understand the challenges for chiefs and councils when they are in two year election terms. It is not a reasonable period of time to develop and implement an agenda and to look at some of the results of it. If the government had just stuck to the four year term in the legislation, we would have had no problems supporting the bill, but it had to stick in other mechanisms.
I want to turn briefly to testimony that was heard in the Senate with regard to objections to the bill, and I want to refer to Derek Nepinak, the grand chief of the Assembly of Manitoba Chiefs. I will read some of his testimony before the Senate. I have no idea how much time we will have when the bill gets to committee, because time allocation has become a way of doing business here. I do not even know if we will have time to have witnesses before committee. Chief Nepinak said:
Regarding clause 3(1)(a), we know already that the development of custom codes in our communities and the passages of them requires a double majority vote, meaning that we need to hold a referendum which includes a majority of the electors, as well as a majority passing the customary code. That double majority is reflective of the ability and willingness of our community members to participate in governance processes. I think that this bill undermines that somewhat in allowing a chief and council to move a resolution to opt into this new legislation. I think that is problematic because it excludes members of the community.
I have concern with respect to the phrase “protracted leadership dispute”. I am not quite sure what that means. I find the term overly ambiguous. It opens up a broader discretion for the minister to impose Bill S-6 on a community that might not otherwise wish to be part of the new legislation.
He goes on to outline a number of other clauses. Then he goes on to say:
Speaking broadly with respect to clauses 30 to 35 on contested elections, the chiefs in Manitoba supported the resolution to move forward in the discussion on the basis that we would discuss a process of tribunals or regional tribunals to engage the challenges resulting in our elections. I think it is fundamental to the self-determining efforts of communities to be able to engage their conflicts, be able to engage conflict, and to make difficult choices. I believe it is in the form of a tribunal...that...really come to the surface...the form of a decision-making body with authority—that our values and our systems of decision making...We can really show, and once again redevelop, those systems that were once there. I believe we need to be shown the respect and given the room to develop these tribunals so that we can adjudicate these matters within our systems. I believe that is a critical piece of the legislation that is missing.
I want to quote Ms. Cook-Searson, who also was before the Senate. She said:
I just wanted to comment on the question...One of my points was that we should have an independent First Nations electoral commission or a First Nations tribunal to settle any election disputes because it is afforded already for the federal government, the provincial governments. You have mechanisms in place where it is part of the regular part of democracy. If it is good for the federal government and the provincial governments, why is it not good for First Nations? Why not an option for a truly independent electoral commission? I do agree there will be disputes and you do need a mechanism to deal with them. However, rather than go through the minister or the cabinet or through the courts, we could have this independent First Nation electoral commission or First Nations tribunal to settle any election disputes.
Ms. Cook-Searson raises a really valid point. Elections Canada is doing its job currently about some allegations with respect to members of the House. Why do first nations not have access to the same kind of process?
I will end on that note. I hope the government will entertain some amendments to the legislation.