Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 13 - Evidence - March 6, 2012
OTTAWA, Tuesday, March 6, 2012
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-6, An Act respecting the election and term of office of chiefs and councilors of certain First Nations and the composition of council of those First Nations, met this day at 10:15 a.m. to give consideration to the bill.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples on CPAC or the web. I am Senator St. Germain from British Columbia, chair of the committee.
The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. Today we will be continuing our consideration of Bill S-6, An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations.
We have invited officials from Aboriginal Affairs and Northern Development Canada and from the Department of Justice to appear once again before the committee. The purpose of this is to clarify the effect of certain provisions that members have found over the course of the last few meetings to be somewhat ambiguous.
[Translation]
Before giving the floor to our witnesses, I would like to introduce the members of this committee who are here this morning.
[English]
On my left, we have Senator Sibbeston from the Northwest Territories. Next to Senator Sibbeston, we have Senator Lovelace Nicholas from New Brunswick. Next to her, we have the deputy chair of the committee, Senator Lillian Dyck from Saskatchewan. Next to her is Senator Moore from Nova Scotia. Next to him is Senator Munson from New Brunswick. On my right is Senator Vernon White from Ontario. Next to Senator White is Senator Plett from Manitoba. Next to Senator Plett is Senator Brazeau from Quebec. Next to Senator Brazeau is Senator Nancy Greene Raine from British Columbia. Last, but definitely not least, from the province of Quebec, Senator Demers.
Please join me now in welcoming our witnesses. From Aboriginal Affairs and Northern Development Canada we have Brenda Kustra, Director General, Governance Branch, Regional Operations Sector; and Marc Boivin, Manager, Governance Policy Directorate. With them is their colleague from the Department of Justice, Tom Vincent, Counsel.
Witnesses, the clerk provided your office with a list of questions that members would like answered. I would like to ask that you begin your presentations by addressing these concerns. If you are prepared to do so, it would be greatly appreciated on behalf of the committee.
Without further ado, go ahead, Ms. Kustra.
Brenda Kustra, Director General, Governance Branch, Regional Operations Sector, Aboriginal Affairs and Northern Development Canada: Thank you very much, Senator St. Germain. It is once again a pleasure to be in the company of the Standing Senate Committee on Aboriginal Peoples to address some of the issues and concerns that have been raised by witnesses who have attended this committee. I would like to thank you for providing those questions to us.
The first thing I would like to address this morning is the false interpretation that Bill S-6 could be applied to self- governing First Nations. This is absolutely not the case, and I am pleased to provide an explanation as to why.
The introductory paragraph of clause 3 of Bill S-6 states that "The Minister may. . . add the name of a First Nation to the schedule" and then provides the conditions under which this can take place. From here I point you to the definition of "First Nation," which is found in clause 2 of the bill, and it is very clear:
"First Nation" has the meaning assigned by the definition of "band" in subsection 2(1) of the Indian Act.
Therefore, only First Nations that are bands under the Indian Act can be added to the schedule. Once a First Nation becomes self-governing under a legislated agreement, it ceases to be a band under the Indian Act, which means that it cannot be added to the schedule under Bill S-6. I hope this explanation is clear.
Senator Moore: Mr. Chair, that was very important. Could I ask the witness to repeat that? It is a very important issue. Could you just run through that again in terms of the act and the sections?
Ms. Kustra: Yes, absolutely. The introductory paragraph of clause 3 states that "The Minister may . . . add the name of a First Nation to the schedule," and it then provides the conditions under which this can happen.
From here, I point you to the definition of "First Nation," which is found at clause 2 of the bill. Clause 2 of the bill says:
"First Nation" has the meaning assigned by the definition of "band" in subsection 2(1) of the Indian Act.
Therefore, only First Nations that are bands under the Indian Act can be added to the schedule. Once a First Nation becomes self-governing under a legislated agreement, it ceases to be a band under the Indian Act, which means that it cannot be added to the schedule under Bill S-6.
The Chair: I think we will deviate slightly, if the witnesses are prepared. If there is something that comes up while we are dealing with these items, we will deal with them immediately, if everybody is in agreement. We will be more flexible. Generally, we get the presentation and then we ask questions. If something does come up that you feel should be responded to at the moment, feel free to say something.
Senator Lovelace Nicholas: Could I ask a question now?
The Chair: On this?
Senator Lovelace Nicholas: Yes.
The Chair: Yes, as long as it is on the subject that we are dealing with. Go ahead.
Senator Lovelace Nicholas: Yes, it is.
Welcome and thank you for your presentation. I am a little confused. Can the minister add a name — we are talking about elections, right? At the time that he could add a name? No? Okay, thank you.
The Chair: All right. Carry on, then.
Senator Dyck: Does that exclude custom code elections, too?
Ms. Kustra: No, it does not because the communities that elect their leadership under a community custom code are still considered Indian bands within the meaning of the Indian Act.
Senator Dyck: What about those who have a hereditary system?
Ms. Kustra: The same holds true for those communities that would recognize their leaders under the hereditary system, with the exception of those that are self-governing and use a hereditary system for their leadership selection.
The second issue I would like to comment on this morning relates to clauses 3(1)(b) and (c). A number of witnesses have recommended that these clauses be struck from the bill. I would like to provide you with some rationale as to why these clauses were included in the provisions of the bill.
Clause 3(1)(b) provides a mechanism to restore leadership in a community in rare and exceptional circumstances where governance has completely broken down and where any progress whatsoever on important issues cannot be made over a period of time.
A similar power for the minister to order the holding of a legislated election currently exists under the Indian Act. In the Indian Act, the power afforded the minister reads as follows: "Whenever he deems it advisable for the good government of a band." To the best of the department's knowledge, this power has only been exercised three times in the last 10 years for the purposes of addressing governance disputes. In each case, the minister exercised this power after all reasonable efforts to reach a community-based resolution had been exhausted.
In these three cases, the department encouraged the factions in the communities to work collaboratively towards a resolution that would allow for the election of a government supported by the community. Resources were also made available for mediation. Despite repeated efforts, and in some instances efforts over many years, the situation in the community continued to deteriorate. Eventually, the only option available to the minister was to order an election under the Indian Act. In each case, this allowed the community to select its leadership under a clear election system. The subsequent government elected was then able to take charge of the important matters of governing the community.
If clause 3(1)(b) were removed from Bill S-6 and a similar situation were to arise, the minister would still be able to order the holding of an election under the Indian Act. However, that would be in an election system, which I believe we all agree, is much weaker than the system being proposed under Bill S-6. Where there is a governance breakdown in a community, it is believed that the community should have access to the best available legislative framework for elections. That is not the Indian Act, but it is Bill S-6.
In qualifying the conditions to be a protracted leadership dispute that has significantly compromised governance, the breadth of the minister's power is more precisely defined in Bill S-6 than it is in the Indian Act.
As I mentioned earlier, the Indian Act simply states that the minister may order an election if he deems it advisable for the good government of a band. The wording is certainly much more subjective than that in Bill S-6.
The committee has also heard that a healthy debate and disagreement within a First Nations government could constitute a protracted leadership dispute. The types of disputes that would qualify under this wording are those where competing factions in the community claim to be the legitimate government, causing the Government of Canada, the provinces, the private sector and community members themselves not to know who the legitimate leaders of the First Nation really are. In some instances, such governance issues are expeditiously resolved in the courts. We are talking about governance disputes that generally drag on and on and where the parties are unable or unwilling to end their dispute.
Those are my comments on clause 3(1)(b). Are there any questions before I go on to 3(1)(c)?
Senator Dyck: You say this has occurred only three times. In those instances within the last three years, is there evidence that shows that the minister's intervention has actually improved the situation? For instance, I think Barrier Lake was one that was perhaps in the three. Has that made a significant difference?
Ms. Kustra: The three times that the minister's power has been used were actually in the last ten years, senator, not just in the last three, so it is over a ten-year period that the minister has exercised this power three times.
In the situation in Dakota Tipi First Nation in Manitoba, this is a First Nation where I will use the word "selected" its leadership through a hereditary system. There were never any elections in the community. The leadership was passed on through a hereditary system. The governance situation in the community deteriorated to the point where safety and security for community members were very much in issue. There were extensive discussions with the hereditary chief around different options and opportunities to actually create some kind of a written "leadership" system so that all of the people in the community would understand how the community was operating. The community attempted to develop a leadership code; however, it was never finalized in the community. The community, since 2002, when they were brought under the Indian Act, has conducted elections every two years. As we all know, elections are not without their difficulties. However, since 2002, we are not aware of safety and security concerns in the community, which were really the issue at the time leading up to the minister's decision in 2002.
The Sandy Bay community in Manitoba experienced significant issues around corruption and bribery in conjunction with the elections that were held under their own custom election rules. Again, after a fairly substantive period of attempting to have the community come to grips with the issues they were dealing with and develop a robust community election code that would deal with these issues, the minister eventually issued an order in March of 2003. Again, the community has been conducting elections every two years since 2003.
In Barrier Lake, the community that you referred to, senator, the ministerial order was issued in April 2010 after almost 15 years of work with the community in trying to resolve the governance disputes at the community level. The factions in the community have gone to court, challenging the minister's decision to exercise his authority to bring them under the Indian Act. That issue is not yet resolved.
Senator Dyck: You say Barrier Lake has taken the minister to court. Could that also apply to the provision in Bill S- 6? If he were to order another First Nation to come under Bill S-6, could that First Nation then take the minister to court?
Ms. Kustra: Generally speaking, ministerial decisions are subject to judicial review.
Senator Raine: I was going to ask if you could put in paragraph (b) that "the minister is satisfied that, in rare and exceptional circumstances," but I understand that is not necessary to be in the bill because it is a fact. I am happy with the way it is. Thank you.
Senator Sibbeston: Interestingly, Mr. Chair, AFN and the Manitoba Assembly of Chiefs and also the bar associations suggested that (3)(b) and (c) be deleted. We have a certain amount of people that are aware of the situation and think it is not appropriate for the minister to have those powers. The suggestion is to simply delete them or put some kind of restriction on the minister. The minister is still seeking some democratic resolution before he acts, and so that is the suggestion.
You can understand that people out there do not want anything to do with the minister. That is the whole process of First Nations wanting to be independent and free of the minister. While this is a very progressive piece of legislation, we have a provision here where the minister then is going to have a hand in matters where there is a situation. Could there not be some restriction on the minister? Even though there is a protracted dispute, in the attempt to resolve it democratically and in an attempt to not have a federal minister involved, could we have some kind of provision in there which still would make it possible for there to be a democratic community resolution to the issue before the minister acts? That is the issue. Can it not be done? Cannot some way be found? You guys are working for Indian Affairs. You want power. You want the minister. You want your minister to have a lasting hand in the affairs of First Nations, but we are on the other side, saying, "Free the people." The people want to be free, as it were.
Ms. Kustra: Thank you for your question, Senator Sibbeston. I believe when the minister was here he indicated that in fact his objective is very much to remove his involvement in the day-to-day affairs of First Nation communities, and particularly with respect to the setting aside of elections. I believe he expressed his views that he did not want to be in the situation of advising a chief and council that they were no longer the legitimate, elected leaders in a community.
The power, if you will, that the minister has under Bill S-6 is, in fact, much narrower in its implementation than it is in the Indian Act. It is not a new power for the minister. It is the same authority that the minister can exercise under the Indian Act. However, in thinking about this provision, senator, it did not make sense to bring a community that is already embroiled in governance disputes that are not resolvable into a system that I think we have all agreed is an inferior election system. That is why Bill S-6 is before the committee today, because it is a much stronger, robust election system.
It was felt that if the minister was going to exercise this power on rare occasions, he should bring the community with all of these governance issues into a robust piece of legislation as opposed to what I would call the broken Indian Act situation.
With respect to the words "protracted leadership dispute has significantly compromised governance," every effort will be made to have these issues resolved at the community, as it has in the past. We have dealt with many communities where, in fact, they have resolved their issues and it has not come to one of the three cases in the last 10 years that I referred to.
Senator Sibbeston: That is not the issue. Every one of us are in favour of Bill S-6. It gives First Nations a better election process. We are all in favour of that.
There is, however, in (3)(b) and (c) a lingering power given to the minister to step in. Like I said, First Nations want to be free; they want to have self-government; they want to be totally free of the minister. However, you are insisting that the minister still have a hand. You want to be the paternalistic kind of godfather that is going to settle disputes for First Nations. We are saying, "No, let the people be free; let them decide for themselves." Even if it is protracted, find a democratic way to resolve the issue rather than the minister coming in with a heavy hand.
It will be you deciding what the solution is, not the minister. It will be you who advises the minister. Give up your power. Find a way for the people to democratically resolve their concerns. That is the issue. Can you help us in that regard?
Ms. Kustra: If I may, I believe that every effort would have been made to find a democratic solution at the community level before the exercise of the minister's power.
As I say, the minister still retains that power under the Indian Act, so even if this clause were not in Bill S-6, the minister still has the authority under the Indian Act to bring a First Nation into a federal piece of legislation where governance disputes have disrupted the ability of the government to continue its work.
Senator Sibbeston: Maybe we should repeal that section as well and get the minister out of the picture completely.
Senator Brazeau: You mentioned that the minister used his powers to intervene in band elections three times in the last decade. Can you clarify if those powers were exercised with bands who conducted their elections under section 74 or custom?
Ms. Kustra: The Dakota Tipi First Nation selected its leaders through a hereditary system, so they were not under the Indian Act. Barrier Lake was a community that operated under a community custom, so they were not under section 74. Sandy Bay also elected its leadership under a community custom.
Senator Brazeau: The reason I ask the question, and you can correct me if I am wrong, is that it my understanding that for those bands who currently conduct their elections under section 74, there have not been many instances of corrupt elections. In fact, it is those bands who conduct their elections through custom that have been challenged with some issues because in some cases their custom is not written and it is not known to the members. In other cases, those codes are not Charter compliant.
Therefore, this legislation in fact does not really affect those bands who conduct their elections through custom. We are trying to improve section 74 elections, but we are still not dealing with the bands who select their leaders through custom because it does not really affect them, I suppose unless they opt in. I am also presuming that the reason they opted out of section 74 towards a custom election is so they are not under the rules of section 74 of the Indian Act.
Ms. Kustra: You are absolutely right, Senator Brazeau. This act does not apply to elections under any kind of community custom. Those will continue with their existing process.
You are also correct that communities that currently operate under a community custom can opt in to this legislation. Many communities who opted out of the Indian Act did so in order to extend their term of office, for one thing. Also, as you correctly indicate, they opted out in order to operate outside of the authority of the Minister of Aboriginal Affairs and Northern Development Canada.
There are, however, situations where elections under the Indian Act have been set aside because of corrupt practice. There are those occurrences, so it is not only something that we find in custom election systems.
Senator Brazeau: Would we be able to have an indication of how many elections have been set aside? If you do not have the answer, that is fine, but I would certainly like to know.
One perhaps quick final point, would you not agree that the minister's powers are greater in terms of intervening in elections under section 74, even including Bill S-6 vis-à-vis the minister's powers in intervening in custom elections?
Ms. Kustra: I will ask if Mr. Boivin has the answer to the number of communities where we have set aside an election for corrupt practice.
Marc Boivin, Manager, Governance Policy Directorate, Aboriginal Affairs and Northern Development Canada: Reaching back to about 2005, we probably had close to 40 set-asides under Indian Act elections. About 70 per cent of those were for corrupt practices. The others are technical issues. Those are the numbers.
Ms. Kustra: With respect to the minister's power, once a First Nation moves out of the Indian Act into a community custom, there is essentially no role for the minister in custom election disputes. However, as I indicated when I spoke about the three situations, the minister and the department did take a role in terms of trying to facilitate the work at the community level to come up with a solution to their issues before the minister exercised his power.
On a regular basis, when there is a dispute in a community who selects its leadership under custom, that is dealt with according to the dispute resolution mechanism, which is either in the code, or it would be referred to the courts.
Senator Brazeau: Is it not fair to say, then, that aside from increasing the terms of office from two years to four years under Bill S-6, that we are not really trying to fix what is broken? If section 74 elections are going fairly well where there have not been too many issues, we are trying to fix something that is not broken and we are turning a blind eye to where there are real problems in terms of elections that exist, and those are bands that conduct their elections through custom.
Ms. Kustra: There are a number of weaknesses in the Indian Act that are dealt with in Bill S-6. In addition to the four-year term of office, there is also the description of "corrupt practice" and the identification of offences and penalties, which is totally absent in the Indian Act.
There are also provisions related to the fact that an individual can only run for one office; you cannot run for chief and councillor position at the same time.
Also, there are rules around the nomination for candidates. I believe in the minister's address to the committee, he indicated that in some situations people are nominated, they do not even know they are nominated, their name is on a ballot, they get elected and they do not even want to run. Some of those issues are being clearly identified in Bill S-6 as a way to strengthen the election system in First Nations communities.
Senator Brazeau: I guess my point is that because more than 50 per cent of the bands conduct their elections under their custom, we are turning a blind eye. Even if Bill S-6 is passed, it means that we are turning a blind eye to what the majority of First Nations are doing in terms of elections because they can essentially continue what they are doing today. Bill S-6 will not affect them.
The Chair: I would like a short response, Ms. Kustra, please, because we have to get to 3(1)(c) as well. At the rate we are going, we are not going to make it. I have Senators Dyck, Moore, Demers, and Lovelace Nicholas on the list on 3(1)(b). Maybe we need more time at a different meeting. If we are going to try to get through this, we have to restrict. I should set the example and keep quiet.
Ms. Kustra: Briefly, Bill S-6 does not address communities that operate under community custom.
The Chair: Senator Dyck, a short question, please.
Senator Dyck: Oh, a short question. This is really an important issue.
The Chair: Long answer.
Senator Dyck: We were talking about two custom code First Nations that the minister has intervened with, but, in fact, there are probably about 340 or 350 First Nations that operate under custom codes. I think that is not a bad record.
You say in your presentation that if clause 3(1)(b) were removed, the minister would still be able to order an election held under the Indian Act, which would be a two-year cycle. From what you presented this morning, there are a couple of communities that have been placed under Indian Act elections in 2002 and 2003, and, by the sound of it, they are doing well. I do not see why the minister just cannot continue to exercise his powers to place them under an Indian Act provision, since they are operating well after that act and since it will only take, if it remains the same, a band council resolution for that First Nation to then opt into Bill S-6. It is not a big deal for them to decide themselves that they want to go to Bill S-6. It would seem to me, from the perspective of the First Nation having problems, that if they were put under the Indian Act and they wanted to go to a four-year cycle instead of two, then the chief and council can pass a BCR and they can do it. Why would the minister then intervene and sort of create this tension of taking away the power from the First Nation to make its own decisions as to which way they go?
Ms. Kustra: A short answer is that in a situation where we have this substantial leadership dispute at the community level, it is probably unlikely that you could actually get a BCR passed in the community to make that request because of the various factions in the community that cannot agree on anything. It is not likely they will be able to agree on an instrument to ask the minister to make the change.
The Chair: BCR?
Ms. Kustra: Band council resolution.
Senator Dyck: If they are operating well enough under the two-year provision, I do not see why we would want to put them to four. I do not see the rationale.
The Chair: I think Ms. Kustra has answered that. Have you any further comment?
Ms. Kustra: No, I do not.
The Chair: Senator Dyck, are you okay?
Senator Dyck: Yes.
Senator Moore: Thank you, witnesses, for being here. I want to follow up on Senator Sibbeston's question about finding another way to handle disputes coming out of elections. I want to refer to the comment made last week by Grand Chief Derek Nepinak of the Assembly of Manitoba chiefs. He said he prefers that an independent First Nations elections agency or tribunal be established to oversee disputes and sort out appeals. To me, that sounds pretty reasonable. It removes the minister, which was a concern of Senator Sibbeston and the First Nations peoples. Have you considered that? What is your response to that suggestion?
Ms. Kustra: The idea of an election commission or a tribunal was considered when this particular piece of legislation was drafted. However, any investigation or "decision" that could potentially be reached by a commission would still be referred to the courts and subject to appeal in the courts. It would not be a final, authoritative body that could actually set aside an election if there was corrupt practice. They would be able to investigate, but a final proclamation, if you will, in terms of the status of an election, would still have to be referred to the courts.
Senator Moore: That is no different than in a non-Aboriginal election.
Ms. Kustra: That is correct.
Senator Moore: Why, then, would they be treated any differently? Why would they not have the same opportunity?
Ms. Kustra: It is basically going directly to the courts rather than creating a middleman, essentially, in the system of reviewing election appeals and rendering decisions with respect to elections conducted under Bill S-6.
Senator Moore: It is not satisfactory, but I do not think that is a good answer.
Senator Sibbeston: We had this argument the other night about tribunals and commissions. The argument is: Why have such a tribunal? Invariably, decisions will go from there to a court anyway. That is a fallacy. Tribunals do work. In fact, under your legislation, you have the First Nations Tax Commission and the First Nations Land Advisory Board, and also, under the specific claims, you have provisions for tribunals. For you to say that they are not going to work because it invariably ends up in court is not true. That is a lie. That is a fallacy.
The Chair: I would urge the members of the committee to be more selective in their words, please.
Senator Sibbeston: Tribunals do work. They can be challenged on jurisdiction, procedure, and things of that sort, but on the merit of a decision, the decision stands. For you to tell us here that you disregard it — you reject it — because of the fact that it ends up in court, I do not think you are being fair in describing that alternative because it works. Throughout our whole country, we have tribunals and commissions that work.
Ms. Kustra: If I may, I will make a couple of comments with respect to a commission. There are a number of ways to approach this.
Bill S-6 includes details of offences and penalties, which is one of the areas where we have the majority of election appeals. These are documented reasons for elections to be appealed, with various corrupt practices, et cetera. When there is a corrupt practice, according to the act and the provisions of this legislation, a finding of corrupt practice would be made by the legal system.
Another factor that I would ask the senator to consider is the fact that this is optional legislation. We really do not know how many First Nations are going to opt in. It could be 20, 30, or 200. We do not really know. In thinking about the operation of the act, we would be looking at the potential of establishing a commission or a tribunal that would potentially deal with an unknown number of participating First Nations, at least very early on in the operation of the legislation.
With elections occurring only every four years, elections would be subject to appeal only every four years. That has to be taken into consideration also in terms of the kind of mechanism that one might put in place to deal with offences, penalties and challenges to the legislation.
Senator Dyck: I want to continue with the same line of thinking. In your presentation you said that when the minister intervened in the last 10 years, he made every effort to have the community reach a community-based resolution and to have communities work collaboratively toward a resolution. It would seem to me that the way to do this would be to have an appeal process within the community in order for that to happen. The minister is saying he wants the community to resolve it, and yet you are saying, "We do not want an election appeals process because it is up to the courts anyway." It seems like we are telling two different stories with the same information.
Ms. Kustra: We have to be aware that we are talking about different processes. We are talking about a process in legislation through Bill S-6. In the world of community custom, we are talking about local community processes that the community has developed to resolve issues within their customized community election system. It is not one system that everyone is operating in. There could be, as Senator Brazeau indicated, over 300 individual community systems in place. Local dispute resolution mechanisms have been designed specifically to deal with the circumstances in that community.
The Chair: Is it not correct that this would become a money bill if we had established a tribunal or a commission?
Ms. Kustra: My understanding is that the creation of an institution within this proposed legislation would require resources. However, you are asking a procedural question, which I am not actually qualified to comment on.
The Chair: Following two more questioners, we will go to clause 3(1)(c), if we can. I am prepared to work with the committee, whichever way we see fit.
Senator Demers: By no means am I trying to create animosity; I just want an answer to this.
With respect, Senator Sibbeston, we are talking about eliminating the minister. For the two and a half years I have been here, people from First Nations who have sat before us have talked a lot about accountability. Is not the role of the minister to be able to work with those people for accountability and to compromise certainly in a democratic way? Is not the role of the minister to be able to ensure that there is no foul play, or whatever we call it? Do we not need the minister in that role?
Ms. Kustra: Thank you for the question, Senator Demers. Absolutely, the minister and the department make every effort to get issues resolved at the local level before the authority of the minister to substantially change the election system is put in place.
Senator Lovelace Nicholas: Under Bill S-6, once the chief and council are found under fraudulent elections, will they be able to run in an election under this proposed legislation?
Mr. Boivin: There are certain offences in Bill S-6 that carry penalties of not being able to run for a period of five years, which is an automatic penalty. An example of one of those offences is the buying of mail-in ballots. If a candidate specifically is found guilty, the automatic suspension happens. Of course, the chief or the councillor would have been a candidate. There is no discretion for the judge when there is a finding of guilty of mail-in ballots because that automatically means a five-year suspension.
Senator Lovelace Nicholas: In case it goes to court because they are not satisfied with how the minister intervened, would it not be a financial strain on the First Nations community?
Mr. Boivin: For the offences sections, it is complaints with law enforcement and the Crown would pursue the case. Individuals do not have to go to court and ensue a court action on the offences and penalties provisions.
The Chair: I believe there are still questions to be answered on the practicality aspect of a tribunal. If no one decides to opt into this under Bill S-6, theoretically a commission just sits there. That is another aspect to the whole thing.
Ms. Kustra, please proceed with 3(1)(c)?
Ms. Kustra: The power afforded the minister under clause 3(1)(c) would apply to First Nations who already hold their elections under the Indian Act and only when their election has been set aside for corrupt practice. When a First Nation has experienced an election where corrupt practice has taken place, it only makes sense to move that First Nation into an election system where corrupt practice would be subject to prosecution and penalty, thereby being a deterrent to repeat offences.
The Chair: Are there any questions or comments?
Senator Dyck: For clarification, if a First Nation experienced corrupt practices and the persons charged were taken to court, what would the penalties be? Would they be similar to this or worse than this?
Mr. Boivin: The offence and penalties provisions in Bill S-6 were modelled a great deal after the Canada Elections Act. Not to get too technical, there are two levels of offences: summary and indictable. Some of them are choice of the Crown on how to proceed in prosecution. The maximum penalty on the indictable offences is five years in prison and, I believe, a fine of $5,000. Summary offences get two years in prison and, I believe, a fine of $1,000.
Senator Dyck: The penalties would be similar.
Mr. Boivin: Yes. Some of the offences mirror the offences under the Canada Elections Act and have the exact same penalties. Some were tweaked a little to suit the First Nations context. The standard we applied when drafting the bill was to ensure comparability between an offence under the Canada Elections Act and a penalty in Bill S-6.
Senator Dyck: I am not sure why the deterrent would be greater under Bill S-6 if the penalties are similar under Bill S-6, custom code and the Indian Act.
Mr. Boivin: The point is that there are no penalties under the Indian Act. Of course, Ms. Kustra explained custom codes.
Senator Dyck: If they go to court, the penalties would be there. Cannot a First Nation under the Indian Act take their chief or councillor to court, which would assign a penalty? Surely that must happen. Otherwise, we are not living in a democracy.
Tom Vincent, Counsel, Department of Justice Canada: In fact, the Canada Election Act provisions do not apply to First Nations elections either under the custom provisions or under the Indian Act. We are left with perhaps a couple of vague fraud charges that would be possible under the Criminal Code of Canada, but there is nothing specific to election offences.
Senator Dyck: There must be some penalties, nonetheless, under the court system. Are you saying there is nothing?
Mr. Vincent: There is no offence in law for buying or selling a mail-in ballot. The big advantage of Bill S-6 is that there would be.
The Chair: We go into the commission or tribunal section now, which we have already discussed. Ms. Kustra, please proceed as you wish at this stage.
Ms. Kustra: We have dealt with those issues, Mr. Chair, so I would like to move on to some issues around clause 42, the level of support for opting in and out of the legislation.
As the committee has heard, the requirement of a First Nation to obtain a double majority in a secret ballot vote presents a higher threshold for opting out of the legislation than for opting in. Because Bill S-6 does not fundamentally change how a First Nation elects its leaders — it is going from one piece of legislation to another piece of federal legislation — a band council resolution is an appropriate mechanism for opting in and has received support from First Nations leaders and communities.
Opting out represents a fundamental change that could potentially be made to a First Nation's election system, changes that this new election law does not make over the Indian Act election system. Examples of such changes include providing additional qualifications for candidates; altering band council frameworks to include proportional representation for families, clans or elders; providing appropriate criteria for removal from office; and the removal altogether of the rigour and assurances that a legislative framework for elections provides. Because of this potentially more dramatic shift, the referendum mechanism provides assurance to the minister of strong community support before a shift in election system away from federal legislation into community custom is made.
It has often been said that one of the weaknesses of the Indian Act election system is the mail-in ballot system. As we have all heard, it is open to abuse. Bill S-6 addresses the mail-in ballot system in two ways, first through offences and penalties. Under this bill, as Mr. Boivin has indicated, buying a mail-in ballot is punishable by up to five years in prison, and anyone who sells these ballots can be sentenced to up to two years in prison. Upon conviction of some offences, candidates will be banned from running for a five-year period. This will go a long way in discouraging these corrupt practices.
Bill S-6 also provides for the development of new election regulations. When these regulations are being drafted, we will certainly be looking at how to build better safeguards for the distribution and return of mail-in ballots. For example, the number of ballots in circulation could be greatly reduced by only mailing them out upon request.
We would develop these regulations in concert with First Nations partners. We have already approached the Atlantic Policy Congress of Chiefs to work with us in the development of these regulations.
The Chair: Thank you.
Ms. Kustra, some members of the committee are concerned about the paternalistic aspect of clauses 3(b) and (c). I think everyone believes Minister Duncan when he says that it would only be used in rare occasions. Having sat on this committee off and on for the last 19 years, the fear of abuse of the measure by a minister in the future is a concern. Various groups came forward to get legislation that would allow for longer terms and a certain amount of enforceability, which Bill S-6 provides. I think the only area of concern is the possibility of paternalism contained in clauses 3(b) and (c).
I personally believe that if the bill could be changed to mitigate or eliminate ministerial discretionary power it would be advantageous to many First Nations across the country. However, to be fair, the congress from the East Coast is prepared to accept the bill as it is, as others may be.
We will proceed with this legislation as expeditiously as possible. Colleagues, it is my intention to try to deal with it at our meeting tomorrow night. We will hear from the Auditor General tomorrow on ATR.
Senator Brazeau, do you have a question for the witness?
Senator Brazeau: With respect to opting in, you mentioned that a band council resolution is the best way to do that. I will not debate whether that is true, but hypothetically after this bill is passed a band chief and council can pass a resolution to increase their terms of office without any secured buy-in from community members. I believe that it is always important to protect the rights and interests of community members all across the country.
Band referendums occur on a wide variety of issues. In my own experience, I have been involved in a few that dealt with land claims and other issues to ensure that there was buy-in from community members.
Would you not agree that the best way to avoid future problems pitting community members against leadership or leadership against leadership in the future would be to have referendums with a simple majority win in order for communities to opt in to this legislation?
Ms. Kustra: The proposal for the mechanism to opt in was put forward by the Atlantic Policy Congress of Chiefs, who felt that it was the most appropriate mechanism to use. I think that many First Nations chiefs and council will go to their community before passing a band council resolution.
In terms of the actual operation of the act, perhaps the band council resolution should include some demonstration of community support. That may not necessarily be a referendum, because that is separate and apart, but in coming forward with a band council resolution the chief and council may wish to signal to the minister some kind of community process that they have used.
Senator Brazeau: Bill S-6 does not contain any process to ensure that band chiefs and councils will go to their membership to get that buy-in. You also mentioned in your presentation that many leaders and communities have endorsed Bill S-6. Can you tell us exactly how many?
We did have witnesses before who said that community consultations have been held but were not in a position to offer any numbers with respect to participants and how many meetings took place within those community consultations, to get a fair number in front of us to ensure that in fact community members who do support this are in fact behind this.
Ms. Kustra: With respect to the process that took place in Manitoba under the leadership of the former Grand Chief Ron Evans, the chiefs and communities were involved in a discussion about the content of some potential new legislation. Similarly, in Atlantic Canada, the Atlantic Policy Congress of First Nations Chiefs did a fair bit of work in their community in providing information and opportunity for input to all of the communities in their region. In addition, the Atlantic Policy Congress and the Assembly of Manitoba Chiefs split up the country and went across country, and those leaders presented at various forums in the various provinces.
We do have a list of entities that received presentations throughout the process, Senator Brazeau. In terms of the actual numbers of people who participated in those forums, we did not collect those numbers nor did, I believe, the organizations that were leading the discussion. However, presentations were made to the Native Women's Association of Canada, band and finance managers of Ontario, chiefs of Ontario, the Nuu-Chah-Nulth tribal council in B.C., B.C. treaty negotiators, B.C. First Nations Summit, Assembly of Treaty Chiefs of Treaties 6, 7 and 8 in Alberta, B.C. Assembly of First Nations, the Union of B.C. Indian Chiefs, the Assembly of First Nations policy forum, the Aboriginal Financial Officers Association national forum; and as well, the meetings that actually took place in the Atlantic region and in Manitoba region.
Senator Brazeau: I believe we are almost out of time. I know how the process works, obviously. I know those who receive funding to hold those information sessions or discussions had to report back to your unit, as far as I know. Can you tell us with certainty, because again I am assuming that they had to report back to you, that it is a fact that community members who participated in these sessions support this piece of legislation or is this information that was provided to you by chiefs and councils who participated in these meetings?
Ms. Kustra: The reports that we received were based on the specific activities that were conducted. Some were conducted where community members were present. Some were in various forums that would have been a cross-section of community people.
Senator Brazeau: I do not mean to interrupt, but you said earlier that you had no idea of how many participants actually took part in these meetings. If we do not have an indication of how many participants, how do we know for a fact that, indeed, community members support this piece of legislation?
Ms. Kustra: We have reports that came in from the organizations that were funded to undertake this engagement strategy across the country.
Senator Brazeau: You do not have the number of participants who did take part and support it?
Ms. Kustra: No, that was not one of the pieces of data that we asked the organizations to provide us when they received funding to conduct these engagement sessions.
The Chair: We are over our time limit, honourable senators.
The concerns that have been raised here are serious enough that I think we should have further discussion. As I indicated earlier, we will do that tomorrow evening if that is permissible.
Maybe this is not a fair question, but should we be asking the witnesses to return? I am not saying that they will or they can, but is it the wish of the committee that the witnesses who are here now be present tomorrow evening, if it is possible on their behalf?
Everyone seems satisfied that we have enough answers.
I want to thank you, Ms. Kustra, Mr. Boivin and Mr. Vincent for being here this morning and answering the questions of senators. As you can see, there is concern in regard to the paternalistic aspect and other aspects of this legislation; but we will try, in our wisdom, to deal with it tomorrow evening.
If there are no other questions or comments at this time, the meeting is adjourned until tomorrow.
(The committee adjourned.)