Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 14 - Fourth Report of the Committee

Tuesday, March 13, 2012

The Standing Senate Committee on Aboriginal Peoples has the honour to present its

FOURTH REPORT

Your committee, to which was referred 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, has, in obedience to the order of reference of Thursday, February 2, 2012, examined the said Bill and now reports the same without amendment.

Your committee has also made certain observations, which are appended to this report.

Respectfully submitted,

GERRY ST. GERMAIN

Chair

OBSERVATIONS
to the Fourth Report of the Standing Senate Committee on Aboriginal Peoples
(Bill S-6)

1. Over the last number of years, numerous First Nations-led institutions have been created with the goal of improving the ability of First Nations to exercise their inherent right to self-government. These opt-in institutions operate in such areas as land management, taxation, and education. They have been very effective and increasingly utilized by First Nations.

Your committee notes that while the proposed legislation addresses several of the observed deficiencies inherent in the Indian Act electoral regime, including extending the terms of office, establishing penalties for electoral offences, and tightening up the procedures for the nomination of candidates, it does not provide for an independent appeals body.

Your Committee welcomes the proposal to withdraw the Minister's role in investigating and deciding upon elections appeals. Under the legislation, appeals will no longer be handled by the Minister and the department, a positive step in the view of the committee. However, we have heard the concerns of several witnesses that shifting decisions on elections appeals from the Minister to the courts will not achieve the objective of establishing an efficient, accessible and low-cost appeals process.

First, your committee finds that the proposed approach set out in Bill S-6 could prevent First Nations citizens from bringing forward legitimate appeals as the costs of going to court could be prohibitive, thereby limiting access to justice for those who cannot afford litigation. We are therefore concerned that the costs of bringing forward appeals, currently assumed by the Department, will now be borne by those least able to afford it. Second, your committee notes that the proposed approach may not practically address the need for an expeditious and culturally appropriate appeals process.

Many legal experts, most First Nations, and the Standing Senate Committee on Aboriginal Peoples have all recommended the creation of a similar First Nations-led opt-in institution to govern First Nations elections, regardless of what system the First Nation uses to conduct its leadership selection. Such an institution would provide a centre of expertise to handle election disputes in an effective and efficient manner.

The committee considered the argument that creating a separate elections commission would require significant resources that would be difficult to justify for an optional legislative framework, but remains unconvinced that the incremental cost is necessarily greater than that already incurred by the government to investigate and deal with appeals. The government should examine more closely the current costs to the federal government of investigating appeals, the incremental costs of establishing an independent appeals mechanism, and any additional costs that may be incurred in making such a process available to all First Nations, irrespective of how they hold their elections.

Bill S-6 is intended to respond to the recommendations provided by the Assembly of Manitoba Chiefs and the Atlantic Policy Congress of First Nations Chiefs. Key among their proposed recommendations is the establishment of an independent and impartial appeals body.

It is, therefore the view of the committee that the creation of a First Nations elections institution represents ``unfinished business'' and that Canada should pursue this issue with interested First Nations and their organizations.

2. Bill S-6 provides a distinct improvement to the election system provided for under the Indian Act. However, it only represents another step in the eventual full expression of the inherent right of self-government. First Nations whose elections fall under the Indian Act should be encouraged to take that step. It should still be recognized that the ultimate goal of First Nations is to develop their own custom election codes or other self-government arrangements reflecting their own history and traditions of governance; and the Minister should encourage and support that further step when First Nations demonstrate a desire to do so.

3. Some observers have expressed concern that Sections 3(1)(b) and 3(1)(c) of Bill S-6 grant additional powers to the Minister. The Minister and his officials argue that they restrict the powers the Minister already possesses under the Indian Act. In any case, it is the view of the Committee that these powers, whether exercised under the Indian Act or under Bill S-6, continue a colonial and paternalistic approach to First Nations governance. Sections 3(1)(b) and 3(1)(c) should only be used in the rarest of cases when every other form of dispute resolution or democratic reform at the First Nation level has been attempted and has failed.