2nd Session, 41st Parliament

Issue 46 - Appendix

Tuesday, April 1, 2014
2:00 p.m.

The Honourable Noël A. Kinsella, Speaker

Tuesday, April 1, 2014

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

THIRD REPORT

Your committee, to which was referred Bill C-9, 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 27, 2014, examined the said Bill and now reports the same without amendment but with certain observations, which are appended to this report.

Respectfully submitted,

DENNIS GLEN PATTERSON

Chair

OBSERVATIONS to the
Third Report of the Standing Senate Committee on Aboriginal Peoples (Bill C-9)

Bill C-9 would give First Nations a new option for a comprehensive and a modernized elections process in addition to the three principal election systems currently available under the Indian Act: 1) elections pursuant to the electoral provisions of the Indian Act, 2) community—based leadership processes held according to custom; and 3) elections conducted pursuant to the provisions of self-government agreements.

The Senate Standing Committee on Aboriginal Peoples, in its review of Bill C-9, agreed that there is significant and longstanding support for the legislative framework that addresses several of the observed deficiencies inherent in the Indian Act electoral regime. These include extending the terms of office; establishing penalties for electoral offences; and tightening up the procedures for the nomination of candidates and mail-in ballots.

The Committee, however, heard significant concerns from a number of witnesses about clause 3 of the bill, which gives the Minister of Aboriginal Affairs and Northern Development the authority to order that an election be held in a First Nation, including a First Nation which operates under a custom election code: "...where the Minister is satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation....'' The Committee noted that the Minister already has this power under s.74(1) of the Indian Act. However clause 3(1)(b) of Bill C-9 provides the Minister with a more limited authority than the Minister currently holds under the Indian Act, where the authority to order an election in any First Nation is allowed: "whenever he deems it advisable for the good government of a band...''

Both s.74(1) and clause 3(1)(b) confer similar powers, however, whereas the former would bring First Nations into the Indian Act, which outlines an outdated and ineffective electoral system for First Nations, the latter would hold First Nations to the more modern and robust system of Bill C-9.

The key observation made was that any ministerial action taken pursuant to clause 3(1)(b), could, on application, be subject to scrutiny by the courts. Further, the wording "protracted leadership dispute...[that] has significantly compromised governance,'' would set a high bar for the Minister to justify the use of this power.

Finally, the committee heard objections from witnesses that clause 3(1)(b) perpetuates the power of the minister over the affairs of First Nations. In examining this concern, the committee noted that the vesting of the power of dissolution of government of all types is a common and necessary feature in Canada (including federal, provincial, and municipal governments).

The Committee agreed that situations have developed on rare occasions in First Nations in the past and may develop in future, where the absence of a functional government due to a protracted dispute can only be resolved by ordering the holding of an election. However, the Committee agreed that the wording in clause 3(1)(b) confirms past practice that this significant measure should only be exercised with great caution in the rarest of circumstances when all other democratic reforms and dispute resolution options have been fully exhausted, especially when it comes to applying clause 3(1)(b) to First Nations that operate under a custom election code.