Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) apcfnc

1. Bill C-9 First Nations Elections Act Update on Next Steps July 2014 Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

2. Introduction • Bill C-9, First Nations Elections Act, received Royal Assent on April 11, 2014. • The Department of Aboriginal Affairs and the APC have begun discussions on the development of regulations. • This presentation will provide you with information on First Nations Elections Act, on the discussions that took place regarding regulations, and on the next steps once Bill C-9 receives Royal Assent. Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

3. Background • The election system under the Indian Act has major weaknesses, such as: • two year term of office which does not provide enough time for First Nations governments to accomplish important priorities • an unstructured process for the nomination of candidates which can lead to excessively long slates of candidates, some of whom may not even wish to hold elected office • a mail-in ballot system that is open to abuse • a slow and ineffective election appeals system controlled by the Minister of Aboriginal Affairs and Northern Development Canada • the absence of defined offences and penalties which allows questionable election practices to take place Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

4. Background (Cont.) • These weaknesses contribute to unstable First Nations governments that cannot move forward on important projects that could improve the wellbeing of the community. • In 2009 and 2010, the APC held discussions with First Nations leaders, Tribal Council representatives and First Nations governance specialists in the Atlantic provinces to obtain their views on how to reform the Indian Act election system. • The APC also conducted a reach out initiative through social media and the Mi’kmaq Maliseet News to gather the views of First Nations people across the region. • In April 2010, the APC presented their recommendations to the Minister, which were based on the discussions and comments, and requested the development of new and optional election legislation as an alternative to the Indian Act election system. Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

5. Bill C-9, First Nation Elections Act • The First Nations Elections Act contains most of the recommendations made by the APC. • The bill provides: • optional framework where band councils request, by resolution, that the Minister add their names to the schedule of First Nations to which the proposed Act will apply • terms of office of four years • the ability for a minimum of six First Nations to line up their terms of office and hold elections on the same day (“a common election day”) • removal of the role of the Department and the Minister in election appeals, with this role shifting to the courts, as in municipal, provincial and federal elections Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

6. Bill C-9, First Nation Elections Act (Cont.) • defined offences and penalties enabling charges to be laid and penalties to be imposed for fraudulent activity in connection with an election • regulatory powers that will allow the mechanical aspects of the election, such as the nomination of candidates and the distribution of mail-in ballots, to be more robust and less open to abuse • a framework under which a First Nation can opt-out of the legislation by developing its own community election code and submitting it to a community vote Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

7. Next Steps - Regulations • To implement the First Nations Elections Act, regulations will need to be developed related to the technical aspects of the election process, such as the posting of notices, the nomination of candidates, voting by mail and in person. • The bill also provides for regulations to be made “respecting the removal from office of a chief or councillor by means of a petition” (often referred to as recall). • Regulations are a form of law and have the same binding legal effect as acts. • Two brainstorming sessions were hosted by the APC in March 2014, at which some Chiefs, Councillors, Electoral Officers and other governance experts came together to discuss and share ideas on the content of election and recall regulations. Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

8. What We Heard • There should be a certification process for electoral officers that does not necessary have to involve the Department. • Band councils should be required to appoint only certified electoral officers. • Candidates should have to accept their nomination in writing within a tight time period following the nomination meeting, and if they don’t, their name will not be on the ballot. • Nomination of candidates could also be a paper based exercise similar to federal and provincial elections – and there would be no more need for a formal nomination meeting. • When a First Nation agrees to charge a candidate fee, the electoral officer should collect the fee and monies not returned to the candidates should go to the First Nation. Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

9. What We Heard (Cont.) • The Internet and Social Media should be used as much as possible to advertise the election. • Mail-in ballots should be sent to electors only after they have made a request in writing and provided identification. • Upon request by the council, the electoral officer should be able to hold an advance poll. • An automatic recount should be required if the count is too close. Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

10. Recall • Recall is a process by which elected leaders can be removed (or “recalled”) from office by the electorate prior to the end of their term. • The First Nations Elections Act provides for the removal of a chief or councillor by means of a petition. • Suggestions on a recall process include: • That the period to exercise recall be restricted to a limited period of time during the third year of the mandate only • That the band council appoint an electoral officer to manage the recall process, approve recall applications and certify petitions Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

11. Recall (Cont.) • That the time frame to obtain signatures on a recall petition be for a small period and be tied to the number of signatures required for the member to be removed (i.e, less time if only a small amount of signatures is required) • That the number of signatures required to remove a band council member be 60% of the total number of the First Nation’s electors who cast a vote at the last election. • That a recall petition be restricted to one council member only (i.e., one petition can’t oust the entire chief and council) Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

12. Recall (Cont’d) • That the regulations provide in broad terms the permitted reasons for a recall, such as • Failure to make decisions in the best interests of the First Nation • Conduct unbecoming of an elected leader • Failure to protect the health, safety and wellbeing of First Nation members and/or the physical environment • Acting when in conflict of interest or in breach of the First Nation’s values and ethics • Conviction for criminal offence that did not result in a removal from off ice under the Act Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

13. Recall (Cont’d) • Frequent absenteeism and inability to perform duties over a period of time. • That the person applying for a recall petition (and who will be responsible for obtaining the signatures) provide an explanation in 200 words or less of why they are seeking the recall of the chief or councillor – this is required in the provincial recall process in British Columbia. • The explanation must present one or more of the permitted reasons above. Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

14. Next Steps • The APC will continue to work jointly with the Department to engage and receive feedback on draft regulations once Bill C-9 receives Royal Assent. • A document that proposes content of the election regulations, based on the discussions at the workshops, will be drafted and made available to First Nations for review and comment. • The process to develop regulations can take up to a year. Only when regulations have been made can a First Nation opt in and hold their elections under the new Act. Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca