Order Amending the Indian Bands Council Elections Order (Bear River): SOR/2021-208

Canada Gazette, Part II, Volume 155, Number 18

Registration
SOR/2021-208 August 18, 2021

INDIAN ACT

Whereas by order of the Minister of Citizenship and Immigration dated September 4, 1959, it was declared that the council of the Bear River Band, in Nova Scotia, shall be selected by elections to be held in accordance with the Indian Act footnote a;

Whereas the council of that First Nation has provided to the Minister of Indigenous Services a resolution, adopted on January 6, 2021, requesting that the name of the First Nation be added to the schedule to the First Nations Elections Act footnote b;

And whereas the Minister of Indigenous Services no longer deems it advisable for the good government of that First Nation that its council be selected by elections held in accordance with the Indian Act footnote a;

Therefore, the Minister of Indigenous Services, pursuant to subsection 74(1) of the Indian Act footnote a, makes the annexed Order Amending the Indian Bands Council Elections Order (Bear River).

Gatineau, August 15, 2021

Marc Miller
Minister of Indigenous Services

Order Amending the Indian Bands Council Elections Order (Bear River)

Amendment

1 Item 3 of Part VIII of Schedule I to the Indian Bands Council Elections Order footnote 1 is repealed.

Coming into Force

2 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the orders.)

Issues

The Bear River First Nation, in Nova Scotia, wishes to select its Chief and Council pursuant to the First Nations Elections Act and associated regulations.

On January 6, 2021, the Bear River First Nation requested, by resolution of its Council, to opt out of the election regime of the Indian Act and to opt into the First Nations Elections Act.

Background

First Nations that hold their elections under the Indian Act and which are seeking a change to their electoral system by opting into the First Nations Elections Act must be concurrently removed from the Indian Bands Council Elections Order, made under the Indian Act, and added to the schedule to the First Nations Elections Act.

Subsection 74(1) of the Indian Act provides the necessary authorities for the Minister of Indigenous Services to make an order to remove the name of a First Nation from the Indian Bands Council Elections Order, as a result of which the application of section 74 of the Indian Act is revoked for that First Nation.

Section 3 of the First Nations Elections Act provides the necessary authorities for the Minister of Indigenous Services to make an order to add the name of a First Nation to the schedule to the First Nations Elections Act, after which the Council of that First Nation shall be selected by elections held in accordance with the Act.

Objective

The objective of this initiative is to

  • revoke the application of the election provisions of the Indian Act for the Bear River First Nation through the Order Amending the Indian Bands Council Elections Order (Bear River) made pursuant to subsection 74(1) of the Indian Act; and
  • confirm that the elections of the Bear River First Nation are held under the First Nations Elections Act through the Order Amending the Schedule to the First Nations Elections Act (Bear River) made pursuant to section 3 of the Act.

This initiative is limited to and of interest only to the Bear River First Nation. The adoption of the First Nations Elections Act will serve to build and strengthen the First Nation's governance autonomy and better address the needs of the community.

Description

The Order Amending the Indian Bands Council Elections Order (Bear River), made pursuant to subsection 74(1) of the Indian Act, revokes the application of the election provisions of the Indian Act for the Bear River First Nation. The Order Amending the Schedule to the First Nations Elections Act (Bear River), made pursuant to section 3 of that Act, adds the Bear River First Nation under the First Nations Elections Act and fixes the date of the first election of the Council under that Act at November 18, 2021.

Regulatory development

Consultation

The Council of the Bear River First Nation has indicated that a consultation and engagement exercise was undertaken with community members to consider the adoption of the First Nations Elections Act for the election of its Chief and councillors.

Given that the Order Amending the Indian Bands Council Elections Order (Bear River) and the Order Amending the Schedule to the First Nations Elections Act (Bear River) are made at the request of the Bear River First Nation, it is not considered necessary to undertake consultations over and above those already conducted by the First Nation with its members.

Modern treaty obligations and Indigenous engagement and consultation

There is no potential modern treaty implication, as this initiative responds to the needs and interests of the Bear River First Nation. This initiative does not require the Government of Canada to fulfill any consultation/engagement requirements described in a modern treaty.

Instrument choice

Non-regulatory options were not considered, as subsection 74(1) of the Indian Act and section 3 of the First Nations Elections Act provide the necessary authorities for the Minister of Indigenous Services to revoke the application of section 74 of the Indian Act for the Bear River First Nation and to add the First Nation to the First Nations Elections Act.

Regulatory analysis

The Order Amending the Indian Bands Council Elections Order (Bear River) and the Order Amending the Schedule to the First Nations Elections Act (Bear River) are carried out in response to a request from the Bear River First Nation, who wishes to hold its band council elections under the First Nations Elections Act and associated regulations.

First Nation leaders elected under the First Nations Elections Act and its regulations will continue to enjoy legitimacy with their own community members and potential investors and stakeholders. This legitimacy is a factor in attracting partnerships and investments that will benefit the First Nation as a whole.

Benefits and costs

There are no costs associated with removing First Nations from the election provisions of the Indian Act and adding their names to the schedule to the First Nations Elections Act.

First Nations who move from the Indian Act election system to the First Nations Elections Act will realize cost savings from holding a general election every four years, instead of every two years. A significant portion of the total cost incurred for an election is to compensate the electoral officer for his or her time, and in some cases, to cover travel expenses. In addition, there are costs incurred for printing materials, notices and ballots, for postage, envelopes, general office supplies, rental space for off-reserve polling stations, ballot boxes and voting screens.

With longer terms of office, First Nations governments will be better positioned to plan and implement longer-term measures that, in themselves, could result in overall cost savings. For example, goods or services acquired through contractual agreements tend to be less costly if the agreement is over a longer period.

These savings could be redirected to other priorities of the First Nation.

Small business lens

The small business lens does not apply to this initiative, as it does not result in any costs for small businesses.

One-for-one rule

The one-for-one rule does not apply to this initiative, as it does not result in any administrative costs or savings to businesses.

Regulatory cooperation and alignment

Given that opting into the First Nations Elections Act is made at the request of the Bear River First Nation, through resolution of its Council, this initiative is not under a regulatory cooperation work plan.

Strategic environmental assessment

This initiative has no potential for environmental effects.

Gender-based analysis plus (GBA+)

The First Nations Elections Act and the Regulations were developed in collaboration with First Nations organizations in 2015 to make further improvements to First Nations election processes. Opting out of the Indian Act and in this legislation places more control in the hands of communities over their governance systems. This aligns with greater self-determination and supports the restoration of traditional forms of governance that respected and promoted the voices of women, youth, elders and other community subgroups.

The Government of Canada recognizes that all relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government. As such, we work with First Nation leadership to facilitate the transition away from the Indian Act, a federally imposed governance system that does not take into account the specific circumstances and integral matters surrounding the culture and traditions of individual communities.

The traditional governance structures of many nations included women, elders, and youth in decision-making processes. For many communities, traditional leadership even followed a matriarchal line. With the imposition of the Indian Act, the leadership roles of women, elders, and youth could have been undermined. Since the 1951 amendments to the Indian Act allowing women to participate within the governance structure, many legislative and regulatory initiatives have supported the restoration of women's roles in decision-making and greater diversity of voices in Indigenous governance.

For example, women now make up more than a quarter of First Nations councillors. The percentage of women elected as councillors has increased since reporting began in 1992, from 21% to 27% in 2019 with a peak of 31% in 2008–2009. Also, close to one in five chiefs in First Nation communities are women. In 1992, 12% of chiefs in First Nation communities were women. Although the proportion increased to 20% by 2008, it declined slightly over the next several years and has remained relatively stable for more than a decade. While work remains to achieve gender parity in leadership roles within First Nation communities, elections held under the First Nations Elections Act allow participation by any individual seeking leadership during the electoral process. This electoral system enables greater accessibility for electors who may be affected by barriers such as geographical distance, physical disability, and provides flexible timeframes in which voting is made possible.

As the department does not currently have any processes for tracking gender identities or sexual orientation of candidates, there is currently no data to reflect the number of 2SLGBTQQIA+ candidates. At this time, the Band Governance Management System (BGMS) has been updated to include Two-Spirit as an option under Gender for those elected officials who choose to identify themselves as such. This will allow for a further disaggregation of data as time goes on.

Rationale

The Bear River First Nation is removed from the Indian Bands Council Elections Order pursuant to the Indian Act and is added to the schedule to the First Nations Elections Act at the request of the Council of the First Nation, which believes that the First Nations Elections Act presents a better electoral option that will benefit its community.

Implementation, compliance and enforcement, and service standards

There are no compliance and enforcement requirements and no implementation or ongoing costs which can be directly associated with terminating the application of the election provisions of the Indian Act and amending the schedule to the First Nations Elections Act.

In compliance with the First Nations Elections Act and associated regulations, the conduct of elections and disputes arising from them are the responsibility of the Bear River First Nation and the electoral officer appointed by the First Nation. However, the First Nations Elections Act provides that an election can be contested by application to a federal or provincial court. The offences and penalties provided in the First Nations Elections Act — which are enforced by local law enforcement and prosecuted by the Public Prosecution Service of Canada will deter questionable election activities, such as vote buying, bribery and voter intimidation. Under the First Nations Elections Act, the courts are able to impose fines and terms of imprisonment on persons found guilty of an offence.

Contact

Yves Denoncourt
Acting Director
Governance Operations Directorate
Lands and Economic Development
Indigenous Services Canada
Email: yves.denoncourt@canada.ca