Bill S-6 (Historical)

First Nations Elections Act

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

This enactment establishes a regime, alternative to the one under the Indian Act, to govern the election of chiefs and councillors of certain First Nations. Among other things, the regime
(a) provides that chiefs and councillors hold office for four years;
(b) provides that the election of a chief or councillor may be contested before a competent court; and
(c) sets out offences and penalties in relation to the election of a chief or councillor.
This enactment also allows First Nations to withdraw from the regime by adopting a written code that sets out the rules regarding the election of the members of their council.

Second Reading

[The Acting Speaker, Conservative, Barry Devolin]

The time for government orders has expired. The hon. member for Nanaimo—Cowichan will have seven minutes remaining for questions and comments when this matter returns to the House.

The House resumed consideration of the motion that 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, be read the second time and referred to a committee.

First Nations Elections Act

[Jim Hillyer, Conservative, Lethbridge, AB]

Mr. Speaker, I will be sharing my time this night with the member for Peace River.

I am very happy to have the privilege of speaking in favour of Bill S-6 tonight. As with most of our legislation, some of the main criticisms of this bill have to do with myriad problems this bill neither solves nor addresses. The irony, of course, is that those bills that avoid this criticism are criticized for addressing too much and receive the despised label of omnibus bill. I will save the opposition a bit of time and point out what the bill would not do.

This bill would not ensure good government in the first nations that adopt it. It would not guarantee that tribal councils and chiefs elected under this system will be wise. It would not, on its own, solve poverty or racism or ensure that every person under the act would receive a good education. It would not guarantee the independence and prosperity of those first nations that adopt it. No single bill can do all of these things on its own.

This bill would, however, provide a necessary framework to allow for good government, the selection of wise leaders, the enactment of just laws and the increase in independence and prosperity for those first nations whose electoral systems are still governed by the Indian Act.

Today there are 617 first nations in Canada. Thirty-six are self-governing and hold elections according to their own self-government agreements. There are 343 first nations that select their leaders under their own community-based systems, most of which have a specific election code developed within and by the first nation itself. Unfortunately, the 238 first nations that still hold elections under the Indian Act have been held back from achieving their full potential because of the limitations of the Indian Act's election system.

This system was created at a time when the federal government had no intention of allowing first nations to have any real sense of self-governance and therefore did not need to provide conditions that ensured fairness, stability or legitimacy. Some of the weaknesses in this old election system have led to leadership with low credibility and high instability and such problems as having only two-year terms of office, a loose nomination system, a mail-in ballot system that is open to abuse and no defined offences or penalties relating to election fraud.

Virtually no first nations are satisfied with the current system, but this bill gives first nations three options to choose from.

The communities that hold their elections under the Indian Act have the following choices.

The first option is self-government, the ideal scenario, but that goes far beyond simply determining their own election system. The second choice is to develop a community election code. Unfortunately, due to varying capacity, not all first nations are in a position to take advantage of either of the first two options. That leaves them with the third option, which is to simply carry on operating under the Indian Act system, complete with its long list of problems. The third option is not really an option at all, and many first nations are frustrated.

That is why we need this bill, which gives these communities a third viable option if they cannot choose one of the first two options.

The first nations elections act would allow first nations currently operating under the Indian Act to hold elections under a legislated system that would be strong, modern and comparable to municipal, federal and provincial government election systems.

First nations have been calling for this solution for many years. They even made recommendations advocating such legislation. Those recommendations form the foundation of this bill.

Bill S-6 would provide a reliable, consistent, modern approach to elections in first nation communities that would increase the transparency, legitimacy and stability of their governments, which is a necessary precondition of independence and prosperity.

The first important aspect of this legislation is that first nations could opt in. They could choose to use the system.

It is not mandatory.

For those first nations that did opt in, the band council would now have four-year mandates instead of two. This would go a long way toward improving political stability in their communities and would foster a better climate for economic development and long-term investment.

The bill would also tighten up the nomination process. Right now, many tribal elections have literally hundreds of people running for a 12-member council, making the election results, in many cases, statistically arbitrary. This comes from the fact that one person can sign dozens of nominations. He or she does not have to be choosy when nominating candidates.

Furthermore, a single person can run for chief, tribal council and any other position available at the same time. This legislation would restrict the number of candidates any one person could nominate and would allow a given candidate to run in only one position in any given election.

Bill S-6 would also remove the Minister of Aboriginal Affairs from the elections appeals process. Just as in provincial and federal elections, the power to set aside elections and to appeal those decisions would rest with the courts, where it belongs. This is a judicial matter and should not be in the hands of a legislator or the executive branch.

Finally, believe it or not, under the current system, things such as electoral fraud, ballot-box stuffing, buying and selling of mail-in ballots, bribes, et cetera, are not expressly forbidden. The bill would finally prohibit specific offences and would attach definite penalties for corrupt activities that interfered with the electoral process.

Anyone who engages in those kinds of activities will no longer be able to get away with it. They will be forced to face the consequences of their actions.

The first nations elections act would enable first nations communities, if they chose, to put in place a more reliable, consistent and legitimate system of elections. This would make it possible for members of these first nations communities to add transparent, accountable and effective chiefs and councillors as part of a more stable, respectable and reliable government. This would lead to confidence in government and in the community itself. It would inspire community members and outside investors to invest in these communities and to even bring their businesses and their business operations to these communities, which would bring about real, measurable benefits to first nations people, such as jobs, high-paying jobs, overall prosperity and higher tax revenue. That, in turn, would help pay for infrastructure, which would increase jobs, high-paying jobs, overall prosperity and higher tax revenue, which in turn would help pay for infrastructure. The cycle would go on. It would also pay for education, the arts and our cherished social programs.

The key to realizing these benefits is political stability and predictability, but most important, political legitimacy. Bill S-6, by providing the necessary framework, would make it possible.

In addition to our federal and provincial electoral systems, most of us in the House live in communities in which the political conditions for economic prosperity are taken for granted. So imbedded are these characteristics in our local governments and the electoral systems of those jurisdictions that we do not even notice them. We do not appreciate the extent to which they are transparent, accountable and legitimate and therefore make us ready to seize economic opportunities.

Unfortunately, not all first nation communities enjoy similar political conditions and therefore cannot seize their economic opportunities and seize control of their own lives.

It is time that changes. It is time for first nation elections to be reformed, and it is time to provide the legislative framework that would allow their governments to truly foster the conditions necessary to chase away corruption and attract prosperity.

I urge all of my hon. colleagues to vote in favour of Bill S-6 and in favour of an open, transparent, and accountable government for all Canadians.

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I thank my colleague for his speech.

One of the key recommendations from the AMC and the AFN was to establish an independent, impartial appeal mechanism. I wonder why the Conservatives ignored those recommendations.

I would like to know whether the Conservatives will commit to working with first nations to establish an independent first nations election tribunal.

[Jim Hillyer, Conservative, Lethbridge, AB]

Mr. Speaker, as I said, under the Indian Act, any appeals on elections go directly to the Minister of Aboriginal Affairs. This bill would change that so that appeals would go to the courts

I do not know what the member thinks, but I consider the court system in Canada an independent process of appeal.

[Colin Carrie, Conservative, Parliamentary Secretary to the Minister of Health]

Mr. Speaker, we are talking about democracy. I think that is something everyone in this House can stand up and believe in. What the government is doing is trying to modernize. With the system in place right now, there is the possibility of fraud. It is ancient. It is outdated.

The first nations communities deserves democracy. They deserve representation. They deserve to be brought into the modern era. It seems that the opposition wants to delay this type of legislation.

I was wondering if the member could give his opinion as to why it is so important that we finally bring this piece of legislation forward for equality and democracy for first nations.

[Jim Hillyer, Conservative, Lethbridge, AB]

Mr. Speaker, I appreciate the question, because that is at the base of a fundamental misunderstanding of the difference between a right and a guarantee. As much as we would like to provide guarantees for everyone to have a Mercedes and a three-storey house, we cannot always do that. Rights are the pre-condition to acquiring whatever people want guaranteed.

As with the bill on matrimonial housing rights, a lot of the concerns were that the women involved did not have the money necessary to buy the house or go to court or whatever. That was a shortcoming of the bill. However, it provided the necessary framework so that they could start with those things.

We have to start by giving first nations the right to determine a legitimate self-government. Those are the pre-conditions for accomplishing the other things, the things some of our opponents find lacking in this bill. That is because that is not what this bill is about. The bill would set the framework and allow first nations to start solving those problems, as is necessary for anyone who wants to self-govern.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I thank my hon. friend from Lethbridge, and I welcome him back to the House. People who are watching may be happy to know that he is recovering well from a skiing accident. Just apropos of my friend's comment that everybody here can stand up, at least the hon. member for Lethbridge will be able to soon.

My concern, as with many pieces of legislation in this House, is that many of them come from the other place. They are taken apart, bit by bit, and chip away at what should be a transformation exercise relating to a new relationship and a change from the antiquated Indian Act, which has a lot of baggage. I will not get into all of it. I will not have time in this short question.

My concern, and I wonder if the hon. member from Lethbridge would agree with me, is that we would be far better off to have full consultation, nation to nation, Canada to all first nations, in a process that ensures that first nations are full partners in a holistic, comprehensive approach rather than this piecemeal, and I hate to say it, disrespectful approach, to changing legislation that directly affects the lives of first nations peoples.

[Jim Hillyer, Conservative, Lethbridge, AB]

Mr. Speaker, I would definitely like a holistic approach where every first nation in Canada would come together with Canada and with each other to find one big, holistic solution. Maybe someday that will come. It might be at the second coming. However, in the meantime, we have to get something done to allow each first nation to determine its own path while we are waiting for this great day.

[Chris Warkentin, Conservative, Peace River, AB]

Mr. Speaker, it is a privilege for me to stand in this House today to speak to Bill S-6. I thank the hon. member for Lethbridge for sharing his time with me tonight. I am glad he is back in the House. I congratulate him for his contribution to the discussions tonight.

I serve as the chair of the aboriginal affairs and northern development committee, and over the last number of months we have been seized with a number of pieces of legislation that I believe are important to equip and empower first nations to move forward on a number of fronts.

Today, we have the opportunity in the House to continue a discussion on an important piece of legislation that will transform and modernize the elections of first nations, those first nations that choose to be empowered by this act. It is not an act that is being placed on first nations if they do not want it, but they have an opportunity to opt in if they want.

That is what is unique about our government. We are a government that recognizes that first nations are different. From one part of this country to another, first nations are as different from coast to coast to coast as communities are different from coast to coast to coast. It is important that we do not put a one-size-fits-all solution on folks from every part of this country and that we let first nations communities create their own environment to move forward in the way that best supports their priorities.

That is unlike the Indian Act. I think everybody in this House can agree that the Indian Act is an outdated piece of legislation that has lived out many parts of its usefulness. However, it obviously has a great amount of history and it would take some time to move us out of that.

I respect the fact that members are calling for an overhaul and a complete turning of the page. We can recognize as we look from one issue to the other with regard to the Indian Act that there are first nations that have different ideas as to how to move into the future. It is important that we give each community the ability to be empowered, so that they are able to articulate a vision for the future that would reflect the interest and the desires of first nations membership within their communities. That is different in every community.

The Indian Act does spell out issues surrounding elections in first nations communities. I just note that the last time this portion of the Act was updated was sometime in the 1950s.

A lot has changed between now and then. It is important to reflect on the thinking at that time. When they were revamping the Indian Act in the 1950s, it should be noted that the rules as they related to elections were really geared toward holding first nations governments accountable to the minister, rather than holding first nations leadership accountable to their electorate or to their members.

The bill goes a great distance in rectifying this. I think it is so important that we work together collaboratively to see this legislation move forward.

It has been articulated by the member for Saanich—Gulf Islands that we move forward with a complete overhaul of the Indian Act, but even in the discussions that led up to the change in this portion, just in the issue of elections, there are different visions and different ideas from one part of this country to the next. It is important that we bring forward legislation that provides options for first nations. That is exactly what this legislation does.

However, we do it in a pragmatic way, not in a way that may have a lofty goal without ever being implemented. We have a policy right now that will really create opportunities for those first nations that do want to move forward on this.

We have been undertaking a number of things that will give rights to first nations that they have been limited to receiving in the past as a result of the Indian Act.

Members will reflect on the fact that it was our government that in 2008 repealed section 67 of the Canadian Human Rights Act. It finally gave first nations people living on reserve the right to recognition under the human rights act. First nations communities had been waiting decades for that. Unfortunately, the Indian Act had separated them from the right that most Canadians enjoy and take for granted. That was one of the things we did.

Just recently, we extended matrimonial real property rights to first nations women to protect families and those people who were vulnerable in first nations communities.

We are continuing to bring the rights that most Canadians take for granted to those people who live on reserve.

The legislation continues the process of giving rights to first nations people, the same type of rights that other Canadians have come to expect and take for granted. Unfortunately, those rights have not been there for first nations and this bill would go a great distance in providing first nations with additional rights.

I should note that approximately 240 first nations across the country undertake their elections according to sections 74 through 79 of the Indian Act. This regime is not satisfactory for a number of reasons, the least of which is it imposes two year term limits on the time which chiefs and councils can serve in office.

Those of us in elected positions know that two years is really not enogh time for us to become equipped to serve in the capacity of our roles and to take a mandate and try to get it completed, then to continue that and have any type of stable governance in any community. A two-year time limit gives enough time for MPs to learn the basics of our job and then immediately be thrust back into an election campaign. That is not a sustainable structure for governance. Anybody in the House, when reflecting upon it, would say that a two-year term limit is really unreasonable for any elected official, and first nations people should have the right to extend it if their community so desires.

It has been recommended by the Atlantic Policy Congress as well as the Assembly of Manitoba Chiefs that the term limits be extended to four years. This is now articulated within the legislation. When we consider the recommendations that came from these two organizations, it makes a lot of sense.

A two-year term limit barely gives enough time for MPs to get trained in their jobs before they are running for re-election, but there are other practical reasons as well.

A two-year term limit is difficult for a new council, especially those people who have run for election for the first time. A new council would find it very difficult to build the necessary relationships to move their communities forward within two years.

One of the most important things that a local council can do is build relationships with neighbouring jurisdictions, with other municipalities or neighbouring government organizations. There is a limited opportunity as well to build relationships with financial organizations and with those people who might want to invest within these communities. This two-year extension is very important.

We believe very strongly in allowing first nations to build an environment within their communities where they will be able to foster an opportunity for the private sector to invest in their communities. Extending the term to a four year limit will allow these first nations communities to have a stable council, a stable government that will be able to negotiate and build an environment so private investment is undertaken within their communities. This would lead to opportunity, prosperity and hope for people who live in these communities, leading to better education, better health care and better outcomes generally.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, given all bills before the House that have to do with first nations, including this one, I have a simple question that is however worth asking.

When dealing with first nations issues, does my Conservative colleague think it is better to have a relationship of equals instead of the paternalistic approach that the Conservatives use on almost every bill?

It is truly a simple question and I would like an answer.

[Chris Warkentin, Conservative, Peace River, AB]

Mr. Speaker, one of the things we have as a hallmark of our government, as it relates to first nations, is we do not believe that a one-size-fits-all solution works for first nations across the country. That is why we have built framework legislation that allows for a different reality in one community than possibly in other communities.

In this case, with regard to the Elections Act, we had strong recommendations from the Atlantic first nations and from Manitoba chiefs. They are asking for this legislation to move forward. They believe the provisions in this act would ensure they could move forward in a way that would better equip their communities. This is being asked for.

It is not a requirement that first nations move into this act; it is actually opt-in legislation. Therefore, those first nations that would desire to be under this act could move into it. Those that choose not to could continue under the current regime.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I would like to remind my colleague that one of the key recommendations from the AMC and the AFN, was to establish an independent, impartial appeal mechanism.

Could he tell us why the Conservatives ignored this recommendation in Bill S-6?

Will they commit to working with first nations on establishing an independent first nations election tribunal?

[Chris Warkentin, Conservative, Peace River, AB]

Mr. Speaker, we do envision an opportunity for independent and impartial appeals, and through the courts process that is exactly what is undertaken. That is what we as Canadians put our trust in, that those folks who serve in their capacity as judges and within the legal system can provide an impartial appeals process. We believe first nations should have the right to that as well.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, I listened closely to my colleague's speech and he spoke of democracy, respect and so on a number of times.

In the bill, paragraphs 3(1)(b) and 3(1)(c) allow the minister to subject a first nations community to this law against its will. Numerous groups have called for these provisions to be removed because they give immeasurable discretionary power to the Minister of Aboriginal Affairs and Northern Development.

Can my colleague share his thoughts on whether a clause that would allow a minister to force people to be subject to a system that they have not willingly accepted is democratic?