I see two problems with the designation process, and one of them is the double majority requirement. It's one of those unintended consequences that comes from the Corbiere case, which dealt with the elections on reserves. Subsequent to Corbiere, the designation requirements were updated, in that off-reserve members were allowed to participate and were counted in that double majority.
One of the problems, and we see this in elections as well, is that you might get 30% of the members, or 40%. I'm sure that certainly for section 74 nations—those who conduct their elections under the Indian Act—the department could provide you with those figures.
By not participating—so the individuals get the mail package and don't bother participating—they're essentially counted as a “no” vote, and then there is the requirement of a second vote. Clearly we need the designation process still in place. I think that's something you can trace back to the royal proclamation, and probably even before that. So we're not going to get rid of that.
We should look at, though, whether or not 50% plus one is the right threshold in terms of determining what your quorum is. To use corporate law principles, what is your quorum for a vote?
The second problem is that when you get to your second vote—this is the result of a case called Hill, I believe it was—where, in terms of calling a second vote, the court indicated it has to be the minister or the deputy minister who signs off on that. So it's a strange situation where you have a regional official in Vancouver, let's say, where we do most of our practising, signing off the notice for the first referendum, but then a need to go through all the bureaucracy to get either the minister or the DM to call a second vote.
It strikes me—well, first I was surprised when INAC didn't appeal that—that it would be an easy legislative fix to clarify that the same person who called the first vote could call the second vote.
That's a really frustrating thing that I've had to deal with on a couple of occasions.