Evidence of meeting #2 for Indigenous and Northern Affairs in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was system.
A video is available from Parliament.
NDP
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
I want to come back to the regulations, Mr. Minister.
I'm hearing you say "work with", but have you started discussions with first nations in anticipation of this bill passing, since the Conservatives have a majority?
Developing what that process would look like, exactly how will first nations be included in the development of regulations?
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
I don't know if I can give you exactly how they will be incorporated, but the intention is to develop the regulations in close cooperation with the first nations that have been the proponents of this bill.
I think our understanding and theirs also is that we're going to sit together and see how we can draft and implement each set of regulations in the best possible timeframe to ensure they can quickly take advantage of the provision of the act.
Conservative
Conservative
Kyle Seeback Conservative Brampton West, ON
Thank you, Mr. Chair.
Minister, I think one of the things that we often forget is that other communities across Canada benefit from a very stable electoral system. Municipally there is an election every four years. Provincially and federally there is similar legislation, which provides for stability and certainty. That's not necessarily the case with all first nations communities. I see that as a bit of a disadvantage.
What would you characterize as the main benefits of the legislation for first nations communities?
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
The main benefit I would say is, of course, first of all the answer to this call by first nations for the length of the mandate. A term of office of four years would have a tremendously positive transformational effect on first nations leadership and allow for the execution of longer-term plans.
Groups of first nations would have the possibility of lining up their terms of office, so that their respective councils could have a common election day. This is not to be underestimated, especially in regions. We talk about the Ring of Fire, and we talk about certain areas where you have a bunch of natural resources that are going to be developed. First nations could have a common election day so that the leadership is always on top of the issues in their area and what they can do.
Another definite advantage is the improved processes and procedures for the nomination of candidates. Seeing a hundred candidates for councillors on a 12-member council is not unheard of. At least you would have improved processes and procedures for the nomination of candidates and a better mail-in ballot system that is less open to abuse. I'm getting letters from all over the country from first nations membership complaining about the mail-in ballot system.
To me, the most important one is the appeal process that will now be heard in the court instead of before the minister. The process is not only cumbersome, but it's ridiculous. A complaint is made and then it is analyzed and then it takes six to eighteen months before it reaches my desk. By the time it reaches my desk, the election is about to happen. So you have had a council in office under a cloud of allegations for eighteen months, almost two years. It doesn't make sense.
I think these are the main advantages of the bill, the reasons it should be passed, plus of course the clearly defined election offences, which allow for prosecution and the imposition of penalties by the courts.
Conservative
Kyle Seeback Conservative Brampton West, ON
I understand the opposition's complaint. They're saying they don't think that, even under exceptional circumstances, the minister should have the ability to opt-in a first nations community. I accept that that's their complaint, but I don't see how that affects the legislation, because this is opt-in legislation. I don't suspect there's going to be a circumstance where a first nation is going to say, “You know what? I'm not going to opt in to this, even though it's a great piece of legislation, because you might be able to bring somebody else in.”
I don't understand how that's a real criticism of the legislation. Maybe you could comment on that.
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
I like the way you think. I agree with you. Why would you not take advantage of a good situation? I was bothered by this. Personally, I looked at this. When I thought about it, I asked myself, “What about those communities where they cannot resolve the governance issue?”
If it were only for the chiefs, I couldn't care less about them. But I'm thinking about the membership, the grassroots that your colleague refers to, the real people who are deprived of leadership, of benefits, of services, because you have politicians playing at the top and they don't care about the people, or if they do they show a very strange way of exercising their care. They cannot solve it.
That's very rare. I hope this will never happen, but if it does, I don't think we should hold the membership of a first nations community hostage to politicians who cannot solve the governance issue.
Conservative
The Chair Conservative Chris Warkentin
Thank you.
We'll turn now to Mr. Bevington for a final question.
NDP
Dennis Bevington NDP Western Arctic, NT
Thank you, Mr. Chair.
I want to thank the minister for being here today. I suppose the people of Toronto are concerned about the very issue you just raised.
Once again, we're dealing with nation-to-nation relationships, and I think that has to be very much the prime focus. You mentioned two groups that have supported this legislation, but one letter was from a former grand chief of the Assembly of Manitoba Chiefs.
What's the validation now coming from the new grand chief?
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
Do you mean the grand chief who says they will bring Canada to its knees?
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
Well, no, I don't think he supports this. I doubt he's supporting this.
NDP
Dennis Bevington NDP Western Arctic, NT
So you've referred to a previous grand chief as the one who is supporting this legislation. Do you have any other major first nations groups that we can reference that have come out in support of this legislation—other than the Atlantic Policy Congress—as we speak today?
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
I'm sure these hearings before the committee will allow you to make that determination.
Conservative
The Chair Conservative Chris Warkentin
Thank you.
I think that was the final question, colleagues, before we suspend.
Thank you, Minister, for being here. We appreciate your making yourself available.
We'll now suspend before we hear from our next witnesses.
Conservative
The Chair Conservative Chris Warkentin
Colleagues, we'll call the meeting back to order.
We have a panel with some folks who know first-hand the importance of good electoral laws. We look forward to hearing the testimony of the respective chiefs.
We'll begin to my left and work our way down, so we'll start with Chief Vicaire. Then, of course, we'll have some questions for you as well.
Chief Dean Vicaire Executive Co-Chair, Atlantic Policy Congress of First Nations Chiefs
Thank you to all in the room for giving us the opportunity to once again express our opinions with regard to Bill C-9.
My name is Chief Dean Vicaire of Listuguj First Nation and the co-chair of the Atlantic Policy Congress of First Nations Chiefs. With me today is my colleague, John G. Paul, who is our executive director, and we are here today to speak on behalf of the Atlantic chiefs regarding our support of Bill C-9.
Our member chiefs do support Bill C-9 as it currently stands. We feel it reflects the recommendations in a resolution we adopted in January of 2011 asking the minister to draft legislation that would present a strong alternative to the Indian Act election system.
One of the reasons we decided to champion electoral reform is because at 75%, Atlantic Canada has the highest percentage of first nations that hold elections under the Indian Act system. We believed that if we could build a better election system, the majority of our first nations would immediately benefit. We first became interested in election reform in October of 2008, when we passed a resolution asking the minister to amend the term of office under the Indian Act election system from two years to four years. As we continued to discuss this change, both amongst ourselves and with what was then the Department of Indian Affairs, we realized that the Indian Act election system had other fundamental weaknesses that needed to be addressed. The department's willingness to support further discussions on this matter presented an opportunity to elaborate a more extensive reform.
At the current time, approximately 40% of first nations in Canada hold their elections pursuant to the Indian Act. Those election provisions are outdated and problematic, to say the least. Not only did we hear this when we were engaging with our own constituents on this question, we also heard it when we were discussing our recommendations with first nations groups in other parts of the country.
Specific issues centre on the following:
The term of office for elected band councils under the Indian Act is two years. This short length of term places first nations communities in an almost continual state of electioneering, and it undermines the band council's stability, as well as their efforts to develop long-term projects.
A weak process for the nomination of candidates can result in the nomination of many candidates. As the Minister of Aboriginal Affairs clearly said earlier, there are sometimes over 100 candidates for one election. That, indeed, happens constantly in my community.
The mail-in ballot system is open to abuse.
The appeal process to the Minister of Aboriginal Affairs and Northern Development is paternalistic, complicated, and often takes too long to produce findings and a final ruling.
The absence of defined election offences and associated penalties under the Indian Act allows alleged cheating and other related activities, such as the selling and buying of votes, to go unpunished.
As I mentioned earlier, the APC has taken a keen interest in looking at ways to stabilize and improve upon first nations governance through a stronger and more modern election system. With the support of Aboriginal Affairs and Northern Development Canada, the APC undertook research on the issue of band council elections. After having heard from first nations leaders, governance technicians, and community members in their respective regions, we came forward with our recommendations.
I would like to outline for all of you how we went about developing these recommendations.
We struck a working group to conduct research and develop options. We published articles in a widely circulated first nations newspaper, the Mi'kmaq Maliseet Nations News, and we developed a Facebook page, both of which invited first nations members in the whole region to share their views and complete a survey. The working group presented their research, options, and all the feedback to a group of governance experts and electoral officers and, of course, the chiefs themselves. Based on all the discussions and feedback received, we arrived at the definitive recommendations that we submitted to the minister.
I want to share with you our recommendations that are reflected in Bill C-9.
The APC recommended the development of brand new opt-in first nations election legislation and further provided recommendations for its content. For the most part, these recommendations are reflected in Bill C-9. Bill C-9 contains some of the same rules as the Indian Act election system along with some important differences, which are the following:
The term length is four years, instead of the two-year term that exists under the Indian Act system.
There are defined qualifications for candidates for chief and clear rules around the nomination process.
There are clearly defined offences and penalties that will deter questionable election activities, especially those that take place around mail-in ballots.
Finally, the minister is not involved in election appeals.
I'm going to stop there and share my thoughts, which I shared with some people I spoke with during the suspension.
The minister does indeed have a valid point with regard to leaving that void, having courts get involved in policies. At the same time we all understand that the minister has these overriding powers that are contradictory in terms of a paternalistic viewpoint.
I'm sharing with John and some of my other colleagues around the table. Since it's an opt-in choice for communities, perhaps we can correct the legislation or make an amendment that upon written consent or request from the individual first nation, the minister can step in, for instance if there's wrongdoing in one of the four or five issues that we've talked about.
One of the members here.... I'm sorry I've forgotten your name.
Executive Co-Chair, Atlantic Policy Congress of First Nations Chiefs
Rob Clarke made some valid points and had personal experiences in his former position. Perhaps the leadership in the first nations community can ask the minister to step in. That way, it speaks to the first nation still having control and it has the minister step in when—and only when—requested. That's just an idea.
Although the APC did not recommend that a new election regime allow for a common election day among first nations, it appears that the provision in the bill that allows a minimum of six first nations to line up their terms of office is gaining interest among many of our first nations. I'm sure John will speak to this point, which is that we're in the perpetual motion of the election mode throughout first nations. Every month, I believe it is, it continues. It's like a bad nightmare.
I will speak to some of the elements of Bill C-9 that have been commented upon and debated in the past.
One is the new opt-in legislation by band council resolution. The APC recommended that individual first nations, if they so choose, could opt in through a band council resolution. We debated a great deal on whether it would be preferable for the opt-in mechanism to be a referendum. We reached the conclusion that although it is certainly an effective way to determine the will of the community, it is simply not cost effective to consult the community in this fashion on all issues.
Moreover, our experience with community votes is that first nations voters tend to favour the status quo. Therefore, requiring a referendum to move to the new election regime would in effect act as a huge barrier for first nations to reap the benefits of the four-year terms, which is what we are trying to achieve. Even though a referendum is not required, our chiefs have told us that they would not make this type of decision without first engaging in some substantive way with their community members on this particular question.
The second element, of course, is the term of office for band council members. The APC recommended that the new election legislation provide terms of office of four years, making them comparable with most other governments in Canada.
The Indian Act, in requiring elections every two years, has created conditions of instability and has fostered divisions in first nations communities. Most often, the two-year term of office is too short to provide political stability for first nations governments to plan for and implement long-term initiatives and to build a proper foundation for community development before they face re-election.
Being a newly elected chief of a year and three months, I can certainly attest to that.
The two-year term is especially difficult and challenging for those elected to a band council for the first time. New chiefs and councillors need time to learn about their responsibilities and the various projects that require their attention. Projects are often put at risk by the two-year election cycle and the related high turnover of elected officials. Time and focus are key for economic prosperity and change in our communities, to allow leaders more time to implement the vision that will help all communities and increase their ability to show progress and results.
The third element is the appeals of band council elections. Under the Indian Act, election appeals are received, reviewed, investigated, and decided upon by the minister and his department. Numbers given to us by the department show that 30% of all elections under the Indian Act have been appealed, which amounts to 40 elections per year, give or take. Each year, usually no more than five of the appeals result in the overturning of an election. Very few of these occur in the Atlantic region.
These numbers illustrate a fundamental problem with the way appeals are currently dealt with. In close to 90% of the appeals launched, the allegation of wrongdoing is either unfounded or is deemed not to have affected the outcome of the election. The problem is that it usually takes months, if not over a year, for these conclusions to be reached. While an election appeal is outstanding, it is very difficult for a band council, whose very election is called into question, to govern effectively, to make long-term plans and key decisions, and to initiate projects.
We think the problem lies in the fact that the appeal process is simply too easy to engage in by community members whose motives may be questionable, and we also think that the role of the minister in investigating and deciding upon election appeals is a paternalistic and inappropriate intervention in the internal affairs of a first nation.
We need a more rigorous appeal system that does not afford a role for the minister, while at the same time ensuring that frivolous—to use his word—or unfounded allegations do not engage a lengthy appeal process that hampers the first nation's ability to govern.
The APC initially recommended that the role of the minister and his department in election appeals be eliminated in favour of the establishment of independent tribunals.
We are comfortable with the election appeal process in Bill C-9. The courts decide election appeals, impose penalties, and overturn results in municipal, provincial, and federal elections. They could play this same role in first nations elections.
In conclusion, this submission on Bill C-9 to the Standing Committee on Aboriginal Affairs is based on our analysis of how well Bill C-9 responds to the recommendations put forward by our organization when we engaged our first nations members on the issue of elections. We have called for the design and implementation of a new opt-in first nations election act and resulting regulations that would provide an effective and modern system for governing elections for the opting-in first nations.
As evidenced by the recommendations, first nations are interested in having free and fair band council elections that support stable, effective, and accountable first nations governments, as well as supporting the individual rights of their members.
We thank you for providing us with this opportunity to hear the reasons why we support this bill. We ask that you lend your support as well. We strongly believe that all first nations in Canada need other options for addressing these important and pressing governance matters that are currently facing their communities.
Thank you.
