Mr. Speaker, I am rising to speak to 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.
Before I start, I would like to read from the United Nations Declaration on the Rights of Indigenous Peoples. In article 18, is says:
Indigenous peoples have the right to participate in decision-making in matters that would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
That particular section of the UN Declaration on the Rights of Indigenous Peoples is particularly important because, of course, what we are talking about today is how first nations elect their chiefs and council members.
I will turn for a moment to the legislative summary. It indicates that, “First Nations may choose to opt in to the new elections regime proposed under the legislation, or they may be brought under the new elections regime by ministerial order in some circumstances.”
I would agree with previous speakers that moving to a four-year term on an opt-in basis absolutely makes sense, but there are other elements of this legislation that first nations have spoken out against. If the government would entertain some amendments to this piece of legislation, I am sure we could all agree on how to move forward.
I would like to go back to the legislative summary:
According to Aboriginal Affairs and Northern Development Canada, 240 First Nations hold elections pursuant to the Indian Act, 341 First Nations conduct “custom” or community-based elections rather than elections under the Indian Act, and 36 First Nations select their leaders according to their self-government agreements.
This is an important point because of the fact that there are already a variety of ways by which first nations select their leadership.
The legislative summary notes that the Senate released a report entitled, “First Nations Elections: The Choice is Inherently Theirs” and says:
It indicated that the existing two-year term of office imposed on First Nations by the Indian Act is too short to provide political and economic stability, often creating deep divisions in communities. The report further noted that Indian Act election systems are often fraught with administrative difficulties and inconsistencies, resulting in frequent election appeals.
The legislative summary goes on to talk about the number of times attempts have been made to make reforms to the Indian Act around the elections process. It notes that:
Attempts to reform the Indian Act election system arise from growing First Nations dissatisfaction with the operation of the regime, including its administrative weaknesses, such as loose nomination procedures and a mail-in ballot system that is open to abuse.
Other substantive concerns with Indian Act elections relate to the degree of ministerial intervention, the lack of an adequate and autonomous appeals process and the absence of flexibility to set the terms of office and to determine the size of councils.
It is those points around the ministerial intervention and the autonomous appeals process that are sticking points in the current piece of legislation.
The summary goes on to talk about the fact that a number of recommendations arose as a result of the report of the Royal Commission on Aboriginal Peoples, and some of these recommendations that are not included in this piece of legislation are as follows, and this is from 1996:
With respect to elections, a key proposal was to develop community leadership selection systems and remove the application of the Indian Act as a preliminary measure to re-establishing traditional forms of leadership....To accomplish this, the following steps were suggested: community-level development of custom codes; community development of local dispute resolution procedures; the establishment of regional First Nations capacity and advisory bodies;
And so on.
Again, some of the elements that were recommended back in 1996 are not present or appropriately resourced under the current legislation. I mentioned earlier that one of the sticking points was under clause 3(1), which states that the minister may, by order, add a first nation to this schedule of first nations participating in the new election system.
Once again, I know that the former parliamentary secretary pointed out the fact that this power has been in place, but here we are reinforcing and reiterating that power once again. This is one point where first nations are saying to butt out. They should be able to have an appeals process internally to look at this. I will speak to this point in a little more detail later.
The other problem with this legislation is the regulations in clause 41. The clause provides for the governor-in-council to have broad and general powers to make regulations with respect to elections. Again, I will touch on this point a little later.
With regard to the support, initially we had the Assembly of Manitoba Chiefs and the Atlantic Policy Congress that were engaged in consultation around the development of the legislation. However, this is a pattern that we continue to see with the government. There are reports and recommendations from first nations, and then the government disregards some or all of those recommendations and reports.
This is the case in point. According to the legislative summary:
Opinions on the ensuing legislation are divided among First Nations organizations involved in the engagement process: while some support the new legislation, others do not view it as reflective of the report and recommendations.
Some First Nations leaders expressed strong support for Bill S-6. At the December 2011 announcement of the new legislation...the Atlantic Policy Congress, echoed the government's view that the Act will support sound governance and increase economic development in First Nations communities.
The current Grand Chief of the Assembly of Manitoba Chiefs, Derek Nepinak, however, has expressed strong opposition to Bill S-6. In a written statement, quoted in several media outlets on 7 December 2011, 37 Grand Chief Nepinak stated that the proposed legislation does not fulfill the recommendations put forth by the Assembly of Manitoba Chiefs, and represents an apparent “attempt by the Minister to expand governmental jurisdiction and control of the First Nations electoral processes that are created pursuant to the Indian Act or custom code.”
In particular, Grand Chief Nepinak has criticized the following features of Bill S-6: in certain circumstances, the Minister’s ability to bring First Nations under the legislation without their consent; the lack of a First Nations appeals process; and the conduct of draws to resolve tie votes in elections for band council chiefs and councillors.
There is not the kind of support that the government is touting. I want to turn to a legal opinion from December 29, 2011. This has been provided primarily to first nations using a customary election code or regulations, and this is the legal opinion, and this is why it is important for first nations that are currently under custom code:
Based on a preliminary review of the proposed legislation, Bill S-6 may offer an improvement over the existing Indian Act election provisions. However, for those First Nations that already operate under their own customary election codes or regulations, opting into the First Nations Elections Act would provide only marginal benefits and may in some instances be viewed as a step back in a First Nations pursuit of self-government.
While there may be specific provisions within Bill S-6 that a particular First Nation may find attractive (such as a four year election term), First Nations should consider amending their existing custom codes or regulations to incorporate any provisions of interest as opposed to opting into the First Nations Elections Act.
I mentioned earlier clause 41 and the concerns. What we saw with Bill S-8, the safe drinking water for first nations act, was that bill was enabling legislation that laid out a process and some content for regulations.
Of course, what happened is that there is no meaningful provision for first nations to be involved in the development of regulations and the subsequent implementation of regulations. That is the same case in this legislation.
The legal brief says:
The Regulations—the Devil is in the Details
At this time, all that the Government has shared with First Nations are the provisions within Bill S-6. Section 41 of the Bill provides for the regulatory making powers of the Governor in Council. The Regulations to be passed include those dealing with the appointment, powers and duties of Electoral Officers, the certification (decertification) of Electoral Officers, who are electors, who and how candidates may be nominated, how voting is to be conducted, and the removal of a Chief or Councillor by way of a petition and anything else in the Act that requires regulation.
Those are pretty broad scopes of power under the regulations, and nowhere in Bill S-6 does it talk about how first nations will be included in that process. People are right to raise flags around that.
The brief goes on to say:
Ultimately, how attractive this legislation will be to any First Nation will depend greatly on what is, or is not included or provided for within the Regulations. However, it should be kept in mind that Regulations are designed and intended to be amended easily and quickly. Therefore, while a First Nation may opt into the First Nations Elections Act on the basis of what it considers to be attractive Regulations, there is no guarantee that the Governor in Council will not change these Regulations to something that a First Nation may find less appealing.
That is why when we had Bill S-8 before committee, New Democrats proposed that a clause be inserted that required regulations to come back before the House and referred to the appropriate committee, so there would be some parliamentary oversight. Otherwise, there would be no parliamentary oversight.
There is a precedent for it because in 2003 or 2004, the Quarantine Act had a clause that had the regulations come back before the appropriate committee.
Under the clause opting into the first nations election act, pursuant to section 3(1)(b), the minister may order a first nation to use the first nations elections act in circumstances where the minister is satisfied that a protracted leadership dispute has significantly compromised the governance of that first nation. What qualifies as leadership dispute in the first instance, let alone a protracted leadership dispute? There is no definition, no qualifiers around that.
Under what circumstances is there significantly compromised governance? This section is extremely subjective and at the sole discretion of the minister there is a potential that any first nation could be forced to use the first nations election act if chief and council cannot agree on issues such as budgets, funding, housing and so on, on what the minister may consider to be a timely basis.
On the opting out piece, opting out of the first nations election act, while it is simple for a first nation to be added to the first nations election act, being removed from its operation is a far more complex undertaking. To be removed from the act, a first nation must satisfy a number of specific requirements and the minister “may”, not “shall”, remove the first nation from the operations of the act.
The key requirement that must be satisfied includes establishing a new election code that is approved by a majority of the majority of the voters. The code must include amendment procedures and there can be no outstanding charges under the act against any member of the first nation. Even if these requirements are met, it still remains at the minister's discretion as to whether the transfer out of the act will be approved or not. Therefore, we again caution first nations already using a custom election code or regulation, their customary powers should be guarded and protected jealously since it may be difficult to regain these customary powers once a first nation opts into the first nations elections act.
I mentioned earlier the appeals procedure. When I quoted Article 18 of the UN Declaration on the Rights of Indigenous Peoples, it indicated that representatives needed to choose their own procedures as well as maintain their own indigenous decision-making institutions. The appeal procedure is problematic in this act.
Under sections 30 to 35 of the proposed legislation, there is only one way to appeal an election: apply to either the Federal Court of the court of Queen's bench for a review of the election. The only ground available to overturn an election is to prove that a provision of the legislation or regulations was contravened and the contravention was likely to affect the outcome of the election. Internal appeal mechanisms are not provided for.
Using the courts is a costly and time-consuming process. The legislation does not provide for funding of these appeals to the court. Therefore, only applicants who can afford to hire a lawyer are likely to pursue an appeal. Further, appeals to the courts can be time-consuming and may take months for an appeal to be dealt with. On a side note, we only have to look to what is going on currently with various alleged misdemeanours, or perhaps outright fraud, under the current Canada Elections Act and the amount of time it takes for that process to unfold. We are going to see the same kind of process when it comes to forcing first nations to resort to the courts in order to sort some of this out.
On the other hand, if the regulations are to provide that the first nations will fund appeals or if courts make a practice that all or most appeals will be funded or paid for by the first nations, significant expenses may be incurred by first nations following every election. Many, if not most, custom election codes or regulations provide for some form of internal appeal process that will allow first nations members to file and have heard an appeal or grievance in regard to an election, usually without the need to hire a legal counsel. These processes will allow for most members with a grievance to participate in the appeal process if so inclined.
Further, if an appeal is unsuccessful, the aggrieved member may still choose to pursue the matter to court. That is, most of the existing custom election codes and regulations provide or allow for both an internal appeal process and a court-driven appeal. The proposed legislation only provides for the courts to be the final arbiter of election disputes. That is an enormous problem. It would seem perfectly reasonable, and again I go back to the 1996 Royal Commission on Aboriginal Peoples report, that indicated dispute resolution mechanisms needed to be developed by the first nations themselves. It would seem a perfectly reasonable approach to take.
I referenced clause No. 41 earlier in my speech about the problem with having regulations developed essentially without input and without any oversight.
In addition, we proposed another amendment with regard to Bill S-8, which would be an appropriate amendment for this legislation with regard to looking at whether there would be unintended consequences with legislation.
With respect to Bill S-8, we proposed that within five years after the act came into force, a comprehensive review of the provisions and operations of the act and of the regulations made under this act would have to be undertaken by such committee of the Senate and of the House of Commons as may be designated and so on.
The purpose of having some sort of five year review would be to look at what was happening with the regulations and also to look at whether the act was achieving its intended objective.
We heard from other members who spoke in the House about the fact that the legislation would provide stability in the communities and add to economic development opportunities.
I was first elected in 2004 and was in constant election mode. I understand the challenges for chiefs and councils when they are in two year election terms. It is not a reasonable period of time to develop and implement an agenda and to look at some of the results of it. If the government had just stuck to the four year term in the legislation, we would have had no problems supporting the bill, but it had to stick in other mechanisms.
I want to turn briefly to testimony that was heard in the Senate with regard to objections to the bill, and I want to refer to Derek Nepinak, the grand chief of the Assembly of Manitoba Chiefs. I will read some of his testimony before the Senate. I have no idea how much time we will have when the bill gets to committee, because time allocation has become a way of doing business here. I do not even know if we will have time to have witnesses before committee. Chief Nepinak said:
Regarding clause 3(1)(a), we know already that the development of custom codes in our communities and the passages of them requires a double majority vote, meaning that we need to hold a referendum which includes a majority of the electors, as well as a majority passing the customary code. That double majority is reflective of the ability and willingness of our community members to participate in governance processes. I think that this bill undermines that somewhat in allowing a chief and council to move a resolution to opt into this new legislation. I think that is problematic because it excludes members of the community.
I have concern with respect to the phrase “protracted leadership dispute”. I am not quite sure what that means. I find the term overly ambiguous. It opens up a broader discretion for the minister to impose Bill S-6 on a community that might not otherwise wish to be part of the new legislation.
He goes on to outline a number of other clauses. Then he goes on to say:
Speaking broadly with respect to clauses 30 to 35 on contested elections, the chiefs in Manitoba supported the resolution to move forward in the discussion on the basis that we would discuss a process of tribunals or regional tribunals to engage the challenges resulting in our elections. I think it is fundamental to the self-determining efforts of communities to be able to engage their conflicts, be able to engage conflict, and to make difficult choices. I believe it is in the form of a tribunal...that...really come to the surface...the form of a decision-making body with authority—that our values and our systems of decision making...We can really show, and once again redevelop, those systems that were once there. I believe we need to be shown the respect and given the room to develop these tribunals so that we can adjudicate these matters within our systems. I believe that is a critical piece of the legislation that is missing.
I want to quote Ms. Cook-Searson, who also was before the Senate. She said:
I just wanted to comment on the question...One of my points was that we should have an independent First Nations electoral commission or a First Nations tribunal to settle any election disputes because it is afforded already for the federal government, the provincial governments. You have mechanisms in place where it is part of the regular part of democracy. If it is good for the federal government and the provincial governments, why is it not good for First Nations? Why not an option for a truly independent electoral commission? I do agree there will be disputes and you do need a mechanism to deal with them. However, rather than go through the minister or the cabinet or through the courts, we could have this independent First Nation electoral commission or First Nations tribunal to settle any election disputes.
Ms. Cook-Searson raises a really valid point. Elections Canada is doing its job currently about some allegations with respect to members of the House. Why do first nations not have access to the same kind of process?
I will end on that note. I hope the government will entertain some amendments to the legislation.
