In the last session of the Legislature, Bill S-6 was introduced into the Senate and given first reading. It is making its way through the processes of Parliament and may be passed by the end of this year’s sitting-by the end of June 2012.
WHAT DOES BILL S-6 DO?
The main intent of this Bill is to extend the Term of office for Chief and Council to FOUR years, institutes a PETITION process to take out a Chief or Council member and impose greater penalties and imprisonment for offences than under the Indian Act.
This bill is mostly VOLUNTARY and a First Nation can OPT into the First Nations Elections Act by the Council providing the minister with a Resolution. Interestingly enough, it seems that a Chief and Council make this decision without going to the members for approval. (S. 3(1)(a)). The Minister by order will add the First Nation to the schedule of the Act. (s. 3(1)
What is INVOLUNTARY is if the Minister determines that there has been a lengthy dispute over leadership that has compromised the governance of the First Nation or there has been an election set aside due to a corrupt practice. If so, the Minister MAY ORDER that a First Nation be added to the schedule to this Act and the Act will apply to that First Nation (s. 3(1)(b) and (c)).
The Minister’s order adding the First Nation to the Schedule will determine when an election will be held according to the following:
1. If a First Nation opts into the legislation, they must hold an election on the day of which the Chief and Council term would expire. (S. 5(a)(i)).
2. If 5 or more First Nations want a common election date, they can do so and their elections must occur within one Year after the expiration of the term of office of the Chief of council. S. 5(a)(ii).
3. If the Minister involuntarily by order puts the First Nation into the Schedule of the Act, they must have an election within 6 months of the order. S. 5(b).
4. SUBSEQUENT elections for all of these scenarios must be held up to 30 days BEFORE the expiry of the term.
HOW MANY COUNCIL MEMBERS?
This has not changed from Indian Act: One Chief per nation, and one councilor for every 100 members. Minimum of 2 councillors, maximum or 12. What is different is that the Chief and Council may by resolution REDUCE the number of council members to not less than 2. Applies to next election and not by-elections (s. 7). Again, there is no requirement for the Council to consult or get consent of members.
CANDIDATES FOR CHIEF AND COUNCIL
1. You must be an elector to be nominated for Chief or Council.
2. What is different than the Indian Act is that a candidate can only run for the office of Chief or Council and cannot run for both. (ss. 9(1) and (2)).
3. A candidate must be nominated by electors of the First Nation as per the regulations to be established under this law. Electors have to be 18 years of age on date of nomination to nominate, or 18 on date of election to vote. (s. 2 definition of elector in FN Election Act).
4. Candidates must give their consent to run. (s. 9(3)(b)).
5. A candidate must also pay a fee of up to $250 before their name can be entered on the ballot. s. 9(3)(c) and s. 11. A regulation will also be passed with respect to fees for running for office and this fee is refunded if they receive more than 5% of the total votes cast (s. 11.)
6. Also different from current Indian Act is that an elector can only nominate one person for each position to be filled. (s. 10)
7. A person cannot nominate someone they know is not eligible to be a candidate (s. 10).
The candidate with the most votes cast in each positions is elected (s. 23)
If there is a tie, the electoral officer must conduct a draw to break the tie (s. 24)
A by-election MAY be called if there is more then 3 months left in the term of office (s. 25).
The term or a person elected on a by-election is for the remainder of the term of office they were elected to fill (s. 29)
LOSS OF OFFICE
A chief or council member can cease to hold office if they are CONVICTED of an indictable offence AND sentenced to a term of imprisonment of more than 30 consecutive days. This is very different from the Indian Act that only requires conviction or an indictable offence and not imprisonment. So a Chief or Council member could be convicted or an Indictable offence which may be very offensive to their community and not be ousted as Chief because they were not given a prison sentence. In my opinion this is not very progressive thinking for a new Act.
Chief/Council also lose office if they are convicted of an offence under this Act-First Nations Elections Act
They can also lose office if they resign, die or a court order sets aside the election or a by way of a petition that can be conducted under the regulations of this Act.
An elector may challenge the validity of an election by bringing a court case within 30 days to the court in their province or the federal court on the grounds this Act was contravened (ss. 30-33). Any proceedings must be served on the electoral officer and all of those who ran in the election(s. 34). The court may set aside the election and inform the Minister of the decision (s. 35(1))
The federal cabinet (governor in Council may pass regulations with respect to elections including appointment, power, duties and removal of electoral and deputy electoral officers; certification of electoral officer; identification of electors of a participating First Nation; how candidates are nominated; setting out fees for candidates; How voting is carried out including mail in ballots; removal of chief or councillor by means of a petition (s. 41 (a)–(i))
REMOVAL OF FIRST NATION FROM ELECTIONS ACT
A First Nation may present a “community election code” and a resolution asking that their name be removed form the schedule of this Act MAKING IT INAPPLICABLE (s. 42(1)).
“Community Election Code” means a written code setting out rules for the election of the chief and council of the First Nation (s. 42(5))
The Minister MAY remove the First Nation from the Schedule to Act IF:
1. Code establishes an amendment process (s. 42(1)(a)).
2. If the code was approved by a majority of the votes cast in a secret vote in which a majority of the electors took part (s. 42(1)(b)).
3. The code is published on First Nations’ website or in the First Nations Gazette (s. 42(1)(c))
4. There are no outstanding charges under this Act against any member of the First Nation (s. 42(1)(d)).
5. The Community Election Code is effective on Date of Minister’s order (s. 42(2)
6. Amendments to Community Election Code are effective on date of publishing on the website or First Nations Gazette (s. 42(3)).
7. Community Election code is not subject to the Statutory Instruments Act (s. 42(4)).
EFFECTIVE DATE OF FIRST NATIONS ELECTIONS ACT
This act will come into effective once it goes through all the parliamentary processes and on a day to be fixed by an order of the Federal Cabinet (s. 44)
There are many offences set out in this Act and there are two levels of penalties.
It should be noted that if a Chief of Councillor are convicted of an offence by running for office when they are ineligible, attempts to influence people, or disrupts the conduct of the election or electoral officer under this Act cannot run for office for 5 YEARS (s. (40)).
Greater Penalty (s. 39(a) Lesser Penalty (s. 39(2)
CONVICTION ON INDICTMENT TO A FINE OF NOT MORE THAN $5000 OR TO IMPRISONMENT FOR A TERM OF NOT MORE THAN 5 YEARS OR TO BOTH (s. 39(1)(a))
OR on SUMMARY CONVICTION, to a FINE of not more than $2000 or to imprisonment for not more than 6 months, or to BOTH.
SUMMARY CONVICTION TO A FINE OF NOT MORE THAN $1000 OR TO A TERM OF IMPRISONMENT OF NOT MORETHAN 3 MONTHS OR TO BOTH
Candidate: (s. 10)
Consent to be a candidate for an election knowing you are not eligible
Ballot: (s. 16(d)).
Put a ballot in a ballot box knowing they are not authorized to do so under the regulations
INFLUENCE: (s. 12(a)(b)(c)
(a) A person must not in connection with an election influence another person by intimidation, duress or influence to get them to nominate or refrain from nomination a candidate; accept or decline a nomination; withdraw as a candidate.
(b) Also not caused a person to act in a disorderly manner to disrupt the conduct of the nomination meeting or
(c) knowingly publish a false statement that a candidate has withdrawn their candidacy
Influence: (s. 17(b)).
Accept or agree to accept money, goods, employment, or other valuable consideration to vote or not vote for a particular candidate
BALLOTS: (s. 14)
(a) You cannot provide a false name to get a ballot,
(b) have a ballot that is not yours,
(c) purchase a mail in ballot,
(d) sell or give away a mail in ballot,
(e) print or reproduce a ballot
A person cannot post or display IN or on the exterior surface of a polling station any campaign material that promotes or opposes a particular candidate(s. 20(a)).
An elector must not openly declare who they are voting for or voted for (s. 19(b)).
A person must not show their ballot so people can see who they voted for (s. 19(a))
In a polling station influence a person to vote or not vote or to Vote or not vote for a particular candidate (s. 20(c)).
VOTING: (s, 16)
(a) If you vote or attempt to vote when you are not eligible,
(b) attempt to influence another person when you know that are not eligible to vote,
(c) use a forged ballot
(e) Influence a person to vote or not vote for a particular candidate
PETITION (s. 36(b))
A person must not accept money, good, employment or other valuable consideration for signing a Petition to remove someone from office
POLLING STATIONS (s. 20(d)).
A person cannot act or incite another person to act in a disorderly manner in order to disrupt the voting in a polling station
ELECTORAL OFFICERS (s. 38(2))
An electoral/deputy officer fails to carry out their duties under s. 24 or other duties set out in regulations
ELECTORAL OFFICERS: (s. 26)
Intentionally obstruct an electoral or deputy electoral officer to do their duty.
BALLOTS (s. 14(b) and (d))
If a person possesses a ballot not provided to them under the regulations or sells or gives away a ballot
ELECTION: (s. 27)
A person must not intentionally obstruct the conduct of an election
VIOLATION OF ELECTORAL OFFICER ORDER:
If a person refuses to leave a nomination meeting or polling station as ordered by the electoral officer (s. 13(2) or 21(2)).
I had wanted to provide a summary of the proposed legislation for people to understand what is proposed. If there are concerns then it would be a good time to take political action with the Federal Government while it goes through its process and address any issues with organizations and Tribal Council is action is taken. My assumption is that the Federal Government will say that since this is voluntary, that there isn't the need for First Nations' approval. There have been studies and hearings on the need for lengthening First Nations terms due to the uncertainty that two year terms take and this is the result of those studies and hearings.