First Nation Elections and the COVID-19 Pandemic
If you are currently a chief or councillor, and your band elections are scheduled for this fall, you may be wondering if it is possible to cancel or postpone your community’s election because of the health risks posed by the Covid-19 pandemic. For example, you may be concerned about the spread of Covid-19 because of the public gatherings and close personal interactions that happen during elections.
The answer is yes, you can cancel or postpone your election, because of the First Nations Election Cancellation and Postponement Regulation (Prevention of Diseases).
The First Nations Election Cancellation and Postponement Regulations
To help First Nation communities prevent the spread of Covid-19 on the reserve, and to address the public health risks associated with holding an election during the Covid-19 pandemic, Indigenous Services Canada developed the First Nations Election Cancellation and Postponement Regulation (Prevention of Diseases) (“FNECPR” or the “regulations”).
The FNECPR has been in force since April 8, 2020 and it was originally set to be repealed one year later, which would have been April 8, 2021. However, due to the unpredictable nature of the pandemic and the highly contagious variants of Covid-19, an amendment was made to the regulations to change its repeal date to October 8, 2021. Of course, considering the above, it is possible that this date may change again.
Regarding cancellations or postponements, the current regulations contain provisions for cancelling or postponing elections under the:
- Indian Act;
- First Nations Elections Act; and
- Elections According to Customs
General Provisions of the FNECPR
For each of the governance structures listed above, the regulations allow band councils to cancel or postpone their elections if it is “necessary to prevent, mitigate or control the spread of diseases on the reserve.” Band councils cannot cancel or postpone their elections under the regulations for any other reason.
Subsection 6(1) places a restriction on cancellations or postponements for elections under the Indian Act and the First Nations Elections Act. For bands governed by these statutes, the regulations prohibit chiefs and councillors from extending their tenure or term of office by more than six months at a time or beyond December 31, 2021. Moreover, tenures or terms cannot be extended more than twice.
Subsection 7(1) places an onus on the band council, when it cancels or postpones an election, to provide the Minister with a resolution to that effect as soon as it is feasible. The same requirement applies if/when the band council decides to cancel or postpone a subsequent election under the regulations.
The Indian Act
For bands under the Indian Act, the council of a First Nation may, within 90 days before their tenure of office ends, extend their tenure. If the band council decides to do so, they must at the same time cancel or postpone their election.
If the election is cancelled, the band council must 1) call a new election for a day that is no more than thirty (30) days before their extended tenure ends; 2) unless otherwise directed by the minister or a person so authorized, the electoral officer who was appointed by the council must, in the presence of two witnesses who must make a declaration that they witnessed the destruction, destroy all election documents that contain personal information and destroy without opening all envelopes they have received that contain a mail-in ballot; 3) the electoral officer and any deputy electoral officers are then removed from office once these documents are destroyed; and 4) any action required by the Indian Band Election Regulations before the election are deemed not to have been performed.
If the election is postponed, the band council must 1) fix a new day for the election that is no more than 30 days before their extended tenure of office ends; and 2) the electoral officer must, until the day on which the election is held, retain under seal all envelopes that contain mail-in ballots that they have received.
The First Nations Elections Act
For bands under the First Nations Elections Act, the rules surrounding the cancellation or postponement of elections are similar to bands under the Indian Act. The two differences under cancellation are that 1) the electoral officer who was appointed by the council must destroy all election documents containing personal information, all mail-in ballot packages, and all ballots cast in advance polling, and 2) any action required under the First Nations Elections Regulations to have been performed before the election are deemed not to have been performed.
If the election is postponed, the only difference is that the electoral officer must, in accordance with the First Nations Elections Regulations, retain any envelope that contains a mail-in ballot, or any ballot cast during advance polling.
Elections According to Custom
For bands governed by their own customs, the regulations simply provide that the chief and council may extend their term of office if “it is necessary to prevent, mitigate or control the spread of disease on its reserve, even if the custom does not provide for such a situation.”
In Bertrand v Acho Dene Koe First Nation, 2021 FC 287 (“Bertrand”), Acho Dene Koe First Nation (“Acho Dene”), whose band council was elected according to their community’s customs, used the regulations and its customary law to postpone its election twice and extend its council’s term of office by approximately one year. In response to this the Applicant, Mr. Bertrand, challenged the validity of the regulations and Acho Dene Koe’s decision to postpone its election.
In short, the federal court found that:
- Acho Dene failed to demonstrate that the practice of cancelling elections in exigent circumstances, such as the Covid-19 pandemic, was “firmly established, generalized and followed consistently and conscientiously by a majority of the community.” Therefore, the band council could not rely on its customary law to cancel the election; and
- Section 73(1)(f) of the Indian Act, which provides that “The Govenor in Council may make regulations … (f) to prevent, mitigate and control the spread of diseases on reserves, whether or not the diseases are infectious or communicable…”, which the Attorney General asserted that the regulations were authorized by, does not allow Parliament to make regulations dealing with elections.
This second finding is significant because it could be argued that the entire regulation was enacted beyond the federal government’s scope of authority. However, the final outcome remains to be seen as the Government of Canada has announced that it will appeal the decision.
Paquette and Associates can help Indigenous communities with balancing the importance of timely elections and the healthrisks posed by the Covid-19 pandemic, whether band elections are governed by the:
- Indian Act;
- First Nations Elections Act; or
- Elections According to Community Customs
Elections are important to all individuals. Knowing how and when to properly postpone elections and give notice to community members is key to getting consensus and minimizing the appearance and the reality of unduly extending the terms of incumbent First Nation Governance, which could lead to litigation and unrest in the community.
Author: Joshua A. Sinoway
The information provided in this Article is not intended to be professional advice, and should not be relied on by any reader in this context. For advice on any specific matter, you should contact legal counsel, or contact Rachael Paquette. Paquette & Associates Lawyers disclaims all responsibility for all consequences of any person acting on or refraining from acting in reliance on information contained herein.