First Nations should include provisions for emergencies in election codes, experts say

Some experts are saying that First Nations across Canada should consider amending their election codes to include measures that would allow an election to be postponed in case of an emergency. 

The advice comes as leadership in some First Nations like the Acho Dene Koe, in Fort Liard, N.W.T., pop. 685, face controversy over postponing their elections to later this year. 

Floyd Bertrand, a former chief of the First Nation, said there is a lot of shock and disappointment by nation members at chief and council’s decision to postpone the election — but very little they can do about it. 

Lawyer Maggie Wente says she will be advising her First Nations clients to include emergency clauses in future election codes. (Maggie Wente)

“This chief and council is just doing whatever they want,” Bertrand told CBC a few days after the decision was made. 

“A lot of people are offended because they elected this chief and council and they’re supposed to consult with us.”

First Nations in Canada have three sets of guidelines they can use to regulate their elections: the guidelines set out by the Indian Act, the First Nations Elections Act or the creation of a custom elections code, which reflects the traditional governance style of that nation.

There is no way, under either the Indian Act or the First Nations Election Act, to postpone or cancel an election in case of an emergency.  In comparison, Canada’s Election Act gives the country’s chief electoral officer the power to amend parts of the act in case of an emergency in order to safeguard the right to vote and be counted.

Maggie Wente, a partner in the law firm Olthuis Kleer Townshend LLP, has helped many First Nations draft their custom election codes. Wente said some First Nations are now facing a catch-22, where they should consider amending their elections codes to include a section on emergencies but cannot vote for any amendment in a group setting until after the pandemic. 

Hayden King, the executive director of the Yellowhead Institute, says the federal government’s indecision on whether First Nations should postpone elections during the pandemic is paternalistic. (Submitted by Hayden King)

The N.W.T. government has banned indoor gatherings, and outdoor gatherings of more than 10 people, during the pandemic.

Regulations show ‘paternalism’ of federal government

Hayden King, executive director of the Yellowhead Institute at Ryerson University, said the federal government originally advised First Nations to proceed with their elections, then in a second policy directive advised them to postpone but did not provide any mechanisms to extend chief and council’s terms. 

This move had the potential to create a so-called governance gap where First Nations would be left without leadership. 

Lawyer Max Faille says First Nations should be having a more detailed discussion on how to safeguard their elections during the next emergency. (Reid Southwick/CBC)

By April, the federal government created a new set of regulations that would allow the chief and council of any First Nation to extend their mandates by up to a year if elections had to be postponed during the pandemic. 

First Nations shouldn’t really have to be told by an Indian Affairs minister that they can or can’t hold their election.– Hayden King, executive director of the Yellowhead Institute

Chief and councils of First Nations with a customs election code, like in Acho Dene Koe First Nation, could also apply for this exemption. 

In a statement, Indigenous Services Minister Marc Miller said the final decision to postpone an election “ultimately lies with community leadership.” The department, Miller continued, would work with Indigenous leaders no matter what decision they made.

The reversal of the government’s position, King says, showcases the “larger paternalism” that still comes from the department of Indigenous Services. 

“First Nations shouldn’t really have to be told by an Indian Affairs minister that they can or can’t hold their election,” King said. “That paternalism, that ongoing colonialism … has brought that confusion into focus during this time. ” 

CBC contacted Indigenous Services Canada to find out more about why they decided to draft the new regulations, but they did not respond to the request.

First Nations should prepare for next emergency

Max Faille, a partner at the law firm Gowling WLG, said First Nations have largely not been talking about emergency preparedness, including when elections should be held.

He said now is the time to change that. 

“This particular emergency has highlighted that the unpredictable can happen and there may be some situations where it would be very, very unsafe or impossible to hold an election,” Faille said. 

“If that date is a very, very firm one, then it can cause some problems.” 

The lesson for Wente is to help First Nations prepare for the next emergency. 

“You can bet that every single time I help a First Nation with a customs elections code after this, there will be a provision for emergencies,” Wente said.   

Wente said the emergency provision in custom election codes could look similar to regulation set out by the federal government, which include a clear timeline for the extension as well as an understanding of what the First Nation considers an emergency. 

Bertrand said that he wants Acho Dene Koe First Nation to hold public sessions after the pandemic to review the election code. The First Nation has already agreed to review the election code after their next election, in November.

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