Regulations Amending the Indian Band Election Regulations: SOR/2018-285

Canada Gazette, Part II, Volume 152, Number 26

Registration
SOR/2018-285 December 17, 2018

INDIAN ACT

P.C. 2018-1574 December 14, 2018

Her Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to subsection 76(1) of the Indian Act footnote a, makes the annexed Regulations Amending the Indian Band Election Regulations.

Regulations Amending the Indian Band Election Regulations

Amendment

1 Section 14 of the Indian Band Election Regulations footnote 1 is replaced by the following:

14 The Minister shall report to the Governor in Council when the Minister is satisfied that

Coming into Force

2 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The difference between the language of section 14 of the Indian Band Election Regulations (the Regulations) and section 79 of the Indian Act (the Act) creates an administrative burden that adds to the amount of time it takes to resolve an election appeal. Currently, the Regulations require the Minister of Indian Affairs and Northern Development (the Minister) to report to the Governor in Council when there appears to be election fraud or a violation of the Regulations even if the evidence may be insufficient for the Governor in Council to contemplate setting aside the election under section 79 of the Indian Act. This is inconsistent with the policy objective of the legislation.

Background

The Indian Act and the Indian Band Election Regulations provide the election rules for approximately 180 First Nations who hold their elections under the Indian Act. These rules include authorities for the Minister to receive, review and launch investigations on election appeals in cases of corrupt practices related to an election, a violation of the Act or the Regulations that may have affected the result of an election, or where a person nominated to be a candidate in the election was ineligible to be a candidate. Section 79 of the Indian Act and sections 12 through 14 of the Indian Band Election Regulations guide election appeals.

Under section 79 of the Indian Act, “the Governor in Council may set aside the election of a chief or councillor of a band on the report of the Minister that he is satisfied that

Under section 14 of the Indian Band Election Regulations

“Where it appears that

the Minister shall report to the Governor in Council accordingly.

Under this framework, the standard that must be applied to the evidence in an election appeal to trigger the Minister’s obligation to report to the Governor in Council under section 14 of the Indian Band Election Regulations is very low (an “appearance”). However, the Governor in Council can only contemplate setting aside the election if the Minister reports that she is satisfied that there was a corrupt practice or a violation of the Regulations that might have affected the result of the election. The standard of evidence that must be met for the Minister to declare “satisfaction” is that of a balance of probabilities. This understanding of the different standard of evidence was reiterated in a Federal Court of Canada decision [Good v. Canada (Attorney General), November 15, 2016]. The Court also made it clear that the Minister could not apply the balance of probabilities standard in determining whether to make a report to the Governor in Council under section 14 of the Indian Band Election Regulations.

The difference in the standard of evidence between there being an “appearance” of corrupt practice and the Minister being “satisfied” that there was corrupt practice creates situations where the Minister must make a report to the Governor in Council, which does not allow the Governor in Council to contemplate setting aside the election because the Minister has not indicated that she is satisfied. The requirement for the Minister to report even when the evidentiary standard of a balance of probabilities is not met unnecessarily delays the resolution of the election appeal.

Objectives

The objective of this regulatory initiative is to amend the Indian Band Election Regulations so the reporting requirement uses the same higher standard of evidence required by the Indian Act to set aside an election where fraud or violations of the Regulations are found to have affected the outcome of the election. This would ensure that a report is only made by the Minister when she is satisfied that there is enough evidence (balance of probabilities) to allow the Governor in Council to contemplate setting aside the election.

The provisions of the Indian Band Election Regulations that are amended become relevant only when a band council election held in one of the First Nations operating under the election provisions of the Indian Act is appealed and where the allegations are founded.

Description

To ensure that the Minister’s reporting requirement under the Indian Band Election Regulations and the Governor in Council’s power to set aside an election under section 79 of the Indian Act are triggered by the same standard of evidence, the language in the Indian Act must be reflected in section 14 of the Indian Band Election Regulations.

Section 14 of the Indian Band Election Regulations is amended as follows:

“The Minister shall report to the Governor in Council when the Minister is satisfied that

“One-for-One” Rule

The “One-for-One” Rule does not apply to this initiative, as it does not result in any administrative costs or savings to business.

Small business lens

The small business lens does not apply to this initiative, as it does not result in any costs for small business.

Consultation

In mid-November 2017, a letter outlining the proposed amendment was sent to the First Nations councils elected under the Indian Act election system to which the change applies, and a notice was posted on the First Nations Gazette website. The letter invited chiefs and councillors to convey their questions or concerns. The Department of Indian Affairs and Northern Development did not receive any responses.

On June 30, 2018, this regulatory initiative was prepublished in the Canada Gazette, Part I, for a 30-day comment period. The Department of Indian Affairs and Northern Development did not receive any comments.

Rationale

The amendment will avoid the Minister having to make a report to the Governor in Council when the standard of evidence is not sufficient for the Governor in Council to act on the Minister’s report and set aside an election. Avoiding this step when it is not necessary will lead to a more expeditious resolution to some election appeals.

Benefits and costs

Removing the requirement for the Minister to make a report when the evidence does not allow the Governor in Council to contemplate setting aside an election will reduce the time required to resolve an election appeal when the evidence points only to a mere appearance of corrupt practice or a violation of the Indian Band Election Regulations that might have affected the result of the election.

Implementation, enforcement and service standards

The Regulations Amending the Indian Band Election Regulations came into force upon their registration. This occurred after public notification in the Canada Gazette and the First Nations Gazette.

There are no compliance and enforcement requirements and no implementation or ongoing costs which can be directly associated with this regulatory amendment.

Contact

Melanie Le Ber
Policy Analyst
Governance Operations Directorate
Lands and Economic Development
Email: melanie.leber@canada.ca