Order Amending the Indian Bands Council Elections Order (Ebb and Flow): SOR/2020-201

Canada Gazette, Part II, Volume 154, Number 20

Registration
SOR/2020-201 September 17, 2020

INDIAN ACT

Whereas, by Order in Council P.C. 1701 of March 25, 1952, it was declared that the council of the Ebb and Flow Band, in Manitoba, shall be selected by elections to be held in accordance with the Indian Act footnote a;

Whereas the council of that First Nation adopted a resolution, dated November 13, 2019, requesting that the Minister add the name of that First Nation to the schedule to the First Nations Elections Act footnote b;

And whereas the Minister no longer deems it advisable for the good government of that First Nation that its council be selected by elections held in accordance with the Indian Act footnote a;

Therefore, the Minister of Indigenous Services, pursuant to subsection 74(1) of the Indian Act footnote a, makes the annexed Order Amending the Indian Bands Council Elections Order (Ebb and Flow).

Gatineau, September 16, 2020

Marc Miller
Minister of Indigenous Services

Order Amending the Indian Bands Council Elections Order (Ebb and Flow)

Amendment

1 Item 8 of Part IV of Schedule I to the Indian Bands Council Elections Order footnote 1 is repealed.

Coming into Force

2 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the orders.)

Issues

The Ebb and Flow First Nation, in Manitoba, wishes to select its Chief and Council pursuant to the First Nations Elections Act and associated Regulations.

On November 13, 2019, the Ebb and Flow First Nation has requested, by resolution of its Council, to opt out of the election regime of the Indian Act and to opt into the First Nations Elections Act.

Background

First Nations that hold their elections under the Indian Act and which are seeking a change to their electoral system by opting into the First Nations Elections Act must be concurrently removed from the Indian Bands Council Elections Order, made under the Indian Act, and added to the schedule to the First Nations Elections Act.

Subsection 74(1) of the Indian Act provides the necessary authorities for the Minister of Indigenous Services to make an order to remove the name of a First Nation from the Indian Bands Council Elections Order, as a result of which the application of section 74 of the Indian Act is revoked for that First Nation.

Section 3 of the First Nations Elections Act provides the necessary authorities for the Minister of Indigenous Services to make an order to add the name of a First Nation to the schedule to the First Nations Elections Act, after which the Council of that First Nation shall be selected by elections held in accordance with the Act.

Objective

The objective of this initiative is to

This initiative is limited to and of interest only to the Ebb and Flow First Nation. The adoption of the First Nations Elections Act will serve to build and strengthen the First Nation’s governance autonomy and better address the needs of the community.

Description

The Order Amending the Indian Bands Council Elections Order (Ebb and Flow), made pursuant to subsection 74(1) of the Indian Act, revokes the application of the election provisions of the Indian Act for the Ebb and Flow First Nation. The Order Amending the Schedule to the First Nations Elections Act (Ebb and Flow), made pursuant to section 3 of that Act, adds the Ebb and Flow First Nation under the First Nations Elections Act and fixes the date of the first election of the Council under that Act at November 20, 2020.

Regulatory development

Consultation

The Council of the Ebb and Flow First Nation has indicated that a consultation and engagement exercise was undertaken with community members to consider the adoption of the First Nations Elections Act for the election of its Chief and councillors.

Given that the Order Amending the Indian Bands Council Elections Order (Ebb and Flow) and the Order Amending the Schedule to the First Nations Elections Act (Ebb and Flow) are made at the request of the Ebb and Flow First Nation, it is not considered necessary to undertake consultations over and above those already conducted by the First Nation with its members.

Modern treaty obligations and Indigenous engagement and consultation

There is no potential modern treaty implication, as this initiative responds to the needs and interests of the Ebb and Flow First Nation. This initiative does not require the Government of Canada to fulfill any consultation/engagement requirements described in a modern treaty.

Instrument choice

Non-regulatory options were not considered, as subsection 74(1) of the Indian Act and section 3 of the First Nations Elections Act provide the necessary authorities for the Minister of Indigenous Services to revoke the application of section 74 of the Indian Act for the Ebb and Flow First Nation and to add the First Nation to the First Nations Elections Act.

Regulatory analysis

The Order Amending the Indian Bands Council Elections Order (Ebb and Flow) and the Order Amending the Schedule to the First Nations Elections Act (Ebb and Flow) are carried out in response to a request from the Ebb and Flow First Nation, who wishes to hold its band council elections under the First Nations Elections Act and associated Regulations.

First Nation leaders elected under the First Nations Elections Act and its Regulations will have increased legitimacy amongst the members within its own community and amongst potential investors and stakeholders. This increased legitimacy is a contributing factor in attracting partnerships and investments that will benefit the First Nation as a whole.

Benefits and costs

There are no costs associated with removing First Nations from the election provisions of the Indian Act and adding their names to the schedule to the First Nations Elections Act.

First Nations who move from the Indian Act election system to the First Nations Elections Act will realize cost savings from only having to hold a general election every four years, instead of every two years. A significant portion of the total cost incurred for an election is to compensate the electoral officer for his or her time, and in some cases, to cover travel expenses. In addition, there are costs incurred for printing materials, notices and ballots, for postage, envelopes, general office supplies, rental space for off-reserve polling stations, ballot boxes and voting screens.

These savings could be redirected to further governance improvements within the First Nation. With longer terms of office, First Nations governments will be better positioned to plan and implement longer-term measures that in themselves could result in overall cost savings. For example, goods or services acquired through contractual agreement tend to be less costly if the agreement is over a longer period.

Small business lens

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

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 businesses.

Regulatory cooperation and alignment

Given that opting into the First Nations Elections Act is made at the request of the Ebb and Flow First Nation, through resolution of its Council, this initiative is not under a regulatory cooperation work plan.

Strategic environmental assessment

This initiative has no potential for environmental effects.

Gender-based analysis plus

This initiative has no potential for gender-based analysis plus (GBA+) impacts.

Rationale

The Ebb and Flow First Nation is removed from the Indian Bands Council Elections Order pursuant to the Indian Act and is added to the schedule to the First Nations Elections Act at the request of the Council of the First Nation, which believes that the First Nations Elections Act presents a better electoral option that will benefit its community.

Implementation, compliance and enforcement, and service standards

There are no compliance and enforcement requirements and no implementation or ongoing costs which can be directly associated with terminating the application of the election provisions of the Indian Act and amending the schedule to the First Nations Elections Act.

In compliance with the First Nations Elections Act and associated Regulations, the conduct of elections and disputes arising from them are the responsibility of the Ebb and Flow First Nation and the electoral officer appointed by the First Nation; however, the First Nations Elections Act provides that an election can be contested by application to a federal or provincial court. The offences and penalties provided in the First Nations Elections Act — which are enforced by local law enforcement and prosecuted by the Public Prosecution Service of Canada — will deter questionable election activities, such as vote buying, bribery and voter intimidation. Under the First Nations Elections Act, the courts are able to impose fines and terms of imprisonment on persons found guilty of an offence.

Contact

Yves Denoncourt
Acting Director
Governance Operations Directorate
Lands and Economic Development
Indigenous Services Canada
Email: yves.denoncourt@canada.ca