Order Amending the Schedule to the First Nations Elections Act (Madawaska Maliseet First Nation): SOR/2023-94
Canada Gazette, Part II, Volume 157, Number 12
Registration
SOR/2023-94 May 18, 2023
FIRST NATIONS ELECTIONS ACT
Whereas by order of the Minister of Indian Affairs and Northern Development SOR/2015-136 of June 3, 2015, it was declared that the council of the Madawaska Maliseet First Nation, in New Brunswick, shall be selected by elections to be held in accordance with the First Nations Elections Act footnote a;
Whereas the council of that First Nation has provided to the Minister of Indigenous Services a resolution, adopted on February 9, 2023, requesting that the application of the First Nations Elections Act footnote a to that council be terminated;
Whereas the council of that First Nation has provided to the Minister a proposed community election code that sets out rules regarding the election of the chief and councillors of that First Nation;
Whereas the request to the Minister and the proposed code were approved by a majority of the votes cast in a secret vote in which a majority of the electors of that First Nation participated;
Whereas the proposed code establishes a procedure for its amendment and has been published by that First Nation on a website maintained by or for it and in the First Nations Gazette;
And whereas there are no outstanding charges under the First Nations Elections Act footnote a against any member of that First Nation;
Therefore, the Minister of Indigenous Services, pursuant to subsection 42(1) of the First Nations Elections Act footnote a, makes the annexed Order Amending the Schedule to the First Nations Elections Act (Madawaska Maliseet First Nation).
Gatineau, May 17, 2023
Patricia Hajdu
Minister of Indigenous Services
Order Amending the Schedule to the First Nations Elections Act (Madawaska Maliseet First Nation)
Amendment
1 Item 1 of the schedule to the First Nations Elections Act footnote a is repealed.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 Order.)
Issues
The Madawaska Maliseet First Nation, in New Brunswick, wishes to select its Chief and Council based on its own community leadership selection process that was developed and ratified by the community.
On February 9, 2023, the Madawaska Maliseet First Nation requested, by resolution of its Council, to opt out of the election regime of the First Nations Elections Act.
Background
A First Nation holding elections under the First Nations Elections Act can request, to the Minister of Indigenous Services, an amendment to the First Nations Elections Act, made pursuant to subsection 42(1) of the First Nations Elections Act, to revoke the application of section 3 for the First Nation.
The termination of the application of the election provisions of the First Nations Elections Act to a First Nation is effected by means of an order of the Minister of Indigenous Services when the Department of Indigenous Services is satisfied that the First Nation has developed suitable election rules that establish a procedure for its amendment. Furthermore, the community’s election rules and the desire to convert to using them must have received the support of the majority of the members of the community in a secret vote in which a majority of the electors participated. Subsection 42(1) of the First Nations Elections Act and Indigenous Services Canada’s Conversion to Community Election System Policy sets out the steps and the conditions under which a First Nation holding elections under the First Nations Elections Act can adopt a community election system.
Objective
The objective of this initiative is to revoke the application of the election provisions of the First Nations Elections Act for the Madawaska Maliseet First Nation through the Order Amending the Schedule to the First Nations Elections Act (Madawaska Maliseet First Nation) made pursuant to subsection 42(1) of the First Nations Elections Act by the Minister of Indigenous Services.
This initiative is limited to and of interest only to the Madawaska Maliseet First Nation. The conversion to a local community election system 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 Schedule to the First Nations Elections Act (Madawaska Maliseet First Nation), made pursuant to subsection 42(1) of the First Nations Elections Act, revokes the application of the election provisions of the First Nations Elections Act for the Madawaska Maliseet First Nation, and establishes that the First Nation will conduct future council elections under its own custom code, and fixes the date of the first election at July 21, 2023.
Regulatory development
Consultation
The Madawaska Maliseet First Nation held a ratification vote over a period of seven days and which closed on December 16, 2022, to determine whether its members were in favour of the First Nation being removed from the election provisions of the First Nations Elections Act and of adopting the Madawaska Maliseet First Nation custom election code. A total of 219 electors cast ballots, and the number of votes in favour (189) exceeded the number of votes opposed (30). No votes were rejected.
Given that the Order Amending the Schedule to the First Nations Elections Act (Madawaska Maliseet First Nation) is made at the request of the Madawaska Maliseet 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 Madawaska Maliseet First Nation. This initiative does not require the Government of Canada to fulfil any consultations/engagement requirements described in a modern treaty.
Instrument choice
Non-regulatory options were not considered, as subsection 42(1) of the First Nations Elections Act provides the necessary authority for the Minister of Indigenous Services to revoke the application of section 3 for the Madawaska Maliseet First Nation.
Regulatory analysis
The Order Amending the Schedule to the First Nations Elections Act (Madawaska Maliseet First Nation) is carried out in response to a request from the Madawaska Maliseet First Nation who wish to hold its band council elections under its community election system.
Benefits and costs
There are no costs associated with the removal of First Nations from the election provisions of the First Nations Elections Act. Henceforth, the Madawaska Maliseet First Nation will assume full responsibility for the conduct of its entire electoral process. The Government of Canada is not involved in elections held under a community election process, nor will it interpret, decide on the validity of the process, or resolve election appeals. When a dispute arises concerning a community election process, it must be resolved according to the related provisions in a community’s election code, or by the courts.
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
This initiative is not under a regulatory cooperation work plan.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus (GBA+)
Community or custom leadership selection processes are often documented in a community’s election code, which provide the rules under which chiefs and councillors are chosen for those First Nations who are not under the First Nations Elections Act election rules. These codes vary depending on the First Nation and are often unique to the specific community. The Department is never involved in elections held under community or custom election processes, nor will it interpret, decide on the validity of the process, or resolve election appeals. However, the conversion process for custom codes requires the development of a community election code which must be approved by the majority of votes cast through a secret ballot in which at least 50% of all the voters of the First Nation participate. Once a custom code is implemented, the Department’s role is limited to recording the election results provided by the First Nation. As such, opting out of the First Nations Elections Act and into a custom code places more control in the hands of communities over their governance systems. This aligns with greater self-determination and supports the restoration of traditional forms of governance that respect and promote the voices of women, youth, elderly people and other community subgroups.
The Government of Canada recognizes that all relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government. As such, we work with First Nation leadership to facilitate the transition to governance systems that take into account specific circumstances and integral matters surrounding the culture and traditions of individual communities.
The traditional governance structures of many nations included women, elderly people, and youth in decision-making processes. For many communities, traditional leadership even followed a matriarchal line. Amendments to many legislative and regulatory initiatives have supported the restoration of women’s roles in decision-making and greater diversity of voices in Indigenous governance.
For example, women now make up more than a quarter of First Nations councillors. The percentage of women elected as councillors has increased since reporting began in 1992, from 21% to 27% in 2019, with a peak of 31% in 2008–2009. Also, close to one in five chiefs in First Nation communities are women. In 1992, 12% of chiefs in First Nation communities were women. Although the proportion increased to 20% by 2008, it declined slightly over the next several years and has remained relatively stable for more than a decade. While work remains to achieve gender parity in leadership roles within First Nation communities, elections held under a custom community code allow participation by any individual seeking leadership during the electoral process. This electoral system enables greater accessibility for electors who may be affected by barriers, such as geographical distance and physical disability, and provides flexible timeframes in which voting is made possible.
As the Department does not currently have any processes for tracking gender identities or sexual orientation of candidates, there is currently no data to reflect the number of 2SLGBTQQIA+ candidates. At this time, the Band Governance Management System (BGMS) has been updated to include Two-Spirit as an option under “Gender” for those elected officials who choose to identify themselves as such. This will allow for a further disaggregation of data as time goes on.
Rationale
The Order Amending the Schedule to the First Nations Elections Act (Madawaska Maliseet First Nation) is made at the request of the Council of the Madawaska Maliseet First Nation. The Madawaska Maliseet First Nation custom election code underwent a community ratification process, wherein a double majority of the votes cast by the First Nation’s electors were in favour of the amendment being proposed to the First Nations Elections Act and were also in favour of future elections being conducted in accordance with that law.
Given the specific request by resolution of the First Nation’s Council, the Minister of Indigenous Services no longer deems it advisable for the good governance of the Madawaska Maliseet First Nation that its Chief and Council be selected by elections held in accordance with the First Nations Elections Act. Consequently, the Order Amending the Schedule to the First Nations Elections Act (Madawaska Maliseet First Nation) ensures that the elections of the Chief and Council can be held under the Madawaska Maliseet First Nation custom election code.
Implementation, compliance and enforcement, and service standards
In compliance with the Madawaska Maliseet First Nation custom election code, the conduct of elections and disputes arising from the elections are now the responsibility of the Madawaska Maliseet First Nation.
Contact
Larry Pardy
Director
Governance Operations Directorate
Lands and Economic Development
Indigenous Services Canada
Email: larry.pardy@sac-isc.gc.ca