Order Amending the Indian Bands Council Elections Order (Cowichan): SOR/2023-244
Canada Gazette, Part II, Volume 157, Number 25
Registration
SOR/2023-244 November 15, 2023
INDIAN ACT
Whereas, by Order in Council P.C. 6016 of November 12, 1951, it was declared that the council of the Cowichan Band, in British Columbia, shall be selected by elections to be held in accordance with the Indian Act footnote a;
Whereas the council of that First Nation has provided to the Minister of Indigenous Services a resolution, adopted on September 26, 2023, requesting that the application of the Indian Bands Council Elections Order footnote b 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;
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 (Cowichan).
Gatineau, November 14, 2023
Patricia Hajdu
Minister of Indigenous Services
Order Amending the Indian Bands Council Elections Order (Cowichan)
Amendment
1 Item 25 of Part I of Schedule I to the Indian Bands Council Elections Order footnote b is repealed.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
Cowichan, in British Columbia, wishes to select its Chief and Council based on its own community leadership selection process that was developed and ratified by the community.
On September 26, 2023, Cowichan requested, by resolution of its Council, to opt out of the election regime of the Indian Act.
Background
A First Nation holding elections under the Indian Act can request, to the Minister of Indigenous Services, an amendment to the Indian Bands Council Elections Order, made pursuant to subsection 74(1) of the Indian Act, to revoke the application of section 74 for the First Nation.
The termination of the application of the election provisions of the Indian 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 afford secret ballot voting, an independent appeals process and that comply with the Canadian Charter of Rights and Freedoms. Furthermore, the community’s election rules and the desire to convert to using them must have received the support of the members of the community. 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 Indian Act can adopt a community election system.
Objective
The objective of this initiative is to revoke the application of the election provisions of the Indian Act for Cowichan through the Order Amending the Indian Bands Council Elections Order (Cowichan) made pursuant to subsection 74(1) of the Indian Act by the Minister of Indigenous Services.
This initiative is limited to and of interest only to Cowichan. 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 Indian Bands Council Elections Order (Cowichan), made pursuant to subsection 74(1) of the Indian Act, revokes the application of the election provisions of the Indian Act for Cowichan, 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 February 24, 2024.
Regulatory development
Consultation
Cowichan held a ratification vote over a period of 17 days and which closed on September 15, 2023, to determine whether its members were in favour of the First Nation being removed from the election provisions of the Indian Act and of adopting the Cowichan custom election code. A total of 332 electors cast ballots, and the number of votes in favour (234) exceeded the number of votes opposed (98). No votes were rejected.
Given that the Order Amending the Indian Bands Council Elections Order (Cowichan) is made at the request of Cowichan, 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 Cowichan. This initiative does not require the Government of Canada to fulfill any consultations and engagement requirements described in a modern treaty.
Instrument choice
Non-regulatory options were not considered, as subsection 74(1) of the Indian Act provides the necessary authority for the Minister of Indigenous Services to revoke the application of section 74 for Cowichan.
Regulatory analysis
The Order Amending the Indian Bands Council Elections Order (Cowichan) is carried out in response to a request from Cowichan that wishes 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 Indian Act. Henceforth, Cowichan 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 Indian 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 a departmental review to ensure that the codes put forth abide by, and comply with, the Canadian Charter of Rights and Freedoms and jurisprudence related to First Nation elections. Once a custom code is implemented, the Department’s role is limited to recording the election results provided by the First Nation. As a result, opting out of the Indian 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. Consequently, the Department works with First Nation leadership to facilitate the transition away from the Indian Act, a federally imposed governance system that does not take into account the 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. With the imposition of the Indian Act, the leadership roles of women, elderly people and youth could have been undermined. Since the 1951 amendments to the Indian Act allowing women to participate within the governance structure, 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 Indian Bands Council Elections Order (Cowichan) is made at the request of the Council of Cowichan. The Cowichan custom election code underwent a community ratification process, wherein a majority of the votes cast by the First Nation’s electors were in favour of the amendment being proposed to the Indian Bands Council Elections Order 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 Cowichan that its Chief and Council be selected by elections held in accordance with the Indian Act. Consequently, the Order Amending the Indian Bands Council Elections Order (Cowichan) ensures that the elections of the Chief and Council can be held under the Cowichan custom election code.
Implementation, compliance and enforcement, and service standards
Compliance with the Cowichan custom election code, the conduct of elections and disputes arising from the elections are now the responsibility of Cowichan.
Contact
Jessica Wong
Acting Director
Governance Operations Directorate
Lands and Economic Development
Indigenous Services Canada
Email: jessica.wong2@sac-isc.gc.ca