Bill S-6

1st Session, 41st Parliament,

60-61 Elizabeth II, 2011-2012

senate of canada

BILL S-6

An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the First Nations Elections Act.

INTERPRETATION

2. The following definitions apply in this Act.

“council” has the meaning assigned by the definition “council of the band” in subsection 2(1) of the Indian Act.

“deputy electoral officer” means a person so appointed in accordance with the regulations.

“election” means the election of the chief and councillors of a participating First Nation, including by way of a by-election.

“elector” means a person who is registered on a Band List, as defined in subsection 2(1) of the Indian Act, and

(a) in relation to an election, is 18 years of age or older on the day of the election;

(b) in relation to a petition to remove from office a chief or councillor, was 18 years of age or older on the day of the election of that chief or councillor;

(c) in relation to a nomination referred to in section 9, is 18 years of age or older on the day of the nomination; or

(d) in relation to a vote on a proposed community election code referred to in paragraph 42(1)(b), is 18 years of age or older on the day of the vote.

“electoral officer” means a person so appointed in accordance with the regulations.

“First Nation” has the meaning assigned by the definition “band” in subsection 2(1) of the Indian Act.

“mail-in ballot” means a ballot that is sent to an elector by mail or otherwise provided to an elector other than at a polling station.

“member”, in relation to a participating First Nation, means a person whose name appears, or who is entitled to have their name appear, on the Band List maintained for that First Nation under section 8 of the Indian Act.

“Minister” means the Minister of Indian Affairs and Northern Development.

“nomination meeting” means a meeting held for the purpose of nominating candidates for an election.

“participating First Nation” means a First Nation that is named in the schedule.

“reserve” has the same meaning as in subsection 2(1) of the Indian Act.

ADDING TO THE SCHEDULE

3. (1) The Minister may, by order, add the name of a First Nation to the schedule if

(a) that First Nation’s council has provided to the Minister a resolution requesting that the First Nation be added to the schedule;

(b) the Minister is satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation; or

(c) the Governor in Council has set aside an election of the Chief and councillors of that First Nation under section 79 of the Indian Act on a report of the Minister that there was corrupt practice in connection with that election.

(2) The order must specify the date of the first election for the First Nation in respect of which the order is made.

(3) The chief and councillors of a First Nation in respect of which an order is made who hold office on the day on which the order is made continue to hold office until the day of the first election and cease to hold office on that day.

(4) Subsection 7(1) does not apply to the council that is in office on the day on which the order is made.

4. In the event of a change to the name of a participating First Nation, the Minister may, by order, amend the schedule to reflect the change.

ELECTION DATES

5. The date of a first election must not be later than,

(a) in the case of a First Nation whose name is added to the schedule under paragraph 3(1)(a),

(i) the day on which, but for the making of the Minister’s order, the term of office of its chief and councillors would have expired, or

(ii) if that First Nation’s council has requested in their resolution the establishment of a common election date with five or more other First Nations whose councils have made a similar request, one year after the earliest day on which, but for the order, the term of office of the chief and councillors of any one of those First Nations would have expired; and

(b) in the case of a First Nation whose name is added to the schedule under paragraph 3(1)(b) or (c), six months after the day on which the order is made.

6. Subsequent elections, other than by-elections, must be held within the period of 30 days before the day on which the term of office of the incumbent chief and councillors expires.

COUNCIL

7. (1) The council of a participating First Nation is to consist of one chief and, for every 100 members of that First Nation, one councillor, but the number of councillors is not to be less than two or more than 12.

(2) Despite subsection (1), the council may, by resolution, reduce the number of councillor positions but to not less than two. The reduction is applicable as of the next election that is not a by-election.

8. The resolution referred to in subsection 7(2) is not subject to the Statutory Instruments Act.

CANDIDATES

9. (1) Only an elector of a participating First Nation is eligible to be nominated as a candidate for the position of chief or councillor of that First Nation.

(2) An elector is not to be nominated as a candidate for the position of chief and the position of councillor in the same election.

(3) An elector becomes a candidate only if

(a) their nomination is moved and seconded, in the manner prescribed by regulation, by other electors of the First Nation;

(b) they provide their consent to be a candidate; and

(c) the fee imposed on them under section 11, if any, is remitted.

(4) An elector must not nominate more than one candidate for each position to be filled.

10. A person must not, in connection with an election, consent to be a candidate knowing that they are not eligible to be a candidate.

11. Participating First Nations may, if authorized to do so by regulation, impose a fee of up to $250 on each candidate in an election, to be refunded if the candidate receives more than five per cent of the total votes cast.

12. A person must not, in connection with an election,

(a) by intimidation or duress, attempt to influence another person to

(i) nominate or refrain from nominating a particular candidate,

(ii) accept or decline a nomination, or

(iii) withdraw as a candidate;

(b) act, or incite another person to act, in a disorderly manner, with the intention of disrupting the conduct of a nomination meeting; or

(c) knowingly publish a false statement that a candidate is withdrawing or has withdrawn their candidacy.

13. (1) An electoral officer or deputy electoral officer may order a person to leave a nomination meeting if the person is committing an offence under this Act that threatens the maintenance of order at the meeting, or if the officer believes on reasonable grounds that the person has done so.

(2) A person to whom an order is given under subsection (1) must obey it without delay.

BALLOTS

14. A person must not, in connection with an election,

(a) provide a false name in order to obtain a ballot;

(b) possess a ballot that was not provided to them in accordance with the regulations;

(c) purchase a mail-in ballot that was issued to another person;

(d) sell or give away a mail-in ballot; or

(e) print or reproduce a ballot with the intention that the print or reproduction be used as a genuine ballot, unless that person is authorized to do so under the regulations.

VOTING

15. (1) Subject to subsection (2), only an elector of a participating First Nation is entitled to vote in an election held by that First Nation.

(2) An elector who is appointed as the electoral officer in respect of an election is not entitled to vote in that election.

16. A person must not, in connection with an election,

(a) vote or attempt to vote knowing that they are not entitled to vote;

(b) attempt to influence another person to vote knowing that the other person is not entitled to do so;

(c) knowingly use a forged ballot;

(d) put a ballot into a ballot box knowing that they are not authorized to do so under the regulations;

(e) by intimidation or duress, attempt to influence another person to vote or refrain from voting or to vote or refrain from voting for a particular candidate; or

(f) offer money, goods, employment or other valuable consideration in an attempt to influence an elector to vote or refrain from voting or to vote or refrain from voting for a particular candidate.

17. An elector must not, in connection with an election,

(a) intentionally vote more than once in respect of any given position of chief or councillor; or

(b) accept or agree to accept money, goods, employment or other valuable consideration to vote or refrain from voting or to vote or refrain from voting for a particular candidate.

18. Voting at an election is to be conducted by secret ballot.

19. An elector must not, in connection with an election,

(a) show their ballot, when marked, to reveal the name of the candidate for whom the elector has voted, other than in accordance with the regulations; or

(b) in the polling station, openly declare for whom the elector intends to vote or has voted.

POLLING STATIONS

20. A person must not, in connection with an election,

(a) post or display in, or on the exterior surface of, a polling station any campaign literature or other material that promotes or opposes the election of a particular candidate;

(b) within hearing distance of a polling station, orally promote or oppose the election of a candidate;

(c) in a polling station, attempt to influence an elector to vote or refrain from voting or to vote or refrain from voting for a particular candidate; or

(d) act, or incite another person to act, in a disorderly manner with the intention of disrupting the conduct of the vote in a polling station.

21. (1) An electoral officer or deputy elector officer may order a person to leave a polling station if the person is committing an offence under this Act that threatens the maintenance of order at the polling station, or if the officer believes on reasonable grounds that a person has done so.

(2) A person to whom an order is given under subsection (1) must obey it without delay.

22. A person must not, in connection with an election, destroy, take, open or otherwise interfere with a ballot box knowing that they are not authorized to do so under the regulations.

AWARDING OF POSITIONS

23. The chief and councillor positions of a participating First Nation are awarded to the candidates for those positions who receive the highest number of votes.

24. If it is not possible to award a position under section 23 because there are two or more candidates with the same number of votes, the electoral officer must conduct a draw to break the tie.

BY-ELECTIONS

25. If the chief or a councillor of a participating First Nation ceases to hold office more than three months before the day on which their term of office would have expired under subsection 28(1) or section 29, the council of that First Nation may direct that a by-election be held for that position, in accordance with the regulations.

OBSTRUCTION OF ELECTIONS

26. A person must not intentionally obstruct an electoral officer or deputy electoral officer in the performance of their duties.

27. A person must not, in a manner that this Act does not otherwise prohibit, intentionally obstruct the conduct of an election.

TERM OF OFFICE

28. (1) Subject to subsection (2) and section 29, the chief and councillors of a participating First Nation hold office for four years commencing at the expiry of the term of office of the chief and councillors that they replace.

(2) A chief or councillor of a participating First Nation ceases to hold office if

(a) they are convicted of an indictable offence and sentenced to a term of imprisonment of more than 30 consecutive days;

(b) they are convicted of an offence under this Act;

(c) they die or resign from office;

(d) a court sets aside their election under subsection 35(1); or

(e) they are removed from office by means of a petition in accordance with the regulations.

29. A chief or councillor who is elected in a by-election held under section 25 holds office commencing on the date of their election for the remainder of the term of office that they were elected to fill.

CONTESTED ELECTIONS

30. The validity of the election of the chief or a councillor of a participating First Nation may be contested only in accordance with sections 31 to 35.

31. An elector of a participating First Nation may, by application to a competent court, contest the election of the chief or a councillor of that First Nation on the ground that a contravention of a provision of this Act or the regulations is likely to have affected the result.

32. An application must be filed within 30 days after the day on which the results of the contested election were announced.

33. The following courts are competent courts for the purpose of section 31:

(a) the Federal Court; and

(b) the superior court of a province in which one or more of the participating First Nation’s reserves are located.

34. An application must be served by the applicant on the electoral officer and all the candidates who participated in the contested election.

35. (1) After hearing the application, the court may, if the ground referred to in section 31 is established, set aside the contested election.

(2) If the court sets aside an election, the clerk of the court must send a copy of the decision to the Minister.

PETITION FOR REMOVAL FROM OFFICE

36. A person must not

(a) provide money, goods, employment or other valuable consideration to another person for the purpose of obtaining their signature on a petition for the removal from office of a chief or councillor of a participating First Nation; or

(b) accept money, goods, employment or other valuable consideration in exchange for their signature on such a petition.

OFFENCES

37. (1) Every person is guilty of an offence who contravenes paragraph 16(a) or (b) or 17(a), section 22 or paragraph 36(a).

(2) Every person is guilty of an offence who contravenes

(a) section 10; or

(b) section 12, paragraph 14(a), (c) or (e), 16(c), (e) or (f) or 20(d) or section 26 or 27.

(3) Every person who intentionally contravenes subsection 13(2) or 21(2) is guilty of an offence.

38. (1) Every person is guilty of an offence who contravenes paragraph 16(d), 17(b), 19(b) or 36(b).

(2) An electoral officer who fails to perform their duty under section 24 or an electoral officer or deputy electoral officer who fails to perform any of their duties under the regulations is guilty of an offence.

(3) A person is not to be found guilty of an offence under subsection (2) if they establish that they exercised due diligence to prevent the commission of the offence.

(4) Every person who intentionally contravenes any of paragraphs 14(b) and (d), 19(a) and 20(a) to (c) is guilty of an offence.

PENALTIES

39. (1) Every person who is guilty of an offence under section 37 is liable

(a) on conviction on indictment, to a fine of not more than $5,000 or to imprisonment for a term of not more than five years, or to both; or

(b) on summary conviction, to a fine of not more than $2,000 or to imprisonment for a term of not more than six months, or to both.

(2) Every person who is guilty of an offence under section 38 is liable on summary conviction to a fine of not more than $1,000 or to imprisonment for a term of not more than three months, or to both.

40. Any person who is convicted of an offence under paragraph 37(2)(a), or any candidate who is convicted of an offence under paragraph 37(2)(b), in addition to any other punishment for that offence prescribed by this Act, is not eligible to be elected as chief or councillor of a participating First Nation during the five years after the date of conviction.

REGULATIONS

41. The Governor in Council may make regulations with respect to elections, including regulations respecting

(a) the appointment, powers, duties and removal of electoral officers and deputy electoral officers;

(b) the requirement that electoral officers be certified, the certification process and the grounds for withdrawing certification;

(c) the manner of identifying electors of a participating First Nation;

(d) the manner in which candidates may be nominated;

(e) the imposition, by participating First Nations, of a fee on each candidate in accordance with section 11;

(f) the manner in which voting is to be carried out, including

(i) permitting the electoral officer to establish polling stations and advance polling stations,

(ii) procedures for obtaining and using mail-in ballots, and

(iii) the counting of votes;

(g) the removal from office of a chief or councillor of a participating First Nation by means of a petition, including

(i) the percentage of electors of that First Nation who must sign that petition, and

(ii) the period during which that petition is to be filed;

(h) the holding of by-elections; and

(i) anything else that by this Act is to be prescribed.

REMOVAL FROM SCHEDULE

42. (1) If a participating First Nation’s council has provided to the Minister a proposed community election code and a resolution requesting that the name of that First Nation be removed from the schedule, the Minister may, by order, remove the name from the schedule if

(a) the code establishes a procedure for its amendment;

(b) the code and the request 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;

(c) the code has been published by that First Nation on a website maintained by or for it or in the First Nations Gazette; and

(d) there are no outstanding charges under this Act against any member of that First Nation.

(2) The community election code comes into force on the day on which the Minister’s order is made.

(3) Amendments to the community election code come into force on the day on which they are published by the First Nation on a website maintained by or for it or in the First Nations Gazette.

(4) The community election code is not subject to the Statutory Instruments Act.

(5) In this section, “community election code” means a written code that sets out rules regarding the election of the chief and councillors of a First Nation.

CONSEQUENTIAL AMENDMENT TO THE INDIAN ACT

43. Paragraph (b) of the definition “council of the band” in subsection 2(1) of the Indian Act is replaced by the following:

(b) in the case of a band that is named in the schedule to the First Nations Elections Act, the council elected or in office in accordance with that Act,

(c) in the case of a band whose name has been removed from the schedule to the First Nations Elections Act in accordance with section 42 of that Act, the council elected or in office in accordance with the community election code referred to in that section, or

(d) in the case of any other band, the council chosen according to the custom of the band, or, if there is no council, the chief of the band chosen according to the custom of the band;

COMING INTO FORCE

44. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.