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

S-6 First Session, Forty-first Parliament, 60 Elizabeth II, 2011 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 first reading, December 6, 2011 LEADER OF THE GOVERNMENT IN THE SENATE 90637 SUMMARY This enactment establishes a regime, alternative to the one under the Indian Act, to govern the election of chiefs and councillors of certain First Nations. Among other things, the regime (a) provides that chiefs and councillors hold office for four years; (b) provides that the election of a chief or councillor may be contested before a competent court; and (c) sets out offences and penalties in relation to the election of a chief or councillor. This enactment also allows First Nations to withdraw from the regime by adopting a written code that sets out the rules regarding the election of the members of their council. Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca TABLE OF PROVISIONS 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 SHORT TITLE 1.       First Nations Elections Act INTERPRETATION 2.       Definitions ADDING TO THE SCHEDULE 3.       Order 4.       Change of name ELECTION DATES 5.       First election 6.       Subsequent elections COUNCIL 7.       Composition 8.       Statutory Instruments Act CANDIDATES 9.       Eligibility 10.       Prohibition 11.       Candidacy fee 12.       Prohibition 13.       Order to leave BALLOTS 14.       Prohibition VOTING 15.       Elector entitled to vote 16.       Prohibition — any person 17.       Prohibition — elector 18.       Secrecy of voting 19.       Prohibition — elector POLLING STATIONS 20.       Prohibition 21.       Order to leave 22.       Prohibition AWARDING OF POSITIONS 23.       Chief and councillor positions 24.       Tied vote BY-ELECTIONS 25.       By-elections OBSTRUCTION OF ELECTIONS 26.       Prohibition 27.       Prohibition TERM OF OFFICE 28.       Term of office 29.       Term of office after by-election CONTESTED ELECTIONS 30.       Means of contestation 31.       Contestation of election 32.       Time limit 33.       Competent courts 34.       Service of application 35.       Court may set aside election PETITION FOR REMOVAL FROM OFFICE 36.       Prohibition OFFENCES 37.       Offences 38.       Offences PENALTIES 39.       Dual procedure 40.       Additional penalty REGULATIONS 41.       Regulations REMOVAL FROM SCHEDULE 42.       Removing a participating First Nation from the schedule CONSEQUENTIAL AMENDMENT TO THE INDIAN ACT 43.       Amendment COMING INTO FORCE 44.       Order in council SCHEDULE .vis1 {position: absolute;display:block;} .vis2 {position: static;} 1st Session, 41st Parliament, 60 Elizabeth II, 2011 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 Short title 1. This Act may be cited as the First Nations Elections Act. INTERPRETATION Definitions 2. The following definitions apply in this Act. “council”« conseil » “council” has the meaning assigned by the definition “council of the band” in subsection 2(1) of the Indian Act. “deputy electoral officer”« président d’élection adjoint » “deputy electoral officer” means a person so appointed in accordance with the regulations. “election”« élection » “election” means the election of the chief and councillors of a participating First Nation, including by way of a by-election. “elector”« électeur » “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”« président d’élection » “electoral officer” means a person so appointed in accordance with the regulations. “First Nation”« première nation » “First Nation” has the meaning assigned by the definition “band” in subsection 2(1) of the Indian Act. “mail-in ballot”« bulletin de vote postal » “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”« membre » “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”« ministre » “Minister” means the Minister of Indian Affairs and Northern Development. “nomination meeting”« assemblée de mise en candidature » “nomination meeting” means a meeting held for the purpose of nominating candidates for an election. “participating First Nation”« première nation participante » “participating First Nation” means a First Nation that is named in the schedule. “reserve”« réserve » “reserve” has the same meaning as in subsection 2(1) of the Indian Act. ADDING TO THE SCHEDULE Order 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. Contents of the order (2) The order must specify the date of the first election for the First Nation in respect of which the order is made. Effect of order on term of office (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. Exception (4) Subsection 7(1) does not apply to the council that is in office on the day on which the order is made. Change of name 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 First election 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. Subsequent elections 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 Composition 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. Reduction — number of councillors (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. Statutory Instruments Act 8. The resolution referred to in subsection 7(2) is not subject to the Statutory Instruments Act. CANDIDATES Eligibility 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. Limitation (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. Nomination (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. Limitation (4) An elector must not nominate more than one candidate for each position to be filled. Prohibition 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. Candidacy fee 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. Prohibition 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. Order to leave 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. Obligation (2) A person to whom an order is given under subsection (1) must obey it without delay. BALLOTS Prohibition 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 Elector entitled to vote 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. Exception (2) An elector who is appointed as the electoral officer in respect of an election is not entitled to vote in that election. Prohibition — any person 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. Prohibition — elector 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. Secrecy of voting 18. Voting at an election is to be conducted by secret ballot. Prohibition — elector 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 Prohibition 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. Order to leave 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. Obligation (2) A person to whom an order is given under subsection (1) must obey it without delay. Prohibition 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 Chief and councillor 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. Tied vote 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 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 Prohibition 26. A person must not intentionally obstruct an electoral officer or deputy electoral officer in the performance of their duties. Prohibition 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 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. Term of office ceases (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. Term of office after by-election 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 Means of contestation 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. Contestation of election 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. Time limit 32. An application must be filed within 30 days after the day on which the results of the contested election were announced. Competent courts 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. Service of application 34. An application must be served by the applicant on the electoral officer and all the candidates who participated in the contested election. Court may set aside 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. Duties of court clerk (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 Prohibition 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 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). Offences to which an additional penalty applies (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. Offences — subsections 13(2) and 21(2) (3) Every person who intentionally contravenes subsection 13(2) or 21(2) is guilty of an offence. Offences 38. (1) Every person is guilty of an offence who contravenes paragraph 16(d), 17(b), 19(b) or 36(b). Strict liability offence (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. Due diligence defence (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. Offences — paragraphs 14(b) and (d), 19(a) and 20(a) to (c) (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 Dual procedure 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. Summary conviction (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. Additional penalty 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 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 Removing a participating First Nation from the 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. Effective date of community election code (2) The community election code comes into force on the day on which the Minister’s order is made. Amendments (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. Statutory Instruments Act (4) The community election code is not subject to the Statutory Instruments Act. Meaning of “community election code” (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. R.S., c. I-5 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: Explanatory NotesIndian Act Clause 43: Relevant portion of the definition: “council of the band” means ... (b) in the case of a band to which section 74 does not apply, the council chosen according to the custom of the band, or, where there is no council, the chief of the band chosen according to the custom of the band; Notes explicativesLoi sur les Indiens Article 43 : Passage visée du texte de la définition : « conseil de la bande » ... b) dans le cas d’une bande à laquelle l’article 74 n’est pas applicable, le conseil choisi selon la coutume de la bande ou, en l’absence d’un conseil, le chef de la bande choisi selon la coutume de celle-ci. (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 Order in council 44. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council. SCHEDULE (Sections 2 to 5 and 42) PARTICIPATING FIRST NATIONS Published under authority of the Senate of CanadaAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada