Law Times

PAGE 12 CBA calls for changes to elections bill Organization worries legislation impinges on right to self-government FOCUS BY MICHAEL McKIERNAN Law Times A to self-government, according to the Canadian Bar Association. Bill S-6, the First Nations elec- government bill intended to enhance First Nations governance risks imping- ing on aboriginal rights tions act, originated in the Senate and aims to modernize the election process under the Indian Act based on recommendations by aboriginal groups, the Assembly of Manitoba Chiefs, and the Atlantic Policy Congress of First Nations Chiefs. First Nations can opt in to the of aboriginal law section, says discretion in the bill is "overly broad" and goes against the recommen- dations submitted by aboriginal groups. About 240, or just the CBA's national the ministerial under half, of the coun- try' new rules, but the legislation also gives the minister of aboriginal affairs and northern development discretion to unilaterally add a band where a protracted leader- ship dispute has "significantly compromised governance" or in the case of an election tainted by "corrupt practices." Aimée Craft, chairwoman currently conduct elec- tions in accordance with the Indian Act. That still leaves more than half that carry out elections according to band custom that often predates the introduc- tion of the Indian Act. But the legislation makes no distinction between the two, meaning the minister could in theory use the discretion to impose the new pro- cedures on a band that has never used Indian Act election rules. "To bring them under the pur- view of this piece of legislation that s 600 First Nations "significantly compro- mised governance. On behalf of " CBA, Craft addressed the Senate' the committee on aborigi- nal peoples to request an amendment that would see the legislation' s standing The ministerial discretion in the bill is 'overly broad,' says Aimée Craft. highly determines what an election is going to look like is going to be a significant infringement on rights of self-government," says Craft. In addition, she says the trig- gers for the minster's interven- tion are "insufficiently defined" as the bill is silent on what con- stitutes a "corrupt practice" or mittee without amendment and Craft is now pinning her hopes on changes from the Senate floor where legislators are currently debating it. "This is a piece of legisla- However, the bill left the com- their own request. tion that can have many posi- tive impacts but it still requires limited to First Nations currently operating with an Indian Act elec- tion system. She also recommended that First Nations governed by customary elections should come under the bill' s scope s provisions only at amendments to be acceptable," she says. In debate, Conservative sena- tor and former premier of the Northwest Territories Dennis Patterson defended the decision to retain the wording on ministerial discretion in the bill. He argued it simply mirrored powers already available under the Indian Act as it currently stands. Ministers, Patterson said, had exercised that power only three times in the last decade. In one case, the leadership lasted 15 years before the minister stepped in. "It cannot be done at a whim," April 30, 2012 • lAw Times said Patterson. "There has to be a protracted leadership dispute. I think that those words do have meaning. The present minister said he would use it only in rare cir- cumstances but I think it would prevent any minister from acting capriciously. 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Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation CANADIAN LAW LIST that the minister should only use this power in the rarest of cases when every other form of dispute resolution or democratic reform at the First Nation level has been attempted and failed. The minister himself stated in the committee that he agreed. "creative and collaborative way" to achieve real change in governance. "Bill S-6 makes it possible for Patterson hailed the bill as a " each First Nation community to address its electoral needs, pri- orities, and directions on its own terms," he said. "The result will be improved governance chosen by First Nations themselves through opt-in legislation." Craft agrees that the ultimate goals of the bill are laudable and praises provisions that increase stability, effectiveness, and trans- parency in First Nations gover- nance. For example, she says First Nations "were not served well" by two-year election terms and wel- comes the move to double them to four years under bill S-6. The bill also introduces elec- toral prohibitions and offences as well as penalties such as fines, imprisonment, and bans from candidacy in order to punish those who breach the rules. But Craft says the ministerial discretion and other problems the CBA has identified have clouded those positive developments. For example, the bill shifts election appeals out of the hands of the minister and into the courts. Craft notes a number of First Nations have developed their own dispute resolution mechanisms, including one that sends election appeals to a council of elders, and says the bill should recognize this and similar internal systems. "They're stripped of that deci- sion-making power because any dispute has to go straight to the Federal Court or the provincial superior court," she adds. "That' problematic in terms of access to justice because who has the money to litigate these issues?" Should it pass third reading in s the Senate, bill S-6 will still have to clear the House of Commons before it becomes law. LT www.lawtimesnews.com CLL - 1-2 pg - 4X.indd 1 3/15/12 3:33 PM

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