Introduction

Biigtigong Nishnaabeg is considering a new election process for fall 2021. We would like to move away from the Indian Act and into the First Nations Elections Act. In the longer term, we would like to develop our own customary election code and other laws to enhance our exercise of self-determination.

We are currently providing community members with information about the change from the Indian Act election system to the First Nations Elections Act, and we are looking for your feedback.

First Nation Leadership Selection

First Nations select their Chief and Council in one of four ways:

  1. Pursuant to the Indian Act and the Indian Band Election Regulations;
  2. Pursuant to the First Nations Elections Act and the First Nation Election Regulations;
  3. Pursuant to a community constitution which is negotiated and entered into as part of a self-government agreement;
  4. Pursuant to traditional, customary governance codes that are grounded in band custom.

Biigtigong Nishnaabeg currently selects their Chief and Council pursuant to the Indian Act.  For a First Nation to move from the Indian Act to the First Nations Elections Act (“FNEA”), the First Nation will have to pass a band council resolution and become listed on the FNEA schedule listing all First Nations who have opted in.  The Minister of Indigenous Services can also put a First Nation under the FNEA if the First Nation is in a “protracted leadership dispute” or if the First Nation has “significantly compromised governance”, or if the First Nation has had a “corrupt practice” in connection with an election.

An election under the FNEA should take place prior to the Indian Act election term expiration.  The Biigtigong Nishnaabeg election will expire on Saturday, November 2, 2021.

Once a First Nation is out of the Indian Act election system, it cannot return.  It only has the option of continuing with the FNEA or adopting a customary election code.

First Nation Election Act: Substantive Changes

The major changes between the Indian Act and the First Nations Election Act:

  1. There is a four-year term for Chief and Council (rather than a two-year term as under the Indian Act).
  2. A member cannot be a candidate for both chief and councillor in the same election.
  3. A member must consent to being a candidate before their name is put on a ballot.
  4. Only members of the First Nation can run for and be selected as Chief.
  5. An Electoral Officer can order a member to leave a nomination meeting if they are behaving in a disorderly manner, lie about a candidate withdrawing, or if they are intimidating or using duress in connection with nominations.  There are a variety of penalties and enabling charges in connection with these defined offences.
  1. The Minister has no more power to investigate election disputes.  Instead, election disputes or appeals are handed directly by the Courts (Federal Court or Superior Court of Justice) and must be filed within 30 days of the election.
  2. A minimum of six First Nations can lineup their election days and create a “common election day”.
  3. A First Nation can charge a candidate a candidacy fee of up to $250 for every candidate for election as chief or councilor, which will be refunded if the candidate receives at least 5% of the total votes cast.

Matters not changed by the FNEA:

  1. The First Nations Elections Act does not provide for electronic voting.
  2. The size of the council is the same, but the First Nation can opt to reduce the size of the council by two.
  3. The powers of the council are the same.

First Nation Election Regulations: Procedural Changes

This chart summarizes the procedural differences between the elections held under the Indian Act vs. the First Nation Election Act:

 

Indian Act Regulations First Nation Election Regulations
Band appoints an Electoral Officer (EO) and the Minister approvals the EO The band appoints the EO.  No Ministerial approval required.
The election period is 79 days.

A voters list, including each voters last known address, is given to the EO within 79 days.

 The election period is 65 days.

A voters list, including each voter’s last known address, is given to the EO within 65 days.
Notice of a nomination meeting to be provided 30 days before the meeting occurs.

The nomination meeting must be held 42 days before the election.

 Notice of a nomination meeting be provided 25 days before the meeting occurs.

The nomination meeting must be held 35 days before the election.
Nominations can be mailed in or made orally at a nomination meeting. Option 1: Nominations made at a nomination meeting both by mail-in or orally.

Option 2: Nominations through a paper-based exercise.
The candidate is automatically accepted unless they withdraw in writing. The candidate must submit a written declaration of acceptance with the nomination fee (up to 250$, refunded if the candidate does not obtain at least 5% of the votes).
Mail in voting packages must be mailed to voters who do not reside on the reserve 35 days before the election is to be held.

The EO responds to specific requests to send out mail-in ballots up to the polling day.

 Electors request a mail-in ballot to receive one and will need to provide valid identification.  Mail in voting packages must be mailed to voters who do not reside on reserve 30 days before the election is to be held.

The request must be received by the EO at least 10 days before the election.

After the 10-day mark, no mail- in ballots will be distributed.
No provisions for advanced polls. Advanced polls can be provided on the instruction of Council both on and off reserve, 5-10 days prior to the Election Day.
No provision for a recount. Recounts will take place automatically if the margin between a winning candidate and a f runner-up is 5 or less.
The results are posted on-reserve and mailed out to all off-reserve electors that provide addresses. Results will be posted on the reserve, the website and social media.
The EO must return ballots and other material to the Minister. The EO must keep the ballots and other materials for a minimum of 120 days after the election.

Your feedback is important!

We want to hear from you!  We will be holding community information sessions over zoom (https://us02web.zoom.us/j/84080634113) on the following dates:

  • Friday February 19th at 3:00 pm
  • Wednesday February 24th at 6:30 pm
  • Saturday March 6th at 10:00 am
  • Friday March 12th at 3:00 pm
  • Wednesday March 17th at 6:30 pm
  • Saturday March 20th at 10:00 am

For more information, please contact Nicole Richmond, nicole.richmond@nish-law.com

We are a progressive First Nation with strategic visioning, growth, prosperity and culture that finds balance in the modern era of Nishnaabeg life with the traditional values of our ancestors.

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