What First Nations Need to Know About Elections During the COVID-19 Emergency

Elections in a Time of Emergency

During the COVID-19 pandemic, First Nations’ stable governance is vital for ensuring community health and safety. For many First Nations with elections scheduled during the pandemic, the elections could place too much stress on already strained community resources, and could seriously destabilize the First Nation’s ability to respond to the pandemic.

For First Nations faced with this issue, there are important new elections regulations allowing First Nations to cancel or postpone elections if necessary, and to extend the term of the current Chief and Council to prevent a leadership gap in the meantime.

What First Nations Need to Know

New Federal Regulations For Cancelling or Postponing First Nation Elections

The federal government has created a new regulation entitled as the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases). This new regulation is in force as of April 7, 2020. The purpose of the regulation is to allow First Nations to put elections on hold if “necessary to prevent, mitigate or control the spread of diseases on the reserve” without causing a gap in leadership.

The regulation allows election cancellation or postponement for elections:

• under the Indian Act;
• under the First Nations Elections Act;
• according to Custom; and
• in special cases arising from an emergency

The regulation also allows term extensions for the sitting Chief and Council for up to six months.[1] Terms can be extended up to two times.[2] This means that terms can be extended for a total of one year (two six month extensions).

The regulation is set to expire on April 7, 2021.[3] This means that after that time, the regulation will no longer be available to help First Nations handle elections during a pandemic, and a new regulation or other solution will be required.

Timelines for postponing/cancelling elections and extending Chief and Council terms of office

Indian Act and First Nations Elections Act Elections

First, First Nations which have Indian Act elections they need to put on hold should decide how long the elections will likely need to be on hold. This can be a difficult assessment, as there is significant uncertainty about how long the COVID-19 emergency will last, and how the emergency may evolve or linger, especially for Indigenous communities.

Decision-makers should keep in mind that their terms can be extended in six month installments, so plans should be made to have a new election during each six month extension period instead of only planning for an election at the end of one year. The second extension may not be necessary, so decision-makers should be prepared to hold new elections at the end of the first extension period in the event that the emergency ends during that time.

Second, First Nations will need to set the term extension length and the date for the postponed or new election:

• The decision to extend Chief and Council’s term and to postpone/cancel the election can be made up to 90 before the previously scheduled end of term[4];
• The postponed/new election date can be up to 30 days before the end of the extended term of office[5]

How to Enact the Postponement/Cancellation and Term Extension:

The decision to postpone or cancel the election and the decision to extend the term of office must be made together, and must be done by a Council resolution, sent to the Minister.

• The first cancellation/postponement resolution can be sent as soon as feasible[6]
• The second cancellation/postponement resolution must be sent before the day that the election was scheduled to take place[7]

Other Required Steps:

For cancelled elections, the Electoral Officer will have certain duties to destroy documents with personal information and mail-in ballots, in addition to their duties under the Indian Act or the First Nations Elections Act, as applicable.[8] The Electoral Officer will also be removed from office upon the cancellation.[9]

For postponed elections, the Electoral Officer stays in office and keeps under seal all envelopes with mail-in ballots that they have received.

Example:

An Indian Act election is scheduled to take place on June 1, 2020, and the term of office for Chief and Council was set to expire on June 15, 2020. Chief and Council are able to extend their terms of office at any time after March 16 (because this is exactly 90 days before the scheduled end of term). The furthest date to which Chief and Council can extend their term in the first extension is December 15, 2020 (because this is exactly six months since the previously set end of term).

The First Nation decides that the emergency will last at least until the end of November 2020, and so the First Nation decides that the term of office should be extended to December 15, 2020. The First Nation also decides to postpone the election and schedule a new election date for December 5, 2020. This way, if the emergency ends at the end of November, there will be enough time to facilitate the election, and the term of office will not end before the election, so there will be no leadership gap.

Council produces a resolution enacting these decisions on May 1, 2020 and submits that resolution to the Minister the same day.

If the emergency does not end by the end of November, Chief and Council can postpone/cancel the election again, and extend their term for another six months. This decision can be made any time during the 90 days before the December 15 end of term, so Chief and Council have significant flexibility to decide or wait to decide based on how the emergency progresses.

Elections According to Custom Elections Codes

The regulation has fewer restrictions for First Nations using Custom Election Codes. Up to 90 days before Chief and Council’s terms of office are set to expire, Chief and Council can extend their term of office, even if their Custom Code does not provide for term extensions.[10]

Importantly, the limitations on how long Chief and Council’s terms can be extended do not apply to Custom Code term extensions.[11] The regulation also does not have any provisions for cancelling or postponing Custom Code elections. First Nations with Custom Codes should thus look to their Custom Code for rules on postponing or cancelling elections.

Special Case – Elections that Were Scheduled Before the Regulation Came Into Effect and did not take place

Where a First Nation had an election scheduled during the 30 days prior to April 7, and this election did not take place because the First Nation was responding to the pandemic, the regulation allows the First Nation to hold a new election within six months of April 7, 2020.[12]

Also, the Chief and Councilors in these special cases who were in office 30 days prior to April 7, 2020 are deemed to remain in office until the day of the new election,[13] up to a maximum extension of six months.[14]

[1] S 6.

[2] S 6.

[3] S 8.

[4] S 2(1) for Indian Act elections, and s 3(1) for First Nations Elections Act elections.

[5] S 2(3)(a) for cancelling Indian Act elections, s 2(4)(a) for postponing Indian Act elections, s 3(3)(a) for cancelling First Nations Elections Act elections, and s 3(4)(a) for postponing First Nations Elections Act

[6] S 7(1).

[7] S 7(2).

[8] S 2(3)(b), (d) for Indian Act electoral officers, and s 3(3)(b), (d) for First Nations Elections Act electoral officers.

[9] S 2(3)(c) for Indian Act electoral officers, and s 3(3)(c) for First Nations Elections Act electoral officers.

[10] S 4(1)

[11] S 4(2).

[12] S 5(1).

[13] S 5(2).

[14] S 5(3).