Extending the term of Chief and Council to prevent the spread of Covid-19
In order to help prevent the spread of Covid-19 the Governor General has made the First Nations Election Cancellation and Postponement Regulation (Prevention of Diseases).
This regulation is primarily concerned with First Nations that hold federally regulated elections in accordance with the Indian Act and the First Nations Election Act, but it also applies to First Nations that hold customary elections.
Although much of the information that has been made publicly available about the regulation so far (such as the Minister of Indigenous Service’s statement of April 16) has not distinguished between federally regulated elections and customary elections, the provisions effecting these two types of elections are significantly different.
In both cases the regulation authorizes a First Nation’s Chief and Council to extend their terms of office, but for First Nations who hold customary elections the six-month limit on the extension does not apply.
Where does the six-month limitation apply?
There are two provisions in the regulations that impose a six-month limitation on term extensions: sections 6 and 5(3).
Section 6 applies to term extensions under the Indian Act (section 2(1)) and term extensions under the First Nations Election Act (section 3(1)). It states that:
A tenure of office or term of office of a chief and councillors of a First nation must not be extended under subsection 2(1) or 3(1) by more than six months. The tenure or term must not be extended more than twice.
Section 4(2) of the regulations specifically states that this does not apply to term extensions under customary codes.
Section 5(3) applies to term extensions in the special case where an election has already been missed when the regulations come into force. It states that:
The tenure of office or term of office of the chief and councillors may, in accordance with section 2 or 3, be extended by a period not exceeding six months. Despite section 6, the tenure or term must not be extended more than once.
This special case only applies to federally regulated elections. The definition of the term ‘election’ that is used in the regulations only means an election under the Indian Act (the same meaning as in section 2 of the Indian Band Election Regulations) or an election under the First Nation’s Election Act.
A customary election that was missed before the regulation were in force is not an ‘election’ for the purpose of the regulations so the provisions on the special case of previously missed elections do not apply to customary elections.
What limitations apply to First Nations holding customary elections?
The six-month limit and two extension maximum do not apply. However, the regulations provide two restrictions on term extensions for First Nations holding customary elections:
1) The upper limit on extensions is set by the period of time the regulations remain in force. They are currently set to be ‘repealed on the first anniversary of the day on which they come into force’. While extensions made beforehand may remain effective, no further extensions are authorized after the regulations are repealed.
2) The practical limit on extensions is necessity. Section 4(1) states that:
The council of a First Nation whose chief and councillors are chosen according to the custom of the First Nation may extend the term of office of the chief and councillors if it is necessary to prevent, mitigate, or control the spread of diseases on its reserve, even if the custom does not provide for such a situation.
This authorization to extend the term of office is conditional, it may only be done if it is necessary to prevent the spread of disease. This condition provides a practical limit for the maximum number of extensions: further extensions are authorized only if each further extension is necessary to prevent the spread of disease. This condition also provides a practical limit for the duration of an extension: a First Nation is not authorized to extend a term of office for a period of time that is unnecessary to prevent the spread of disease.
For First Nations holding customary elections this means that they cannot rely upon a timeframe imposed by statute, if they wish to rely upon the regulations to extend the terms of office of their Chief and Council they must assess what is necessary in their circumstances and extend the terms of office accordingly.
This is not legal advice: posts to this website are provided only for general information. If you need legal advice on extending the terms of office of Chief and Council to prevent the spread of Covid-19 please get in touch with Garry Laboucan or Anita Thompson.