Court rejects federal interference that would allow delays of elections under custom election codes in a pandemic

OTTAWA-  Indigeous Services Minster Marc Miller is appealing a federal court ruling that has put a stop to First Nations councils elected under a custom election code from delaying band elections during the COVID-19 global pandemic.

Miller said issued a statement today ( Thursday April 8) he planned to appeal the ruling.

“Last April, after hearing directly from First Nation leaders regarding their grave concerns, Indigenous Services Canada acted promptly to develop the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) to address the immediate public health risks posed by holding elections during the COVID-19 global pandemic. The Regulations provide a mechanism for First Nation councils to postpone their elections or to extend the terms of the chiefs and councillors, while avoiding a critical governance gap, to prevent, mitigate or control the spread of diseases on reserve, including COVID-19.

On April 1, 2021, the Federal Court issued a ruling, which found that section 4 of the Regulations, related to custom election codes, is invalid.

The Government continues to recognize the health risks of holding elections during the COVID-19 pandemic, especially in at-risk, underserved Indigenous communities, and particularly as parts of the country contend with a third wave of COVID-19 and highly contagious variants.

First Nations have used these Regulations as a key tool to help manage COVID-19 risks within their communities. Between April 8, 2020 and March 22, 2021, 116 First Nations have used the Regulations to postpone elections; 36 of these hold elections under the Indian Act; 15 under the First Nations Elections Act; and 65 under a community or custom process. We want to ensure that communities continue to have the necessary resources and tools available to them to manage the ongoing public health situation in a way that prioritizes the well-being of their communities.

It is in light of this context that we have made the decision to appeal this ruling.

Our top priority is, and will continue to be, the health and safety of all Canadians, including First Nations, Inuit and Métis,” the statement read.

First Nations have been opting out of the Indian Act for their elections, creating “customs councils” for almsot 30 years. As of  2010, about 40% of First Nations held elections under the Indian Act while 60% of First Nations held elections pursuant to band custom (or in some small cases pursuant to a self-government agreement).



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