Support for Indigenous governance

Since COVID-19 began we’ve seen questions raised south of the border about how to deal with the democratic process of elections – specifically voting – while maintaining social distancing measures. What many Canadians might not realize is that it is also an issue for band elections in some First Nations communities.

The initial response by Indigenous Services Canada was to recognize a right to delay elections without extending current office-holders’ terms. The resulting governance gap under the Indian Act and First Nations Elections Act means some First Nations “have since felt pressured to proceed with their elections in spite of the pandemic,” the CBA’s Aboriginal Law Section writes in a letter to Indigenous Services Canada.

The Section notes that the ISC has recognized the problems with its initial response and is consulting with First Nations to come up with a solution better-tailored to their needs. It notes other concerns about the impact self-isolation and social-distancing measures put in place to stop the spread of COVID-19 could have on the elections process.

For example, there are limited resources available for people who would have to travel to the First Nation to vote – limited travel options for those from northern communities, many of which are now prohibiting travel into their territories, and limited capacity for safe housing for those returning from school, for example, who need to self-isolate.

The Section suggests support should be available to allow Indigenous communities and First Nations to hold council meetings via conference call or videoconference “so they can more easily comply with the current public health requirements. Communities should have the flexibility to decide on appropriate measures in their particular circumstances.”

The Section is also concerned that communities subject to the First Nations Fiscal Management Act could miss deadlines for various financial reports because of the pandemic, raising non-compliance issues.

“COVID-19 will have an impact on their taxpayers, raising questions of whether to extend deadlines for tax payments, even though this too would raise non-compliance issues. These issues are significant for many communities and should quickly and appropriately be addressed by the First Nations Tax Commission and First Nations Financial Management Board.”

The Section says while the ISC must continue to consult with Indigenous communities about their needs, it would be pleased to offer whatever assistance the ISC might need in response to legal developments, or changes to policy, legislation or regulation in this area, “for example, by designating a small group of members from different regions to be a ‘real-time’ sounding board for future ISC proposals.”

In turn, the Section says, the group could relay local issues from their law practices to the ISC as they became apparent.