In light of COVID-19, many First Nation communities are facing a dilemma: hold a band council election in the midst of a global pandemic and lockdown, putting their people at risk, or violate their own election rules by not holding the election and face a "governance gap."
The unique public health risk posed by COVID-19 has had a severe impact on governments around the world, and First Nations and other Indigenous communities are no exception. Indeed, Indigenous communities are in a position of unique vulnerability to the effects of the coronavirus, due to such factors as remoteness, inadequate health care infrastructure, and significant overcrowding within many Indigenous households. In addition to overcrowding, poor housing conditions – endemic in many Indigenous communities – have been associated with increased risk of the spread of infectious and respiratory diseases. Indigenous people also have higher rates of underlying health problems than the general population.
Certain longstanding and ordinarily beneficial hallmarks of Indigenous communities also create added exposure and risk in the face of a highly contagious virus: strong community and, in particular, familial ties. These factors result, generally, in a much greater level of social interaction and of inter-generational contact than in most non-Indigenous communities – something that represents a significant challenge given the particular vulnerability of the elderly to COVID-19, and the growing awareness of asymptomatic carriers of the virus. These factors combine to make Indigenous communities uniquely susceptible both to increased spread of COVID-19, and to poorer outcomes for those afflicted.
Holding an election under such circumstances, accordingly, presents a significant challenge.
Typically, however, First Nation election rules do not allow an election to be postponed or cancelled, nor to extend the fixed term of Chief and Council. As a result, some First Nations have been forced to proceed with their already-scheduled elections, taking significant precautions. However, Indigenous Services Canada has strongly recommended that elections be postponed and indeed, many communities do not want to jeopardize their community health by holding elections in the midst of the pandemic.
Fortunately, it appears that there are several potential avenues that would allow for the lawful postponing of a scheduled band council election in the face of the current health crisis. Such a measure would be grounded not only in the need to ensure the health and safety of the community, but also to preserve the voting rights of members, on the basis that a member should not be forced to choose between putting his or her health at risk (and that of family members and the community more generally), and exercising the right to vote.
The forthcoming Indian Act regulation in particular, titled First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) (the "New Regulation"), provides a clear path to postpone an election for bands holding elections under the Indian Act or First Nations Elections Act, and also authorizes First Nations under customary election laws to postpone their elections.
However, a great many First Nations hold elections under their own customary election laws, which may offer additional avenues for postponement of an election in the face of the current crisis:
1. Customary election law rules;
2. Unwritten custom with "broad consensus of the community"; or
3. Where there is no custom, the New Regulation or a by-law.
Whatever course is relied on, a First Nation community under a customary election law will need to draw on the customs and norms of its community to properly implement the measures chosen to protect the health of its community.
First Nation Customary Election Laws
Every customary election law is, by definition, unique to its community and therefore will vary on a case by case basis.
If a First Nation community's customary election law already contains provisions to extend council terms, or postpone or cancel an election, then that community already has a clear procedure in responding to COVID-19.
However, typically, customary election laws set a fixed term for Chief and Council (3-4 years) and fix an approximate election date that must be adhered to. Most do not include any mechanism to extend council terms, or postpone or cancel an election. Arguably, this constitutes a "gap" in the law, which could be helpful if a decision were to be made on the basis of custom (as discussed below). Obviously, most election laws were not written in contemplation of the current pandemic.
Postponement based on Unwritten Custom
Legal authorities support the proposition that a First Nation may take certain actions or decisions in relation to its governance, even where it is not articulated in the community's written election laws (and in particular where there is a "gap" in the customary election code), where such actions or decisions can be shown to be in accordance with the customs of the First Nation. It must be shown that there is a "broad consensus" that the customs indeed exist and are applicable.
This is discussed in Francis v Mohawk Council of Kanesatake, 2003 FCT 115,  4 FC 1133, in which the Court noted:
It is quite common that behaviours arising through attitudes, habits, abstentions, shared understandings and tacit acquiescence develop alongside a codified rule and may colour, specify, complement and sometimes even limit the text of a particular rule. Such behaviours may become the new custom of the band which will have an existence of its own and whose content will sometimes not be identical to that of the codified rule pertaining to a particular issue. In such cases, and bearing in mind the evolutionary nature of custom, one will have to ascertain whether there is a broad consensus in the community at a given time as to the content of a particular rule or the way in which it will be implemented.
For a rule to become custom, the practice pertaining to a particular issue or situation contemplated by that rule must be firmly established, generalized and followed consistently and conscientiously by a majority of the community, thus evidencing a "broad consensus" as to its applicability. This would exclude sporadic behaviours which may tentatively arise to remedy certain exceptional difficulties of implementation at a particular moment in time as well as other practices which are clearly understood within the community as being followed on a trial basis. If present, such a "broad consensus" will evidence the will of the community at a given time not to consider the adopted electoral code as having an exhaustive and exclusive character.
For example, it may be the custom of a community to postpone its elections where there is a community emergency.
If there is no provision of any kind for postponement, this leaves open the argument that a custom exists to deal with such circumstances. Indeed, it would seem that there is a reasonably strong argument to be made that such a custom must exist in most cases, in that there are clearly situations in which the holding of an election would be literally impossible, or close to impossible. There is also a strong argument that the present circumstances come within that very scenario.
Indeed, as noted above, there are strong arguments to be made that Indigenous communities are especially vulnerable to the effects of COVID-19, for a variety of socio-economic as well as cultural reasons, including challenges in regard to healthcare infrastructure, high housing occupancy concentration (due to both cultural factors and inadequate funding), poor housing conditions, higher rates of underlying health problems, as well as and greater community and inter-generational contact. All of these factors place First Nations at greater risk of both contraction and spread of the coronavirus, as well as greater susceptibility to its health impacts.
A decision to postpone the election could of course be challenged in court. To the extent a decision to delay the vote is based on an assertion of custom, the existence of a broad consensus regarding the customs in question would have to be shown in order to support the decision. It would seem likely that a court would be sympathetic to such a decision, given the exceptional circumstances – particularly if any delay in the election is as limited as possible. In addition, a court may wish to be satisfied that no reasonable alternatives to postponement exist without compromising the health of members of the community. For the reasons cited above, in our view First Nations will be in a strong position to demonstrate that holding an election under current conditions gives rise to significant community health risk, and that it would be contrary to democratic principles to force members to choose between their health and the exercise of the right to vote.
Accordingly, the courts are, in our view, likely to exercise a high degree of flexibility and deference to a First Nation. As such, it may be possible to establish a custom by analogy to other aspects of the Nation's customs – including, for example, a broad custom to take steps to protect the health of the community in times of crisis/need. In other words, it might not be strictly necessary to prove a specific custom relating to postponement of elections in cases of emergency (though obviously that is the easiest path if it exists), if the Nation can demonstrate a broader custom of exceptional, collective action taken in order to preserve and protect community health and welfare.
New Indian Act Regulation
However, should no such custom exist, the New Regulation provides an additional option.
As at writing of this article, the New Regulation, entitled First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases), is not publicly available and has not yet been formally published, but has been circulated to First Nations and will imminently be brought into force.
The New Regulation is made pursuant to ss. 73(1)(f) and 71(1) of the Indian Act, which allow the Governor in Council make regulations in order to "prevent, mitigate and control the spread of diseases on reserves" and "with respect to band elections," respectively. Either of these heads of regulation-making power apply to "bands" and "reserves" under the Indian Act, and are therefore not limited to elections held pursuant to the Indian Act or the First Nations Election Act ("FNEA").
In brief, the New Regulation provides a procedure for the extension of tenure of Chief and Council and the postponement or cancellation of elections held under the Indian Act and FNEA, where such measures are necessary to prevent, mitigate, or control the spread of disease on reserve. An initial extension of 6 months is contemplated, with the possibility of a further 6-month extension should it be necessary. The New Regulation expires a year after entering into force.
While the New Regulation primarily addresses elections held under the Indian Act or FNEA, it also explicitly confers the same ability on First Nations with customary elections:
4 (1) 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.
Thus, the New Regulation, once in force, will authorize the Chief and Council of a First Nation with customary election laws to extend their tenure for an initial 6-month period, in order to prevent, mitigate, or control the spread of disease on reserve. It also impliedly confers authority on the Chief and Council to postpone or cancel an upcoming election, though it does not provide clear rules on the procedure for doing so – clearly this is done in order to allow First Nations operating under customary election rules to do so in accordance with their own customs.
Section 81 By-law under the Indian Act
Finally, under the Indian Act, the council of a band is empowered to make by-laws for public health purposes and to prevent disease. This by-law making power is similar to that of the Governor in Council under s. 73(f) of the Indian Act, referenced above:
81 (1) The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes, namely,
(a) to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases;
Arguably, a First Nation band council could enact such a by-law to give itself the authority to take public health measures to limit the spread of disease, including by postponing an election in cases of public health emergency. Such a by-law could be adopted in conjunction with an assertion of a custom allowing for a delay of an election. Assuming a limited postponement and the absence of viable alternatives to delay, such a measure is likely to be valid and defensible.
In addition, as noted, it is clear that in any event the federal government in enacting the New Regulation as set out above intends to expressly give the authority to Chiefs and Council to postpone elections in the face of the current crisis.
In any scenario, any decision to postpone should ensure that due process and formality (i.e. BCR) have been followed, minimize any impacts on the First Nation's democratic process, including by being as limited as reasonably possible, and be supported by a strong probability that alternatives are not viable without placing the community at risk of harm, thereby placing voters in an untenable position of having to choose between the exercise of their right to vote and their personal health and safety.
The First Nation will also have to consider future impacts, i.e. how such a postponement will affect the timing of future terms and elections, something that might be remedied by a shortened term or amendments to its customary election law.
Originally published 17 April 2020
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