Hon. Nick G. Sibbeston:

Honourable senators, I am pleased to speak today on Bill C-6, the First Nations election act. I can safely say that this bill is an improvement on the current situation and is broadly supported by my colleagues on this side of the chamber. I would not go as far as Senator Patterson, the sponsor of the bill, and call it a milestone achievement, but it is a vast improvement over what is. It is an incremental improvement, a stepping stone, perhaps, to what First Nations are really seeking, which is a First Nations-controlled and -designed election system based on their inherent right to self-government.

With that said, I commend the government for listening to First Nations, particularly those represented by the Assembly of Manitoba Chiefs and the Atlantic Policy Congress of First Nations Chiefs. They undertook a lot of the work, and their report on improving the system for First Nations elections forms the basis of this bill.

Also note that the bill is consistent with some elements of the Standing Senate Committee on Aboriginal Peoples' report, First Nation Elections: The Choice is Inherently Theirs, which was tabled in May of 2010.

As we often observe, between the process of consultation and the production of legislation, there are always a few slips. Perhaps that lies in the inherent nature of the Department of Aboriginal Affairs and the Department of Justice. However, I think we can find solutions to these problems. It will be up to the committee studying the bill to listen carefully to witnesses and to deliberate on what those solutions might be.

Senator Patterson did an admirable job at describing the merits of the bill. It is an opt-in bill that provides an alternative to the election provisions of the Indian Act. For First Nations who become part of it, the bill extends the terms of chiefs and councillors from two to four years and permits groups of First Nations to have common election dates if they so wish. This will provide greater stability to communities and allow for longer-term planning at both the local and the regional level.

The bill also removes the minister and the department from the appeals process. Instead, the Federal Court will be the primary avenue to pursue election appeals.

The bill also establishes clear rules for conducting elections and sets out penalties for corrupt and fraudulent practices. These are all good things and should be supported by honourable members.

It is what the bill fails to do that is of concern. The Senate committee heard from a wide range of witnesses when it was dealing with the issue of elections that resorting to the courts for election appeals is an expensive and time-consuming process.

What is needed is a First Nations institution, an electoral and appeals commission that can both support the election process and provide a transparent and low-cost appeals process. It could be used both by First Nations under this act and by those who adopt a customs election code.

That was the conclusion of many experts and First Nations. That was the conclusion of the Senate committee.

This bill does nothing to move us in that direction. I am not suggesting that Bill C-6 could be changed to create such a commission, nor should it. That would require a collaborative effort between Canada and the First Nations organizations, but the bill might include measures requiring the minister to initiate such a process or at least to report back on progress on further reforms to First Nations elections.

Another conclusion reached by the committee was that Canada should do all it can to help First Nations who wish to develop custom election codes to reflect their specific situation and history and fully exercise their inherent right to self-government. Although nothing in the bill actively assists First Nations to move in this direction, section 42 provides for First Nations to be removed from the schedule if they adopt such a code. I trust the committee will take a close look at these clauses to ensure that they do not create an undue impediment to moving to First Nations-designed electoral systems.

It is significant that a First Nation requires only a band council resolution to come under this act but a community vote with a double majority requirement — that is, a majority of voters and a majority of votes — to leave it. Although generally this bill will apply only to those First Nations whose council requests it, there are provisions that allow the minister to add a First Nation to the schedule if it determines that a protracted leadership dispute has significantly compromised governance.

Concern has been raised about this new power of the minister, especially about the undefined nature of the words "protracted leadership dispute." This is another area the committee should look at closely.

Clause 24 of the bill requires that in the event of a tie in an election, the electoral officer must conduct a draw to break the tie. Derek Nepinak, the new Grand Chief of the Assembly of Manitoba Chiefs, has called this process inappropriate. The committee will need to hear why he objects.

However, I will point out that federal, provincial and territorial elections require that in the case of a tie a new election be held. Only in municipal elections are ties settled by lottery. As First Nations frequently point out, they are not municipalities but self-government nations. Federal legislation that purports to move away from the paternalism of the Indian Act should treat them as such.

Although I believe there are areas where this legislation can be improved, I do agree it represents a significant improvement on the status quo and a useful step in the right direction. I trust senators on the Aboriginal Peoples Committee will take a close look at the provisions of the bill and recommend appropriate amendments.

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