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First Nation elections pose significant health risk | Pamela Palmater and Maggie Wente

Friday, March 27, 2020 @ 11:01 AM | By Pamela Palmater and Maggie Wente

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Pam Palmater
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Maggie Wente
First Nations in Canada are being told by federal officials that if they do not proceed with their elections, there will be a “governance gap,” i.e. the federal government will not recognize their governments. This sends the clear message that the federal government is more concerned about controlling First Nations’ governance practices than the health and safety of their citizens during the COVID-19 pandemic.

First Nations people are uniquely vulnerable to COVID-19, and uniquely ill-equipped to deal with an outbreak in their communities. During the H1N1 pandemic in 2009, Indigenous peoples were only four per cent of the population, but represented 28 per cent of hospital admissions and 18 per cent of the deaths. The majority of those impacted were First Nations. It’s hard to “wash your hands” and “self-isolate” when many generations live in small houses together, sometimes without running water. COVID-19 hitting First Nations will be devastating. To force elections right now, while First Nations are closing their borders and enforcing physical distancing, is an unconscionable federal position.

There are currently 634 First Nations across the country with a variety of governing structures, and procedures vary for determining political leadership. Under the Indian Act and the First Nations Election Act (FNEA), the terms of the council is set at two and four years respectively and sets out procedures and regulations about how to run elections, which sets out election procedures. Over 50 per cent of First Nations run elections using their own “custom election codes,” some of which require traditional elections. Finally, there are a number of First Nations who have entered into self-government agreements and determine their governing structures and elections according to their own laws. Those First Nations who elect their governments under the Indian Act or FNEA have no independent control over election procedures. 

Last week, the federal government forwarded an e-mail to First Nation electoral officers explaining that the position of the federal government would be that a postponed election under the Indian Act or FNEA would result in a “governance gap.” While this may not sound urgent, this position taken by Indigenous Services Canada (ISC) could mean that ISC will not recognize the authority of First Nation governments whose terms have expired, and it’s still not entirely clear what that could be. The result could be that ISC won’t sign funding agreements or recognize decisions of the governments because they normally required a resolution of the First Nation Council, as required by the Indian Act. This could halt critical funds for programs and services and pandemic emergency measures would not flow to First Nations — at least not without ISC imposing a third-party manager — a company hired to take over First Nation finances at great cost to the First Nation.

The alternative? ISC suggests going ahead with elections by using preventative measures like people bringing their own pencils and not allowing more than 50 people in tiny community halls used as polling stations or at nomination meetings. This is the opposite of physical distancing. The prime minister is on television every day begging Canadians to practise physical distancing and not gather in large groups, and at the same time telling the population most at risk of dying of COVID-19 to continue to gather or face their “governance gap.”

Federal, provincial and municipal governments all over Canada are implementing emergency measures to stem the rapid increase of infections. Municipal elections are being postponed nationwide and other elections around the world, for obvious reasons. First Nation governments have also been declaring states of emergency, working to close their borders and ensuring their citizens have enough food, water and medical supplies. The First Nations’ rights to make critical emergency measure decisions for their nations should be recognized. But First Nations who aren’t allowed to control their own elections aren’t allowed to make these decisions to protect their citizens.

While there are of course things that First Nations can do to try to minimize the risks of postponing elections, it’s not the time for them to be concentrating on those matters.

All levels of government are facing a delicate balancing act between everyday life and strict measures needed to halt the spread of COVID-19. The federal government should publicly commit to recognizing First Nation powers to temporarily suspend elections during this critical stage of the pandemic in order to save lives. This crisis exposes the powerlessness that First Nations face as a result of colonial legislation. However, in the meantime there are measures the federal government can take like legislation, order-in-council, or even policy statements to provide peace of mind in this time so First Nations can get back to the business that they need to be doing to keep their citizens safe.

Vague threats about “governance gaps” and third-party management are not the way to achieve community safety or to give First Nations governments the recognition they deserve.

Dr. Pamela Palmater is a Mi’kmaw citizen and member of Eel River Bar First Nation. She has been a practising lawyer for 18 years specializing in Indigenous and human rights law and currently holds the position of associate professor and chair in Indigenous governance at Ryerson University. She maintains her own political blog at Maggie Wente is a partner at OKT (Olthuis Kleer Townshend LLP). She is a member of Serpent River First Nation and has a broad practice serving First Nations governments, their related entities, businesses and not-for-profit corporations.

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