Federal gov't to appeal ruling that it overstepped by allowing First Nations to postpone elections

The federal government is standing behind its decision to let First Nations cancel and postpone their elections amid the COVID-19 pandemic. 

Minister of Indigenous Services, Marc Miller, announced Thursday the government is launching an appeal after a federal court justice recently ruled one community's council — Acho Dene Koe First Nation, based in Fort Liard, N.W.T. — did not have the power to extend its own term in office. 

"These regulations are a key tool to help manage COVID-19 risks within [First Nations] communities," said Miller in a statement that defends the government's First Nations Election Cancellation and Postponement Regulations.

The regulations came into effect April 8, 2020, and were the result of "hearing directly from First Nation leaders regarding their grave concerns" and were intended to "address the immediate public health risks posed by holding elections during the COVID-19 pandemic," he said.

Miller pointed out in his statement that 116 First Nations have used the regulations to postpone elections. They apply to communities that hold elections under the Indian Act and the First Nations Elections Act, as well as elections that are held according to custom. 

It is Section 4 of the First Nations Election Cancellation and Postponement Regulations — Elections According to Custom — the judge took issue with. 

Acho Dene Koe First Nation member, and former chief, Floyd Bertrand filed a legal challenge Oct. 22, 2020, to chief and council's decision to postpone the election. He argued that, among other things, the regulations outlined in Section 4 were invalid and that Acho Dene Koe election customs do not allow chief and council to extend their terms or postpone an election. 

Justice Sébastian Grammond agreed with Bertrand on both counts. 

"Acho Dene Koe's customary law requires elections to take place every three years and does not authorize the council to extend its own term of office," Grammond wrote. "The council of Acho Dene Koe First Nation did not have the power to extend its own term of office."

Justice Grammond also concluded the federal cabinet overstepped its powers under the Indian Act when it enacted the regulations, and that Section 4 was invalid, regardless of how well-intended the regulations or applications may be. 

The government of Canada is appealing Grammond's ruling. 

Minister Miller said, in his statement, the regulations provide a mechanism for First Nations councils to postpone their elections or to extend the terms of their chiefs and councillors while avoiding a critical governance gap. 

He also said the government continues to recognize the health risks of holding elections during the pandemic, especially in at-risk, underserved Indigenous communities — pointing out that parts of the country are grappling with a third wave of COVID-19 and more contagious variant strains.