First Nations Election Postponement Extension

Summary#

These final regulations amend the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) to give First Nations more time to delay elections because of COVID-19. They came into force on April 8, 2021, extend the regulations’ expiry to October 8, 2021, and require any postponed or cancelled elections to be held by December 31, 2021.

What it does#

• Extends the sunset (repeal) date of the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) from April 8, 2021 to October 8, 2021.
• Sets a hard deadline that any postponed or cancelled election must be held no later than December 31, 2021. No extended term for a chief or councillor can go past that date.
• Limits how long terms can be extended:
  • Each extension can be up to six months.
  • A term can be extended at most twice.
  • Exception: if a term was already extended twice before April 9, 2021, it may be extended once more for up to six months.
• Changes wording so that electoral officers and their deputies are removed from office when election documents are destroyed after a cancelled or postponed vote.
• Repeals one section (section 5) of the earlier regulations. The source does not explain what section 5 did.

Who's affected#

• First Nations that hold elections for chiefs and councillors. The government noted 113 elections were scheduled between April and October 2021 (including 48 under the Indian Act, 20 under the First Nations Elections Act, and 45 under custom election codes).
• Band councils and current chiefs and councillors who might choose to postpone or cancel an election.
• Electoral officers and deputy electoral officers, because the rules about removal from office and destruction of documents were changed.
• Indigenous Services Canada, which issues guidance and administers aspects of the policy.
• There is legal uncertainty for some communities because of the Federal Court decision in Bertrand v. Acho Dene Koe First Nation, which found parts of the earlier regulations invalid as they relate to custom election codes. The government plans to appeal that decision.

Why it matters#

• Public health: the changes let First Nations delay elections to reduce COVID-19 risks for community members, especially Elders and people with health vulnerabilities.
• Governance: the rules aim to avoid gaps in local leadership by allowing limited extensions of terms, while also setting clear limits and a final deadline so postponements are not open-ended.
• Democracy and local choice: decisions to postpone or cancel still rest with band councils (by council resolution). That can protect health, but it also raises concerns that postponement decisions may not match the wishes of all community members.
• Legal uncertainty: the Federal Court’s ruling about the earlier regulations means some First Nations that rely on their own custom election rules may face questions about whether these extensions are legally available. The outcome of the government’s planned appeal could change how the rules apply.