Initiative to modernize regulations on First Nations' decision making: Summary of dialogue sessions
Indigenous Services Canada (ISC) is undertaking a 2-phased initiative to modernize federal regulations on First Nations’ decision making. This initiative is an important step towards supporting Indigenous self-determination and the economic prosperity of First Nations.
This report is a summary of comments that were shared by participants as part of phase 1 of this initiative, which ended on August 31, 2022.
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Phase 1 of the initiative
ISC proposed targeted amendments to the Indian Referendum Regulations and the First Nations Elections Regulations.
Currently, the Indian Referendum Regulations require that community referendum votes be administered almost entirely by the Government of Canada, while neither the Indian Referendum Regulations nor the First Nations Elections Regulations allow the use of online voting as an additional and optional voting method.
The proposed regulatory amendments would:
- create a new option for First Nations to appoint an electoral officer to administer referendum votes under the Indian Referendum Regulations
- enable the use of online voting as an additional voting method under both the Indian Referendum Regulations and the First Nations Elections Regulations
Between March 24, 2022 and August 18, 2022, the Government of Canada met with First Nations leaders and organizations to discuss the proposed regulatory amendments.
In total, ISC held 14 regional dialogue sessions, 5 additional sessions requested by regional First Nations organizations, and 2 dialogue sessions with national Indigenous organizations. The department also presented the initiative at existing regional First Nations leadership meetings in Ontario and the Atlantic region.
In addition, an online survey was launched on ISC’s website in February 2022 for First Nations individuals to provide their views. The online survey was promoted on ISC’s social media accounts and during dialogue sessions. On August 31, 2022, the department had received a total of 27 responses via the online survey.
Proposed regulatory amendments
Create an option for First Nations to appoint a non-departmental electoral officer under the Indian Referendum Regulations
Most dialogue session participants agreed that an option for First Nations to appoint a non-departmental electoral officer under the Indian Referendum Regulations would benefit First Nations interested in increasing their control over the administration of federally-regulated decision-making processes. While many of those who had recently held votes under the Indian Referendum Regulations recounted positive interactions with the departmental officials administering their referendums, some First Nations had experienced lost economic opportunities due to delays from ISC. Participants also discussed the difficulties navigating limited departmental capacity, high turn-over rates among ISC staff, and the cumbersome processes outlined in the regulations. The majority of dialogue session participants believed that the changes proposed under Phase 1 of the initiative could help address these issues.
There are numerous considerations that might impact a First Nation’s interest and ability to adopt and fully benefit from this option. These include population size, geographic location, human resources, and the number of previous, planned or anticipated referendum votes. For example, First Nations with experience holding similar votes felt confident that, given the proper training and resources, their local deputy electoral officers or electoral officers could easily administer referendum votes under the Indian Referendum Regulations.
These different lived realities can impact views on the appointment process for a non-departmental electoral officer. ISC received mixed perspectives on the selection criteria for an electoral officer. Some participants expressed that, in order to maintain objectivity and avoid real or perceived conflict of interest, an electoral officer should not be a member of the voting First Nation. Others expressed that First Nations should have the flexibility to appoint the electoral officer of their choice, whether or not they are a member of the voting First Nation.
Regardless of their position, participants agreed that regular communications from ISC on this initiative and ongoing co-development efforts throughout the regulatory amendment process would be necessary to ensure interested First Nations fully benefit from the proposed option.
In addition, the following themes were discussed as key to supporting the successful implementation of this proposed regulatory change:
- all costs related to the administration of referendums should be covered by ISC
- non-departmental electoral officers should be certified in a timely way through an accessible, high-quality training program
- a pool of qualified and certified non-departmental electoral officers should be available for First Nations
- electoral officers and First Nations would benefit from clear tools such as guidance documents and policies to support the administration of referendum votes
- geographical representation and availability of non-departmental electoral officers must be considered in order to ensure interested First Nations in small, rural and remote communities can also use the proposed regulatory option
- a long-term commitment from ISC to build and maintain voting administration capacity could lead to increased employment opportunities for First Nation members
- ISC must provide operational assistance to First Nations and First Nation-appointed electoral officers, as requested, before, during and after referendums
- the decision to appoint an electoral officer, or to have the department administer a vote, should be determined by the First Nation on a vote-by-vote basis
Create an option for First Nations to use online voting under the Indian Referendum Regulations and the First Nations Elections Regulations
Most dialogue session participants were supportive of introducing an option to use online voting and acknowledged that this is the way of the future, particularly given the shift to online processes brought on by the COVID-19 pandemic. Many emphasized the importance of introducing the proposed regulatory measure as completely optional and welcomed the proposal to ensure existing voting methods, such as in-person voting and mail-in ballots, remain available to First Nations electors who are uninterested in or uncomfortable using online voting.
Those who had previously used online voting for different types of votes generally reported positive experiences. Some of the highlighted benefits of using online voting include:
- increased efficiency in comparison to traditional voting methods
- ease of use
- increased reach and accessibility, particularly for First Nations members living off reserve
- higher participation rates in community votes than in those without the option to use online voting
Potential challenges that were flagged include:
- online registration processes
- difficulties developing or accessing accurate voters lists
- unreliable broadband and internet connectivity in rural and remote First Nations, which could impact their ability to use this option
- some First Nations electors have limited or no access to online voting devices such as smart phones, tablets and laptops
- potential misalignment between online processes and some forms of Indigenous ways of knowing and of making decisions
- issues arising during the voting period, for example, a system crash or power outage
Participants also noted significant security concerns, notably around:
- data confidentiality
- voter anonymity
- difficulties confirming voter identity
- potential fraud
The resounding sentiment amongst dialogue sessions participants was the need to protect the integrity of the voting process. As modern voting tools make their way into federally-regulated decision-making processes, such as the Indian Referendum Regulations, it remains the responsibility of the government to ensure communities’ safety and the protection of voters’ rights.
Several additional themes emerged as important considerations for the proposal to offer First Nations the option to use online voting, including:
- easily accessible funding should be made available to support the use of online voting under the Indian Referendum Regulations and the First Nations Elections Regulations
- many Indigenous organizations and First Nations have significant experience using online voting for different types of votes and are well-positioned to support the co-development of supporting tools, resources and guidance documents
- tools, resources and guidance documents to support the use of online voting, including how to assess security risks, should provide key information needed to make informed decisions, while providing enough flexibility for First Nations to meet their own specific community needs and priorities
- there is a need to increase digital literacy, particularly amongst community members who do not feel comfortable using new technology
- an emphasis should be placed on offering First Nations training in areas such as information technology and database management
- online voting standards should align with First Nations laws, policies, processes and procedures
- to ensure consistency between different elections systems, ISC should explore the possibility of introducing an online voting option under the Indian Band Elections Regulations
Online survey
In order to hear directly from First Nations individuals, an online survey was opened to the public on February 17, 2022. By August 31, 2022, the department had received 27 responses via the online survey. The survey was promoted during the dialogue sessions as another way for participants and other interested First Nations individuals who were not in attendance to provide feedback. It was also promoted through the department’s social media accounts.
Survey responses sometimes conflicted with what was heard during the dialogue sessions. For instance, while the proposed regulatory amendment to provide First Nations with the option to appoint an electoral officer who is not a departmental official under the Indian Referendum Regulations, was received very positively during the dialogue sessions, just over half (17) of survey respondents expressed their support for such a change. For some, the proposed amendment represents a positive development to support increased First Nations’ participation in decision-making processes, while others raised the potential for conflict of interest in instances where an electoral officer might be affiliated to the voting First Nation.
One third (9) of survey respondents opposed enabling online voting as an additional optional voting method under the Indian Referendum Regulations and the First Nations Elections Regulations, often suggesting considerable cybersecurity risks. Despite such concerns, the survey results more readily highlighted anticipated benefits around increased voter participation, particularly for members living off-reserve.
Among a range of comments received, many noted the proposed regulatory measures’ potential to unlock critical votes, provided that adequate funding, training, capacity development, policy guidance, standards and safeguards around online voting security risks are in place to support interested First Nations. In order to ensure online voting systems empower communities to incorporate their own cultural references into the process, including traditional languages, it was recommended that the department co-develop related tools and resources with First Nations.
Some respondents noted concerns around transparency, accountability and accessibility. Extensive community engagement and information-sharing with potentially impacted First Nation members was recommended as an important enabler to online voting.
The online survey closed on August 31, 2022.
Phase 2 of the initiative
Beginning in early 2023, ISC is proposing to lay the groundwork for a more transformative reform of Canada's requirements relating to First Nations decision making on reserve land management. These changes are believed to better align federal legislation with the United Nations Declaration on the Rights of Indigenous Peoples and to facilitate a path to increased First Nations self-determination. This will require engaging with a broader group of First Nations rights-holders and leaders.
The dialogue sessions provided an opportunity to discuss best practices and guiding principles for phase 2 engagement. Many participating First Nations and organizations agreed that, beyond reforming designation referendum procedures, more work needs to be done by the federal government to comply with the United Nations Declaration on the Rights of Indigenous Peoples, support effective First Nations’ decision making under different types of land management and elections regimes and recognize Indigenous sovereignty. Some First Nations’ representatives also mentioned the need to further reform the First Nations Elections Regulations. Leaders often explained that, as many First Nations governments implement their inherent right to self-determination and proceed with enacting their own laws, Canada must establish new ways of advancing nation-to-nation relationships that acknowledge and respect the political, legal, economic and social structures of these sovereign nations.
It was recommended that in-person engagement be considered for phase 2 and that ISC engage early, often and directly with First Nations on this important matter. Finally, it was clearly stated that the department must report back to First Nations after discussions on this initiative and adopt a respectful, co-development approach that considers First Nations’ timelines and reflects the unique histories, perspectives and priorities of First Nations rights-holders and leaders from across the country.
Additional comments on the initiative
When discussing the overall proposed approach to this initiative, one national First Nation organization recommended that all work related to both phase 1 and phase 2 be discussed within the framework of the engagement process led by the Department of Justice on an action plan to achieve the objectives of the United Nations Declaration on the Rights of Indigenous Peoples.
Indigenous Services Canada will continue to receive feedback on this initiative via the following email address: RPML-Dialogues-RPLI@sac-isc.gc.ca.