Vol. 134, No. 36 — September 2, 2000

Regulations Amending the Old Age Security Regulations

Statutory Authority

Old Age Security Act

Sponsoring Department

Department of Human Resources Development

REGULATORY IMPACT ANALYSIS STATEMENT

For the Regulatory Impact Analysis Statement, see the Regulations Amending the Canada Pension Plan Regulations.

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 11(8)(see footnote a), sections 14(see footnote b), 19(see footnote c) and 21(see footnote d), subsections 23(1)(see footnote e) and (2)(see footnote f), section 34(see footnote g) and subsection 40(2) of the Old Age Security Act, proposes to make the annexed Regulations Amending the Old Age Security Regulations.

Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Income Security Programs, Department of Human Resources Development, 8th Floor, Room 876, Tower B, Place Vanier, Vanier, Ontario, K1A 0L1.

Ottawa, August 23, 2000

MARC O'SULLIVAN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE OLD AGE SECURITY REGULATIONS

AMENDMENTS

1. Section 6(see footnote 1) of the Old Age Security Regulations(see footnote 2) and the heading before it are replaced by the following:

Payment of an Allowance Under Two Dollars

6. Where a spouse, common-law partner or survivor is entitled under Part III of the Act to an allowance in an amount that does not exceed $2 monthly, an allowance of $2 is payable monthly to that spouse, common-law partner or survivor.

2. The heading(see footnote 3) before section 11 of the English version of the Regulations is replaced by the following:

Approval of Application for an Allowance

3. Section 11(see footnote 4) of the Regulations is replaced by the following:

11. The Minister shall approve an application for an allowance for the spouse or common-law partner of a pensioner or for a survivor where the spouse, common-law partner or survivor is entitled to an allowance under section 19 or 21 of the Act.

4. (1) The portion of subsection 12(1)(see footnote 5) of the Regulations before paragraph (a) is replaced by the following:

12. (1) Subject to subsections (2) and (3), where the Minister approves an application for an allowance after the last day of the month in which the application was received, the Minister's approval shall be effective as of the later of

(2) Paragraph 12(1)(b)(see footnote 6) of the Regulations is replaced by the following:

(b) the day on which the spouse, common-law partner or survivor became entitled to an allowance under section 19 or 21 of the Act.

(3) The portion of subsection 12(2)(see footnote 7) of the Regulations before paragraph (a) is replaced by the following:

(2) Where the spouse or common-law partner of a pensioner attains the age of 60 years before the day on which the application for an allowance in respect of the spouse or common-law partner is received, the approval of the application by the Minister shall be effective as of the latest of

(4) Paragraphs 12(2)(b)(see footnote 8) and (c)(see footnote 9) of the Regulations are replaced by the following:

(b) the day on which the spouse or common-law partner attained the age of 60 years, and

(c) the day on which the spouse or common-law partner became entitled to an allowance under section 19 of the Act.

(5) The portion of subsection 12(3)(see footnote 10) of the Regulations before paragraph (a) is replaced by the following:

(3) Where a survivor is entitled to an allowance under section 21 of the Act before the day on which an application in respect of the survivor is received, the approval of the application by the Minister shall be effective as of the later of

(6) Paragraph 12(3)(b)(see footnote 11) of the Regulations is replaced by the following:

(b) the day on which the survivor became entitled to an allowance under section 21 of the Act.

5. (1) The portion of paragraph 13(a)(see footnote 12) of the Regulations before subparagraph (i) is replaced by the following:

(a) the month in which an applicant or an applicant's spouse or common-law partner

(2) Paragraph 13(b)(see footnote 13) of the Regulations is replaced by the following:

(b) the month in which an applicant or an applicant's spouse or common-law partner suffers a loss of income due to termination or reduction of pension income shall be the month in which that termination or reduction actually occurs.

6. Section 15(see footnote 14) of the Regulations and the heading(see footnote 15) before it are replaced by the following:

Assignment of Social Insurance Numbers to Applicants, Beneficiaries, Spouses or Common-law Partners

15. Where a Social Insurance Number has not been assigned to an applicant or beneficiary or to the spouse or common-law partner of an applicant or beneficiary, the Minister may assign or cause to be assigned a Social Insurance Number to the applicant or beneficiary or to the spouse or common-law partner of the applicant or beneficiary.

7. Section 16(see footnote 16) of the Regulations and the heading before it are replaced by the following:

Evidence

16. If the Minister did not receive sufficient evidence or information of the relationship between the applicant and their spouse or common-law partner in support of a prior application for a supplement or an allowance,

(a) in the case of spouses, an applicant for a supplement or joint applicants for an allowance shall provide the Minister with

(b) in the case of common-law partners, an applicant for a supplement or joint applicants for an allowance shall provide the Minister with

8. Section 17(see footnote 17) of the Regulations and the heading before it are repealed.

9. (1) Paragraph 21(2.1)(c)(see footnote 18) of the Regulations is replaced by the following:

(c) as the spouse, common-law partner or dependant of a person referred to in paragraph (a) or (b) or the dependant of that person's spouse or common-law partner; or

(2) Subsection 21(3) of the Regulations is replaced by the following:

(3) For the purposes of the Act and these Regulations, where a person becomes the spouse or common-law partner of a person residing in Canada while the person residing in Canada is absent from Canada in any of the circumstances specified in paragraph (5)(a) or (b), the period outside Canada of the spouse after their marriage or of the common-law partner after becoming such a partner is considered a period of residence and presence in Canada, if

(a) the spouse or common-law partner returns to Canada either before or within six months after the return of the person residing in Canada or within six months after that person's death if that person dies while so absent from Canada; or

(b) the spouse or common-law partner attains, during that period outside Canada, an age at which the spouse or common-law partner is eligible to be paid a pension under the Act.

(3) The portion of paragraph 21(5)(c) of the Regulations before subparagraph (ii) is replaced by the following:

(c) while that person was accompanying their spouse or common-law partner who was absent from Canada in any of the circumstances specified in paragraph (a) or (b) or for the purpose of attending school or university, if that person

(4) Subsections 21(5.1)(see footnote 19) and (5.2)(see footnote 20) of the Regulations are replaced by the following:

(5.1) Where, by virtue of an agreement entered into under subsection 40(1) of the Act, a person is subject to the Act while residing in a country other than Canada, the absence from Canada of that person, the person's spouse or common-law partner and the dependants of the person or of the person's spouse or common-law partner, if the spouse, common-law partner or dependants, as the case may be, reside with the person in that country, shall, for the purposes of an allowance, not be considered to have interrupted the residence or presence in Canada of the person, spouse, common-law partner or dependants.

(5.2) Where a person who is resident in Canada is subject to the legislation of a country other than Canada by virtue of an agreement entered into under subsection 40(1) of the Act, and the person's spouse or common-law partner or the dependant of the person or of the person's spouse or common-law partner engages in pensionable employment as defined in the Canada Pension Plan or in the plan of a province providing a comprehensive pension plan, any period in such pensionable employment shall, for the purposes of the Act and these Regulations, be considered to be a period of residence in Canada.

(5) Subsection 21(6) of the Regulations is replaced by the following:

(6) For the purposes of paragraph (5)(f), "dependent person" means, with respect to a person who was absent from Canada in any of the circumstances specified in paragraph (5)(a) or (b), that person's father, mother, brother, sister, child or foster child or the father, mother, child or foster child of the person's spouse or common-law partner.

(6) The portion of subsection 21(7)(see footnote 21) of the Regulations after paragraph (c) is replaced by the following:

that person's father, mother, brother, sister, child or foster child or the father, mother, child or foster child of the person's spouse or common-law partner.

10. The Regulations are amended by adding the following after section 22:

APPLICATION OF INTERNATIONAL AGREEMENTS

22.01 The agreements referred to in the schedule, which were entered into under subsection 40(1) of the Act for the making of reciprocal arrangements relating to the administration or operation of the Act, shall, in order to give full effect to the Act, be applied in Canada in a manner that extends to common-law partners the treatment afforded to spouses.

11. (1) The portion of subsection 22.1(1) (see footnote 22) of the Regulations before paragraph (a) is replaced by the following:

22.1 (1) For the purposes of subsections 11(8), 19(6.2) and 21(9.1) of the Act, the following are events in relation to a sponsor referred to in those subsections:

(2) Paragraph 22.1(2)(a) (see footnote 23) of the Regulations is replaced by the following:

(a) whose undertaking in respect of a pensioner, the spouse or common-law partner of a pensioner, or a survivor, as the case may be, was in effect on or after March 7, 1996; and

12. In subsections 25(3) and (4) of the Regulations, the expression "a spouse's allowance" is replaced by the expression "an allowance".

13. The Regulations are amended by adding the following after section 47:

SCHEDULE
(Section 22.01)

Country	Agreement
Antigua and Barbuda Antigua-et-Barbuda	Agreement on Social Security between Canada and Antigua and Barbuda, signed at Ottawa on September 2, 1992
Australia Australie	Reciprocal Agreement on Social Security between the Government of Canada and the Government of Australia, signed at Canberra on July 4, 1988 Protocol amending the Reciprocal Agreement on Social Security between the Government of Canada and the Government of Australia, signed at Ottawa, October 11, 1990
Austria (Republic of) Autriche (République d')	Agreement on Social Security between the Government of Canada and the Government of the Republic of Austria, signed at Vienna on February 24, 1987 Supplementary Agreement to the Agreement on Social Security between Canada and the Republic of Austria, signed at Vienna on September 12, 1995
Barbados Barbade	Agreement on Social Security between the Government of Canada and the Government of Barbados, signed at Bridgetown on February 11, 1985
Belgium Belgique	Agreement on Social Security between the Government of Canada and the Government of Belgium, signed at Brussels on May 10, 1984
Chile (Republic of) Chili (République du)	Agreement on Social Security between the Government of Canada and the Government of the Republic of Chile, signed on November 18, 1996
Croatia (Republic of) Croatie (République de)	Agreement on Social Security between the Government of Canada and the Government of the Republic of Croatia, signed on April 22, 1998
Cyprus (Republic of) Chypre (République de)	Agreement on Social Security between Canada and the Republic of Cyprus, signed at Ottawa on January 24, 1990
Denmark Danemark	Agreement on Social Security between the Government of Canada and the Government of Denmark, signed at Copenhagen on April 12, 1985
Dominica (Commonwealth of) Dominique (Commonwealth de la)	Agreement on Social Security between the Government of Canada and the Government of the Commonwealth of Dominica, signed at Roseau on January 14, 1988
Finland (Republic of) Finlande (République de)	Agreement on Social Security between the Government of Canada and the Government of the Republic of Finland, signed at Ottawa on October 28, 1986
France France	Agreement on Social Security between the Government of Canada and the Government of France, signed at Ottawa on February 9, 1979
Germany (Federal Republic of) Allemagne (République fédérale d')	Agreement on Social Security between the Government of Canada and the Government of the Federal Republic of Germany, signed at Bonn on November 14, 1985
Greece (Hellenic Republic) Grèce (République hellénique)	Agreement on Social Security between Canada and the Hellenic Republic, signed at Toronto on November 10, 1995
Grenada Grenade	Agreement on Social Security between the Government of Canada and the Government of Grenada, signed on January 8, 1998
Guernsey Guernesey	Agreement on Social Security between Jersey, Guernsey and Canada, in force in Canada as of January 1, 1994
Iceland Islande	Agreement on Social Security between the Government of Canada and the Government of Iceland, signed at Gimli on June 25, 1988
Ireland Irlande	Agreement on Social Security between Canada and Ireland, signed at Ottawa on November 29, 1990
Israel Israël	Interim Agreement on Social Security between the Government of Canada and the Government of Israel, signed at Jerusalem on April 9, 2000
Italy (Italian Republic) Italie (République italienne)	Agreement on Social Security between Canada and Italy, signed at Toronto on November 17, 1977 Agreement on Social Security between Canada and the Italian Republic, signed at Rome on May 22, 1995
Jamaica Jamaïque	Agreement between the Government of Canada and the Government of Jamaica with respect to Social Security, signed at Kingston, Jamaica on January 10, 1983
Jersey Jersey	Agreement on Social Security between Jersey, Guernsey and Canada, in force in Canada as of January 1, 1994
Korea (Republic of) Corée (République de)	Agreement on Social Security between Canada and the Republic of Korea, signed at Seoul on January 10, 1997
Luxembourg Luxembourg	Agreement on Social Security between the Government of Canada and the Government of Luxembourg, signed at Ottawa on May 22, 1986
Malta (Republic of) Malte (République de)	Agreement on Social Security between Canada and the Republic of Malta, signed at Toronto on April 4, 1991
Mexico (United Mexican States) Mexique (États-Unis du)	Agreement on Social Security between Canada and the United Mexican States, signed at Ottawa on April 25, 1995
Morocco (Kingdom of) Maroc (Royaume du)	Convention on Social Security between the Government of Canada and the Government of the Kingdom of Morocco, signed on July 1, 1998
Netherlands (Kingdom of the) Pays-Bas (Royaume des)	Agreement on Social Security between the Government of Canada and the Government of the Kingdom of the Netherlands, signed at The Hague on February 26, 1987
New Zealand Nouvelle-Zélande	Agreement on Social Security between Canada and New Zealand, signed on April 9, 1996
Norway (Kingdom of) Norvège (Royaume de)	Agreement on Social Security between the Government of Canada and the Government of the Kingdom of Norway, signed at Oslo on November 12, 1985
Philippines (Republic of the) Philippines (République des)	Agreement on Social Security between Canada and the Republic of the Philippines, signed at Winnipeg on September 9, 1994 Supplementary Agreement to the Agreement on Social Security between the Government of Canada and the Government of the Republic of the Philippines, signed at Winnipeg on November 13, 1999
Portugal Portugal	Agreement between Canada and Portugal with respect to Social Security, signed at Toronto on December 15, 1980
Saint Lucia Sainte-Lucie	Agreement on Social Security between the Government of Canada and the Government of Saint Lucia, signed at Castries on January 5, 1987
Saint-Vincent and the Grenadines Saint-Vincent-et-les-Grenadines	Agreement on Social Security between the Government of Canada and the Government of Saint-Vincent and the Grenadines, signed on January 6, 1998
Slovenia (Republic of) Slovénie (République de)	Agreement on Social Security between the Government of Canada and the Government of the Republic of Slovenia, signed on May 17, 1998
Spain Espagne	Protocol to the Convention on Social Security between Canada and Spain, signed at Ottawa on October 19, 1995
St. Kitts and Nevis (Federation of) Saint-Kitts-et-Nevis (Fédération de)	Agreement on Social Security between Canada and the Federation of St. Kitts and Nevis, signed at Ottawa on August 17, 1992
Sweden Suède	Agreement on Social Security between the Government of Canada and the Government of Sweden, signed at Stockholm on April 10, 1985
Switzerland (Swiss Confederation) Suisse (Confédération suisse)	Convention on Social Security between Canada and the Swiss Confederation, signed at Ottawa on February 24, 1994
Trinidad and Tobago (Republic of) Trinité-et-Tobago (République de)	Agreement on Social Security between the Government of Canada and the Government of the Republic of Trinidad and Tobago, signed on April 9, 1997
Turkey (Republic of) Turquie (République turque)	Agreement on Social Security between the Government of Canada and the Government of the Republic of Turkey, signed on June 19, 1998
United Kingdom of Great Britain and Northern Ireland Royaume-Uni de Grande-Bretagne et d'Irlande du Nord	Memorandum of Understanding between the Government of Canada and the Government of the United Kingdom of Great Britain and Northern Ireland concerning Co-operation and Mutual Assistance in the Administration of Social Security Programmes, signed on January 16, 1997
United States of America États-Unis d'Amérique	Agreement between the Government of Canada and the Government of the United States of America with respect to Social Security, signed at Ottawa on March 11, 1981 Supplementary Agreement between the Government of Canada and the Government of the United States of America with respect to Social Security, signed at Ottawa on May 10, 1983 Second Supplementary Agreement amending the Agreement between the Government of Canada and the Government of the United States of America with respect to Social Security, signed on May 28, 1996 Administrative Understanding on Mutual Assistance, concluded pursuant to the Agreement between the Government of Canada and the Government of the United States of America with respect to Social Security and signed on December 4, 1996
Uruguay (Eastern Republic of) Uruguay (République orientale de l')	Agreement on Social Security between the Government of Canada and the Government of the Eastern Republic of Uruguay, signed at Ottawa on June 2, 1999

COMING INTO FORCE

14. These Regulations come into force on the day on which they are registered.

[36-1-o]

Regulations Amending the Indian Band Election Regulations

Statutory Authority

Indian Act

Sponsoring Department

Department of Indian Affairs and Northern Development

REGULATORY IMPACT ANALYSIS STATEMENT

Description

These proposed amendments would ensure that procedures are in place for bands that conduct their elections pursuant to the Indian Act and the Indian Band Election Regulations to allow for band members living off-reserve to vote in elections and referenda held under the Indian Act, in light of the decision of the Supreme Court of Canada (SCC) in Corbiere v. Canada (Minister of Indian and Northern Affairs) [Corbiere].

On May 20, 1999, the SCC ruled that the words "and is ordinarily resident on the reserve" found in section 77(1) of the Indian Act had the effect of prohibiting band members who live off the reserve from voting in Indian Act band council elections. As a result, the court declared those seven words to be inconsistent with the section 15 equality provisions of the Canadian Charter of Rights and Freedoms (Charter), which effectively removes these words from that section. However, the SCC suspended the effect of their declaration for a period of 18 months, so that the Government would have an opportunity to consult with those affected and remedy the situation. The suspension of the SCC's declaration is set to expire on November 20, 2000, meaning that as of this date, off-reserve band members will be allowed to vote in band elections held under the Indian Act.

At present, the Indian Band Election Regulations deal with voting procedures for on-reserve band members only. The current regulations call for voting to take place on the reserve. In light of the SCC's decision in Corbiere, the Indian Band Election Regulations must be amended to include procedures and mechanisms for off-reserve voting. In essence, this means that the regulations must be amended to allow off-reserve members to participate in band council elections (including the nomination of candidates for position of chief and the actual voting for candidates), without compelling their attendance on the reserve to do so. As a result, the regulations would be amended to allow off-reserve band members the choice of attending at the reserve to participate, or participating through the use of mail-in ballots.

The dropping of the words "and is ordinarily resident on the reserve" from section 77(1) of the Indian Act will indirectly cause the definition of "elector" in the Indian Act to change as well. An elector under the Indian Act is someone who:

(a) is registered on a band list;

(b) is of the full age of 18 years; and

(c) is not disqualified from voting at band elections.

The disqualification pursuant to paragraph (c) of the definition of elector is found in subsection 77(1) of the Indian Act. The seven words "and is ordinarily resident on the reserve" basically mean that if a member is not ordinarily resident on the reserve, they are not eligible to be an elector. When these seven words are dropped from section 77(1) of the Indian Act upon the suspension of the SCC's declaration of invalidity on November 20, 2000, the definition of elector will change since there will no longer be a disqualification based on residency, as is currently the case.

As a result of the change in the definition of elector, off-reserve band members will also have the right to vote in referenda held under subparagraph 39(1)(b)(iii) of the Indian Act, since that subparagraph states that absolute surrenders or designations must be assented to by a majority of the electors of the band. Currently, the Indian Referendum Regulations set out rules for voting in such referenda by on-reserve members. As with the Indian Band Election Regulations, the Indian Referendum Regulations must be amended to set out procedures for allowing off-reserve band members to vote in designations and surrenders.

Although the SCC's decision in Corbiere was limited to subsection 77(1) of the Indian Act, it had an indirect impact on subsection 77(2). As a result of the decision, off-reserve band members may vote for chief and councillors in elections held pursuant to subsection 77(1). However, subsection 77(2), which was not specifically dealt with by the SCC, states that where a reserve is broken into electoral sections, a band member must be resident in that section to vote there. Thus, the residency restriction still applies to elections held pursuant to subsection 77(2). It should be noted that although off-reserve band members will be allowed to vote for chief candidates, they will not be allowed to vote for councillor candidates. This inequality, which requires a legislative remedy as opposed to a regulatory remedy, will be addressed in Stage two of the Government's response to the SCC's decision in Corbiere, which is expected to get underway late this summer or early fall.

The SCC's ruling on Corbiere directly affects section 74 bands, which, as outlined above, are bands that hold elections under the Indian Act regime. It should also be noted that there are bands which do not hold their elections under the Indian Act per se, such as Custom code bands. These bands have opted out of the Indian Act or have never been under the Indian Act election regime and have devised their own electoral codes, which may or may not allow their off-reserve membership to vote. The Department of Indian Affairs and Northern Development (DIAND) has taken the position that the Corbiere decision may apply to Custom band elections, following the reasoning of the SCC on Charter equality rights, and has advised these bands to seek legal advice as to whether their elections codes will be in compliance with the Corbiere decision post-November 20, 2000.

Amendments to the Regulations

As noted above, the Indian Band Election Regulations would be amended to allow off-reserve band members the right to vote in Indian Act elections for Chief and Council, and the Indian Referendum Regulations would be amended to provide a procedure to allow off-reserve band members to vote on referenda, as a result of the Corbiere decision. After reviewing the various consultation reports from First Nations and First Nations organizations, it was determined that mail-in ballots would be the most cost effective way to ensure that off-reserve band members are given a reasonable opportunity to participate in band elections and referenda. The amended regulations would allow the electoral officer to establish at least one polling station on the reserve, to supplement the mail-in ballot procedure.

There would be a transitional portion in the amending regulation which would assist bands who are holding elections using the Indian Band Election Regulations between November 20, 2000, and January 7, 2001, by providing alternate time frames and procedures to ensure that elections can be held expeditiously, and still remain Charter compliant. Similarly, there would be a transitional portion in the amending regulation which would assist bands who are holding referenda using the Indian Referendum Regulations between November 20, 2000, and December 8, 2000, by providing alternate time frames and procedures to ensure that referenda can be held expeditiously, and still remain Charter compliant. With respect to the Indian Band Election Regulations, to ensure that bands are not without governing bodies for extended periods, these expedited procedures would remain available for use by bands in which there has been a loss of quorum. Both the amended Indian Band Election Regulations and the amended Indian Referendum Regulations would therefore come into force on October 20, 2000, to allow for a 30-day transition period.

In addition to amending the Indian Band Election Regulations and the Indian Referendum Regulations to set out procedures to allow off-reserve band members to vote, some housekeeping amendments would be made to ensure that the regulations are easy to understand and to implement. Proposed amendments to the regulations are summarized below.

Indian Band Election Regulations

The major change to the Indian Band Election Regulations, which are only used by section 74 bands, would be the necessity for mail-in ballots to ensure that off-reserve band members are afforded a reasonable opportunity to participate in elections. As a result, both the actual election process and the nomination process would have a mail-in form to allow off-reserve band members to vote during the election, and to nominate candidates.

In the case of bands which control their band list pursuant to section 10 of the Indian Act, the band would provide the electoral officer with the names of electors. For Indian Act bands whose band lists are departmentally controlled, the Minister of Indian Affairs and Northern Development would provide the names of electors to the electoral officer.

Once candidates have been nominated, the electoral officer would have a duty to advise nominees of their nomination forthwith, so that nominees are aware of their candidacy. However, once candidates have been nominated, candidates would only receive the names and addresses of electors if the electors have consented to have their names and addresses released to the candidates by the electoral officer.

The mail-in ballot must be returned in a sealed envelope, with a declaration as to the voter's name, address and either a registry number or a band identifier number included, or if neither is available, the voter's date of birth, so that the electoral officer can verify who returned ballots. However, the electoral officer would not be able to ascertain how the elector voted, as the ballot would be in the sealed envelope. In addition, the declaration would have to be witnessed, and the witness would have to include their name, address, and certify that they are at least 18 years of age.

Where a candidate withdraws their name from the running after the ballots have already been mailed to off-reserve band members, the electoral officer shall not disclose this withdrawal to anyone until after the election, and the candidate's name would remain on the ballots used on reserve, to prevent on-reserve members from having an advantage over off-reserve band members. Any votes for a candidate who has withdrawn would not be counted.

As a housekeeping matter, the time the polls are to remain open would be amended to show the time as being local time. Currently, the reference in the regulation is to standard time, which did not take into account the different time zones. As a result, Standard time will be changed to local time. In addition, the time period has been extended to 8:00 p.m. local time, thus removing the discretion from the electoral officer.

The time to file an appeal has been extended to 45 days to accommodate off-reserve members. The appeal process would be amended to remove the administrative requirement that DIAND respond to an appeal within 7 days of its receipt. Currently, candidates or electors may lodge an appeal within 30 days after the election. By removing the 7-day response time, DIAND can ensure that all appeals have been received from the 30-day period, and provide candidates and the electoral officer with one notice containing all appeals received, making the process more efficient. The regulation would also state that failure to receive notice of the election is not grounds for appeal. The onus would be on band members to contact their band and consent to being involved in the election process.

As a final housekeeping matter, a few sections would be removed since they either serve no purpose or are redundant. Firstly, the section stating that forms may be used as prescribed by the Minister is not necessary; this section has never been used (i.e. there are no standard forms prescribed for these regulations). Secondly, the section stating that any person who violates any provisions of these regulations is subject to the penalties provided by section 102 of the Indian Act is redundant because section 102 (the penalty provision) applies to any regulation made under the Indian Act (where no penalty is provided elsewhere in the Indian Act). As a result, it is not necessary to reference section 102 of the Indian Act in the regulations in order for it to apply. Finally, the sections requiring electors to provide an oath or affirmation at the request of a candidate, an agent of the candidate, or an elector, in order to vote, would be removed; they are unnecessary. The voting age will be changed from 21 to 18 years of age therefore correcting the existing inconsistency between the Indian Act and the Indian Band Election Regulations.

Indian Referendum Regulations

The major change to the Indian Referendum Regulations would be the necessity for mail-in ballots to ensure that off-reserve band members are afforded a reasonable opportunity to participate in referenda. Again, the band would be responsible for providing the names of electors (voters) to the referendum officer for bands which control their list pursuant to section 10 of the Indian Act, while the Minister of IAND would be responsible for providing the names of electors (voters) to the referendum officer for Indian Act bands whose band list are departmentally controlled.

A declaration would have to accompany the ballot and, as with the Indian Band Election Regulations, the declaration would have to be signed by a witness who includes their name, address, and certifies that they are over 18 years of age. The electoral officer conducting a referendum would have the discretion of providing polling stations off-reserve if so desired, and off-reserve band members would continue to have the right to attend on-reserve to vote or nominate.

As a housekeeping matter, the time the polls are to remain open would be amended to extend to 8:00 p.m. local time. Currently, without any reference to a time zone, the time must be read to mean daylight standard time, according to the rules of statutory interpretation.

Another housekeeping matter involves the holding of information meetings to explain the subject of the surrender or designation. Currently, information meetings are not mandated by the regulation, but are required as a matter of policy by DIAND to ensure that there is informed consent on surrenders and designations. The requirement to hold information meetings would now be formalized by being added to the regulation.

There is no authority in the Indian Act to allow the Indian Referendum Regulations to authorize an electoral officer to appoint and swear in an interpreter. As a result, the swearing in of an interpreter would be removed from the regulations; however, an electoral officer would still be able to use an interpreter where language creates a barrier for any members' participation.

Sections 21 to 29 of the Indian Referendum Regulations would be repealed, since they deal with voting other than by secret ballot. As outlined above, mail-in ballots have been determined to be the most cost effective method by the Department of Justice of ensuring that all band members, both on and off the reserve, are afforded a reasonable opportunity to vote. In addition, these sections were rarely used, since they did not include any criteria as to when they could or should have been used.

Finally, the appeal section of the regulation would be amended to more clearly spell out the power of the Minister with respect to appeals. The Minister would, if upholding an appeal, recommend to the Governor in Council that a surrender or designation not be accepted.

Alternatives

In the absence of any amendments to the Indian Band Election Regulations and the Indian Referendum Regulations, there would be no procedures in place for section 74 bands to conduct elections and referenda when the suspension of the SCC's declaration of invalidity expires on November 20, 2000, and off-reserve band members become eligible to vote. Without procedures in place to allow off-reserve band members to vote, elections and referenda held after November 20, 2000, would not be Charter compliant.

Benefits and Costs

Amendments to the Indian Band Election Regulations would ensure that there are clear processes and mechanisms in place to accommodate the off-reserve electorate, when they begin to participate in band elections after November 20, 2000. Amendments to the Indian Referendum Regulations would provide a clear process to replace the interim measures currently in place to allow off-reserve band members to participate in referenda.

By allowing off-reserve members to vote in elections and referenda, First Nations electorates will be expanded to varying degrees. Obviously, there will be cost consequences to these expanded electorates, both in time and finances required to hold elections and referenda. DIAND is currently reviewing the cost consequences of conducting elections and referenda that are Charter compliant as of November 20, 2000. At present, these figures are unavailable.

Consultation

On December 9, 1999, the Minister of Indian Affairs and Northern Development announced the Government's response to the SCC's decision in Corbiere. The response consisted of a two-staged strategy to deal with both the short and long-term implications of the Corbiere decision. Stage one, which involved consulting with First Nations and First Nation organizations on amendments to the Indian Band Election Regulations and the Indian Referendum Regulations to allow for off-reserve band member participation in elections and referenda, has been completed. Stage two would involve a more broad-based look at the overall Indian Act election/voting regime, with the ultimate goal being legislative amendments to deal with electoral shortcomings in the Indian Act which would not be rectified by the regulatory amendments in Stage one.

Consultations on amendments to the Indian Band Election Regulations and the Indian Referendum Regulations were undertaken on two levels during Stage one of the response to Corbiere. Four national Aboriginal organizations, the Assembly of First Nations (AFN), the Native Women's Association of Canada (NWAC), the National Association of Friendship Centres (NAFC), and the Congress of Aboriginal Peoples (CAP), were funded to undertake consultation with their respective memberships at the national level.

In addition, six of DIAND's regional offices, British Columbia, Alberta, Manitoba, Ontario, Quebec, and the Atlantic, engaged regional Aboriginal organizations to undertake consultations at a more grassroots level.

As a result of these consultations (comprised of information sessions and workshops) and concerns raised by Aboriginal organizations and First Nations themselves, DIAND developed a set of drafting instructions for the Department of Justice based on the feedback received. In addition, a cooperative working group of representatives from DIAND, the AFN, NWAC and NAFC, examined minimum requirements needed in order to make the two above-noted regulations Charter compliant. The results of this working group's findings were shared at the Assembly of First Nations National Gathering held in June of 2000 in Winnipeg.

DIAND is currently scoping out the plans for Stage two of the government response to Corbiere. Stage two will look at broader Indian Act election issues, and will address concerns and issues raised by the Stage one consultation process which were not directed at the amendment of the regulations.

Finally, DIAND is currently in the process of establishing a short-term Corbiere Implementation Unit to assist First Nations holding elections under these new regulations. The Lands Directorate at DIAND will continue to assist First Nations with referenda.

Compliance and Enforcement

These amendments would retain the existing compliance and enforcement provisions. The amended regulations would also continue to contain appeal mechanisms setting out the process and condition under which members may have the results of elections or referenda reviewed.

Contact

Robert Eyahpaise, Special Advisor, Corbiere, Department of Indian Affairs and Northern Development, Les Terrasses de la Chaudière, 10 Wellington Street, Ottawa, Ontario K1A 0H4, (819) 994-0527 (Telephone), eyahpaiser@inac.gc.ca (Electronic mail).

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 76(1) of the Indian Act, proposes to make the annexed Regulations Amending the Indian Band Election Regulations.

Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Robert Eyahpaise, Special Advisor on Corbiere, Department of Indian Affairs and Northern Development, Room 1850, Les Terrasses de la Chaudière, Hull, Quebec, K1A 0H4.

Ottawa, August 25, 2000

MARC O'SULLIVAN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE INDIAN BAND ELECTION REGULATIONS

AMENDMENTS

1. (1) The definitions "Assistant Deputy Minister", "election" and "elector" in section 2 of the Indian Band Election Regulations(see footnote 24) are replaced by the following:

"Assistant Deputy Minister" means the Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development; (sous-ministre adjoint)

"election" means a band election held under the Act or a special election held under subsection 78(4) of the Act, but does not include an election for chief of a band set out in Schedule II to the Indian Bands Council Elections Order; (élection)

"elector", in respect of an election of chief or councillors of a band, means a person who is qualified under section 77 of the Act to vote in that election; (électeur)

(2) Section 2 of the Regulations is amended by replacing the period at the end of the definition "Superintendent" with a semi-colon and by adding the following in alphabetical order:

"accelerated election" means an election referred to in subsection 11.1(1). (élection accélérée)

"mail-in ballot" means a ballot delivered or mailed in accordance with subsection 5(6); (bulletin de vote postal)

"registry number" means the number assigned to a person registered under section 5 of the Act; (numéro de registre)

"reserve", in respect of an election of chief or councillors of a band, means a reserve of that band; (réserve)

"voter declaration form" means a document that sets out, or provides for,

(a) the name and address of an elector,

(b) the band membership or registry number of the elector or, if the elector does not have a band membership or registry number, the date of birth of the elector, and

(c) the name and address of a witness to the signature of the elector. (formule de déclaration d'identité)

2. The portion of section 3 of the Regulations before paragraph (a) is replaced by the following:

3. The following rules apply to the interpretation of the words "ordinarily resident" in respect of the residency of an elector on a reserve that for voting purposes has been divided into more than one electoral section:

3. Section 4 (see footnote 25) of the Regulations and the heading before it are replaced by the following:

Application

3.1 Sections 4 to 11 apply to all elections other than accelerated elections.

Voters List

4. (1) At least 79 days before the day on which an election is to be held

(a) where the band holding the election has assumed control of its own membership under section 10 of the Act, the band shall provide the electoral officer with a list of the names of all electors; and

(b) where the Band List of the band holding the election is maintained in the Department under section 11 of the Act, the Registrar shall provide the electoral officer with a list of the names of all electors.

(2) A voters list shall set out

(a) where the reserve consists of more than one electoral section,

(b) where the reserve consists of one electoral section, the names of all electors, in alphabetical order; and

(c) the band membership or registry number of each elector or, if the elector does not have a band membership or registry number, the date of birth of the elector.

(3) The electoral officer, at the request of a person, shall confirm whether that person is on the voters list.

(4) The electoral officer shall revise the voters list where, at any time prior to the election, it is demonstrated that

(a) the name of an elector has been omitted from the list;

(b) the name of an elector is incorrectly set out in the list; or

(c) the name of a person not qualified to vote is included in the list.

(5) For the purposes of subsection (4),

(a) a person may demonstrate that the name of an elector has been omitted from, or incorrectly set out in, the voters list by presenting to the electoral officer evidence from the Registrar or from the band that the elector

(b) a person may demonstrate that the name of a person not qualified to vote is included in the voters list by presenting to the electoral officer evidence that that person

Addresses of Electors

4.1 (1) At least 79 days before the day on which an election is to be held the band shall provide the electoral officer with the last known addresses of all electors who do not reside on the reserve.

(2) A candidate for election as chief or councillor may obtain from the electoral officer a list of the names of electors and the addresses of any electors who have consented to have their addresses released to the candidates.

(3) A document shall be considered to have been properly mailed under paragraphs 4.2(1)(b) and 4.7(a), subsection 5(3) and paragraph 8(2)(b), and to have been properly sent under paragraph 11.1(2)(g), to electors who do not reside on the reserve if it was mailed or sent, as the case may be, to every elector who does not reside on the reserve and for whom an address was provided, addressed to the elector at that address.

Nomination Meeting

4.2 (1) At least 30 days before the day on which a nomination meeting is to be held, the electoral officer shall

(a) post a notice of the nomination meeting in at least one conspicuous place on the reserve; and

(b) mail a notice of the nomination meeting and a voter declaration form to every elector of the band who does not reside on the reserve.

(2) A notice of a nomination meeting shall include

(a) the date, time, duration and location of the nomination meeting;

(b) the date on which the election will be held and the location of each polling place;

(c) the statement that any voter may vote by mail-in ballot;

(d) a description of the manner in which an elector can nominate a candidate, or second the nomination of a candidate;

(e) the statement that, if the elector wants to receive information from candidates, the elector can agree to have his or her address released to the candidates.

(3) The electoral officer shall record the names of electors to whom a notice of the nomination meeting was mailed, the addresses of those electors, and the date on which the notices were mailed.

4.3 (1) Subject to section 75 of the Act, an elector may nominate a candidate, or second the nomination of a candidate,

(a) by delivering or, subject to subsection (2), by mailing a written nomination and a completed, signed and witnessed voter declaration form to the electoral officer before the time set for the nomination meeting; or

(b) orally, at the nomination meeting.

(2) Mailed nominations that are not received by the electoral officer before the time set for the nomination meeting are void.

4.4 (1) A nomination meeting for an election shall be held at least 42 days before the date of the election.

(2) At the start of the nomination meeting, the electoral officer shall read aloud all written nominations and secondments that have been received by mail or delivered.

(3) Where the same person receives two written nominations for the same office, the second nomination shall constitute a secondment of the first nomination.

(4) A person present at a nomination meeting who is eligible to do so may second the nomination of any person nominated in writing.

(5) A nomination meeting shall remain open for at least three hours.

(6) At the end of the nomination meeting, the electoral officer shall

(a) if only one person has been nominated to serve as chief, declare that person to be elected;

(b) if the number of persons nominated to serve as councillors in an electoral section does not exceed the number to be elected, declare those persons to be elected; and

(c) where more than the required number of persons are nominated for election as chief or councillors, announce that an election will be held on the day set out in the notice referred to in subsection 4.2(1).

4.5 As soon as is practicable after the nomination meeting, the electoral officer shall notify any nominated candidates who were not present at the meeting that they have been nominated.

Withdrawal of Candidates

4.6 (1) Subject to subsection (2), a candidate who has been nominated may withdraw his or her candidature at any time prior to the day of the election by submitting to the electoral officer a written withdrawal of nomination, signed by the candidate in the presence of the electoral officer, a justice of the peace, a notary public or a commissioner for oaths.

(2) Where a candidate nominated to be a councillor to represent an electoral section in a reserve consisting of more than one electoral section withdraws his or her candidature less than 48 hours before the time at which the polls open, or where any other candidate withdraws his or her candidature less than 37 days before the day on which the election is to be held, that candidate's name shall remain on the ballot.

4.7 Where the office of chief and all offices of councillors are filled by acclamation,

(a) the electoral officer shall post in at least one conspicuous place on the reserve, and mail to every elector who does not reside on the reserve, a notice that sets out the names of the persons who have been acclaimed and states that an election will not be held; and

(b) sections 5 to 11 do not apply.

4. (1) Subsections 5(1) to (6) (see footnote 26) of the Regulations are replaced by the following:

5. (1) Subject to subsection (2), the electoral officer shall prepare ballots setting out

(a) the names of the candidates for chief, in alphabetical order; and

(b) the names of the candidates for councillors, in alphabetical order.

(2) Where the reserve consists of more than one electoral section, the electoral officer shall prepare separate ballots for the candidates for chief and for the candidates for councillors.

(3) Subject to subsection (4), at least 35 days before the day on which an election is to be held, the electoral officer shall mail, to every elector who does not reside on the reserve, a package consisting of

(a) a ballot, initialled on the back by the electoral officer;

(b) a postage-paid return envelope, pre-addressed to the electoral officer;

(c) a second envelope marked "Ballot" for insertion of the completed ballot;

(d) a voter declaration form;

(e) a letter of instruction regarding voting by mail-in ballot;

(f) a statement

(g) a list of the names of any candidates who were acclaimed.

(4) Where the reserve consists of more than one electoral section, the ballot referred to in paragraph (3)(a) shall be a ballot for the candidates for chief only.

(5) At the request of an elector who resides on the reserve, the electoral officer shall mail a package referred to in subsection (3) to that elector.

(6) An elector may vote by mail-in ballot by

(a) marking the ballot by placing a cross, or any other mark that clearly indicates the elector's choice but does not identify the elector, opposite the name of the candidate or candidates for whom he or she desires to vote;

(b) folding the ballot in a manner that conceals the names of the candidates and any crosses or marks but exposes the electoral officer's initials on the back;

(c) placing the ballot in the envelope marked "Ballot" and sealing that envelope;

(d) completing and signing the voter declaration form in the presence of a witness who is at least 18 years of age;

(e) placing the envelope marked "Ballot" and the completed voter declaration form in the pre-addressed envelope referred to in paragraph (3)(b); and

(f) delivering or, subject to subsection (6.1), mailing the pre-addressed envelope to the electoral officer before the time at which the polls close on the day of the election.

(6.1) Mail-in ballots that are not received by the electoral officer before the time at which the polls close on the day of the election are void.

(6.2) Subject to subsection (6.3), the electoral officer shall establish at least one polling place in a location convenient to electors.

(6.3) Where a band has a reserve, at least one polling place shall be located on the reserve.

(2) Subsection 5(10) of the Regulations is replaced by the following:

(10) Polling places shall be kept open from 9:00 a.m., local time, until 8:00 p.m., local time, on the day of the election.

(3) Subsection 5(12) of the Regulations is repealed.

(4) Subsection 5(14) of the Regulations is repealed.

5. The heading before section 6 of the Regulations is repealed.

6. (1) Subsection 6(3) of the Regulations is repealed.

(2) Subsection 6(5) of the Regulations is replaced by the following:

(5) After receiving a ballot, an elector shall

(a) immediately proceed to the compartment provided for marking ballots;

(b) mark the ballot by placing a cross, or any other mark that clearly indicates the elector's choice but does not identify the elector, opposite the name of the candidate or candidates for whom he or she desires to vote;

(c) fold the ballot in a manner that conceals the names of the candidates and any crosses or marks, but exposes the initials on the back; and

(d) deliver the ballot to the electoral officer or deputy electoral officer.

(5.1) On receipt of a completed ballot, the electoral officer or deputy electoral officer shall, without unfolding the ballot, verify the initials placed on it and deposit it in the ballot box in the presence of the voter and any other persons entitled to be present at the polling place.

7. The Regulations are amended by adding the following after section 6:

6.1 As soon as is practicable after the close of the polls, the electoral officer or deputy electoral officer shall, in the presence of any candidates or their agents who are present, open each mail-in ballot envelope that was received before the close of the polls, remove the mail-in ballot from the enclosed envelope marked "Ballot" without unfolding it, and

(a) reject the mail-in ballot if

(b) in any other case, place a mark on the voters list opposite the name of the elector set out in the voter declaration form, and deposit the mail-in ballot in a ballot box.

8. (1) The portion of section 7 of the Regulations before paragraph (a) is replaced by the following:

7. Immediately after the mail-in ballots have been deposited under section 6.1, the electoral officer or deputy electoral officer shall, in the presence of any candidates or their agents who are present, open all ballot boxes and

(2) Subparagraph 7(a)(iii) of the Regulations is replaced by the following:

9. Section 8 of the Regulations is replaced by the following:

8. (1) Immediately after the completion of the counting of the votes, the electoral officer shall publicly declare to be elected the candidate or candidates having the highest number of votes.

(2) Within two days after the completion of the counting of the votes, the electoral officer shall

(a) sign and post, in at least one conspicuous place on the reserve, a statement indicating the number of votes cast for each candidate; and

(b) mail a copy of the statement to every elector of the band who does not reside on the reserve.

10. The Regulations are amended by adding the following after section 11:

Accelerated Elections

11.1 (1) This section applies to an election where, as a result of the office of chief or a councillor becoming vacant under subsection 78(2) of the Act or the election of a chief or councillor being set aside under section 79 of the Act, it is no longer possible for the council of a band to form a quorum.

(2) An accelerated election shall be held in accordance with sections 4 to 11 for the election of chief of a band whose reserve consists of more than one electoral section, or for chief or councillor of any other band, subject to the following changes:

(a) subsection 4.2(1), section 4.3 and subsection 4.4(1) do not apply;

(b) the lists referred to in subsection 4(1) and addresses referred to in subsection 4.1(1) shall be provided to the electoral officer at least 30 days before the day of the election;

(c) at least seven days before the day on which a nomination meeting is to be held, the electoral officer shall

(d) an elector can nominate a candidate, or second the nomination of a candidate,

(e) the nomination meeting for the election shall be held at least 23 days before the date of the election;

(f) where a candidate withdraws his or her candidature less than 22 days before the day on which the election is to be held, that candidate's name shall remain on the ballot; and

(g) the electoral officer shall send the package referred to in subsection 5(3) by priority post at least 21 days before the day on which the election is to be held,

(h) the return envelope referred to in paragraph 5(3)(b) shall be pre-paid for delivery by priority post, and

(i) the letter of instruction referred to in paragraph 5(3)(e) shall advise the elector of the shorter time periods applicable and instruct the elector accordingly.

(3) An accelerated election shall be held in accordance with sections 4 to 11 for the election of councillors of a band whose reserve consists of more than one electoral section, subject to the following changes:

(a) subsection 4(1), paragraph 4.3(1)(a), subsections 4.2(3), 4.3(2) and 4.4(2) to (4) and 5(3) and (4) do not apply;

(b) at least six days before the day on which a nomination meeting is to be held, the electoral officer shall post a notice of the nomination meeting in at least one conspicuous place on the reserve; and

(c) the nomination meeting shall be held at least six days before the date of the election.

11. (1) The portion of subsection 12(1) of the Regulations before paragraph (a) is replaced by the following:

12. (1) Within 45 days after an election, a candidate or elector who believes that

(2) Subsection 12(2) (see footnote 27) of the Regulations is replaced by the following:

(2) Where an appeal is lodged under subsection (1), the Assistant Deputy Minister shall forward, by registered mail, a copy of the appeal and all supporting documents to the electoral officer and to each candidate in the electoral section in respect of which the appeal was lodged.

12. Sections 16 to 18 of the Regulations are repealed.

TRANSITIONAL PROVISIONS

13. Notwithstanding the provisions of the Indian Band Election Regulations, as enacted or amended by these Regulations, the Indian Band Election Regulations, as they read immediately before the coming into force of these Regulations, apply to all elections held under the Indian Act during the period beginning on October 20, 2000 and ending on November 19, 2000.

14. Every election that is held under the Indian Act during the period beginning on November 20, 2000 and ending on January 7, 2001 shall be held in accordance with the procedures set out in section 11.1 of the Indian Band Election Regulations, as enacted by section 10.

COMING INTO FORCE

15. These Regulations come into force on October 20, 2000.

[36-1-o]

Regulations Amending the Indian Referendum Regulations

Statutory Authority

Indian Act

Sponsoring Department

Department of Indian Affairs and Northern Development

REGULATORY IMPACT ANALYSIS STATEMENT

For the Regulatory Impact Analysis Statement, see the Regulations Amending the Indian Band Election Regulations.

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subparagraph 39(1)(b)(iii)(see footnote h) and subsections 39(2)(see footnote i) and 73(3) of the Indian Act, proposes to make the annexed Regulations Amending the Indian Referendum Regulations.

Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Robert Eyahpaise, Special Advisor on Corbiere, Department of Indian Affairs and Northern Development, Room 1850, Les Terrasses de la Chaudière, Hull, Quebec, K1A 0H4.

Ottawa, August 25, 2000

MARC O'SULLIVAN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE INDIAN REFERENDUM REGULATIONS

AMENDMENTS

1. The Indian Referendum Regulations (see footnote 28) are amended by adding the following after section 1:

Application

1.1 These Regulations apply to a referendum held under subparagraph 39(1)(b)(iii) or subsection 39(2) of the Act.

2. Section 2 of the Regulations is amended by adding the following in alphabetical order:

"elector", in respect of a referendum, means an elector of the band in respect of which the referendum is being held; (électeur)

"mail-in ballot" means a ballot delivered or mailed in accordance with subsection 5.1(1); (bulletin de vote postal)

"registry number" means the number assigned to a person registered under section 5 of the Act; (numéro de registre)

"reserve", in respect of a referendum, means a reserve of the band in respect of which the referendum is being held; (réserve)

"voter declaration form" means a document that sets out, or provides for,

(a) the name and address of an elector,

(b) the band membership or registry number of the elector or, if the elector does not have a band membership or registry number, the date of birth of the elector,

(c) a statement that the elector has read and understood the information package regarding the proposed designation or surrender and has voted freely and without compulsion, and

(d) the name and address of a witness to the signature of the elector. (formule de déclaration de l'électeur)

3. Subsections 3(2)(see footnote 29) and (3)(see footnote 30) of the Regulations are repealed.

4. Section 4 of the Regulations and the heading before it are replaced by the following:

Voters List

4. (1) At least 49 days before the day on which a referendum is to be held

(a) where the band holding the referendum has assumed control of its own membership under section 10 of the Act, the band shall provide the electoral officer with a list of the names of all electors; and

(b) where the Band List of the band holding the referendum is maintained in the Department under section 11 of the Act, the Registrar shall provide the electoral officer with a list of the names of all electors.

(2) A voters list shall set out

(a) the names of all electors, in alphabetical order; and

(b) the band membership or registry number of each elector or, if the elector does not have a band membership or registry number, the date of birth of the elector.

(3) The electoral officer, at the request of a person, shall confirm whether that person is on the voters list.

(4) The electoral officer shall revise the voters list where, at any time prior to the referendum, it is demonstrated that

(a) the name of an elector has been omitted from the list;

(b) the name of an elector is incorrectly set out in the list; or

(c) the name of a person not qualified to vote is included in the list.

(5) For the purposes of subsection (4),

(a) a person may demonstrate that the name of an elector has been omitted from, or incorrectly set out in, the voters list by presenting to the electoral officer evidence from the Registrar or from the band that a person is on the Band List, is at least 18 years of age and is otherwise qualified to vote at band elections; and

(b) a person may demonstrate that the name of a person not qualified to vote is included in the voters list by presenting to the electoral officer evidence that the latter person is not on the Band List, is not at least 18 years of age or is not otherwise qualified to vote at band elections.

Addresses of Electors

4.1 At least 49 days before the day on which a referendum is to be held, the band shall provide the electoral officer with the last known addresses of all electors who do not reside on the reserve.

Notification of Referendum

4.2 (1) At least 14 days before the day on which an information meeting for a referendum is to be held and at least 42 days before the day of the referendum, the electoral officer or deputy electoral officer shall

(a) post a notice of the referendum in at least one conspicuous place on the reserve; and

(b) mail to every elector of the band who does not reside on the reserve and for whom an address has been provided, addressed to the elector at that address,

(2) A notice of a referendum shall state

(a) the question to be submitted to the electors;

(b) the date on which the referendum will be held;

(c) the location of each polling station and the hours that it will be open for voting;

(d) that electors may vote either in person at a polling station or by mail-in ballot;

(e) the name and telephone number of the electoral officer; and

(f) the date, time and location of the information meeting.

(3) The electoral officer shall keep a record of the names of electors who do not reside on the reserve to whom mail-in ballots were sent, the addresses of those electors, and the date on which the mail-in ballots were sent.

(4) At the request of an elector who resides on the reserve, the electoral officer shall provide the elector with an initialled mail-in ballot and the material referred to in subparagraphs (1)(b)(iii) to (vii).

Information Meetings

4.3 Before the day on which a referendum is to be held, the electoral officer or deputy electoral officer shall hold at least one information meeting to provide electors with information regarding the designation or surrender that is the subject of the referendum.

Preparation for Referendum

5. (1) Paragraphs 5(1)(a) to (c) of the Regulations are replaced by the following:

(a) prepare sufficient ballots stating the question to be submitted to the electors;

(2) Subsections 5(2) and (3) of the Regulations are repealed.

6. The Regulations are amended by adding the following after section 5:

Voting by Mail-in Ballot

5.1 (1) An elector may vote by mail-in ballot by

(a) marking the ballot by placing a cross, or any other mark that clearly indicates the elector's choice, under the word "Yes" or "No" opposite the question stated on the ballot;

(b) folding the ballot in a manner that conceals the question and any crosses or marks, but exposes the initials on the back;

(c) placing the ballot in the envelope marked "Ballot" and sealing that envelope;

(d) completing and signing the voter declaration form in the presence of a witness who is at least 18 years of age;

(e) placing the envelope marked "Ballot" and the completed, signed and witnessed voter declaration form in the pre-addressed envelope referred to in subparagraph 4.2(1)(b)(iii); and

(f) delivering or, subject to subsection (2), mailing the pre-addressed envelope to the electoral officer before the time at which the polls close on the day of the referendum.

(2) Mail-in ballots that are not received by the electoral officer before the time at which the polls close on the day of the referendum are void and shall not be counted as a vote cast.

Voting at Polling Stations

5.2 The electoral officer shall establish at least one polling station on the reserve.

7. Section 8 of the Regulations is replaced by the following:

8. Polling stations shall be kept open from 9:00 a.m., local time, until 8:00 p.m., local time, on the day of the referendum.

8. Paragraphs 11(b) and (c) of the Regulations are replaced by the following:

(b) mark the ballot by placing a cross, or any other mark that clearly indicates the elector's choice, under the word "Yes" or "No" opposite the question stated on the ballot;

(c) fold the ballot in a manner that conceals the question and any crosses or marks, but exposes the initials on the back;

9. Sections 16 and 17 of the Regulations are replaced by the following:

16. The electoral officer and deputy electoral officer shall maintain peace and good order during the voting.

17. Whenever the electoral officer or the deputy electoral officer does not understand the language spoken by an elector, he or she shall enlist the aid of an interpreter to communicate with respect to all matters required to enable that elector to vote.

17.1 As soon as is practicable after the close of the polls, the electoral officer shall, in the presence of the deputy electoral officer and any members of the council of the band who are present, open each mail-in ballot envelope received before the close of the polls, remove the mail-in ballot from the enclosed envelope marked "Ballot" without unfolding it, and

(a) set aside the mail-in ballot if

(b) place a mark on the voters list opposite the name of the elector set out in the voter declaration form and deposit the mail-in ballot in a ballot box.

10. (1) The portion of subsection 18(1) of the Regulations before paragraph (a) is replaced by the following:

18. (1) Immediately after the mail-in ballots have been deposited under section 17.1, the electoral officer shall, in the presence of the deputy electoral officer and any members of the council of the band who are present, open all ballot boxes and

(2) Subsection 18(1) of the Regulations is amended by adding the following after paragraph (a):

(a.1) set aside any ballot that does not have the initials of the electoral officer or deputy electoral officer on the back;

(3) Subparagraph 18(1)(b)(i) of the Regulations is repealed.

11. The Regulations are amended by adding the following after section 18:

18.1 A ballot set aside under paragraph 17.1(a) or 18(1)(a.1) is void and shall not be counted as a vote cast.

12. The portion of section 19 of the Regulations before paragraph (a) is replaced by the following:

19. When the results of the voting are known, the electoral officer shall

13. Sections 20 to 33(see footnote 31) of the Regulations are replaced by the following:

20. The electoral officer shall deposit the ballots used in the voting in a sealed envelope and retain them for 60 days, after which time, if no review has been requested, the electoral officer shall destroy them in the presence of two witnesses.

Second Referenda

21. Notwithstanding sections 4.2 and 4.3, in respect of a referendum held under subsection 39(2) of the Act,

(a) the notice of the referendum shall be posted, and the material referred to in paragraph 4.2(1)(b) shall be mailed, in the manner set out in subsection 4.2(1), at least 35 days before the day on which the referendum is to be held;

(b) the notice of the referendum is not required to set out the date, time or location of an information meeting;

(c) in lieu of an information package referred to in subparagraph 4.2(1)(b)(vii), the elector shall be sent a statement referring him or her to the information package sent in respect of the previous referendum and instructions for obtaining an additional information package if the elector requires one; and

(d) an information meeting is not required to be held.

Review Procedure

22. (1) An elector may, in the manner set out in subsection (2), request a review of the referendum by the Minister where the elector believes that

(a) there was a contravention of these Regulations that may affect the results of the referendum; or

(b) there was corrupt practice in connection with the referendum.

(2) A request for a review of a referendum shall be made by forwarding the request to the Minister, by registered mail addressed to the Assistant Deputy Minister, within seven days after the day of the referendum, accompanied by a declaration, containing the grounds for requesting the review and any other relevant information, signed in the presence of a witness who is at least 18 years of age.

(3) Within 21 days after the receipt of a request for a review of a referendum, the Minister shall mail a copy of the request to the electoral officer who conducted the referendum.

(4) Within 10 days after the receipt of a request under subsection (3), the electoral officer shall forward to the Minister, by registered mail addressed to the Assistant Deputy Minister, a declaration responding to the grounds stated in the request, signed in the presence of a witness who is at least 18 years of age.

23. Where the material referred to in section 22 or any other information in the possession of the Minister is sufficient to call into question the validity of the referendum, the Minister shall advise the Governor in Council accordingly.

TRANSITIONAL PROVISIONS

14. Notwithstanding the provisions of the Indian Referendum Regulations, as enacted or amended by these Regulations, the Indian Referendum Regulations, as they read immediately before the coming into force of these Regulations, apply to all referenda held during the period beginning on October 20, 2000 and ending on November 19, 2000.

15. For every referendum that is held during the period beginning on November 20, 2000 and ending on December 8, 2000,

(a) notwithstanding subsection 4.2(1) of the Indian Referendum Regulations, as enacted by section 4, at least 14 days before the day on which an information meeting is to be held and at least 30 days before the day on which the referendum is to be held, the electoral officer shall

(b) notwithstanding subparagraph 4.2(1)(b)(iii) of the Indian Referendum Regulations, as enacted by section 4, the return envelope referred to in that subparagraph shall be pre-paid for delivery by priority post; and

(c) notwithstanding subparagraph 4.2(1)(b)(vi) of the Indian Referendum Regulations, as enacted by section 4, the letter of instruction referred to in that subparagraph shall advise the elector of the shorter time periods applicable and instruct the elector accordingly.

COMING INTO FORCE

16. These Regulations come into force on October 20, 2000.

[36-1-o]

Footnote a

S.C. 1996, c. 18, s. 51(2)

Footnote b

S.C. 2000, c. 12, paras. 207(1)(c) and (d)

Footnote c

S.C. 2000, c. 12, s. 196 and paras. 207(1)(f) and 209(d) to (g)

Footnote d

S.C. 2000, c. 12, s. 197, paras. 207(1)(g) and 208(1)(a) to (d), s. 208(2) and paras. 209(i) to (m)

Footnote e

S.C. 2000, c. 12, par. 209(p)

Footnote f

S.C. 2000, c. 12, s. 199 and par. 209(p)

Footnote g

S.C. 2000, c. 12, s. 204 and paras. 207(1)(m) and (n) and 209(r)

Footnote 1

SOR/89-269

Footnote 2

C.R.C., c. 1246

Footnote 3

SOR/96-521

Footnote 4

SOR/96-521

Footnote 5

SOR/96-521

Footnote 6

SOR/96-521

Footnote 7

SOR/96-521

Footnote 8

SOR/96-521

Footnote 9

SOR/96-521

Footnote 10

SOR/96-521

Footnote 11

SOR/96-521

Footnote 12

SOR/96-521

Footnote 13

SOR/96-521

Footnote 14

SOR/96-521

Footnote 15

SOR/96-521

Footnote 16

SOR/96-521

Footnote 17

SOR/96-521

Footnote 18

SOR/83-84

Footnote 19

SOR/96-521

Footnote 20

SOR/96-521

Footnote 21

SOR/83-84

Footnote 22

SOR/97-530

Footnote 23

SOR/97-530

Footnote 24

C.R.C., c. 952

Footnote 25

SOR/85-409

Footnote 26

SOR/85-409

Footnote 27

SOR/85-409

Footnote h

R.S., c. 17 (4th Supp.), s. 3

Footnote i

R.S., c. 17 (4th Supp.), s. 3

Footnote 28

C.R.C., c. 957

Footnote 29

SOR/94-369

Footnote 30

SOR/94-369

Footnote 31

SOR/94-369

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