Indian Band Election Regulations (C.R.C., c. 952)

Short Title

1 These Regulations may be cited as the Indian Band Election Regulations.

Interpretation

2 In these Regulations,

accelerated election

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

Act

Act means the Indian Act; (Loi)

Assistant Deputy Minister

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

deputy electoral officer

deputy electoral officer means any person appointed by the electoral officer for the purposes of an election; (président du scrutin)

election

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 the chief of a band set out in Schedule II to the Indian Bands Council Elections Order; (élection)

elector

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

electoral officer

electoral officer means the superintendent or the person appointed by the council of the band with the approval of the Minister; (président d’élection)

mail-in ballot

mail-in ballot means a ballot mailed or delivered in accordance with subsection 5(6.2); (bulletin de vote postal)

Minister

Minister means the Minister of Indian Affairs and Northern Development; (ministre)

registry number

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

reserve

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

Superintendent

Superintendent means the Superintendent or senior field officer of the Indian Affairs Branch in charge of the agency and includes the Indian Affairs Branch in charge of the agency and includes the Indian Commissioner for British Columbia, all Regional Supervisors and any other officer acting under the instructions of the Minister or Assistant Deputy Minister; (surintendant)

voter declaration form

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

• (a) the name 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, address and telephone number of a witness to the signature of the elector. (formule de déclaration d’identité)

Definition of Residence for the Purpose of Determining the Eligibility of Voters

3 The following rules apply to the interpretation of the words “ordinarily resident” in respect of the residency of an elector on a reserve consisting of more than one electoral section:

• (a) subject to the other provisions of this section, the question as to where a person is or was ordinarily resident at any material time or during any material period shall be determined by reference to all the facts of the case;

• (b) the place of ordinary residence of a person is, generally, that place which has always been, or which he has adopted as, the place of his habitation or home, whereto, when away therefrom, he intends to return and, specifically, where a person usually sleeps in one place and has his meals or is employed in another place, the place of his ordinary residence is where that person sleeps;

• (c) a person can have one place of ordinary residence only, and he shall retain such place of ordinary residence until another is acquired;

• (d) temporary absence from a place of ordinary residence does not cause a loss or change of place of ordinary residence.

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,

    • (i) the names of band members eligible to vote for chief, in alphabetical order, and

    • (ii) the names of band members eligible to vote for councillors, in alphabetical order;

  • (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) On request, the electoral officer or deputy electoral officer shall confirm whether the name of a person is on the voters list.

• (4) The electoral officer shall revise the voters list where 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

    • (i) is on the Band List or is entitled to have his or her name entered on the Band List,

    • (ii) is at least 18 years of age, and

    • (iii) is qualified to vote at band elections; and

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

    • (i) is neither on the Band List nor entitled to have his or her name entered on the Band List,

    • (ii) is not at least 18 years of age, or

    • (iii) is not qualified to vote at band elections.

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, if any, 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(4) and paragraphs 8(2)(b) and 11.1(2)(g) to electors who do not reside on the reserve if it was mailed or delivered to every elector who does not reside on the reserve and for whom an address was provided.

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 and a list of the names of electors 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 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 name and phone number of the electoral officer;

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

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

  • (f) 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 for election 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 close of the polls 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.

• (3) A candidate who dies before the close of the polls shall be considered to have withdrawn his or her candidature.

Acclamations

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.

Manner in Which Voting Shall Be Carried Out

• 5 (1) Subject to subsection (3), the electoral officer shall prepare ballots setting out

  • (a) the names of the candidates nominated for election as chief, in alphabetical order; and

  • (b) the names of the candidates nominated for election as councillors, in alphabetical order.

• (2) Where two or more candidates have the same name, the electoral officer shall add to the ballots such additional information as is necessary to distinguish between those candidates.

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

• (4) Subject to subsection (5), 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) an outer, postage-paid return envelope, pre-addressed to the electoral officer;

  • (c) a second, inner 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

    • (i) identifying the location of all polling places, and

    • (ii) advising the elector that he or she may vote in person at a polling place on the day of the election in accordance with subsection 6(3) in lieu of voting by mail-in ballot; and

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

• (5) Where the reserve consists of more than one electoral section, the package mailed to an elector who does not reside on the reserve shall contain a ballot for the candidates for chief only.

• (6) At the request of an elector who resides on the reserve, the electoral officer shall provide a package referred to in subsection (4) to that elector.

• (6.1) The electoral officer shall indicate on the voters list that a ballot has been provided to each elector to whom a mail-in ballot was mailed or otherwise provided and keep a record of the date on which, and the addresses to which, each mail-in ballot was mailed.

• (6.2) An elector may vote by mail-in ballot by

  • (a) marking the ballot by placing a cross, check mark or 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 marks but exposes the electoral officer’s initials on the back;

  • (c) placing the ballot in the inner envelope 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 inner envelope and the completed voter declaration form in the outer envelope; and

  • (f) delivering or, subject to subsection (6.7), mailing the mail-in ballot to the electoral officer before the time at which the polls close on the day of the election.

• (6.3) Where an elector is unable to vote in the manner set out in subsection (6.2), the elector may enlist the assistance of another person to mark the ballot and complete and sign the voter declaration form in accordance with that subsection.

• (6.4) A witness referred to in paragraph (6.2)(d) shall attest to

  • (a) the fact that the person completing and signing the voter declaration form is the person whose name is set out in the form; or

  • (b) where the elector enlisted the assistance of another person under subsection (6.3), the fact that the elector is the person whose name is set out in the form and that the ballot was marked according to the directions of the elector.

• (6.5) An elector who inadvertently spoils a mail-in ballot may obtain another ballot by returning the spoiled ballot to the electoral officer.

• (6.6) An elector who loses a mail-in ballot may obtain another ballot by delivering to the electoral officer a written affirmation that the elector has lost the mail-in ballot, signed by the elector in the presence of the electoral officer, a justice of the peace, a notary public or a commissioner for oaths.

• (6.7) 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.

• (6.8) An elector to whom a mail-in ballot was mailed or provided under subsection (4) or (6) is not entitled to vote in person at a polling place other than in accordance with subsection 6(3).

• (6.9) The electoral officer shall establish at least one polling place on the reserve.

• (7) The electoral officer shall procure or cause to be procured as many ballot boxes as there are polling places, and shall cause to be prepared a sufficient number of ballot papers for the purpose of the election.

• (8) The electoral officer shall, before the poll is open, cause to be delivered to his deputy the ballot papers, materials for marking the ballot papers, and a sufficient number of directions-for-voting as may be prescribed.

• (9) The electoral officer or his deputy shall provide a compartment at each polling place where the electors can mark their ballot papers free from observation, and he may appoint a constable to maintain order at such polling place.

• (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.

• (11) A candidate shall be entitled to not more than two agents in a polling place at any one time.

• (12) [Repealed, SOR/2000-391, s. 4]

• (13) The electoral officer or his deputy shall, immediately before the commencement of the poll, open the ballot box and call such persons as may be present to witness that it is empty; he shall then lock and properly seal the box to prevent it being opened without breaking the seal and shall place it in view for the reception of the ballots, and the seal shall not be broken nor the box unlocked during the time appointed for taking the poll.

• (14) [Repealed, SOR/2000-391, s. 4]

• 6 (1) Subject to subsection 5(6.8), where a person attends at a polling place for the purpose of voting, the electoral officer or deputy electoral officer shall, if the person’s name is set out in the voters list, provide the person with a ballot.

• (2) The electoral officer or his deputy shall cause to be placed in the proper column of the voters’ list a mark opposite the name of every voter receiving a ballot paper.

• (3) An elector to whom a mail-in ballot was mailed or provided under subsection 5(4) or (6) may obtain a ballot and vote in person at a polling place if

  • (a) the elector returns the mail-in ballot to the electoral officer or deputy electoral officer; or

  • (b) where the elector has lost the mail-in ballot, the elector provides the electoral officer or deputy electoral officer with a written affirmation that the elector has lost the mail-in ballot, signed by the elector in the presence of the electoral officer, deputy electoral officer, a justice of the peace, a notary public or a commissioner for oaths.

• (4) The electoral officer or his deputy may and when requested to do so shall explain the mode of voting to a voter.

• (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, check mark or 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 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.

• (6) While any voter is in the compartment for the purpose of marking his ballot paper, no other person shall, except as provided in subsection (7), be allowed in the same compartment or be in any position from which he can see the manner in which such voter marks his ballot paper.

• (7) At the request of any voter who is unable to vote in the manner set out in subsection (5), the electoral officer or deputy electoral deputy shall assist that voter by marking his or her ballot in the manner directed by the voter in the presence of another elector selected by the voter as a witness and place the ballot in the ballot box.

• (8) The electoral officer or his deputy shall state in the voters’ list in the column for remarks opposite the name of such elector the fact that the ballot paper was marked by him at the request of the voter and the reasons therefor.

• (9) A voter who has inadvertently dealt with his ballot paper in such a manner that it cannot be conveniently used shall, upon returning it to the electoral officer or his deputy, be entitled to obtain another ballot paper, and the electoral officer or his deputy shall thereupon write the word “cancelled” upon the spoiled ballot paper and preserve it.

• (10) Any person who has received a ballot paper and who leaves the polling place without delivering the ballot paper to the electoral officer or his deputy, in the manner provided, or if, after receiving the ballot paper, refuses to vote, shall forfeit his right to vote at the election, and the electoral officer or his deputy shall make an entry in the voters’ list in the column for remarks opposite the name of such person to show that such person received the ballot paper and declined to vote, and the electoral officer or his deputy shall mark upon the face of the ballot paper the word “declined”, and all ballot papers so marked shall be preserved.

• (11) An elector whose name does not appear on the voters’ list may vote at an election if the electoral officer or his deputy is satisfied that such person is qualified to vote.

• (12) Every elector who is inside the polling place at the time fixed for closing the poll shall be entitled to vote before the poll is closed.

Counting of Votes

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 envelope containing a mail-in ballot that was received before the close of the polls and, without unfolding the ballot,

• (a) reject the ballot if

  • (i) it was not accompanied by a voter declaration form, or the voter declaration form is not signed or witnessed,

  • (ii) the name of the elector set out in the voter declaration form is not on the voters list, or

  • (iii) the voters list shows that the elector has already voted; or

• (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 ballot in a ballot box.

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

• (a) examine the ballot papers and reject all ballot papers

  • (i) that have not been supplied by him,

  • (ii) by which votes have been given for more candidates than are to be elected, or

  • (iii) on which anything appears by which the voter can be identified;

• (b) declare a ballot paper containing the names of candidates for more than one office, on which votes are given for more candidates for any office than are to be elected, to be void as regards all the candidates for such office; but such ballot paper shall be good as regards the votes for any other offices in respect of which the voter has not voted for more candidates than are to be elected;

• (c) subject to review on recount or on an election appeal, take a note of any objection made by any candidate or his agent to any ballot paper found in the ballot box and decide any question arising out of the objection;

• (d) number such objection and place a corresponding number on the back of the ballot paper with the word “allowed” or “disallowed”, as the case may be, with his initials;

• (e) from the ballots not rejected or declared void under paragraph (b), count the votes given for each candidate who has not withdrawn before the close of the polls; and

• (f) prepare and sign a statement of the number of votes for each candidate and the number of ballots rejected.

• 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 four days after 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.

9 Where it appears that two or more candidates have an equal number of votes, the electoral officer shall give a casting vote for one or more of such candidates, but the electoral officer shall not otherwise be entitled to vote.

• 10 (1) The electoral officer shall prepare a statement in triplicate showing the total number of votes cast for each candidate, the number of rejected ballots and the names of the candidates duly declared elected.

• (2) One copy of such statement shall be forwarded to the Assistant Deputy Minister, one to the regional supervisor or the Indian commissioner for the Province of British Columbia, and one copy filed in the agency office.

• (3) The statement shall be signed by the electoral officer and such of the candidates or their agents as are present and desire to sign it.

Disposition of Ballot Papers

11 The electoral officer shall deposit all ballot papers in sealed envelopes with the superintendent, who shall retain them in his possession for eight weeks, and unless otherwise directed by the Minister or by a person authorized by him shall then destroy the ballot papers in the presence of two witnesses who shall make a declaration that they witnessed the destruction of those papers.

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 the election of 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

    • (i) post a notice of the nomination meeting and of the manner in which nominations can be made, and a list of names of the electors, in at least one conspicuous place on the reserve, and

    • (ii) give notice of the nomination meeting, and of the manner in which nominations may be made, by publishing an advertisement in the local newspaper with the largest circulation;

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

    • (i) by communicating the nomination or secondment to the electoral officer at any time before the commencement of the nomination meeting, or

    • (ii) orally, at the nomination meeting;

  • (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;

  • (g) the electoral officer shall mail by priority post the package referred to in subsection 5(4) at least 21 days before the day on which the election is to be held;

  • (h) the outer envelope referred to in paragraph 5(4)(b) shall be postage-paid for delivery by priority post; and

  • (i) the letter of instruction referred to in paragraph 5(4)(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) paragraph 4.3(1)(a), subsections 4.2(3), 4.3(2), 4.4(2) to (4) and 5(3) to (5) do not apply;

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

  • (c) 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 and the list of names of electors in at least one conspicuous place on the reserve; and

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

Election Appeals

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

  • (a) there was corrupt practice in connection with the election,

  • (b) there was a violation of the Act or these Regulations that might have affected the result of the election, or

  • (c) a person nominated to be a candidate in the election was ineligible to be a candidate,

  may lodge an appeal by forwarding by registered mail to the Assistant Deputy Minister particulars thereof duly verified by affidavit.

• (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.

• (3) Any candidate may, within 14 days of the receipt of the copy of the appeal, forward to the Assistant Deputy Minister by registered mail a written answer to the particulars set out in the appeal together with any supporting documents relating thereto duly verified by affidavit.

• (4) All particulars and documents filed in accordance with the provisions of this section shall constitute and form the record.

• 13 (1) The Minister may, if the material that has been filed is not adequate for deciding the validity of the election complained of, conduct such further investigation into the matter as he deems necessary, in such manner as he deems expedient.

• (2) Such investigation may be held by the Minister or by any person designated by the Minister for the purpose.

• (3) Where the Minister designates a person to hold such an investigation, that person shall submit a detailed report of the investigation to the Minister for his consideration.

14 The Minister shall report to the Governor in Council when the Minister is satisfied that

• (a) there was corrupt practice in connection with an election;

• (b) there was a contravention of the Act or these Regulations that might have affected the result of an election; or

• (c) a person nominated to be a candidate in an election was ineligible to be a candidate.

Secrecy of Voting

• 15 (1) Every person in attendance at a polling place or at the counting of the votes shall maintain and aid in maintaining the secrecy of the voting.

• (2) No person shall interfere or attempt to interfere with a voter when marking his ballot paper or obtain or attempt to obtain at the polling place information as to how a voter is about to vote or has voted.

16 to 18 [Repealed, SOR/2000-391, s. 12]