Hon. Lillian Eva Dyck:
Would the honourable senator take a question?
Senator Tannas: Yes.
Senator Dyck: In your speech, you said that the bill has come to us unchanged. You also said that the bill provides an option for First Nations to come under the provisions of the bill. We examined the bill when it was here previously and, as I recall, there was a provision such that the minister could order a First Nation to come under its provisions. In other words, although some could opt in some could also be ordered to come under the provision. Could I have your comments on that, please?
Senator Tannas: The minister has always had the ability to order elections — fresh elections. That's in the Indian Act. This provides for the minister, in the capacity that he has within the Indian Act already that I think three times in the last 10 years he has used this process instead of the Indian Act. Essentially, the minister is opting in. In any case, where he needs to order an election, this process is used rather than the Indian Act process.
Senator Dyck: Thank you. For further clarification, the minister can do that but my impression was that the minister could not order a First Nation under a community-designed elections code because they have opted out of the Indian Act. However, with this bill, from what we understood previously, the minister could order those 343 First Nations to come under its provisions, which he couldn't do before.
Senator Tannas: That's true. In the case where the minister has determined the governance has broken down within the community, the only way in which they can be elected is through this particular mechanism.
Now, there is nothing stopping the community from having elected and clarified who is in charge and then opting back in for subsequent elections; that would be entirely proper. In the case, rare but it has happened, where the minister has determined that he or she needs to step in and get clarity about who is actually elected and in charge, this process would be used.
Senator Dyck: I don't believe there is anything in the bill that defines how the minister determines whether to order a First Nation to come under this piece of legislation. There isn't anything there, like regulations, to say under what circumstances the minister can do this. It's sort of wide open. Is that true?
Senator Tannas: I would like to take that question back and perhaps we can provide a written response to folks here. I believe there is some latitude but there is also some language around some of the circumstances that need to be present in order for that to happen. I would like to provide an answer to that in writing.