Broad Regulations on Narrow Statutory Bases: The First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) SOR/2020-84
One of the questions from the audience at last week’s Centre for Constitutional Studies Webinar on Emergency Powers and Legal Principle (accessible free of charge here) was about the legality of the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases), SOR/2020-84.
Articles 2, 3 and 4 of the Regulations provide in respect of elections held under the Indian Act, the First Nations Elections Act and custom for unilateral extension of officeholders’ terms of office:
…if the extension is necessary to prevent, mitigate or control the spread of diseases on the reserve, the council of a First Nation whose chief and councillors are elected under that Act may, within 90 days before the day on which a tenure of office of the chief and councillors ends, extend that tenure.
These Regulations were made under ss. 73 and 76(1) of the Indian Act and s. 41 of the First Nations Elections Act. I think there must be serious doubt about whether the Regulations are intra vires these enabling provisions. The enabling provisions are narrow and relate to the organization of elections and do not seem to encompass the broad power to unilaterally extend terms of office
Section 41 of the First Nations Elections Act gives the federal cabinet the authority to promulgate regulations in respect of:
- (a) the appointment, powers, duties and removal of electoral officers and deputy electoral officers;
- (b) the requirement that electoral officers be certified, the certification process and the grounds for withdrawing certification;
- (c) the manner of identifying electors of a participating First Nation;
- (d) the manner in which candidates may be nominated;
- (e) the imposition, by participating First Nations, of a fee on each candidate in accordance with section 11;
- (f) the manner in which voting is to be carried out, including
- (g) the removal from office of a chief or councillor of a participating First Nation by means of a petition, including
- (h) the holding of by-elections; and
- (i) anything else that by this Act is to be prescribed.
Nothing there comes close to authorizing unilateral extensions of terms of office. Section 76(1) of the Indian Act is very similar. Even applying the deferential reasonableness standard, the Regulations cannot “reasonably be construed to be related” to these enabling provisions (West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22,  1 SCR 635, at para. 11).
The enabling provision which comes closest to authorizing the Regulations is s. 73(1)(f), which empowers the federal cabinet to act “to prevent, mitigate and control the spread of diseases on reserves, whether or not the diseases are infectious or communicable”. Does the power to “prevent, mitigate and control” disease permit the cabinet to authorize office holders to extend their terms of office and thereby avoid an election? No doubt the underlying idea here is that the holding of elections — campaigning, public discussions and voting — could facilitate the spread of COVID-19 and that, therefore, a power to postpone the election is “within the ambit” of s. 73(1)(f) (West Fraser Mills, at para. 10).
The difficulty here is one of subdelegation. Creating a power to unilaterally extend a term of office is, at best, an indirect means of achieving the objective of preventing, mitigating and controlling the spread of diseases. Notwithstanding the indirect means used, the Regulations might still be within the “ambit” of the enabling provisions inasmuch as the unilateral extension of a term of office can “reasonably be construed” to relate to s. 73(1)(f).
Even here, however, the fact that s. 76 makes specific provision in respect of elections should narrow the ambit of s. 73 (1)(f), which is related to sanitary conditions on a reserve, not the holding or organization of elections. Moreover, it is the federal cabinet which has been empowered to make regulations in respect of the prevention, mitigation and control of disease and in respect of the holding of elections. But the effect of the Regulations is to vest the power to determine the date of the next election in officeholders, not the federal cabinet. Not only are the means used indirect, they also subdelegate the means from the federal cabinet to officeholders.
Taken together this, it seems to me, pushes the limits of reasonableness. The Supreme Court noted in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 that “an administrative body cannot exercise authority which was not delegated to it” (at para. 109), language which can be used to describe arts. 2-4 of the Regulations. Indeed, the discussion in paras. 108-110 of Vavilov of the importance of the governing statutory scheme is highly relevant here. The enabling provisions are relatively narrow and do not envisage a high degree of “flexibility” for the decision-maker (Vavilov, at para. 110). Given that these are regulations, there are no reasons to assess, so any review of the legality of the Regulations must focus on their conformity with the relevant enabling provisions. And note that “disease” is nowhere defined in the Regulations or the Indian Act — the power is not limited to responding to COVID-19.
The better course of action would have been to vest the power to extend terms of office in the federal cabinet, as the final decision-maker, on application by a band or First Nation fearful that an election would cause the spread of COVID-19. In fighting the current pandemic, governments have rightly taken extraordinary measures. These are extraordinary times, after all. But using narrow statutory powers to achieve broad public health goals is problematic, especially where alternatives — here, decisions by the federal cabinet — are available.
This content has been updated on May 27, 2020 at 00:54.