Indian Referendum Regulations (C.R.C., c. 957)

Short Title

1 These Regulations may be cited as the Indian Referendum Regulations.

Application

1.1 These Regulations apply to a referendum held under subparagraph 39(1)(b)(iii), subsection 39(2) or section 39.1 of the Act.

Interpretation

2 In these Regulations,

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 a person appointed by an electoral officer for the purposes of a referendum; (président du scrutin)

elector

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

electoral officer

electoral officer means the person in charge of the local office of the Department of Indian Affairs and Northern Development or any officer of the Department of Indian Affairs and Northern Development acting under the direction of the Minister or Assistant Deputy Minister for the purposes of a referendum; (président d’élection)

mail-in ballot

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

Minister

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

prescribed

prescribed[Repealed, SOR/2000-392, s. 2]

proclamation

proclamation[Revoked, SOR/94-369, s. 4]

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 a referendum, means a reserve of the band that is holding the referendum; (réserve)

surrender

surrender[Revoked, SOR/94-369, s. 4]

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,

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

Holding of Referendum

• 3 (1) The Minister may, at the request of the council of a band or whenever the Minister considers it advisable, order that a referendum be held under subparagraph 39(1)(b)(iii), subsection 39(2) or section 39.1 of the Act.

• (2) and (3) [Repealed, SOR/2000-392, s. 3]

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) 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 person may demonstrate

  • (a) 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 is on the Band List, is at least 18 years of age and is qualified to vote at band elections; and

  • (b) 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 is not on the Band List, is not at least 18 years of age or is not 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, if any, 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 and a list of the names of electors in at least one conspicuous place on the reserve; and

  • (b) mail or deliver to every elector of the band who does not reside on the reserve and for whom an address has been provided

    • (i) a notice of the referendum,

    • (ii) a mail-in ballot, initialled on the back by the electoral officer,

    • (iii) an outer, postage-paid return envelope, pre-addressed to the electoral officer,

    • (iv) a second, inner envelope marked “Ballot” for insertion of the completed ballot,

    • (v) a voter declaration form,

    • (vi) a letter of instruction regarding voting by mail-in ballot, and

    • (vii) an information package regarding the designation or surrender that is the subject of the referendum.

• (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 in accordance with subsection 9(3) 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) At the request of an elector who resides on the reserve, the electoral officer shall provide the elector with the material referred to in subsection (1)(b).

• (4) 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, delivered or otherwise provided, and keep a record of the date on which, and the addresses to which, each mail-in ballot was mailed or delivered.

• (5) An elector to whom a mail-in ballot was mailed, delivered or provided under subsection (1) or (3) is not entitled to vote in person at a polling station other than in accordance with subsection 9(3).

Information Meetings

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

Preparation for Referendum

• 5 (1) The electoral officer shall

  • (a) prepare sufficient ballots, initialled on the back by the electoral officer, stating the question to be submitted to the electors;

  • (b) and (c) [Repealed, SOR/2000-392, s. 5]

  • (d) procure a sufficient number of ballot boxes; and

  • (e) before the poll is open cause to be delivered to the deputy electoral officer the ballot papers and a sufficient number of lead pencils for marking the ballot papers.

• (2) and (3) [Repealed, SOR/2000-392, s. 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, check mark or other mark, clearly indicating the elector’s response to the question stated on the ballot;

  • (b) folding the ballot in a manner that conceals the question and any marks, but exposes the 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, signed and witnessed voter declaration form in the outer envelope; and

  • (f) delivering or, subject to subsection (6), mailing the outer envelope to the electoral officer before the time at which the polls close on the day of the referendum.

• (2) Where an elector is unable to vote in the manner set out in subsection (1), the elector may enlist the assistance of another person to mark the ballot and complete and sign the voter declaration form in accordance with subsection (1).

• (3) A witness referred to in paragraph (1)(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 (2), 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.

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

• (5) 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) 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.

6 The electoral officer or the deputy electoral officer shall provide a compartment at each polling place where the elector can mark his ballot paper free from observation.

7 The electoral officer or the deputy electoral officer shall, immediately before the opening of the poll, open the ballot box and call upon such persons who may be present to witness that it is empty and shall then lock and properly seal the box and place it in view for the reception of the ballots.

• 8 (1) 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.

• (2) An elector who is inside a polling station at the time that the polling station is to close is entitled to vote.

• 9 (1) Subject to subsection 4.2(5), where a person attends at a polling station 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 the deputy electoral officer shall place on the list of electors a mark opposite the name of every elector receiving a ballot paper.

• (3) An elector to whom a mail-in ballot was mailed, delivered or provided under subsection 4.2(1) or (3) may obtain a ballot and vote in person at a polling station 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.

• 10 (1) The electoral officer or the deputy electoral officer shall explain the mode of voting to an elector when requested to do so by such elector.

• (2) On the application of an elector who is

  • (a) not able to read, or

  • (b) incapacitated by blindness or other physical cause,

  the electoral officer or the deputy electoral officer shall assist that elector by marking his ballot paper in the manner directed by the elector and shall place such ballot paper in the ballot box.

• (3) The electoral officer or the deputy electoral officer shall make an entry in the list of electors opposite the name of the elector that the ballot paper was marked by him at the request of the elector and the reasons therefor.

11 Except as provided in subsection 10(2), every elector receiving a ballot paper shall

• (a) proceed immediately to the compartment provided for marking the ballot paper;

• (b) mark the ballot by placing a cross, check mark or other mark, clearly indicating the elector’s response to the question stated on the ballot;

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

• (d) forthwith deliver it to the electoral officer or the deputy electoral officer for deposit in the ballot box.

• 12 (1) An elector who receives a soiled or improperly printed ballot paper, or inadvertently spoils his ballot paper in marking it shall, upon returning the ballot paper to the electoral officer or the deputy electoral officer, be entitled to another ballot paper.

• (2) An elector who has received a ballot paper and

  • (a) leaves the compartment for marking ballot papers without delivering the same to the electoral officer or the deputy electoral officer in the manner provided, or

  • (b) refuses to vote,

  shall forfeit his right to vote on the referendum and the electoral officer or the deputy electoral officer shall make an entry on the list of electors opposite the name of the elector that the elector did not return the ballot paper or refused to vote as the case may be.

13 The electoral officer or the deputy electoral officer shall allow only one elector in the compartment for marking ballot papers at any one time.

14 [Repealed, SOR/2000-392, s. 10]

15 No person shall interfere or attempt to interfere with an elector when marking his ballot paper or obtain or attempt to obtain at the polling place information as to how an elector is about to vote or has voted.

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.

Counting of Votes

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

• (a) set aside 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) 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.

• 18 (1) As soon as is practicable 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

  • (a) examine the ballot papers;

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

  • (b) reject all ballot papers

    • (i) [Repealed, SOR/2000-392, s. 12]

    • (ii) that have been marked incorrectly, or

    • (iii) upon which anything appears by which an elector can be identified;

  • (c) count the votes given in favour of and against the question submitted in the referendum; and

  • (d) prepare a statement in writing of the number of votes so given and of the number of ballot papers rejected.

• (2) The statement referred to in paragraph (1)(d) shall be

  • (a) signed by the electoral officer and by the chief or a member of the council of the band; and

  • (b) filed in the local office of the Department of Indian Affairs and Northern Development.

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.

19 As soon as is practicable after the results of the voting are known, the electoral officer shall

• (a) prepare a statement in triplicate, signed by the electoral officer and by the chief or a councillor of the band, that indicates

  • (i) the number of electors who were entitled to vote,

  • (ii) the number of electors who voted,

  • (iii) the number of votes cast in favour of and against the question submitted in the referendum, and

  • (iv) the number of rejected ballots; and

• (b) deliver a copy of the statement to

  • (i) the Assistant Deputy Minister,

  • (ii) the person in charge of the regional office of the Department of Indian Affairs and Northern Development, and

  • (iii) the chief of the band.

• 20 (1) The electoral officer shall deposit the ballots used in the voting in a sealed envelope and retain them.

• (2) If no review has been requested within 60 days after the referendum, the electoral officer shall destroy the ballots used in the voting.

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 or delivered, 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), any elector to whom an information package was sent in respect of the previous referendum shall be sent

  • (i) a statement referring him or her to that information package, and

  • (ii) instructions on how to obtain an additional information package, if he or she 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 (1) If the material referred to in section 22 or any other information in the Minister’s possession is sufficient to call into question the validity of a referendum held under subparagraph 39(1)(b)(iii) or subsection 39(2) of the Act, the Minister shall advise the Governor in Council accordingly.

• (2) The Minister shall take into account any material provided under section 22 in relation to a referendum held under section 39.1 of the Act when deciding whether to accept the designation.

24 to 33 [Repealed, SOR/2000-392, s. 15]