Canada Gazette, Part I, Volume 159, Number 10: First Nations Fiscal Management Act Adaptation Regulations

March 8, 2025

Statutory authority
First Nations Fiscal Management Act

Sponsoring department
Department of Crown-Indigenous Relations and Northern Affairs

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

General Comment

Issues

The First Nations Fiscal Management Act (FNFMA or the Act) enables First Nations who are bands within the meaning of the Indian Act to exercise fiscal jurisdiction, for example by enacting financial administration, local revenue, infrastructure and borrowing laws, as well as providing opportunities to access financing on capital markets through a pooled borrowing regime administered by the First Nations Finance Authority (FNFA). Self-governing and modern treaty First Nations and Indigenous groups are currently unable to participate in the pooled borrowing regime under the FNFMA, unless regulations are made that adapt the Act to enable their participation.

Several self-governing and modern treaty First Nations have requested that the Government of Canada make regulations so they can access pooled borrowing through the FNFA and benefit from long-term fixed-rate financing for their infrastructure and economic development. Further, existing borrowing members of the FNFA have also expressed an interest in continuing to have access to the regime when they transition to self-government under a modern treaty or self-government agreement.

Background

First Nations Fiscal Management Act

The FNFMA, which received royal assent in 2005 and came into force in 2006, is an innovative, First Nations-led and designed legislative and institutional framework that provides First Nations who are bands within the meaning of the Indian Act with support and tools to strengthen their communities and build their economies. The Act allows First Nation governments to exercise jurisdiction over fiscal matters, including financial management, property taxation, local revenue generation and infrastructure. The Act also provides First Nation governments with opportunities to access capital through the First Nations Finance Authority, which issues debentures (i.e. bonds) on capital markets.

This is an opt-in regime where First Nations who are bands within the meaning of the Indian Act choose whether they will participate in the taxing, financial administration, infrastructure and borrowing regimes set out in the FNFMA. As of December 2024, there were 373 First Nations who have opted into the regime. Once a First Nation is scheduled to the Act (by ministerial order at the request of the First Nation), they can work with the financial institutions to ensure that their fiscal and financial governance, as well as their finances, are sufficient to participate in certain aspects of the Act, such as raising property tax revenues and participating in the pooled borrowing regime. The regime provides First Nation governments with powers to pass laws governing their financial administration (FNFMA section 9); local revenue laws to generate revenue and borrowing laws to borrow for public purposes (FNFMA section 5); and laws to regulate the provision of services and infrastructure on their lands used to provide those services (FNFMA section 97). As well, these First Nations have opportunities to access financing on capital markets through a pooled borrowing regime that was created under the legislation. Currently this pooled borrowing regime is only available to First Nations who are bands within the meaning of the Indian Act and does not allow modern treaty or self-governing First Nations/Indigenous groups to participate.

Financial institutions

The Act established four Indigenous-led institutions to administer the regime and provide support to participating First Nations: the First Nations Tax Commission (FNTC), the First Nations Financial Management Board (FNFMB), the First Nations Finance Authority (FNFA) and the First Nations Infrastructure Institute (FNII). These institutions work together and in collaboration with the federal government and other First Nation partners to improve the ability of First Nation governments to address the social and economic well-being of their communities.

Since its creation in 2005, the FNFA has established itself as a trusted lending institution on capital markets. The FNFA has investment grade credit ratings from Moody’s Investment Service, Standard and Poor’s and Morningstar DBRS, as well as a nationwide securities exemption from provincial security regulators, which allows it to issue debentures at any time on capital markets at low rates of interest on behalf of its borrowing members. Since 2014, the FNFA has issued approximately $2.6 billion worth of debentures on capital markets, which have been bought by private investors from across Canada and internationally and that are secured by First Nations’ other revenues.

The borrowing process for First Nations using property tax and other revenues is outlined in the Act and regulations under the Act (e.g. the Debt Reserve Fund Replenishment Regulations and Revenue Management Implementation Regulations) and includes a framework to mitigate the risk of default by a First Nation borrowing member. For example, the Act outlines that in order to access the FNFA, a First Nation must have enacted a financial administration law under section 9 of the Act and must have attained certification from the FNFMB and the FNTC (for property taxation borrowing only) to ensure they are in a position to take on debt. In addition, the Act outlines that each borrowing member is required to deposit 5% of their loan into a Debt Reserve Fund, which is a liquidity fund that ensures continued payments to investors in the event of a default. In addition, the regulations under the Act outline the process for replenishing the Debt Reserve Fund and the process for intervention by the FNFMB.

Should the Debt Reserve Fund be depleted, the FNFA can call on the pool of borrowing members to proportionally replenish the Debt Reserve Fund. There is an additional liquidity reserve, the Credit Enhancement Fund, which can be utilized to cover any shortfalls in the Debt Reserve Fund if required.

In the event of a default or serious risk of default, the FNFA can call upon the FNFMB to intervene in the financial affairs of the First Nation and impose either co-management or third-party management over the First Nation’s fiscal affairs to remedy the default. This risk mitigation framework is essential to the FNFA’s credit ratings and its ability to issue debentures and provide loans to its borrowing members.

Self-governing and modern treaty First Nations

Several self-governing and modern treaty First Nations have expressed a desire to participate in the pooled borrowing regime administered by the FNFA to access fixed interest rate financing on a similar basis as First Nations who are bands within the meaning of the Indian Act. Existing borrowing members of the FNFA have also expressed an interest in continuing to have access to the regime when they transition to self-government under a modern treaty or self-government agreement.

The Act enables the Governor in Council to make regulations to adapt or restrict any provision of the Act, or of any regulation made under the Act, to enable Indigenous groups that are parties to a treaty, land claim agreement or self-government agreement to participate under the Act. It provides the power for the Minister of Crown-Indigenous Relations to amend the schedule of any such regulations in order to add, change or delete the name of an Indigenous group. This is the method for opting into or out of the regime.

The legal framework for self-governing and modern treaty First Nations/Indigenous groups differs from First Nations who are bands within the meaning of the Indian Act and participate in the FNFMA. First Nations who have opted into the Act exercise their powers in accordance with the Act (i.e. passing laws), while self-governing and modern treaty First Nations/Indigenous groups exercise powers set out in their final agreements. Under existing modern treaties and self-government agreements, many First Nations/Indigenous groups have jurisdiction and powers over internal financial administration and their laws prevail in the case of a conflict with provincial or federal law. The FNTC, FNFMB and FNII are not involved in the approval of laws created by self-governing and modern treaty First Nations/Indigenous groups the way they are for First Nations exercising powers under the FNFMA.

Objective

The objectives are

Description

The proposed Regulations would adapt provisions of the Act, as well as provisions of the Revenue Management Implementation Regulations and the Debt Reserve Fund Replenishment Regulations, that are relevant to the pooled borrowing regime to provide self-governing and modern treaty First Nations/Indigenous groups with opportunities to access financing through the FNFA utilizing their “Other Revenues” (i.e. rents under a lease, transfers under governmental agreements, etc.).

The proposed Regulations would not provide law-making powers (e.g. to pass financial administration laws) since self-governing and modern treaty First Nations/Indigenous groups already have these powers under their treaties and self-government agreements. The proposed Regulations would only adapt the borrowing regime set out in the FNFMA and its regulations. As well, under the proposed Regulations the FNFMB would not approve financial administration laws for self-governing and modern treaty First Nations/Indigenous groups the way they do for First Nations who are bands within the meaning of the Indian Act and who have opted into the FNFMA. Rather, the FNFMB, at the request of a self-governing or modern treaty First Nation/Indigenous group, would render an opinion on whether the laws of the self-governing and modern treaty First Nation/Indigenous group comply with the proposed Regulations and the standards established by the FNFMB, and whether the First Nation/Indigenous group meets the certification requirements to become a borrowing member of the FNFA.

Under the proposed Regulations, interested self-governing and modern treaty First Nations/Indigenous groups who wish to opt into the regime must first request to be added to it by the Minister of Crown-Indigenous Relations and would need to be scheduled to one of two schedules. Schedule 1 would include self-governing or modern treaty First Nations/Indigenous groups whose final agreements were concluded before the development of the proposed Regulations began (i.e. prior to 2017). Because these final agreements may not have included specific provisions that facilitate pooled borrowing under the FNFMA, additional criteria would need to be met by these self-governing or modern treaty First Nations/Indigenous groups. Schedule 2 would include self-governing or modern treaty First Nations/Indigenous groups whose final agreements include provisions that facilitate pooled borrowing under the FNFMA.

Participating self-governing and modern treaty First Nations/Indigenous groups listed in either Schedule 1 or Schedule 2 would each undertake the following steps if interested in becoming a borrowing member of the FNFA and in requesting a loan:

  1. Secure an opinion from the FNFMB stating that their laws and treaty or self-government agreement comply with the Act and meet all standards established under the Act for Schedule 1 or Schedule 2;
  2. Secure a certificate for financial performance from the FNFMB;
  3. Apply to be accepted as a borrowing member of the FNFA; and
  4. If accepted as a borrowing member, enter into a borrowing agreement with FNFA for financing.

The opinion of the FNFMB, which would be based on analysis of the First Nation’s/Indigenous group’s law(s), treaty or self-government agreement and their constitution, would confirm that self-governing and modern treaty First Nations/Indigenous groups’ legal frameworks do not conflict with the pooled borrowing regime and that their laws have met the standards established by the FNFMB in accordance with the proposed Regulations. This would include a requirement that self-governing and modern treaty First Nations/Indigenous groups listed in Schedule 1 have incorporated restrictions in their laws that would prevent abrupt repeal or amendment or the enactment of new laws that would conflict with the pooled borrowing regime (e.g. appropriate standards relating to notice periods, voting thresholds for laws). This verification by the FNFMB of the laws, treaties or self-government agreements and the constitution would ensure that these self-governing and modern treaty First Nations/Indigenous groups adhere to the obligations of the pooled borrowing regime, including those related to compliance with financial administration standards, payments to and replenishment of the Debt Reserve Fund, and intervention by the FNFMB.

The rules of the pool borrowing regime would apply in an equivalent manner to self-governing and modern treaty First Nations/Indigenous groups, including obligations to replenish the Debt Reserve Fund and intervention by the FNFMB if a First Nation/Indigenous group defaults on their loan or is at risk of default (i.e. the proposed Regulations would provide the FNFMB the ability to enter into a co-management arrangement with the First Nation/Indigenous group or to assume third-party management of the First Nation/Indigenous group’s other revenues in order to remedy the reason behind the default). This borrowing process is equivalent to the process followed by First Nations who are bands within the meaning of the Indian Act and are participating in the FNFMA.

Regulatory development

Consultation

Tla’amin Nation and the First Nations of the Maa-nulth Treaty Society (comprised of five self-governing First Nations) made a request to the Minister of Crown-Indigenous Relations asking that regulations be made under section 141 of the Act to facilitate opportunities to access the FNFMA’s pooled borrowing regime. In addition, approximately five existing borrowing members of the FNFA are currently negotiating modern treaties and self-government agreements and have expressed a desire to continue to have opportunities to access to pooled borrowing under the FNFMA after their self-government agreement’s effective date.

In 2016, the Minister of Crown-Indigenous Relations launched a working group to develop proposed Regulations to facilitate opportunities for self-governing and modern treaty First Nations/Indigenous groups to access the FNFMA’s pooled borrowing regime if they chose to. The working group participants included

Crown-Indigenous Relations and Northern Affairs Canada also engaged other interested First Nations who are currently negotiating modern treaties and who wish to continue to have access to pooled borrowing under the FNFMA regime after they transition to self-government.

The working group examined proposals on policy issues and co-developed the proposed Regulations to ensure the Act is adapted appropriately for the context of self-governing and modern treaty First Nations/Indigenous groups. As well, key proposals on how to address issues and make regulations function in the self-governing context were developed by self-governing First Nations partners.

Crown-Indigenous Relations and Northern Affairs Canada will engage additional self-governing and modern treaty First Nations/Indigenous groups during the Canada Gazette, Part I, consultation period to ensure they are aware of the proposed Regulations and the online consultation process.

Modern treaty obligations and Indigenous engagement and consultation

As required by the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment of modern treaty implications was conducted on the proposal. Since modern treaty holders would be required to opt into the pooled borrowing regime under the FNFMA, the assessment did not identify any modern treaty implications.

Since this initiative has been developed specifically for modern treaty holders, its design was informed by consultations with interested modern treaty and self-governing partners to ensure that it is mutually acceptable and clearly defined. The initiative would enable modern treaty and self-governing partners to opt into the regime and gain opportunities to access the pooled borrowing regime under the FNFMA.

The initiative aligns with Canada’s commitment to working with Indigenous communities on a nation-to-nation basis; to supporting the broader shared objectives of modern treaties, especially the promotion of social, economic and cultural well-being of Indigenous peoples; and to contributing to the development of prosperous and sustainable Indigenous communities in Canada.

Instrument choice

The pooled borrowing regime under the FNFMA is currently only available to First Nations who are bands within the meaning of the Indian Act. The proposed adaptation regulations pursuant to section 141 of the Act is the only option currently available to provide opportunities for self-governing and modern treaty First Nations/Indigenous groups to participate in the FNFMA pooled borrowing regime.

Regulatory analysis

Benefits and costs

The proposed Regulations are likely to result in self-governing and modern treaty First Nations/Indigenous groups being able to borrow at a lower rate of interest. This could generate significant annual savings on interest costs on long-term loans as compared to commercial financing.

The FNFA, FNFMB and FNTC will incur minor administrative costs for activities such as certification and processing applications for loans, and assessing and maintaining compliance. For self-governing and modern treaty First Nations/Indigenous groups, there will also be minor costs associated with a request to be scheduled to the Regulations, passing or amending laws to qualify for an opinion, providing financial statements to become certified and applying for a loan from the FNFA.

Benefits

Self-governing and modern treaty First Nations/Indigenous groups would have opportunities to utilize the pooled borrowing regime under the Act to support stronger governance and increase investment in infrastructure and economic development for the benefit of their economies and communities. Through the FNFA, self-governing First Nations/Indigenous groups would be able to finance capital intensive infrastructure and economic development projects over long-term periods and at fixed rates of interest, which may not be possible through commercial financing. For example, the FNFA is able to provide its borrowing members with loans at a fixed interest rate comparable to rates that Ontario, Quebec and Alberta can secure on the capital market, which is significantly below bank prime interest rates. For example, as of December 2024 the FNFA could secure an interest rate of 4.15% (relending at 4.27%) on capital markets compared to Quebec (4.01%), Alberta (4.05%) and Ontario (4.01%). By comparison, each Chartered Bank had their prime rate at 5.45% for this same time period. Most First Nations/Indigenous groups who seek financing through commercial lenders would receive this 5.45% plus a markup based on the Bank’s lending framework.

As the FNFA is a non-profit organization, its interest rates and lending procedures are specifically built for their borrowing members to ensure reasonable and consistent access to capital, which may not be the case with commercial banks. Access to this financing would support self-governing and modern treaty First Nations/Indigenous groups to better plan and implement infrastructure projects and would generate significant annual savings on interest costs on long-term loans as compared to commercial financing. As well, as borrowing members of the FNFA representatives from self-governing and modern treaty First Nations/Indigenous groups would be able to stand for election and to elect the directors of the board that governs the FNFA, which would allow them to be involved in the governance of the FNFA.

Costs

For self-governing and modern treaty First Nations/Indigenous groups, minimal administrative costs would be associated with a request to be scheduled to the Regulations, passing or amending laws to qualify for an opinion, providing financial statements to become certified and applying for a loan from the FNFA. Self-governing and modern treaty First Nations/Indigenous groups are funded by the Government of Canada through Self-Governing Fiscal Arrangements for agreed upon responsibilities (including governance, programs and services), including enacting laws as self-governing Indigenous groups.

The FNFA, FNFMB and FNTC could incur minor administrative costs for activities such as certification and processing applications for loans, as well as developing the standards for modern treaty and self-governing First Nations/Indigenous groups and maintaining compliance. These institutions are funded to provide services to Indigenous governments and their budgets account for increases in the number of First Nations/Indigenous groups who may wish to utilize their services, including modern treaty and self-governing First Nations/Indigenous groups.

The proposed Regulations would replicate the regime’s safeguards, which would help prevent other First Nations participating in pooled borrowing from being negatively impacted by borrowing by self-governing or modern treaty First Nations/Indigenous groups.

Small business lens

The small business lens does not apply to this initiative, as it does not impose any level of compliance and/or administrative costs on small businesses.

One-for-one rule

The one-for-one rule does not apply to this initiative, as it does not result in any administrative costs or savings for businesses.

Regulatory cooperation and alignment

The proposed Regulations would provide modern treaty and self-governing First Nations/Indigenous groups with opportunities to access pooled borrowing under the adapted FNFMA. It would not impact international agreements.

Crown-Indigenous Relations and Northern Affairs Canada has engaged with the Province of British Columbia with the objective of aligning these proposed Regulations with the British Columbia treaty process.

Effects on the environment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

In regard to the purpose of the potential financing in accordance with the FNFMA, the respective treaties and self-government agreements outline that federal or provincial law in relation to environmental assessment prevails to the extent of a conflict with First Nations’ law and that no federal project or provincial project on First Nations lands will proceed unless there has been compliance with any applicable federal or provincial laws regarding environmental assessments.

Gender-based analysis plus

A gender-based analysis plus (GBA+) was conducted and found that the proposed Regulations would likely have positive impacts on diverse groups such as women, elders and youth in self-governing and modern treaty First Nations/Indigenous groups as they would augment the participating First Nation/Indigenous group’s existing governance powers that outline the participation of women, elder and youth in the community’s constitution.

The proposed Regulations would result in net benefits to these community members by facilitating opportunities for self-governing First Nations/Indigenous governments to access financing on capital markets at fixed rates of interest for infrastructure and economic development that supports the well-being of the modern treaty or self-governing Indigenous group as a whole.

The GBA+ considerations note positive benefits for a diverse range of community members related to improved community infrastructure such as water, housing, health and education, all of which have disproportionate benefits for First Nations women, especially those who are primary caregivers or single parents. For example, according to GBA+ research, better water infrastructure results in significant savings in terms of health costs and could alleviate the impacts on primary caregivers; better housing would benefit women and children as they are disproportionately impacted by inadequate or unsafe housing; and education facilities would support better economic outcomes for men and women due to the link between education and employment outcomes. By providing more opportunities for self-governing and modern treaty First Nations/Indigenous groups to access financing infrastructure and economic development opportunities, the proposed Regulations would support their efforts to address the diverse infrastructure needs of their community members, as well as strengthen their government’s ability to deliver public goods in a manner that is consistent with the participation of women, elders and youth in decision making.

Implementation, compliance and enforcement, and service standards

Implementation

The proposed Regulations would come into force on the date they are registered.

Subsection 141(2) of the Act provides the Minister of Crown-Indigenous Relations the authority to add or change the name of an Indigenous Group or delete the name of an Indigenous Group that is listed in any schedule included in regulations made under that subsection. This mechanism would be used for opting into the proposed Regulations.

Self-governing and modern treaty First Nations/Indigenous groups could be added to the schedule of the Act at their request.

Once a First Nation/Indigenous group has opted into the proposed Regulations, they would work with the FNFMB to achieve certification and they would apply to join the FNFA to secure financing based on their own revenues.

Compliance and enforcement

The FNFMB would be empowered to create standards for certificates and compliance opinions provided to self-governing and modern treaty First Nations/Indigenous groups as a part of the pooled borrowing regime under these proposed Regulations. To maintain the integrity of the pooled borrowing regime under the FNFMA, the FNFMB and FNFA would be empowered to take steps to ensure self-governing and modern treaty First Nations/Indigenous groups remain in compliance and fulfil their borrowing obligations.

Service standards

The FNFMB and FNFA establish their own service standards in regard to their services.

Contact

Andrea Dykstra
Director
Fiscal Policy and Investment Readiness
Resolution and Individual Affairs Sector
Crown-Indigenous Relations and Northern Affairs Canada
Email: andrea.dykstra@rcaanc-cirnac.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council proposes to make the annexed First Nations Fiscal Management Act Adaptation Regulations under subsection 141(1)footnote a of the First Nations Fiscal Management Act footnote b.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Andrea Dykstra, Director, Fiscal Policy and Investment Readiness Directorate, Crown-Indigenous Relations and Northern Affairs Canada, 10 Wellington Street, Gatineau, Quebec K1A 0H4 (tel.: 343‑596‑4150; email: andrea.dykstra@rcaanc-cirnac.gc.ca).

Ottawa, February 4, 2025

Janna Rinaldi
Acting Assistant Clerk of the Privy Council

First Nations Fiscal Management Act Adaptation Regulations

PART 1
Definition, Purpose and Application

Definition of Act

1 In these Regulations, Act
means the First Nations Fiscal Management Act.

Purpose

2 The purpose of these Regulations is to enable an Indigenous group that is a party to a treaty or self-government agreement with Canada to benefit from the provisions of the Act or obtain the services of the bodies established under the Act, specifically the ability to obtain financing secured by other revenues within the meaning of subsection 2(1) of the Act, as adapted by section 5 of these Regulations.

Application

3 The Act and the regulations made under the Act apply in respect of an Indigenous group referred to in section 2 that is named in Schedule 1 or 2, subject to the adaptations set out in these Regulations.

Precision

4 For greater certainty, the adaptations to the Act that are set out in these Regulations are not intended to re-establish the First Nations Tax Commission, the First Nations Financial Management Board, the First Nations Finance Authority or the First Nations Infrastructure Institute, nor to affect the composition of those bodies.

PART 2
Adaptation to the Act

Adaptation

5 The heading before section 1 and sections 1 to 141.2 of the Act are adapted as follows:

Short Title

Short title

1 This Act may be cited as the First Nations Fiscal Management Act.

Interpretation

Definitions

2 (1) The following definitions apply in this Act.

borrowing law
means a law made by an Indigenous group respecting the borrowing from the First Nations Finance Authority of money that is secured by other revenues, including any authorization to enter into a particular borrowing agreement with that Authority. (texte législatif sur les emprunts)
borrowing member
means a First Nation or Indigenous group that has been accepted as a borrowing member under subsection 76(2) or (3) and has not ceased to be a borrowing member under section 77. (membre emprunteur)
capital assets
includes capital infrastructure. (immobilisation)
council
has the same meaning as council of the band in subsection 2(1) of the Indian Act. (conseil de la première nation)
First Nation
means a band named in the schedule. (première nation)
First Nations Finance Authority
means the corporation established under section 58. (Administration financière des premières nations)
First Nations Financial Management Board
means the board established under subsection 38(1). (Conseil de gestion financière des premières nations)
First Nations Gazette
means the publication published under section 34. (Gazette des premières nations)
First Nations Infrastructure Institute
means the institute established under subsection 102(1). (Institut des infrastructures des premières nations)
First Nations Tax Commission
means the commission established under subsection 17(1). (Commission de la fiscalité des premières nations)
governing body
means the legislative body of an Indigenous group, the executive of the body or Indigenous group or a person or entity that is authorized to act on behalf of the Indigenous group. (corps dirigeant)
Indigenous group
except in sections 50.1 and 141, means an Indigenous group that is a party to a treaty or self-government agreement with Canada and that is named in Schedule 1 or 2 to the First Nations Fiscal Management Act Adaptation Regulations. (groupe autochtone)
interest
in relation to reserve lands in Canada elsewhere than in Quebec, means any estate, right or interest of any nature in or to the lands, including any right to occupy, possess or use the lands, but does not include title to the lands that is held by her Majesty. (intérêt)
intermediate account
means an account established by a First Nation or Indigenous group in which other revenues to be used for financing under this Act are deposited and out of which the First Nations Finance Authority is authorized to transfer such revenues to a secured revenues trust account of the First Nation or Indigenous group. (compte intermédiaire)
local revenue law
means a law made under subsection 5(1). (texte législatif sur les recettes locales)
local revenues
means moneys raised under a local revenue law and payments made to a First Nation in lieu of a tax imposed by a law made under paragraph 5(1)(a). (recettes locales)
Minister
means the Minister of Crown-Indigenous Relations. (ministre)
other revenues
means
  • (a) in relation to a First Nation,
    • (i) tax revenues and fees imposed or collected by the First Nation under a law or agreement, other than
      • (A) local revenues, and
      • (B) revenues from taxes administered by His Majesty in right of Canada on the First Nation’s behalf, including under the First Nations Goods and Services Tax Act, unless an agreement between them specifically permits the use of the revenues as security for a loan referred to in paragraph 74(b) and any other applicable conditions are satisfied,
    • (ii) royalties payable to the First Nation under the Framework Agreement, as defined in subsection 2(1) of the Framework Agreement on First Nation Land Management Act, or under the First Nations Oil and Gas and Moneys Management Act,
    • (iii) royalties payable to His Majesty in right of Canada under the Indian Act or the Indian Oil and Gas Act on behalf of the First Nation, if the First Nation has assumed control of its moneys under the First Nations Oil and Gas and Moneys Management Act,
    • (iv) revenues that are from leases, permits or other instruments or acts authorizing the use of reserve land issued under the Indian Act and that the First Nation has assumed control of under the First Nations Oil and Gas and Moneys Management Act,
    • (v) revenues from leases, permits or other instruments or acts authorizing the use of reserve land issued under the Framework Agreement, as defined in subsection 2(1) of the Framework Agreement on First Nation Land Management Act,
    • (vi) revenues otherwise payable to the First Nation under any agreement with a person other than His Majesty in right of Canada — with the exception of revenues collected by His Majesty in right of Canada on the First Nation’s behalf unless an agreement between them specifically permits their use as security for a loan referred to in paragraph 74(b) and any other applicable conditions are satisfied,
    • (vii) revenues, other than local revenues, received by the First Nation from businesses wholly or partly owned by it, including dividends from shares owned by it,
    • (viii) transfers from a provincial, regional, municipal or local government to the First Nation,
    • (ix) transfers from His Majesty in right of Canada to the First Nation if the agreement governing the transfer specifically permits the use of the transfer as security for a loan referred to in paragraph 74(b) and if any other applicable conditions are satisfied,
    • (x) interest earned by the First Nation on deposits, investments or loans, other than interest held by His Majesty in right of Canada on the First Nation’s behalf, and
    • (xi) revenues prescribed by regulation; and
  • (b) in relation to an Indigenous group,
    • (i) tax revenues and fees imposed or collected by the Indigenous group under a law or an agreement, other than
      • (A) revenues from taxes assessed against the ownership, use, occupation or possession of the Indigenous group’s lands, or payments made in lieu of those taxes,
      • (B) fees for the provision of services or the use of facilities on the Indigenous group’s lands, or for a regulatory process, permit, licence or other authorization, in relation to water, sewers, waste management, animal control, recreation or transportation, or any other similar services, and
      • (C) revenues from taxes administered by His Majesty in right of Canada on the Indigenous group’s behalf, including under the First Nations Goods and Services Tax Act, unless an agreement between them specifically permits the use of the revenues as security for a loan referred to in paragraph 74(b.1) and any other applicable conditions are satisfied,
    • (ii) revenues received by the Indigenous group in respect of leases, permits or other instruments or acts authorizing the use of its lands, including the exploitation of the lands’ natural resources,
    • (iii) revenues otherwise payable to the Indigenous group under any agreement with a person other than His Majesty in right of Canada — with the exception of revenues collected by His Majesty in right of Canada on the Indigenous group’s behalf unless an agreement between them specifically permits their use as security for a loan referred to in paragraph 74(b.1) and any other applicable conditions are satisfied,
    • (iv) revenues, other than revenues from taxes assessed against the ownership, use, occupation or possession of the Indigenous group’s lands, received by the Indigenous group from businesses wholly or partly owned by it, including dividends from shares owned by it,
    • (v) transfers from a provincial, regional, municipal or local government to the Indigenous group,
    • (vi) transfers from His Majesty in right of Canada to the Indigenous group if the agreement governing the transfer specifically permits the use of the transfer as security for a loan referred to in paragraph 74(b.1) and if any other applicable conditions are satisfied, and
    • (vii) interest earned by the Indigenous group on deposits, investments or loans, other than interest held by His Majesty in right of Canada on the Indigenous group’s behalf. (autres recettes)
property taxation law
means a law made under paragraph 5(1)(a). (texte législatif relatif à l’imposition foncière)
right
in relation to reserve lands in Quebec, means any right of any nature in or to the lands, including any right to occupy, possess or use the lands and any right of a lessee, but does not include title to the lands that is held by her Majesty. (droit)
secured revenues trust account
means an account established by the First Nations Finance Authority and a First Nation or Indigenous group in which other revenues to be used for financing under this Act are maintained. (compte de recettes en fiducie garanti)

Indian Act definitions

(2) Unless the context otherwise requires, words and expressions used in this Act and not otherwise defined have the same meaning as in the Indian Act.

Extended meaning of “borrowing member”

(2.1) For the purpose of sections 57, 59, 74, 77, 78, 83 and 84 and paragraph 89(c), borrowing member also means an organization referred to in paragraph 50.1(1)(e) that has been accepted as a borrowing member under a regulation made under section 141.1.

Amendments to schedule

(3) At the request of the council of a band, the Minister may, by order, amend the schedule in order to

Regulations

(3.1) The Governor in Council may make regulations prescribing anything that is to be prescribed under subparagraph (a)(xi) of the definition other revenues.

For greater certainty

(4) For greater certainty, nothing in this Act shall be construed as requiring capital assets for the provision of local services on reserve lands to be located on reserve lands.

PART 1
First Nations Fiscal Powers

Financial administration laws

4 The council of a First Nation may not make a law under paragraph 5(1)(d) or 8.1(1)(a) until the council has made a law respecting the financial administration of the First Nation under paragraph 9(1)(a) and that law has been approved by the First Nations Financial Management Board.

Local revenue laws

5 (1) Subject to sections 4 and 6 and any regulations made under paragraph 36(1)(d), the council of a First Nation may make laws

Approval required

(2) A law made under subsection (1) does not have any force or effect until it is approved by the First Nations Tax Commission.

Coming into force

(3) A law made under subsection (1) comes into force on the later of

Appeals

(4) A law made under subparagraph (1)(a)(i) shall include

Application to competent court

(5) The First Nation may apply to a court of competent jurisdiction for an order directing the person or entity named in the application to comply with a local revenue law, such as by

Collection — competent court

(6) The First Nation may commence a proceeding in a court of competent jurisdiction to collect an amount owing to the First Nation under a local revenue law.

Enforcement — Framework Agreement on First Nation Land Management Act

(6.1) If a First Nation has adopted a land code as defined in subsection 2(2) of the Framework Agreement on First Nation Land Management Act or the council of a First Nation has enacted a First Nation law as defined in subsection 2(1) of that Act, the First Nation may use any enforcement measure — other than a measure for the investigation or prosecution of an offence punishable on summary conviction referred to in paragraph 19.1(a) of the Framework Agreement, as defined in subsection 2(1) of that Act — that is provided for in that land code or First Nation law to enforce a local revenue law.

Assignment of interest or right

(7) Despite the Indian Act or any instrument or act conferring an interest or right in reserve lands, if there are outstanding taxes payable under a law made under paragraph (1)(a) for more than two years, the First Nation may assign the interest or right in accordance with the conditions and procedures prescribed by regulation.

Judicial notice

(8) In any proceedings, judicial notice may be taken of a local revenue law.

Statutory Instruments Act

(9) The Statutory Instruments Act does not apply in respect of local revenue laws or laws made under section 9.

Notice of proposed laws

6 (1) At least 30 days — or any longer period fixed by a standard made under subsection 35(1) — before making a law under paragraph 5(1)(a), (a.1) or (c), including a law repealing or amending such a law, other than a law referred to in subsection 10(1), the council of a First Nation shall

Exemption

(2) The First Nations Tax Commission may exempt a First Nation from the requirements of subsection (1) in respect of an amendment of a law if the Commission considers that the amendment is not significant.

Content of notice

(3) A notice referred to in subsection (1) shall

Council to consider representations

(4) Before making a law under paragraph 5(1)(a), (a.1) or (c), the council of a First Nation shall consider any representations that were made in accordance with paragraph (3)(c) or at a meeting referred to in paragraph (3)(d).

Further representations

7 When the council of a First Nation sends a law made under paragraph 5(1)(a), (a.1) or (c), other than a law referred to in subsection 10(1), to the First Nations Tax Commission for its approval, the council shall

Information accompanying property taxation law

8 (1) A property taxation law — including an amendment of a property taxation law — shall, when submitted to the First Nations Tax Commission for approval, be accompanied by

Exemption

(2) The First Nations Tax Commission may exempt a First Nation from the requirements of subsection (1) in respect of an amendment of a property taxation law if the Commission considers that the amendment is not significant.

Accompanying information

(3) A law made under paragraph 5(1)(a.1) or (c), when submitted to the First Nations Tax Commission for approval, shall be accompanied by

Evidence law duly made

(4) A law made under any of paragraphs 5(1)(b) and (d) to (g) that is submitted to the First Nations Tax Commission for approval shall be accompanied by evidence that it was duly made by the council.

Additional information on request

(5) At the request of the First Nations Tax Commission, a First Nation shall provide any documents that the Commission requires in order to

Other revenues laws

8.1 (1) The council of a First Nation may make laws

Coming into force

(2) A law made under subsection (1) comes into force on the later of

Judicial notice

(3) In any proceedings, judicial notice may be taken of laws made under subsection (1).

Statutory Instruments Act

(4) The Statutory Instruments Act does not apply in respect of laws made under subsection (1).

Publication

(5) The First Nation shall publish all laws made under paragraphs (1)(b) and (c) in the First Nations Gazette.

Financial administration laws

9 (1) The council of a First Nation may make laws

Approval required

(2) A law made under subsection (1), including any amendment of such a law, does not have any force or effect until it is approved by the First Nations Financial Management Board.

Conditions for approval

(2.1) The First Nations Financial Management Board shall not approve a law made under subsection (1) unless it was made in accordance with this Act, the regulations and, in all material respects, any standards established under paragraph 55(1)(a).

Coming into force

(3) A law made under subsection (1) comes into force on the later of

Evidence law duly made

(4) A law made under subsection (1) that is submitted to the First Nations Financial Management Board for approval shall be accompanied by evidence that it was duly made by the council.

Additional information on request

(5) At the request of the First Nations Financial Management Board, a First Nation shall provide any documents that the Board requires in order to

Judicial notice

(6) In any proceedings, judicial notice may be taken of a law that is made under subsection (1) and approved by the First Nations Financial Management Board under subsection (2).

Repeal of financial administration law

9.1 A borrowing member shall not repeal a financial administration law made under subsection 9(1) that has been approved by the First Nations Financial Management Board unless that law is replaced by another financial administration law that has been approved by the Board.

Law under paragraph 5(1)(a)

10 (1) A council of a First Nation that makes a property taxation law that requires a rate of tax to be set annually shall also make a law under paragraph 5(1)(a) setting the rate of tax to be applied to the assessed value of each class of lands and interests or rights at least once each year on or before the date prescribed by regulation or, if none is so prescribed, on or before the date fixed by standards established under subsection 35(1).

Law under paragraph 5(1)(b)

(2) A council of a First Nation that makes a property taxation law or that makes a law under paragraph 5(1)(a.1) shall also make a law under paragraph 5(1)(b) establishing a budget for the expenditure of local revenues at least once each year on or before the date prescribed by regulation or, if none is so prescribed, on or before the date fixed by standards established under subsection 35(1).

No repeal by borrowing members

11 (1) A borrowing member with an unpaid loan secured by local revenues shall not repeal a property taxation law or a law made under paragraph 5(1)(a.1) unless

Priority to Authority

(2) A law made under paragraph 5(1)(b) by a borrowing member with an unpaid loan secured by local revenues shall not authorize the expenditure of local revenues unless the borrowing member’s budget provides for the payment of all amounts payable to the First Nations Finance Authority during the budget period.

Financial commitment

(3) A borrowing member with an unpaid loan secured by local revenues shall, in every year, reserve the local revenues that are required to ensure that all amounts authorized to be paid to the First Nations Finance Authority in the year with respect to that loan are actually paid in that year.

Legal capacity of first nations

12 For greater certainty, for the purposes of Part 4, a borrowing member has the capacity to contract and to sue and be sued.

Local revenue account

13 (1) Local revenues of a First Nation shall be placed in a local revenue account with a financial institution, separate from other moneys of the First Nation.

Restriction on expenditures

(2) Local revenues may be expended only under the authority of a law made under paragraph 5(1)(b).

Balanced budget

(3) Expenditures provided for in a law made under paragraph 5(1)(b) shall not exceed the local revenues estimated for the year in which those expenditures are to be made, less any deficit accumulated from prior years.

Expenditure not authorized by law

13.1 Despite subsection 13(2), a First Nation is authorized to make an expenditure of local revenues other than under the authority of a law made under paragraph 5(1)(b) in one of the following circumstances:

Local revenues

14 (1) Local revenues of a First Nation shall be reported on and accounted for separately from other moneys of the First Nation in compliance with the standards established under paragraph 55(1)(d).

Audited reports

(1.1) For the purposes of subsection (1), the First Nation shall prepare a financial report on its local revenues that shall be audited at least once each year. However, if it is authorised by a standard established under paragraph 55(1)(d), the First Nation may instead report on its local revenues in its audited annual financial statements as a distinct segment of the activities that appear in the statements.

Access to report

(2) The audited financial report or the audited annual financial statements, as the case may be, shall be made available to

Reporting of other revenues

14.1 If a First Nation is using other revenues as security for a loan from the First Nations Finance Authority, the First Nation shall account for all of its other revenues — including other revenues that have not been used as security for the loan — separately from its other moneys, and shall provide that accounting information to the Authority and the First Nations Financial Management Board on request.

Non-application of certain provisions

15 Paragraphs 83(1)(a) and (b) to (g) and section 84 of the Indian Act do not apply to a First Nation and any regulations made under paragraph 73(1)(m) of that Act do not apply to a First Nation in respect of the borrowing of money under a law made under paragraph 5(1)(d) or 8.1(1)(a).

PART 1.1
Indigenous Groups

Request for review

15.1 (1) On the request of an Indigenous group, the First Nations Financial Management Board shall review

Additional information

(2) The First Nations Financial Management Board may request the Indigenous group to provide any documents that the Board requires to conduct its review.

Review

(3) The First Nations Financial Management Board shall review the laws, constitution and treaty or self-government agreement referred to in subsection (1) to determine whether they meet the following requirements:

Compliance opinion

(4) If the First Nations Financial Management Board is of the opinion that the requirements of paragraphs (3)(a) and (b) are met, it shall provide a written opinion to that effect to the Indigenous group.

Copies to Board

(5) If, after receipt of an opinion referred to in subsection (4), the Indigenous group makes a law, amends its constitution or has its treaty or self-government agreement amended, the Indigenous group shall, within 60 days after the day on which the law is made or the constitution, treaty or agreement is amended, provide the First Nations Financial Management Board with a copy of the law or the amended constitution, treaty or agreement.

Review of changes

(6) Within 60 days after the day on which the First Nations Financial Management Board receives the copy referred to in subsection (5), the Board shall review the law or the amended constitution, treaty or self-government agreement to decide whether its content materially affects the opinion given under subsection (4) and shall provide the Indigenous group and the First Nations Finance Authority with notice of its decision and the reasons for it.

Laws — Schedule 1

15.2 (1) The laws of an Indigenous group named in Schedule 1 to the First Nations Fiscal Management Act Adaptation Regulations shall satisfy the following conditions:

Laws — Schedule 2

(2) The laws of an Indigenous group named in Schedule 2 to the First Nations Fiscal Management Act Adaptation Regulations shall satisfy the following conditions:

Reporting of other revenues

15.3 If an Indigenous group is using other revenues as security for a loan from the First Nations Finance Authority, the Indigenous group shall account for all of its other revenues — including other revenues that have not been used as security for the loan — separately from its other moneys, and shall provide that accounting information to the Authority and the First Nations Financial Management Board on request.

PART 2
First Nations Tax Commission

Interpretation

Definitions

16 The following definitions apply in this Part.

Commission
means the First Nations Tax Commission. (Commission)
taxpayer
means a person paying taxes or fees under a law made under paragraph 5(1)(a) or (a.1). (contribuable)

Establishment and Organization of Commission

Commission

17 (1) There is hereby established a commission, to be known as the First Nations Tax Commission, consisting of 10 commissioners, including a Chief Commissioner and Deputy Chief Commissioner.

Capacity, rights, powers and privileges

(2) The Commission has the capacity, rights, powers and privileges of a natural person, including the capacity to

When agent of Her Majesty

18 (1) The Commission is an agent of Her Majesty only for the approval of local revenue laws.

Savings

(2) For the purpose of subsection (1), the issuance of a certificate referred to in paragraph 32(2)(b) is deemed not to be an approval of a local revenue law.

Appointment of Chief Commissioner

19 (1) On the recommendation of the Minister, the Governor in Council shall appoint a Chief Commissioner and Deputy Chief Commissioner.

Tenure

(2) The Chief Commissioner and Deputy Chief Commissioner hold office during good behaviour for a term not exceeding five years, subject to removal by the Governor in Council at any time for cause.

Appointment of commissioners

20 (1) On the recommendation of the Minister, the Governor in Council shall appoint four commissioners to hold office during good behaviour for a term not exceeding five years, subject to removal by the Governor in Council at any time for cause.

Appointment of commissioners

(2) On the recommendation of the Minister, the Governor in Council shall appoint three additional commissioners — one of whom shall be a taxpayer using reserve lands for commercial, one for residential and one for utility purposes — to hold office during good behaviour for a term not exceeding five years, subject to removal by the Governor in Council at any time for cause.

Appointment of additional commissioner

(3) A body prescribed by regulation shall appoint an additional commissioner to hold office during pleasure for a term not exceeding five years.

Staggered terms

(4) In determining the term of appointment of commissioners, the Governor in Council shall endeavour to ensure that the terms of no more than three commissioners expire in any one calendar year.

Qualifications

(5) The Commission shall be composed of individuals from across Canada, including members of First Nations, who are committed to the development of First Nations local revenue systems and who have the experience or capacity to enable the Commission to fulfil its mandate.

Status

21 The Chief Commissioner shall hold office on a full-time basis, while the other commissioners shall hold office on a part-time basis.

Reappointment

22 A commissioner may be reappointed for a second or subsequent term of office.

Remuneration

23 (1) Commissioners shall be paid the remuneration determined by the Governor in Council.

Expenses

(2) The Chief Commissioner shall be reimbursed for reasonable travel and other expenses incurred in performing duties while absent from their ordinary place of work. Other Commissioners shall be reimbursed for such expenses incurred in performing duties while absent from their ordinary place of residence.

Chief Commissioner — functions

24 The Chief Commissioner is the chief executive officer of the Commission and has supervision over, and direction of, the work and staff of the Commission.

Deputy Chief Commissioner — functions

25 In the event of the absence or incapacity of the Chief Commissioner, or if the office of Chief Commissioner is vacant, the Deputy Chief Commissioner shall assume the duties and functions of the Chief Commissioner.

Head office

26 (1) The head office of the Commission shall be on the reserve lands of the Tk’emlúps te Secwépemc or at any other location that the Governor in Council determines.

Additional office

(2) The Commission shall maintain an additional office in the National Capital Region described in the schedule to the National Capital Act.

Rules of procedure

27 The Commission may make any rules that it considers necessary for the conduct of, and the fixing of a quorum for, its meetings.

Staff

28 (1) The Commission may

Salaries and benefits

(2) Persons hired under subsection (1) shall be paid the salaries and benefits fixed by the Commission.

Purposes

Mandate

29 The purposes of the Commission are to

Functions and Powers

Powers

30 In furtherance of the purposes set out in section 29, the Commission may enter into cooperative arrangements and shared-cost ventures with national and international organizations to consult on or sell products or services developed for First Nations who have made property taxation laws.

Local revenue law review

31 (1) The Commission shall review every local revenue law.

Written submissions

(2) Before approving a law made under paragraph 5(1)(a), (a.1) or (c), other than a law referred to in subsection 10(1), the Commission shall consider, in accordance with any regulations made under paragraph 36(1)(b), any representations made to it under paragraph 7(b) in respect of the law.

Local revenue law approval

(3) Subject to section 32, the Commission shall approve a local revenue law that complies with this Act and with any standards and regulations made under this Act.

Registry

(4) The Commission shall maintain a registry of every law approved by it under this section and every financial administration law made under section 9.

Restrictions

32 (1) The Commission shall not approve a law made under paragraph 5(1)(d) with respect to a loan referred to in paragraph 74(a) unless

Copy and certificate

(2) On approving a law made by a First Nation under paragraph 5(1)(d) with respect to a loan referred to in paragraph 74(a), the Commission shall provide the First Nations Finance Authority with

Notice of judicial review

(3) If the Commission becomes aware that judicial review proceedings have been undertaken in respect of an approved law referred to in subsection (2), the Commission shall without delay inform the First Nations Finance Authority of those proceedings.

Certificate is evidence

(4) A certificate referred to in paragraph (2)(b) is, in the absence of evidence to the contrary, conclusive evidence in any judicial proceedings of the facts contained in it.

Review on request

33 (1) On the request in writing by a member of a First Nation, or by a person who holds an interest or right in reserve lands, who

the Commission shall conduct a review of the matter in accordance with the regulations.

Independent review

(2) If the Commission is of the opinion that a First Nation has not complied with this Part or a regulation made under this Part or, with respect to local revenues, Part 1 or a regulation made under that Part or that a local revenue law has been unfairly or improperly applied, it shall conduct a review of the matter in accordance with the regulations.

Remedying the situation

(3) If, after conducting a review, the Commission considers that a First Nation has not complied with this Part or a regulation made under this Part or, with respect to local revenues, Part 1 or a regulation made under that Part or that a local revenue law has been unfairly or improperly applied, the Commission

First Nations Gazette

34 (1) All local revenue laws approved by the Commission and all standards and procedures established by the Commission under section 35 shall be published in the First Nations Gazette.

Frequency of publication

(2) The Commission shall publish the First Nations Gazette at least once in each calendar year.

Standards and Procedures

Standards

35 (1) The Commission may establish standards, not inconsistent with the regulations, respecting

Procedures

(2) The Commission may establish procedures respecting

Statutory Instruments Act

(3) The Statutory Instruments Act does not apply to a standard established under subsection (1) or a procedure established under subsection (2).

Data Collection, Analysis and Publication

Functions and powers

35.1 (1) The Commission may, on matters within the scope of its purposes, collect, analyze, abstract and publish data for statistical purposes.

No identifying information

(2) The Commission shall ensure that no First Nation, Indigenous group, entity, including an entity referred to in subsection 50.1(1), or individual can reasonably be identified, whether directly or indirectly, by any means, from any information that the Commission makes publicly available under subsection (1).

Exception

(3) The Commission is not required to comply with subsection (2) if the information is already in the public domain or the First Nation, Indigenous group, entity or individual to whom it relates consents to being identified.

Information sharing agreements

35.2 The Commission may enter into agreements with a First Nation, Indigenous group, entity, including an entity referred to in subsection 50.1(1), or individual or any level of government concerning the sharing of information for research, analysis and publication purposes.

Regulations

Regulations

36 (1) The Governor in Council may, on the recommendation of the Minister made having regard to any representations by the Commission, make regulations

Provincial differences

(2) Regulations made under paragraph (1)(a) may vary from province to province.

Authority to vary

(3) Regulations made under paragraph (1)(b) may authorize the Commission to

Designation of panels by Chief Commissioner

(3.1) Regulations made under paragraph (1)(b) may authorize or require the Chief Commissioner to designate the members of a panel for the purposes of the delegation of powers referred to in paragraph (3)(d).

Inconsistencies

(4) In the event of an inconsistency between a law made under subsection 5(1) and regulations made under subsection (1), the regulations prevail to the extent of the inconsistency.

PART 3
First Nations Financial Management Board

Interpretation

Definition of Board

37 In this Part, Board means the First Nations Financial Management Board.

Establishment and Organization of Board

Establishment

38 (1) There is established a board, to be known as the First Nations Financial Management Board, to be managed by a board of directors consisting of a minimum of nine and a maximum of 13 directors, including a Chairperson and Vice-Chairperson.

Capacity, rights, powers and privileges

(2) The Board has the capacity, rights, powers and privileges of a natural person, including the capacity to

Not agent of Her Majesty

39 The Board is not an agent of Her Majesty.

Appointment of Chairperson

40 On the recommendation of the Minister, the Governor in Council shall appoint a Chairperson to hold office during good behaviour for a term not exceeding five years, subject to removal by the Governor in Council at any time for cause.

Appointment of additional directors

41 (1) The Governor in Council, on the recommendation of the Minister, shall appoint a minimum of five, and a maximum of nine, other directors to hold office during good behaviour for a term not exceeding five years, subject to removal by the Governor in Council at any time for cause.

Indigenous directors

(1.1) The Governor in Council shall endeavour to ensure that the majority of the directors are Indigenous.

Appointment by AFOA Canada

(2) AFOA Canada, or any other body prescribed by regulation, shall appoint up to three additional directors to hold office during pleasure for a term not exceeding five years.

Staggered terms

(3) In determining the term of appointment of directors, the Governor in Council shall endeavour to ensure that the terms of no more than three directors expire in any one calendar year.

Qualifications

(4) The board of directors shall be composed of individuals from across Canada, including members of First Nations, who are committed to the strengthening of the financial management of First Nations, of Indigenous groups or of entities referred to in paragraphs 50.1(1)(a) to (c) and who have the experience or capacity to enable the Board to fulfil its mandate.

Election of Vice-Chairperson

42 (1) The board of directors shall elect a Vice-Chairperson from among the directors.

Functions

(2) In the event of the absence or incapacity of the Chairperson, or if the office of Chairperson is vacant, the Vice-Chairperson shall assume the duties and functions of the Chairperson.

Reappointment

43 Directors may be reappointed for a second or subsequent term of office.

Status

44 The Chairperson shall hold office on a full-time basis and the other directors shall hold office on a part-time basis.

Remuneration

45 (1) Directors shall be paid the remuneration determined by the Governor in Council.

Expenses

(2) The Chairperson shall be reimbursed for reasonable travel and other expenses incurred in performing duties while absent from their ordinary place of work. Other directors shall be reimbursed for such expenses incurred in performing duties while absent from their ordinary place of residence.

Rules of procedure

46 The board of directors may make any rules that it considers necessary for the conduct of its meetings.

Head office

47 The head office of the Board shall be at a location determined by the Governor in Council.

Staff

48 (1) The board of directors may

Salaries and benefits

(2) Persons hired under subsection (1) shall be paid the salary and benefits fixed by the board of directors.

Purposes

Mandate

49 The purposes of the Board are to

Functions and Powers

Review of financial management system

50 (1) On the request of the council of a First Nation or the request of an Indigenous group, the Board may review the First Nation’s or Indigenous group’s financial management system or financial performance for compliance with the standards established under subsection 55(1).

Report

(2) On completion of a review under subsection (1), the Board shall provide to the First Nation or Indigenous group a report setting out

Issuance of certificate

(3) If after completing a review under subsection (1) the Board is of the opinion that the First Nation or Indigenous group was in compliance, in all material respects, with the standards, it shall issue to the First Nation or Indigenous group a certificate to that effect.

Revocation of certificate

(4) The Board may, on giving notice to a council of a First Nation or to an Indigenous group, revoke a certificate issued under subsection (3) if, on the basis of financial or other information available to the Board, it is of the opinion that

Form and content

(5) The Board may determine the form and content of certificates issued under subsection (3), including any restrictions as to the purposes for which, and the persons by whom, they are intended to be used.

Remedial measures required

(6) If a borrowing member’s certificate is revoked, the borrowing member shall, without delay, take any measures required to re-establish its certification.

Opinion final

(7) An opinion of the Board referred to in this section is final and conclusive and is not subject to appeal.

Review and monitoring

50.01 (1) On the request of a First Nation or Indigenous group or under the terms of an agreement between a First Nation and any level of government, the Board may review or monitor

Report

(2) On completion of a review, or from time to time while carrying out monitoring, the Board shall provide to the First Nation or Indigenous group a report setting out its findings and any recommendations.

Procedures

(3) The Board may establish procedures respecting

Statutory Instruments Act

(4) The Statutory Instruments Act does not apply in respect of procedures established under subsection (3).

Review of financial management system — non-scheduled entities

50.1 (1) On the request of any of the following entities, the Board may review the entity’s financial management system, financial performance or laws or by-laws respecting financial administration to determine whether it is in compliance, in all material respects, with the standards established under subsection (3):

Report

(2) On completion of a review under subsection (1), the Board shall provide to the entity a report setting out

Standards

(3) The Board may establish standards, not inconsistent with the regulations, respecting

Procedures

(4) The Board may establish procedures respecting the review referred to in subsection (1).

Statutory Instruments Act

(5) The Statutory Instruments Act does not apply to a standard established under subsection (3) or a procedure established under subsection (4).

First Nations Gazette

(6) All standards established by the Board under subsection (3) shall be published in the First Nations Gazette.

Review and monitoring

50.2 (1) On the request of an entity referred to in subsection 50.1(1) or under the terms of an agreement between such an entity and any level of government, the Board may review or monitor

Report

(2) On completion of a review, or from time to time while carrying out monitoring, the Board shall provide to the entity a report setting out its findings and any recommendations.

Procedures

(3) The Board may establish procedures respecting

Statutory Instruments Act

(4) The Statutory Instruments Act does not apply in respect of procedures established under subsection (3).

Required intervention — local revenues

51 (1) On receipt of a notice from the First Nations Tax Commission under paragraph 33(3)(b) or from the First Nations Finance Authority under subsection 86(4), the Board shall either require the First Nation to enter into a co-management arrangement in accordance with section 52 or assume third-party management in accordance with section 53, as the Board sees fit.

Required intervention — other revenues of a First Nation

(2) On receipt of a notice from the First Nations Finance Authority under subsection 86(5) in relation to a First Nation, the Board shall either require the First Nation to enter into a co-management arrangement in accordance with section 52.1 or assume third-party management in accordance with section 53.1, as the Board sees fit.

Required intervention — other revenues of an Indigenous group

51.1 On receipt of a notice from the First Nations Finance Authority under subsection 86(5) in relation to an Indigenous group, the Board shall either require the Indigenous group to enter into a co-management arrangement in accordance with section 52.2 or assume third-party management in accordance with section 53.2, as the Board sees fit.

Imposed co-management — local revenues

52 (1) The Board may, on giving notice to the council of a First Nation, require the First Nation to enter into a co-management arrangement in respect of the First Nation’s local revenues, including its local revenue account,

Powers

(2) Under the co-management arrangement, the Board may

Termination by Board

(3) The Board may terminate the co-management arrangement on giving notice to the council of the First Nation that the Board is of the opinion that

Opinion final

(4) An opinion given by the Board under this section is final and conclusive and is not subject to appeal.

Notice

(5) The Board shall advise the First Nations Finance Authority and the First Nations Tax Commission of the commencement or termination of the co-management arrangement.

Imposed co-management — other revenues of a First Nation

52.1 (1) The Board may, on giving notice to the council of a First Nation, require the First Nation to enter into a co-management arrangement in respect of the First Nation’s other revenues, including those that have not been used as security for a loan from the First Nations Finance Authority,

Powers

(2) Under the co-management arrangement, the Board may

Termination by Board

(3) The Board may terminate the co-management arrangement on giving notice to the council of the First Nation that the Board is of the opinion that

Opinion final

(4) An opinion given by the Board under this section is final and conclusive and is not subject to appeal.

Notice

(5) The Board shall advise the First Nations Finance Authority and the First Nations Tax Commission of the commencement or termination of the co-management arrangement.

Imposed co-management — other revenues of an Indigenous group

52.2 (1) The Board may, on giving notice to an Indigenous group, require the Indigenous group to enter into a co-management arrangement in respect of the Indigenous group’s other revenues, including those that have not been used as security for a loan from the First Nations Finance Authority,

Powers

(2) Under the co-management arrangement, the Board may

Termination by Board

(3) The Board may terminate the co-management arrangement on giving notice to the Indigenous group that the Board is of the opinion that

Opinion final

(4) An opinion given by the Board under this section is final and conclusive and is not subject to appeal.

Notice

(5) The Board shall advise the First Nations Finance Authority and the First Nations Tax Commission of the commencement or termination of the co-management arrangement.

Third-party management — local revenues

53 (1) The Board may, on giving notice to the council of a First Nation and to the Minister, assume management of the First Nation’s local revenues, including its local revenue account,

Powers

(2) If the Board assumes third-party management of the local revenues of a First Nation, the Board has the exclusive authority to

Delegation — consent of council required

(3) The Board shall not make a law under paragraph 5(1)(f) or 9(1)(b) that delegates a power to a person or body to whom a power was not delegated at the time the Board assumed third-party management of the local revenues of a First Nation, unless the council of the First Nation gives its consent.

Prohibition

(4) The council of the First Nation shall not, during the time that the board assumes third-party management of the First Nation’s local revenues, repeal any law made under paragraph 5(1)(g).

Review every six months

(5) Where the Board has assumed third-party management of a First Nation’s local revenues, it shall review the need for third-party management at least once every six months and advise the First Nations Finance Authority, the First Nations Tax Commission and the council of the First Nation of the results of its review.

Board not agent or mandatary

(5.1) For greater certainty, the Board is not an agent or mandatary of the First Nations Finance Authority or the First Nations Tax Commission while exercising its exclusive authority under subsection (2).

Termination by Board

(6) The Board may terminate third-party management of a First Nation’s local revenues, on giving notice to the council of the First Nation, if

Opinion final

(7) An opinion given by the Board under this section is final and conclusive and is not subject to appeal.

Notice

(8) The Board shall advise the First Nations Finance Authority and First Nations Tax Commission of the assumption or termination of third-party management of a First Nation’s local revenues.

Third-party management — other revenues of a First Nation

53.1 (1) The Board may, on giving notice to the council of a First Nation and to the Minister, assume management of the First Nation’s other revenues, including those that have not been used as security for a loan from the First Nations Finance Authority,

Powers

(2) If the Board assumes third-party management of the other revenues of a First Nation, the Board has the exclusive authority to

Scope of power

(3) In exercising the authority referred to in subparagraph (2)(b)(ii), the Board may manage other revenues of a First Nation that were received before, or that are received after, the Board assumes management of the First Nation’s other revenues, including those that are comingled with other moneys of the First Nation. However, the Board may not manage the First Nation’s other revenues that are in a secured revenues trust account or an intermediate account.

Board not agent or mandatary

(4) For greater certainty, the Board is not an agent or mandatary of the First Nations Finance Authority while exercising its exclusive authority under subsection (2).

Delegation — consent of council required

(5) The Board shall not make a law under paragraph 8.1(1)(b) or 9(1)(b) that delegates a power to a person or body to whom a power was not delegated at the time the Board assumed third-party management of the other revenues of a First Nation, unless the council of the First Nation gives its consent.

Prohibition

(6) The council of a First Nation shall not, during the time that the Board assumes third-party management of the First Nation’s other revenues, repeal any law made under paragraph 8.1(1)(c).

Review every six months

(7) If the Board has assumed third-party management of a First Nation’s other revenues, it shall review the need for third-party management at least once every six months and advise the First Nations Finance Authority, the First Nations Tax Commission and the council of the First Nation of the results of its review.

Termination by Board

(8) The Board may terminate third-party management of a First Nation’s other revenues, on giving notice to the council of the First Nation, if

Opinion final

(9) An opinion given by the Board under this section is final and conclusive and is not subject to appeal.

Notice

(10) The Board shall advise the First Nations Finance Authority and First Nations Tax Commission of the assumption or termination of third-party management of a First Nation’s other revenues.

Third-party management — other revenues of an Indigenous group

53.2 (1) The Board may, on giving notice to an Indigenous group, assume management of the Indigenous group’s other revenues, including those that have not been used as security for a loan from the First Nations Finance Authority,

Powers

(2) If the Board assumes third-party management of the other revenues of an Indigenous group, the Board has the exclusive authority to

Law-making

(3) If the Board makes a law under paragraph (2)(a) in relation to an Indigenous group named in Schedule 2 to the First Nations Fiscal Management Act Adaptation Regulations,

Scope of power — (2)(b)(ii)

(4) In exercising the authority referred to in subparagraph (2)(b)(ii), the Board may manage other revenues of an Indigenous group that were received before, or that are received after, the Board assumes management of the Indigenous group’s other revenues, including those that are comingled with other moneys of the Indigenous group. However, the Board may not manage the Indigenous group’s other revenues that are in a secured revenues trust account or an intermediate account.

Restriction on power — (2)(b)(iii) and (v)

(5) In exercising the authority referred to in subparagraph (2)(b)(iii) or (v), the Board may not cause the disposition of real property or immovables without written approval of the Indigenous group.

Board not agent or mandatary

(6) For greater certainty, the Board is not an agent or mandatary of the First Nations Finance Authority while exercising its exclusive authority under subsection (2).

Review every six months

(7) If the Board has assumed third-party management of an Indigenous group’s other revenues, it shall review the need for third-party management at least once every six months and advise the First Nations Finance Authority, the First Nations Tax Commission and the Indigenous group of the results of its review.

Termination by Board

(8) The Board may terminate third-party management of an Indigenous group’s other revenues, on giving notice to the Indigenous group, if

Opinion final

(9) An opinion given by the Board under this section is final and conclusive and is not subject to appeal.

Notice

(10) The Board shall advise the First Nations Finance Authority and First Nations Tax Commission of the assumption or termination of third-party management of an Indigenous group’s other revenues.

Required information — First Nation

54 At the request of the Board, a First Nation shall provide to the Board any information about the First Nation’s financial management system and financial performance that the Board requires for a decision regarding a co-management arrangement or third-party management of the First Nation’s local revenues or other revenues.

Required information — Indigenous group

54.1 At the request of the Board, an Indigenous group shall provide to the Board any information about the Indigenous group’s financial management system and financial performance that the Board requires for a decision regarding a co-management arrangement or third-party management of the Indigenous group’s other revenues.

Standards and Procedures

Standards

55 (1) The Board may establish standards, not inconsistent with the regulations, respecting

Procedures

(2) The Board may establish procedures respecting

Statutory Instruments Act

(3) The Statutory Instruments Act does not apply to a standard established under subsection (1) or a procedure established under subsection (2).

First Nations Gazette

(4) All laws made under section 9 and approved by the Board and all standards established by the Board under subsection (1) shall be published in the First Nations Gazette.

Data Collection, Analysis and Publication

Functions and powers

55.1 (1) The Board may, on matters within the scope of its purposes, collect, analyze, abstract and publish data for statistical purposes.

No identifying information

(2) The Board shall ensure that no First Nation, Indigenous group, entity, including an entity referred to in subsection 50.1(1), or individual can reasonably be identified, whether directly or indirectly, by any means, from any information that the Board makes publicly available under subsection (1).

Exception

(3) The Board is not required to comply with subsection (2) if the information is already in the public domain or the First Nation, Indigenous group, entity or individual to whom it relates consents to being identified.

Information sharing agreements

55.2 The Board may enter into agreements with a First Nation, Indigenous group, entity, including an entity referred to in subsection 50.1(1), or individual or any level of government concerning the sharing of information for research, analysis and publication purposes.

Regulations

Regulations

56 The Governor in Council may, on the recommendation of the Minister made having regard to any representations by the Board, make regulations

Regulations

56.1 For the purpose of enabling an entity referred to in any of paragraphs 50.1(1)(a) to (e) to obtain the services of the Board, other than co-management and third-party management services, the Governor in Council may make any regulations that the Governor in Council considers necessary, including regulations

PART 4
First Nations Finance Authority

Interpretation

Definitions

57 The following definitions apply in this Part.

Authority
means the First Nations Finance Authority. (Administration)
investing member
means a First Nation or Indigenous group that has invested in a short-term investment pool managed by the Authority. (membre investisseur)
member
means a borrowing member or investing member. (membre)
property tax revenues
means moneys raised under laws made under paragraphs 5(1)(a) and (a.1) and payments made to a First Nation in lieu of a tax imposed by a law made under paragraph 5(1)(a). (recettes fiscales foncières)
representative
means
  • (a) in respect of a First Nation that is a member, the chief or a councillor of the First Nation who is designated as a representative by a resolution of its council; and
  • (b) in respect of an Indigenous group that is a member, the person who is elected to, or is otherwise a member of, a governing body of the Indigenous group and is designated in writing by that governing body as the Indigenous group’s representative. (représentant)
security
means a security of the Authority issued under paragraph 75(1)(b). (titre)

Establishment and Organization of Authority

Establishment

58 There is hereby established a non-profit corporation without share capital, to be known as the First Nations Finance Authority.

Membership

59 The members of the Authority shall be its borrowing members and investing members.

Not agent of Her Majesty

60 (1) The Authority is not an agent of Her Majesty or a Crown corporation within the meaning of the Financial Administration Act, and its officers and employees are not part of the federal public administration.

No guarantees

(2) No person shall give a guarantee on behalf of Her Majesty for the discharge of an obligation or liability of the Authority.

Board of Directors

61 (1) The Authority shall be managed by a board of directors, consisting of from 5 to 11 directors, including a Chairperson and Deputy Chairperson, elected from among the representatives of borrowing members.

Nomination of directors

(2) A representative of a borrowing member may nominate a representative of a borrowing member for election as Chairperson or Deputy Chairperson or as a director other than the Chairperson or Deputy Chairperson.

Election of directors

(3) Directors shall be elected by representatives of borrowing members.

Function of Deputy Chairperson

62 In the event of the absence or incapacity of the Chairperson, or if the office of Chairperson is vacant, the Deputy Chairperson shall assume the duties and functions of the Chairperson.

Term of office

63 (1) Directors shall hold office on a part-time basis for a term of one year.

Additional terms

(2) A director is eligible to be re-elected for a second or subsequent term of office.

Ceasing to be director

(3) A person ceases to be a director when

Quorum

64 Two thirds of the directors constitute a quorum at any meeting of the board of directors.

Majority vote

65 Decisions by the board of directors shall be made by a majority vote of the directors present.

Canada Not-for-profit Corporations Act

66 (1) The Canada Not-for-profit Corporations Act does not apply to the Authority.

Canada Business Corporations Act

(2) The following provisions of the Canada Business Corporations Act apply, with any modifications that the circumstances require, to the Authority and its directors, members, officers and employees as if the Authority were a corporation incorporated under that Act, this Part were its articles of incorporation and its members were its shareholders:

Remuneration of directors

67 Directors shall be paid a fee for attendance at meetings of the board of directors, as fixed by the by-laws of the Authority.

Duty of care

68 (1) The directors and officers of the Authority in exercising their powers and performing their duties shall

Limit of liability

(2) Directors and officers are not liable for a failure to comply with subsection (1) if they rely in good faith on

President

69 (1) The board of directors shall appoint a President to act as the chief executive officer of the Authority.

Other staff

(2) The President may employ any other officers and employees that are necessary to conduct the work of the Authority.

Annual general meeting

70 The Authority shall hold an annual general meeting of representatives for the purpose of

By-laws

71 The board of directors may make by-laws

Head office

72 The head office of the Authority shall be on reserve lands at a location determined by the board of directors.

Annual budget

73 At the beginning of every year, the President shall prepare an annual budget of the Authority and present it to the board of directors for approval.

Purposes

Mandate

74 The purposes of the Authority are to

Functions and Powers

Powers of board of directors

75 (1) For the purposes of this Part, the board of directors may by resolution

Security issuance requirements

(2) A resolution respecting the issuance of securities shall set out

Security issuance resolutions

(3) A resolution respecting the issuance of securities may provide that

Amount of issue

(4) The Authority may issue securities the principal amounts of which, after payment of any discount and the costs of issue and sale, will realize the net amount authorized by the board of directors in a resolution made under paragraph (1)(a).

Declaration conclusive

(5) A declaration in a resolution authorizing the issuance of securities that it is necessary to issue securities in the principal amount authorized in order to realize the net amount authorized is conclusive evidence of that fact.

Sale price

(6) The board of directors may sell securities at their par value or at other than par value.

Delegation

(7) The board of directors may delegate its powers under this section to a committee of directors and officers of the Authority, subject to any limitations that the board of directors may impose.

Application to become borrowing member

76 (1) A First Nation or Indigenous group may apply to the Authority to become a borrowing member.

Criteria — First Nations

(2) The Authority shall accept a First Nation as a borrowing member only if the First Nations Financial Management Board has issued to the First Nation a certificate in respect of their financial performance under subsection 50(3) and has not subsequently revoked it.

Criteria — Indigenous groups

(3) The Authority shall accept an Indigenous group as a borrowing member only if

Ceasing to be borrowing member

77 A borrowing member that has obtained a loan from the Authority may cease to be a borrowing member only with the consent of all other borrowing members.

Priority

78 (1) If a borrowing member is insolvent, the Authority has priority over all other creditors of the borrowing member for all moneys that are authorized or obligated to be paid to the Authority under a law made by the borrowing member, under this Act, including under the regulations, or under an agreement relating to borrowing from the Authority, but the priority is only in respect of any debt that arises on or after the day on which the borrowing member receives the initial disbursement of the first loan that it obtained from the Authority.

Debts to the Crown

(2) For greater certainty, subsection (1) does not apply to Her Majesty.

Limitations — loans secured by property tax revenues

79 (1) The Authority shall not make a loan secured by property tax revenues to a borrowing member unless the First Nations Tax Commission has approved a law made by the borrowing member under paragraph 5(1)(d) in respect of that loan.

Limitations — First Nation loans secured by other revenues

(2) The Authority shall not make a loan secured by other revenues to a borrowing member that is a First Nation unless

Limitations — Indigenous group loans secured by other revenues

(3) The Authority shall not make a loan secured by other revenues to a borrowing member that is an Indigenous group unless

Maintenance of registry and publication

79.1 The Authority shall maintain a registry of every law that is forwarded to it under paragraph 79(2)(a) or (3)(a) and shall publish a copy of each law on an Internet website to be maintained by the Authority within 30 days after the day on which it is received.

Restriction

80 A borrowing member that has obtained a loan from the Authority that is secured by property tax revenues and has a term of one year or longer shall not subsequently obtain such a loan from any other person as long as the loan from the Authority remains unpaid.

Limitations — short-term loans

81 The Authority shall not make a loan that has a term of less than one year to a borrowing member for a purpose described in subparagraph 74(a)(ii) unless the loan is made in anticipation of local revenues set out in a law made by the borrowing member under paragraph 5(1)(b).

Sinking fund

82 (1) The Authority shall establish a sinking fund, or any other system of repayment prescribed by regulation, to fulfil its repayment obligations to the holders of each security issued by the Authority.

Separate accounts

(2) Where a sinking fund is established, a separate sinking fund account shall be kept for each borrowing member participating in a security issued by the Authority.

Sinking fund investments

(3) Funds in a sinking fund may be invested only in

Surpluses

83 (1) The Authority may declare a surplus in a sinking fund and use the surplus, in order of priority, to

Recovery from sinking fund

(2) The Authority may recover fees payable by a borrowing member from any surplus to be distributed to that member under paragraph (1)(b).

Debt reserve fund

84 (1) The Authority shall establish a debt reserve fund to make payments or sinking fund contributions for which insufficient moneys are available from borrowing members.

Provisioning of fund

(2) The Authority shall withhold — and deposit in the debt reserve fund — 5% of the amount of any loan.

Percentage withheld may be reduced by board

(2.1) However, the board of directors may, by resolution, reduce the percentage to be withheld from a loan under subsection (2) to a percentage that is not less than 1%, if the board of directors is satisfied that doing so would not have a negative impact on the Authority’s credit rating.

Separate account

(3) A separate account shall be kept for each security issued and for each borrowing member contributing to the debt reserve fund.

Investments

(4) The funds of the debt reserve fund may be invested only in securities, investments or deposits referred to in paragraph 82(3)(a), (c) or (d) that mature or are callable within five years, 25% of which must be callable within 90 days.

Liability for shortfall

(5) The following rules apply if payments from the debt reserve fund reduce its balance:

Repayment

(6) Money contributed by a borrowing member to the debt reserve fund, and any investment income received on it, that has not already been repaid to the borrowing member by the Authority shall be repaid when all obligations in respect of the security for which the money was contributed have been satisfied.

Credit enhancement fund

85 (1) The Authority shall establish a fund for the enhancement of the Authority’s credit rating.

Investments

(2) The funds of the credit enhancement fund may be invested only in securities, investments or deposits referred to in paragraph 82(3)(a), (c) or (d) that mature or are callable within five years, 25% of which must be callable within 90 days.

Investment income

(3) Investment income from the credit enhancement fund may be used

Capital

(4) The capital of the credit enhancement fund may be used

Repayment to credit enhancement fund

(5) Any funds that are paid from the credit enhancement fund to offset a shortfall in the debt reserve fund shall be repaid by that debt reserve fund within 18 months after the day on which the funds are paid or, if more than one payment of funds is made, within 18 months after the day on which the first payment is made. After the expiry of that 18-month period, no further funds shall be paid from the credit enhancement fund to that debt reserve fund unless it has been fully replenished under section 84.

Default

86 (1) If a borrowing member fails to make a payment to the Authority, to fulfil any other obligation under a borrowing agreement with the Authority or to pay a charge imposed by the Authority under this Part, the Authority shall

Requirement for report

(2) If a failure referred to in subsection (1) relates to an obligation other than payment, the Authority may require that the First Nations Financial Management Board review and report on the reasons for the failure.

Report

(3) On receipt of a notice referred to in paragraph (1)(b) in respect of a failure related to an obligation other than payment, the First Nations Financial Management Board shall advise the Authority in writing of its opinion on the reasons for the failure and recommend any intervention under section 52 or 53, in the case of an obligation relating to a loan secured by local revenues, or under section 52.1, 52.2, 53.1 or 53.2, in the case of an obligation relating to a loan secured by other revenues, that it considers appropriate. The Board must provide a copy of the report including its opinion and any recommendations to the First Nations Tax Commission.

Required intervention

(4) The Authority may, by notice in writing, require the First Nations Financial Management Board to either — at the Board’s discretion — impose a co-management arrangement on a borrowing member in respect of its local revenues or assume third-party management of its local revenues

Required intervention

(5) The Authority may, by notice in writing, require the First Nations Financial Management Board to either — at the Board’s discretion — impose a co-management arrangement on a borrowing member in respect of its other revenues or assume third-party management of its other revenues

Copy to Commission

(6) The Authority must provide a copy of the notices referred to in subsections (4) and (5) to the First Nations Tax Commission.

Short-term pooled investment funds

87 (1) The Authority may establish short-term pooled investment funds.

Investments

(2) Funds in a short-term pooled investment fund may be invested only in

General

Annual report

88 (1) The Chairperson shall, within four months after the end of each fiscal year, submit to the Authority’s members and the Minister a report of the operations of the Authority for that fiscal year.

Contents

(2) The annual report shall include the financial statements of the Authority and its auditor’s opinion on them.

Assignment — revenues payable by Her Majesty

88.1 (1) Despite section 67 of the Financial Administration Act and anything else in federal or provincial law, a borrowing member may, for the purposes of paragraph 74(b) or (b.1), assign the rights to any of the other revenues referred to in that paragraph that are payable to the borrowing member by Her Majesty in right of Canada.

Assignment not binding

(2) An assignment referred to in subsection (1) is not binding on Her Majesty in right of Canada and, without limiting the generality of the foregoing,

Regulations

Regulations

89 The Governor in Council may, on the recommendation of the Minister after consultation by the Minister with the Authority, make regulations

PART 5
Payment of Moneys

Council resolution

90 (1) The council of a First Nation may submit to the Minister a resolution of the council requesting the payment to the First Nation of

Information to accompany resolution

(2) The resolution shall be accompanied by proof that

Approval by members

91 (1) If the council of a First Nation intends to request the payment of moneys under subsection 90(1), the council shall conduct a vote among the First Nation’s eligible voters on the approval of the payment of the moneys.

Eligible voters

(2) Every First Nation member, whether resident on a reserve of the First Nation or not, is an eligible voter if the member is at least 18 years old on the date of the vote.

Independent legal and financial advice

(3) Before conducting the vote under subsection (1), the council shall obtain independent legal advice and independent financial advice with respect to the risks of the payment of the moneys to the First Nation.

Information to be provided

(4) Before conducting the vote under subsection (1), the council shall also take reasonable measures that are in accordance with the First Nation’s practices to inform eligible voters of

Majority approval

(5) The payment of the moneys to the First Nation is approved if a majority of eligible voters who participated voted to approve the payment.

Minimum participation

(6) Despite subsection (5), the payment is not approved unless at least 25% of all eligible voters participated in the vote.

Increased percentage

(7) The council may, by resolution adopted before the vote, increase the percentage of eligible voters required under subsection (6).

Initial payment of moneys

92 (1) After the resolution is submitted to the Minister by the council of the First Nation under subsection 90(1), the moneys held by Her Majesty for the First Nation’s use and benefit shall be paid to the First Nation out of the Consolidated Revenue Fund, if the Minister is satisfied that

Subsequent payment

(2) Following a payment of moneys under subsection (1), all moneys subsequently collected or received by Her Majesty for the use and benefit of the First Nation shall be paid out of the Consolidated Revenue Fund to the First Nation.

Subsection (2) ceases to apply

(3) Subsection (2) shall cease to apply if the law referred to in paragraph (1)(a) is repealed, and at the time of its repeal, it is not concurrently replaced by a law respecting the financial administration of the First Nation made under paragraph 9(1)(a) that has been approved by the First Nations Financial Management Board.

Liability for future management

93 Following the payment of moneys under section 92, Her Majesty is not liable for the management of those moneys.

Past liability

94 This Act does not affect the liability of Her Majesty or a First Nation for any act or omission in respect of moneys occurring before a payment referred to in section 93.

Indian Act

95 Sections 61 to 69 of the Indian Act do not apply in respect of moneys paid to a First Nation under section 92 of this Act.

PART 5.1
First Nations Powers Respecting Services

Definition of service

96 In this Part, service
means a service provided on reserve lands by or on behalf of a First Nation, including in relation to the provision of water, wastewater management, drainage, waste management, animal control, recreation, transportation, telecommunications and energy.

Laws respecting the provision of services

97 (1) The council of a First Nation may make laws respecting the provision of services and respecting infrastructure located on the First Nation’s reserve lands that is used in the provision of those services, including laws

For greater certainty

(2) For greater certainty, laws made under subsection (1) apply only on the reserve lands of the First Nation that made the laws.

Non-compliance with measure

(3) If a person or entity is not complying with a measure referred to in subparagraph (1)(c)(i) or (ii), the First Nation may take appropriate corrective measures at the expense of the person or entity.

Application to competent court

(4) The First Nation may apply to a court of competent jurisdiction for an order directing a person or entity named in the application to comply with a law made under subsection (1), such as by

Enforcement — Framework Agreement on First Nation Land Management Act

(5) If a First Nation has adopted a land code as defined in subsection 2(2) of the Framework Agreement on First Nation Land Management Act or the council of a First Nation has enacted a First Nation law as defined in subsection 2(1) of that Act, the First Nation may use any enforcement measure — other than a measure for the investigation or prosecution of an offence punishable on summary conviction referred to in paragraph 19.1(a) of the Framework Agreement, as defined in subsection 2(1) of that Act — that is provided for in that land code or First Nation law to enforce a law made under subsection (1).

Regulations

(6) The Governor in Council may, on the recommendation of the Minister made having regard to any representations by the First Nations Infrastructure Institute, make regulations prescribing anything that is to be prescribed under paragraph (1)(c).

Publication

(7) The First Nation shall publish all laws made under subsection (1) in the First Nations Gazette and provide a copy of a law made under that subsection on request.

Coming into force

98 A law made under subsection 97(1) comes into force on the later of

Judicial notice

99 In any proceedings, judicial notice may be taken of a law made under subsection 97(1).

Statutory Instruments Act

100 The Statutory Instruments Act does not apply in respect of a law made under subsection 97(1).

PART 5.2
First Nations Infrastructure Institute

Definition

Definition of Institute

101 In this Part, Institute
means the First Nations Infrastructure Institute.

Establishment and Organization of Institute

Establishment

102 (1) There is established an institute, to be known as the First Nations Infrastructure Institute, to be managed by a board of directors consisting of ten directors, including a Chairperson and Vice-Chairperson.

Capacity, rights, powers and privileges

(2) The Institute has the capacity, rights, powers and privileges of a natural person, including the capacity to

Not agent of His Majesty

103 The Institute is not an agent of His Majesty in right of Canada.

Appointment of first directors

104 On the recommendation of the Minister, the Governor in Council shall appoint the first ten directors of the board of directors, including a Chairperson, who are to hold office during good behaviour for a term not exceeding five years, subject to removal by the Governor in Council at any time for cause.

Appointment of subsequent directors — Governor in Council

105 (1) On the recommendation of the Minister, the Governor in Council shall appoint three directors, including a Chairperson, to hold office during good behaviour for a term not exceeding five years, subject to removal by the Governor in Council at any time for cause.

Committee to advise Minister

(2) The Minister may establish a committee to advise the Minister on the appointment of directors, other than the Chairperson, under subsection (1). This committee is to include representation from the board of directors.

Appointment of subsequent directors — prescribed bodies

(3) One or more bodies prescribed by regulation shall, in accordance with any rules and procedures established by the board of directors and subject to subparagraph 113(b)(ii), appoint seven additional directors to hold office during good behaviour for a term not exceeding five years, subject to removal by the board under section 108.

Qualifications

106 The board of directors shall be composed of individuals from across Canada, including members of First Nations, who are committed to improving infrastructure outcomes for First Nations, Indigenous groups and entities referred to in subsection 50.1(1) and who have the experience or capacity to enable the Institute to fulfil its mandate.

Election of Vice-Chairperson

107 The board of directors shall elect a Vice-Chairperson from among the directors.

Removal of directors

108 The board of directors may remove a director appointed under subsection 105(3) for cause at any time in accordance with the rules and procedures established under subparagraph 113(b)(i).

Reappointment

109 (1) Directors may be reappointed for a second or subsequent term of office.

Continuation in office

(2) Despite subsections 105(1) and (3), an appointed director continues to hold office until they are reappointed or their successor is appointed.

Status

110 The Chairperson shall hold office on a full-time basis and the other directors shall hold office on a part-time basis.

Remuneration

111 (1) Directors shall be paid the remuneration determined by the Governor in Council.

Expenses

(2) The Chairperson shall be reimbursed for reasonable travel and other expenses incurred in performing duties while absent from their ordinary place of work. Other directors shall be reimbursed for such expenses incurred in performing duties while absent from their ordinary place of residence.

Chairperson — functions

112 (1) The Chairperson is the chief executive officer of the Institute and has supervision over, and direction of, the work and staff of the Institute.

Interim Chairperson

(2) In the event of the absence or incapacity of the Chairperson, the Vice-Chairperson shall assume the duties and functions of the Chairperson.

Powers of the board

113 The board of directors may

Head office

113.1 The head office of the Institute shall be on reserve lands at a location determined by the board of directors.

Staff

113.2 (1) The board of directors may

Salaries and benefits

(2) Persons hired under subsection (1) shall be paid the salary and benefits fixed by the board of directors.

Purposes

Mandate

113.3 The purposes of the Institute are to

Functions and Powers

Powers

113.4 (1) In furtherance of its purposes, the Institute may enter into partnerships, agreements and other arrangements with local, regional, national and international organizations to provide services to First Nations, Indigenous groups and entities referred to in subsection 50.1(1).

Provision of services

(2) On the request of a First Nation, an Indigenous group or an entity referred to in subsection 50.1(1), the Institute may provide services relating to its purposes to that First Nation, Indigenous group or entity, including

Review of infrastructure project

113.5 (1) On the request of a First Nation, an Indigenous group or an entity referred to in subsection 50.1(1), the Institute may review an infrastructure project, or any aspect of an infrastructure project, involving that First Nation, Indigenous group or entity for compliance with the standards established under subsection 113.8(1).

Report

(2) On completion of the review, the Institute shall provide to the First Nation, Indigenous group or entity a report setting out

Issuance of certificate

(3) If after completing the review the Institute is of the opinion that the infrastructure project, or the reviewed aspect, was in compliance, in all material respects, with the standards, it shall issue to the First Nation, Indigenous group or entity a certificate to that effect.

Revocation of certificate

(4) The Institute may, on giving notice to the First Nation, Indigenous group or entity, revoke the First Nation’s, the Indigenous group’s or the entity’s certificate if, on the basis of information available to the Institute, it is of the opinion that the certificate was issued on the basis of incomplete or incorrect information.

Form and content

(5) The Institute may determine the form and content of certificates issued under subsection (3), including any restrictions as to the purposes for which, and the persons by whom, they are intended to be used.

Opinion final

(6) An opinion of the Institute referred to in this section is final and conclusive and is not subject to appeal.

Review for continued compliance

113.6 (1) On the request of a First Nation, an Indigenous group or an entity referred to in subsection 50.1(1), or under the terms of an agreement between any level of government and the First Nation, Indigenous group or entity, the Institute may review an infrastructure project, or any aspect of an infrastructure project, for which it has issued a certificate under subsection 113.5(3) for continued compliance with the standards established under subsection 113.8(1).

Report

(2) On completion of the review, the Institute shall provide to the First Nation, Indigenous group or entity a report setting out the scope of its review and its findings and any recommendations.

Report final

(3) The content of the report is final and conclusive and is not subject to appeal.

Review of First Nation laws

113.7 (1) On the request of a First Nation, the Institute may review any law made by the council under subsection 97(1) for compliance with the standards established under subsection 113.8(1).

Notification of compliance

(2) If after completing the review the Institute is of the opinion that the law is in compliance, in all material respects, with the standards, it shall notify the First Nation of its opinion in writing.

Standards and Procedures

Standards

113.8 (1) The Institute may establish standards, not inconsistent with the regulations, respecting

Procedures

(2) The Institute may establish procedures respecting

Statutory Instruments Act

(3) The Statutory Instruments Act does not apply to a standard established under subsection (1) or a procedure established under subsection (2).

First Nations Gazette

(4) The Institute shall publish all standards established under subsection (1) and procedures established under subsection (2) in the First Nations Gazette.

Data Collection, Analysis and Publication

Functions and powers

113.9 (1) The Institute may, on matters within the scope of its purposes, collect, analyze, abstract and publish data for statistical purposes.

No identifying information

(2) The Institute shall ensure that no First Nation, Indigenous group, entity, including an entity referred to in subsection 50.1(1), or individual can reasonably be identified, whether directly or indirectly, by any means, from any information that the Institute makes publicly available under subsection (1).

Exception

(3) The Institute is not required to comply with subsection (2) if the information is already in the public domain or the First Nation, Indigenous group, entity or individual to whom it relates consents to being identified.

Information sharing agreements

113.91 The Institute may enter into agreements with a First Nation, Indigenous group, entity, including an entity referred to in subsection 50.1(1), or individual or any level of government concerning the sharing of information for research, analysis and publication purposes.

Regulations

Regulations

113.92 The Governor in Council may, on the recommendation of the Minister made having regard to any representations by the Institute, make regulations prescribing fees that the Institute may charge for services and the manner in which the fees may be recovered.

PART 6
Financial Management and Control

Definitions

114 The following definitions apply in this Part.

board of directors
includes
  • (a) in respect of the First Nations Tax Commission, the commissioners referred to in section 17;
  • (b) in respect of the First Nations Financial Management Board, the directors referred to in section 38; and
  • (c) in respect of the First Nations Infrastructure Institute, the directors referred to in subsection 102(1). (conseil d’administration)
institution
means the First Nations Tax Commission, the First Nations Financial Management Board or the First Nations Infrastructure Institute. (institution)

Exclusion from federal public administration

115 (1) The officers and employees of an institution are not part of the federal public administration.

No guarantees

(2) No person shall give a guarantee on behalf of Her Majesty for the discharge of an obligation or liability of an institution.

Financial year

116 The financial year of each institution is the period from April 1 to March 31, unless otherwise prescribed by regulation.

Expenditure of revenues

117 Subject to any terms and conditions that the Treasury Board may direct, for the purposes of the institution, an institution may expend, during a financial year or the following year, any revenues that it receives in that financial year through the conduct of its operations.

Corporate plans

118 (1) Each institution shall, in accordance with any directions given by the Minister, establish a five-year corporate plan and a budget for each financial year and submit them to the Minister for approval.

Scope and contents of corporate plan

(2) The corporate plan of each institution shall encompass all of the businesses and activities of the institution and include a statement of

Contents of budget

(3) The budget of each institution must include a statement of the institution’s projected revenues and expenses for the financial year on account of capital and operations.

Form of corporate plan

(4) The corporate plan of each institution shall be prepared in a form that clearly sets out information according to the major businesses or activities of the institution.

Restriction on business or activity

(5) No institution may carry on any business or activity in any financial year in a manner that is not consistent with its corporate plan for that year.

Amendment

(6) Any amendment by an institution to its corporate plan or budget shall be submitted to the Minister for approval.

Books and systems

119 (1) Each institution shall

Books and systems

(2) The books, records and systems referred to in subsection (1) shall be kept and maintained in such a manner as will provide reasonable assurance that

Internal audit

(3) An institution may cause internal audits to be conducted to assess compliance with subsections (1) and (2).

Financial statements

(4) Each institution shall annually prepare financial statements, in accordance with generally accepted accounting principles, as supplemented by any directions given by the Minister under subsection (6).

Form of financial statements

(5) The financial statements of an institution shall be prepared in a form that clearly sets out information according to the major businesses or activities of the institution.

Directions

(6) The Minister may give directions respecting the preparation of financial statements, to supplement generally accepted accounting principles.

Annual auditor’s report

120 (1) Each institution shall cause an annual auditor’s report to be prepared in accordance with any directions of the Minister, on

Contents

(2) A report under subsection (1) shall

Audit of quantitative information

(3) The Minister may require that any quantitative information required to be included in an institution’s annual report pursuant to paragraph (2)(a) be audited.

Presentation to Minister

(4) Each institution shall submit its audited financial statements to the Minister at least 30 days before the day of its annual meeting.

Special examination

121 (1) Each institution shall, at least once every five years and at any other time required by its board of directors or by the Minister, cause a special examination to be carried out in respect of its operations to determine if the books, records, systems and practices referred to in section 119 were, in the period under examination, maintained in a manner that met the requirements of that section.

Plan

(2) Before commencing a special examination, an examiner shall survey the systems and practices of the institution to be examined and submit a plan for the examination, including a statement of the criteria to be applied in the examination, to the audit committee of the institution.

Resolution of disagreements

(3) Any disagreement between the examiner and the audit committee or board of directors of an institution with respect to a plan referred to in subsection (2) shall be resolved by the Minister.

Reliance on internal audit

(4) An examiner shall, as far as is practicable, rely on any internal audit conducted pursuant to subsection 119(3) in respect of the institution being examined.

Report

122 (1) An examiner shall, on completion of a special examination in respect of an institution, submit a report on their findings, and a summary of that report, to the Minister and to the board of directors of the institution.

Contents

(2) The report of an examiner shall include

Posting of report

(3) An institution shall, as soon as possible after receipt of an examiner’s report, post a summary of the report on an Internet website maintained by the institution.

Examiner

123 (1) Subject to subsection (2), a special examination shall be carried out by the auditor of the institution.

Other auditor

(2) If, in the opinion of the Minister, a person other than the auditor of an institution should carry out a special examination in respect of the institution, the Minister may, after consulting with the board of directors of the institution, direct that the examination be carried out by another auditor who is qualified for the purpose.

Consultation with Auditor General

124 The auditor or examiner of an institution may at any time consult the Auditor General of Canada on any matter relating to an audit or special examination.

Right to information

125 (1) At the request of the auditor or examiner of an institution, the present or former commissioners, directors, officers, employees or agents or mandataries of the institution shall provide any information and explanations, and give access to any records, documents, books, accounts and vouchers of the institution that are under their control, that the auditor or examiner considers necessary to prepare a report required under this Act.

Obligation to inform

(2) If a commissioner or director of an institution does not have information or an explanation requested by an auditor or examiner under subsection (1), the commissioner or director shall obtain the information or explanation and provide it to the auditor or examiner.

Restriction

126 Nothing in this Part or in any directions of the Minister shall be construed as authorizing the auditor or examiner of an institution to express any opinion on the merits of matters of policy, including the merits of

Qualified privilege

127 An oral or written statement or report made under this Part by an auditor or examiner has qualified privilege.

Audit committee

128 (1) Each institution shall establish an audit committee composed of not less than three commissioners or directors who are not officers of the institution and who are competent to perform the duties set out in subsection (2).

Duties

(2) An audit committee shall

Auditor’s or examiner’s attendance

(3) An auditor and any examiner of an institution are entitled to receive notice of every meeting of the audit committee and, at the expense of the institution, to attend and be heard at each meeting.

Required attendance

(4) The auditor or examiner of an institution shall attend any meeting of the institution’s audit committee at which he or she is requested to attend by a member of that committee.

Calling meeting

(5) The auditor or examiner of an institution or a member of the institution’s audit committee may call a meeting of that committee.

Disclosure of material developments

129 The chief executive officer of an institution shall, as soon as reasonably practicable, notify the Minister and any commissioner or director of the institution not already aware of them of any financial or other developments that, in the chief executive officer’s opinion, are likely to have a material effect on the performance of the institution, relative to its objectives or requirements for funding.

Annual report

130 (1) Each institution shall, within four months after the end of each financial year, submit to the Minister an annual report on the operations of the institution in that year.

Form and contents

(2) The annual report of an institution shall be prepared in a form that clearly sets out information according to the major businesses or activities of the institution and shall include

Annual meeting

131 (1) The board of directors of an institution shall call an annual meeting not later than 18 months after the institution is established and subsequently not later than 15 months after the preceding annual meeting.

Manner in which meeting held

(1.1) The board of directors shall determine the manner in which the annual meeting shall be held, which may be entirely by means of electronic communication or in a way that allows participation by such means.

Notice of meeting

(2) An institution shall, at least 30 days before the annual meeting, publish a notice on an Internet website to be maintained by the institution

Availability to public

(3) At the annual meeting, the board of directors shall ensure that

PART 7
Provisions of General Application

General

Conflict of interest

132 (1) No person who is appointed to, or employed by, the First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority or First Nations Infrastructure Institute shall be appointed to, or employed by, any other one of those bodies.

Conflict of interest

(2) No person referred to in subsection (1) shall accept or hold any office or employment that is inconsistent with their duties or take part in any matter involving a body referred to in subsection (1) in which they have an interest.

Conflict of interest

(3) All persons appointed to the First Nations Tax Commission, First Nations Financial Management Board or First Nations Infrastructure Institute shall comply with the Conflict of Interest Act as though they were public office holders as defined in that Act.

Liability of His Majesty

133 (1) No person has a right to receive any compensation, damages, indemnity or other relief from His Majesty in right of Canada in respect of any claim against the First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority or First Nations Infrastructure Institute arising from its exercise of, or its failure to exercise, any of its powers or functions, including any claim against the First Nations Tax Commission as an agent of His Majesty in right of Canada.

Insurance required

(2) The First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Infrastructure Institute shall maintain in good standing at all times the insurance coverage required by any regulations made under paragraph 140(b).

No appropriation

134 No payment to the First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority or First Nations Infrastructure Institute may be made under an appropriation by Parliament authorized under an Act of Parliament to enable the Commission, Board, Authority or Institute to satisfy any claim referred to in subsection 133(1).

No compensation

135 No person has a right to receive any compensation, damages, indemnity or other relief from Her Majesty in right of Canada, or from the First Nations Tax Commission, for any acquired, vested or future right, or for any prospect of such a right, that is affected by a law approved by the First Nations Tax Commission under subsection 31(3), or for any duty or liability imposed on that person as a result of such a law.

Limit of liability — commissioner, director, employee, etc.

136 No civil proceedings lie against any of the following persons for anything done or omitted to be done in the exercise or performance, or purported exercise or performance, in good faith of any power or duty under this Act or regulations made under this Act:

Limit of liability — co-management or third-party management

136.1 Despite anything in federal or provincial law, if, under this Act, the First Nations Financial Management Board has required a First Nation to enter into a co-management arrangement or has assumed third-party management of a First Nation’s local revenues or other revenues, neither the Board nor any director or employee of the Board or person acting on behalf of the Board is by reason of that fact liable for any liability of the First Nation.

Limit of liability — co-management or third-party management

136.11 Despite anything in federal or provincial law or in a law of an Indigenous group, if, under this Act, the First Nations Financial Management Board has required an Indigenous group to enter into a co-management arrangement or has assumed third-party management of an Indigenous group’s other revenues, neither the Board nor any director or employee of the Board or person acting on behalf of the Board is by reason of that fact liable for any liability of the Indigenous group.

Personal liability for costs

136.2 No director or employee of the First Nations Financial Management Board or person acting on behalf of the Board is personally liable for costs

Limit of liability

137 No civil proceedings lie against a member of a council or an employee of a First Nation for anything done, or omitted to be done, during the course of the exercise or purported exercise in good faith of any power, or the performance or purported performance in good faith of any duty, of that member or employee in accordance with this Act, regulations made under this Act or a law made by the council of a First Nation under this Act.

Conflict with other laws

138 (1) In the event of a conflict between a local revenue law, a law made under subsection 8.1(1) or a law made under subsection 97(1) and an Act of Parliament or any regulations made under an Act of Parliament or a code made by a First Nation under another Act of Parliament, the Act, regulations or code prevails to the extent of the conflict.

Conflict with other First Nation laws

(2) In the event of a conflict between a law made by a First Nation under this Act and a law, other than a code, made by the First Nation under another Act of Parliament, the law made by the First Nation under this Act prevails to the extent of the conflict.

Official languages

139 (1) For greater certainty, the provisions of the Official Languages Act applicable to federal institutions apply to the First Nations Tax Commission.

Official languages

(2) If there is a demand for services in a particular official language, the First Nations Financial Management Board, First Nations Finance Authority and First Nations Infrastructure Institute shall offer services in that language.

Regulations

Regulations

140 The Governor in Council may make regulations

Regulations

141 (1) For the purpose of enabling an Indigenous group that is a party to a treaty, land claims agreement or self-government agreement with Canada to benefit from the provisions of this Act or obtain the services of any body established under this Act, the Governor in Council may make any regulations that the Governor in Council considers necessary, including regulations

Amendments to schedule in regulations

(2) The Minister may, by order, at the request of the governing body of an Indigenous group referred to in subsection (1), amend any schedule included in regulations made under that subsection and listing the Indigenous groups that are subject to those regulations in order to

Regulations — organizations referred to in paragraph 50.1(1)(e)

141.1 (1) For the purpose of enabling an organization referred to in paragraph 50.1(1)(e) to benefit from the provisions of this Act, other than Parts 1, 2 and 5, or obtain the services of the First Nations Financial Management Board or the First Nations Finance Authority, the Governor in Council may make any regulations that the Governor in Council considers necessary, including regulations

Amendments to schedule in regulations

(2) The Minister may, by order, at the request of an organization referred to in paragraph 50.1(1)(e), amend any schedule included in regulations made under subsection (1) and listing the organizations that are subject to those regulations in order to

Regulations — joint reserve lands

141.2 For the purpose of enabling a First Nation to benefit from the provisions of this Act, or obtain the services of any body established under this Act, in respect of reserve lands that have been set apart for the use and benefit of that First Nation and one or more other First Nations, the Governor in Council may make any regulations that the Governor in Council considers necessary, including regulations

PART 3
Adaptations to Regulations

DIVISION 1

Adaptation to the Debt Reserve Fund Replenishment Regulations

Adaptation

6 The heading before section 1 and sections 1 to 4 of the Debt Reserve Fund Replenishment Regulations are adapted as follows:

Interpretation

Definitions

1 The following definitions apply in these Regulations.

Act
means the First Nations Fiscal Management Act. (Loi)
defaulting member
means a borrowing member whose failure to make a payment payable under a borrowing agreement with the Authority has led to a reduction in the debt reserve fund. (membre en défaut)

Replenishment of Fund

Debt reserve fund balance

1.1 For the purposes of paragraphs 84(5)(a) and (b) of the Act, the amount is equal to the balance of the debt reserve fund immediately before the first of the payments from that fund were made, not taking into account any payments that previously led the Authority to require replenishment of the fund under those paragraphs.

Notice

2 (1) At least 90 days before the day on which a payment is to be made to replenish the debt reserve fund, the Authority must send to the council of every borrowing member that is a First Nation with an unpaid loan, and to every borrowing member that is an Indigenous group with an unpaid loan, a notice setting out the amount of the shortfall in the debt reserve fund and the amount required to be paid by that borrowing member as determined under section 3.

Content of notice

(2) The notice must identify all defaulting members and the amount of the shortfall attributable to each of them.

Amount to pay

3 The amount to be paid under subsection 2(1) is

Liability

4 For greater certainty, despite the payment of an amount under paragraph 3(a), a defaulting member remains liable for the payment to the Authority of all amounts required to be paid under a borrowing agreement with the Authority.

DIVISION 2

Adaptation to the Revenue Management Implementation Regulations

Adaptation

7 The heading before section 1 and sections 1 to 23 of the Revenue Management Implementation Regulations are adapted as follows:

Interpretation

Definitions

1 (1) The following definitions apply in these Regulations.

Act
means the First Nations Fiscal Management Act. (Loi)
financial institution
means the First Nations Finance Authority or any person — including a bank, credit union or caisse populaire — or trustee with which local revenues or other revenues are deposited or by or through which local revenues or other revenues are invested. (institution financière)
law-making delegate
means
  • (a) in relation to a First Nation, a person or body to which the council of the First Nation has, under paragraph 5(1)(f), 8.1(1)(b) or 9(1)(b) of the Act, delegated any of the council’s powers to make laws; and
  • (b) in relation to an Indigenous group, a person or body, other than the Board, to which a governing body of the Indigenous group has delegated any of the governing body’s powers to make laws. (délégataire)
local services capital assets
means capital assets that are, or are intended to be, used wholly or in part for the delivery on reserve lands of programs and services that are paid for wholly or in part out of local revenues. (immobilisations destinées à la prestation de services locaux)
manager
means a person appointed under subsection 2(1). (administrateur)
other revenues capital assets
means capital assets that are, or are intended to be,
  • (a) used for generating other revenues; or
  • (b) used wholly or in part for the delivery of programs and services that are paid for wholly or in part out of other revenues. (immobilisations des autres recettes)
record
includes a computer file, computer database, photographic or graphical representation, sound recording, film and videotape. (document)
tax administrator
means the person responsible for the administration of a First Nation’s property taxation laws. (administrateur fiscal)
third-party local services agreement
means an agreement, lease, instrument or act granting a right-of-way or easement or real servitude, permit or other instrument or act to which a First Nation or His Majesty in right of Canada is a party
  • (a) that provides, wholly or in part, for the delivery of programs or services; and
  • (b) under which payments may be made from local revenues. (accord de services locaux)

Indian Act definitions

(2) Unless the context otherwise requires, words and expressions used in these Regulations and not defined in them or in the Act have the same meaning as in the Indian Act.

Manager

Appointment

2 (1) Subject to subsection (2) and section 3, if the Board requires a First Nation or Indigenous group to enter into a co-management arrangement or assumes third-party management and appoints a person who is not an employee of the Board to act as an agent or mandatary of the Board for the purposes of the co-management arrangement or third-party management, the scope of the authority of the person shall be set out in writing and a copy provided to the council of the First Nation or to the Indigenous group without delay.

Qualification

(2) A member of the board of directors of the Board shall not be appointed as a manager.

Limitation on authority

3 A manager shall not

Accessing Information

Request for information — First Nation

4 A request for information referred to in section 54 of the Act may be made orally or in writing, by the Board or a manager, to the council of the First Nation or to any of its councillors, employees or law-making delegates.

Request for information — Indigenous group

4.1 A request for information referred to in section 54.1 of the Act may be made orally or in writing, by the Board or a manager, to the Indigenous group, to any member of a governing body of the Indigenous group or to any employee or law-making delegate of the Indigenous group.

Access to Records and Documents

Records and documents — local revenues

5 (1) At any time after receipt of a notice under subsection 52(1) or 53(1) of the Act and while a co-management arrangement in respect of the First Nation’s local revenues or third-party management of its local revenues is in effect, the First Nation shall, without delay, on receipt of an oral or written request, give the Board or a manager access to, and copies — or the opportunity to make copies — of, all records and documents respecting the First Nation’s local revenue laws and their administration, including records and documents relating to

Copies

(2) A First Nation shall, without delay, on receipt of any records or documents referred to in subsection (1) that are produced or obtained while a co-management arrangement or third-party management is in effect, provide a copy of the records or documents to the Board or a manager.

Records and documents — other revenues of a First Nation

5.1 (1) At any time after receipt of a notice under subsection 52.1(1) or 53.1(1) of the Act and while a co-management arrangement in respect of the First Nation’s other revenues or third-party management of its other revenues is in effect, the First Nation shall, without delay, on receipt of an oral or written request, give the Board or a manager access to, and copies — or the opportunity to make copies — of, all records and documents respecting the laws of the First Nation made under section 8.1 of the Act and their administration, including records and documents relating to

Copies

(2) A First Nation shall, without delay, on receipt of any records or documents referred to in subsection (1) that are produced or obtained while a co-management arrangement or third-party management is in effect, provide a copy of the records or documents to the Board or a manager.

Records and documents — other revenues of an Indigenous group

5.2 (1) At any time after receipt of a notice under subsection 52.2(1) or 53.2(1) of the Act and while a co-management arrangement in respect of the Indigenous group’s other revenues or third-party management of its other revenues is in effect, the Indigenous group shall, without delay, on receipt of an oral or written request, give the Board or a manager access to, and copies — or the opportunity to make copies — of, all records and documents respecting the Indigenous group’s laws respecting other revenues and the administration of those laws, including records and documents relating to

Copies

(2) An Indigenous group shall, without delay, on receipt of any records or documents referred to in subsection (1) that are produced or obtained while a co-management arrangement or third-party management is in effect, provide a copy of the records or documents to the Board or a manager.

Request for copies — local revenues

6 (1) At any time after the Board gives a notice under subsection 52(1) or 53(1) of the Act and while a co-management arrangement in respect of the First Nation’s local revenues or third-party management of its local revenues is in effect, the Board or a manager may, either orally or in writing, request copies of records or documents referred to in section 5 from any person who possesses or has control over them, including

Assistance

(2) The First Nation shall, on the request of the Board or manager, provide the Board or manager with any assistance that is necessary to enable them to obtain copies of records or documents under subsection (1).

Request for copies — other revenues of a First Nation

6.1 (1) At any time after the Board gives a notice under subsection 52.1(1) or 53.1(1) of the Act and while a co-management arrangement in respect of the First Nation’s other revenues or third-party management of its other revenues is in effect, the Board or a manager may, either orally or in writing, request copies of records or documents referred to in section 5.1 from any person who possesses or has control over them, including

Assistance

(2) The First Nation shall, on the request of the Board or manager, provide the Board or manager with any assistance that is necessary to enable them to obtain copies of records or documents under subsection (1).

Request for copies — other revenues of an Indigenous group

6.2 (1) At any time after the Board gives a notice under subsection 52.2(1) or 53.2(1) of the Act and while a co-management arrangement in respect of the Indigenous group’s other revenues or third-party management of its other revenues is in effect, the Board or a manager may, either orally or in writing, request copies of records or documents referred to in section 5.2 from any person who possesses or has control over them, including

Assistance

(2) The Indigenous group shall, on the request of the Board or manager, provide the Board or manager with any assistance that is necessary to enable them to obtain copies of records or documents under subsection (1).

Explanations — First Nation

7 (1) If a First Nation is required to provide records or documents under section 5 or 5.1, a councillor, employee, law-making delegate or representative of the First Nation shall, at the request of the Board or a manager, made orally or in writing, provide an explanation of the records or documents.

Requirement to obtain information

(2) If a councillor, employee, law-making delegate or representative of the First Nation is not able to provide the requested explanation, they shall, without delay, make every effort to obtain any information, records or documents that are necessary to provide the explanation.

Explanations — Indigenous group

7.1 (1) If an Indigenous group is required to provide records or documents under section 5.2, a member of a governing body of the Indigenous group or an employee, law-making delegate or representative of the Indigenous group shall, at the request of the Board or a manager, made orally or in writing, provide an explanation of the records or documents.

Requirement to obtain information

(2) If a member of a governing body of the Indigenous group or an employee, law-making delegate or representative of the Indigenous group is not able to provide the requested explanation, they shall, without delay, make every effort to obtain any information, records or documents that are necessary to provide the explanation.

Maintenance and return of records or documents

8 When the Board or a manager obtains records or documents from a First Nation or Indigenous group, or creates records or documents on behalf of a First Nation or Indigenous group, while a co-management arrangement or third-party management is in effect, the Board or the manager

First Nation access to records or documents

9 On receipt of a written request from the council of the First Nation, the Board or a manager shall allow a representative of the council to inspect and copy records or documents referred to in section 8, on any terms and conditions that will ensure the security and safekeeping of the records or documents.

Indigenous group access to records or documents

9.1 On receipt of a written request from the Indigenous group, the Board or a manager shall allow a representative of a governing body of the Indigenous group to inspect and copy records or documents referred to in section 8, on any terms and conditions that will ensure the security and safekeeping of the records or documents.

Co-Management

Copy of order

10 (1) If an order is made under paragraph 52(2)(e), 52.1(2)(e) or 52.2(2)(e) of the Act requiring that cheques be co-signed by a manager, the Board or the manager shall provide a copy of the order to each financial institution with which the First Nation or Indigenous group has any ongoing financial arrangements.

Revocation of order

(2) If an order referred to in subsection (1) is revoked by the Board, the Board or a manager shall provide a copy of the revocation to each financial institution referred to in that subsection.

Third-Party Management

Notice to financial institutions

11 (1) If the Board assumes third-party management, the Board or a manager shall provide, to each financial institution with which the First Nation or Indigenous group has any ongoing financial arrangements, a copy of the notice of assumption of third-party management given by the Board to the council of the First Nation or to the Indigenous group.

Signatories

(2) The Board or a manager may, by written notice to a financial institution, authorize one or more individuals to act as signatory for a manager for the purposes of subsection (1) and establish the number of signatories required for any purpose.

Notice of termination of third-party management

(3) If third-party management is terminated by the Board, the Board or a manager shall provide a copy of the notice of termination to each financial institution referred to in subsection (1).

Application of Act and regulations to Board

12 For greater certainty, nothing in these Regulations exempts the Board, while acting in the place of the council of a First Nation under paragraph 53(2)(a) or (b) or 53.1(2)(a) or (b) of the Act or in the place of a governing body of an Indigenous group under paragraph 53.2(2)(a) or (b) of the Act, from complying with any of the requirements applicable to the council of the First Nation or to the Indigenous group under the Act and any regulations made under it.

Notice of law-making

12.1 (1) Before making a law under paragraph 53.2(2)(a) of the Act in relation to an Indigenous group named in Schedule 2 to the First Nations Fiscal Management Act Adaptation Regulations, the Board shall give 30 days’ written notice to the Indigenous group, the First Nations Finance Authority and the First Nations Tax Commission, accompanied by a copy of the proposed law, an indication of the timing of the making of the law and the reasons that the Board intends to make the law.

Exception

(2) Subsection (1) does not apply if the Board is of the opinion that giving the notice would obstruct its ability to take timely and necessary actions to remedy the situation for which third-party management was required.

Written representations

(3) Within 15 days after the day on which the notice is received or any longer period permitted by the Board, the Indigenous group may make written representations to the Board regarding the proposed law and its timing.

Conditions for law-making

(4) Before making the law, the Board shall

Meeting of board of directors

(5) The making of the law shall take place at a meeting of the board of directors of the Board, held in accordance with the board of directors’ rules.

Making of law

(6) The making of the law shall be effected by the passing of a resolution.

Copy to Indigenous group

(7) No later than 15 days after the day on which the law is made, the Board shall provide the Indigenous group with a certified copy of the resolution and a copy of the law.

Certification Powers of the Board

Scope of implementation

13 The implementation of a co-management arrangement or third-party management in respect of a First Nation or Indigenous group does not preclude the Board from

Communications

Sharing of information

14 The Board or a manager may disclose any records, documents and other information, including records, documents and information obtained under these Regulations, that the Board or manager considers necessary to carry out co-management or third-party management effectively or to fulfil the objectives set out in section 15.

Cooperative management — local revenues

15 (1) If the Board has required a First Nation to enter into a co-management arrangement in respect of its local revenues or has assumed third-party management of its local revenues, the Board shall work cooperatively with the council of the First Nation, the tax administrator and any employee of the First Nation designated by the council to enable the First Nation to resume full responsibility for the management, control and administration of its local revenues.

Cooperative management — other revenues of a First Nation

(1.1) If the Board has required a First Nation to enter into a co-management arrangement in respect of its other revenues or has assumed third-party management of its other revenues, the Board shall work cooperatively with the council of the First Nation and any employee of the First Nation designated by the council to enable the First Nation to resume full responsibility for the management, control and administration of its other revenues.

Cooperative management — other revenues of an Indigenous group

(1.2) If the Board has required an Indigenous group to enter into a co-management arrangement in respect of its other revenues or has assumed third-party management of its other revenues, the Board shall work cooperatively with any governing body of the Indigenous group and any employee of the Indigenous group designated by the governing body to enable the Indigenous group to resume full responsibility for the management, control and administration of its other revenues.

Interpretation

(2) Subsections (1) to (1.2) do not limit or otherwise affect the powers and discretion of the Board in respect of the implementation of a co-management arrangement or of third-party management.

Remedial Management Plan and Reports

Remedial management plan — local revenues

16 (1) Within 60 days after requiring a First Nation to enter into a co-management arrangement in respect of the First Nation’s local revenues or assuming third-party management of its local revenues, the Board or a manager shall review the available information relating to the First Nation’s local revenues and to its local revenue laws and provide the council of the First Nation with a remedial management plan to address the matters that contributed to the assumption of co-management or third-party management.

Remedial management plan — other revenues of a First Nation

(1.1) Within 60 days after requiring a First Nation to enter into a co-management arrangement in respect of the First Nation’s other revenues or assuming third-party management of its other revenues, the Board or a manager shall review the available information relating to the First Nation’s other revenues and to its laws made under section 8.1 of the Act and provide the council of the First Nation with a remedial management plan to address the matters that contributed to the assumption of co-management or third-party management.

Remedial management plan — other revenues of an Indigenous group

(1.2) Within 60 days after requiring an Indigenous group to enter into a co-management arrangement in respect of the Indigenous group’s other revenues or assuming third-party management of its other revenues, the Board or a manager shall review the available information relating to the Indigenous group’s other revenues and to its laws respecting other revenues and provide the Indigenous group with a remedial management plan to address the matters that contributed to the assumption of co-management or third-party management.

Content of plan

(2) A remedial management plan may include a debt reduction plan, a budget or an expenditure plan.

Continuing need

(3) A remedial management plan shall indicate whether the Board is of the opinion that there is a continuing need for a co-management arrangement or third-party management.

Report

17 The Board shall provide a written report of the results of each review required under subsection 53(5), 53.1(7) or 53.2(7) of the Act.

Final report — First Nation

18 (1) Within six months after the termination of third-party management of a First Nation’s local revenues or other revenues, the Board or a manager shall provide the council of the First Nation with a written report that includes

Final report — Indigenous group

(1.1) Within six months after the termination of third-party management of an Indigenous group’s other revenues, the Board or a manager shall provide the Indigenous group with a written report that includes

Report

(2) Within six months after the termination of co-management without assuming third-party management, the Board or a manager shall provide the council of the First Nation, or the Indigenous group, with a written report that includes

Meeting to review reports

19 (1) Within 45 days after delivery to the council of the First Nation, or to the Indigenous group, of the remedial management plan provided under section 16 or a report provided under section 18, the council of the First Nation, or the Indigenous group, may deliver a written request to the Board or a manager to meet to review the plan or report.

Time limit for meeting

(2) Within 30 days after the date of the acknowledgement of receipt of the request, the Board or a manager shall meet with the council of the First Nation, or a representative of the Indigenous group, to review the plan or report and respond to questions about it.

Fees for Management Services

Records of fees and disbursements

20 (1) The Board shall maintain records of disbursements made and of fees paid or payable by the Board to a manager and other persons in the course of implementing a co-management arrangement or third-party management.

Invoices

(2) The Board shall invoice the First Nation or Indigenous group, not more than once each month, for the amount of fees and disbursements that have been invoiced to the Board since the date of the last invoice rendered to the First Nation or Indigenous group under this subsection, plus 10% of that amount.

Final invoice

(3) After termination of a co-management arrangement or third-party management, the Board shall send a final invoice to the First Nation or Indigenous group within nine months after the date on which the notice of termination is given under subsection 52(3), 52.1(3), 52.2(3), 53(6), 53.1(8) or 53.2(8) of the Act, as the case may be.

Form of invoices

(4) Each invoice sent to the First Nation or Indigenous group shall set out the nature and amounts of the fees and disbursements and shall include a copy of any invoices received by the Board from a manager or the other persons referred to in subsection (1).

Debt

(5) The First Nation or Indigenous group shall pay to the Board the amounts that have been invoiced under this section within 30 days after the day on which each invoice is received or within any longer period that is agreed to by the Board and the First Nation or Indigenous group.

Funding of required interventions

20.1 (1) If the following conditions are met, the Board shall give notice, in writing, to the First Nations Finance Authority, the First Nations Tax Commission and the Minister of the Board’s intention to send the Authority any invoices referred to in section 20 that have not been paid by the First Nation or Indigenous group before or on the day on which they are due:

Invoices to Authority

(2) The Board may send the First Nations Finance Authority the invoices referred to in subsection (1) no earlier than 30 days after the day on which the notice is given to the Authority.

Payment of invoices

(3) Unless the First Nations Finance Authority receives a notice under subsection (4), it shall pay to the Board the amounts invoiced within 30 days after the day on which the invoices are received.

Change of circumstances

(4) If a condition set out in paragraph (1)(b) or (c) ceases to be met after the notice referred to in subsection (1) is given, the Board shall give notice of that fact in writing to the First Nations Finance Authority, the First Nations Tax Commission and the Minister.

Notices and Orders

Written notices

21 (1) The following notices and orders given by the Board shall be in writing:

Copy to Authority and Commission

(1.1) The Board shall provide the First Nations Finance Authority and the First Nations Tax Commission with a copy of a notice given to the council of a First Nation under subsection 52(1) or (3), 52.1(1) or (3), 53(1) or (6) or 53.1(1) or (8) of the Act or to an Indigenous group under subsection 52.2(1) or (3) or 53.2(1) or (8) of the Act.

Copy to the Minister

(2) The Board shall provide the Minister with a copy of a notice given to the council of a First Nation under subsection 53(6) or 53.1(8) of the Act.

Delivery of Records or Documents

Methods of delivery

23 (1) Records, notices, reports, copies, orders, invoices, requests or any other documents referred to in these Regulations may be delivered personally, or by courier, registered mail, fax or e-mail.

Personal delivery

(2) A record, notice, report, copy, order, invoice, request or any other document referred to in these Regulations may be delivered personally

Time of delivery

(3) A record, notice, report, copy, order, invoice, request or any other document referred to in these Regulations shall be considered to have been delivered

PART 4
Coming into Force

Registration

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

SCHEDULE 1

(Section 3)

Indigenous Groups Subject to Additional Requirements

SCHEDULE 2

(Section 3)

Indigenous Groups Not Subject to Additional Requirements

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