First Nations Fiscal and Statistical Management Act (S.C. 2005, c. 9)
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Assented to 2005-03-23
First Nations Fiscal and Statistical Management Act
S.C. 2005, c. 9
Assented to 2005-03-23
An Act to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other Acts
SUMMARY
This enactment strengthens first nations’ real property tax regimes and creates a first nation bond financing regime, and creates four institutions to support those regimes, to promote first nations’ economic development and to strengthen first nations’ statistical capacity.
Preamble
Whereas the Government of Canada has adopted a policy recognizing the inherent right of self-government as an aboriginal right and providing for the negotiation of self-government;
Whereas this Act is not intended to define the nature and scope of any right of self-government or to prejudge the outcome of any self-government negotiation;
Whereas the creation of national aboriginal institutions will assist first nations that choose to exercise real property taxation jurisdiction on reserve lands;
Whereas economic development through the application of real property tax revenues and other local revenues to support borrowing on capital markets for the development of public infrastructure is available to other governments in Canada;
Whereas real property taxation regimes on reserves should recognize both the interests of on-reserve taxpayers and the rights of members of first nations communities;
Whereas accurate, timely and credible statistics are a key element of sound financial planning, management and reporting available to other governments in Canada;
Whereas first nations led an initiative that resulted in 1988 in an amendment to the Indian Act so that their jurisdiction over real property taxation on reserve could be exercised and the Indian Taxation Advisory Board was created to assist in the exercise of that jurisdiction;
Whereas, in 1995, the First Nations Finance Authority Inc. was incorporated for the purposes of issuing debentures using real property tax revenues and providing investment opportunities;
Whereas, by 1999, first nations and the Government of Canada recognized the benefits of establishing statutory institutions as part of a comprehensive fiscal and statistical management system;
And whereas first nations have led an initiative culminating in the introduction of this Act;
NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the First Nations Fiscal and Statistical Management Act.
INTERPRETATION
Marginal note:Definitions
2. (1) The following definitions apply in this Act.
“borrowing member”
« membre emprunteur »
“borrowing member” means a first nation that has been accepted as a borrowing member under subsection 76(2) and has not ceased to be a borrowing member under section 77.
“council”
« conseil de la première nation »
“council” has the same meaning as “council of the band” in subsection 2(1) of the Indian Act.
“first nation”
« première nation »
“first nation” means
(a) in any provision of Part 5, a band; and
(b) in any other provision, a band named in the schedule.
“First Nations Finance Authority”
« Administration financière des premières nations »
“First Nations Finance Authority” means the corporation established under section 58.
“First Nations Financial Management Board”
« Conseil de gestion financière des premières nations »
“First Nations Financial Management Board” means the board established under subsection 38(1).
“First Nations Gazette”
« Gazette des premières nations »
“First Nations Gazette” means the publication published under section 34.
“First Nations Statistical Institute”
« Institut de la statistique des premières nations »
“First Nations Statistical Institute” means the institute established under section 91.
“First Nations Tax Commission”
« Commission de la fiscalité des premières nations »
“First Nations Tax Commission” means the commission established under subsection 17(1).
“local revenue law”
« texte législatif sur les recettes locales »
“local revenue law” means a law made under subsection 5(1).
“local revenues”
« recettes locales »
“local revenues” means moneys raised under a local revenue law.
“Minister”
« ministre »
“Minister” means the Minister of Indian Affairs and Northern Development.
“property taxation law”
« texte législatif relatif à l’imposition foncière »
“property taxation law” means a law made under paragraph 5(1)(a).
“third-party management”
Version anglaise seulement“third-party management” means the management of a first nation’s local revenues under section 53.
Marginal note: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.
Marginal note:Amendments to schedule
(3) At the request of the council of a band, the Governor in Council may, by order, amend the schedule in order to
(a) add or change the name of the band; or
(b) delete the name of the band, as long as there are no amounts owing by the band to the First Nations Finance Authority that remain unpaid.
ABORIGINAL RIGHTS
Marginal note:Aboriginal and treaty rights
3. For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.
PART 1FIRST NATIONS FISCAL POWERS
Marginal note:Financial administration laws
4. The council of a first nation may not make a law under paragraph 5(1)(d) 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.
Marginal note:Local revenue laws
5. (1) Subject to subsections (2) to (6), sections 4 and 6 and any regulations made under paragraph 36(1)(d), the council of a first nation may make laws
(a) respecting taxation for local purposes of reserve lands, interests in reserve lands or rights to occupy, possess or use reserve lands, including
(i) the assessment of the value of those lands, interests and rights, the requisition of any information necessary to conduct the assessment and the inspection, in accordance with procedures prescribed by regulation, for assessment purposes of any reserve lands that are subject to taxation for local purposes,
(ii) a mechanism to establish tax rates and apply them to the assessed value of those lands, interests and rights,
(iii) taxation for the provision of services in respect of reserve lands,
(iv) the taxation of business activities on reserve lands, and
(v) the imposition of development cost charges;
(b) authorizing the expenditure of local revenues;
(c) respecting procedures by which the interests of taxpayers may be represented to the council;
(d) respecting the borrowing of money from the First Nations Finance Authority, including any authorization to enter into a particular borrowing agreement with that Authority;
(e) subject to any conditions, and in accordance with any procedures, prescribed by regulation, respecting the enforcement of laws made under paragraph (a) in respect of outstanding taxes or charges, including
(i) the creation of liens on reserve lands and interests in reserve lands,
(ii) the imposition and recovery of interest and penalties on an amount payable pursuant to a law made under that paragraph, where the amount is not paid when it is due, and the rate of interest or the amount of the penalty, as the case may be,
(iii) subject to subsection (7), the seizure, forfeiture and assignment of interests or rights in reserve lands,
(iv) the seizure and sale of personal property located on reserve lands, other than property located in a dwelling, and
(v) the discontinuance of services;
(f) delegating to any person or body any of the council’s powers to make laws under any of paragraphs (a) to (e); and
(g) delegating to the First Nations Financial Management Board any other of the council’s powers that are required to give effect to a co-management arrangement entered into under section 52 or to give effect to third-party management of the first nation’s local revenues.
Marginal note: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.
Marginal note:Coming into force
(3) A law made under subsection (1) comes into force on the later of
(a) the day of coming into force set out in the law, and
(b) the day after it is approved by the First Nations Tax Commission.
Marginal note:Appeals
(4) A law made under paragraph (1)(a) shall include
(a) an appeal procedure in respect of assessments, incorporating such procedures as are prescribed by regulation; and
(b) fixed rates of remuneration and fixed terms of office for any persons designated to decide the appeals.
Marginal note:Third-party management
(5) A property taxation law shall provide that, if the First Nations Financial Management Board gives notice to the first nation that third-party management of the first nation’s local revenues is required, the Board may act as agent of the first nation to fulfil any of the powers and obligations of the council under the property taxation law, this Act and any regulations made under this Act.
Marginal note:Special levy
(6) A property taxation law of a borrowing member shall provide that the borrowing member must make a law under paragraph (1)(a) in order to recover amounts payable under paragraph 84(5)(b).
Marginal note:Assignment of right or interest
(7) Notwithstanding the Indian Act or any instrument conferring a right or interest in reserve lands, if there are outstanding taxes payable pursuant to a law made under paragraph (1)(a) for more than two years, the first nation may assign the right or interest in accordance with the conditions and procedures prescribed by regulation.
Marginal note:Judicial notice
(8) In any proceedings, judicial notice may be taken of a local revenue law.
Marginal note:Statutory Instruments Act
(9) The Statutory Instruments Act does not apply in respect of local revenue laws or laws made under section 9.
Marginal note:Notice of proposed laws
6. (1) The council of a first nation shall, at least 60 days before making a law under any of paragraphs 5(1)(a) to (c), including a law repealing such a law or an amendment to such a law other than one referred to in paragraph 10(a) or (b),
(a) publish a notice of the proposed law in a local newspaper;
(b) post the notice in a public place on the reserve lands of the first nation; and
(c) send the notice, by mail or electronic means, to the First Nations Tax Commission, to members of the first nation, to others who have interests in those lands or rights to occupy, possess or use those lands and to every government, organization and individual who, in the opinion of the council, may be affected by the proposed law.
Marginal note: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.
Marginal note:Content of notice
(3) A notice referred to in subsection (1) shall
(a) describe the proposed law;
(b) state where a copy of the proposed law may be obtained;
(c) invite representations regarding the proposed law to be made, in writing, to the council within 60 days after the date stated in the notice; and
(d) if the council is to review the proposed law at a public meeting, state the time and place of the meeting.
Marginal note:Council to consider representations
(4) Before making a law under any of paragraphs 5(1)(a) to (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).
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