An Act to amend the First Nations Fiscal Management Act, to make consequential amendments to other Acts, and to make a clarification relating to another Act (S.C. 2023, c. 16)
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Assented to 2023-06-20
An Act to amend the First Nations Fiscal Management Act, to make consequential amendments to other Acts, and to make a clarification relating to another Act
S.C. 2023, c. 16
Assented to 2023-06-20
An Act to amend the First Nations Fiscal Management Act, to make consequential amendments to other Acts, and to make a clarification relating to another Act
RECOMMENDATION
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the First Nations Fiscal Management Act, to make consequential amendments to other Acts, and to make a clarification relating to another Act”.
SUMMARY
This enactment amends the First Nations Fiscal Management Act to expand and modernize the mandates of the First Nations Tax Commission and the First Nations Financial Management Board in order to better reflect their current and future activities.
The enactment also establishes a First Nations Infrastructure Institute that will provide First Nations and other interested Indigenous groups and organizations with tools and support, including with respect to best practices, to implement and manage their infrastructure. It also provides First Nations named in the schedule to the First Nations Fiscal Management Act with the power to make laws to regulate services provided by or on behalf of the First Nations.
The enactment also aims to improve the functioning of that Act, including by integrating the content of the Financing Secured by Other Revenues Regulations, by combining into a single fund the debt reserve fund for financing secured by property tax revenues and the debt reserve fund for financing secured by other revenues and by simplifying the way certain Indigenous groups participate in pooled-borrowing.
Finally, the enactment makes consequential amendments to the Access to Information Act and to the Privacy Act and includes a clarification that addresses a transitional administrative oversight that followed the establishment in 2019 of the Department of Crown-Indigenous Relations and Northern Affairs and the Department of Indigenous Services.
His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
2005, c. 9; 2012, c. 19, s. 658First Nations Fiscal Management Act
Marginal note:2012, c. 19, s. 656
1 The long title of the First Nations Fiscal Management Act is replaced by the following:
Marginal note:2012, c. 19, s. 657; 2018, c. 27, ss. 413(a)(E) and 414(b)(E)
2 The preamble to the Act is replaced by the following:
Preamble
Whereas the Government of Canada is committed to responding to, to the extent of its authority, Call to Action 44 in the Final Report of the Truth and Reconciliation Commission of Canada and implementing the United Nations Declaration on the Rights of Indigenous Peoples, including Articles 3 to 5, 20, 21 and 23 as they relate to the pursuit of economic growth in Indigenous communities and to economic reconciliation;
Whereas early contact Indigenous peoples had innovative economic and trade systems supported by public infrastructure, tax systems, sharing practices and the development of trading languages to enable commerce across linguistically diverse regions;
Whereas Indigenous languages have words for taxes and sharing, including the word “taksis” in the Chinook trading language;
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 First Nations governments led an initiative in 1988 to amend the Indian Act in order to recognize their jurisdiction over real property taxation;
Whereas First Nations leaders led an initiative that resulted in the development of legislation that would enable First Nations to better exercise their jurisdiction with respect to taxation, financial administration and the provision of services on reserve lands and to participate in pooled debenture borrowing;
Whereas economic development through the application of local revenues and other revenues to support borrowing on capital markets for the development of public infrastructure is available to other governments in Canada;
Whereas local revenue systems on reserves should recognize both the interests of on-reserve taxpayers and the rights of members of First Nations communities;
And whereas First Nations and the Government of Canada recognize the benefits of establishing Indigenous institutions as part of a comprehensive fiscal framework;
Marginal note:2018, c. 27, par. 414(c)(E)
3 (1) The definition third-party management in subsection 2(1) of the English version of the Act is repealed.
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
- First Nations Infrastructure Institute
First Nations Infrastructure Institute means the institute established under subsection 102(1). (Institut des infrastructures des premières nations)
(3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
- intermediate account
intermediate account means an account established by a First Nation 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. (compte intermédiaire)
- other revenues
other revenues means
(a) tax revenues and fees imposed or collected by a First Nation under a law or agreement, other than
(i) local revenues, and
(ii) 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;
(b) royalties payable to a 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;
(c) royalties payable to His Majesty in right of Canada under the Indian Act or the Indian Oil and Gas Act on behalf of a First Nation that has assumed control of its moneys under the First Nations Oil and Gas and Moneys Management Act;
(d) revenues that are from leases, permits or other instruments or acts authorizing the use of reserve land issued under the Indian Act and that a First Nation has assumed control of under the First Nations Oil and Gas and Moneys Management Act;
(e) 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;
(f) revenues otherwise payable to a 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;
(g) revenues, other than local revenues, received by a First Nation from businesses wholly or partly owned by it, including dividends from shares owned by it;
(h) transfers from a provincial, regional, municipal or local government to a First Nation;
(i) transfers from His Majesty in right of Canada to a 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;
(j) interest earned by a 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
(k) revenues prescribed by regulation. (autres recettes)
- secured revenues trust account
secured revenues trust account means an account established by the First Nations Finance Authority and a First Nation in which other revenues to be used for financing under this Act are maintained. (compte de recettes en fiducie garanti)
(4) Section 2 of the Act is amended by adding the following after subsection (2):
Marginal note: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 Indigenous group, other than a band named in the schedule, or 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 or 141.1.
Marginal note:Extended meaning of “borrowing member” — section 61
(2.2) For the purpose of section 61, borrowing member also means an Indigenous group, other than a band named in the schedule, that has been accepted as a borrowing member under a regulation made under section 141.
(5) Section 2 of the Act is amended by adding the following after subsection (3):
Marginal note:Regulations
(3.1) The Governor in Council may make regulations prescribing anything that is to be prescribed under paragraph (k) of the definition other revenues.
Marginal note:2018, c. 27, s. 414(E)
4 Section 4 of the Act is replaced by the following:
Marginal note: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.
Marginal note:2018, c. 27, s. 386(1)
5 (1) The portion of subsection 5(1) of the Act before paragraph (a) is replaced by the following:
Marginal note: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
(2) Paragraph 5(1)(d) of the Act is replaced by the following:
(d) respecting the borrowing of money from the First Nations Finance Authority that is secured by local revenues, including any authorization to enter into a particular borrowing agreement with that Authority;
Marginal note:2015, c. 36, s. 178(2)
(3) The portion of paragraph 5(1)(e) of the Act before subparagraph (i) is replaced by the following:
(e) subject to any conditions and procedures prescribed by regulation, respecting the enforcement of laws made under paragraphs (a) and (a.1), including
(4) Paragraph 5(1)(g) of the English version of the Act is replaced by the following:
(g) delegating to the First Nations Financial Management Board any of the council’s other 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 under section 53.
(5) Section 5 of the Act is amended by adding the following after subsection (4):
Marginal note: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
(a) refraining from doing anything that, in the opinion of the court, constitutes or is directed toward the contravention of that law; or
(b) doing anything that, in the opinion of the court, may prevent the contravention of that law.
Marginal note: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.
Marginal note: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.
6 The Act is amended by adding the following after section 8:
Marginal note:Other revenues laws
8.1 (1) The council of a First Nation may make laws
(a) 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;
(b) delegating to any person or body any of the council’s powers to make laws under paragraph (a); and
(c) delegating to the First Nations Financial Management Board any of the council’s other powers that are required to give effect to a co-management arrangement entered into under section 52.1 or to give effect to third-party management under section 53.1.
Marginal note:Coming into force
(2) 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 the day on which it is made.
Marginal note:Judicial notice
(3) In any proceedings, judicial notice may be taken of laws made under subsection (1).
Marginal note:Statutory Instruments Act
(4) The Statutory Instruments Act does not apply in respect of laws made under subsection (1).
Marginal note:Publication
(5) The First Nation shall publish all laws made under paragraphs (1)(b) and (c) in the First Nations Gazette.
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