PART 3FIRST 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

Marginal note:Establishment

• 38. (1) There is hereby 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 15 directors, including a Chairperson and Vice-Chairperson.

• Marginal note:Capacity, rights, powers and privileges

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

  • (a) enter into contracts;

  • (b) acquire, hold and dispose of property or an interest in property;

  • (c) raise, invest or borrow money; and

  • (d) sue and be sued.

Marginal note:Not agent of Her Majesty

39. The Board is not an agent of Her Majesty.

Marginal note: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.

Marginal note: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 eleven, 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.

• Marginal note:Appointment by AFOA

  (2) The Aboriginal Financial Officers Association of 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.

• Marginal note: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.

• Marginal note:Qualifications

  (4) The board of directors shall be composed of men and women from across Canada, including members of first nations, who are committed to the strengthening of first nation financial management and who have the experience or capacity to enable the Board to fulfil its mandate.

Marginal note:Election of Vice-Chairperson

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

• Marginal note: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.

Marginal note:Reappointment

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

Marginal note:Status

44. Directors shall hold office on a part-time basis.

Marginal note:Remuneration

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

• Marginal note:Expenses

  (2) Directors shall be reimbursed for reasonable travel and other expenses incurred in performing duties while absent from their ordinary place of residence.

Marginal note:Rules of procedure

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

Marginal note:Head office

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

Marginal note:Staff

• 48. (1) The board of directors may

  • (a) hire any staff that is necessary to conduct the work of the Board; and

  • (b) determine the duties of those persons and the conditions of their employment.

• Marginal note:Salaries and benefits

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

Purposes

Marginal note:Mandate

49. The purposes of the Board are to

• (a) assist first nations in developing the capacity to meet their financial management requirements;

• (b) assist first nations in their dealings with other governments respecting financial management, including matters of accountability and shared fiscal responsibility;

• (c) assist first nations in the development, implementation and improvement of financial relationships with financial institutions, business partners and other governments, to enable the economic and social development of first nations;

• (d) develop and support the application of general credit rating criteria to first nations;

• (e) provide review and audit services respecting first nation financial management;

• (f) provide assessment and certification services respecting first nation financial management and financial performance;

• (g) provide financial monitoring services respecting first nation financial management and financial performance;

• (h) provide co-management and third-party management services; and

• (i) provide advice, policy research and review and evaluative services on the development of fiscal arrangements between first nations’ governments and other governments.

Functions and Powers

Marginal note:Review of financial management system

• 50. (1) On the request of the council of a first nation, the Board may review the first nation’s financial management system or financial performance for compliance with the standards established under subsection 55(1).

• Marginal note:Report

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

  • (a) the scope of the review undertaken; and

  • (b) an opinion as to the extent to which the first nation was in compliance with the standards.

• Marginal note:Certificate

  (3) If after completing a review under subsection (1) the Board is of the opinion that the first nation was in compliance with the standards, it shall issue to the first nation a certificate to that effect.

• Marginal note:Revocation of certificate

  (4) The Board may, on giving notice to a council, 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 the basis upon which the certificate was issued has materially changed.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Opinion final

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

Marginal note:Required intervention

51. 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 of the first nation’s local revenues in accordance with section 53, as the Board sees fit.

Marginal note:Imposed co-management

• 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,

  • (a) if, in the opinion of the Board, there is a serious risk that the first nation will default on an obligation to the First Nations Finance Authority; or

  • (b) on receipt of a request or demand to do so under paragraph 33(3)(b) or subsection 86(4).

• Marginal note:Powers

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

  • (a) recommend amendments to a law of the first nation made under this Act;

  • (b) recommend changes to the first nation’s expenditures or budgets;

  • (c) recommend improvements to the first nation’s financial management system;

  • (d) recommend changes to the delivery of programs and services;

  • (e) order that expenditures of local revenues of the first nation be approved by, or paid with cheques co-signed by, a manager appointed by the Board; and

  • (f) exercise any powers delegated to the Board under a law of the first nation or under an agreement between the first nation and the Board or the first nation and the First Nations Finance Authority.

• Marginal note:Termination by Board

  (3) The Board may terminate a co-management arrangement with a first nation on giving notice to its council that the Board is of the opinion that

  • (a) there is no longer a serious risk that the first nation will default on an obligation to the First Nations Finance Authority;

  • (b) where the first nation was in default of a payment obligation to the First Nations Finance Authority, the first nation has remedied the default;

  • (c) a co-management arrangement requested or demanded under paragraph 33(3)(b) or subsection 86(4) is no longer required; or

  • (d) third-party management of the first nation’s local revenues is required.

• Marginal note:Opinion final

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

• Marginal note:Notice

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

Marginal note:Third-party management

• 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,

  • (a) if, in the opinion of the Board, a co-management arrangement under section 52 has not been effective;

  • (b) if, in the opinion of the Board, there is a serious risk that the first nation will default on an obligation to the First Nations Finance Authority; or

  • (c) on receipt of a request or demand to do so under paragraph 33(3)(b) or subsection 86(4).

• Marginal note:Powers

  (2) If the Board assumes third-party management of the local revenues of a first nation, the Board has the exclusive right to

  • (a) subject to subsection (3), act in the place of the council of the first nation to make laws under paragraphs 5(1)(a) to (f);

  • (b) act in the place of the council of the first nation under laws made under paragraphs 5(1)(a) to (e) and manage the first nation’s local revenue account, including any necessary borrowing;

  • (c) provide for the delivery of programs and services that are paid for out of local revenues;

  • (d) assign rights or interests under subsection 5(7); and

  • (e) exercise any powers delegated to the Board under a law of the first nation or an agreement between the first nation and the Board or between the first nation and the First Nations Finance Authority.

• Marginal note:Consent of council required

  (3) The Board shall not make a law under paragraph 5(1)(f) 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.

• Marginal note: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).

• Marginal note: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.

• Marginal note: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

  • (a) it is of the opinion that there is no longer a serious risk that the first nation will default on an obligation to the First Nations Finance Authority and the Authority consents to the termination in writing;

  • (b) where the first nation was in default of an obligation to the First Nations Finance Authority, it is of the opinion that the first nation has remedied the default and the Authority consents to the termination in writing; or

  • (c) it is of the opinion that the situation for which third-party management of the first nation’s local revenues was required under paragraph 33(3)(b) or subsection 86(4) has been remedied.

• Marginal note:Opinion final

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

• Marginal note: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.

Marginal note:Required information

54. At the request of the Board, a first nation that has made a local revenue law 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.

Standards and Procedures

Marginal note:Standards

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

  • (a) the form and content of laws made under section 9;

  • (b) approvals of the Board under Part 1;

  • (c) certification of first nations under section 50; and

  • (d) financial reporting under subsection 14(1).

• Marginal note:Procedures

  (2) The Board may establish procedures respecting

  • (a) the submission for approval and approval of laws made under section 9;

  • (b) the issuance of a certificate under subsection 50(3); and

  • (c) the implementation or termination of a co-management arrangement or third-party management of a first nation’s local revenues.

• Marginal note: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).

• Marginal note: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.

Regulations

Marginal note:Regulations

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

• (a) respecting the implementation of a co-management arrangement or third-party management of a first nation’s local revenues, including the obligations of affected first nations to provide access to financial records; and

• (b) fixing fees that the Board may charge for services, including fees to first nations for co-management and third-party management services, and the manner in which the fees may be recovered.

PART 4FIRST NATIONS FINANCE AUTHORITY

Interpretation

Marginal note:Definitions

57. The following definitions apply in this Part.

“Authority”

« Administra­tion »

“Authority” means the First Nations Finance Authority.

“investing member”

« membre investisseur »

“investing member” means a first nation that has invested in a short-term investment pool managed by the Authority.

“long-term loan”

« prêt à long terme »

“long-term loan” means a loan the term of which is one year or longer.

“member”

« membre »

“member” means a borrowing member or investing member.

“property tax revenues”

« recettes fiscales foncières »

“property tax revenues” means moneys raised under a law made under paragraph 5(1)(a).

“representative”

« représentant »

“representative”, in respect of a first nation that is a member, means the chief or a councillor of the first nation who is designated as a representative by a resolution of its council.

“security”

« titre »

“security” means a security of the Authority issued under paragraph 75(1)(b).

“short-term loan”

« prêt à court terme »

“short-term loan” means a loan the term of which is less than one year.