Budget Implementation Act, 2018, No. 2 (S.C. 2018, c. 27)
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Assented to 2018-12-13
PART 4Various Measures (continued)
DIVISION 122005, c. 9; 2012, c. 19, s. 658First Nations Fiscal Management Act (continued)
401 Subsections 61(1) and (2) of the Act are replaced by the following:
Marginal note: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.
Marginal note: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.
402 (1) Paragraph 63(3)(a) of the Act is replaced by the following:
(a) the person ceases to hold office as a chief or councillor of a First Nation that is a borrowing member;
(2) Paragraph 63(3)(b) of the English version of the Act is replaced by the following:
(b) the person’s designation as a representative of a borrowing member is revoked by a resolution of the council of that First Nation; or
403 (1) Subparagraphs 74(a)(i) and (ii) of the Act are replaced by the following:
(i) long-term financing or lease financing of capital assets for the provision of local services on reserve lands, or
(2) Paragraph 74(d) of the Act is replaced by the following:
(d) provide investment services to First Nations and entities referred to in any of paragraphs 50.1(1)(a) to (e); and
404 Subsection 78(1) of the French version of the Act is replaced by the following:
Marginal note:Priorité
78 (1) L’Administration a priorité sur tous les autres créanciers d’une première nation insolvable pour les sommes dont le versement à l’Administration est autorisé par un texte législatif pris en vertu des alinéas 5(1)b) ou d), par un accord régissant un compte de recettes garanties en fiducie ou en fidéicommis ou par la présente loi, en ce qui concerne toute créance qui prend naissance à la date à laquelle la première nation reçoit le versement initial du premier prêt qu’elle a obtenu auprès de l’Administration ou après cette date.
405 Section 79 of the Act is replaced by the following:
Marginal note:Limitations — loans
79 The Authority shall not make a long-term loan to a borrowing member for the purpose of financing capital assets for the provision of local services on reserve lands unless the First Nations Tax Commission has approved a law made by the borrowing member under paragraph 5(1)(d).
406 Paragraphs 84(5)(a) and (b) of the Act are replaced by the following:
(a) by less than 50% of the total amount contributed by borrowing members who have obtained financing for which that debt reserve fund was established, the Authority may, in accordance with the regulations, require those borrowing members to pay without delay amounts sufficient to replenish the debt reserve fund; and
(b) by 50% or more of the total amount contributed by borrowing members who have obtained financing for which that debt reserve fund was established, the Authority shall, in accordance with the regulations, require those borrowing members to pay without delay amounts sufficient to replenish the debt reserve fund.
407 Section 89 of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (b) and by repealing paragraph (d).
408 The Act is amended by adding the following after section 89:
PART 5Payment of Moneys
Marginal note: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
(a) moneys held by Her Majesty for the use and benefit of the First Nation; and
(b) moneys to be collected or received in future by Her Majesty for the use and benefit of the First Nation.
Marginal note:Information to accompany resolution
(2) The resolution shall be accompanied by proof that
(a) the council has made a law respecting the financial administration of the First Nation under paragraph 9(1)(a) and the law has been approved by the First Nations Financial Management Board;
(b) the council has obtained independent legal advice and independent financial advice with respect to the risks of the payment of the moneys to the First Nation; and
(c) the payment of the moneys to the First Nation has been approved under section 91.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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
(a) their right to vote and the means of exercising that right;
(b) the fact that council has obtained the legal and financial advice referred to in subsection (3);
(c) the implications of the payment of the moneys and the reasons why the payment is for the benefit of the First Nation; and
(d) the fact that the council has made a law respecting the financial administration of the First Nation under paragraph 9(1)(a).
Marginal note: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.
Marginal note:Minimum participation
(6) Despite subsection (5), the payment is not approved unless at least 25% of all eligible voters participated in the vote.
Marginal note:Increased percentage
(7) The council may, by resolution adopted before the vote, increase the percentage of eligible voters required under subsection (6).
Marginal note: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
(a) the council has made a law respecting the financial administration of the First Nation under paragraph 9(1)(a) and the law has been approved by the First Nations Financial Management Board;
(b) the council has obtained independent legal advice and independent financial advice with respect to the risks of the payment of the moneys to the First Nation; and
(c) the payment of the moneys to the First Nation has been approved under section 91.
Marginal note: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.
Marginal note: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.
Marginal note:Liability for future management
93 Following the payment of moneys under section 92, Her Majesty is not liable for the management of those moneys.
Marginal note: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.
Marginal note: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.
409 Subsection 125(1) of the English version of the Act is replaced by the following:
Marginal note: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.
410 Section 136 of the Act is replaced by the following:
Marginal note:Limit of liability — commissioner, director, employee, etc.
136 No civil proceedings lie against a commissioner or employee of the First Nations Tax Commission, a director or employee of the First Nations Financial Management Board or a person acting on behalf of the Commission or Board for anything done, or omitted to be done, in the exercise or purported exercise in good faith of any power, or in the performance or purported performance in good faith of any duty, of that person in accordance with this Act or regulations made under this Act.
Marginal note:Limit of liability — co-management or third-party management
136.1 Despite anything in federal or provincial law, if the First Nations Financial Management Board has required a First Nation to enter into a co-management arrangement in respect of the First Nation’s local revenues in accordance with section 52 or has assumed management of a First Nation’s local revenues in accordance with section 53, 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.
Marginal note: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
(a) awarded in any civil proceedings brought against any of them in relation to anything done, or omitted to be done, in the exercise or purported exercise of any power, or in the performance or purported performance of any duty, of that person or the Board in accordance with this Act or the regulations made under this Act, unless a court otherwise directs; or
(b) awarded against the Board in any civil proceedings.
411 Section 141 of the Act is renumbered as subsection 141(1) and is amended by adding the following:
Marginal note:Amendments to schedule in regulations
(2) If the regulations made under subsection (1) include a schedule listing the Aboriginal groups that are subject to those regulations, the Minister may, by order, at the request of the governing body of an Aboriginal group referred to in that subsection, amend the schedule in order to
(a) add or change the name of the Aboriginal group; or
(b) delete the name of the Aboriginal group, as long as there are no amounts owing by the Aboriginal group to the First Nations Finance Authority that remain unpaid.
412 The Act is amended by adding the following after section 141:
Marginal note:Regulations — organizations referred to in paragraph 50.1(1)(e)
141.1 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
(a) adapting any provision of this Act or of any regulation made under this Act; and
(b) restricting the application of any provision of this Act or of any regulation made under this Act.
Marginal note: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
(a) adapting any provision of this Act or of any regulation made under this Act; and
(b) restricting the application of any provision of this Act or of any regulation made under this Act.
Marginal note:Replacement of “aboriginal”
413 The English version of the Act is amended by replacing “aboriginal” with “Aboriginal” in the following provisions:
(a) the preamble;
(b) section 3; and
(c) section 141.
Marginal note:Replacement of “first nation”, “first nation’s” and “first nations”
414 The English version of the Act is amended by replacing “first nation”, “first nation’s” and “first nations” with “First Nation”, “First Nation’s” and “First Nations”, respectively, in the following provisions:
(a) the long title;
(b) the preamble;
(c) the definitions borrowing member, first nation, local revenues and third-party management in subsection 2(1);
(d) section 4;
(e) subparagraph 5(1)(e)(vi) and paragraph 5(1)(g);
(f) subsections 6(1), (2) and (4);
(g) subsections 8(2) and (5);
(h) subsections 9(1) and (5);
(i) subsection 10(2);
(j) subsection 13(1);
(k) section 13.1;
(l) subsections 14(1) and (1.1) and paragraph 14(2)(a);
(m) section 15;
(n) subsection 20(5);
(o) sections 29 and 30;
(p) paragraphs 32(1)(a) and (b);
(q) paragraphs 33(1)(a) and (b) and subsections 33(2) and (3);
(r) paragraph 35(1)(e);
(s) subsection 36(1) and paragraph 36(3)(a);
(t) subsection 41(4);
(u) sections 49 and 50;
(v) sections 51 and 52;
(w) subsection 53(1), the portion of subsection 53(2) before paragraph (b) and subsections 53(3) to (6) and (8);
(x) section 54;
(y) paragraphs 55(1)(c) and (2)(c);
(z) paragraphs 56(a) and (b);
(z.1) the definitions investing member, property tax revenues and representative in section 57;
(z.2) paragraph 74(e);
(z.3) sections 76 and 77;
(z.4) subsection 78(1);
(z.5) subsection 86(4);
(z.6) sections 137 and 138; and
(z.7) sections 145 and 145.1.
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