First Nations Fiscal Management Act (S.C. 2005, c. 9)

Marginal note:Third-party management — other revenues

• 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,

  • (a) if, in the opinion of the Board, the co-management arrangement entered into under section 52.1 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 relating to a loan secured by other revenues; or

  • (c) if the Board has received a notice under subsection 86(5).

• Marginal note:Powers

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

  • (a) subject to subsection (5), act in the place of the council of the First Nation to make laws under paragraphs 8.1(1)(a) and (b) and subsection 9(1);

  • (b) act in the place of the council of the First Nation to

    • (i) with respect to other revenues, exercise any powers and fulfil any obligations of the council under this Act, including under the regulations made under this Act, or under any laws made under paragraph 8.1(1)(a) or 9(1)(a),

    • (ii) manage the First Nation’s other revenues,

    • (iii) manage assets of the First Nation that are generating other revenues, including by exercising any powers of the council to terminate an agreement, or enter into a new agreement, in respect of those assets,

    • (iv) undertake any necessary borrowing for the purpose of remedying the situation for which third-party management was required, and

    • (v) provide for the delivery of programs and services that are paid for out of the First Nation’s other revenues, manage assets related to those programs and services and enter into or terminate agreements in respect of those programs, services and assets; and

  • (c) with respect to other revenues, exercise any powers or fulfil any obligations 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: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.

• Marginal note: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).

• Marginal note: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.

• Marginal note: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).

• Marginal note: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.

• Marginal note: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

  • (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 relating to a loan secured by other revenues and the Authority consents to the termination in writing;

  • (b) in the case of a First Nation that was in default of an obligation to the First Nations Finance Authority relating to a loan secured by other revenues, it is of the opinion that the First Nation has remedied the default and the Authority consents to the termination in writing;

  • (c) it is of the opinion that the situation for which third-party management of the First Nation’s other revenues was required has been remedied; or

  • (d) in the case of third-party management that was assumed by the Board following receipt of a notice under subsection 86(5), the First Nations Finance Authority has, in writing, requested the termination and stated its reasons for the request.

• Marginal note:Opinion final

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

• Marginal note: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.

Marginal note:Required information

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.

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 or other 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.

Data Collection, Analysis and Publication

Marginal note: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.

• Marginal note:No identifying information

  (2) The Board shall ensure that no First Nation, 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).

• Marginal note: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, entity or individual to whom it relates consents to being identified.

Marginal note:Information sharing agreements

55.2 The Board may enter into agreements with a First Nation, 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

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 or other 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.

Marginal note: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

• (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.

PART 4First Nations Finance Authority

Interpretation

Marginal note:Definitions

57 The following definitions apply in this Part.

Authority

Authority means the First Nations Finance Authority. (Administration)

investing member

investing member means a First Nation that has invested in a short-term investment pool managed by the Authority. (membre investisseur)

long-term loan

long-term loan[Repealed, 2023, c. 16, s. 34]

member

member means a borrowing member or investing member. (membre)

property tax revenues

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

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. (représentant)

security

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

short-term loan

short-term loan[Repealed, 2023, c. 16, s. 34]

Establishment and Organization of Authority

Marginal note:Establishment

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

Marginal note:Membership

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

Marginal note: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.

• Marginal note: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.

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.

• Marginal note:Election of directors

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

Marginal note: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.

Marginal note:Term of office

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

• Marginal note:Additional terms

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

• Marginal note:Ceasing to be director

  (3) A person ceases to be a director when

  • (a) the person ceases to hold office as a chief or councillor of a First Nation that is a borrowing member;

  • (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

  • (c) the person is removed from office before the expiry of the term of the appointment by a special resolution of the board of directors.