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

Act current to 2022-11-16 and last amended on 2022-09-02. Previous Versions

PART 3First Nations Financial Management Board (continued)

Establishment and Organization of Board (continued)

Marginal note:Rules of procedure

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

Marginal note:Head office

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

Marginal note:Staff

  •  (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

 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.

  • 2005, c. 9, s. 49
  • 2018, c. 27, s. 414(E)

Functions and Powers

Marginal note:Review of financial management system

  •  (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 whether the First Nation was in compliance with the standards or as to which aspects of the standards were not complied with by the First Nation.

  • Marginal note:Issuance of certificate

    (3) If after completing a review under subsection (1) the Board is of the opinion that the First Nation was in compliance, in all material respects, 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

    • (a) the basis on which the certificate was issued has materially changed;

    • (b) the First Nation provided information that is incomplete or incorrect or made misrepresentations to the Board; or

    • (c) the First Nation is no longer in compliance, in all material respects, with the standards.

  • 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.

  • 2005, c. 9, s. 50
  • 2015, c. 36, s. 191
  • 2018, c. 27, s. 414(E)

Marginal note:Review of financial management system — non-scheduled entities

  •  (1) On the request of any of the following entities, the Board may review the entity’s financial management system, financial performance or laws or by-laws respecting financial administration to determine whether it is in compliance, in all material respects, with the standards established under subsection (3):

    • (a) a band that is not named in the schedule;

    • (b) a tribal council;

    • (c) an Aboriginal group that is a party to a treaty, land claims agreement or self-government agreement with Canada or with a province, or an entity established under, or as a result of, such a treaty or agreement;

    • (d) an entity — owned or controlled by one or more First Nations or entities referred to in paragraphs (a), (b) or (c) — whose mandate is primarily to promote the well-being or advancement of Aboriginal people; or

    • (e) a not-for-profit organization established to provide public services, including social welfare, housing, recreational, cultural, health or educational services, to Aboriginal groups or Aboriginal persons.

  • Marginal note:Report

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

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

    • (b) an opinion as to whether the entity was in compliance, in all material respects, with the standards or as to which aspects of the standards were not complied with by the entity.

  • Marginal note:Standards

    (3) The Board may establish standards, not inconsistent with the regulations, respecting

    • (a) financial management systems and financial performance of entities referred to in subsection (1); and

    • (b) the form and content of laws or by-laws respecting financial administration of entities referred to in subsection (1).

  • Marginal note:Procedures

    (4) The Board may establish procedures respecting the review referred to in subsection (1).

  • Marginal note:Statutory Instruments Act

    (5) The Statutory Instruments Act does not apply to a standard established under subsection (3) or a procedure established under subsection (4).

  • Marginal note:First Nations Gazette

    (6) All standards established by the Board under subsection (3) shall be published in the First Nations Gazette.

  • 2018, c. 27, s. 398

Marginal note:Required intervention

 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.

  • 2005, c. 9, s. 51
  • 2018, c. 27, s. 414(E)

Marginal note:Imposed co-management

  •  (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.

  • 2005, c. 9, s. 52
  • 2018, c. 27, s. 414(E)

Marginal note:Third-party management

  •  (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) and subsection 9(1);

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

      • (i) exercise any powers and fulfil any obligations of the council under this Act, the regulations made under this Act or any laws made under paragraphs 5(1)(a) to (e),

      • (ii) manage the First Nation’s local revenues, including the local revenue account,

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

      • (iv) provide for the delivery of programs and services that are paid for out of local revenues, manage assets related to those programs and services and enter into or terminate agreements in respect of those programs, services and assets;

    • (b.1) [Repealed, 2018, c. 27, s. 399]

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

    • (d) 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.

    • (e) [Repealed, 2018, c. 27, s. 399]

  • Marginal note:Delegation — consent of council required

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

  • 2005, c. 9, s. 53
  • 2015, c. 36, s. 192
  • 2018, c. 27, ss. 399, 414(E)

Marginal note:Required information

 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.

  • 2005, c. 9, s. 54
  • 2018, c. 27, s. 414(E)

Standards and Procedures

Marginal note:Standards

  •  (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.

  • 2005, c. 9, s. 55
  • 2018, c. 27, s. 414(E)
 
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