Appearance before the Standing Senate Committee on Indigenous Peoples (APPA) - Bill C - 45, 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 (June 6, 2023)

Scenario Note

The Standing Senate Committee on Indigenous Peoples (APPA) will be meeting on June 6 at 9:00 a.m., 2023 to study Bill C - 45. Minister Marc Miller will be appearing in person. An overview of this process is outlined below.

Opening Remarks

Kwe Kwe, Tansi, Hello, Bonjour.

Before I begin, I would like to acknowledge that we're meeting on the unceded traditional territory of the Algonquin Anishinaabeg people.

Thank you to the committee and the Chair for the invitation to appear to talk about this important legislation to amend the First Nations Fiscal Management Act. We've been engaging with Indigenous partners about it for some time and the main message we hear is "hurry up and get it done."

Mr. Chair, this Act came into force in 2006 and, to date, 348 First Nations have chosen to participate, providing them with a framework to assert their jurisdiction in financial management, taxation, and access to capital markets.

First Nations participating in the Act have better access to capital, more fiscal powers, and better financial management systems. As a result, they're growing their economies and improving socio-economic outcomes (PDF).

Over time, First Nation signatories, and the First Nations-led institutions established by the Act – namely, the First Nations Financial Management Board, the First Nations Tax Commission, and the First Nations Finance Authority - have identified ways to improve it.

That's what we're talking about today: amendments that have been co-developed with the First Nations institutions to update the Act.

The proposed amendments would expand and modernize the mandates of the First Nations Tax Commission and the First Nations Financial Management Board to better reflect their current and future activities.

They would establish a First Nations Infrastructure Institute that would provide First Nations and other interested Indigenous groups with tools and support to implement and manage their infrastructure.

They would also provide First Nations who are participating in the Act with the power to make laws to regulate services provided by or on behalf of the First Nations.

These amendments are being proposed during an important moment in Canada's process of decolonization. As you know, the United Nations Declaration on the Rights of Indigenous Peoples Act came into force in June 2021, following this committee's thorough study of Bill C-15.

Our government, as a whole, is working with First Nations, Inuit and Métis to implement the United Nations Declaration, and consultations with Indigenous partners have led to the development of a draft action plan. Some action plan measures identified for my department to work on with partners, such as the FNFMA, include amendments to the Fiscal Management Act and implementing the right to self-determination.

The proposed amendments we're talking about today are key to this work.

They would align with the United Nations Declaration, and the Truth and Reconciliation Commission Calls to Action, since they support a fiscal relationship that promotes economic development and Indigenous governance through institutional development.

Mr. Chair, before I finish I'd like to provide some examples of how this Act promotes social change with some stories about First Nations in British Columbia.

Neskonlith (Nes-con-lith) First Nation financed a daycare centre that offers Secwepemc (shi-HUEP-mah) cultural activities as its core programming and is open to children of all backgrounds. The circular design is like a winter house – Kekuli -  but it also acknowledges how children are in the middle to nurture, and to be raised in a good way.

'Namgis (NOM-gees) First Nation achieved Financial Management Systems certification in April 2021, which strengthened their governance capacity in key areas. By developing their Financial Administration Law, 'Namgis now has more flexibility in regard to meeting the needs of their community.

Communities are also using financing to build renewable power projects. For example, Sts'ailes (Sh-Hay-Lis) First Nation and Taku River Tlingit (TA-koo River Kling-git) First Nation have constructed run-of-river electricity generation stations. This will help these communities transition to a more sustainable economy.

These are just a few examples and it is clear updating this Act will accelerate social change. The proposed amendments we're discussing are an important part of supporting the self-determination of First Nations communities as they rebuild their nations.

They are about creating an economy that works for everyone. Because in order for Canada to work for everyone, we need an economy that allows prosperity for all.

Meegwetch. Thank you. Merci.

Clause-by-clause analysis

Clause 1

This clause would amend the long title of the Act to include reference to: (i) First Nations powers under the Act beyond real property taxation—i.e. powers to make laws respecting financial administration and services provided on reserve lands; (ii) the new First Nations Infrastructure Institute; and (iii) the pooled borrowing aspect of the First Nations Fiscal Management Act regime.

Clause 2

This clause would make general updates to the Preamble of the Act, and include specific references to: the Truth and Reconciliation Commission's Calls to Action and the Articles of the United Nations Declaration on the Rights of Indigenous Peoples; the Chinook trading language term "taksis"; and "local revenues" in place of "real property taxation" where appropriate.

Clause 3(1)

This clause would repeal the definition of "third-party management" under s. 2(1) of the Act. References to third-party management under the Act would now cross-reference the applicable section numbers: i.e. s. 53 for third-party management of local revenues and s. 53.1 for third-party management of other revenues.

Clause 3(2)

This clause would amend s. 2(1) to include a defined term for the "First Nations Infrastructure Institute," and would mean the institute established under s. 102(1)—see Clause 43 below.

Clause 3(3) 

This clause would integrate the definitions of "intermediate account," "other revenues," and "secured revenues trust account" from the Financing Secured by Other Revenues Regulations into the Act. It would also add a new type of revenue to the list of "other revenues" that may be used to secure financing from the First Nations Finance Authority. Revenues from taxes collected by Canada on a First Nation's behalf, including revenues collected under the First Nations Goods and Services Tax Act, would be eligible for use should the tax collection agreement specifically permit such a use and any other applicable conditions are satisfied.

Clause 3(4)

In order to facilitate participation in pooled borrowing by borrowing members beyond scheduled First Nations, this clause would amend the scope of the term "borrowing member" for the purposes of ss. 57, 59, 74, 77, 78, 83 and 84 to include 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 s. 141 or 141.1. This clause would also amend the scope of the term "borrowing member" for the purposes of s. 61 to include an Indigenous group, other than a band named in the schedule, that has been accepted as a borrowing member under a regulation made under s. 141.

Clause 3(5)

This clause would add a new regulation-making power for the Governor in Council to prescribe additional types of revenues under paragraph (k) of the definition "other revenues"—see clause 3(3) above.

Clause 4

As part of the integration of the Financing Secured by Other Revenues Regulations into the Act, this clause would ensure that First Nations must first make a financial administration law under s. 9(1)(a) and have this law approved by the First Nations Financial Management Board before they can make a borrowing law secured by other revenues law pursuant to s. 8.1(1)(a)—as is currently the case for borrowing laws made under s. 5(1)(d).

Clause 5 (1)

This clause would amend the chapeau of s. 5(1) to remove references to subsections that have been repealed and would clarify the provisions which the law-making power is in fact "subject to."

Clause 5(2)

As part of the integration of the Financing Secured by Other Revenues Regulations into the Act, this clause would amend s. 5(1)(d) to clarify that laws made under this paragraph are limited to laws respecting borrowing secured by local revenues.

Clause 5(3)

This clause would amend s. 5(1)(e) such that First Nations may make laws respecting the enforcement of laws made under ss. 5(1)(a) and (a.1) more broadly rather than just "in respect of outstanding taxes, charges or fees." 
Clause 5(4)

As part of the integration of the Financing Secured by Other Revenues Regulations into the Act, this clause would clarify that laws made under s. 5(g) only allow for the delegation of powers to the First Nation Financial Management Board that are required to give effect to  a co-management arrangement or third-party management of a First Nation's local revenues. An equivalent power to delegate would be included under Clause 6 with respect to other revenues.

Clause 5(5)

This clause would expressly empower First Nations to apply to courts of competent jurisdiction for court orders directing persons or entities to comply with a local revenue law. This clause would also expressly allow First Nations to commence proceedings in courts of competent jurisdiction in order to collect amounts owing to the First Nation under a local revenue law. Finally, this clause would enable First Nations with a land code or First Nation law under the Framework Agreement on First Nation Land Management Act to use any enforcement provisions in their land code or law, other than those relating to summary conviction offences, to enforce their local revenue laws.

Clause 6

As part of the integration of the Financing Secured by Other Revenues Regulations into the Act,  this clause would integrate the power for First Nations to make laws respecting the borrowing from the First Nations Finance Authority of money secured by other revenues, as well as ancillary powers of delegation. First Nations would be required to publish laws delegating their law-making and other powers under this section in the First Nations Gazette; the borrowing laws themselves would be published on the First Nations Finance Authority's website pursuant to the new s. 79.1— see Clause 38(2) below.

Clause 7

This clause would amend the chapeau of s. 9(1) in order to clarify which provisions the law-making power is in fact "subject to."

Clauses 8(1) to 8(3)

These clauses would clarify that ss. 11(1) to (3) only apply with respect to borrowing members with an unpaid loan secured by local revenues. These clauses would also replace references to "financing" in s. 11(1)(a) with "loans" in order to ensure consistency throughout the Act.

Clause 9

As part of the integration of the Financing Secured by Other Revenues Regulations into the Act, this clause would integrate the accounting and reporting requirements for loans secured by other revenues into the Act.

This clause would also amend s. 15 of the Act to reflect the non-application of the provisions of the Indian Act listed therein to borrowing from the First Nations Finance Authority of money that is secured by other revenues—as is the case for borrowing secured by local revenues.

Clause 10

This clause would amend the definition of "taxpayer" to include persons paying fees pursuant to laws made under s. 5(1)(a.1).

Clause 11

This clause would amend s. 20(5) of the Act to replace the gendered expression "men and women" with the gender-neutral term "individuals." The clause would also replace the expression "a system of First Nations real property taxation" with "First Nations local revenue systems."

Clause 12

This clause would make a minor amendment to s. 23(2) to replace the gendered expression "his or her" with the gender-neutral term "their."

Clause 13

This clause would amend s. 29 in order to expand and modernize the mandate of the First Nations Tax Commission. Specific amendments would include:

• replacing references to "real property taxation" with the term "local revenues" where appropriate;
• recognizing that First Nations' local revenue systems are part of the broader Canadian fiscal framework;
• clarifying the First Nations Tax Commission's role with respect to dispute resolution;
• updating the First Nations Tax Commission's role in training, education, and research;
• including an explicit purpose for the Commission to conduct research and provide advice to the Government of Canada, including the Minister, as well as collaborating with multiple stakeholders and levels of government; and
• including an express purpose for the Commission to collect, analyze, abstract and publish data for statistical purposes related to the Commission's mandate.

Clause 14(1)

This clause would simplify the provision by replacing unnecessary text with a cross-reference to the description of financing in s. 74(a).

Clause 14(2)

This clause would amend the Act to clarify the precondition regarding unutilized borrowing capacity that the First Nations Tax Commission evaluates prior to approving a local revenue borrowing law.

Clause 14(3)

This clause would simplify the provision by replacing unnecessary text with a cross-reference to the description of financing in s. 74(a).

Clause 14(4)

This clause would simplify the provision by removing unnecessary text in light of the changes made by Clauses 14(1) and 14(3) above.

Clauses 15(1) to 15(4)

As part of the integration of the Financing Secured by Other Revenues Regulations into the Act, these clauses would amend s. 33 of the Act to reflect the fact that s. 33 is only applicable in the local revenues context.

Clause 16

This clause would add a new s. 35.1 that would empower the First Nations Tax Commission to collect, analyze, and publish data for statistical purposes on matters within the scope of its mandate. This clause would also provide protections for identifying information that may be contained within the data collected. Finally, it would provide the Commission with the ability to enter into information sharing agreements.

Clause 17(1)

This clause would add a new s. 41(1.1) that would require the Governor in Council to endeavour to ensure that a majority of the directors of the First Nations Financial Management Board are Indigenous.

Clause 17(2)

This clause would update the qualification for directors of the First Nations Financial Management Board by adding reference to non-scheduled First Nations, tribal councils, and modern treaty and self-governing First Nations. This clause would also replace the gendered expression "men and women" with the gender-neutral term "individuals."

Clause 18

This clause would amend s. 44 of the Act by changing the status of the office of the chairperson of the First Nations Financial Management Board from part-time to full-time. The other directors would continue to hold office on a part-time basis.

Clause 19

Further to Clause 18, this clause would amend s. 45(2) to provide that the Chairperson would be reimbursed for reasonable travel and other expenses incurred in performing their duties while absent from their ordinary place of work rather than from their ordinary place of residence.

Clause 20(1)

This clause would broaden the scope of the First Nations Financial Management Board's mandate in ss. 49(a) to (c) to include entities referred to in s. 50.1(1)

Clause 20(2)

This clause would update and expand on the First Nations Financial Management Board's mandate under ss. 49(g) to (i), including by broadening the Board's review and monitoring role, integrating the other revenues context into the Board's potential role in co- and third-party management, and broadening the Board's advisory and research functions. This clause would also expand the Board's mandate to include an ability to collect, analyze, and publish data for statistical purposes within the scope of the Board's mandate. Finally, the mandate would be expanded beyond First Nations to include entities referred to in s. 50.1(1).

Clause 21

This clause would add a new section to the Act so that the First Nations Financial Management Board could provide an optional review and monitoring service to First Nations respecting any aspect of their financial administration for compliance with the Board's standards. Upon completion of its review, the Board would provide the First Nation with a report setting out its findings and its recommendations, if any.

Clauses 22(1) to 22(2)

These clauses would amend Section 50.1 of the English version of the Act to change the term "Aboriginal" to "Indigenous". Clause 22(2) would also amend s. 50.1(1)(e) to include an express reference to "infrastructure" alongside the other "public services" referred to in that paragraph.

Clause 23

This clause would add a new section to the Act so that the First Nations Financial Management Board could provide an optional review and monitoring service to entities referred to in s. 50.1(1) respecting any aspect of their financial administration for compliance with the Board's standards. Upon completion of its review, the Board would provide the entity with a report setting out its findings and its recommendations, if any.

Clause 24

This clause would make several amendments in order to integrate the provisions of the Financing Secured by Other Revenues Regulations related to intervention by the First Nations Financial Management Board under the Act. Specifically, this clause would clarify that s. 51(1) would apply only in the context of local revenues and would add a new s. 51(2) for required intervention related to other revenues. In both cases, the Board would still retain its discretion to determine whether to impose co-management or third-party management.

Clauses 25(1) to 25(6)

These clauses would make several amendments related to integration into the Act of the provisions of the Financing Secured by Other Revenues Regulations regarding co-management by the First Nations Financial Management Board. Specifically, these clauses would clarify that s. 52 would apply only in the context of imposed co-management by the Board in situations relating to a loan secured by local revenues or to a notice under s. 33(3)(b) or s. 86(4) received by the Board.

Clause 26

As part of the integration of the Financing Secured by Other Revenues Regulations into the Act, this clause would add a new s. 52.1 to both replicate the provisions of s. 52 of the Act and integrate elements of the Financing Secured by Other Revenues Regulations related to co-management by the First Nations Financial Management Board, but provide that this new s. 52.1 would apply only in the context of imposed co-management by the Board in situations relating to a loan secured by other revenues or to a notice under s. 86(5) received by the Board.

Clauses 27(1) to 27(7)

These clauses would make several amendments related to the integration into the Act of the provisions of the Financing Secured by Other Revenues Regulations regarding third-party management by the First Nations Financial Management Board. Specifically, these clauses would clarify that s. 53 would apply only in the context of imposed third-party management by the Board in situations relating to a loan secured by local revenues or to a notice under s. 33(3)(b) or s. 86(4) received by the Board.

Clause 27(6) would clarify that the First Nations Financial Management Board is not an agent or mandatary of the First Nations Finance Authority or the First Nations Tax Commission while exercising its role in third-party management. 

Along with the amendments related to the integration into the Act of the provisions of the Financing Secured by Other Revenues Regulations, clause 27(7) also adds to s. 53 that the First Nations Financial Management Board may terminate third-party management stemming from a notice under s. 86(4) if the First Nations Finance Authority makes a written request – including its reasons – for the termination.

Clause 28

As part of the integration of the Financing Secured by Other Revenues Regulations into the Act, this clause would add a new s. 53.1 to both replicate the provisions of s. 53 of the Act and integrate elements of the Financing Secured by Other Revenues Regulations related to third-party management by the First Nations Financial Management Board, but provide that this new s. 53.1 would apply only in the context of imposed co-management by the Board in situations relating to a loan secured by other revenues or to a notice under s. 86(5) received by the Board.

Clause 29

This clause would make a minor amendment related to the integration of the provisions of the Financing Secured by Other Revenues Regulations by adding an express reference to other revenues in s. 54.

Clause 30

This clause would make a minor amendment related to the integration of the provisions of the Financing Secured by Other Revenues Regulations. Specifically, this clause would integrate the ability for the First Nations Financial Management Board to make procedures for the implementation or termination of a co-management arrangement or third-party management of a First Nation's other revenues.

Clause 31

This clause would add a new s. 55.1 that would empower the First Nations Financial Management Board to collect, analyze, and publish data for statistical purposes on matters within the scope of its mandate. This clause would provide protections for identifying information that may be contained within the data collected. Finally, it would provide the Board with the ability to enter into information sharing agreements.

Clause 32(1)

This clause would make a minor amendment related to the integration of the provisions of the Financing Secured by Other Revenues Regulations. Specifically, this clause would enable the Governor in Council to make regulations respecting the implementation of a co-management arrangement or third-party management of a First Nation's other revenues.

Clause 32(2)

This clause would make a minor amendment to the French version of the Act related to integration of the provisions of the Financing Secured by Other Revenues Regulations. Specifically, this clause would remove the reference to "des recettes locales" (local revenues) such that the provision enabling the Governor in Council to make regulations fixing fees for First Nations Financial Management Board services could also apply with respect to other revenues.

Clause 33

This clause would make a minor amendment to the French version of the Act related to the integration of the provisions of the Financing Secured by Other Revenues Regulations.  Specifically, this clause would remove the reference to "des recettes locales" (local revenues) to ensure that the authority for the Governor in Council to make regulations enabling an entity referred to in s. 50.1(1) to obtain the services of the First Nations Financial Management Board (other than co-management and third-party management services) would also apply with respect to other revenues.

Clause 34

This clause would repeal the definitions of "long-term loan" and "short-term loan" in s. 57 of the Act as they are no longer needed due to changes to s. 31 of the Act contained in Clause 35 below.

Clause 35 (1)

This clause would: (i) integrate the content of the definitions of "long-term loan" and "short-term loan" that would be repealed by Clause 34 above; (ii) remove reference to "lease financing" in s. 74(a)(i); add reference to "refinancing"; and remove an unnecessary reference to laws made under s. 5(1)(b) in s. 74(a)(ii).

Clause 35(2)

This clause would change the term "financing" to "loans" to better reflect the services offered by the First Nations Finance Authority.

Clause 35(3)

As part of the integration of the Financing Secured by Other Revenues Regulations into the Act, this clause would integrate the purposes for which the First Nations Finance Authority could make loans to its borrowing members through the use of other revenues as security for the loans.

Clause 35(4)

This clause would remove the reference to "long-term" to better reflect the scope of the advice that could be provided by the First Nations Finance Authority.

Clause 36

This amendment to s. 77 is necessary in order to combine the existing debt reserve funds established under ss. 84(1)(a) and (b) into a single debt reserve fund. This clause would mean that, in order to cease to be a borrowing member, the borrowing member would require the consent of all other borrowing members, not just borrowing members with loans secured by a particular type of revenue.

Clause 37

This clause would make several amendments to s. 78 of the Act in order to: (i) capture any entities that could be participating in pooled borrowing under the Act by way of regulations made under s. 141 and 141.1 by replacing the term "First Nation" with the term "borrowing member"; (ii) clarify that the First Nations Finance Authority's priority over all other creditors of the borrowing member is for all moneys authorized or obligated to be paid to the Finance Authority; (iii) clarify all of the sources under which the moneys could be authorized or obligated to be paid; and (iv) support the integration of the Financing Secured by Other Revenues Regulations,  by replacing the reference to "a law made under paragraph 5(1)(b) or (d)" with a reference to "a law made by the borrowing member".

Clause 38(1)

This clause would remove the expressions "long-term" and "for the purpose of financing capital assets for the provision of local services on reserve lands" to broaden the scope of application of this limitation to all loans regardless of the length of their term or their purpose. The amendment to include the phrase "in respect of that loan" would add clarity.

Clause 38(2)

This clause would make addition amendments to s. 79 of the Act (to come into force at a later date than Clause 38(1)) that would set out the two different limitations – one that only applies to loans secured by property tax revenues and another that applies to loans secured by other revenues. The latter integrates the content of s. 17 of the Financing Secured by Other Revenues Regulations. At the same time, this clause also integrates the content of s. 18 of the Financing Secured by Other Revenues Regulations respecting the registry and publication of borrowing laws made under 8.1(1)(a) – see Clause 6 above.

Clause 39

This clause would integrate into ss. 80 and 81 of the Act the content of the definitions of "long-term loan" and "short term loan" that would be repealed by Clause 34 above. It would also clarify that the restriction on financing under s. 80 would only apply as long as a borrowing member has an outstanding loan from the First Nations Finance Authority.

Clause 40(1)

This clause would amend s. 84 of the Act to eliminate the requirement for the First Nations Finance Authority to maintain separate debt reserve funds for loans secured by property tax revenues and loans secured by other revenues, and instead require the Finance Authority to maintain a single debt reserve fund for all loans.

Clause 40(2)

This clause would amend s. 84(2) to require the First Nations Finance Authority to provision the debt reserve fund for financing secured by property tax revenues by withholding the required amounts of all loans secured by property tax revenues regardless of the length of their terms.

Clause 40(3)

This clause would make further amendments to s. 84 in order to combine the existing debt reserve funds established under ss. 84(1)(a) and (b) into a single debt reserve fund. It would also remove reference to a regulation fixing the percentage of the amount of a loan that should be withheld and placed into the debt reserve fund, as the regulation-making power would be repealed by Clause 42 below. Further, this clause would adjust the manner of calculating when debt reserve fund replenishment payments under s. 84(5) may be required in accordance with new regulations that will be used to determine when the debt reserve fund would need to be replenished by borrowing members. Finally, this clause would clarify that only those borrowing members with an outstanding loan from the First Nations Finance Authority could be called on by the Authority to replenish the debt reserve fund.

Clauses 41(1) to 41(3)

These clauses would make several amendments to s. 86 of the Act related to the integration of the provisions of the Financing Secured by Other Revenues Regulations. In particular, this clause would: (i) distinguish, in s. 86(3), betweenrecommendations by the First Nations Financial Management Board for intervention under ss. 52 or 53 with respect to local revenues, or under ss. 52.1 or 53.1 with respect to other revenues; (ii) restrict required intervention under s. 86(4) to circumstances involving local revenues; and (iii) integrate, into a new s. 86(5), the adaptation to s. 86(4) from the Financing Secured by Other Revenues Regulations for circumstances involving other revenues.

Additionally, Clauses 41(1) and 41(3) would provide that a copy of the First Nations Financial Management Board's report under s. 86(3) and copies of the First Nations Finance Authority's notices under ss. 86(4) and (5) must be provided to the First Nations Tax Commission.

Clause 42

This clause would add an authority for the Governor in Council to make regulations that are required for determining when the debt reserve fund would need to be replenished by borrowing members. This clause would also repeal the unused regulation-making authority contained in s. 89(b) – see Clause 40(3).

Clause 43

[First Nations Powers Respecting Services (ss. 96-100)]

(i) Power to Make Laws Respecting the Provision of Services

This clause would create a new Part 5.1 of the Act entitled "First Nations Powers Respecting Services."

In this part, First Nations would be empowered to make laws respecting the provision of services on their reserve lands as well as infrastructure used in the provision of those services [s. 97(1)]. For the purposes of this law-making power, "services" would be defined as services provided on reserve lands by or on behalf of a First Nation, and would include water, wastewater management, drainage, waste management, animal control, recreation, transportation, telecommunications, and energy.

Laws made under this law-making power would only apply within the geographical limits of the First Nation's reserve [s. 97(2)].

(ii) Enforcement of Laws Respecting the Provision of Services

First Nations would be able to ensure compliance with these laws through the use of a number of enforcement measures, including "stop work" and "do work" orders [s. 97(1)(c)(i) and (ii)] and discontinuance of services [s. 97(1)(c)(v)]. Further, First Nations would be able to recover costs incurred while enforcing their laws, including by imposing liens on reserve lands and interests or rights in reserve lands [s. 97(1)(c)(iii) and (iv)]. These enforcement measures would be subject to regulation by the Governor in Council [s. 97(6)].

In the event that a person or entity fails to comply with an order to "stop work" or "do work," First Nations would also be empowered to take corrective action at the expense of the person named in the order [s. 97(3)]. 

Like in Clauses 5(5) and 5(6) above, First Nations would also be expressly empowered to: apply to courts of competent jurisdiction for court orders directing persons or entities to comply with a service law; and enable First Nations with a land code or First Nation law under the Framework Agreement on First Nation Land Management Act to use any enforcement provisions in their land code or law, other than those relating to summary conviction offences, to enforce their service laws [s. 97(4) and (5)].

(iii) Other Aspects of First Nation Laws

This clause would also provide for publication, judicial notice, exemption from the Statutory Instruments Act and coming into force of laws respecting the provision of services [ss. 97(7) to 100].

[First Nations Infrastructure Institute (ss. 101 – 113.92)

[Establishment and Organization of the Institute]

This clause would also create a new Part 5.2 of the Act entitled "First Nations Infrastructure Institute." This part would establish the First Nations Infrastructure Institute ("Institute").

The Institute would be managed by a board of directors consisting of ten directors, including a Chairperson and Vice-Chairperson [s. 102(1)]. The board of directors would be composed of individuals from across Canada, including members of First Nations. The Chairperson would hold office on a full-time basis, while the other directors would hold office on a part-time basis. The Chairperson would be the Chief Executive Officer of the Institute [s. 112(1)]. The remuneration of directors would be determined by the Governor in Council [s. 111].

The Institute would have the capacity, rights, powers and privileges of a natural person [s. 102(2)] and would not be an agent of His Majesty in right of Canada [s. 103].

(i) Initial Board of Directors

The Governor in Council, on the recommendation of the Minister, would appoint all of the directors on the first board of directors, including the Chairperson. These directors would hold office during good behaviour for a term not exceeding five years and would be subject to removal by the Governor In Council at any time for cause [s. 104].

(ii) Subsequent Boards of Directors

For all boards of directors subsequent to the initial board, the Governor in Council, on the recommendation of the Minister, would only appoint three (of the ten) directors, including a Chairperson. These appointments would hold office during good behaviour for a term not exceeding five years and would be subject to removal by the Governor In Council at any time for cause [s. 105(1)]. Further, the Minister would be empowered to establish a committee to advise the Minister on the appointment of the two directors who are not the Chairperson, provided that the committee includes representation from the board of directors [s. 105(2)]. 

One or more bodies prescribed by regulation would appoint the other seven directors on all subsequent boards of directors. These directors would hold office during good behaviour for a term not exceeding five years and could be removed at any time for cause in accordance with rules and procedures established by the board of directors [ss. 105(3) and 108].

(iii) Powers of the Institute's Board of Directors [ss. 113 to 113.2]

The Institute's board of directors would have the power to make rules and procedures for the conduct of its meetings and for the appointment and removal of directors appointed by bodies prescribed by regulation, to determine additional qualifications for the appointment of directors, and to establish the length of directors' terms provided they do not exceed five years.

The board of directors would also have the power to hire staff, to determine the duties and conditions of their employment, and to fix their salary and benefits.

Finally, the board of directors would determine the location of the Institute's head office provided that it is located on reserve land.

[Purposes of the First Nations Infrastructure Institute—s. 113.3]

The Institute's mandate would be to:

• Assist First Nations and s. 50.1(1) entities with their infrastructure throughout its life-cycle;
• Assist First Nations in the exercise of their jurisdiction over services and infrastructure;
• Support the provision of services related to asset management and asset sustainability;
• Develop and deliver training and education services respecting infrastructure;
• Support capacity development for First Nations and s. 50.1(1) entities;
• Advance options in the pursuit of stable, effective and long-term funding and financing for infrastructure;
• Collaborate with First Nations, Indigenous institutions, and all levels of government to support legal and administrative frameworks respecting infrastructure;
• Provide policy research services, review and evaluative services, and advice to First Nations and s. 50.1(1) entities;
• Conduct research and provide advice to the Government of Canada; and
• Collect data, publish statistical information, and conduct research and analysis.

[Functions and Powers—ss. 113.4 to 113.7]

To achieve its purposes, the Institute would be empowered to enter into partnerships, agreements and other arrangements with local, regional, national and international organizations to provide services to First Nations and s. 50.1(1) entities.

(i) Services

Upon request from a First Nation or s. 50.1(1) entity, the Institute would be able to provide services within the scope of its mandate, including: assistance with planning, developing, procuring, owning, operating and maintaining infrastructure; project management support; and review of funding and financing options for infrastructure.

(ii) Review of Infrastructure Projects and Certification

Upon request from a First Nation or s. 50.1(1) entity, the Institute would be able to review an infrastructure project (or an aspect of the project) involving that First Nation or entity for compliance with the Institute's standards. On completion of the review, the Institute would be required to provide the First Nation or entity with a report setting out whether, in the opinion of the Institute, the project complied with its standards. If the Institute were of the view that the project did comply with its standards, the Institute would provide the First Nation or entity with a certificate to that effect.

(iii) Review for Continued Compliance

Provided that the Institute has already certified the project in question (or an aspect of the project), the Institute would be able to review the project for continued compliance with its standards upon request from a First Nation or s. 50.1(1) entity or pursuant to the terms of an agreement involving any level of government.

As with the initial certification, the Institute would be required to provide the First Nation or s. 50.1(1) entity with a report setting out the scope of its review and its findings. If the Institute were of the opinion that the project no longer complied with its standards, the Institute would provide the First Nation or s. 50.1(1) entity with recommendations for how to bring the project back into compliance.

(iv) Review of Laws Respecting the Provision of Services

If a First Nation has made a law respecting the provision of services under Part 5.1 of the Act, the First Nation would be able to request the Institute's review of the law for compliance with the Institute's standards. If the Institute were of the opinion that the law complies with its standards, the Institute would be required to notify the First Nation in writing.

[Standards and Procedures—s. 113.8]

The Institute would be able to make standards respecting:

• the form and content of laws respecting the provision of services;
• the planning, development, procurement, ownership, management, operation and maintenance of infrastructure;
• asset management; and
• the certification and review of infrastructure projects.

The Institute would also be able to make procedures respecting:

• requests for, and review of, laws respecting the provision of services;
• requests for, and provision of, infrastructure services;
• reviews and certification of infrastructure projects; and
• requests for, and reviews of, continued compliance.

[Data Collection, Analysis and Publication—s. 113.9 to 113.91]

Like the First Nations Tax Commission and the First Nations Financial Management Board (see Clauses 16 and 31 above), the Institute would be empowered to collect, analyze and publish data for statistical purposes. The Institute would be required to ensure that any information that could identify a particular First Nation, entity, or individual be removed prior to publication unless this information is already in the public domain or consent is obtained.

The Institute would be empowered to enter into information sharing agreements with First Nations, entities, individuals, and all levels of government.

[Regulations—113.92]

The Governor in Council would be empowered to make regulations, on the recommendation of the Minister made having regard to any representations of the Institute, prescribing fees the Institute may charge for its services and the manner in which these fees may be recovered.

Clause 44

This clause would amend the definitions of "institution" and "board of directors" in s. 114 of the Act in order to make Part 6 of the Act ("Financial Management and Control") apply to the Institute.

Clause 45

This clause would amend s. 118 of the Act to require that each institution establish a five-year corporate plan rather than an annual corporate plan for submission to the Minister for approval. Accordingly, the scope and content requirements for the corporate plans under s. 118(2) would be amended to reflect the new five-year period.

Clause 46

This clause would make minor amendments to ss. 120(2)(a)(iii) and 120(2)(b) to replace the gendered expression "his or her" with the gender-neutral term "their."

Clause 47

This clause would make a minor amendment to s. 122(1) of the Act to replace the gendered expression "his or her" with the gender-neutral term "their."

Clause 48(1)

This clause would provide that the board of directors would determine the manner in which its annual meetings are held: i.e. in-person, fully virtual, or hybrid. It would also provide that details of the meeting, including the date, time and location (if any), the means of participation and the availability of the annual report, be set out in a notice published on the institution's website (rather than in a major newspaper).

Clause 48(2)

This clause would ensure that all participants in the annual meeting would have access to the institution's most recent annual report (i.e. regardless of whether they participate in-person or electronically). This clause would also provide that only the commissioners, directors, and executive officers who attend the meeting are required to make themselves available to answer questions.

Clause 49

This clause would make amendments to ss. 132 to 134 of the Act to include the First Nations Infrastructure Institute.

Clause 50

This clause would amend s. 136 to include directors or employees of the First Nations Infrastructure Institute or persons acting on its behalf.

Clause 51

This clause would amend s. 136.1 of the Act as part of the integration of the content of the Financing Secured by Other Revenues Regulations to ensure that the limitation on liability is also applicable to intervention in the other revenues context.

Clause 52(1)

This clause would amend s. 138(1) of the Act to include laws respecting the provision of services alongside local revenues laws such that they would both have the same relationship relative to the other federal laws listed in this section.

Clause 52(2)

As part of the integration of the content of the Financing Secured by Other Revenues Regulations into the Act, this clause would amend s. 138(1) of the Act to include other revenue laws alongside local revenue laws and laws respecting the provision of services, such that they would all have the same relationship relative to the other federal laws listed in this section.

Clause 53

This clause would make amendments to s. 139(2) of the Act to include the First Nations Infrastructure Institute and provide that the Institute must provide services in either of Canada's official languages when there is significant demand for a particular language.

Clause 54

This clause would amend s. 140(a) of the Act to include a power for the Governor in Council to prescribe by regulation one or more bodies that would appoint directors to the First Nations Infrastructure Institute's boards of directors in accordance with s. 105(3)—see Clause 43 above. This clause would also amend s. 140(b) to include the First Nations Infrastructure Institute such that the Governor in Council may make regulations that could also apply to the Institute respecting required insurance coverage.

Clause 55

This clause would amend s. 141(1) of the Act by removing the phrase "that is not a band as defined in subsection 2(1) of the Indian Act" in light of the fact that there are Indigenous groups that are parties to Self-Government and other Final Agreements that remain, for certain purposes, bands within the meaning of the Indian Act but who may seek to participate in aspects of the Act by way of regulations made under s. 141.

This clause would also amend s. 141 by replacing the term "Aboriginal" with the term "Indigenous."

Clause 56

This clause would renumber s. 141.1 of the Act to s. 141.1(1) and would add a new subsection (2) that would enable the Minister to, at the request of an organization referred to in paragraph 50.1(1)(e), add, change, or delete the name of such an organization in a schedule to regulations made under this section. The Minister's powers under s. 141.1(2) would resemble the Minister's powers under s. 141(2). Regulations under ss. 141 and 141.1 have not yet been made, but being named in the schedule would be necessary in order to participate in aspects of the Act by way of those regulations.

Clause 57

This clause would repeal s. 142 of the Act as part of the integration of the content of the Financing Secured by Other Revenues Regulations into the Act.

Clause 58

This clause would make a consequential amendment to the Access to Information Act to include the First Nations Infrastructure Institute in Schedule I of that Act under the heading "Other Government Institutions."

Clause 59

This clause would make a consequential amendment to the Privacy Act to include the First Nations Infrastructure Institute in the Schedule of that Act under the heading "Other Government Institutions."

Clause 60

This clause would provide a transitional period related to the change from annual corporate plans to five-year corporate plans under Clause 45. During this transitional period, the First Nations Tax Commission, First Nations Financial Management Board and the First Nations Infrastructure Institute would have a choice as to whether to produce an annual corporate plan or a five-year corporate plan.

Clause 61

This clause would provide a transition period during which ss. 118, 120(4), and 121 to 131 would not apply to the First Nations Infrastructure Institute. This transitional "grace period" would ensure that the obligations under these sections would not apply until all of the directors of the Institute have been appointed and the Institute has had time to become fully operational.

This clause would also provide a transitional "grace period" before the Institute must call its first annual general meeting.

Clause 62

This clause would address a transitional administrative oversight that followed the creation in 2019 of the Department of Crown-Indigenous Relations and Northern Affairs and the Department of Indigenous Services.

Clause 63

While many of the provisions of this bill would come into force on Royal Assent, this clause would allow for the coming into force of certain other provisions at a later date by order of the Governor in Council so that the latter provisions could come into force simultaneously with consequential and other associated regulatory amendments. For example, regulatory amendments are needed in order to coordinate with the integration of the content of the Financing Secured by Other Revenues Regulations into the Act.

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