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)
399 Paragraphs 53(2)(b) to (e) of the Act are replaced by the following:
(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;
(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.
400 The Act is amended by adding the following after section 56:
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
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
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.
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