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 (S.C. 2023, c. 16)

PART 5.1First Nations Powers Respecting Services

Marginal note:Definition of service

96 In this Part, service means a service provided on reserve lands by or on behalf of a First Nation, including in relation to the provision of water, wastewater management, drainage, waste management, animal control, recreation, transportation, telecommunications and energy.

Marginal note:Laws respecting the provision of services

• 97 (1) The council of a First Nation may make laws respecting the provision of services and respecting infrastructure located on the First Nation’s reserve lands that is used in the provision of those services, including laws

  • (a) regulating or prohibiting the provision of services;

  • (b) imposing requirements and prohibitions with respect to infrastructure; and

  • (c) respecting, subject to any conditions and procedures prescribed by regulation, the enforcement of laws made under this subsection, including by providing for measures to

    • (i) require any person or entity to refrain from doing anything that constitutes or is directed toward the contravention of those laws,

    • (ii) require any person or entity to do anything that may prevent or remedy the contravention of those laws,

    • (iii) recover costs incurred by the First Nation in enforcing those laws and impose and recover interest and penalties with respect to those costs,

    • (iv) create liens or, in Quebec, prior claims or legal hypothecs on reserve lands and on interests or rights in reserve lands, and

    • (v) discontinue services.

• Marginal note:For greater certainty

  (2) For greater certainty, laws made under subsection (1) apply only on the reserve lands of the First Nation that made the laws.

• Marginal note:Non-compliance with measure

  (3) If a person or entity is not complying with a measure referred to in subparagraph (1)(c)(i) or (ii), the First Nation may take appropriate corrective measures at the expense of the person or entity.

• Marginal note:Application to competent court

  (4) The First Nation may apply to a court of competent jurisdiction for an order directing a person or entity named in the application to comply with a law made under subsection (1), such as by

  • (a) refraining from doing anything that, in the opinion of the court, constitutes or is directed toward the contravention of that law; or

  • (b) doing anything that, in the opinion of the court, may prevent the contravention of that law.

• Marginal note:Enforcement — Framework Agreement on First Nation Land Management Act

  (5) If a First Nation has adopted a land code as defined in subsection 2(2) of the Framework Agreement on First Nation Land Management Act or the council of a First Nation has enacted a First Nation law as defined in subsection 2(1) of that Act, the First Nation may use any enforcement measure — other than a measure for the investigation or prosecution of an offence punishable on summary conviction referred to in paragraph 19.1(a) of the Framework Agreement, as defined in subsection 2(1) of that Act — that is provided for in that land code or First Nation law to enforce a law made under subsection (1).

• Marginal note:Regulations

  (6) The Governor in Council may, on the recommendation of the Minister made having regard to any representations by the First Nations Infrastructure Institute, make regulations prescribing anything that is to be prescribed under paragraph (1)(c).

• Marginal note:Publication

  (7) The First Nation shall publish all laws made under subsection (1) in the First Nations Gazette and provide a copy of a law made under that subsection on request.

Marginal note:Coming into force

98 A law made under subsection 97(1) comes into force on the later of

• (a) the day of coming into force set out in the law, and

• (b) the day on which it is published in the First Nations Gazette.

Marginal note:Judicial notice

99 In any proceedings, judicial notice may be taken of a law made under subsection 97(1).

Marginal note:Statutory Instruments Act

100 The Statutory Instruments Act does not apply in respect of a law made under subsection 97(1).

PART 5.2First Nations Infrastructure Institute

Definition

Marginal note:Definition of Institute

101 In this Part, Institute means the First Nations Infrastructure Institute.

Establishment and Organization of Institute

Marginal note:Establishment

• 102 (1) There is established an institute, to be known as the First Nations Infrastructure Institute, to be managed by a board of directors consisting of ten directors, including a Chairperson and Vice-Chairperson.

• Marginal note:Capacity, rights, powers and privileges

  (2) The Institute has the capacity, rights, powers and privileges of a natural person, including the capacity to

  • (a) enter into contracts;

  • (b) acquire, hold and dispose of property or an interest or right in property, or lease property;

  • (c) raise, invest or borrow money; and

  • (d) sue and be sued.

Marginal note:Not agent of His Majesty

103 The Institute is not an agent of His Majesty in right of Canada.

Marginal note:Appointment of first directors

104 On the recommendation of the Minister, the Governor in Council shall appoint the first ten directors of the board of directors, including a Chairperson, who are to hold office during good behaviour for a term not exceeding five years, subject to removal by the Governor in Council at any time for cause.

Marginal note:Appointment of subsequent directors — Governor in Council

• 105 (1) On the recommendation of the Minister, the Governor in Council shall appoint three directors, including a Chairperson, to hold office during good behaviour for a term not exceeding five years, subject to removal by the Governor in Council at any time for cause.

• Marginal note:Committee to advise Minister

  (2) The Minister may establish a committee to advise the Minister on the appointment of directors, other than the Chairperson, under subsection (1). This committee is to include representation from the board of directors.

• Marginal note:Appointment of subsequent directors — prescribed bodies

  (3) One or more bodies prescribed by regulation shall, in accordance with any rules and procedures established by the board of directors and subject to subparagraph 113(b)(ii), appoint seven additional directors to hold office during good behaviour for a term not exceeding five years, subject to removal by the board under section 108.

Marginal note:Qualifications

106 The board of directors shall be composed of individuals from across Canada, including members of First Nations, who are committed to improving infrastructure outcomes for First Nations and entities referred to in subsection 50.1(1) and who have the experience or capacity to enable the Institute to fulfil its mandate.

Marginal note:Election of Vice-Chairperson

107 The board of directors shall elect a Vice-Chairperson from among the directors.

Marginal note:Removal of directors

108 The board of directors may remove a director appointed under subsection 105(3) for cause at any time in accordance with the rules and procedures established under subparagraph 113(b)(i).

Marginal note:Reappointment

• 109 (1) Directors may be reappointed for a second or subsequent term of office.

• Marginal note:Continuation in office

  (2) Despite subsections 105(1) and (3), an appointed director continues to hold office until they are reappointed or their successor is appointed.

Marginal note:Status

110 The Chairperson shall hold office on a full-time basis and the other directors shall hold office on a part-time basis.

Marginal note:Remuneration

• 111 (1) Directors shall be paid the remuneration determined by the Governor in Council.

• Marginal note:Expenses

  (2) The Chairperson shall be reimbursed for reasonable travel and other expenses incurred in performing duties while absent from their ordinary place of work. Other directors shall be reimbursed for such expenses incurred in performing duties while absent from their ordinary place of residence.

Marginal note:Chairperson — functions

• 112 (1) The Chairperson is the chief executive officer of the Institute and has supervision over, and direction of, the work and staff of the Institute.

• Marginal note:Interim Chairperson

  (2) In the event of the absence or incapacity of the Chairperson, the Vice-Chairperson shall assume the duties and functions of the Chairperson.

Marginal note:Powers of the board

113 The board of directors may

• (a) make any rules and procedures that it considers necessary for the conduct of its meetings; and

• (b) in respect of a director referred to in subsection 105(3),

  • (i) make any rules and procedures that it considers necessary for their appointment or removal,

  • (ii) determine additional qualifications necessary for their particular appointment, and

  • (iii) establish the length of their term, which shall not exceed five years.

Marginal note:Head office

113.1 The head office of the Institute shall be on reserve lands at a location determined by the board of directors.

Marginal note:Staff

• 113.2 (1) The board of directors may

  • (a) hire any staff that is necessary to conduct the work of the Institute; 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

113.3 The purposes of the Institute are to

• (a) assist First Nations and entities referred to in subsection 50.1(1) in planning, developing, procuring, owning, managing, operating and maintaining infrastructure, including by providing review, analysis, assessment, certification and monitoring services;

• (b) assist First Nations in the exercise of their jurisdiction over the provision of services, as defined in section 96, and over infrastructure;

• (c) provide services or support the provision of services respecting asset management;

• (d) develop and deliver, and provide support for the development and delivery of, training and education services — and conduct research — respecting infrastructure and social, cultural, environmental, economic and fiscal sustainability;

• (e) support capacity development for infrastructure planning, development, procurement, management, operation, maintenance, funding and financing by First Nations and entities referred to in subsection 50.1(1);

• (f) advance options to assist First Nations and entities referred to in subsection 50.1(1) in developing and implementing approaches to support the stable, effective and long-term funding and financing of infrastructure;

• (g) collaborate with First Nations, Indigenous institutions and organizations and all levels of government to support the development of legal and administrative frameworks to improve the planning, development, procurement, management, operation and maintenance of infrastructure;

• (h) provide policy research services, review and evaluative services and advice to support First Nations and entities referred to in subsection 50.1(1) in developing fiscal frameworks and revenue streams to support the development, management, operation and maintenance of infrastructure;

• (i) conduct research and provide advice and information to the Government of Canada, including the Minister, on the development and implementation of frameworks to support the development of infrastructure that is socially, culturally, environmentally, economically and fiscally sustainable; and

• (j) collect data, publish statistical information and conduct research and analysis on matters related to the purposes set out in the other paragraphs of this section.

Functions and Powers

Marginal note:Powers

• 113.4 (1) In furtherance of its purposes, the Institute may enter into partnerships, agreements and other arrangements with local, regional, national and international organizations to provide services to First Nations and entities referred to in subsection 50.1(1).

• Marginal note:Provision of services

  (2) On the request of a First Nation or an entity referred to in subsection 50.1(1), the Institute may provide services relating to its purposes to that First Nation or entity, including

  • (a) assistance in planning, developing, procuring, owning, operating and maintaining infrastructure;

  • (b) project management support with respect to infrastructure;

  • (c) the review of funding and financing options for infrastructure projects; and

  • (d) support in asset management.

Marginal note:Review of infrastructure project

• 113.5 (1) On the request of a First Nation or an entity referred to in subsection 50.1(1), the Institute may review an infrastructure project, or any aspect of an infrastructure project, involving that First Nation or entity for compliance with the standards established under subsection 113.8(1).

• Marginal note:Report

  (2) On completion of the review, the Institute shall provide to the First Nation or entity a report setting out

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

  • (b) an opinion as to whether the infrastructure project, or aspect of the infrastructure project, was in compliance with the standards or as to which aspects of the standards were not complied with.

• Marginal note:Issuance of certificate

  (3) If after completing the review the Institute is of the opinion that the infrastructure project, or the reviewed aspect, was in compliance, in all material respects, with the standards, it shall issue to the First Nation or entity a certificate to that effect.

• Marginal note:Revocation of certificate

  (4) The Institute may, on giving notice to the First Nation or entity, revoke the First Nation’s or the entity’s certificate if, on the basis of information available to the Institute, it is of the opinion that the certificate was issued on the basis of incomplete or incorrect information.

• Marginal note:Form and content

  (5) The Institute 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:Opinion final

  (6) An opinion of the Institute referred to in this section is final and conclusive and is not subject to appeal.

Marginal note:Review for continued compliance

• 113.6 (1) On the request of a First Nation or an entity referred to in subsection 50.1(1), or under the terms of an agreement between any level of government and the First Nation or entity, the Institute may review an infrastructure project, or any aspect of an infrastructure project, for which it has issued a certificate under subsection 113.5(3) for continued compliance with the standards established under subsection 113.8(1).

• Marginal note:Report

  (2) On completion of the review, the Institute shall provide to the First Nation or entity a report setting out the scope of its review and its findings and any recommendations.

• Marginal note:Report final

  (3) The content of the report is final and conclusive and is not subject to appeal.

Marginal note:Review of First Nation laws

• 113.7 (1) On the request of a First Nation, the Institute may review any law made by the council under subsection 97(1) for compliance with the standards established under subsection 113.8(1).

• Marginal note:Notification of compliance

  (2) If after completing the review the Institute is of the opinion that the law is in compliance, in all material respects, with the standards, it shall notify the First Nation of its opinion in writing.

Standards and Procedures

Marginal note:Standards

• 113.8 (1) The Institute may establish standards, not inconsistent with the regulations, respecting

  • (a) the form and content of laws made under subsection 97(1);

  • (b) the planning, developing, procuring, owning, managing, operating and maintaining infrastructure;

  • (c) asset management; and

  • (d) the certification and review of infrastructure projects.

• Marginal note:Procedures

  (2) The Institute may establish procedures respecting

  • (a) reviews of laws made under subsection 97(1) and requests for such reviews;

  • (b) the provision of services under subsection 113.4(2) and requests for such services;

  • (c) reviews of infrastructure projects, requests for such reviews, and the issuance of certificates under section 113.5; and

  • (d) reviews for continued compliance under section 113.6 and requests for such reviews.

• 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) The Institute shall publish all standards established under subsection (1) and procedures established under subsection (2) in the First Nations Gazette.

Data Collection, Analysis and Publication

Marginal note:Functions and powers

• 113.9 (1) The Institute 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 Institute 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 Institute makes publicly available under subsection (1).

• Marginal note:Exception

  (3) The Institute 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

113.91 The Institute 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

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