APC Legislative Update
Presentation to Eskasoni
First Nation Council
Krista Brookes, Sr. Policy Analyst/Legal Advisor
May 27, 2014
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC)
www.apcfnc.ca
Items to Cover
2
Status of some new Legislation affecting First Nations:
 First Nations Financial Transparency Act
 First Nations Elections Act (optional)
 Family Homes on Reserves and Matrimonial Interests or Rights Act
(separate ppt)
First Nations Financial Transparency Act
3
Current status: Now Law; rec’d Royal Assent on March 27,
2013
• Amendments adopted by the Standing Committee on
AAND provided greater clarity to those parts of the Bill
dealing with the treatment of band-owned businesses, and
the presentation of separate figures for remuneration and
expenses paid to Chiefs and Councillors
Applies to: Over 600 First Nations communities defined as
“Indian bands” under the Indian Act – does not apply to
self-governing First Nations
Atlantic Policy Congress of First Nations Chiefs
Secretariat (APC)
Why the need for FN Financial Transparency
Act?
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 AANDC states they were approached by First Nation
members from across the country asking for greater
transparency as a result of difficulty obtaining
financial information from their elected officials;
 Until now, First Nations operating under the Indian
Act were the only governments in Canada that did
not have a legislated requirement to make basic
financial information public;
Atlantic Policy Congress of First Nations Chiefs
Secretariat (APC)
What does the FN Financial Transparency
Act do?
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 Provides legislative basis for the preparation and
public disclosure of First Nations’ audited
consolidated statements and of remuneration,
including salaries and expenses that a First Nation
(or any entity that it controls) pays to its elected
officials;
 Requires the publication of this information on
website maintained by or for the First Nation or its
Tribal Council/partner organization;
 In addition, the information will be posted on
AANDC’s website when received;
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC)
www.apcfnc.ca
How will AANDC enforce it?
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 Additional provisions allow for the application of
court remedies and administrative measures to
enforce compliance with its requirements (any FN
member or any person can apply for court order);
 Failure to disclose could result in withholding funds
(grants/contributions) or termination of agreement
and posting on AANDC website; AANDC to monitor
 Minister can also develop an appropriate action plan
to remedy the breach;
 FNs already required to disclose; some FNs post on
website now (ie., Membertou, Millbrook & Glooscap)
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC)
www.apcfnc.ca
What is to be disclosed?
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 Annual Audited Consolidated Financial Statements of FN
(which includes assets, liabilities, results as well as the
other economic development activities undertaken by the
FN for that year; AND
 Schedule of Remuneration (ie., salaries, wages,
commissions, bonuses, fees, honoraria, dividends, and any
other monetary or non-monetary benefit that Chiefs or
Councillors are receiving) and Expenses (transportation,
accommodations, meals, hospitality and incidental
expenses) of the elected First Nation leadership;
 Also required to disclose remuneration paid to them by any
entities, which, according to GAAP, are to be consolidated
with the FN.
Atlantic Policy Congress of First Nations Chiefs
Secretariat (APC)
Band Owned Businesses
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 Businesses themselves that are owned by the FN or its
business entities are not required to report; however,
audited statements of FN include entities controlled by the
FN, such as band owned businesses; Schedules of
Remuneration and Expenses must detail any remuneration
and reimbursement of expenses paid to Chief & Councillors
(both in that capacity and in their personal capacity) by
any entity controlled by the FN (such as a band owned
business)
 “entity” is defined under the Act as any “corporation or
partnership, a joint venture or any other
unincorporated association or organization”
Atlantic Policy Congress of First Nations Chiefs
Secretariat (APC)
Public Posting on Website
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Law requires each FN to:
 Provide the documents, upon request, to any of its
members within 120 days after the fiscal year end;
 Publish the documents on the website of the FN and retain
on its website for 10 years;
 If no FN website, FN may request that another organization
post the information online;
 In situations where a FN cannot post on their own website
or an FN organization, they can meet the compliance
requirements by asking AANDC to post on their website
Atlantic Policy Congress of First Nations Chiefs
Secretariat (APC)
When will First Nations required to begin disclosing
their salaries and expenses?
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 Act applies to the First Nation’s first complete financial
year following Royal Assent (March 27, 2013);
 First Nations, defined as Indian bands under the Indian
Act, will be required to disclose salaries and expenses for
the 2013-2014 fiscal year, which began April 1, 2013;
 First Nations will have 120 days following the end of the
financial year (by July 31st of each year) to publish their
audited consolidated financial statements & schedules of
remuneration on their website.
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC)
www.apcfnc.ca
Issues & Concerns
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 Requirement to publish detailed consolidated financial statements for
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FN controlled businesses may undermine their competitive
abilities and financial success;
Law applies standards to FN Governments that surpass those for
elected officials in many other jurisdictions and contains overly
punitive remedies;
Some provinces do not post this information publicly
For example, in NS, summaries of expenses of Ministers are located at
the Legislative Library for public viewing and in NWT, only publishes
travel expenses of Ministers and does not require salary disclosure of
elected officials or senior public servants (examining salary ranges but
not actual);
Neither Yukon nor PEI disclose salaries of elected officials
Concerns regarding lack of individual privacy rights protection
(Sutherland and Montana cases)
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC)
www.apcfnc.ca
First Nations Elections Act
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 Current Status: Now Law (optional), but not in
force yet. Rec’d Royal Assent on April 11, 2014 (APC
sponsored this Bill)
 First Nation Gov’ts cannot “opt in” the legislation of yet
 Regulatory development is next phase & must be completed
before FNGs can opt in; this phase can take up to one year;
regs will detail the procedures of the electoral process, ie.,
posting of notices, nomination of candidates, voting by
mail-in ballot and in person;
 Discussion paper that proposes ideas for content of
regulations will be posted next month on APC/AANDC
websites for feedback by First Nations (2 months in
advance of public).
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC)
www.apcfnc.ca
Background – FN Elections Act
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 Bill was drafted as a result of APC and AMC’s efforts
since 2008 to reform the IA election system
 Approximately 75% of Atlantic First Nations still
operate under the IA election system – this is the
highest percentage in Canada (only 8 custom codes)
 APC and AMC undertook regional & national
consultations with Leaders and Community
Members on the issues related to IA elections
 Developed recommendations to the Minister on how
to fix the system which resulted in Bill which is
optional legislation
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC)
www.apcfnc.ca
Recommended Changes
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 Optional Legislation – opt in via BCR– can’t opt
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back into IA later on, only way to opt out of Act is
develop own community custom election code or
self-gov’t
Changes Council Term of Office from 2 to 4 years
Defined qualifications for position of Chief
Clear rules around the nomination process
Clearly defined offences and penalties that will deter
questionable election activities such as the buying
and selling of votes that currently go unpunished –
no provisions exist now under Indian Act
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC)
www.apcfnc.ca
Recommended Changes cont’d
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 Minister no longer involved in election appeals –
must make application to court
 Option allows FNs to hold advance polls
 Common Election Day for interested First Nations
 Option to charge candidacy fee up to max of $250
 Candidates can only run for Chief OR Council
position, not both
 No person can nominate more candidates than there
are positions available for election
 Must accept nominations in writing before appearing
on ballot
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC)
www.apcfnc.ca
Recommended Changes cont’d
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 Greater control over the distribution and return of
mail in ballots, ie., off-reserve voters to contact
electoral officer to request mail in ballot and show ID
 Allows for the recall of elected officials – will be dealt
with in regulations – 2 yr mark of 4 yr term – will
allow a 30 day window to seek the recall of all or
some elected officials based on specific reasons, ie.,
conflict of interest, disreputable behavior, excessive
absences from Council meetings, poor performance
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC)
www.apcfnc.ca
Recommended Changes cont’d
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 Bill reflects most of the recommendations stemming
from the 2010 APC Chiefs Resolution on reforming
the Indian Act election system
 Exceptions are:
(1) Section 3 (1) (b) and (c) make the Bill not ‘optional
legislation’ – impose Ministerial powers to force
First Nations under this Act under certain
circumstances;
(2) Election Appeals will go to federal/provincial court
vs. tribunal (Senate Study and APC recommended)
(3) No designation of seats for off-reserve on Council
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC)
www.apcfnc.ca