Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) apcfnc

1. 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

2. Items to Cover 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)

3. First Nations Financial Transparency Act 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) www.apcfnc.ca

4. Why the need for FN Financial Transparency Act? • 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) www.apcfnc.ca

5. What does the FN Financial Transparency Act do? • 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

6. How will AANDC enforce it? • 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

7. What is to be disclosed? • 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) www.apcfnc.ca

8. Band Owned Businesses • 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) www.apcfnc.ca

9. Public Posting on Website 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) www.apcfnc.ca

10. When will First Nations required to begin disclosing their salaries and expenses? • 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

11. Issues & Concerns • Requirement to publish detailed consolidated financial statements for 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

12. First Nations Elections Act • 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

13. Background – FN Elections Act • 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

14. Recommended Changes • Optional Legislation – opt in via BCR– can’t opt 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

15. Recommended Changes cont’d • 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

16. Recommended Changes cont’d • 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

17. Recommended Changes cont’d • Bill reflects most of the recommendations stemming from the 2010 APC Chiefs Resolution on reforming the Indian Act election system • Exceptions are: • 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; • Election Appeals will go to federal/provincial court vs. tribunal (Senate Study and APC recommended) • No designation of seats for off-reserve on Council Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca