The First Nations Tax Commission, in conjunction with the First Nations Financial Management Board and the First Nations Finance Authority, have worked together to advance to Indigenous Services Canada (ISC) a number of proposed amendments to the FMA. These changes include some amendments to the FMA that were proposed, but not advanced, as part of the 2016 amendments to the FMA, as well as some additional proposals.
The amendment proposals are aimed at clarifying certain aspects of the legislation, addressing gaps in the legislation, increasing the flexibility of the legislation,and expanding access to the legislation.
To advance this work, the Institutions have participated in meetings with ISC over the last three years to review the proposed amendments being advanced by each Institution. ISC has now completed a detailed review of the proposals and work on the legislative drafting process has begun. The amendment proposals are aimed at clarifying certain aspects of the legislation, addressing gaps in the legislation, increasing the flexibility of the legislation, and expanding access to the legislation.
The Commission has advanced amendments that include deleting the requirement for the “special levy” provision in subsection 5(6); adding standard-making powers for the approval of delegation laws and taxation laws related to joint reserves; correcting a drafting inconsistency in section 7 by including reference to laws made under paragraph 5(1) (a.1); correcting a drafting inconsistency between section 6 and subsection 31(2) in respect of written representations made to the Commission; providing protection from liability for those acting on the Commission’s behalf; and modifying the Commission mandate to enable it to provide advice on “taxation matters” to the Minister rather than solely on property taxation.
Amendments advanced by the First Nations Financial Management Board include clarifying the Board’s role in third party management under section 53; enabling the Board to provide law review services, and financial performance and management review services, to First Nations that are not scheduled to the FMA; and, providing protection from liability for the Board and those acting on its behalf, including on intervention.
The First Nations Finance Authority has advanced amendments that include amendments to section 84 for internal consistency, and to enable First Nations to recover amounts owing to the Authority under a property taxation law or using other revenue sources; to enable the Authority to provide investment services to a broad range of First Nations and organizations; and to clarify that the Authority can finance capital assets, including capital infrastructure.
Additional proposed amendments include new powers for the Governor in Council to make regulations in respect of joint reserve taxation, to expand access to financing from the Authority to specified non-First Nation entities, and to enable the Board to provide services to those entities.
As part of the amendments to the FMA, ISC will also be reviewing the FMA to ensure that it is fully operational in both the common law and civil law jurisdictions. This “bijural” review is undertaken for all federal legislation that is being amended, with the objective being not to make substantive changes but to ensure the legislation makes sense under both common and civil law regimes. Additional amendments arising out of this review are expected.