“Our objective is to create a new way forward. We must extend a hand to other Indigenous nations that think like us.”
– Chief Commissioner C.T. Manny Jules

Our Lands. Our Jurisdiction. Our Institutions: First Nations Leading the Way

About 30 years have passed since First Nation communities started reflecting on their fiscal relationship and came together to develop legislative frameworks for First Nation jurisdictions outside of the Indian Act. Now, almost 300 First Nations from all regions in Canada are either participating or signatory to the First Nations Fiscal Management Act (FNFMA) and the Framework Agreement on First Nation Land Management.
On May 16 & 17, 2018 a two-day national meeting was held at the River Rock Hotel and Casino on Musqueam territory in Vancouver, British Columbia. Hosted by the FMA fiscal institutions and the Lands Advisory Board (LAB), the meeting brought these First Nations together to demonstrate how First Nations governments across Canada are exercising their jurisdiction and striving to move beyond the Indian Act with First Nation-led initiatives. It showcased First Nations at the forefront of expanding jurisdiction and highlighted their achievements in using First Nation-led agreements and legislation to improve their economies through greater fiscal independence, improved financial management, debenture financing, and sound land governance.
The objectives of the conference were to bring innovative and creative First Nations leaders together to share institutions tools and support services, learn about First Nations success stories working outside of the Indian Act, unify a collective voice for First Nations led initiatives and innovations, and set a clear path forward for building prosperous and vibrant First Nation communities.

Highlights

The conference had over 320 delegates from over 160 FMA and/or FNLMA First Nations communities across the country. Most participants commented that it was the best, most forward looking and optimistic First Nation led meeting that they had ever attended.  The event featured a number of influential presentations, engaging panel discussions, thought-provoking films, interactive multimedia encouraging attendee participation and important First Nation-led proposals to be advanced. To view the full agenda, click here.

The presenters included influential leaders of the host institutions CT (Manny) Jules (Chief Commissioner of the FNTC), Harold Calla (Executive Chair of the FNFMB), Ernie Daniels (President & CEO of FNFA), and Robert Louie (Chairman of the LAB) as well as Howard Grant (Councillor for Musqueam Nation), Christina Clarke (Executive Director for Songhees First Nation, Dalyn Bear (Councillor for Whitecap Dakota First Nation), and Chief David Jimmie (Squiala First Nation & AFN Chiefs’ Committee on Fiscal Relations Co-Chair).
Some of the other highlights of the conference include:

Special Guest Te Maire Tau of the Ngāi Tahu in New Zealand, University of Canterbury, and the Alliance for Renewing Indigenous Economies spoke about the similarities and differences between First Nations and Maori. He also discussed the successes and challenges with the Maori corporate fiscal relationship model and their move towards greater governance and expanded jurisdiction of their lands.
“Our tribe doesn’t question or challenge the crown’s sovereignty. We just want the crown’s recognition of our land title. We want jurisdiction over our lands.”
“Our ideas need to spread throughout the Commonwealth. We are creating a future. Our tribe stands with you.” 
Allan Claxton and Jason Calla of the First Nations Infrastructure Institution (FNII) Development Board discussed the details of the proposed new infrastructure institution.
“The First Nation Infrastructure Institute would be established within the Fiscal Management Act to work in partnership with interested First Nations to support a better system.” Allan Claxton, FNII Development Board.
“Before contact, we had our own institutions and built our own infrastructure.” Jason Calla, FNII Development Board.
“INAC funding decisions are based on the Canadian government’s priorities. The FNII will be based on your communities’ priorities.” Jason Calla, FNII Development Board.
A panel for each of the host institutions:
First Nations Tax Commission panel facilitated by Stone Bear (Tobique) with Deanna Honeyman (Tzeachten), Ernest Jack (Penticton) and Kate McCue (Chippewas of Georgina Island) discussed the process of joining the FMA and setting up a taxation system and the benefits of First Nation tax jurisdiction and fiscal power.
 “Initially we mirrored provincial tax law, but we now have our own laws and we generate revenue to improve community infrastructure.” Deanna Honeyman, Tzeachten First Nation.
 “Tax revenue allows us to provide housing and security in our community.” Deanna Honeyman, Tzeachten First Nation.
“Independent revenue helps us move our community forward. We don’t have to wait for funding. I like revenue better than I like funding.” Ernest Jack, Penticton First Nation.
First Nations Financial Management Board panel facilitated by Joe Bevan (Kitselas) with Chief David Crate (Fisher River First Nation), Dwayne Nashkawa (Nipissing First Nation) and Chief Maureen Thomas (Tsleil-Waututh) talked about the importance of financial transparency and investor certainty and the process and institutional support involved in attaining financial management certification through the FMB.
“The focus has always been building capacity in our community.” Chief David Crate, Fisher River First Nation.
“The core was for us to build capacity and confidence in the community.” Dwayne Nashkawa, Nipissing First Nation.
“We have all these young people in our community and they understand that these dollars are not just for now. They know they have to plan for the future.” Chief Maureen Thomas, Tsleil-Waututh First Nation.
First Nations Finance Authority panel facilitated by Frank Busch (Nisichawayasihk) with Peter Kirby (Taku River Tlingit), Mike MacIntyre (Membertou) and Chief Frieda Martselos (Salt River) spoke about the benefits of becoming FNFA borrowing members and accessing capital to fund projects and other services on First Nation lands.
“The biggest problem we had was we had no equity, but the First Nations Finance Authority helped us finance real estate deals and secure title to some of our traditional lands.” Mike MacIntyre, Membertou First Nation.
“Thanks to the First Nations Finance Authority, we’ve been able to do things for ourselves. And thank goodness for that.” Chief Frieda Martselos, Salt River First Nation.
Lands Advisory Board panel facilitated by Leah George-Wilson (Tsleil-Waututh) with Dean Bear (in for Chief Austin Bear) (Muskoday), Anthony Laforge (Magnetawan) and Stephan McGlenn (SEMÁ:TH) discussed their experiences as Land Code First Nations and operating outside of the Indian Act land management framework.
“I’m often asked ‘Would you ever go back to the Indian Act?’ And I emphatically say ‘no damn way.” Dean Bear, Muskoday First Nation.
“Land Code is the source of our authority. It’s not granted to us by any other government.” Stephen McGlenn, SEMÁ:TH.
A panel on education and training facilitated by Stone Bear (Tobique) with Dr. Andre Le Dressay (Tulo Centre of Indigenous Economics), Deanna Honeyman (First Nations Tax Administrators Association), Mike Mearns (Aboriginal Financial Officers Association BC) and Angie Derrickson (Lands Advisory Board Resource Centre) as well as special guest and Tulo alumni Chief Laurence Paskemin (Sweetgrass First Nation) discussed the various education, training and capacity development initiatives undertaken by their respective organizations.
“We provide options for First Nations — with the consent of their communities — to manage their lands outside of the Indian Act.” Angie Derrickson, Lands Advisory Board Resource Centre.
“At Tulo, we’re very much about the practical instruments of jurisdiction. Tulo is your school for the tools needed to implement jurisdiction in your communities.” Dr. Andre LeDressay, Tulo Centre of Indigenous Economics
“With Tulo’s help, we are working to stop the brain drain and bring jobs and people back to our community.” Chief Laurence Paskemin, Sweetgrass First Nation.

There were also several interactive elements of the conference that encouraged engagement and boosted participation of the attendees, including:
Beyond Transfers Films – Three short films were released at the conference and on social media as part of the Beyond Transfers video series:
Chief Mike Lebourdais (Whispering Pines/Clinton) – As the first video in this series, Chief Michael Lebourdais picked up where his last film left off by providing an overview of the jurisdiction based fiscal relationship option and the importance of fiscal power. “This is our time to design our own fiscal relationship based on what works for us. We have the experience, knowledge and the strength. First Nations are leading the way.” 

Delyla Daniels (Tk’emlúps te Secwe̓pemc) – In the second video in this series, Tk’emlúps te Secwe̓pemc member Delyla Daniels discusses the benefits of a jurisdiction based fiscal relationship (provided through the FMA) and First Nation institutions. She provides evidence by discussing the benefits her community has experienced as a result of the tax jurisdiction provided by the FMA and the support of the FMA institutions.  “In Tk’emlúps, we have experienced the direct impact that taxation has brought to our community. Through the creation of the Powwow Arbor, the ability to build infrastructure, paved roads, street lights, fire protection, good drinking water, and most importantly, the ability to create meaningful jobs.”

Dalyn Bear (Whitecap Dakota) – In the third video, Councillor Dalyn Bear of the Whitecap Dakota First Nation outlines some of the proposals advanced at the national meeting and calls on supportive First Nation communities to get involved and share their thoughts in relation to a new First Nations fiscal relationship. “We need more fiscal power, not less.”

Clearing the Path: Expanding Jurisdiction & Building Vibrant Economies – This short film developed by the First Nations Tax Commission presented a number of inspiring stories of communities utilizing the FMA and taxation to exercise First Nation jurisdiction and strengthen communities.

Interactive Q&A – An audience interaction tool, Slido, was utilized to offer real time questions and answers whereby attendees could submit broad or specific questions throughout the conference from their seat with their mobile devices. It also allowed crowd sourcing of the most popular questions as indicated by the attendees during question and answer periods of each presentation. A number of the relevant Q&As attained from the tool and discussed at the conference are posted to the First Nations Leading the Way website.

Graphic recording – The conference also had a graphic artist present who created visually appealing illustrations during the presentations and panels that summarized the concepts and topics being discussed. CLICK LINK to be directed to First Nations Leading the Way website.

Delegate interviews – Throughout the event delegates had an opportunity to provide their thoughts via video interview. Over 80 attendees shared their First Nation success stories, perspectives and insights. CLICK LINK to be directed to First Nations Leading the Way website.

Presentations – An archive of the presentations are available on the FNLeadingTheWay.ca website.

Photographs – Photographs from the event can also be found on the FNLeadingTheWay.ca website.

The Way Forward – Proposals Advanced at the National Meeting

“The best way forward is to work together. For all time. And for all of us.”
– Chief Commissioner C.T. Manny Jules, First Nations Tax Commission

A goal of the conference was to obtain broad based support to proceed with the proposals to expand the FMA and FNLMA frameworks. This goal was achieved based on the comments and strong support voiced by participants during and after the conference. Most notably, there was a unified show of support; an ovation that clearly demonstrated encouragement of the proposals and continuation of the successful work of all four of the institutions.

FNLMA Proposals

“Our job is to find the solutions that will improve our communities and improve our people.”
– Robert Louie, Lands Advisory Board

The objective of the Lands Advisory Board (LAB) is to continue to strengthen the Framework Agreement on Land Management and to further streamline the process, where warranted. As such, the LAB advanced a two phased proposal at the National Meeting:
Phase 1

• United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – The language in the Framework Agreement will be updated to incorporate UNDRIP.
• Land Code Voting Threshold – It is proposed that the land code voting threshold be changed to a simple majority as a base level, unless the First Nation chooses to have a higher voting threshold.
• First Nation Enforcement Powers – Proposed enhanced and clarified First Nation enforcement powers to better enable enforcement of laws and collection remedies. This will enable cooperative enforcement with Provinces in some cases.
• Transfer of all Indian Monies from INAC – This includes Capital Monies, which would be transferred to the First Nation upon a successful Land Code vote.
• Optional Verifier Role – It is proposed that the verifier role become optional once the Land Code and community ratification process has been developed.
• New First Nations led Land Title Registry – The LAB supports the development of a new First Nations led land registry.
• Streamlined Additions to Reserve (ATRs) – Proposing to have First Nation Land Code authority to manage third party interests during the pre-reserve consultative stage, to eliminate pre-serve designation requirements and to streamline administrative process to bring new ATRs immediately under Land Code authority.
• Greater clarity to First Nation law making – This includes explicitly adding expanded law-making powers such as land use planning, cemeteries, gravesites, environment, natural resources and land authorities similar to other governments.

Phase 2

• Expand Land Management Jurisdiction – Expand First Nation Land Code jurisdiction to include, not only reserve lands, but other lands that may fall within s. 91(24) of the Constitution – including Aboriginal Title Lands and Federal land categorized as “lands set aside”.
• Adjust Environmental Assessments – Propose to remove the current requirement for First Nation environmental assessments to meet the requirements of the Federal Canadian Environmental Assessment Act. Instead replace it with a more workable environmental format that is designed specifically for First Nation communities.

FMA Proposals

“We need your support. We need to walk out of this meeting committed to working toward our common goals and objectives. We need to stand together.”
– Harold Calla, First Nations Financial Management Board

The FMA institutions put forward several proposals that form a broad agenda to expand and implement First Nation jurisdiction for the many First Nations using the FMA legislative framework. The proposals advanced by the FNFMA institutions is comprised of three main components:

“We live in a world where cash is king. We have attracted investors to our communities. We are a growing part of Canada’s economic success. We can no longer be ignored.”
– Ernie Daniels, First Nations Finance Authority

Growing Current Institutions – The FMA fiscal institutions have advanced a number of amendments to create greater certainty and increase the jurisdictional power of First Nations.
First Nations Financial Management Board – Improved federal transfer mechanism (10-year grants) without offsets to facilitate transition to a revenue based fiscal relationship supported by FMB certification.
First Nations Finance Authority – Enable First Nations to monetize their transfers in combination with other First Nation independent revenues to support FNFA debentures.
First Nations Tax Commission – Expansion & clarification of existing FMA fiscal powers such as property transfer tax, business activity tax, accommodation tax and associated FNTC support through sample laws, standards, administrative support, coordination with other governments as necessary, and training.

“To unleash the incredible imaginations in our communities, we need creative destruction. We need economic weapons.”
– Chief Commissioner C.T. Manny Jules, First Nations Tax Commission

 New Tax Jurisdictions

These new tax jurisdictions are part of the development of a revenue based fiscal relationship option for interested FMA First Nations. This includes also providing an option for participating First Nations to associate exclusive service responsibilities and jurisdictions with these independent revenues using the FMA framework.
FNGST in FMA – The FNGST could be much more valuable to First Nations if it were included in the FMA as local revenues that can be pledged for financing debentures, FNGST legislation recognized the FMA as an optional law-making authority for FNGST laws, the moratorium on three product First Nation taxes was removed to include cannabis, revenue sharing elements were restructured to support an improved fiscal relationship and facilitate more debenture financing and increased support from the FMA institutions in the areas of communications, sample laws, tax collection agreements, revenue estimates, and administrative support & training.
Cannabis Tax – The FNTC has been working with proponents to advance a First Nation cannabis tax jurisdiction option when recreational cannabis becomes legal. This means that First Nations would obtain fiscal powers associated with cannabis excise tax and FNGST on cannabis sales. This requires amendments to the Cannabis Act (Bill C-45), FMA, Excise Act, 2001, FNGST Act, and Bill C-74 to advance a First Nations cannabis tax jurisdiction option.
Aboriginal Resource Tax (ART) – First Nations are advancing the ART to ensure they are adequately compensated for resource projects on their traditional territories. The tax should be developed from tax room currently occupied by other governments; standardized and transparent; not subject to unilateral change; based on world bench mark prices; integrated into an improved fiscal relationship; and, administratively supported by the FNTC.
Tobacco Tax – This is an option for tobacco tax jurisdiction for interested First Nations in the FMA. It is proposed that participating First Nations would pass a law and establish their own administrative systems to collect the taxes. The proposal includes the development of a legal framework through the FMA amendment to allow First Nations to pass a tobacco tax on consumers equivalent to provincial tobacco taxes. It also includes an administrative framework that enables the FNTC to help interested First Nations implement this jurisdiction by developing sample laws and standards, providing support for communications with members and retailers, supporting efficient collection systems and developing training programs for administrators through the Tulo Centre of Indigenous Economics.

“We need to build up our institutions. We need you to help develop those institutions in support of First Nations governments.”
– Councillor Howard Grant, Musqueam Nation & First Nations Summit

Increased Institutional Support

Increasing institutional support is an imperative to support new jurisdictions and ensure an efficient and cost-effective transition from the Indian Act regulatory framework to a First Nation regulatory framework.
First Nations Infrastructure Institute (FNII) – Create FNII within the FMA to help build more economically and fiscally sustainable infrastructure for interested First Nations.
First Nations Statistical Institute – This proposed re-established FMA institution will focus mainly on supporting an improved fiscal relationship through better administrative data.
Tulo Centre of Indigenous Economics – Expand capacity development to support a First Nation public service that can implement FMA, FNLMA and other institutionally supported jurisdictions by expanding Tulo to support First Nation public service capacity development.

“People around the world marvel at what we’ve been able to accomplish here in Canada. You made it happen by placing your faith in these institutions. Thank you for everything that you’re doing. We have a lot more work to do.”
– Harold Calla, First Nations Financial Management Board

The FNTC has been working with proponent First Nations to advance a First Nation cannabis tax option since March 2017. The FNTC made proposals about this option in April 2017 to the Minister of Justice and in August 2017 to the Department of Finance. First Nations have been seeking greater support for this option over the last several months.
On February 28, 2018 the Chief Commissioner made a presentation to the Senate Committee on Aboriginal Peoples who were reviewing Bill C-45 to suggest specific amendments to enable First Nation cannabis tax and regulatory jurisdiction.

“The lack of First Nation inclusion in the cannabis tax framework is a missed opportunity for the federal government to demonstrate its commitment to a nation-to-nation relationship. First Nation cannabis tax jurisdiction is an opportunity to use First Nation tax jurisdiction to address the potential grey market manufacture and sale of cannabis, as has happened with tobacco.” – C.T. (Manny) Jules, FNTC Chief Commissioner

The proposal was well received by the Senate Committee and has gained positive support from interested First Nations. The FNTC advanced suggested wording for amendments to create a First Nation cannabis tax option.
The FNTC and proponent First Nations are seeking to achieve several broad objectives with these amendment proposals, including:
Enable a First Nation cannabis tax framework that:

1. Generates revenues for interested First Nations to support health, education, infrastructure and regulatory requirements associated with cannabis manufacturing, distribution, sales and consumption on First Nations lands,
2. Provides a framework to support an improved jurisdiction-based fiscal relationship for interested First Nations, and
3. Recognizes and effectively implements First Nations government jurisdiction within the Canadian federation.

Enable a First Nation cannabis tax and regulatory framework that is harmonized with the proposed federal and provincial frameworks for interested First Nations, that:

1. Enables a harmonized FMA cannabis excise tax for interested First Nations,
2. Enables a harmonized cannabis FNGST for interested First Nations,
3. Enables cannabis regulations (including licensing and associated fees) for interested First Nations,
4. Enables agreements between interested First Nations and interested provinces with respect to harmonized PST and possible harmonized cannabis tax regulation and enforcement on First Nation lands, and
5. Provides options for First Nations to create regulatory frameworks on their lands for cannabis that are parallel those implemented by the provinces. In this regard, it is anticipated that First Nations may choose to tie into and apply certain aspects of provincial frameworks on their lands, for administrative efficiency.

There are four distinct elements to the proposed amendments to develop a First Nation cannabis tax option:

FMA Amendments – These proposed amendments would enable First Nation fiscal powers associated with cannabis excise, FNGST and licensing. They would also enable efficient revenue collection mechanisms and ensure that these additional revenues could be used to support long term infrastructure financing.

Excise Act, 2001 Amendments – These proposed amendments would provide an orderly transition to cannabis taxation for interested First Nation and ensure the efficient collection and payment of these revenues to participating First Nations.

FNGST Act Amendments – These proposed amendments would provide an option for interested First Nations to include FNGST revenues in the FMA to coordinate with other cannabis tax revenues and to ensure the efficient collection of these revenues.

Cannabis Act (Bill C-45) Amendments – These proposed amendments would ensure the First Nations cannabis tax and regulation options are enabled in this legislation. These proposed amendments would also ensure that First Nation cannabis tax and regulation option could be efficiently coordinated and potentially harmonized with other governments through agreements and regulations.

IN THE MEDIA
November 9, 2018
The Lawyer’s Daily: First Nations authority over cannabis hazy, legal experts say

November 2, 2018
Vancouver Sun: Chilliwack First Nation writes its own cannabis law 
Chilliwack’s cannabis retail shop is operating on First Nations land, under a cannabis law passed by the Kwaw-Kwaw-A-Pilt band.

October 16, 2018
The Walrus Talks: The Walrus Talks Cannabis in Ottawa 

October 7, 2018
The Globe and Mail: First Nations making deals to secure a piece of the cannabis pie
Part of series: Cannabis laws and regulations

October 4, 2018
Windspeaker: Lack of excise tax revenues cuts First Nations out of legal cannabis industry
Cannabis is a multi-billion-dollar industry that’s going to be growing up and we need to be able to have a portion of that.” — Manny Jules, chief commissioner of the First Nations Taxation Commission

September 10, 2018
The Star Vancouver: First Nations, cities both want share of coming weed taxes as B.C. renews reconciliation pact
Manny Jules, Chief Commissioner of the First Nations Tax Commission, speaks to city and Indigenous leaders at the Union of B.C. Municipalities annual convention in Whistler, B.C.

September 5, 2018
Policy Options: How First Nations might share in excise duties, and the decision to apply the duties to medical cannabis, are two policy areas worth watching.

June 15, 2018
National Post: ‘One of the greatest paradoxes’- Indigenous communities grapple with the costs and benefits of legal weed
Bill C-45 is testing whether Trudeau can make good on one signature promise, to legalize cannabis, without losing ground on another — advancing reconciliation.

June 7, 2018
Nelligan O’Brien Payne: Marijuana In First Nations Communities – What Law Will Apply?
The Federal Government is on track to legalize marijuana later this year, with Bill C-45 making its way through the Senate.

May 22, 2018
Policy Options: Feds must allow First Nations to tax, regulate cannabis
The exclusion of Indigenous governments from the proposed cannabis regime seems incongruous with the PM’s support for a nation-to-nation relationship.

May 3, 2018
CBC News Network: Senators want cannabis bill delayed to address Indigenous Issues 
The Senate’s committee on Aboriginal peoples wants the legalization of cannabis to be delayed for up to a year. Senators say more time is needed to create policies on issues for Indigenous groups like health, taxation and education campaigns.

May 1, 2018
CBC News: Senators recommend delaying cannabis bill for a year to address Indigenous issues
First Nations say their governments will face new social challenges from legal cannabis.

March 8, 2018
CBC News: First Nations demanding a cut of cannabis tax after pot legalization
148-page pot bill silent on role Indigenous communities will play under proposed legal framework.

March 8, 2018
Global News Radio 640 Toronto: First Nations fighting for cut of cannabis tax after legislation 
Tasha speaks with Chief commissioner and one of the creators of the First Nations Tax Commission, Manny Jules about marijuana tax.

March 8, 2018
ON Point with Alex Pierson: First Nations would like a cut of cannabis tax after pot is legalized
Alex Pierson speaks with Chief Commissioner of First Nations Manny Jules about the potential challenges with Bill C-45 and getting First Nations involved in the conversation.

February 28, 2018
CPAC: In Committee from the Senate of Canada – Aboriginal Peoples 
Senators continue their study on Bill C-45, the government’s legislation to legalize marijuana, as it relates to the Indigenous peoples of Canada. Appearing before the committee are the First Nations Tax Commission’s Chief Commissioner C.T. (Manny) Jules, the Indigenous Peoples Cannabis Association’s Executive Director Bill Robinson, and the Oneida Nation of the Thames’ Chief Randall Phillips.

The current First Nation infrastructure system is the least effective government infrastructure system in Canada. First Nation infrastructure costs the most to build, takes the longest to develop, and has the shortest operational lives.

Not only is it the least effective system, it is also fiscally unsustainable in its current form. Whenever a new infrastructure project is built, further resources are required for ongoing operation, maintenance, insurance and eventual replacement. In total, these costs are the contingent liability of new infrastructure.

Current federal resources for First Nation infrastructure are increasingly being devoted to operation and maintenance and not new projects. Current projections show that by the end of 2020/21, O&M requirements will be so significant, there will be no funds available for new proposal-based capital projects within the Capital Facilities and Maintenance Program (CFMP) budget.
The projected requirements for new infrastructure are large and growing especially as populations grow, health and safety standards rise, and rules for who is a status member change. In other words, this growing contingent liability associated with infrastructure will soon bankrupt the current First Nation infrastructure system.

Recently, the federal government announced it will be working with First Nations to begin the process of moving beyond the Indian Act and dismantling DISC. With respect to infrastructure, this presents a challenge and an opportunity.

The challenge is assuming a large and potentially unsustainable infrastructure liability but the opportunity is to design a better First Nation infrastructure system that reduces liability, builds sustainable infrastructure.

A Better Infrastructure System
A better First Nation infrastructure system would have more jurisdiction, revenues and capacity at the local level to speed decisions, better manage projects and costs, improve operation and maintenance and generate sufficient revenues to replace infrastructure.

A better system would have tribal, regional and provincial First Nation institutions provide necessary professional support for all parts of the infrastructure cycle, to encourage cost efficiencies through aggregations and standards and to ensure community sustainability through integrated planning and better access to revenues and resources.

A better system would have a national institution to improve access to infrastructure financing capital, encourage and promote innovations, develop standards, support local and regional capacity development, increase revenues available for all parts of the infrastructure cycle and provide insurance options to manage risks.

This better First Nation infrastructure system would reduce time and costs of infrastructure development, increase durability, improve health and social outcomes and support the growth of First Nation economies and revenues to build sustainable communities and nations.

The work towards a better First Nation infrastructure system is well underway. Several First Nations have begun to use long-term financing through the Fiscal Management Act (FMA) to build more sustainable infrastructure. There are several tribal, regional and provincial organizations who have begun to collect information, develop capacity and support aggregation and other infrastructure efficiencies.

It is proposed that First Nations Infrastructure Institution (FNII) be established as an optional FMA institutions as part of this better system. As illustrated it would work with First Nation partners to deliver shorter review times, more efficient procurement, longer infrastructure lifecycles, more innovations, economically and fiscally sustainable infrastructure and improved access to capital.

Principles of FNII
FNII will build on the successful framework used by the FMA institutions to help  interested First Nations build more sustainable infrastructure faster based on the following guiding principles:

• FNII’s design will continue to be directed and controlled by
• First Nations;
• FNII will be optional and respect the right of self-determination;
• FNII will work with and support existing First Nation
• infrastructure institutions and other possible partners to
• help First Nations build more sustainable infrastructure.
• FNII will be a national institution;
• FNII will be an FMA institution;
• FNII will support First Nations to implement their infrastructure jurisdiction and support projects that increase economic and fiscal benefits; and

Preliminary Purposes of FNII
FNII’s core mandate will be to help interested First Nations transition from unsustainable infrastructure systems to sustainable infrastructure systems.

Other FNII purposes will include assisting First Nations to build more economically and fiscally sustainable infrastructure; supporting First Nations to exercise their jurisdiction over infrastructure; and working to deliver secure, stable, long-term infrastructure transfers.

Beyond that, FNII will also help develop formulas and processes for effective and efficient infrastructure funding; support long-term infrastructure financing; help transition ownership of infrastructure to First Nations; and support aggregations or nation groupings to achieve economies of scale.

Other aims it is hoped FNII will achieve include promoting an understanding of infrastructure’s linkage with economic and fiscal sustainability; providing support for the implementation of standards and laws; assessing infrastructure project readiness and support infrastructure planning.

FNII will also develop training programs and build capacity and administrative efficiencies; support more integrated infrastructure planning; and will work with the FMA institutions to support improvements throughout the project lifecycle.

Further purposes of FNII include advocating for new revenue streams within an mproved fiscal framework; assessing infrastructure risks and develop risk management strategies; and achieving administrative efficiencies.

 
How FNII Supports a Better Infrastructure System
FNII will support at least the following improvements in the First Nation infrastructure system:

• Longer Term Federal Transfers – Work with FMA institutions and First Nations to develop a better system of federal contributions and ensure transfers can be monetized;
• New Revenues for Financing – Enable new, more stable revenue sources to enhance infrastructure sustainability;
• Improved Access to Capital – Help participating First Nations access longer-term, lower rate financing through the FNFA, to be combined with improved long-term transfers;
• Standards, Laws and Templates (SLTs) to Reduce Costs and Time – Develop and efficiently implement standards, sample laws and templates required to support all elements of the infrastructure cycle;
• More Efficient Review Processes – Support more cost and time effective review processes through professional certification and other innovations;
• Support Innovations – Provide the opportunity to implement more innovations through regional partnerships and a national data base that enables better research;
• Support Nation Building – Help lower costs through economies of scale and First Nation aggregation that achieve infrastructure system efficiencies;
• Better Insurance Options – Develop affordable options for infrastructure insurance;
• Incorporate Economic and Fiscal Potential – Incorporate economic and fiscal potential into planning to build more economic and sustainable infrastructure and;
• Develop Efficiencies to Support Possible PPP Options – Provide a mechanism to combine smaller projects into a larger vehicle to achieve more favourable financing.

Work on FNII is ongoing as interested First Nations contribute their ideas to the evolution of the proposal. The First Nations Tax Commission looks forward to the discussion of FNII at the upcoming National Meeting.

In December, the federal and provincial governments announced a deal to split the excise tax from cannabis sales 75 per cent to 25 per cent in favour of the provinces. Conspicuous in its absence was mention of First Nation cannabis tax jurisdiction.

First Nation cannabis tax jurisdiction is an opportunity to use First Nation tax jurisdiction to address the potential grey market manufacture and sale of cannabis, as has happened with tobacco. Grey market sales of tobacco in Ontario and Quebec cost governments billions in lost tax revenues each year. Restoring our tobacco jurisdiction and recognizing our cannabis jurisdiction provides First Nations with a fiscal benefit to our communities and begins the reconciliation process.

The federal government has committed to a new First Nation fiscal relationship based on First Nation fiscal powers to implement First Nation jurisdictions, such as cannabis regulation. However, the lack of First Nation inclusion in the cannabis tax framework is a missed opportunity for the federal government to demonstrate its commitment to a nation-to-nation relationship that reconciles First Nation governments into the federation.

Over a century ago, First Nation communities understood and paid taxes. The Chinook trade language word for it was “taksis,” and “taksis” helped build community projects like bridges and churches, enabled us to hire lawyers, and send our Chiefs to England to represent us.

The erosion of First Nation tax jurisdiction began with a series of policies, regulations and legislation between 1883 and 1927.  First Nation sun dances and potlaches were banned. First Nation governments were prohibited from raising revenue through property and railway taxation. The policy culminated in the 1927 Indian Act Amendment, which prohibited First Nations from hiring lawyers to defend their claims.

In 1951, this policy was reversed but the damage was done. All tax jurisdiction had been assumed by other governments and we have struggled to restore our jurisdiction ever since.  In 1968, the eight Ontario First Nation signatories of the Indian tax grievance committee said, “It is submitted that … the band collect taxes from their own lands [as] a progressive step towards creating self sufficient Bands”.

It wasn’t until the 1988 First Nation led change to the Indian Act that First Nation property taxation began to grow in earnest. During that time, we learned the four-part formula for restoring First Nation tax jurisdiction. First, proposed taxation legislation must be First Nation led. Second, it must be optional to respect our right to self-determination. Third, our jurisdictions must be supported by First Nation institutions. Finally, there must be a connection between our taxes and our expenditures, to create a jurisdiction based fiscal relationship.

In 2005 this formula was used in the First Nations Fiscal Management Act (FMA) that further expanded First Nation fiscal powers and allowed us to lever revenues to issue debentures. It provided a mechanism to establish greater fiscal accountability and transparency.

The FMA worked. Today, 220 First Nations have opted into the FMA, making it the most successful Indigenous legislative initiative in Canadian history. Participating First Nations have generated over $1 billion in tax revenues. The First Nations Finance Authority has issued $400 million in debentures and almost 100 First Nations have received financial management certifications by the First Nations Financial Management Board.  First Nations using the FMA have generally seen greater economic development and higher standards of community well-being.

The FMA provides the legislative framework to implement cannabis tax jurisdiction for interested First Nations. Optional FMA cannabis tax jurisdiction will provide independent revenues to support costs of regulation on reserve and improve Indigenous services and infrastructure. FMA institutions will help interested First Nations implement their cannabis tax jurisdiction. It will be the next step of a jurisdiction based fiscal relationship.

Participating First Nations would generate sufficient community fiscal benefits to prevent a grey market. They could regulate cannabis on their lands and assume more responsibilities over community health and infrastructure, and begin to reconcile these jurisdictions with those of other governments.

This is exactly what I believe the Prime Minister and the Minister of Justice meant when they promised real reconciliation. We continue to advocate the expansion of the FMA to include cannabis tax jurisdiction. I hope all Canadians will support us.

C.T. (Manny) Jules, Chief Commissioner,
First Nations Tax Commission

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Chief Commissioner C.T. (Manny) Jules appearing before Standing Senate Committee on Aboriginal Peoples regarding Bill C-45

In the news:

Feds must allow First Nations to tax, regulate cannabis

Chief Commissioner C.T. (Manny) Jules discussing First Nation cannabis tax jurisdiction on CBC’s Power & Politics (VIDEO – segment begins at 1:33:38)

ON Point with Alex Peirson: First Nations would like a cut of cannabis tax (RADIO)

First Nations fighting for cut of cannabis tax after legalization (RADIO)

First Nations demanding a cut of cannabis tax after pot legalization

BONOKOSKI: First Nations’ chief taxman wants control of the pot tax

In 2017, the FNTC celebrated 10 years of operation. To honour the anniversary, Commissioners reflected on progress over the last decade.

Healthy, vibrant communities need consistent access to energy, sanitation and clean water, as well as reliable transportation and communication. Governments invest in infrastructure to create lasting economic, social and environmental benefits for its citizens. In turn, citizens contribute to the growth, progress and innovation of their communities.

Many First Nation communities are built with substandard, and in some cases, non-existent infrastructure. The lack of basic needs, at worst, puts the health and safety of the community at risk. At best, it hinders the ability of the community to thrive and prosper.

While funding is available for infrastructure projects, it is limited and layers of bureaucracy and planning gaps often lead to delays in projects. As a result, First Nation infrastructure takes longer to build, costs more to build and does not last as long as municipal government infrastructure. It is not designed to be economically or fiscally sustainable and as result has much lower environmental and health outcomes.

A number of federal programs and initiatives have been developed to address these symptomatic gaps. For example, in the last two budgets, the federal government has substantially increased indigenous infrastructure funding and support. These additional federal resources and efforts are welcome and necessary. They will certainly provide short term improvements to some community infrastructure.

However, unless this additional revenue is supported by a comprehensive proposal to deal with the root causes of the infrastructure gaps – indigenous infrastructure ownership and jurisdiction – it is unlikely that this improved indigenous infrastructure will be fiscally, environmentally, or economically sustainable.

First Nations require an option to close these gaps and implement and protect their infrastructure jurisdiction. The First Nations Fiscal Management Act (FMA) and institutions provide a successful model to address some of these infrastructure challenges and implement jurisdiction.

Almost 230 First Nations are part of the FMA because it closes many infrastructure financing gaps and supports and protects their jurisdiction. The FMA institutions and proponents are proposing the creation of FNII as an additional FMA institution to implement and protect infrastructure jurisdiction for interested First Nations.

FNII will build on the successful framework used by the FMA institutions to help interested First Nations build more sustainable infrastructure faster.

The development of the FNII proposal is guided by the following principles:

First Nation led
The conception and design of the FNII has been and will continue to be guided, directed and controlled by First Nations. The FNII will be a First Nations-led institution that will be accountable to participating First Nations. 

Optional
FNII will be optional and respect the right of self-determination. Interested First Nations would opt into FNII services as with the FMA opt-in framework.

National
FNII will be a national institution with offices across Canada. As a national institution, FNII will work with proponent communities to develop standards and procedures to ensure consistent service quality and efficiency across all regions. A national FNII is necessary to help implement and support infrastructure jurisdiction and move beyond working with INAC for interested First Nations. A national FNII in the FMA can help interested First Nations secure long-term stable infrastructure transfers. 

Sustainable infrastructure
FNII will focus on implementing infrastructure jurisdiction and supporting infrastructure and housing projects that increase economic development and independent revenues and raise environmental sustainability for interested First Nations. FNII will work with and support existing and new First Nation infrastructure institutions (local, regional, or national) and other possible partners that can help participating First Nations build more sustainable infrastructure. 

FNII will be an FMA institution
FNII will help participating First Nations assume jurisdiction over the full infrastructure lifecycle – planning, design, financing, construction, operation, maintenance and replacement. Like the other FMA institutions, it will provide standards, sample laws, training and templates to lower the costs and time of infrastructure. FNII will support those First Nations already in the FMA by helping them build and maintain infrastructure that grows their economies and revenues, faster and more cost effectively. It will help First Nations interested in joining the FMA by helping them access long term financing to build necessary infrastructure sooner and at a better price.

The FMA institutions and proponent First Nations are currently working to advance this initiative, sharing information and discussing the issues with interested First Nations, and seeking support from more potential proponents to help make FNII a reality.