FEDERAL REG

SOR/2016-29: Regulations Amending Certain Regulations Made Under the First Nations Fiscal Management Act

REGISTRATION OF FEDERAL REGULATION - VIA OIC DATABASE, PRIOR TO PART II OF THE GAZETTE

Registered
February 26, 2016


REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues The Economic Action Plan 2015 Act, No. 1 amended the First Nations Fiscal Management Act (the Act) to improve its effectiveness. In order to fully implement these improvements, consequential amendments to nine regulations made under the Act listed below are required. Additional technical amendments to som... (Click for more)


Published on February 26, 2016

Bill Summary

SOR/2016-29: Regulations Amending Certain Regulations Made Under the First Nations Fiscal Management Act

REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues The Economic Action Plan 2015 Act, No. 1 amended the First Nations Fiscal Management Act (the Act) to improve its effectiveness. In order to fully implement these improvements, consequential amendments to nine regulations made under the Act listed below are required. Additional technical amendments to some of these nine regulations are also necessary to improve the administrative aspects of the First Nations Fiscal Management Act regime (FNFMA regime). Financing Secured by Other Revenues Regulations Local Revenue Management Implementation Regulations Debt Reserve Fund Replenishment Regulations First Nations Local Revenue Law Review Regulations First Nations Tax Commission Review Procedures Regulations First Nations Rates and Expenditure Laws Timing Regulations First Nations Assessment Appeal Regulations First Nations Assessment Inspection Regulations First Nations Taxation Enforcement Regulations Background The Act is opt-in, First Nations-led legislation that came into force on April 1, 2006. The Act provides First Nation governments with fiscal powers similar to those exercised by other orders of government in the areas of real property taxation, financial administration and access to capital to support economic development and public infrastructure projects. Three arms-length First Nations institutions are mandated to administer the Act The First Nations Tax Commission is a shared-governance corporation that regulates and streamlines the approval of property tax and local revenue laws of participating First Nations, builds administrative capacity through sample laws and accredited training, and reconciles First Nation government and taxpayer interests. The First Nations Financial Management Board is a shared-governance corporation which assists all First Nations in strengthening their local financial management regimes and provides independent certification to support borrowing from the First Nations Finance Authority for First Nations economic development. The First Nations Finance Authority is a non-profit corporation that permits qualifying First Nations to work co-operatively in raising long-term private capital at preferred rates through the issuance of bonds, and also provides investment services to First Nations and First Nation organizations. As of December 2015, 158 First Nations from across the country have opted into the legislation. Eighty-three of these First Nations exercise property taxation jurisdiction, 60 have had their financial performance certified by the First Nations Financial Management Board, and 23 have raised $140 million from capital markets through a bond issued initially in June 2014 for $90 million, and re-issued in July 2015 for an additional $50 million. Subsequent bonds are expected to be issued every one to two years. Section 146 of the Act requires that a legislative review be conducted within seven years of the Act receiving royal assent. The report on the legislative review (see footnote 11) was tabled in the Senate and House of Commons in March 2012. The report recommended several amendments to the legislation based on an extensive engagement with the three institutions mandated to support the FNFMA regime. The recommendations focused on amendments to the Act that would bring greater clarity, strength, and/or efficiencies to Legislative property taxation authorities (e.g. to address overlapping legislative property taxation authorities); Administrative and legal requirements (e.g. streamline processes to improve efficiency); Jurisdiction (e.g. to address complex or unclear jurisdiction); Administrative burden (e.g. excessive requirements for administering certain aspects of the FNFMA regime); Institutional powers (e.g. little flexibility of the institutions to respond to the individual needs of First Nations and narrow mandates); First Nations powers (e.g. clarification around the authority of First Nations to collect fees and other changes with respect to the provision of local services, to recover the costs of enforcement proceedings in circumstances of property tax non-payment, and to borrow from sources other than the First Nations Finance Authority); The First Nations Finance Authority financing model (e.g. clarification on the timing that the First Nations Finance Authority assumes priority over other creditors); Transition from the Indian Act to the First Nations Fiscal Management Act (e.g. no official mechanism to transfer between the two acts); and Institutional liability (e.g. minor amendments to the Act to reduce liability during intervention or comanagement cases). Following additional engagement conducted by the institutions with participating First Nations, taxpayers associations, the National Aboriginal Economic Development Board, the Canadian Energy Pipeline Association, and parliamentarians, amendments were included in the Economic Action Plan 2015 Act, No. 1, which received royal assent on June 23, 2015. These legislative amendments bring greater administrative efficiencies and effectiveness to the FNFMA regime and reflect the recommendations put forth in the 2012 report on the legislative review. For example, the legislative amendments will make it easier for First Nations to participate in the FNFMA regime because the process to become added to the Schedule will be faster. The amendments will also clarify that there are two separate debt reserve funds — one for property tax and one for “other revenues” —, which will bolster the safeguards of the regime, while increasing the confidence of capital markets and investors. Objectives Most of the amendments to the regulations are consequential to the legislative amendments. The objectives of the amendments are to align the nine regulations with the recent amendments made to the Act and implement other minor amendments to the regulations to improve the administrative aspects of the FNFMA regime. Specifically, the regulatory changes provide additional clarity; reduce the burden on First Nations operating under the FNFMA regime; and streamline processes and procedures. Description The following describes the regulatory amendments required to align with the recent legislative amendments to the First Nations Fiscal Management Act included in the Economic Action Plan 2015 Act, No. 1, and to improve administrative aspects of the FNFMA regime. Provide additional clarity The First Nations Assessment Appeal Regulations set out the requirements for establishing and implementing appeal procedures in respect of the assessment of property interests in the reserve. The amendments ensure that all members of a law society in good standing could be appointed to a First Nation’s assessment review board as the required law society member. This amendment clarifies that First Nations can appoint non-practising law society members, as these individuals may be more willing to serve on assessment review boards for the stipulated compensation. The current Regulations stipulate that only practicing law society members can be appointed. Other amendments provide the option to appeal from a decision of the assessment review board, as there is no explicit right to appeal in the current Regulations. The amendments to the First Nations Tax Commission Review Procedures Regulations update the First Nations Tax Commission contact information to include their Web site instead of a mailing address. Some amendments to the First Nations Fiscal Management Act clarified the difference between the administration of borrowing secured by property tax revenues and borrowing secured by “other revenues” under the Act. “Other revenues” include revenues from leases and other business revenues on reserve. Amendments to the Financing Secured by Other Revenues Regulations and to the Debt Reserve Fund Replenishment Regulations make the same clarification. Another amendment to the Financing Secured by Other Revenues Regulations allows certain types of revenues that must be deposited into an account controlled by a First Nation (such as some government revenues) to be used to secure financing under the pooled borrowing mechanism of the FNFMA regime. As a safeguard to ensure loan repayment, the amendments clarify that “other revenues” used to support borrowing must first go to a secured revenue trust account or an intermediate account controlled by the First Nations Finance Authority. The amount required to make the repayment is taken by the First Nations Finance Authority to repay the bond holders and the remainder is then distributed to the First Nation. However, many payors of “other revenues” (in particular, governments and governmental entities), will only pay “other revenues” into an account that is in the name of the applicable First Nation. Therefore, these revenues cannot currently be used to support borrowing. The Financing Secured by Other Revenues Regulations are amended to allow a First Nation to deposit these types of “other revenues” into an intermediate account with the First Nations Finance Authority which would then be transferred into the secured revenues trust account. The amendments to the First Nations Fiscal Management Act clarified the certification and intervention powers of the First Nations Financial Management Board, as the right of intervention in the Act had not been explicit. The amendments to the Local Revenue Management Implementation Regulations are required to align the Regulations with the Act because changes to the Act provided the First Nations Financial Management Board with the authority to change section 9 of financial administration laws. These consequential amendments clarify that the First Nations Financial Management Board may approve a financial administration law made under section 9 even while the First Nation is under co-management or third-party management. The amendments also clarify that the First Nations Financial Management Board has the authority to revoke a financial performance certificate it has previously issued to a First Nation, even while the First Nations Financial Management Board has assumed co-management or third-party management functions under the Act. This amendment is a consequence of the revised subsection 50(4) of the Act, which gives the First Nations Financial Management Board expanded authority to revoke a certificate it has issued under subsection 50(4). The First Nations Financial Management Board must also include, in its final report to a First Nation that has been under a third-party management, a summary or copy of any financial administration law that the Board enacted or amended under subsection 9(1) of the Act during the intervention. Another amendment to improve the administrative aspects of the FNFMA regime clarifies that a First Nation in intervention under the Act must pay the First Nations Financial Management Board’s intervention management costs; this applies only to those First Nations that opt to exercise their property tax jurisdiction under the Act. A change is also made to the title of the Local Revenue Management Implementation Regulations. To acknowledge that the Regulations include both types of revenues — local and “other” —, the new title is simply Revenue Management Implementation Regulations. This reflects the fact that these Regulations, which were initially made for financing secured by local revenues (i.e. property tax revenues), were adapted pursuant to the Financing Secured by Other Revenues Regulations (2011) in order to make “other revenues” eligible for securitization. Reduce the burden on First Nations operating under the FNFMA regime The First Nations Assessment Inspection Regulations provide for the inspection of taxable properties. The Regulations establish procedures for inspections, including such matters as notice, timing, and, in the event the assessor is denied the required access to the property, the ability to make the assessment based on the information otherwise available. The amendment gives First Nations the flexibility to apply the inspection regime used in their province instead of the regime set out in the existing Regulations. Currently, assessors must familiarize themselves with the procedures established by the First Nations. Once First Nations are able to use provincial procedures, assessors would not need to learn a new set of procedures because they would already be familiar with provincial rules. This approach parallels the approach taken in section 2 of the First Nations Assessment Appeal Regulations, which enables a First Nation to choose either the process set out in the Regulations, or the process used in the applicable province. Other amendments to improve the administrative aspects of the FNFMA regime are made to the First Nations Assessment Appeal Regulations Subsection 7(1) is amended to allow First Nations to specify in the assessment notice the address to which a notice of appeal of assessment is to be sent. Assessors, and assessment offices, change periodically. As subsection 7(1) is currently drafted, a First Nation must amend its property assessment law each time there is a change of address for their assessor. This amendment reduces the administrative burden on First Nations by reducing the need for property assessment law amendments; Section 11 is amended to give the chairperson control of documents and the obligation to ensure that all parties receive all documents. Imposing this obligation on the assessor is not appropriate since the assessor is a party to the proceedings; and Subsection 13(2) is amended to provide an option to deliver documents to a First Nation’s or a corporation’s legal counsel. This change is consistent with both the First Nations Tax Commission Review Procedures Regulations and the First Nations Taxation Enforcement Regulations which provide for the option of delivering documents to a First Nation’s or corporation’s legal counsel. Streamline processes and procedures The amendments to the First Nations Fiscal Management Act clarified when law review panels can be used by the First Nations Tax Commission to review local revenue laws and who designates the panels. Parallel amendments are required to the First Nations Local Revenue Law Review Regulations to ensure that the designation rules are the same in the Act and the Regulations. The amendments provide a requirement to refer a law back to the Commission as a whole if the law does not comply with the legislative framework, enable the review and approval of all local revenue laws to be delegated to a panel of three or more commissioners, and clarify that the Chief Commissioner designates the panels. By addressing these matters, these amendments will avoid unnecessary deliberations about when a law should be referred to the Commission. The First Nations Rates and Expenditure Laws Timing Regulations establish the date on which participating First Nations must make the annual rates and expenditure laws related to their property tax regimes. One of the amendments in the First Nations Fiscal Management Act gives the First Nations Tax Commission the authority to set the date by which First Nations must make their annual tax rate and expenditure laws. Since this authority is now in the Act, the First Nations Rates and Expenditure Laws Timing Regulations are no longer needed and are repealed. The First Nations Taxation Enforcement Regulations establish the procedures that a First Nation would use in dealing with taxpayers on reserve who fail to pay taxes due under a First Nation property tax law. The amendments clarify that a tax arrears certificate is not required except for the specific enforcement measures set out in the Regulations (seizure and sale of personal property, seizure and assignment of a taxable property, and discontinuance of services). Other enforcement measures, such as issuing a demand letter, seeking an injunction to restrain an absconding taxpayer, or starting a court action to recover the debt, do not require a tax arrears certificate. The amendments also clarify that the information required by section 6 of the First Nations Taxation Enforcement Regulations to be included in a tax arrears certificate is required only if that information is applicable under a First Nation’s property taxation law. The Debt Reserve Fund Replenishment Regulations set out a formula determining the payments required in the event other borrowing members were ever collectively called upon by the First Nations Finance Authority to replenish the debt reserve fund (the fund). The formula in the Regulations ensures that each borrowing member pays an equitable amount in replenishing the fund. The fund is an important cornerstone for the credit rating of the First Nations Fiscal Management Act and for investor confidence in the pooled borrowing regime. For clarity and consistency, the regulatory amendments consolidate regulatory requirements related to debt reserve funds that currently appear in sections 22 and 23 of the Financing Secured by Other Revenues Regulations with the Debt Reserve Fund Replenishment Regulations. “One-for-One” Rule The “One-for-One” Rule applies. The repeal of the First Nations Rates and Expenditure Laws Timing Regulations results in one title “out” under the Rule. There will not be any direct administrative costs or savings for businesses. Reductions in the administrative burden resulting from the regulatory amendments are only expected to benefit third-party administrators — the three institutions operating under the Act — and First Nations. Small business lens The small business lens does not apply, as the amendments do not impose any additional administrative or compliance costs on small businesses. Consultation The amendments to the regulations follow recommendations in the 2012 report on the legislative review and the subsequent analysis and consultations that resulted in the legislative amendments to the First Nations Fiscal Management Act that were included in the Economic Action Plan 2015 Act, No. 1. The First Nations Tax Commission, the First Nations Financial Management Board and the First Nations Finance Authority have the mandates to administer the First Nations Fiscal Management Act and related regulations. The amendments to the regulations follow recommendations from the First Nations institutions based on their administration of the Act and related regulations and following collaborative working group sessions which took place over several months starting in July 2014. The amendments to the regulations also stem from the First Nations institutions’ work with First Nations using (and interested in using) the First Nations Fiscal Management Act, as well as legal counsel working with the First Nations. Direct feedback was sought from the First Nations they serve by means of online consultations from September 2014 to March 2015 and online quarterly publications sent to all First Nations in Canada. The First Nations institutions also received letters and resolutions of support from the Canadian Property Tax Association Inc., the First Nations Tax Administrators Association, the Canadian Energy Pipeline Association, the National Aboriginal Economic Development Board, and parliamentarians. Other outreach activities conducted by the First Nations institutions included presentations at various committees and meetings such as the Standing Senate Committee on Aboriginal Peoples, the National Aboriginal Economic Development Board, the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, presentations and exhibits at the Aboriginal Financial Officers Association Canada conference in 2015, and meetings with the Minister of Indian Affairs and Northern Development and other members of Parliament. Rationale The First Nations Fiscal Management Act enables First Nations to exercise jurisdiction over fiscal matters in their communities. Working with the three First Nation institutions that administer the Act — the First Nations Financial Management Board, the First Nations Tax Commission and the First Nations Finance Authority —, First Nations that choose to opt into the legislation can strengthen their financial management capacity, exercise jurisdiction over property taxation on reserve, and finance infrastructure, housing and economic development projects in their communities through a pooled borrowing mechanism. The legislation enables First Nations to build their economies and communities, and exercise self-determination. The Economic Action Plan 2015 Act, No. 1, which received royal assent on June 23, 2015, amended the First Nations Fiscal Management Act to improve its effectiveness. The amendments facilitate First Nations participation in the Act by making it easier and quicker for First Nations to be scheduled to the Act, eliminate administrative inefficiencies, and enhance investor confidence in the regime’s property taxation and financial management frameworks. This helps the First Nations Finance Authority maintain an investor grade credit rating so that First Nations can borrow money through the Authority at low interest rates. The legislative amendments were based on the 2012 legislative review of the Act, and have the support of the three First Nations institutions. In order for the objectives of the legislative amendments to be fully realized, consequential and other amendments to improve the administrative aspects of the FNFMA regime are required. The First Nations institutions have played a lead role in the development of the regulations. The regulatory amendments do not change the mandates of the First Nations institutions and do not have funding implications. Once the legislative and regulatory amendments are in force, it is expected that the number of First Nations choosing to opt into the FNFMA regime will increase to approximately 240 by 2020. These First Nations will be able to access an improved FNFMA regime, including the services of the three First Nations institutions to strengthen their financial management capacity and governance, as well as the ability to raise revenues through property taxation if they wish, and to participate in pooled borrowing to build houses and public infrastructure in their communities and create economic opportunities and employment for their members. Contact Allan Clarke Director General Policy and Coordination Lands and Economic Development Indigenous and Northern Affairs Canada 10 Wellington Street Gatineau, Quebec K1A 0H4 Telephone: 819-953-3004 Email: [email protected] Footnote a S.C. 2015, c. 36, s. 190 Footnote b S.C. 2015, c. 36, s. 201 Footnote c S.C. 2005, c. 9; S.C. 2012, c. 19, s. 658 Footnote 1 SOR/2006-244 Footnote 2 SOR/2007-239 Footnote 3 SOR/2007-240 Footnote 4 SOR/2007-241 Footnote 5 SOR/2007-242 Footnote 6 SOR/2007-243 Footnote 7 SOR/2007-244 Footnote 8 SOR/2007-245 Footnote 9 SOR/2011-201 Footnote 10 SOR/2007-245 Footnote 11 A report to Parliament on the legislative review of the First Nations Fiscal and Statistical Management Act — March 2012, https://www.aadnc-aandc.gc.ca/eng/1334169647868/1334169697578.

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