Order Amending the Indian Band Revenue Moneys Order: SI/2021-34

Canada Gazette, Part II, Volume 155, Number 14

Registration
SI/2021-34 July 7, 2021

INDIAN ACT

P.C. 2021-598 June 17, 2021

His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of Indigenous Services, pursuant to subsection 69(1) of the Indian Act ^{footnote a}, makes the annexed Order Amending the Indian Band Revenue Moneys Order.

Order Amending the Indian Band Revenue Moneys Order

Amendments

1 The schedule to the Indian Band Revenue Moneys Order ^{footnote 1} is amended by adding the following in alphabetical order under the heading “New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador”:

• Glooscap First Nation

2 The schedule to the Order is amended by adding the following in alphabetical order under the heading “Quebec”:

• Communauté anicinape de Kitcisakik

3 The schedule to the Order is amended by adding the following in alphabetical order under the heading “Saskatchewan”:

• Ahtahkakoop
• Big River
• Carry the Kettle
• Clearwater River Dene
• Makwa Sahgaiehcan First Nation
• Nekaneet
• Pelican Lake
• Peter Ballantyne Cree Nation
• Pheasant Rump Nakota
• Witchekan Lake

4 The schedule to the Order is amended by adding the following in alphabetical order under the heading “Alberta”:

• Fort McKay First Nation
• Loon River Cree

5 The schedule to the Order is amended by adding the following in alphabetical order under the heading “British Columbia”:

• Lhoosk’uz Dene Nation
• Tl’etinqox Government
• Tsay Keh Dene

Coming into Force

6 This Order comes into force on the day on which it is registered.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

To amend the Indian Band Revenue Moneys Order by adding 17 First Nations to its schedule.

Objective

• To provide First Nations with greater financial flexibility, the ability to more directly manage their moneys currently held by Canada in trust, to expend resources in areas they deem necessary, and to be in a better position to take advantage of potential economic development opportunities.
• To take steps toward eliminating the paternalistic role of the federal government vis-à-vis the management of Band moneys in support of self-determination and establishing a new fiscal relationship with First Nations.

Background

The Indian Act defines Indian moneys as “all moneys collected, received or held by Her Majesty for the use and benefit of Indians or bands.” They belong to First Nations individuals or Bands and are held in trust by Canada. There are two categories of Indian moneys: capital and revenue.

Capital moneys are Indian moneys that come from the sale of a First Nation’s surrendered lands (from an interest in land), or from the sale of a First Nation’s non-renewable resources. These include funds resulting from oil and gas royalties, the sale of a First Nation’s reserve lands, and other proceeds from the sale of oil, gas and gravel.

Revenue moneys include all Band moneys other than capital moneys. Revenue moneys may include, but are not limited to, proceeds from the sale of renewable resources, reserve land activities such as leases, permits and rights-of-way, fines, and interest earned on capital.

Although changes have been made in recent years to update name changes of First Nations listed in the Indian Band Revenue Moneys Order, the last time that a First Nation was added was in 1990.

In 2013, the Standing Senate Committee on Aboriginal Peoples (the Committee) started hearing from witnesses and First Nations communities for the purpose of understanding housing and infrastructure challenges on reserve and finding the best ways to address them. Subsequently, in June 2015, the Committee produced a report called On-reserve Housing and Infrastructure: Recommendations for Change, which made 13 recommendations to address housing and infrastructure challenges on reserve. Recommendation 12 states that Canada hold a national roundtable with the National Aboriginal Economic Development Board and other First Nation organizations to explore options to facilitate First Nations’ access to Band moneys whether through amendments to the First Nations Oil and Gas Moneys Management Act or through other appropriate legislative or policy measures, e.g. section 69 authority.

Responding to this recommendation, the National Aboriginal Economic Development Board (now National Indigenous Economic Development Board) organized the Roundtable on First Nations Access to Indian Moneys on September 22, 2016. It was held at the Tsuut’ina Nation in Alberta. Participants in this roundtable included 33 First Nations and First Nation organizations, as well as 15 government officials. At the roundtable discussions, First Nations spoke about two issues that they encountered concerning Band moneys, which are symbolic and economic:

• (1) Some participants expressed concern at the process of needing to request and justify the release of their own moneys from the Government of Canada’s Consolidated Revenue Fund. They viewed this process as denying their financial management capacity, as being paternalistic, repudiating the idea of a nation-to-nation relationship, and that having to obtain permission prior to expending their own resources goes against Indigenous self-determination.
• (2) Maintaining Indian moneys in the Consolidated Revenue Fund at low interest rates results in lower returns for First Nations than what could be obtained through other, more aggressive investment vehicles. As a result, First Nations have turned to commercial lending agencies and pay higher interest rates to receive bridge financing for funding community projects and undertaking commercial opportunities that cannot wait while Canada’s administrative process for Indian moneys unfolds.

In 2017, the National Aboriginal Economic Development Board issued a report called Recommendations on First Nations Access to Indian Moneys which made recommendations to the Minister of Indian Affairs and Northern Development. One of the recommendations was that the Department should work with First Nations institutions to overcome internal policy and legislative barriers that restrict the ability of First Nations to have control over Band moneys.

Implications

The Order Amending the Indian Band Revenue Moneys Order (the Order) aligns with recommendations from the National Aboriginal Economic Development Board and it responds to the formal request by 17 First Nations that they be granted section 69 authority. The Order enables those First Nations to participate more openly in the Canadian economy by allocating their resources to take advantage of economic development opportunities while being able to more efficiently respond to community priorities.

The Indian Band Revenue Moneys Order allows First Nations to securitize their own revenue moneys. This has the potential to greatly expand the opportunity for the 17 First Nations added to its schedule to make investments from their own resources to fund their participation in the economic expansion occurring in their traditional territories.

There are no costs associated by adding the 17 additional First Nations to the schedule of the Indian Band Revenue Moneys Order. Conversely, there will most likely be net savings to the Government of Canada. Initial savings will manifest as reduced expenses associated with the cost to the Department of administering Band revenue moneys requests. Additionally, as Band revenue moneys will be more accessible, First Nations may opt to transfer funds out of the Consolidated Revenue Fund to private investment vehicles or, alternately, First Nations may opt to expend revenue moneys to address community needs resulting in a reduced amount of revenue moneys being held in the Consolidated Revenue Fund. Band revenue moneys held in the Consolidated Revenue Fund accrue interest to be paid to First Nations by the Government of Canada. This initiative will most likely lessen the amount of Band revenue moneys held in trust and reduce the amount of interest payable by the Government of Canada.

This initiative actively works to expand First Nation management over their resources. First Nation Chiefs and Councils are directly elected by their respective communities and better understand the characteristics and unique requirements of the communities that comprise the populations they represent. By transferring the responsibility to manage revenue moneys from the Department to Band Councils, Band members, through internal democratic mechanisms, will be able to have a greater say in determining how their revenue moneys are used.

Consultation

In 2019, the Department developed an assessment tool through which to identify First Nations that may be interested in obtaining section 69 authority. This tool guided regional offices in determining which First Nations to engage on the subject of section 69 authority by considering: the trust account balances and frequency of activity for revenue accounts; financial performance; recommendations from other areas within the regional office; and whether a First Nation is operational under the First Nations Land Management Act.

Engagement letters and sample Band Council Resolution templates were then sent to the identified First Nations. The letter described the impacts of being granted section 69 authority and requested that First Nations interested in this authority respond by submitting a Band Council Resolution requesting the authority by December 12, 2019. First Nations were also advised of the requirement that Chiefs and Councils inform their community of the decision. In response to the call-out, 17 First Nations expressed their interest in obtaining section 69 authority by submitting Band Council Resolutions formally requesting the authority. Through the process of preparing and authorizing a Band Council Resolution, Chief and Council confirms that they have informed their community.

While there are no modern treaty obligations, First Nations interested in obtaining section 69 authority were asked by the Department to inform their community members of the decision, as noted in the outreach materials. The Department’s requirement from interested First Nations was a duly authorized Band Council Resolution from the First Nation’s Council. It was determined that engagement should be determined at the Band level and not be subject to Departmental oversight. When a First Nation receives section 69 authority, Chief and Council assume a fiduciary duty towards their Band Members and can be held liable for the management of Band moneys. This assumption of liability was communicated to interested First Nations through the Department’s regional staff and in outreach materials.

Contact

Holly Beaton
Director
Trust Moneys, Estates, and Treaty Annuities
Regional Operations
Indigenous Services Canada
Telephone: 819‑635‑8594
Email: holly.beaton@canada.ca

Sean Sullivan
Manager
Trust Moneys and Treaty Annuities
Regional Operations
Indigenous Services Canada
Telephone: 819‑639‑8638
Email: sean.sullivan@canada.ca

Ahmad Farhat
Acting Program and Policy Officer
Regional Operations
Indigenous Services Canada
Telephone: 343‑549‑5227
Email: ahmad.farhat2@canada.ca