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1. In this Constitution,
« électeur »
« électeur »
“elector” means a natural person who
(a) is lawfully and ordinarily resident on the lands of the First Nation;
(b) is 21 years of age or over;
(c) is a citizen; and
(d) is not otherwise disqualified from voting at elections or referendums of the First Nation;
« directeur du scrutin »
« directeur du scrutin »
“Electoral Officer” means the person appointed pursuant to section 9 of this Constitution.
2. (1) Citizenship is determined by the membership rules of the First Nation that were in force immediately before the day on which the First Nation comes under this Act, with such modifications as the circumstances require and without abrogating or derogating from existing aboriginal or treaty rights.
Must be an Indian
(2) No person may be a citizen who is not registered or entitled to be registered as an Indian.
Citizens of other Bands
(3) No citizen of another community or another First Nation may be a citizen of the First Nation.
Amendment to Constitution
When amendment effective
3. (1) Subject to subsections (2) and (4), an amendment to the Constitution is effective and in force on the day it is approved by a majority of the electors of the First Nation in a referendum held for the purpose or on such later date as is set out in the amendment.
Percentage of vote required
(2) Where a provision of the Constitution requires approval for any purpose by a percentage of electors greater than a majority of electors, an amendment to that provision, including the percentage itself required for approval, may only be made with the approval of at least that same percentage of electors.
Change of term of office
(3) Any amendment to the Constitution dealing with the term of office of a member of the governing body of the First Nation is restricted to changing any future term of a member of that body and requires seventy-five per cent approval by the electors.
Petition re amendment
(4) If the governing body of the First Nation receives a petition signed by eighty per cent of all the electors of the First Nation containing a request that a referendum be held in relation to an amendment proposed for the Constitution, the governing body shall forthwith order a referendum to determine the matter.
Drafting petitioned amendment
(5) The governing body may redraft the amendment proposed in the petition mentioned in subsection (4) but the governing body must do its best to ensure that its draft gives effect to the intent of the petition.
4. When the Constitution or an amendment to the Constitution comes into force, the governing body of the First Nation shall forthwith cause the Constitution or amendment to be published in the Canada Gazette.
5. (1) The governing body of the First Nation may be called a Council or by another title and its members may be called councillors or by any other designation, hereinafter in this Constitution referred to, respectively as “Council” and “councillors”, and shall be selected in accordance with the provisions of the Constitution and laws of the First Nation.
(2) The Council consists of councillors one of whom shall be the principal administrative officer of the First Nation and may be designated Chief or by another title, hereinafter in this Constitution referred to as the “Chief”.
Number of councillors
(3) The number of councillors, including the Chief, shall be no less than three nor more than thirteen, as may be determined by law of the First Nation having regard to subsection (4).
For each 120 citizens
(4) In determining the number of councillors, there shall be, so far as possible, no less than one councillor, including the Chief, for every one hundred and twenty citizens.
6. The Chief and councillors of the First Nation must be elected by a majority of the votes cast in an election held pursuant to this Constitution.
7. (1) No candidate is eligible for election as Chief or councillor unless
(a) the candidate is an elector of the First Nation;
(b) all debts owed to the First Nation by the candidate are in good standing;
(c) no court has convicted the candidate in criminal proceedings for theft, fraud, bribery or breach of trust; and
(d) the nomination of the candidate is petitioned by two persons who are themselves electors and the petition is submitted to the Electoral Officer on or before the date set for the close of nominations, together with a statutory declaration sworn by the nominee attesting to the matters mentioned in paragraphs (a), (b) and (c).
Disqualification of councillor
(2) A councillor who ceases to be an elector or who becomes insolvent or is convicted in criminal proceedings for theft, fraud, bribery or breach of trust, thereupon ceases to be a councillor.
8. (1) The Council shall call an election to be held no later than five years from the date on which the last election for the Council was held.
(2) If a vacancy occurs on the Council, the Council may in its discretion call a by-election to fill the vacancy but if less than four years has expired since the previous election, the Council must call such a by-election forthwith.
Appointing Electoral Officer
9. (1) The Council shall appoint an Electoral Officer no later than thirty days before the date an election is to be held.
(2) The Electoral Officer must not be a citizen or an employee of the First Nation or Council.
Appealing election result
10. (1) Within thirty days after an election, any candidate at the election or any elector who voted or attempted to vote in the election who has reasonable grounds for believing that
(a) there was corrupt practice in connection with the election, or
(b) there was a contravention of the Act, the Constitution, or any law of the First Nation that might have affected the result of the election,
may lodge an appeal to the Federal Court of Canada or any court of competent jurisdiction.
Sending documents to Electoral Officer
(2) Upon the filing of an appeal the appellant shall forward a copy of the appeal together with all supporting documents by registered mail to the Electoral Officer and to each candidate.
Written answers required
(3) Any candidate may, and the Electoral Officer shall, within fourteen days of the receipt of a copy of an appeal under subsection (1), forward to the Federal Court of Canada or to a court of competent jurisdiction, as the case may be, by registered mail, a written answer to the particulars set out in the appeal together with any supporting documents relating thereto duly verified by affidavit.
(4) All particulars and documents filed in accordance with this section form the record.
(5) The court may provide such relief as it sees fit, when it appears to the court that
(a) there was corrupt practice in connection with the election; or
(b) there was a contravention of the Act, the Constitution or any law of the First Nation that might have affected the result of the election.
General assembly of First Nation
11. (1) The Council shall call a general assembly of the citizens at least once in each calendar year.
Special assembly of First Nation
(2) The Council shall call a special assembly of the citizens within thirty days of the receipt of a petition duly signed by at least twenty-five per cent of the citizens calling for such an assembly, but no petition may be received by the Council for this purpose within six months of a previous special assembly.
Proceedings and minutes
12. (1) The proceedings and minutes of Council meetings shall be recorded and maintained and, subject to any laws of the First Nation, shall be made available for inspection by electors and other persons authorized by the Council.
(2) The Council shall place on the agenda for a meeting of the Council any item submitted by a citizen at least seven days before the meeting.
Functions and Duties
Function of Council
13. (1) The First Nation acts through the Council in exercising its powers and carrying out its duties and functions.
Ratification of actions
(2) The Council may by resolution ratify, in whole or in part, the actions of Council or the actions of any of the members of Council, including decisions that have been made, expenses that have been incurred and contracts that have been entered into.
Delegation of functions
(3) The Council may by resolution authorize the Chief or any other designated person or body to perform and exercise any of its duties, powers and functions.
Officers, employees, etc
(4) The Council may by resolution appoint officers, agents and employees of the First Nation and establish administrative and advisory bodies to assist in the administration of the affairs of the First Nation.
Commencement of law
14. (1) A law of the First Nation comes into force on the day on which it is enacted, or on such day as is specified therefor by the laws of the First Nation.
Promulgation of laws
(2) The laws of the First Nation shall be published and made generally available to its citizens by any expedient means.
First Nation Money
Holding First Nation money
15. (1) First Nation money is money held by the First Nation for the use and benefit of the First Nation and may be held only in the following forms:
(a) deposits in financial institutions;
(b) treasury bills;
(c) bankers’ acceptances;
(d) guaranteed investment certificates;
(e) bonds; and
Classification of moneys
(2) First Nation money is classified as capital and revenue.
(3) Capital consists of the following moneys:
(a) the capital funds transferred from the Government of Canada;
(b) the proceeds of the sale of any lands of the First Nation;
(c) the proceeds of the sale of any other capital assets held by the First Nation; and
(d) proceeds, including royalties, from the sale of non-renewable resources.
(4) Revenue consists of First Nation money that is not capital.
No longer First Nation money
(5) For greater certainty, First Nation money ceases to be First Nation money upon its investment or expenditure, unless invested in or converted to
(a) deposits in financial institutions;
(b) treasury bills;
(c) bankers’ acceptances;
(d) guaranteed investment certificates;
(e) bonds; or
Holding by First Nation
(6) For greater certainty, money is held by the First Nation when the First Nation is vested with legal title to the money.
(7) The Council may only expend First Nation money or commit itself, by contract or otherwise, to expend First Nation money when the expenditure is authorized or ratified by this Constitution, a law or a Council resolution.
Validity of contracts
(8) A failure by the Council to follow the procedures prescribed by subsection (7) does not affect the validity of any contract.
16. First Nation revenue expenditures include but are not limited to
(a) expenditures in the administration of First Nation programs and businesses, including, without restricting the generality of the foregoing: travel, promotion, professional fees, inventory purchases, accounts receivable, funding and other business expenses;
(b) expenditures by way of contributions to First Nation housing programs;
(c) expenditures for community services, including sports, emergency assistance, burials and recreation grants;
(d) expenditures for jointly funded programs;
(e) expenditures by way of supplements to First Nation programs;
(f) expenditures for economic development;
(g) expenditures for First Nation planning;
(h) expenditures for charitable donations;
(i) expenditures by way of provision for asset replacement;
(j) expenditures by way of payments made once in a lifetime, in an amount not exceeding one per capita share of the revenue held by the First Nation, to any living person whose name is deleted from the citizenship list of the First Nation;
(k) expenditures for making loans to, investments in, or contributions to corporations or trusts; and
(l) expenditures for any other purpose that in the opinion of the Council is for the benefit of the First Nation, including, without restricting the generality of the foregoing, investment.
First Nation capital
17. First Nation capital may only be expended for
(a) the construction or improvement of roads, bridges and water courses on lands of the First Nation;
(b) the construction or improvement of outer boundary fences on lands of the First Nation;
(c) the purchase of land for use by the First Nation as new lands of the First Nation or as an addition to lands of the First Nation;
(d) the purchase for the First Nation of the interest of a citizen in lands of the First Nation;
(e) the purchase of machinery and equipment for the First Nation;
(f) the construction on, or in connection with, lands of the First Nation of such improvements or works as it considers will be of permanent value to the First Nation or will constitute a capital investment;
(g) the purpose of making a once-in-a-lifetime payment to any living person whose name is deleted from the citizenship list of the First Nation in an amount not exceeding one per capita share of the capital moneys held by the First Nation;
(h) the purpose of making loans to, investments in, or contributions to, corporations or trusts;
(i) meeting expenses necessarily incidental to the management of lands of the First Nation and other First Nation property; and
(j) any other purpose that, in the opinion of the Council, is for the benefit of the First Nation and is deemed in its nature to be a capital expenditure, including, without limiting the generality of the foregoing, investment.
18. In making investments of capital or revenue, the Council has unfettered discretion in choosing investments and is not limited to investments authorized for investment in any applicable legislation other than the laws of the First Nation and this Constitution.
Fiscal year of First Nation
19. The fiscal year of the First Nation begins on April 1 and ends on March 31 of the following year, unless otherwise provided by law.
Adoption of budget
20. (1) The First Nation, by resolution,
(a) shall, before the beginning of each fiscal year, adopt a budget for that fiscal year; and
(b) may, if it deems necessary in the course of the fiscal year, adopt supplementary budgets for that fiscal year.
(2) If the First Nation fails to adopt a budget for a fiscal year before the beginning of that fiscal year, the First Nation is deemed to have adopted a budget identical to the budget and any supplementary budgets of the previous fiscal year until a new budget is adopted.
Accounts and financial records
21. (1) Books of accounts and financial records of the First Nation shall be kept by the Council and must
(a) contain, as a minimum,
(i) an account of the moneys received and disbursed,
(ii) an account of revenues and expenditures,
(iii) a record of accounts payable and receivable,
(iv) an account of assets and liabilities,
(v) an account of all other transactions of the First Nation that may affect the financial position of the First Nation, and
(vi) a separate accounting for the expenditure and balance of capital and revenue;
(b) conform with generally accepted accounting principles; and
(c) permit a comparison between
(i) revenues and expenditures as shown in the books of accounts and financial records, and
(ii) the projected revenues and expenditures as shown in the budget and any supplementary budget.
Inspection of financial records
(2) Any citizen who
(a) is the age of 21 years,
(b) is mentally competent, and
(c) whose debts to the First Nation are in good standing
and that citizen’s qualified legal representative and qualified accountant may inspect the budget, financial statements, the auditor’s report relating thereto and any annual report.
No right to copy
(3) A right of inspection does not include the right to take copies.
Where to inspect
(4) A right of inspection may be exercised at the office of the Council or such other place designated by law and may be exercised only during normal business hours or such other times as is provided by law.
Number of inspections
(5) A right of inspection may not be exercised more than twice in each fiscal year in addition to the right to inspect the books and records at the annual general assembly.
Fee for inspections
(6) The First Nation may charge a service fee to cover the costs of supervision during inspections provided for by subsection (2), but no fee may be charged to inspect the books and records at the annual general assembly.
Confidentiality of records
(7) All information in the financial statements, budget and auditor’s report is confidential.
Duty of Council
(8) It is the duty of the Council to obtain confidentiality agreements and give warning in large bold print in any such agreements of the specific consequence of a breach of confidence.
Preparation of financial statements
22. (1) Forthwith, but in any event no later than six months after the end of each fiscal year, the Council shall prepare a financial statement in comparative form, containing as a minimum,
(a) a balance sheet; and
(b) a statement of revenues and expenditures and a comparison of these with amounts stated in the First Nation’s budget and any supplementary budget.
(2) The financial statement must conform with generally accepted accounting principles.
Separate capital and revenue accounting
(3) The financial statement must show the expenditure and balance of capital and revenue separately.
Appointment of auditor
23. (1) The Council shall appoint an auditor to audit the accounts and transactions of the First Nation.
Tenure of auditor
(2) The auditor holds office until a new auditor is appointed.
Vacancy of auditor
(3) When a vacancy occurs during the term of the auditor, the Council shall forthwith appoint a new auditor.
Independence of auditor
(4) The auditor must be independent of the First Nation and must be a member, or a partnership whose partners are members, in good standing of the Canadian Institute of Chartered Accountants or the Certified General Accountants Association of a province having a territorial link with the First Nation.
(5) For the purposes of this section,
(a) independence is a question of fact; and
(b) a person is deemed not to be independent if that person or that person’s business partner
(i) is a business partner, an officer or an employee of the First Nation or participates in any of its business or financial interests or is a business partner of any officer or employee of the First Nation,
(ii) beneficially owns or controls, directly or indirectly, an interest in securities of the First Nation or any of its business or financial interests, or
(iii) has been a receiver, receiver manager, liquidator, or trustee in bankruptcy of the First Nation or any of its business or financial interests within two years of the proposed appointment as auditor of the First Nation.
(6) Subject to subsection (9), a person is disqualified from being an auditor of the First Nation if the person ceases to be independent of the First Nation, its business or financial interests or the officers of the First Nation.
(7) An auditor who becomes disqualified under this section shall, subject to subsection (9), resign forthwith after becoming aware of the disqualification.
Order of court
(8) An interested person may apply to a court of competent jurisdiction for an order declaring an auditor to be disqualified under this section and the office of auditor to be vacant.
Exception to disqualification
(9) An interested person may apply to a court of competent jurisdiction for an order exempting an auditor from disqualification under this section; and the Court may, if it is satisfied that an exemption would not unfairly prejudice the First Nation, make an exemption order on any terms the Court thinks fit, which order may have retrospective effect.
24. (1) The auditor shall, within six months after the completion of the financial statement, prepare and submit to the Council a report on the First Nation’s financial statement, stating whether, in the opinion of the auditor, the financial statement presents fairly the financial position of the First Nation in accordance with generally accepted accounting principles applied on a basis consistent with that applied in the previous fiscal year.
Delay of report
(2) Where the auditor has not been able to prepare the report within the period mentioned in subsection (1), the auditor shall notify the Council of the reasons for the delay.
Duty to inform auditor
25. On demand of the auditor of the First Nation, the former auditors, or the present or former officers, employees, or agents of the First Nation shall furnish any
(a) information and explanations; and
(b) access to records, documents, books, accounts and vouchers of the First Nation that are, in the opinion of the auditor, necessary to enable the auditor to make the report required under section 24 and that the officers, employees, agents or former auditors are reasonably able to furnish.
Federal transfer payments
26. Federal transfer payments must be budgeted and accounted for, and audited, in accordance with the terms of the agreement made in respect of the transfer of the funds.
Registration of Laws
Register of laws
27. (1) The Council shall maintain a general register of the laws of the First Nation in which are to be kept the originals of all First Nation laws.
(2) No law of the First Nation is invalid by reason only of a failure to be registered in compliance with subsection (1).
Right to obtain copies
(3) A citizen is entitled to obtain a copy of a law on payment of such reasonable fee as may be fixed by the Council.
Interests in Lands of the First Nation
28. (1) The following transactions involving interests in lands of the First Nation, namely,
(a) a mortgage or charge,
(b) a sale,
(c) a grant of fee simple,
(d) the grant of an interest for a term exceeding ninety-nine years, and
(e) the grant to a citizen of any interest other than a grant for personal residential purposes,
require approval by a majority of eighty per cent of the votes cast by electors of the First Nation voting on a referendum held for the purpose of approving any of these transactions and in which a majority of the electors participate.
(2) Subject to subsection (1), the Council may by resolution authorize the granting of leases, licenses, permits, easements, rights of way, or any other interests in or to the use of lands of the First Nation.