Bill S-38

SCHEDULE 1

(Section 4)

DRAFT SAMPLE CONSTITUTION

1. The definitions in this section apply in this Constitution.

“Act” means the First Nations Self-Government Recognition Act.

“citizen” means a citizen of the First Nation.

“elector” means a natural person who is

(a) 18 years of age or over;

(b) a citizen; and

(c) not otherwise disqualified, pursuant to the Act or this constitution, from voting at elections or referendums of the First Nation.

“Electoral Officer” means the person appointed pursuant to section 9 of this Constitution.

Citizenship

2. (1) Citizenship is determined by the membership rules of the First Nation that are 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.

(2) No person may be a citizen who is not registered or entitled to be registered as an Indian.

(3) No citizen of another community or another First Nation may be a citizen of the First Nation.

Amendment to Constitution

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 that purpose or on such later date as is set out in the amendment.

(2) Where a provision of the Constitution requires approval for any purpose by a percentage of electors greater than a majority of electors, including the percentage itself required for approval, an amendment to that provision may be made only with the approval of at least that same percentage of electors.

(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 the approval of seventy-five per cent of the electors.

(4) If the governing body of the First Nation receives a petition signed by eighty per cent of the electors of the First Nation requesting that a referendum be held in relation to a proposed amendment to the Constitution, the governing body shall forthwith order a referendum to determine the matter.

(5) The governing body may redraft the amendment proposed in the petition mentioned in subsection (4), but must do its best to ensure that its draft gives effect to the intent of the petition.

Publication

4. When the Constitution or an amendment to the Constitution comes into force, the governing body of the First Nation shall forthwith notify the President of the Queen’s Privy Council for Canada, who shall cause the Constitution, the amendment or any laws passed pursuant thereto to be published in the Canada Gazette.

Governing Body

5. (1) The governing body of the First Nation may be called a Council and its members may be called councillors. They are referred to hereinafter as “Council” and “councillors” respectively, and shall be selected in accordance with the provisions of the Constitution and the laws of the First Nation.

(2) One of the councillors shall be the principal administrative officer of the First Nation and may be designated Chief, and is referred to hereinafter as the “Chief”.

(3) The number of councillors, including the Chief, shall be five.

6. The Chief and the councillors of the First Nation must be elected by a majority of the votes cast by electors 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 who submit the petition 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).

(2) A councillor who ceases to be an elector, who becomes insolvent or who 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 not 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 call a by-election at its discretion to fill the vacancy, but must call such a by-election forthwith if less than four years have expired since the previous election.

9. (1) The Council shall appoint an Electoral Officer not later than thirty days before the date on which an election is to be held.

(2) The Electoral Officer must not be a citizen of the First Nation or an employee of the First Nation or the Council.

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 may lodge an appeal to any court of competent jurisdiction if the candidate or elector has reasonable grounds to believe that there was

(a) a corrupt practice in connection with the election; or

(b) a contravention of the Act, the Constitution, or any law of the First Nation that might have affected the result of the election.

(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.

(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 court of competent jurisdiction, 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 there was

(a) a corrupt practice in connection with the election; or

(b) a contravention of the Act, the Constitution, or any law of the First Nation that might have affected the result of the election.

11. (1) The Council shall call a general assembly of the citizens at least once in each calendar year.

(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.

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

13. (1) The First Nation acts through the Council in exercising its powers and carrying out its duties and functions.

(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.

(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.

(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.

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.

(2) The laws of the First Nation shall be published and made generally available to its citizens by any expedient means.

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

(f) cash.

(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.

(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

(f) cash.

(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 only when the expenditure is authorized or ratified by this Constitution, a law or a Council resolution.

(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.

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) the purpose of 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 their selection, and is not limited to investments authorized by any applicable legislation other than the laws of the First Nation and this Constitution.

Financial Accountability

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.

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.

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.

(2) Any citizen, and that citizen’s qualified legal representative and qualified accountant, may inspect the budget, the financial statements, the auditor’s report relating thereto and any annual report, if

(a) the citizen is 18 years of age;

(b) the citizen is mentally competent; and

(c) the citizen’s debts to the First Nation are in good standing.

(3) A right of inspection may be exercised at the office of the Council or at such other place designated by law and may be exercised only during normal business hours or at such other times as is provided by law.

(4) 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.

(5) 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.

22. (1) Forthwith, but in any event not 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 the amounts stated in the First Nation’s budget and any supplementary budget.

(2) The financial statement must conform to generally accepted accounting principles.

(3) The financial statement must show the expenditure and balance of capital and revenue separately.

23. (1) The Council shall appoint an auditor to audit the accounts and transactions of the First Nation.

(2) The auditor holds office until a new auditor is appointed.

(3) When a vacancy occurs during the term of the auditor, the Council shall forthwith appoint a new auditor.

(4) The auditor must be independent of the First Nation and must be a member in good standing, 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 in which the First Nation is situated.

(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, of its business or financial interests or of 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.

(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.

(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.

(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.

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.

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

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).

(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 Aboriginal Lands of the First Nation

28. (1) The following transactions, involving interests in aboriginal lands of the First Nation, require approval by eighty per cent of the votes cast by the resident and non-resident electors of the First Nation, voting on separate referendums held for the purpose of approving any of these transactions and in each of which a majority of the voters participated:

(a) a mortgage or charge;

(b) the grant of an interest for a term exceeding ninety-nine years; and

(c) the grant to a citizen of any interest other than a grant for personal residential purposes.

(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.

29. Notwithstanding paragraphs 16(l) and 17(j), the Council may not distribute First Nation money to the citizens of the First Nation if such distribution would, together with all the distributions made in the previous twenty-four months, exceed five percent of all of the First Nation money that is held at the time of such distribution, unless such distribution has been approved by eighty per cent of the votes cast by the resident and non-resident electors of the First Nation, voting on separate referendums held for the purpose of approving that distribution and in each of which a majority of the voters participate.