Bill S-216

SCHEDULE 1

(Section 4)

MODEL CONSTITUTION

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

“Act” means the First Nations Government Recognition Act.

“Council” means the governing body of the First Nation.

“councillor” means a member of the Council.

“elector” means a member who is

(a) 18 years of age or over; and

(b) not otherwise disqualified, pursuant to this Constitution or a law of the First Nation, from voting at elections or referendums of the First Nation.

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

“First Nation” means (name of the First Nation).

“member” means a member of the First Nation.

Membership

2. Until a law of the First Nation is passed that provides otherwise, membership is determined by the rules that are in force immediately before the day on which the First Nation is recognized under the Act, with such modifications as the circumstances require and without abrogating or derogating from existing aboriginal or treaty rights.

Amendment to Constitution

3. (1) Subject to subsections (2) and (4), an amendment to the Constitution may be made with the approval of the electors in the number and majority specified in subsection 5(1) of the Act in a referendum held for that purpose, and is effective on the day it is approved 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, 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 councillor is restricted to changing any future term of a councillor.

(4) If the Council receives a petition signed by twenty-five per cent of the electors requesting that a referendum be held in relation to a proposed amendment to the Constitution, the Council shall without delay order a referendum to determine the matter.

(5) The Council may redraft the amendment proposed in the petition referred to in subsection (4) providing the redrafted amendment gives effect to the intent of the petition.

Publication

4. When the Constitution or an amendment to the Constitution comes into force, the Council shall without delay notify the President of the Queen’s Privy Council for Canada, who shall cause the Constitution or amendment to be published in the Canada Gazette.

Governing Body

5. (1) The councillors shall be selected in accordance with the provisions of the Constitution and the laws of the First Nation.

(2) The first Council shall be the body referred to in subsection 7(1) of the Act, until replaced pursuant to an election held under this Constitution, which the first Council shall call so that new Council is in office within six months after the First Nation becomes a recognized First Nation.

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

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

6. The Chief and the other councillors shall be elected by a majority of the votes cast by electors in an election held under this Constitution.

Elections of Councillors

7. (1) A member of the First Nation is eligible to be a candidate in an election of councillors if

(a) the member is an elector of the First Nation;

(b) all debts owed to the First Nation by the member are in good standing;

(c) no court has convicted the member in criminal proceedings for theft, fraud, bribery or breach of trust; and

(d) the nomination of the member is petitioned by two persons who are 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) to (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 of councillors 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 at any time except a time when an election has been called under subsection (1), the Council may call a by-election at its discretion to fill the vacancy, but shall call such a by-election without delay if less than four years have expired since the previous election.

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

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

10. (1) Within thirty days after an election, any candidate in the election or any elector who voted or attempted to vote in the election may file an appeal in 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) On 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), submit 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 or submitted 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.

Assemblies and Meetings

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

(2) The Council shall call a special assembly of the electors within thirty days of the receipt of a petition, duly signed by at least twenty-five per cent of the electors, calling for an assembly for a specified purpose, but no petition may be made for a purpose within six months of a previous special assembly held for substantially the same purpose.

(3) The Council shall place on the agenda for a meeting of the Council any item submitted by an elector at least seven days before the meeting.

(4) 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.

Voting

12. (1) No elector may vote by proxy in an election, referendum or any other decision affecting the First Nation.

(2) The laws of the First Nation may permit voting by a mailed ballot.

Elders

13. The persons recognized as elders by the Council shall have the collective right to be consulted regularly by and offer advice to the Council.

Powers, Duties and Functions

14. (1) The First Nation shall act through the Council in exercising its powers and performing its duties and functions.

(2) The Council may by resolution ratify, in whole or in part, the actions of the Council or the actions of any of the councillors, 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 exercice and perform any of its powers, duties 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.

Laws

15. (1) The First Nation may make laws in relation to the following subject-matters:

(2) Every proposed law of the First Nation shall be proposed to the Council by a councillor, shall be in writing and shall be passed by a majority of the Council at three separate readings, each of which must be on a separate day.

(3) All proceedings of the Council at which debate on a motion to pass a law at any reading takes place shall be open for the public to attend and observe, subject to reasonable restrictions based on available space, good behaviour and public safety.

(4) The Council may make rules respecting its proceedings.

(5) The rules of the Council shall provide for conditions under which members of the First Nation may speak as witnesses during proceedings of the Council or any of its committees.

(6) The laws of the First Nation shall be published and made available to its members.

16. (1) A law of a First Nation comes into effect

(a) on passage at third reading by the Council;

(b) at some later date established in the laws of the First Nation; or

(c) on the date provided in the law.

(2) Despite subsection (1), a law may specify that it be subject to being first approved by a majority or a special majority of the electors of the First Nation defined in the law.

Financial Provisions

17. (1) The annual budget of the First Nation shall be approved in a law of the First Nation and no expenditure of money of the First Nation shall be made or committed if the expenditure or commitment is not authorized by such a law.

(2) The First Nation shall not borrow money unless the borrowing is authorized by a law of the First Nation.

18. (1) First Nation money is money held by the First Nation for the use and benefit of the First Nation.

(2) For greater certainty, money is held by the First Nation when the First Nation is vested with legal title to the money.

(3) First Nation money shall 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.

(4) First Nation money is classified as capital and revenue.

(5) 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) the proceeds, including royalties, of the sale of non-renewable resources.

(6) Revenue consists of First Nation money that is not capital.

(7) For greater certainty, First Nation money ceases to be First Nation money on 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.

19. Expenditures from First Nation revenue may be made for but are not limited to

(a) 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) contributions to First Nation housing programs;

(c) community services, including emergency assistance, burials, sports or recreation;

(d) jointly funded programs;

(e) supplements to First Nation programs;

(f) economic development;

(g) First Nation planning;

(h) charitable donations;

(i) asset replacement;

(j) 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 membership list of the First Nation;

(k) loans to, investments in, or contributions to corporations or trusts; and

(l) 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, the purchase of investments.

20. 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;

(d) the purchase for the First Nation of the interest of a member 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 membership 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 can reasonably be considered to be a capital expenditure, including, without limiting the generality of the foregoing, the purchase of investments.

21. In making investments of capital or revenue, the Council has unfettered discretion in their selection, subject to any applicable legislation, the laws of the First Nation and this Constitution.

Financial Accountability

22. (1) 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.

(2) The First Nation shall, before the beginning of each fiscal year, by one or more resolutions of the Council, adopt a budget for that fiscal year and pass a law authorizing the expenditures and revenue measures necessary.

(3) The First Nation may, if it deems it necessary, adopt one or more supplementary budgets in a fiscal year by the means described in subsection (2).

(4) 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.

23. (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) be maintained in a form that is sufficiently consistent to allow 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 member, and that member’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 member is 18 years of age;

(b) the member is mentally competent; and

(c) the member’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.

24. (1) As soon as possible after March 31 in each year, and in any event not later than six months after that date, 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, including all payments made to councillors, and a comparison of these with the amounts stated in the First Nation’s budget and any supplementary budget.

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

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

(4) The financial statement shall be made publicly available and copies provided to any person for a reasonable fee.

25. (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 shall be independent of the First Nation and shall 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 (province in which the First Nation is wholly or partially 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 of the First Nation 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.

(10) The auditor shall, within six months after the completion of the First Nation’s financial statement, prepare and submit to the Council a report on the 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.

(11) Where the auditor has not been able to prepare the report within the period mentioned in subsection (10), the auditor shall notify the Council of the reasons for the delay.

(12) 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 this section and that the officers, employees, agents or former auditors are reasonably able to furnish.

Federal Payments

26. Federal transfer payments shall 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 member 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 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 aboriginal lands of the First Nation.

(2) Despite subsection (1), a transaction for the grant of a mortgage or charge, an interest for a term exceeding 50 years or the grant to a member of an interest for any purpose other than personal residence that involves interests in aboriginal lands of the First Nation, shall be approved in each of two separate referendums, one held for the resident and one for the non-resident electors of the First Nation, in each of which

(a) two thirds of those who voted approved the transaction; and

(b) the resultant number approving the transaction was not less than fifty per cent of all electors eligible to vote.

Distribution of Money

29. Notwithstanding paragraphs 19(j) and 20(g), the Council may not distribute First Nation money to the members of the First Nation if the 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 the distribution, unless the distribution has been approved in each of two separate referendums, one held for the resident and one for the non-resident electors of the First Nation, in each of which

(a) two thirds of those who voted approved the distribution; and

(b) the resultant number approving the distribution was not less than fifty per cent of all electors eligible to vote.

Grievances and Disputes

30. (1) The Council shall make rules that permit members to present grievances or disputes to the Council or a committee of the Council.

(2) The Council may recommend a solution to a grievance or dispute or decline to make a recommendation.