The First Nations Financial Transparency Act (the “FNFTA”) has been at the centre of much controversy over the past months.  The FNFTA was enacted in 2013 and modified the reporting requirements applicable to First Nations’ governments and their elected officials.  According to the FNFTA and the government of the time, the purpose was to enhance financial accountability and transparency of First Nations by requiring the public disclosure of audited consolidated financial statements, and schedules of remuneration paid to all Chiefs and Councillors.  In practice, some First Nations argued that the FNFTA had far reaching effects on individual First Nations and required disclosure of sensitive information, including accounts of own source revenue.  If a First Nation failed to comply, the FNFTA gave the Minister of Indian Affairs and Northern Development the ability to apply to the Court for an Order requiring the First Nation to apply.  The FNFTA also gave the Minister the discretion to take ‘administrative measures’ against a First Nation, such as withholding moneys payable through a CFA. The Minister chose to initiate a Court action against several First Nations in December of 2014 which, had the Minister been successful, would have forced the non-compliant First Nations to follow the reporting requirements in the FNFTA.  This past summer, in August of 2015, five First Nations applied for a stay of the Minister’s application.  The Federal Court granted the stay of the Minister’s application in October, 2015.  This essentially put the Minister’s application ‘on hold’ while the constitutionality of the FNFTA was considered in separate lawsuits. A few months later, in December of 2015, the newly appoint Minister of Indian Affairs and Northern Development Carolyn Bennett issued a statement about the FNFTA.  The Statement indicated that the department had stopped all discretionary compliance measures, was re-instating funding withheld from First Nations under those measures, and was suspending all Court actions against First Nations who had not complied with the FNFTA.  In the meantime, the Statement references a review of all laws to ensure that the Crown is honouring its constitutional and international obligations, and suggests that consultation with First Nations leaders about these issues will occur in the near future. This leaves many First Nations peoples and governments wondering exactly what the reporting requirements are, and where the law currently stands on this issue.  In short, it appears that reporting obligations are likely what they were prior to the FNFTA’s coming in to force.  The FNFTA is still a valid law, and has not been struck down by the Court or altered by Parliament.  However, the practical effect of the Minister’s December Statement likely nullifies the FNFTA until further notice.  Until this uncertainty is cleared up, it would be prudent to seek written clarification from the Minister regarding any reporting requirements that are unclear.

About the author: Kelsey is an associate in the Saskatoon office and enjoys practicing in a number of different areas with a focus on health law, criminal law, insurance law, and First Nations issues including on-going experience with self- government negotiations.

About McKercher LLP: McKercher LLP is one of Saskatchewan’s oldest, largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made us a top ranked firm by Canadian Lawyer magazine (2011, 2013).  Experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions. This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.