Amendments to federal legislation will help tackle infrastructure gap for First Nations

Photo credit: Maarten van den Heuvel

The establishment of a First Nations Infrastructure Institute, included in federal Bill C-45, is one of the more consequential amendments set to upgrade the existing First Nations Fiscal Management Act.

Bill C-45 is officially titled An Act to amend the First Nations Fiscal Management Act, to make consequential amendments to other Acts, and to make a clarification relating to another Act.

It received all-party approval for the third and final reading in the House of Commons May 15. The Senate Committee on Indigenous People held a hearing June 6 before a vote in the Red Chamber is held on whether to pass the C-45 amendments into law.

The Fiscal Management Act already has institutions within it the First Nations Taxation Commission, the First Nations Financial Management Board, and the First Nations Finance Authority. If C-45 is passed, the infrastructure institute will add a component that will provide tools and support, including capacity building and helping to access capital, to implement and manage First Nations’ infrastructure.

“After the legislation’s passed, we want it to be able to come into force as quickly as possible so that we can get into business and provide direct services for First Nations,” Manny Jules, chief commissioner with the taxation commission, told Senate committee members.

The Fiscal Management Act provides First Nations with a framework to assert their jurisdiction in financial management, taxation and access to capital markets in order to provide economic growth in their communities.

All four institutions are First Nations-led and First Nations-created.

First Nations must choose to opt into the framework. Presently 348 of the approximately 630 First Nations are involved.

The Fiscal Management Act “is the most successful First Nation-led legislation in Canadian history,” said Jules. “We have moved beyond simply recognizing First Nations rights to implementing First Nations jurisdiction.”

Amendments to the Fiscal Management Act address “certain economic and social needs of our member communities,” said Ernie Daniels, president and CEO of the finance authority.

Discussions for amendments have been ongoing for years among the member First Nations, added financial management board executive chair Harold Calla.

“We are not going to bridge the infrastructure gap with the existing delivery program that (the government has). We’ve got to change it? Where’s that bridge between colonization and self-government?” asked Calla. “Well, I believe it’s with institutions like the ones that we’re building.”

Allan Claxton, development board chair of the infrastructure institute, said his institution couldn’t stand on its own in tackling the “huge” infrastructure gap.

“There’s a big job and a big challenge in front of us, but working with the other institutions we feel confident that we can get in and connect with the First Nations. We will work with all First Nations and all First Nation organizations to deal with that infrastructure gap,” he said.

A new report released earlier this year from the Assembly of First Nations and Indigenous Services Canada estimates the infrastructure gap between First Nations communities and municipalities is $349.2 billion.

The leads for the four institutions spoke to the Senate committee after Crown-Indigenous Relations Minister Marc Miller had fielded questions about the bill for about 45 minutes.

Miller told the committee that Bill C-45 was “important legislation” and part of the federal government’s work to implement the United Nations Declaration on the Rights of Indigenous Peoples.

The amendments also aligned with the calls to action from the Truth and Reconciliation Commission on the legacy of Indian residential schools for a fiscal relationship that promoted economic development and Indigenous governance through institutional development.

“It’s clear that updating this act will accelerate social change because it puts a number of these instruments directly into the hands of First Nations,” said Miller.

The 2023 federal budget has committed $12.4 million over three years in new funding for the infrastructure institute.

Miller said his government was committed to supporting all four institutions with “regular recurring funding.”

Asked by Nunavut Senator Dennis Glen Patterson to look at a five-to-10-year funding commitment, Miller responded by saying “these institutions aren’t going anywhere, and their success is proof of that.”

Patterson also wanted to know how the Canadian Infrastructure Bank (CIB) would work with the First Nations Infrastructure Institute. This year the CIB’s mandate expanded to include equity loan buy-ins for Indigenous communities on larger infrastructure investments.

Miller said the two institutions would provide options for First Nations, but added that “the current infrastructure bank could do a better job at tailoring their needs to Indigenous realities.”

Senator Yonah Martin from British Columbia wanted assurances that the federal government was not downloading its responsibilities for safe drinking water infrastructure to First Nations through the new infrastructure institute.

“When it comes to clean drinking water, there is not only a moral imperative? But a legal one,” said Miller.

He said a class action settlement commits the federal government to financially compensating individuals who suffered and to ensuring investments in communities for safe drinking water.

Miller said that Ottawa would continue with grant dollars for some infrastructure work.

“We have to keep investing. Some projects just aren’t viable without a direct infusion of cash and they are game changers in the communities. But there is a role for a First Nations-led institute to be part of this and to be driving this,” he said.

The infrastructure institute’s involvement “closes that lack of confidence gap,” said Miller, as communities worry that their project is simply the “idea of the day” for the federal government. However, with the infrastructure institute, communities trust that their projects will be completed because they were chosen by the community itself.

Bill C-45 also expands who can make use of services provided through the First Nations Fiscal Management Act. Presently it is only Indian Act bands.

“The definition of ‘borrowing member’ is expanded in anticipation of eligibility being expanded to Indigenous governments and (not-for-profit organizations), though other regulations will still be required,” said Daniels.

A non-derogation clause in the legislation means opting in doesn’t affect treaty or self-government agreements, added Jules.

David M. Arnot, deputy chair of the Senate Committee on Indigenous Peoples, said he was hopeful the bill would move quickly through the Senate “in due course.”

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