Financial Administration Law

Published: June 2017

WHEREAS:

1. Pursuant to section 9 of the First Nations Fiscal Management Act, the Council of a First Nation may make laws respecting the financial administration of the First Nation; and

2. The Council of the Malahat Nation considers it to be in the best interests of Malahat Nation to make a law for such purposes;

NOW THEREFORE the Council of Malahat Nation enacts as follows:

PART I - Citation

Citation

1. This Law may be cited as the Malahat Nation Financial Administration Law, 2017.

PART II - Interpretation and Application

Definitions

2. (1) Unless the context indicates the contrary, in this Law:

"Act" means the First Nations Fiscal Management Act;

"annual financial statements" means the annual financial statements of Malahat Nation referred to in Division 7 of Part IV;

"appropriation" means an allocation of money under a budget to the purposes for which it may be used;

"auditor" means the auditor of Malahat Nation appointed under section 76;

"Board" means Malahat Nations Financial Management Board established under the Act;

"Board standards" means the standards established from time to time by the Board under the Act;

"borrowing member" means a first nation that has been accepted as a borrowing member under section 76 (2) of the Act and has not ceased to be a borrowing member under section 77 of the Act;

"budget" means the annual budget of Malahat Nation that has been approved by the Council;

"code" means a code adopted by Malahat Nation under the First Nations Oil and Gas and Moneys Management Act or a land code adopted by Malahat Nation under the First Nations Land Management Act;

"Commission" means the First Nations Tax Commission established under the Act;

"Commission standards" means the standards established from time to time by the Commission under the Act;

"Council" means the Council of Malahat Nation;

"Council chair" means the person appointed or elected to act as the chair of the Council;

"councillor" means a member of the Council of Malahat Nation and includes the Chief of Malahat Nation;

"Finance and Audit Committee" means the Finance and Audit Committee established under section 12;

"financial administration" means the management, supervision, control and direction of all matters relating to the financial affairs of Malahat Nation;

"financial institution" means First Nation Finance Authority, a bank, credit union or caisse populaire;

"financial competency" means the ability to read and understand financial statements that present accounting issues reasonably expected to be raised by Malahat Nation's financial statements;

"financial records" means all records respecting the financial administration of Malahat Nation, including the minutes of meetings of the Council and the Finance and Audit Committee;

"First Nation" means Malahat Nation;

"First Nation's financial assets" means all money and other financial assets of Malahat Nation; "First Nation's lands" means all reserves of Malahat Nation within the meaning of the Indian Act;

"First Nation law" means any law, including any by-law or code, of Malahat Nation made by the Council or the membership of Malahat Nation;

"First Nation's records" means all records of Malahat Nation respecting its governance, management, operations and financial administration;

"fiscal year" means the fiscal year of Malahat Nation set out in section 24;

"GAAP" means generally accepted accounting principles of the Chartered Professional Accountants of Canada, as revised or replaced from time to time;

"local revenue account" means an account with a financial institution into which local revenues are deposited separately from other moneys of Malahat Nation;

"local revenue law" means a local revenue law made by Malahat Nation under the Act;

"local revenues" means money raised under a local revenue law;

"Malahat Nation" means Malahat First Nation which is named in the Schedule to the Act.

"multi-year financial plan" means the plan referred to in section 25;

"officer" means the Chief Executive Officer, Director of Finance , tax administrator and any other employee of Malahat Nation designated by the Council as an officer;

"other revenues" means other revenues as defined in section 3 of the Financing Secured by Other Revenues Regulations made under the Act,·

"record" means anything on which information is recorded or stored by any means whether graphic, electronic, mechanical or otherwise;

"related body" means

(a) any agency of Malahat Nation,

(b) any corporation in which Malahat Nation has a material or controlling interest,

(c) any partnership in which Malahat Nation or another related body of Malahat Nation is a partner with a material or controlling interest, or

(d) a trust of Malahat Nation;

"DOF" means the person appointed Director of Finance under section 19;

"CEO" means the person appointed Chief Executive Officer under section 18;

"special purpose report" means a report described in section 75;

"standards" means the standards established from time to time under the Act; and

"tax administrator" means the person appointed tax administrator under section 20 or Malahat Nation's local revenue laws.

(2) Except as otherwise provided in this Law, words and expressions used in this Law have the same meanings as in the Act.

(3) Unless a word or expression is defined under subsection (1) or (2) or another provision of this Law, the definitions in the Interpretation Act apply.

(4) All references to named enactments in this Law are to enactments of the Government of Canada

Interpretation

3. (1) In this Law, the following rules of interpretation apply:

(a) words in the singular include the plural, and words in the plural include the singular;

(b) words importing female persons include male persons and corporations and words importing male persons include female persons and corporations;

(c) if a word or expression is defined, other parts of speech and grammatical forms of the same word or expressions have corresponding meanings;

(d) the expression "must" is to be construed as imperative, and the expression "may" is to be construed as permissive;

(e) unless the context indicates otherwise, "including" means "including, but not limited to", and "includes" means "includes, but not limited to"; and

(f) a reference to an enactment includes any amendment or replacement of it and every regulation made under it.

(2) This Law must be considered as always speaking and where a matter or thing is expressed in the present tense, it must be applied to the circumstances as they arise, so that effect may be given to this Law according to its true spirit, intent and

(3) Words in this Law referring to an officer, by name of office or otherwise, also apply to any person designated by the Council to act in the officer's place or to any person assigned or delegated to act in the officer's place under this Law.

Posting of Public Notice

4. (1) If a public notice must be posted under this Law, the public notice is properly posted if a written notice is placed in a conspicuous and accessible place for public viewing in the principal administrative offices of Malahat Nation.

(2) Unless expressly provided otherwise, if a public notice of a meeting must be posted under this Law the notice must be posted at least fifteen (15) days before the date of the meeting.

Calculation of Time

5. In this Law, time must be calculated in accordance with the following rules:

(a) where the time limited for taking an action ends or falls on a holiday, the action may be taken on the next day that is not a holiday;

(b) where there is a reference to a number of days, not expressed as "clear days", between two events, in calculating that number of days the day on which the first event happens is excluded and the day on which the second event happens is included;

(c) where a time is expressed to begin or end at, on or within a specified day, or to continue to or until a specified day, the time includes that day;

(d) where a time is expressed to begin after or to be from a specified day, the time does not include that day; and

(e) where anything is to be done within a time after, from, of or before a specified day, the time does not include that day.

Conflict of Laws

6. (1) lf there is a conflict between this Law and another Malahat Nation law, other than a code or a local revenue law, this Law prevails.

(2) If there is a conflict between this Law and the Act, the Act prevails.

(3) If there is a conflict between this Law and a local revenue law, the local revenue law prevails.

Scope and Application

7. This Law applies to the financial administration of Malahat First Nation.

PART Ill - Administration

DIVISION 1 - Council

Responsibilities of Council

8.(1) The Council is responsible for all matters relating to the financial administration of Malahat Nation whether or not they have been assigned or delegated to an officer, employee, committee, contractor or agent by or under this Law.

(2) Subject to paragraph 5(1)(f) of the Act, this Law and any other applicable First Nation law, the Council may delegate to any of its officers, employees, committees, contractors or agents any of its functions under this Law except the following:

the approval of Council policies, procedures or directions;

the appointment of members, the chair and the vice-chair of the Finance and Audit Committee;

the approval of budgets and financial statements of Malahat Nation; and

the approval of borrowing of Malahat

Council Policies, Procedures and Directions

9.(1) Subject to subsection (2), the Council may establish policies and procedures and give directions respecting any matter relating to the financial administration of Malahat Nation.

The Council must establish policies or procedures or give directions respecting the acquisition, management and safeguarding of First Nation

The Council must not establish any policies or procedures or give any directions relating to the financial administration of Malahat Nation that are in conflict with this Law, the Act or

The Council must ensure that all human resources policies and procedures are designed and implemented to facilitate effective internal financial administration

The Council must document all its policies, procedures and directions and make them available to any person who is required to act in accordance with them or who may be directly affected by

Reporting of Remuneration and Expenses

10.(1) In this section:

"entity" means a corporation or a partnership, a joint ventme or any other unincorporated association or organization, the financial transactions of which are consolidated in the annual financial statements of Malahat Nation in accordance with GAAP;

"expenses" includes the costs of transportation, accommodation, meals, hospitality and incidental expenses; and

"remuneration" means any salaries, wages, commissions, bonuses, fees, honoraria and dividends and any other monetary and non-monetary benefits.

(2) Annually the DOF must prepare a report separately listing the remuneration paid and expenses reimbursed by Malahat Nation, and by any entity, to each councillor whether such amounts are paid to the councillor while acting in that capacity or in any other capacity.

DIVISION 2 - Finance and Audit Committee

Interpretation

In this Division, "Committee" means the Finance and Audit Committee.

Committee Established

12.(1) The Committee of Malahat Nation is established to provide Council with advice and recommendations in order to support Council's decision-making process respecting the financial administration of Malahat Nation.

The Council must appoint not less than three (3) members of the Committee, a majority of whom must have financial competency and all of whom must be

For purposes of this section, an individual is considered to be independent if the individual does not have a direct or indirect financial relationship with Malahat Nation government that could, in the opinion of Council, reasonably interfere with the exercise of independent judgment as a member of the

The Council must establish policies or procedures or give directions

setting criteria to determine if an individual is eligible to be a member of the Committee and is independent;

requiring confirmation, before appointment, that each potential member of the Committee 1s eligible to be a member and is independent; and

requiring each member of the Committee annually to sign a statement confirming that the member continues to meet the criteria referred to in paragraph (a).

If the Committee consists of

three (3) members, at least one (1) of the Committee members must be a councillor; and

four (4) or more members, at least two (2) of the Committee members must be

Subject to subsection (7), the Committee members must be appointed to hold office for staggered terms of not less than three (3) complete fiscal

A Committee member may be removed from office by the Council if

the member misses three (3) consecutively scheduled meetings of the Committee; or

the chair of the Committee recommends

If a Committee member is removed from office, resigns or dies before the member's term of office expires, the Council must as soon as practicable appoint a new Committee member to hold office for the remainder of the Malahat member's term of

Chair and Vice-chair

(1) The Council must appoint a chair and a vice- chair of the Committee, one of whom must be a councillor.

(2) If Council appoints a non-councillor as chair of the Committee,

Council must send to the chair notices and agendas of all council meetings;

on request of the chair, Council must provide the chair with any materials or information provided to Council respecting matters before it; and

the chair may attend and speak at Council

Committee Procedures

14.(1) The quorum of the Committee is fifty percent (50%) of the total number of Committee members, including at least one (1) councillor.

Except where a Committee member is not permitted to participate in a decision because of a conflict of interest, every Committee member has one (1) vote in all Committee

In the event of a tie vote in the Committee, the chair of the Committee may cast a second tiebreaking

Subject to subsection (5), the Chief Executive Officer and the DOF must be notified of all Committee meetings and, subject to reasonable exceptions, must attend those

The CEO or the DOF may be excluded from all or any part of a Committee meeting by a recorded vote if

the subject matter relates to a confidential personnel or performance issue respecting the CEO or the DOF; or

it is a meeting with the

The Committee must meet

at least once every quarter in each fiscal year as necessary to conduct the business of the Committee; and

as soon as practical after it receives the audited annual financial statements and report from the

The Committee must provide minutes of its meetings to the Council and report to the Council on the substance of each Committee meeting as soon as practicable after each

Subject to this Law and any directions given by the Council, the Committee may make rules for the conduct of its

After consultation with the CEO, the Committee may retain a consultant to assist in the performance of any of its

Financial Planning Responsibilities

15.(1) The Committee must carry out the following activities in respect of the financial administration of Malahat Nation:

annually develop, and recommend to the Council for approval, short, medium and long-term

strategic plans, projections and priorities,

operational plans, projections and priorities,

business plans, projections and priorities, and

financial plans, projections and priorities;

review draft annual budgets and recommend them to the Council for approval;

on an ongoing basis, monitor the financial performance of Malahat Nation against the budget and report any significant variations to the Council; and

(cl) review the quarterly financial statements and recommend them to the Council for approval.

(2) The Committee may make a report or recommendations to the Council on any matter respecting the financial administration of Malahat Nation that is not otherwise specified to be its responsibility under this Law.

Audit responsibilities

The Committee must carry out the following audit activities 111 respect of the financial administration of Malahat Nation:

make recommendations to the Council on the selection, engagement and performance of an auditor;

receive assurances on the independence of a proposed or appointed auditor;

review and make recommendations to the Council on the planning, conduct and results of audit activities;

review and make recommendations to the Council on the audited annual financial statements, including the audited annual financial statements respecting the local revenue account and any special purpose reports;

periodically review and make recommendations to the Council on policies, procedures and directions on reimbursable expenses and perquisites of the councillors, officers and employees of Malahat Nation;

monitor financial reporting risks and fraud risks and the effectiveness of mitigating controls for those risks taking into consideration the cost of implementing those controls;

conduct a review of this Law under section 106 and, where appropriate, recommend amendments to the Council; and

periodically review and make recommendations to the Council on the terms of reference of the

Council Assigned Responsibilities

The Council may assign to the Committee or another committee of the Council the following activities in respect of the financial administration of Malahat Nation:

to develop, and recommend to the Council for approval, performance measurements and goals designed to confirm that management activities, including financial management, occur as planned;

to prepare, and recommend to the Council for approval, cash management plans;

to review and report to the Council on the financial content of any Malahat Nation reports;

to review, monitor and report to the Council on the appropriateness of Malahat Nation's accounting and financial reporting systems, policies and practices;

to review, and recommend to the Council for approval, any proposed significant changes in Malahat Nation's accounting or financial reporting systems, policies, procedures or directions;

to monitor the collection and receipt of Malahat Nation's financial assets, including debts owed to Malahat Nation;

to review and report to the Council on Malahat Nation's risk management policies and control and information systems and, where appropriate, recommend improvements to the Council;

to review the adequacy of security of information, information systems and recovery plans and, where appropriate, recommend improvements to the Council;

to monitor compliance with the legal obligations of Malahat Nation, including legislative, regulatory and contractual obligations, and report to the Council;

U) to review and report to the Council on the adequacy of financial administration personnel and resources;

to review, monitor and report to the Council on the adequacy and appropriateness of Malahat Nation's insurance coverage respecting significant risks; and

to review, monitor and report to the Council on material litigation and its impact on financial administration and

DIVISION 3 - Officers and Employees

Chief Executive Officer

18.(1) The Council must appoint a person as CEO of Malahat Nation and may set the terms and conditions of that appointment.

Reporting to the Council, the CEO is responsible for leading the planning, organization, implementation and evaluation of the overall management of all the day-to-day operations of Malahat Nation, including the following duties:

to develop and recommend to the Council for approval, human resources policies and procedures for the hiring, management and dismissal of officers and employees of Malahat Nation;

to prepare and recommend to the Council for approval, descriptions of the powers, duties and functions of all employees of Malahat Nation;

to hire the employees of Malahat Nation, as the CEO considers necessary, and to set the terms and conditions of their employment;

to oversee, supervise and direct the activities of all officers and employees of Malahat Nation;

to oversee and administer the contracts of Malahat Nation;

to prepare, recommend to the Council and maintain and revise as necessary the organization chart referred to in section 21;

to identify, assess, monitor and report on financial reporting risks and fraud risks;

to monitor and report on the effectiveness of mitigating controls for the risks referred to in paragraph (g) taking into consideration the cost of implementing those controls;

to perform any other duties of the CEO under this Law; and

(i) to carry out any other activities specified by the Council that are not contrary to the Act or inconsistent with the CEO's duties specified in this Law.

The CEO may assign the performance of any of the CEO's duties or functions

to an officer or employee of Malahat Nation; and

with the approval of the Council, to a contractor or agent of Malahat Nation.

Any assignment of duties or functions under subsection (3) does not relieve the CEO of the responsibility to ensure that these duties or functions are carried out

Director of Finance

19.( l) The Council must appoint a person as Director Of Finance of Malahat Nation and may set the terms and conditions of that appointment.

Reporting to the CEO, the DOF is responsible for the clay-to-day management of the systems of the financial administration of Malahat Nation, including the following duties:

to ensure the financial administration systems, policies, procedures, directions and internal controls are appropriately designed and operating effectively;

to administer and maintain all charts of accounts of Malahat Nation;

to prepare the draft annual budgets and, with advice and input from the tax administrator, to prepare any draft amendments to the component of the annual budget respecting Malahat Nation's local revenues ;

(cl) to prepare the monthly financial information required in section 71, the quarterly financial statements required in section 72 and the draft annual financial statements required in sections 73 and 74;

(e) to prepare the financial components of reports to the Council and of any short, medium and long term plans, projections and priorities referred to in subsection 15(1);

to actively monitor compliance with any agreements and funding arrangements entered into by Malahat Nation;

to administer and supervise the preparation and maintenance of financial records and the financial administration reporting systems;

to administer and supervise the maintenance of the records of all receipts and expenditures of Malahat Nation to facilitate the annual audit;

to actively monitor compliance with the Act, this Law, any other applicable First Nation law, applicable standards and any policies, procedures and directions of the Council respecting the financial administration of Malahat Nation;

to prepare or provide any documentation and financial information required by the Council or the Finance and Audit Committee to discharge its responsibilities;

to evaluate the financial administration systems of Malahat Nation and recommend improvements;

to develop and recommend procedures for the safeguarding of assets and to ensure approved procedures are followed;

to develop and recommend procedures to Council for identifying and mitigating financial reporting and fraud risks and to ensure approved procedures are followed;

to perform any other duties of the Director of Finance under this Law; and

to carry out any other activities specified by the Chief Executive Officer that are not contrary to the Act or inconsistent with the Director of Finance 's duties under this

With the approval of the CEO, the DOF may assign the performance of any of the duties or functions of the DOF to any officer, employee, contractor or agent of Malahat Nation, but this assignment

does not relieve the DOF of the responsibility to ensure that these duties or functions are carried out properly.

Tax Administrator

20.(1) If Malahat Nation is collecting local revenues, the Council must appoint a person as tax administrator of Malahat Nation and may set the terms and conditions of that appointment.

Reporting to the FOF, the tax administrator is responsible for performing the tax administrator's duties or functions under Malahat Nation's local revenue laws, the Act and this

In addition to any duties or functions under Malahat Nation's local revenue laws and the Act, the tax administrator is responsible for the following:

to manage local revenues and the local revenue account on a day-to-day basis;

on request, to provide advice to the CEO, DOF, Finance and Audit committee and the Council respecting local revenues matters;

to monitor compliance with the Act, Malahat Nation's local revenue laws and this Law in the administration of local revenues and the local revenue account; and

to perform any other duties of the tax administrator under this

With the approval of the CEO, the tax administrator may assign the performance of any of the duties or functions of the tax administrator to any officer, employee, contractor or agent of Malahat Nation, but this assignment does not relieve the tax administrator of the responsibility to ensure that these duties or functions are carried out

Organizational Structure

21.(1) The Council must establish and maintain a current organization chart for the governance, management and administrative systems of Malahat Nation.

The organization chart under subsection (1) must include the following information:

all governance, management and administrative systems of Malahat Nation;

the organization of the systems described in paragraph (a), including the linkages between them;

the specific roles and responsibilities of each level of the organization of the systems described in paragraph (a); and

all governance, management and administrative positions at each level of the organization of the systems described in paragraph (a), including

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the membership on the Council, Finance and Audit Committee and all other committees of the Council and Malahat Nation,

the CEO, the DOF, the tax administrator and other officers ofMalahat Nation, and

the principal lines of authority and the responsibility between the Council, the committees referred to in subparagraph (i) and the officers referred to in subparagraph (ii).

On request, the CEO must provide a copy of the organization chart under subsection (1) to a councillor, a member of a committee referred to in subparagraph (2)(d)(i), an officer, employee or contractor or agent of Malahat Nation and a member of Malahat

In the course of discharging his or her responsibilities under this Law, the CEO must recommend to the Council for approval and implementation human resource policies and procedures that facilitate effective internal financial administration

The Council must take all reasonable steps to ensure that Malahat Nation hires or retains qualified and competent personnel to carry out the financial administration activities of Malahat

DIVISION 4 - Conduct Expectations

Conduct of Councillors

22.(1) When exercising a power, duty or responsibility relating to the financial administration of Malahat Nation, a councillor must

comply with this Law, the Act, any other applicable First Nation law and any applicable standards;

act honestly, in good faith and in the best interests of Malahat Nation;

exercise the care, diligence and skill that a reasonably prudent individual would exercise in comparable circumstances; and

avoid conflicts of interest and comply with the requirements of the Schedule: Avoiding and Mitigating Conflicts oflnterest, including required annual disclosures of private

(2) If it has been determined under this Law or by a court of competent jurisdiction that a councillor has contravened this section, the Council must post a public notice of the details of the determination for a period of not less than thirty-one (31) days as soon as practicable after the contravention was determined.

Conduct of Officers, Employees, Contractors, etc.

23.(1) This section applies to

an officer, employee, contractor and agent of Malahat Nation;

a person acting under the delegated authority of the Council or Malahat Nation; or

a member of a committee of the Council or Malahat Nation who is not a

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If a person is exercising a power, duty or responsibility relating to the financial administration of Malahat Nation, that person must
comply with this Law, the Act, any other applicable First Nation law and any applicable standards;
comply with all policies, procedures and directions of the Council; and
avoid conflicts of interest and comply with any applicable requirements of the Schedule: Avoiding and Mitigating Conflicts of Interest, including required disclosure of potential conflicts of
The Council must incorporate the relevant provision of this section into
the terms of employment or appointment of every officer or employee of Malahat Nation;
the terms of every contract of a contractor of Malahat Nation;
the terms of appointment of every member of a committee who is not a councillor; and (cl) the terms of appointment of every agent of Malahat
If a person contravenes subsection (2), the following actions may be taken:
an officer or employee may be disciplined, including dismissal;
a contractor's contract may be terminated;
the appointment of a member of a committee may be revoked; or (cl) the appointment of an agent may be