Crosswalk: ARFA First Nations Current Model to Streamlined Agreement

Transcription

1 Crosswalk: ARFA First Nations Current Model to Streamlined Agreement ARFA First Nations Current Model Streamlined Agreement Comment BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by [Federal Department Flowing Funds]; and the Minister of Indian Affairs and Northern Development; (hereinafter referred to as "Canada") AND [Name of Recipient], a First Nation that is a "band" as defined in the Indian Act, as represented by its Chief and Councillors Between HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Minister of Indian Affairs and Northern Development DIAND And [NAME OF FIRST NATION], as represented by its Chief and Councillors First Nation The Streamlined agreement is for AANDC funding only: Removal of references to other federal department(s) that may be providing funding under one agreement. Removal of the First Nation definition element of the identification of parties as this model will only be use for those First Nations that are bands as defined in the Indian Act. (hereinafter referred to as the "Council") WHEREAS: A. The Council wishes to provide certain programs and services to, and to carry out certain activities for the benefit of, Members and Recipients as defined in this Agreement, and to be accountable for those programs, services and activities; B. Canada wishes to transfer funds to the Council for those programs, services and activities through the federal institution(s) with respect to which the Minister(s) representing Canada in this Agreement preside(s); and C. The Council and Canada agree that the above objectives can be realized by entering into this Agreement. Note: If the Council wishes to include a reference to Treaties, the following are the clauses which have been authorized for use. WHEREAS WHEREAS WHEREAS Canada entered into treaties with certain First Nations across Canada. DIAND and the First Nation acknowledge the historical and contemporary importance of the treaties to the relationship between Canada and the First Nation. nothing in this Agreement will affect the fiduciary relationship between the Crown and Aboriginal people. The First Nation wishes to provide Programs and Services and to carry out one or more Activities or Projects for the benefit of its community members, and DIAND wishes to provide funding to the First Nation for these purposes and therefore DIAND and the First Nation agree to the following: 1 P age

2 D. Canada entered into Treaty No. [Treaty No] with certain First Nations within the Province of [Treaty Province Territory Optional]. E. The parties acknowledge the historical and contemporary importance of the treaties to the relationship between Canada and the First Nation(s) of [Treaty First Nation(s) name(s)]. Note: If the Council wishes to include a reference to the fiduciary relationship of Canada and First Nations, the following is the clause which has been authorized for use. F. Canada and the Council intend that nothing in this Agreement shall have the effect of, or be interpreted as, limiting or expanding any fiduciary relationship between Canada and First Nations people. 1.0 Interpretation 1.1 Definitions In this Agreement, unless otherwise provided: "Agency" means an authority, board, committee or other entity authorized to act on behalf of the Council. "Agreement" means this Agreement and includes all Schedules, any Notices of Budget Adjustment, and any amendments made in accordance with section 14.3 (Amendments), section 3.2 (Funding Subject to Appropriations and Departmental Funding Authorities), subsection and section 4.6 (Adjustment of Cash Flow). "Cash Flow" means the periodic payments Canada will make to the Council in accordance with Schedule "FED 1". "Consolidated Audited Financial Statements" means the Council's Removed Streamlined model does not use definitions. 2 P age

3 annual Consolidated Financial Statements that are audited in accordance with section 4.4 (Reporting). "Consolidated Financial Statements" means the financial statements of the Council prepared in accordance with generally accepted accounting principles in which the assets, liabilities, equity, income, expenses, and cash flows of the Council and of those entities that are required by those principles to be included are presented as those of a single economic entity, as if the Council were a government reporting on its financial information. "Contributions" means funding provided under this Agreement for programs, services or activities for which expenditures must be accounted, ineligible expenditures must be reimbursed to Canada, and unexpended funding must be reimbursed to Canada unless otherwise specified in this Agreement. "DIAND" means the Department of Indian Affairs and Northern Development also known as Aboriginal Affairs and Northern Development Canada. "Federal Department" means DIAND or any other federal government institution with respect to which a Minister representing Her Majesty the Queen in Right of Canada in this Agreement presides and through which Canada provides funding under this Agreement. "First Nation" means a "band" within the meaning of the Indian Act. "Fiscal Year" means a one year period, beginning April 1 of a year and ending March 31 of the following year that covers or partly covers the term of this Agreement. "Management Action Plan" means a plan, developed by the Council and acceptable to Canada, which reflects measures to be taken by the 3 P age

4 Council to remedy a default under this Agreement. "Management Development Plan" means a plan, if any, developed and approved by the Council and accepted by Canada, and attached as Schedule "DIAND 5", which addresses any recommendations identified in an assessment of the Council's administrative, accountability and management practices undertaken prior to the execution of this Agreement. "Member" means a person whose name appears on the band list of the Council maintained by DIAND or the Council in accordance with the Indian Act. "Member First Nation" means a First Nation which is a member of the Council. "Notice of Budget Adjustment" means a notice to the Council from Canada that changes an amount of funding provided under this Agreement in accordance with section 3.3 (Formula based or Factorbased Funding Adjustments). "Recipient" means, except in respect of any reference to the Recipient Reporting Guide, a person other than a Member who may be eligible for any program or service for which funding is provided under this Agreement. "Recipient Reporting Guide" or "RRG" means the Recipient Reporting Guide issued by DIAND and as amended from time to time. "Schedule" means a schedule to this Agreement. "Third Party Funding Agreement Manager" means a third party, appointed by Canada, that administers funding otherwise payable to the Council and the Council's obligations under this Agreement, in 4 P age

5 whole or in part, and that may assist the Council to remedy default under this Agreement. "Year End Reporting Handbook" means the Year End Reporting Handbook issued by DIAND and as amended from time to time. 1.2 Multiple Funding Departments Except where otherwise indicated or prohibited by law, where more than one Federal Department provides funding under this Agreement, Canada's rights and remedies under this Agreement may be exercised by any Federal Department, and Canada's obligations under this Agreement may be carried out by any Federal Department, as determined by Canada 2.0 Term 2.1 Subject to section 3.2 (Funding Subject to Appropriations and Departmental Funding Authorities), article 10.0 (Remedies on Default), and article 13.0 (Termination), the term of this Agreement will be from the [Multi Year Start Date Day] day of [Multi Year Start Date Month], [Multi Year Start Date Year] until the [Multi Year End Date Day] day of [Multi Year End Date Month], [Multi Year End Day Year]. 3.0 Funding From Canada 3.1 Provision of Funding Subject to the terms and conditions of this Agreement, Canada shall transfer to the Council funding as set out in Schedule "DIAND 1A", Schedule "DIAND 1B " and Schedule "DIAND2", and [list any other Schedules under which funding is committed to the Council] of this Agreement by way of periodic payments in N/A TERM 2.0 The term of this Agreement will be from until. FUNDING 3.0 DIAND will transfer amounts set out in Annex 1 to the First Nation according to the schedule of payments in Annex 2 or as otherwise indicated in Annex If this Agreement covers more than one fiscal year, DIAND will for each new fiscal year of this Agreement provide by notice a revised Annex 2 setting out the schedule of payments for the fiscal year. Only AANDC funding will be provided using this model for Flexibility to provide annual or multi year funding. Streamlined Agreement model intended only for AANDC funding. Clarification that the schedule of payments in a multi year agreement will be provided annually by way of a notice to the First Nation. 5 P age

6 accordance with Schedule "FED 1" If funding is provided under this Agreement by more than one Federal Department, DIAND may transfer the funding on behalf of other Federal Departments. 3.2 Funding Subject to Appropriations and Departmental Funding Authorities Notwithstanding any other provision of this Agreement, the amount of any funding to be provided to the Council, as otherwise calculated or payable pursuant to this Agreement, is subject to the appropriation of funds by the Parliament of Canada In the event that any funding authority of DIAND or any other Federal Department for any program, service or activity for which funding is provided under this Agreement is modified or cancelled by the Treasury Board of Canada or by that Federal Department, or if funding levels of DIAND or any other Federal Department are reduced, increased or cancelled by Parliament for any Fiscal Year in which payment is to be made under this Agreement, Canada may terminate or adjust the amount of funding under this Agreement accordingly. FUNDING CHANGES OR TERMINATION 3.3 DIAND may change or terminate funding: (a) identified in the Annexes as Set, Fixed or Flexible by notice 60 calendar days before a payment is to be made if the program on which funding is based is changed or terminated by Treasury Board or DIAND; (b) identified in the Annexes as Block or Grant by notice one year before the start of the next fiscal year where the program on which funding is based is changed or terminated by Treasury Board or DIAND; and (c) at any time by notice if funding from any other source duplicates funding under this Agreement. 3.5 Notwithstanding any other provision of this Agreement, funding under this Agreement is subject to the appropriation of funds by the Parliament of Canada and DIAND may change or terminate funding under this Agreement if the Parliament of Canada reduces or denies an appropriation of funds to DIAND. New 60 calendar days notice requirement for adjustment to the Set, Fixed, Flexible Contribution funding if AANDC funding authority used to provide funding for a program, service or activity is modified or cancelled by Treasury Board of Canada or AANDC. Same rule for the notice period requirement for Block funding. Clarification on the right of AANDC to adjust the level of funding if other sources of funding duplicate funding provided under the Agreement for an activity or a project. 3.3 Formula based or Factor based Funding Adjustments Where the amount of any funding to be provided under Schedule "DIAND 1A" will change in accordance with Schedule "DIAND 1B", Canada shall, by Notice of Budget Adjustment, amend Schedule "FED 1" accordingly Where the amount of funding for any program, service or 3.2 DIAND may by notice that includes a revised Annex 2: (a) make adjustments to the schedule of payments for a fiscal year if requested by the First Nation; and (b) increase or decrease funding for a fiscal year in accordance with any formula or adjustment factor set out in Annex DIAND may amend this Agreement by way of a notice to the First Nation to: No change to the current practice of using notices of budget adjustment (NOBA) based on a predetermined formula and notices of cash flow change. 6 P age

7 activity for which funding is provided under Schedule "DIAND 2" is changed in accordance with an adjustment factor set out in the Schedule "DIAND 3", Canada shall, by Notice of Budget Adjustment, amend Schedule "DIAND 2" and Schedule "FED 1" accordingly. 3.4 Exceptional Circumstances In the event that exceptional circumstances occur during the term of this Agreement, the Council may return to the Federal Department that provides funding under this Agreement for programs, services or activities affected by the exceptional circumstances to seek changes to the level of funding or to obtain assistance Subsection is intended to address exceptional circumstances (including but not limited to health, safety and socio economic issues) which were not reasonably foreseeable at the time this Agreement was entered into and which have a significant impact on the Council's performance of the terms and conditions of this Agreement. In the event that a Federal Department agrees to change the level of funding, that change will be made by way of a written amending agreement. 4.0 Council's Responsibilities 4.1 Representations and Warranties The Council represents and warrants that the signatories to this Agreement have been authorized to execute and deliver this Agreement. (a) extend reporting deadlines; (b) approve adjustments to the timing of payments; and (c) adjust the maximum funding in accordance with any adjustment factors set out in Annex 1; and (d) adjust Annex 2 as permitted under this Agreement. Any other amendments to this Agreement require written approval of DIAND and the First Nation. 3.4 The First Nation may request changes to the levels of funding or other assistance in exceptional circumstances which have a significant impact on the First Nation and which were not reasonably foreseeable at the date this Agreement came into effect. If DIAND agrees to change the level of funding in exceptional circumstances, that change will be made by way of an amendment to this Agreement. Simplification. Less prescriptive on the process. No more representation and warranty provisions. 7 P age

8 4.1.2 The Council represents that its financial year aligns with the Fiscal Year and will remain so aligned throughout the term of this Agreement. 4.2 Programs, Services and Activities The Council shall provide the programs and services and carry out the activities for which funding is provided under this Agreement in accordance with the delivery standards and delivery requirements set out in the Schedules, applicable laws, and any written standards the Council may develop that are consistent with this Agreement. 4.3 Record Keeping Without limiting section 4.4 or any other requirement to maintain accounts and records, the Council shall maintain accounts and financial and non financial records for each program, service and activity for which funding is provided under this Agreement, and shall retain these accounts and records, including all original supporting documentation, for a period of seven (7) years from the end of the latest Fiscal Year to which the accounts and records relate The accounts and records referred to in subsection must be maintained in such a way as to substantiate the schedules of revenue and expenditure to be provided to DIAND in accordance with the Year End Reporting Handbook The Council shall comply with any additional requirements to maintain accounts and records set out in any Schedule. 4.4 Reporting 2.1 The fiscal year under this Agreement begins April 1st of a calendar year and ends March 31st of the next calendar year. EXPENDITURE OF FUNDING 4.0 The First Nation must provide the Programs and Services and carry out the Activities and Projects for which funding is provided under this Agreement in accordance with Annex The First Nation must keep all financial and non financial records that may be required to prepare reports under this Agreement and to complete any audits, evaluations or reviews under this Agreement. 6.4 For each fiscal year, the First Nation must keep financial and nonfinancial records for 7 years after the end of that fiscal year. 3.1 If this Agreement covers more than one fiscal year, DIAND will for each new fiscal year of this Agreement provide by notice a revised Annex 2 setting out the schedule of payments for the fiscal year. Simplification: Annex 1 will provide details of program delivery requirements. One provision to address record keeping to prepare financial reports and for AANDC to complete audits, evaluations or reviews. Reporting dealt with in a single Reporting Guide rather than in the former Recipient Reporting Guide and the Year end Reporting Handbook. 8 P age

9 4.4.1 The Council shall maintain its accounts and prepare its Consolidated Financial Statements in accordance with generally accepted accounting principles The Council shall engage an independent auditor who is a member in good standing of a corporation, institute or association of accountants incorporated under an Act of the legislature of the Province or Territory in which the Council has its administrative offices and notify DIAND of the engagement of the auditor at least two (2) weeks prior to the end of each Fiscal Year. The notice must authorize DIAND to release revenue and trust information to the auditor for purposes of completing the Consolidated Audited Financial Statements The Council's Consolidated Financial Statements must: (a) be audited by the independent auditor engaged by the Council under subsection in accordance with the generally accepted auditing standards of the Canadian Institute of Chartered Accountants, or its successor; (b) be prepared for each Fiscal Year in accordance with the Year End Reporting Handbook; and (c) be delivered to DIAND, together with all schedules and reports required under the Year End Reporting Handbook, within one hundred and twenty (120) days of the end of the Fiscal Year DIAND may deliver a copy of the Council's Consolidated Audited Financial Statements, together with all schedules and reports required under the Year End Reporting Handbook to: (a) any other Federal Department; or (b) any federal government institution with which the Council 6.0 For each fiscal year, the First Nation must provide to DIAND each report listed in Annex 2 within the deadlines set out in Annex 2 and prepare those reports in accordance with the Reporting Guide for that fiscal year. 6.1 If this Agreement covers more than one fiscal year, DIAND will for each new fiscal year of this Agreement provide by notice a revised Annex 2 setting out the reporting requirements and deadlines for that fiscal year. Clarification that reporting is to be provided for each fiscal year covered by the Agreement and the reporting requirements and deadlines will be set at the beginning of each year in a revised Annex 2. No more placeholder for additional reports to be included in Annex 1. All reports are to be listed as DCI s in Annex 2. 9 P age

10 has an arrangement under which that institution will receive a copy of those documents from DIAND Canada may, by notice, extend the deadline for the receipt of Consolidated Audited Financial Statements or for other reports to be submitted to DIAND under this section if the Council provides notice before the applicable due dates of circumstances beyond the Council's control preventing the Council from meeting the deadlines Subject to any statutory obligations that may apply to the Council, Canada may, by notice to the Council, extend the deadline for the receipt of Consolidated Audited Financial Statements and schedules and reports required under the Year End Reporting Handbook, or of any other reports to be submitted to DIAND under this section if the Council provides notice before the applicable due dates of circumstances beyond the Council's control preventing the Council from meeting the deadlines Canada shall provide the Council with notice of receipt within thirty (30) days of receiving the Consolidated Audited Financial Statements The Council shall fulfill all other reporting requirements set out in the Schedules This section survives the expiry or termination of this Agreement. 4.5 Ineligible Expenditures and Unexpended Funding The Council shall reimburse to Canada ineligible expenditures and unexpended funding in accordance with the requirements 6.2 DIAND may by notice extend reporting deadlines if requested by the First Nation DIAND may amend this Agreement by way of a notice to the First Nation to: (a) extend reporting deadlines; 2.2 The First Nation s obligations in respect of indemnification, record keeping, reporting, refunds, use of unexpended funding and cooperation with audits, evaluation and reviews survive the termination or expiry of this Agreement. 8.0 The First Nation must refund any unexpended funding for a fiscal year unless Annex 1 authorizes the use of unexpended funding in another fiscal year. 8.1 DIAND may give notice to the First Nation that a refund of funding must be paid under any of the following circumstances: (a) the First Nation has unexpended funding for a fiscal year that Reimbursement of ineligible expenditures and unexpended funding are addressed in this single provision. There is some flexibility regarding the rules on refunds set out in Annex P age

11 set out in the Schedules This section survives the expiry or termination of this Agreement. 4.6 Adjustment of Cash Flow Where any periodic payment set out in Schedule "FED 1" for a program, service or activity for which funding is provided by DIAND significantly differs from the Council's anticipated expenditures for the corresponding period, the Council shall promptly notify DIAND and, subject to subsection 4.6.2, propose adjustments to that Schedule accordingly. Canada shall notify the Council of acceptance or rejection of the proposed adjustments within thirty (30) days of the Council's notification. Where Canada accepts the proposed adjustments, Canada shall attach the adjusted Schedule "FED 1" to Canada's notice of acceptance. The adjusted Schedule "FED 1" will replace the previous Schedule "FED 1" No total annual amount for any program, service or activity set out in Schedule "FED 1" may be changed under subsection Management Development Plan Where there is a Management Development Plan, the Council shall implement the plan within the period of time provided in must be refunded in accordance with Annex 1; (b) the First Nation has expended funding on an ineligible activity or expenditure for a fiscal year; (c) funding from any other source duplicates funding under this Agreement; and (d) DIAND makes an overpayment in error. 2.2 The First Nation s obligations in respect of indemnification, record keeping, reporting, refunds, use of unexpended funding and cooperation with audits, evaluation and reviews survive the termination or expiry of this Agreement. 3.2 DIAND may by notice that includes a revised Annex 2: (a) make adjustments to the schedule of payments for a fiscal year if requested by the First Nation 12.1 DIAND may amend this Agreement by way of a notice to the First Nation to: (b) approve adjustments to the timing of payments; and 7.0 Where a First Nation has a plan accepted by DIAND intended to prevent defaults and to address recommendations identified in an assessment of the First Nation s administrative, accountability and management practices, the First Nation must implement that plan within the deadlines set out in the plan. 11 P age

12 that plan DIAND and the Council will meet to review the progress of the Council in implementing the Management Development Plan at such times as they agree having regard to the provisions of that plan but, in any event, at least once not later than six (6) months after the effective date of this Agreement. 4.8 Loans Note: Only one of the following three options is to be included in this Agreement The Council shall not make loans from funds transferred under this Agreement. OR Subject to subsection 4.8.2, the Council may make loans from funds transferred under this Agreement provided that: (a) (b) loans must be directly related to a specific program, service or activity funded under this Agreement and will not be made for personal use; and the Council's loan policy is in writing and available to Members and Recipients upon request The Council shall not make loans from any funding transferred under a Schedule that prohibits the making of loans. 5.0 Amounts Owing to Canada 5.1 Any amount to be reimbursed to Canada by the Council under Within Specific Program Delivery Requirement Manual/Policies and Appendix 1 C 10.0 Loans 10.1The First Nation must not loan any of the funding provided under this Agreement. OR 10.1The First Nation may loan funding in accordance with this Agreement. 10.2The First Nation must not loan any of the funding for any of the following purposes: (a) for personal use; and (b) for purposes that are not directly related to the Projects funded under this Agreement. 5.0 The First Nation is solely responsible for any costs or damages resulting from loans, leases and any other financial arrangements entered into by the First Nation or an agent of the First Nation. REFUNDS TO DIAND 8.2 If DIAND gives a notice that a refund must be paid, the amount 12 P age

13 this Agreement or that is otherwise owed to Canada by the Council under this Agreement, is a debt due to Canada. Canada shall notify the Council of any such amount owing and such amount will be payable to Canada at the time that the notice is given. Canada may thereafter set off such amount against any amount payable to the Council under this Agreement or any other funding agreement through which a Federal Department provides funding to the Council. 5.2 Section 5.1 survives the expiry or termination of this Agreement. set out in the notice is a debt owing and payable to DIAND at the time that the notice is given. 8.3 DIAND may offset against funding under this Agreement or any other funding agreement DIAND has with the First Nation any amounts the First Nation must refund to DIAND. 2.2 The First Nation s obligations in respect of indemnification, record keeping, reporting, refunds, use of unexpended funding and cooperation with audits, evaluation and reviews survive the termination or expiry of this Agreement. 6.0 Council's Accountability to Members Accountability provisions removed 6.1 Transparency and Redress The Council shall maintain a system of accountability to Members which provides for: (a) transparency and openness in the Council's decision making process including drafting and maintaining at all times a written conflict of interest policy available to every Member which must, at a minimum, provide that: i. an elected official or employee of the Council will not benefit from that position, beyond the agreed upon compensation as a result of the position they hold; and ii. where an elected official or employee of the Council has a personal interest in the outcome of any decision to be made by the Council, and that interest gives rise to a conflict of interest, that conflict and the extent of the interest will be disclosed to the Council and the Council will determine whether that individual will take part in that decision; and (b) redress for Members by ensuring that policies and procedures are in place to address disputes related to programs, services and activities for which funding is 13 P age

14 provided under this Agreement, which policies and procedures must, at a minimum, provide for: i. clearly defined and impartial dispute resolution mechanisms for initiating, presenting and resolving disputes including an opportunity for all parties to be heard; ii. reasonable time frames within which disputes will be initiated and resolved; iii. disclosure of information relating to the dispute; iv. an appeal process; and v. appropriate remedies base upon the outcome of the dispute resolution Without limiting subsection 6.1.1, the Council shall maintain a system of accountability to Recipients which provides for: (a) transparency and openness in the Council's decision making process as it relates to those programs and services for which funding is provided under this Agreement and for which Recipients may be eligible; (b) disclosure of the policies, guidelines and written standards of the Council as it relates to the provision of any programs and services for which funding is provided under this Agreement and for which Recipients may be eligible; and (c) redress for Recipients affected by decisions of the Council that relate to those programs and services for which funding is provided under this Agreement and for which Recipients may be eligible In the event of an inconsistency or conflict between the system of accountability established by the Council under subsections and and this Agreement, this Agreement will prevail to the extent of the inconsistency or conflict. 6.2 Budget Removed 14 P age

15 6.2.1 The Council shall have a budget in place for each Fiscal Year. Each budget must be approved by the Council at a duly convened meeting and must include: (a) the allocation of funding to be provided under this Agreement for the provision of programs, services and activities; and (b) the amounts of remuneration to be provided to the Chief, each Councillor, and each unelected senior official of the Council, including amounts for salaries, wages, honoraria, commissions, bonuses, fees, travel expenses and any other remuneration to be paid by, and non monetary benefits to be provided by, the Council and the Council's affiliates in the Fiscal Year. 6.3 Disclosure to Members The Council shall, within sixty (60) days of a request from any Member, or within any other period provided under an Act of Parliament, as the case may be, make the following information available to that Member, including providing copies if requested at no charge beyond the reasonable cost of reproducing documents: (a) this Agreement, as of the date of the request; (b) any Management Development Plan, any Management Action Plan, and any amendments to such plans; (c) the Consolidated Audited Financial Statements, together with all schedules and reports required under the Year End Reporting Handbook, for every Fiscal Year up to the date of the request; (d) completed evaluations, if any, of any program, service or activity for which funding is provided under this Agreement; (e) policies, guidelines and written standards of the Council relating to the provision of any program, service or activity for which funding is provided under this Agreement; Removed 15 P age

16 (f) the annual report of the activities of the Council for every Fiscal Year covered by this Agreement up to the date of the request; (g) the Council's budgets, including remuneration information, for every Fiscal Year covered by this Agreement up to the date of the request; and (h) the Council's conflict of interest policy Without limiting any obligation the Council has with respect to disclosure of personal information, where the Consolidated Audited Financial Statements, schedules that must be submitted to DIAND under the Year End Reporting Handbook, or any Management Action Plan will contain information about one or more identifiable individuals, the Council shall notify those individuals that this information may be disclosed to Members. 6.4 Accountability Requirements in Schedules The Council shall fulfill any additional transparency, disclosure, redress or other accountability requirements set out in any Schedule. Removed 6.5 Survival Section 6.3 (Disclosure to Members) survives the expiry or termination of this Agreement. 16 P age

17 7.0 Delegations of Obligations 7.1 Parties May Delegate Subject to the provisions of this section: (a) either party to this Agreement may delegate any or all of its obligations under this Agreement to its duly authorized representative or agent, which in the case of the Council will be an Agency, by an agreement in writing; and (b) the Council may transfer funding to an Agency to provide, in whole or in part, any program, service or activity for which funding is provided for under this Agreement. Simplification: Moving away from the concept of delegation of authority by either party. Streamlined agreement sets out some requirements when the First Nation uses an Agent Where statutory authority to act on behalf of a Federal Department is delegated to the Council, as in the case of delegated authority under sections 53 or 60 of the Indian Act to administer lands, the Council shall not delegate any or all of that authority The Council shall not delegate any obligations relating to any program, service or activity identified as GRANT in Schedule "FED 1". 17 P age

18 7.2 Where the Council Delegates Obligations or Transfers Funding Where the Council delegates any or all of its obligations under this Agreement to an Agency or transfers funding to an Agency to provide, in whole or in part, programs, services or activities for which funding is provided under this Agreement, the Council shall ensure that the Agency: (a) has a specified mandate, a clearly identified role and a defined relationship with the Council; (b) adheres to the accountability principles set out in this Agreement; (c) provides to the Council financial statements prepared: i. in accordance with the Year End Reporting Handbook; and ii. in a manner permitting the preparation of the Consolidated Audited Financial Statement by the Council; (d) consents to the release by the Council to any Federal Department of the financial statements provided to the Council under paragraph 7.2.1(c); (e) maintains accounts and financial and non financial records for each program, service or activity in respect of which the Council has delegated obligations or transferred funding to the Agency, and retains these accounts and records, including all original supporting documentation, for a period of seven (7) years from the latest Fiscal Year to which the accounts and records relate; (f) in the event of an audit or evaluation under article 8.0 (Access by Canada to Records) or section 14.8 (Audit and Evaluation), upon request of the auditors or evaluators as the case may be: i. provides to those auditors or evaluators all accounts and records, including supporting documentation, of the Agency relating to any program, service or activity 11.0 The First Nation must ensure that any agent agrees in writing to fulfill the same obligations as the First Nation has under this Agreement in respect of: (a) audits, evaluations and reviews; (b) maintaining records; and (c) providing access to premises. 11.1If the First Nation uses an agent, the First Nation: (a) remains responsible for all obligations under this Agreement; and (b) must provide DIAND with a copy of the agency arrangement if requested by DIAND. 11.2The First Nation must ensure that any agent agrees in writing that the agent is not: (a) an employee or agent of DIAND; and (b) in association or in a joint venture with DIAND. Simplification. 18 P age

19 in respect of which the Council has delegated obligations or transferred funding to the Agency; ii. allows those auditors or evaluators to inspect such accounts and records and, except where prohibited by law, take copies and extracts of such accounts and records; iii. provides all necessary assistance to those auditors or evaluators, including providing them with access to the Agency's premises; iv. directs any entity that has provided accounting or record keeping services to the Agency to provide to the auditors or evaluators copies of accounts and records relating to any program, service or activity in respect of which the Council has delegated obligations or transferred funding to the Agency; and (g) does not delegate any of these obligations or transfer funding to a representative or agent Without limiting subsection 7.2.1, where the Council delegates any or all of its obligations under this Agreement or transfers funding under this Agreement to an Agency, the terms of the delegation or transfer of funding will be evidenced by a written agreement between the Council and the Agency that: (a) sets out the obligations of the Agency, including those necessary for the Council to fulfill the requirements of subsection 7.2.1; (b) provides that no agency, association, employer employee, or joint venture relationship is created between the Agency and Canada; and (c) is executed by authorized representatives of the Council and of the Agency. Removed Upon written request of a Federal Department during the term of this Agreement or within seven years of its expiry or termination, the Council shall provide to that Federal 19 P age

20 Department: (a) a copy of the agreement referred to in subsection 7.2.2; and (b) a copy of the financial statements provided to the Council by the Agency under paragraph 7.2.1(c). 7.3 Delegating Party Remains Liable Where either party delegates any or all of its obligations under this Agreement, the delegating party will remain liable to the other party for the fulfillment of all of its obligations under this Agreement. 11.1If the First Nation uses an agent, the First Nation: (a) remains responsible for all obligations under this Agreement; and (b) must provide DIAND with a copy of the agency arrangement if requested by DIAND Where the Council transfers funding to an Agency to provide, in whole or in part, any program, service or activity for which funding is provided under this Agreement, the Council will remain liable to Canada for the fulfillment of all of its obligations under this Agreement This section survives the expiry or termination of this Agreement. 8.0 Access by Canada to Records 8.1 Canada May Audit Accounts and Records Any Federal Department may, individually or in conjunction with other Federal Departments, audit or cause to have audited the accounts and records of the Council and any Agency at any time during the term of this Agreement or within seven (7) years of the termination or expiry of this Agreement, in order to: (a) assess or review the Council's compliance with the terms and conditions of this Agreement; (b) review the Council's program management and financial control practices in relation to this Agreement; or (c) confirm the integrity of any data which has been reported by 10.0 At any time during the term of this Agreement or within seven years of its expiry or termination, DIAND may carry out one or more audits, evaluations or reviews for any or all of the following purposes: (a) to assess the effectiveness of any or all of the Programs, Services, Activities and Projects funded under this Agreement; (b) to review the First Nation s management practices including program management practices; (c) to review the First Nation s financial controls; (d) to assess compliance with this Agreement; and (e) to confirm that information reported to DIAND is complete and accurate. All Audit and Evaluation requirements now found in one section (section 10.0 of the agreement). 20 P age

21 the Council pursuant to this Agreement. 8.2 Scope and Timing of Audit of Accounts and Records The scope, coverage and timing of any audit under section 8.1 (Canada May Audit Accounts and Records) will be determined by Canada and may be carried out by one or more auditors employed or contracted by Canada Notwithstanding the reference to Canada in subsection 8.2.1, Canada's rights as set out in that subsection may be exercised by any one or more Federal Departments. 8.3 Auditors' Access to Accounts, Records and Premises In the event of an audit under section 8.1 (Canada May Audit Accounts and Records), the Council shall, upon request: (a) provide to the auditors referred to in section 8.2 (Scope and Timing of Audit of Accounts and Records) all accounts and records of the Council relating to this Agreement and to the funding provided under this Agreement, including all original supporting documentation; (b) allow those auditors to inspect such accounts and records and, except where prohibited by law, to take copies and extracts of such accounts and records; (c) provide to those auditors such additional information as they may require with reference to such accounts and records; (d) provide all necessary assistance to those auditors, including providing them with access to the Council's premises; (e) direct any entity that has provided accounting or recordkeeping services to the Council to provide copies of those accounts and records to the auditors; and (f) give consent to independent auditors referred to in section 4.4 (Reporting) or section 10.3 (Where Financial Statements Not Provided), as applicable, to allow access by Canada's 10.2 The scope, coverage and timing of any audit, evaluation or review will be determined by DIAND. 10.1Any audit, evaluation or review under this Agreement may be carried out by one or more auditors evaluators or officers employed by DIAND or a federal agency or on contract to DIAND. 2.3 DIAND s authority to publish information in respect of funding and the provisions regarding audit and evaluation survive the termination or expiry of this Agreement The First Nation must cooperate in any audit, evaluation or review under this Agreement by: (a) providing all necessary assistance to the auditor, evaluator or officer; (b) providing access to all requested accounts and records relating to this Agreement including original supporting documents; (c) providing access to any premises under the First Nation s control; (d) allowing the auditor, evaluator or officer to inspect accounts and records and, except where prohibited by law, to take copies or extracts of those accounts and records; and (e) providing any additional information the auditor, evaluator or officer may require in respect of the accounts and records. 10.4If requested by the auditor, evaluator or officer, the First Nation must: (a) direct anyone that has provided accounting or record keeping services to the First Nation to provide original supporting documents of those accounts and records to the auditor, evaluator or officer; and 21 P age

22 auditors to working papers that support the opinion or disclaimer of opinion, as applicable, on Consolidated Audited Financial Statements. (b) give consent to the First Nation s independent auditor to give the auditor, evaluator or officer access to the working papers that support the independent auditor s opinion or disclaimer of opinion. 8.4 Records Maintained under Other Funding Agreements The accounts and records Canada may audit or cause to have audited under section 8.1 (Canada May Audit Accounts and Records) include records maintained under any previous funding agreement through which the federal government has provided funding to the Council that, in the opinion of any auditor employed or contracted by Canada under section 8.2 (Scope and Timing of Audit of Accounts and Records), may be relevant to the audit. 8.5 No Limitation on Other Sections Section 8.1 (Canada May Audit Accounts and Records) does not limit: (a) Canada's right to audit and evaluate under section 14.8 (Audit and Evaluation); (b) the Council's obligation to have financial statements audited under section 4.4 (Reporting); or (c) Canada's right to appoint an independent auditor or to require the Council to appoint an independent auditor under section 10.3 (Where Financial Statements Not Provided). Simplification: Removal of the right for Canada to appoint an independent auditor. Removed 9.0 Default 9.1 The Council will be in default of this Agreement in the event: (a) the Council defaults on any of its obligations set out in this Agreement or any other agreement through which a Federal Department provides funding to the Council; (b) the auditor of the Council gives a disclaimer of opinion or 7.1 The First Nation is in default of this Agreement under any of the following circumstances: (a) the First Nation does not fulfill any obligation under this Agreement; (b) the First Nation s auditor gives a disclaimer of opinion or adverse opinion on the financial statements of the First Nation Simplification 22 P age

23 adverse opinion on the Consolidated Financial Statements of the Council in the course of conducting an audit under section 4.4 (Reporting) or section 10.3 (Where Financial Statements Not Provided) of this Agreement or the corresponding clauses in its predecessor; (c) in the opinion of the Minister of Indian Affairs and Northern Development or any other Minister that represents Her Majesty the Queen in Right of Canada in this Agreement, having regard to the Council's financial statements and any other financial information relating to the Council reviewed by the Minister, the financial position of the Council is such that the delivery of any program, service or activity for which funding is provided under this Agreement is at risk; or (d) in the opinion of the Minister of Indian Affairs and Northern Development or any other Minister that represents Her Majesty the Queen in Right of Canada in this Agreement, the health, safety or welfare of Members or Recipients is at risk of being compromised Remedies on Default 10.1 Parties Will Meet required under this Agreement or any other agreement with DIAND; (c) DIAND determines that the First Nation's financial position puts the delivery of any Program, Service or Activity or any Project for which funding is provided at risk; (d) DIAND determines that the health, safety or welfare of any individual is at risk; and (e) the First Nation is in default under any other agreement with DIAND. Removed as it is implicit that we would communicate and meet Without limiting any remedy or other action Canada may take under this Agreement or administrative measures the Minister of Indian Affairs and Northern Development may take under an Act of Parliament, in the event the Council is in default under this Agreement, the parties will communicate or meet to review the situation Action Canada May Take In the event the Council is in default under this Agreement, and without limiting administrative measures the Minister of Indian Affairs and Northern Development may take under an Act of 7.2 If it is reasonably necessary in the event of a default, DIAND may by notice to the First Nation take any or all of the following actions: (a) require that within 60 calendar days the First Nation establish Simplification 23 P age

24 Parliament, Canada may take one or more of the following actions as may reasonably be necessary, having regard to the nature and extent of the default: (a) require the Council to develop and implement a Management Action Plan within sixty (60) calendar days, or at such other time as the parties may agree upon and set out in writing; (b) require the Council to seek advisory support acceptable to Canada; (c) appoint, upon providing notice to the Council, a Third Party Funding Agreement Manager; (d) withhold any funds otherwise payable under this Agreement; (e) require the Council to take any other reasonable action necessary to remedy the default; (f) take such other reasonable action as Canada deems necessary, including any remedies which may be set out in any Schedule; or (g) terminate this Agreement. a management action plan acceptable to DIAND; (b) require the First Nation to seek advisory support acceptable to DIAND; (c) appoint a third party funding agreement manager to administer, in whole or in part, funding otherwise payable to the First Nation and the First Nation obligations under this Agreement; (d) withhold funding under this Agreement; (e) require other actions to remedy the default; and (f) terminate this Agreement Where Financial Statements Not Provided Without limiting actions Canada may take under section 10.2 (Action Canada May Take) or administrative measures the Minister of Indian Affairs and Northern Development may take under an Act of Parliament, where the Council defaults in its obligation under this Agreement or its predecessor to provide DIAND with Consolidated Audited Financial Statements, together with all schedules and reports required under the Year End Reporting Handbook, Canada may: (a) require that an independent auditor who is a member in good standing of a corporation, institute or association of accountants incorporated under an Act of the legislature of the Province or Territory in which the Council has its administrative offices be engaged immediately by the Removed Managed under section P age

25 Council at the Council's cost and that the Consolidated Audited Financial Statements, together with all schedules and reports required under the Year End Reporting Handbook, be delivered within a reasonable time as Canada may determine; or (b) appoint an independent auditor who is a member in good standing of a corporation, institute or association of accountants incorporated under an Act of the legislature of the Province or Territory in which the Council has its administrative offices and in which case: i. the Council shall provide the auditor appointed by Canada with full access to its financial records and provide such other information as the auditor may require to perform the audit; and ii. the Council shall reimburse Canada for all costs incurred in having the audit conducted Where Documents Not Disclosed Without limiting actions Canada may take under section 10.2 (Action Canada May Take) or administrative measures the Minister of Indian Affairs and Northern Development may take under an Act of Parliament, where the Council defaults on its obligation to make Consolidated Audited Financial Statements, together with all schedules and reports required under the Year End Reporting Handbook, or any Management Action Plan readily available to Members that request them, Canada may make those documents available to those Members Where Reporting Requirements Not Met Removed Removed Managed under section Without limiting remedies available to Canada set out in section 10.2 (Action Canada May Take) and section 10.3 (When Financial Statements Not Provided), Canada may withhold funding 25 P age