June 30, 2022

Sent by Electronic Mail: reviewingatia.revisionlai@tbs-sct.gc.ca Treasury Board of Canada Secretariat
90 Elgin Street, 8th Floor Ottawa, Canada K1A 0R5

Attn: ATIA Review Office

Re: Indigenous Engagement – Access to Information Act Review

The First Nations Finance Authority (“FNFA”) provides these submissions as part of the Indigenous engagement process regarding the review of (the “Review”), and suggested reforms to, the Access to Information Act, RSC 1985, c. A-1 (“ATIA”).

By way of background, while statutorily created,1 FNFA it is not a “government institution” within the meaning of ATIA. FNFA provides Indigenous government financing through long-term loans with preferable interest rates, investment options, and capital planning advice. FNFA competes against other commercial lenders in the Canadian market, and operates as an independent entity to securitize own-source revenues generated by its member First Nations (“Members”), and issues debentures that can be lent. In turn, this allows FNFA to finance much-needed infrastructure and economic development initiatives at a much lower rate than First Nations would realize by borrowing on their own.

FNFA has had the opportunity to review the prior submissions of both the First Nations Tax Commissioner (“FNTC”) dated December 18, 2020 submitted as part of Stage 1 of the Review, as well as the submissions of the First Nations Financial Management Board (“FMB”) dated September 2021, made as part of Stage 2 of the Review. In addition, FNFA has had the opportunity to review the “ATI Review – Interim What We Heard Report” prepared by the Treasury Board of Canada Secretariat (“TBS”).

In short, FNFA agrees with the thrust of the submissions from FNTC, being: (1) that a definition of “Indigenous entity” or analogous term under ATIA must be expanded;2 and (2) that a permissive

1 See First Nations Fiscal Management Act, SC 2005, c 9.
2 In particular, subsection 13(2) of ATIA should be struck in its entirety, and replaced with a definition of “Indigenous government” akin to the definition of “indigenous entity” under Schedule 1 of British Columbia’s Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165; or incorporating the elements of section 21(1)(a)(ii) of Alberta’s provincial access to information legislation: Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25, ss 21(1)(a)(iii).

exception to disclosure is required, which would allow government institutions to refuse to disclose records that could be injurious to relations between the Government of Canada and any Indigenous government, akin to the “federal-provincial” affairs exception under ATIA.3 FNFA adopts the submissions of FNTC in that regard.

FNFA’s additional concern with ATIA remains that its First Nations Members receive strategic and commercial advice from FNFA which is often forwarded, transferred, or otherwise provided to “government institutions” within the meaning of ATIA.

As a result, FNFA is often the recipient of third-party notices made under subsection 27(1) of ATIA, and finds itself in the position of advocating against the release of information which was intended for the confidential use of its First Nations Members. FNFA does not receive the benefit the context in which such FNFA confidential commercial, investment, lending or capital planning advice or strategies have come into the custody of government institutions – it only receives from the government institution the records it had previously provided to its First Nations Members.

FNFA appreciates that the inclusion of an “Indigenous entities – federal affairs” permissive exception (like the kind advocated by FNTC) would permit government institutions to exempt FNFA’s strategies and advice on the basis that it would be harmful to those relations. It is not clear to FNFA, however, whether FNFA would be able to independently raise that exception in the absence of evidence that FNFA materials have been provided to a government institution by an Indigenous entity exercising governmental functions.

One potential solution would be to specify in ATIA whether FNFA, in acting to provide First Nations with the same financial instruments as other levels of government in Canada, qualifies as an “Indigenous entity that exercises governmental functions”.4 In that scenario, FNFA would benefit from the proposed expansion of the “Indigenous entities – federal affairs” exception to disclosure.

Alternatively, the “Indigenous entities – federal affairs” exception could be expanded to make clear that FNFA’s strategies and advice created for the benefit of Indigenous entities should be subject to additional protections. Commercial, investment, lending or capital planning advice or strategies prepared by FNFA for the benefit of its Members should generally be exempt from disclosure under ATIA. FNFA proposes the following further amendment to FNTC’s proposal, with FNFA’s revisions noted in bold and highlight:

3 ATIA, s 14.
4 Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165, Schedule 1. FNFA would, of course, not be considered a “government institution” as an “Indigenous entity”.

The head of a government institution may refuse to disclose any record requested under this Act that:

i.	contains information the disclosure of which could reasonably be expected to be injurious to relations between the Government of Canada or a government institution and an [Indigenous entity; or

ii.	contains commercial, investment, lending or capital planning advice or strategies prepared by the First Nations Finance Authority for the benefit of a “borrowing member” within the meaning of the First Nations Fiscal Management Act, SC 2005, c 9.]

Without one of the two proposed solutions, FNFA will be required to act on behalf of its Members to continually justify why the release of FNFA’s advice and strategies jeopardizes federal- Indigenous relations, without the benefit of any context in which those very records came into the possession of a government institution.

FNFA wishes to thank TBS for this opportunity to provide the within submissions and welcomes further discussions on the subject. Please do not hesitate to contact us regarding same.

Yours truly,

Ernie Daniels 06/30/2022 12:45 PDT

Ernie Daniels, CPA, CGA, CAFM President & CEO
First Nations Finance Authority