ARCHIVED - Canada Common Funding Agreement For First Nations and Tribal Councils

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Table of Contents




(hereinafter referred to as the "Agreement")

Between:
Her Majesty The Queen in Right of Canada, as represented by the Minister of Health and the Minister of Indian Affairs and Northern Development

(hereinafter referred to as "Canada")


And:
__________, a First Nation that is a "band" as defined in the Indian Act, as represented by its Chief and Councillors

(hereinafter referred to as the "Council")


Or
__________, an incorporated Tribal Council represented by its directors

(hereinafter referred to as the "Council")

Whereas the Council wishes to carry out the Programs for the benefit of Members and Recipients, and to be accountable for those Programs;

Whereas Canada wishes to provide Funding to support those Programs;

Whereas the Council and Canada through the Ministers that are signatories to this Agreement, hereinafter "signatory Ministers" wish to enter into a single combined funding agreement;

Whereas the Council recognizes the importance of maintaining a system of accountability and transparency to its community;

Note: If the Council wishes to include a reference to Treaties, the following are the clauses which have been authorized for use.

Whereas Canada entered into Treaty No. __ with certain First Nations within the Province of __________;

Whereas the parties acknowledge the historical and contemporary importance of the treaties to the relationship between Canada and the First Nation(s) of Name of FN(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.

Whereas 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.

Now therefore, the Parties agree as follows:

1. Term and Purpose of the Agreement and Non-Derogation

1.1 Term of the Agreement

1.1.1
Subject to termination, this Agreement applies to the period commencing on __________ and expiring on __________.

1.2 Purpose of the Agreement

1.2.1
The purpose of this Agreement is to provide Funding to the Council to support its delivery of the Programs in accordance with the terms and conditions of this Agreement.

Note: If the Council wishes to include a reference to Non-Derogation, the Council may choose to include any or all of the following clauses 1.3.1 (a) to (d) which have been authorized for use.

1.3 Non-Derogation

1.3.1
Nothing in this Agreement will:

  1. be construed to diminish, derogate from, or prejudice any treaty or aboriginal rights of the Name of FN(s);
  2. be construed as modifying Treaty No. __ or creating a new treaty within the meaning of the Constitution Act, 1982;
  3. prejudice whatsoever any applications, negotiations or settlements with respect to land claims or land entitlement between Her Majesty the Queen in right of Canada and the Name of FN(s); or
  4. prejudice whatsoever the implementation of any inherent right to self-government nor prejudice in any way negotiations with respect to self-government involving the Name of FN(s).

2. Funding

2.1 Provision of Funding

2.1.1
Canada shall, subject to and in accordance with the terms of this Agreement, transfer Funding to the Council as set out in the DIAND Schedule and the Health Canada Schedule, by way of periodic payments set out in Schedule "FED-1".

Note: If DIAND or Health Canada is providing the Funding on behalf of the other department, include section 2.1.2 and choose which department will be providing the Funding.

2.1.2
DIAND or Health Canada may transfer the Funding on behalf of Canada.

2.2 Availability of Appropriations and Continuance of Programs

2.2.1
The provision of any Funding for any Fiscal Year is subject to an appropriation of funds by the Parliament of Canada for that Fiscal Year and the Funding herein may be reduced or terminated in accordance with any reduction or termination of an appropriation required for this Agreement.

2.2.2
In the event that any departmental funding authority for any Programs is modified or cancelled for any Fiscal Year by the Treasury Board of Canada or by any signatory Minister, or departmental funding levels are reduced or cancelled by Parliament for any Fiscal Year, Canada may reduce or terminate further payments to be made in that Fiscal Year under this Agreement accordingly.

2.2.3
Where Set Contribution Funding, Fixed Contribution Funding or Flexible Contribution Funding is to be reduced or cancelled under section 2.2.2, Canada shall provide the Council with at least sixty (60) calendar days written notice. This notice shall specify the Programs, the Fiscal Year(s) and amounts in respect of which any such Funding will be reduced or terminated.

2.2.4
Where any Block Contribution Funding is to be reduced or cancelled under section 2.2.2, Canada shall provide the following amount of prior notice to the Council:

  1. one (1) year, where the reduction or cancellation is made by a signatory Minister; and
  2. one (1) year or such lesser other time as Canada can reasonably provide, where the modification or cancellation is made by, or required by, Parliament or by the Treasury Board of Canada.

2.3 Exceptional Circumstances

2.3.1
In the event that exceptional circumstances (including but not limited to health, safety and socio-economic issues) occur during the term of this Agreement that were not reasonably foreseeable at the time this Agreement was entered into and that have a significant impact on the Council's performance of the terms and conditions of this Agreement, the Council may return to Canada to seek changes to the level of Funding or to seek other assistance. In the event that Canada agrees to change the level of Funding, that change will be made by way of a written amending agreement.

2.4 Declaration of Sources of Funding

2.4.1
The Council shall provide notice, prior to the end of each Fiscal Year, to Canada if the Council receives funding assistance from any other federal department (including the signatory departments to this Agreement), or any provincial, territorial, or municipal government for any of the Programs for which the Funding is provided. In such case, Canada may require the Council to reimburse any amount of the Funding that Canada considers a duplication of the funding from the other source.

2.5 Management of Funding

2.5.1 Set, Fixed and Flexible Contribution Funding

  1. The Council may expend Set Contribution Funding, Fixed Contribution Funding and Flexible Contribution Funding only as permitted in this section.
  2. In respect of Funding provided under the DIAND Schedule, for each Program listed under the headings of Set Contribution, Fixed Contribution or Flexible Contribution in Schedule "FED-1," the Council may expend against the annual amount allocated in that Schedule for that Program:

    1. only in the Fiscal Year for which the annual amount is allocated for that Program in Schedule "FED-1", and
    2. only in accordance with the requirements of this Agreement for that Program.
  3. In respect of Funding provided under the Health Canada Schedule, the Council may expend only as set out in paragraph (b), except that where the Health Canada Schedule permits reallocation of amounts between Programs, the rules in paragraph (b) apply in respect of the reallocated amounts as if they were amounts set out in Schedule "FED-1".

2.5.2 Block Contribution Funding

  1. Council may expend Block Contribution Funding only as permitted in this section.
  2. In respect of Block Contribution Funding provided under the DIAND Schedule, the Council may expend against the total of all annual amounts allocated for the Programs listed in DIAND's part of Schedule "FED-1" under the heading of "Block Contribution" only in accordance with the requirements of this Agreement for those Programs.
  3. In respect of Block Contribution Funding provided under the Health Canada Schedule, the Council may expend against the total of all annual amounts allocated for the Programs listed under the heading of "Block Contribution" in Health Canada's part of Schedule "FED-1" only in accordance with the requirements of this Agreement for those Programs. Where Block Contribution Funding provided under the Health Canada Schedule has been reallocated in accordance with that Schedule, the Council may expend against the total of all annual reallocated amounts as if they were the allocated amounts under Schedule "FED-1".

2.5.3 General

  1. The Council shall not make loans from the Funding unless set out in the Schedules.
  2. The Council acknowledges that it is responsible for any expenditure that exceeds the amount of Funding.

3. Management of Unexpended Funds

3.1 Set Contribution Funding

3.1.1
The Council may not retain any unexpended Set Contribution Funding and shall reimburse to Canada the difference between the amount provided to the Council under Schedule "FED-1" for each Program funded by Set Contribution Funding for a Fiscal Year and the amount expended by the Council on that Program (subject to any reallocation of Funding between Programs as may be permitted by a Schedule) in the same Fiscal Year in accordance with this Agreement.

3.2 Fixed Contribution Funding

3.2.1
The Council shall reimburse to Canada the difference between the amount provided to the Council under Schedule "FED-1" for each Program funded by Fixed Contribution Funding for a Fiscal Year and the amount expended by the Council on that Program in the same Fiscal Year in accordance with this Agreement unless all of the following conditions are met:

  1. the Council has fulfilled all of the requirements of this Agreement for that Program in the Fiscal Year for which that Funding was provided;
  2. the Council expends the difference in amounts in the one-year period immediately following that Fiscal Year:

    1. an activity that is similar to and has the same purpose as that Program, or
    2. in accordance with a plan for expenditure of the difference in amounts that is submitted by the Council to Canada within one hundred and twenty (120) days after the end of that Fiscal Year and that Canada accepts by way of notice to the Council; and
  3. the Council reports on its expenditure of the difference in amounts in accordance with the Year End Reporting Handbook issued by DIAND.

3.3 Flexible Contribution Funding

3.3.1
The Council shall reimburse to Canada the difference between the amount provided to the Council under Schedule "FED-1" for each Program funded by Flexible Contribution Funding for a Fiscal Year and the amount expended by the Council on that Program (subject to any reallocation of Funding between Programs as may be permitted by a Schedule) in accordance with this Agreement until the end of that Program or the expiry or termination of this Agreement, whichever comes first.

3.4 Block Contribution Funding

3.4.1
The Council shall reimburse to Canada the difference between the amount of Block Contribution Funding originating from a signatory Minister and provided to the Council under Schedule "FED-1", and the amount that the Council expends in accordance with this Agreement and during the term of this Agreement on the aggregate of the Programs for which that Block Contribution Funding was provided, unless all of the following conditions have been met:

  1. the Council has delivered all of the Programs for which that Block Contribution Funding was provided in every Fiscal Year for which that Funding was provided in accordance with the requirements set out in the Program Plan, or, in the case of Block Contribution Funding originating from the Minister of Health, any other Plan referred to in the Health Canada Schedule;
  2. the Council expends the difference in amounts following the expiry or termination of this Agreement:

    1. on an activity that is similar to and has the same purpose as any one or more of the Programs for which that Block Contribution Funding was provided, or
    2. in accordance with a plan for expenditure of the Funding that is submitted by the Council to the corresponding signatory Minister within one hundred and twenty (120) days after the end of that Fiscal Year and that Canada accepts by way of notice to the Council; and
  3. the Council reports on its expenditure of the difference in amounts in accordance with the Year End Reporting Handbook issued by DIAND.

3.5 Grant

3.5.1
When a Program is funded through Grant Funding as set out in Schedule "FED-1", the Council may keep the Funding it received if all of the eligibility requirements for the grant are met.

4. Reimbursement

4.1
Council shall, upon notice, and without limiting any other rights of Canada under this Agreement, reimburse to Canada any amount of the Funding which: (i) has not been accounted for by the Council in accordance with this Agreement; (ii) is spent by the Council for purposes other than those authorized under this Agreement; (iii) Canada determines to be a recoverable amount under section 2.4 (Declaration of Sources of Funding); (iv) is an overpayment or any other amount that must be reimbursed by the Council under this Agreement. Such amounts are debts due to the Crown.

4.2
Canada may set-off from any payment due under this Agreement:

4.2.1
any amount that is a debt due to the Crown pursuant to subsection 4.1;

4.2.2
any other amount that is due and payable by the Council to Canada, including any amount due under the terms of any prior agreement under which a signatory Minister provides grant or contribution funding to the Council.

5. Delegation of Obligations

5.1
The Council may delegate delivery of Programs under this Agreement, in whole or part, to an Agency, with the following exceptions:

5.1.1
where statutory authority to act on behalf of a Minister is delegated to the Council, the Council shall not delegate that authority; and

5.1.2
the Council shall not delegate any obligations relating to Grant Funding.

5.2
When the Council delegates, the Council shall ensure that the Agency:

5.2.1
maintains financial and non-financial records relating to the delegated Programs, and keeps them for a period of seven (7) from the end of the latest Fiscal Year to which a record relates, and

5.2.2
will, upon request of auditor(s) or evaluator(s) employed or contracted by Canada, provide them with access to all of its records relating to the delegated Programs, allow them to inspect those records and to make copies or extracts of those records unless that is prohibited by law, provide them with all necessary assistance including access to the Agency's premises, and direct any entity that has provided accounting or record-keeping services to the Agency to provide them with copies of accounts and other records relating to any Program that the Council has delegated.

5.3
The obligations of the Agency must be set out in a written agreement between the Council and the Agency that includes the understanding that the relationship between the Council and the Agency does not create a relationship between the Agency and Canada, and that the obligations on record-keeping and audit and evaluation continue after the end of that agreement.

5.4
The Council will remain responsible for the obligations in this Agreement and is responsible for making certain that the Agency fulfills its obligations to the Council.

6. Council's Accountability to Members

6.1
The Council shall maintain a system of accountability and transparency to its Members in accordance with principles of sound governance and public administration. This system shall include a conflict of interest policy for members and employees of the Council.

7. Record Keeping and Reporting

7.1 Record Keeping

7.1.1
The Council shall maintain accounts and financial and non-financial records for each Program for which Funding is provided, 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 and in accordance with any other terms and conditions of this Agreement.

7.1.2
The accounts and records referred to in subsection 7.1.1 must be maintained in such a way as to substantiate the schedules of revenue and expenditure to be provided to Canada in accordance with the Year End Reporting Handbook.

7.1.3
The Council shall maintain accounting documentation regarding all Funding in a manner that will allow for audit.

7.2 Reporting

7.2.1
The Council must maintain its accounts and prepare Consolidated Financial Statements in accordance with generally accepted accounting principles.

7.2.2
The Council shall engage an independent auditor who is a member in good standing of a corporation, institute or association or 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 audit of the Consolidated Financial Statements.

7.2.3
Council's Consolidated Financial Statements must:

  1. be audited by the independent auditor engaged by the Council under subsection 7.2.2 in accordance with the generally accepted auditing standards of the Canadian Institute of Chartered Accountants, or its successor;
  2. be prepared for each Fiscal Year in accordance with the Year End Reporting Handbook issued by DIAND;
  3. 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.

7.2.4
DIAND may deliver a copy of the Council's audited Consolidated Financial Statements together with all schedules and reports required under the Year End Reporting Handbook to:

  1. the other signatory Minister, or
  2. any federal government institution with which the Council has an arrangement under which that institution will receive a copy of those documents from DIAND.

7.2.5
The Council acknowledges that either signatory Minister may use and rely on information provided under this section for any purpose under this Agreement.

7.2.6
The Council represents that its financial year aligns with the Fiscal Year and will remain so aligned throughout the term of this Agreement.

7.2.7
For each Fiscal Year, the Council shall provide to each signatory Minister the reports listed in the Schedule of Reporting Requirements and Due Dates in accordance with the Recipient Reporting Guide issued by DIAND, the Community-Based Reporting Template issued by the Department of Health, and any other requirements set out in a Schedule.

7.2.8
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 audited Consolidated Financial Statements or other reports if the Council provides notice before the applicable due dates of circumstances beyond the Council's control preventing the Council from meeting the deadlines.

8. Access by Canada to Records

8.1 Canada May Audit Accounts and Records

8.1.1
Canada may 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:

  1. assess or review the Council's compliance with the terms and conditions of this Agreement;
  2. review the Council's program management and financial control practices in relation to this Agreement; or
  3. confirm the integrity of any data which has been reported by the Council pursuant to this Agreement.

8.2 Scope and Timing of Audit of Accounts and Records

8.2.1
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.

8.3 Auditors' Access to Accounts, Records and Premises

8.3.1
In the event of an audit under section 8.1 (Canada May Audit Accounts and Records), the Council shall, upon request:

  1. 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, including all original supporting documentation;
  2. 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;
  3. provide to those auditors such additional information as they may require with reference to such accounts and records;
  4. provide all necessary assistance to those auditors, including providing them with access to the Council's premises;
  5. direct any entity that has provided accounting or record-keeping services to the Council to provide copies of those accounts and records to the auditors; and
  6. give consent to independent auditors referred to in section 7.2 (Reporting) to allow access by Canada's auditors to working papers that support the opinion or disclaimer of opinion, as applicable, on Consolidated Financial Statements.

8.4 Records Maintained under Other Funding Agreements

8.4.1
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

8.5.1
Section 8.1 (Canada May Audit Accounts and Records) does not limit:

  1. Canada's right to audit and evaluate under section 9. (Audit and Evaluation); or
  2. the Council's obligation to have financial statements audited under section 7.2 (Reporting).

9. Audit and Evaluation

9.1
Canada may at any time during the term of this Agreement or within seven (7) years of its expiry or termination, carry out one or more audits or evaluations of the effectiveness of any or all of the Programs funded under this Agreement, including those Programs provided by Agencies, or of the Council's management practices in relation to this Agreement. In the event Canada decides to carry out one or more such audits or evaluations, the Council shall cooperate in the conduct of any such audit or evaluation and provide Canada or their representatives such information as they require.

10. Default

10.1
The Council will be in default of this Agreement in the event:

10.1.1
the Council defaults on any of its obligations set out in this Agreement or any other agreement through which Canada provides funding to the Council;

10.1.2
the auditor of the Council gives a disclaimer of opinion or adverse opinion on the Consolidated Financial Statements of the Council in the course of conducting an audit under section 7.2 (Reporting) of this Agreement or the corresponding clauses in any previous agreement under which a signatory Minister provides grant or contribution funding to the Council;

10.1.3
in the opinion of the Minister of Indian Affairs and Northern Development or the Minister of Health, 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 for which Funding is provided is at risk; or

10.1.4
in the opinion of the Minister of Indian Affairs and Northern Development or the Minister of Health, the health, safety or welfare of Members or Recipients is at risk of being compromised.

Note: The following paragraphs 10.1.3, 10.1.4 and 10.1.5 are to replace paragraphs 10.1.3 and 10.1.4 above when the Council is an incorporated Tribal Council.

10.1.3
in the opinion of the Minister of Indian Affairs and Northern Development or the Minister of Health, having regard to 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 for which Funding is provided is at risk;

10.1.4
in the opinion of the Minister of Indian Affairs and Northern Development or the Minister of Health, the health, safety or welfare of Members or Recipients is at risk of being compromised; or

10.1.5
the Council becomes bankrupt or insolvent, goes into receivership, takes the benefit of any statute from time to time being in force relating to bankrupt or insolvent debtors, or ceases to be a corporation in good standing under the laws of Canada or of a Province or Territory of Canada, as applicable.

11. Remedies on Default

11.1
In the event the Council is in default under this Agreement, and without limiting administrative measures a signatory Minister may take under an Act of 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:

11.1.1
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;

11.1.2
require the Council to seek advisory support acceptable to Canada;

11.1.3
appoint, upon providing notice to the Council, a Third Party Funding Agreement Manager;

11.1.4
withhold any Funding otherwise payable under this Agreement;

11.1.5
require the Council to take any other reasonable action necessary to remedy the default;

11.1.6
take such other reasonable action as Canada deems necessary, including any remedies which may be set out in any Schedule; or

11.1.7
terminate this Agreement.

12. Council Membership

12.1
Where the Council is a Tribal Council and receives notice of a Member First Nation's withdrawal or notice of a First Nation's addition to the Council, the Council shall immediately provide Canada with notice and shall include with such notice a copy of the Band Council Resolution confirming the Member First Nation's withdrawal from or addition to the Council.

12.2
For the purposes of the status of the Council under this Agreement, a change in Council membership under section 12.1 will not take effect until the April 1st occurring after one (1) calendar year has elapsed from the date Council has notified Canada of the change in membership, or at such other time as the parties may agree in writing, and during that notice period the Council and Canada agree to meet to discuss the impacts of the change in membership on the continuing obligations of the parties;

12.3
Nothing in this section obliges Canada to enter into any funding agreement with a former Member First Nation.

13. Conflict of Interest

13.1
The Council declares, and shall ensure that:

13.1.1
no current or former public servant or public office holder to whom any of the following legislation or codes applies shall derive any direct benefit from this Agreement unless the provision or receipt of such benefit is in compliance with this legislation and these codes:

  1. the Conflict of Interest Act;
  2. the Conflict of Interest and Post-Employment Code for Public Office Holders;
  3. the Values and Ethics Code for the Public Sector;
  4. the Values and Ethics Code for the Public Service;
  5. the Policy on Conflict of Interest and Post-Employment; or
  6. the values and ethics codes of any federal department that provides Funding under this Agreement.

13.1.2
no member of the Senate or the House of Commons shall be admitted to any share or part of this Agreement, or to any benefit arising from it, that is not otherwise available to the general public.

14. Recognition of Funding

14.1
The Council shall acknowledge Canada's financial support in any communications and materials it provides to the public relating to the activities funded by this Agreement. Such acknowledgment shall be in a form satisfactory to Canada and shall be withdrawn upon the written request of Canada.

14.2
The parties reserve the right to communicate to the public about the terms of this Agreement by way of, but not limited to, announcements, interviews, speeches, press releases, publications, signage, websites, advertising and promotional materials. The timing of these communications will be at the discretion of the party making the announcement. Each party will notify the other in advance of any significant public events and news releases to provide to the other party an opportunity to participate in a joint announcement or in the development of joint communications materials.

15. Public Disclosure

15.1
Without limiting any right, obligation or capacity of Canada to disclose information, Canada may publicly and through any means disclose the Agreement, the name and address of the Council, the nature of the Programs for which Funding is provided and any information related to federal funding.

16. Intellectual Property

16.1
In this section "material" includes anything that is created or developed by the Council with the Funding or in the course of implementing, providing or promoting the Programs under this Agreement, and in which copyright subsists.

16.2
Copyright in any Material shall vest in the Council.

16.3
The Council shall, upon request, provide Canada with copies of any Material for any purpose related to this Agreement.

16.4
Canada shall be entitled, without cost or royalty, to use, reproduce and translate any Material for any government purpose, but shall not disclose or distribute any material outside of government unless authorized by law or the Council.

16.5
The Council must fulfill any additional requirements, and either signatory Minister will have any additional rights, relating to intellectual property set out in a Schedule.

17. Personal Information and Privacy

17.1
Each party shall comply with applicable laws pertaining to privacy, confidentiality and access to information in relation to information and records pertaining to this Agreement.

18. Indemnification and Civil Liability

18.1
The Council shall indemnify and saves harmless Canada and her officers, Ministers, employees, agents, successors and assigns from and against all claims, liabilities, and demands arising directly or indirectly from the acts or omissions of the Council or of any of its agents or employees in respect of or resulting from the Agreement.

18.2
Canada shall indemnify and saves harmless the Council from and against any claims, liabilities and demands arising directly or indirectly from any breach of this Agreement by Canada.

18.3
The Council agrees not to hold Canada liable for any damage or loss it may suffer as a result of the Agreement or for any claim, suit, demand or action filed by a third party concerning the contracts entered into by the Council, be they loan, service, rental or capital lease contracts or any other contract related to the Programs funded under the Agreement.

19. Representation

19.1
The parties acknowledge that the Agreement is not a contract of partnership or association, does not establish a partnership or a joint venture between the Council and Canada, does not create an agency relationship between Canada and the Council and does not in any way imply an undertaking to reach a subsequent agreement.

19.2
The Council must not represent itself as an associate, partner, joint venturer, employee or agent of Canada.

20. Dispute Resolution

20.1
The parties may choose mediation or facilitated discussions to resolve any disputes arising between them regarding the interpretation of a provision of this Agreement or the obligation of a party under this Agreement. The process to be followed will be in accordance with the Policy on Dispute Resolution issued by Canada unless otherwise agreed. Each party will bear its own costs arising from any dispute resolution process and bear equally the cost of any independent third party appointed to resolve the dispute.

21. Termination

21.1
Without limiting Canada's right to terminate under section 11.1 (Remedies on Default), this Agreement may be terminated by either party upon written notice to the other party, stipulating the reason for termination, provided that before any such termination can become effective:

21.1.1
the parties exhaust any dispute resolution process provided for in section 20. (Dispute Resolution), or any other process agreed to in writing by the parties, in respect of any dispute that has arisen under this Agreement; and

21.1.2
the parties agree on a time frame to terminate the Agreement in a manner that will not jeopardize the administration and delivery of the Programs to Members and Recipients.

21.2
When this Agreement is terminated:

21.2.1
the Council shall provide Canada with Consolidated Financial Statements together with all schedules and reports required under the Year End Reporting Handbook, or such parts of that financial reporting as specified by Canada, and any other outstanding reports within one hundred and twenty (120) days of the date of termination;

21.2.2
the Council shall return all unspent Funding unless the Council and Canada agree otherwise in writing;

21.2.3
subject to Canada's right to set-off any amount owing to Canada under this Agreement, Canada shall pay to the Council any monies owed to the Council up to the termination date of this Agreement, unless the Council and Canada agree otherwise in writing; and

21.2.4
on request by Canada, the Council shall transfer or facilitate the transfer of the medical records in its possession to a replacement Council or to Canada, where such records are relevant to the Programs that will be provided by the replacement Council or Canada, as the case may be. Any transfer of records must be conducted in accordance with the applicable legislation.

22. Notices

22.1
Any notice, request, information or other document required under the Agreement will be deemed to have been delivered if it was provided by personal delivery, by fax, by mail or by electronic mail.

22.2
Any notice, request, information or other document required under the Agreement that is:

22.2.1
provided by personal delivery is deemed to have been received on the date upon which the notice is delivered;

22.2.2
sent by fax or by electronic mail is deemed to have been received one (1) working day after having been sent;

22.2.3
sent by mail is deemed to have been received eight (8) working days after having been mailed.

22.3
Except as otherwise required under the reporting section of this Agreement, or under any Schedule, any request sent to Canada concerning the preamble or sections 1 to 27 of the Agreement or any notice, information or other document required under those sections to be given to Canada must be sent by the Council to the Minister of Indian Affairs and Northern Development or the Minister of Health at the following address:

Note: Choose either DIAND or HC

Department of Indian Affairs and Northern Development or Department of Health
Address

Fax Number

22.4
Any request sent to Canada concerning the Schedules or any notice, information or other document required under those Schedules to be given to Canada must be sent by the Council to the relevant signatory Minister at the address contained in the corresponding signatory Minister's Schedule. The parties agree that a notice, a request, information or any other document sent by the Council by mistake to an address associated with one of the other Programs listed in the Schedules will not be valid communication.

22.5
Any request sent to the Council concerning the Agreement or any notice, information or any other document required under the Agreement to be given to the Council must be sent by Canada to the following address:

Name of Council
Address

Fax Number

22.6
Each party must notify the other parties, in writing, of a change of address or fax number.

23. Amendment of the Agreement

23.1
This Agreement may be amended only by a written amending agreement signed by both parties, including each of the signatory Ministers.

23.2
A Schedule may, however, be amended by a written amending agreement between the Council and the appropriate signatory Minister, or by any other process set out in a Schedule.

24. Waiver

24.1
The fact that Canada refrains from exercising a remedy or right under the Agreement will not be considered to be a waiver of that remedy or right and, furthermore, partial or limited exercise of a remedy or right conferred on Canada does not prevent Canada from later exercising any other remedy or right under the Agreement or any applicable legislation.

24.2
No provision of this Agreement and no event of default by the other party of any provision of this Agreement will be deemed to have been waived unless the waiver is in writing and signed by the other party.

24.3
The waiver by a party of a particular default by the other party or of any particular provision of this Agreement will not be deemed to be a waiver of any subsequent default by the other party or of the same or any other provision of this Agreement.

25. Interpretive Provisions

25.1
Canada's rights, remedies and obligations under this Agreement may be carried out by any signatory Minister as determined by Canada.

25.2
The Agreement, which includes the Schedules as well as any future amendments and notices of adjustment, constitutes the entire Agreement between the parties and supersedes all previous documents, negotiations, understandings and undertakings related to the Agreement.

25.3
The rights and obligations of the parties under the following headings in this Agreement will remain in effect after the termination or expiry of this Agreement: Record Keeping and Reporting, Access by Canada to Records (Audit and Evaluation), Management of Unexpended Funds, Reimbursement, Indemnification and Liability, Default, Remedies on Default, Intellectual Property, Personal Information and Privacy, Indemnification and Civil Liability, Representation.

25.4
The parties' rights and responsibilities under this Agreement may be carried out by their respective officers and employees.

25.5
The headings in the Agreement have been added for reference purposes and convenience. They do not in any way define, limit or extend the scope of the Agreement's provisions.

25.6
Any reference in the Agreement to legislation and government publications, including the Year-End Reporting Handbook and any named guides, templates and policies will be deemed to refer to the legislation in force and to the publications existing at the date on which the Agreement comes into effect, and includes any subsequent amendment thereof.

25.7
This Agreement will be interpreted in accordance with the laws of Canada and the applicable laws of the Province or Territory in which the Programs are provided.

26. Assignment

26.1
Neither party may assign its responsibilities under this Agreement without consent of the other party.

26.2
This Agreement is binding upon the parties' lawful successors and assigns.

27. Capacities of the Parties

27.1
The parties confirm that they each have the authority and the capacity necessary to enter into this Agreement and that their representatives have the authority to enter into this Agreement on their behalf.

NOTE: Only to be inserted when the Council is incorporated

27.2
The Council represents and warrants that it is a corporation duly incorporated and in good standing under the laws of Canada or of a Province or a Territory of Canada, as the case may be, and will remain in good standing at all times during the term of this Agreement.

This Agreement is signed on behalf of the Council and on behalf of Canada by their duly authorized representatives.

Signed on behalf of her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development

By: (insert name and title)  

In the presence of:

(insert name and title)    

Date: ___________

as represented by the Minister of Health

By: (insert name and title)
First Nations and Inuit Health Branch
Health Canada

In the presence of:

(insert name and title)    

Date: ___________

Signed on behalf of the __________

By: Title / Council  
Note if Tribal Council, insert after each signature:
I have the authority to bind the corporation

By: (insert name and title)
I have the authority to bind the corporation

By: (insert name and title)
I have the authority to bind the corporation

By: (insert name and title)
I have the authority to bind the corporation

By: (insert name and title)
I have the authority to bind the corporation

By: (insert name and title)
I have the authority to bind the corporation

By: (insert name and title)
I have the authority to bind the corporation

In the presence of:

(insert name and title)    

Date: ___________




Schedule of Definitions

The following definitions apply to the Agreement:

"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 adjustment, and any amendments made in accordance with section 23 (Amendment of the Agreement).

"Block Contribution Funding" means Funding for Programs listed in Schedule "FED-1" under the heading "Block Contribution".

Note: Only to be inserted when the Council is a First Nation.
"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.

Note: Only to be inserted when the Council is a Tribal Council.
"Consolidated Financial Statements" means the financial statements of the Council.

"DIAND" means the Department of Indian Affairs and Northern Development also known as Aboriginal Affairs and Northern Development Canada.

"Fixed Contribution Funding" means Funding for Programs listed in Schedule "FED-1" under the heading "Fixed Contribution".

"Fiscal Year" means any period during the term of this Agreement beginning on April 1 of any year and ending on March 31 of the year immediately following, and includes part thereof in the event this Agreement begins after April 1 or ends before March 31.

"Flexible Contribution Funding" means the Funding for Programs listed in Schedule "FED-1" under the heading "Flexible Contribution".

"Funding" means funding provided to the Council by Canada under this Agreement.

"Grant Funding" refers to Funding subject to pre established eligibility and other entitlement criteria.

"Health Canada" means the Department of Health.

"Management Action Plan" means a plan, developed by the Council and acceptable to Canada, which reflects measures to be taken by the Council to remedy a default under this Agreement.

Note: Only to be inserted when the Council is a First Nation.
"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.

Note: Only to be inserted when the Council is a Tribal Council.
"Member" means a person whose name appears on the band list of a Member First Nation maintained by DIAND or that Member First Nation in accordance with the Indian Act.

Note: Only to be inserted where the Council is a Tribal Council.
"Member First Nation" means a First Nation which is a member of the Council.

"Program" means a program, service, initiative or project listed in Schedule "FED-1" in the column entitled Program/Budget/Transaction Activities and described in the Program Plan or any other Plan identified in the Health Canada Schedule.

"Program Plan" means the Program Plan Schedule.

"Recipient" means, except in respect of any reference to the Recipient Reporting Guide, a person other than a Member who may benefit from any Programs.

"Schedule" means any schedule to this Agreement.

"Set Contribution Funding" means the Funding for Programs listed in Schedule "FED-1" under the heading "Set Contribution".

"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 whole or in part, and that may assist the Council to remedy default under this Agreement.




DIAND Schedule

1. Definitions

In this Schedule,

"Initial Fiscal Year" means a one-year period beginning on April 1 of the Fiscal Year in which the term of this Agreement begins and ending the following March 31.

"Subsequent Fiscal Year" means any Fiscal Year following the Initial Fiscal Year.

"Fiscal Plan" means a multi-year plan approved by the Council at a duly convened meeting which consists of the budget for the Initial Fiscal Year and projected expenditures for each Subsequent Fiscal Year and any amendments to that Fiscal Plan approved by the Council.

2. Block Contribution Funding

2.1 Amount of Funding

2.1.1
Subject to the terms and conditions of this Agreement, DIAND shall transfer __________ dollars ($XX,XXX,XXX) in Block Contribution Funding in the Initial Fiscal Year.

2.1.2
Subject to the terms and conditions of this Agreement, in each Subsequent Fiscal Year, DIAND shall transfer the amount calculated according to the formula set out in section 7 (Block Contribution Adjustment Formula) of this Schedule.

2.2 Fiscal Plan

2.2.1
The Council shall have a Fiscal Plan in place for the term of this Agreement.

3. Set, Fixed, Flexible and Grant Funding

3.1 Amount of Funding

3.1.1
Subject to the terms and conditions of this Agreement, DIAND shall transfer to the Council:
  1. Set Contribution Funding in the following amounts:

    An amount of up to _____ dollars ($_____) for Fiscal Year _____;
  2. Fixed Contribution Funding in the following amounts:

    An amount of up to _____ dollars ($_____) for Fiscal Year _____;
  3. Flexible Contribution Funding in the following amounts:

    An amount of up to _____ dollars ($_____) for Fiscal Year _____;
  4. Grant Funding in the following amounts:

    An amount of up to _____ dollars ($_____) for Fiscal Year _____;

4. Notice of Adjustment

4.1 Formula-based or Factor-based Funding Adjustments

4.1.1
Where the amount of any Funding to be provided under this Schedule will change in accordance with a predetermined adjustment factor or formula set out in section 7 (Block Contribution Adjustment Formula) and section 8 (Adjustment Factors) of this Schedule, Canada shall, by Notice of Budget Adjustment, amend this Schedule and Schedule "FED-1" accordingly.

4.2 Cash Flow Change

4.2.1
Where any periodic payment set out in Schedule "FED-1" corresponding to a Program for which any Funding originates from DIAND significantly differs from the Council's anticipated expenditures for the corresponding period, the Council shall promptly notify DIAND and propose adjustments to that Schedule accordingly. DIAND shall notify the Council of acceptance or rejection within thirty (30) days of the Council's notification. Where DIAND accepts the proposed adjustments, DIAND shall attach the adjusted Schedule "FED-1" to DIAND's notice of acceptance. The adjusted Schedule "FED-1" will replace the previous Schedule "FED-1" and this Agreement will be deemed to be amended accordingly.

4.2.2
No total annual amount for any Program set out in Schedule "FED-1" may be changed under subsection 4.2.1.

5. Loan

Note: The following subsections are to be included when the Council is a First Nation and may make loans with funds provided under this Agreement.

5.1
The Council may make loans from Funding transferred under this Schedule provided that:

5.1.1
loans must be directly related to a specific Program and will not be made for personal use; and

5.1.2
the Council's loan policy is in writing and available to Members and Recipients upon request.

Note: The following subsections are to be included when the Council is a Tribal Council and may make loans with funds provided under this Agreement.

5.1
The Council may make loans from Funding transferred under this Schedule provided that:

5.1.1
loans must be directly related to a specific Program and will not be made for personal use; and

5.1.2
the Council's loan policy is in writing and available to Member First Nations, Members and Recipients upon request, and all loans are evidenced by an agreement in writing between the Council and each borrower.

6. Notices

6.1
Any notice, request, report or other communication required to be sent by the Council to the Department of Indian Affairs and Northern Development shall be sent to the following address:
Indian Affairs and Northern Development
Address

Fax Number

7. Block Contribution Adjustment Formula

Note: AANDC Regional formula to be included

8. Adjustment Factor(s)

Note: The region's specific practices, as at agreement entry, are to be described here in accordance with HQ Program instructions (Program T&Cs) for each Programs that the adjustment Factors may apply.




Health Canada Schedule

1. Definitions

In this Schedule,

"Asset" means an asset of any kind other than a Capital Facility, whether tangible or intangible that has financial value and where the asset is:

  1. acquired in whole or in part with any funding provided by Health Canada; and
  2. not consumed or expended in the natural course of its use.

"Capital Facility" means any buildings, premises, fixtures or structures that have been constructed, purchased or maintained in whole or in part with any funds provided by Health Canada under this or any other funding agreement.

Note: "Plan" definition is only to be inserted when Block or Flexible Contribution Funding is included.

"Plan" means the Council's plan for the Programs funded by Flexible Contribution Funding or Block Contribution Funding, prepared by the Council in accordance with section 4.

2. Health Canada Funding

2.1 Amount of Funding

2.1.1
Subject to the terms and conditions of this Agreement, Health Canada shall transfer to the Council:
  1. Set Contribution Funding in the following amounts:

    An amount of up to _____ dollars ($_____) for Fiscal Year _____;
  2. Flexible Contribution Funding in the following amounts:

    An amount of up to _____ dollars ($_____) for Fiscal Year _____;
  3. Block Contribution Funding in the following amounts:

    An amount of up to _____ dollars ($_____) for Fiscal Year _____;

2.2. Notice of Adjustment

2.2.1
Health Canada may, by way of a notice of budget adjustment, adjust the amount of Funding and/or payments under this Health Canada Schedule and Schedule 'FED-1' of this Agreement for any of the existing Programs. A notice of adjustment will have the effect of amending this Schedule and Schedule "FED-1".

2.2.2
Any such notice of adjustment shall:

  1. briefly indicate the nature and purpose of the adjustments (if more than one) in the Funding amount and/or cash flow payments; and
  2. be signed by Health Canada and issued to the Council in accordance with section 22 (Notice) of this Agreement.


2.2.3
A notice of adjustment may be used solely for the purpose of adjusting the amount of funding under this Schedule and/or cash flow payments, without reducing the total amount of funding provided under this Schedule, and must not be used for the purpose of changing the terms and conditions of any of the Programs outlined in this Agreement.

2.3 Reallocation of Funds

2.3.1
The Council may:
  1. upon Health Canada's written approval, reallocate any amount of Set Contribution Funding for Programs falling within the same sub-sub Program Authority under the terms of Schedule HC-1 (Structure of Health Programs) in the same Fiscal Year;
  2. reallocate any amount provided as Flexible Contribution Funding for Programs falling within the same Program Authority under the terms of Schedule HC-1 (Structure of Health Programs);
  3. reallocate any amount provided as Block Contribution Funding among the Programs described in Schedule HC-1 (Structure of Health Programs), provided that mandatory programs identified in Schedule HC-2 (Mandatory Programs and their Reporting Requirements) are delivered; and
  4. not reallocate any Funding provided on account of Non-Insured Health Benefits, Indian Residential Schools Resolution Health Support or Health Services Integration Fund Programs.

3. Reporting

3.1
In addition to the reports identified in section 7.2 (Reporting) of the Agreement, the Council must submit to Health Canada:

3.1.1
interim financial reports; and

3.1.2
interim activity reports

 
for any Programs identified and at the dates outlined in the Schedule of Reporting Requirements and Due Dates.

4. Plan

4.1
The Council has prepared and presented to Health Canada, for the purposes of this Schedule, a Plan dated ________. The Council shall update the Plan to reflect any changes made to its program priorities and objectives. Health Canada has reviewed the Plan and will review any updates or amendments thereof to determine whether the Plan is eligible in whole or in part for Funding, and may require adjustments thereto, prior to the commencement or continuation of Funding.

4.2
In the event of a conflict between a term of the Plan and any term or Schedule of this Agreement, the conflict will be resolved in favour of the terms the Agreement including its Schedules.

5. Capital Facilities and Assets

5.1
The Council acknowledges that it holds the beneficial legal interest in any Capital Facility or Asset acquired with funding provided by Health Canada and acknowledges that Health Canada does not exercise any ownership rights over Capital Facilities or Assets.

5.2
The Council acknowledges that it shall enjoy sole possession and control over any Capital Facility or Asset and shall have the sole legal responsibility for any matters arising from the construction, possession, control, operation or maintenance of the Capital Facility or Asset.

5.3
The Council shall use each Capital Facility or Asset solely for the purposes of providing health programs as set out in the Program Plan or the Plan, unless otherwise agreed to in writing by Health Canada.

5.4
Where Health Canada, its employees or agents require the use of any Capital Facilities or Assets in whole or in part to deliver health programs and services in the Council's community, the Council shall permit such use or take all steps necessary to facilitate or consent to such use. Any such Health Canada use shall be permitted free of rent or charge by the Council in view of the capital or maintenance contributions for such Facilities and Assets by the Minister of Health.

5.5
The Council may not, without the consent of Health Canada:

5.5.1
change the use of any Capital Facility or Asset or permit them to be used for additional uses which are not directly related to fulfilling the terms and conditions of this Agreement or any agreement under which funding for the Capital Facility or Asset was provided;

5.5.2
pledge, mortgage, charge or permit the creation of any security interest, claim or lien against the Capital Facilities and Assets;

5.5.3
undertake significant alteration of the Capital Facilities and Assets; or

5.5.4
sell, exchange, transfer or dispose of such facilities and assets.

6. Notices and Addresses

6.1
Any notice, request, report or other communication required to be sent by the Council to the Department of Health at the following address:

Department of Health
Address

Fax Number

Note: "Plan" definition is only to be inserted when Block or Flexible Contribution Funding is included.

7. Official Languages

7.1
In accordance with any instructions issued by Health Canada, Council agrees, to provide any or all of the following in relation to the Programs carried out under this Agreement in both of Canada's official languages (English and French): (i) information; (ii) signage; (iii) oral and written communications; (iv) services; and (v) opportunities for official language minorities to participate in activities related to the Funding.



Schedule "HC-1" Structure of Health Programs

Schedule "HC-1" Structure of Health Programs is available upon request.




Schedule "HC-2" Mandatory Programs and their Reporting Requirements

Programs Information Required Method/Frequency of Reporting
Communicable Disease Control Immunization Levels (by age, sex, antigen). Annual according to the federal or provincial immunization schedule identified in the Plan
Report on communicable disease as required by Provincial Regulation; including contact-tracing and follow-up. Notification to Province and Health Canada within 24 hours of diseases with epidemic potential.

Annual Summary

 
Environmental Health Total number and percentage of facilities meeting Provincial/Federal health and environmental standards; food services; water supply; sewage and garbage; pollution; and hazardous substances. Annual Summary

Notification within twenty-four (24) hours of environmental hazards or conditions which may have any significant environmental impact; including steps taken to remedy the situation.

 
Treatment Services Total number of patients seen in diagnostic categories as specified in the Plan. Annual Summary

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