À noter : Les accords sont disponibles uniquement dans la langue de signature.
WHEREAS:
the Shuswap First Nation Goods and Services Tax Law imposes a value-added tax within the lands described opposite the name of the Shuswap First Nation in Schedule 1 to the First Nations Goods and Services Tax Act (Canada);
each of the FNPs has separately enacted a law imposing a value-added tax on its reserves and has entered into a bilateral FNGST administration agreement with Canada in respect of its tax law and those agreements continue in effect;
section 5 of the Shuswap First Nation Goods and Services Tax Law provides that the Chief of SFN, with the approval and authorization of the SFN Council, may enter, on behalf of the SFN, into an administration agreement with Canada in relation to that tax;
the SFN Council has approved and authorized the Chief to enter into this agreement;
the Parties wish to enter into an agreement in respect of the value-added tax imposed under the Shuswap First Nation Goods and Services Tax Law on the St. Mary’s Reserve #1A, which was set aside for the joint use and benefit of all of the FNPs;
subsection 5(2) of the First Nations Goods and Services Tax Act (Canada) provides that the Minister of Finance, with the approval of the Governor in Council, may enter into an administration agreement in respect of a value-added tax imposed under a first nation law; and
the Minister of Finance has the approval of the Governor in Council to enter into this agreement;
NOW THEREFORE, in consideration of the terms, exchange of promises, covenants and conditions contained in this agreement, the Parties agree as follows:
Interpretation
1. In this agreement:
- “Auditor General” means the Auditor General of Canada and includes, where circumstances require, any officer or class of officer authorized by the Auditor General of Canada;
- “Chief” means the Chief of the SFN and includes the Deputy Chief, if any, when acting as the Chief;
- “Deferred Amount” means the deferred amount described in clause 22.
- “Entitlement Year” means a calendar year throughout which this agreement is in effect or, if the agreement is in effect during only a portion of a calendar year, that portion of the calendar year;
- “Excise Tax Act” means the Excise Tax Act, R.S.C., c. E-15;
- “Federal Act” means the First Nations Goods and Services Tax Act, enacted by S.C.2003, c. 15, s. 67;
- “First Nation Law” means the Shuswap First Nation Goods and Services Tax Law;
- “FNGST” means the value-added tax imposed under the First Nation Law within the Shared Reserve;
- “Member” means a person whose name is listed in, or who is entitled to have his or her name listed in, the official band list for one of the FNPs that is maintained by either the Department of Indian Affairs and Northern Development or that FNP;
- “Minister” means the Minister of Finance of Canada and includes, where circumstances require, the Deputy Minister or any officer or class of officer authorized by the Minister of Finance;
- “Minister of National Revenue” means the Minister responsible for the Canada Revenue Agency and includes, where circumstances require, the Commissioner of Revenue or any officer or class of officer authorized by the Minister of National Revenue;
- “Net Tax Attributable”, to the SFN for an Entitlement Year, means the amount by which the estimate of Tax Attributable to the SFN for that Entitlement Year exceeds Canada’s share, if any, of that estimate of Tax Attributable to the SFN determined in accordance with Annex B;
- “Non-Member” means a person who is not a Member;
- “Prior Estimate Adjustment” means the difference obtained by subtracting from a re-estimate of Net Tax Attributable for an Entitlement Year the immediately preceding estimate or re-estimate of the Net Tax Attributable for that Entitlement Year;
- “Shared Reserve” means the St. Mary’s Reserve #1A; and
- “Tax Attributable” to the SFN has the same meaning as in section 5 of the Federal Act in respect of the Shared Reserve as if the Shared Reserve were deemed to be the only lands of the SFN.
2. Unless a contrary intention appears in this agreement, words and expressions used in this agreement but not defined in clause 1 have the same meaning as in the Federal Act, or if the meaning does not exist in the Federal Act, have the meaning assigned by subsection 123(1) of the Excise Tax Act.
3. In this agreement, where a reference is made to an Act of Parliament, the First Nation Law, or any other first nation law that meets the description set out in subsection 11(1) or 12(1) of the Federal Act, or regulations made under the Act of Parliament, the First Nation Law or that other law, the reference shall be read as a reference to that Act of Parliament, the First Nation Law or that other law, or those regulations, as amended from time to time.
Covenants by Canada
4. Canada agrees that the tax power of the SFN provided for in subsection 4(1) of the Federal Act applies in respect of the FNGST and other amounts imposed under the First Nation Law while this agreement is in effect and of amounts, other than the FNGST, imposed under that law after this agreement ceases to have effect that relate to amounts imposed while this agreement was in effect.
5. Canada shall act as the agent for the SFN in respect of the administration and enforcement of the First Nation Law, including the collection of FNGST and other amounts imposed under that law while this agreement is in effect and of amounts, other than the FNGST, imposed under that law after this agreement ceases to have effect that relate to amounts imposed while this agreement was in effect.
6. Canada shall account for the amounts collected under the First Nation Law on behalf of the SFN by estimating the associated revenues and Canada shall make and account for remittances to the SFN in accordance with this agreement.
7. Canada and its agents and subservient bodies shall comply with the obligations imposed on them under the First Nation Law, including the obligation to pay and account for the amounts imposed on them under the First Nation Law as if that law were applicable to Canada.
Covenants by the SFN and Other FNPs
8. The SFN agrees that the obligations, authorities, rights and privileges imposed upon or granted to a person under the First Nation Law shall not depend on whether that person is a Member or a Non-Member.
9. The SFN agrees that the First Nation Law shall be made under the tax power in section 4 and consistent with section 11 of the Federal Act. The SFN shall ensure that the First Nation Law provides the Minister of National Revenue with sufficient authority to administer and enforce that law in accordance with this agreement, including the authority to collect the FNGST and other amounts imposed under that law.
10. The SFN shall provide the Minister in a timely manner with a certified true copy of:
- (a) the First Nation Law, following its enactment; and
- (b) any amendment to the First Nation Law, following its enactment.
11. The FNPs and their agents and subservient bodies shall comply with Part IX of the Excise Tax Act, the Federal Act, the First Nation Law and any other first nation law that meets the description set out in subsection 11(1) or 12(1) of the Federal Act.
12. The FNPs and their agents and subservient bodies shall pay, and account for the payment of, amounts imposed under Part IX of the Excise Tax Act, the Federal Act, the First Nation Law or any other first nation law that meets the description set out in subsection 11(1) or 12(1) of the Federal Act, except if the amounts are not payable by reason of a separate agreement given effect under an Act of Parliament.
13. The FNPs agree that the Shuswap First Nation Goods and Services Tax Law applies on the Shared Reserve.
Revenue Estimation
14. The Parties agree to use data outlined in Annex A and Annex B in order to prepare the estimates and re-estimates described below. The Parties recognize, however, that the data available may not, in all instances, be optimal.
15. Prior to the beginning of each particular Entitlement Year, the Minister shall make an estimate for that Entitlement Year of the Tax Attributable to the SFN in accordance with the provisions in Annex A.
16. The sharing, if any, between the SFN and Canada of the amount estimated as Tax Attributable to the SFN for each Entitlement Year will be calculated in accordance with the provisions in Annex B.
17. An estimate of Net Tax Attributable for each particular Entitlement Year shall be made by subtracting from the estimate of the Tax Attributable to the SFN determined under Annex A for the particular Entitlement Year the estimate of Canada’s share, if any, determined under Annex B for that particular Entitlement Year.
18. Not later than December 31 of the calendar year that includes the particular Entitlement Year, and not later than December 31 of each of the four calendar years following the particular Entitlement Year, the Minister shall annually re-estimate, using the procedure set out in clause 17, the Net Tax Attributable to the SFN for that particular Entitlement Year for the purpose of calculating in each of those years the Prior Estimate Adjustment for that particular Entitlement Year.
19. The Net Tax Attributable for a particular Entitlement Year shall be final and no further adjustments shall be made following the commencement of remittances incorporating the Prior Estimate Adjustment in respect of the fifth re-estimate for that year, subject to the Minister incorporating any adjustments that may be required to the fifth re-estimate as set out in the report signed by the Auditor General that is referred to in clause 30.
Remittances
20. Subject to Annex C, the Minister shall remit to the SFN on a monthly basis positive amounts in respect of a particular Entitlement Year determined by the formula
-
[(A – B) / D] + [C / D]
- where
- A is the amount estimated under clause 15 for that particular Entitlement Year;
- B is the amount of Canada’s share determined under clause 16 for that particular Entitlement Year;
- C is the sum of the most recent Prior Estimate Adjustments in respect of the five Entitlement Years immediately preceding that particular Entitlement Year or, if there are fewer than five Entitlement Years preceding the particular Entitlement Year, in respect of all the Entitlement Years preceding the particular Entitlement Year; and
- D is the number of months anticipated to be in that particular Entitlement Year.
21. If the result of the formula in clause 20 in respect of a particular Entitlement Year is negative, that amount multiplied by the number of months anticipated in the formula to be in that Entitlement Year is a debt due to Canada payable by the SFN, subject to clause 22, within that Entitlement Year.
22. If the sum of the Prior Estimate Adjustments in the formula in clause 20 results in a reduction to the remittances in respect of a particular Entitlement Year that is equal to or greater than twenty percent of Net Tax Attributable to the SFN for that year, the FNPs may defer the repayment of a portion, agreed to by the Parties, (hereinafter referred to as the “Deferred Amount”) of the total of the Prior Estimate Adjustments and, unless otherwise agreed by the Parties, the Deferred Amount will be repaid to Canada in equal shares by the FNPs during the two Entitlement Years following the particular Entitlement Year.
23. Canada shall retain as its property an amount imposed under the First Nation Law if that amount:
- (a) is not Tax Attributable to the SFN; or
- (b) is included in Canada’s share of the estimate of Tax Attributable to the SFN in accordance with clause 16.
24. Prior to each particular Entitlement Year, the Assistant Deputy Minister or any authorized officer or class of officer of the Tax Policy Branch of the federal Department of Finance shall provide the FNPs with a written statement for review before payments commence in respect of that Entitlement Year that includes the following information:
- (a) the estimated Tax Attributable to the SFN for that year, as determined under clause 15;
- (b) Canada’s share of the estimated Tax Attributable to the SFN for that year, as determined under clause 16;
- (c) the Prior Estimate Adjustments included in determining the remittances for that year;
- (d) Deferred Amounts, if any, included in determining the remittances for that year;
- (e) the number that, for the purposes of Annex B, Canada intends to use to represent the population of relevance for the Shared Reserve for that year;
- (f) the estimated amount for that Entitlement Year of the Net Tax Attributable that is irrevocably assigned pursuant to Annex C by the SFN to each of the other FNPs;
- (g) the prior estimate adjustments of the assigned amounts; and
- (h) the remittances to each of the FNPs for that year.
25. The first remittance to the SFN and the first remittance of amounts assigned by the SFN, pursuant to Annex C, to the other FNPs in respect of a particular Entitlement Year shall be made on or before the last working day of the month following the first month of that particular Entitlement Year. Subsequent remittances to the FNPs in respect of the particular Entitlement Year shall be made on or before the last working day of each month thereafter for the number of months equal to one less than the number of months in that particular Entitlement Year.
26. The Parties agree that, in respect of FNGST that is imposed while this agreement is in effect, the Minister may pay to a person any refund, rebate or other amount that is payable in accordance with the First Nation Law.
27. If no amount is held on behalf of the SFN from which payment under clause 26 may be made in accordance with this administration agreement, or the amount of the payment exceeds the amount so held, Canada agrees to make the payment as a recoverable advance and the SFN agrees that the advance shall be recovered against amounts of FNGST subsequently collected on behalf of the SFN.
28. In the event that this agreement is terminated, unless the Parties agree otherwise:
- (a) the remittance in the month in which the agreement is terminated will remain the same as set out in the last written statement provided under clause 24 prior to termination;
- (b) if the sum of the Prior Estimate Adjustments for the purpose of determining the remittances for the particular Entitlement Year that ended upon the termination of the agreement is positive, the Minister, in making the remittance for the month following termination, shall prorate that portion of the remittance that relates to the Net Tax Attributable to the SFN for that Entitlement Year by multiplying that portion by the ratio of the number of days that this agreement was in effect during the month in which the agreement was terminated to the total number of days in that month;
- (c) if the sum of the Prior Estimate Adjustments for the purpose of determining the remittances for the particular Entitlement Year that ended upon the termination of the agreement is negative, the Minister, in making the remittance for the month following termination, shall prorate the remittance by multiplying it by the ratio of the number of days that this agreement was in effect during the month in which the agreement was terminated to the total number of days in that month;
- (d) in the second calendar month following termination, the parties agree to settle any accounts then outstanding in respect of the sum of Prior Estimate Adjustments considered in determining the remittances for the particular Entitlement Year that ended upon the termination of the agreement and to settle the total outstanding Deferred Amounts as follows:
- (i) where the outstanding amount of the sum of the Prior Estimate Adjustments calculated in respect of the remittances for the Entitlement Year that ended upon the termination of this agreement, minus the total outstanding Deferred Amounts, is positive, the Minister shall remit that amount to the FNPs forthwith; or
- (ii) where the outstanding amount of the sum of the Prior Estimate Adjustments calculated in respect of the remittances for the Entitlement Year that ended upon the termination of this agreement, minus the total of any outstanding Deferred Amounts, is negative, the FNPs shall repay that amount to Canada by making equal monthly payments for a period not exceeding thirty six months beginning in the second calendar month following termination;
- (e) no later than December 31 of the calendar year that includes the particular Entitlement Year in which the agreement is terminated and no later than December 31 of each of the four calendar years following that calendar year, the Minister shall annually calculate and provide a written statement to the FNPs identifying Prior Estimate Adjustments for the Entitlement Years that would have remained open for re-estimation in each of those calendar years if the agreement had continued in effect;
- (f) when calculating the first Prior Estimate Adjustment for the particular Entitlement Year that ended with the termination of the agreement, the Minister shall prorate the first estimate of Net Tax Attributable to the SFN by multiplying the amount of the estimate by the ratio of the actual number of days in that particular Entitlement Year to the number of days anticipated to be in that Entitlement Year at the time of the first estimate;
- (g) if the sum of the Prior Estimate Adjustments in a calendar year subsequent to the termination of this agreement is positive, the Minister shall remit forthwith to each of the FNPs its share pursuant to Annex C of the amount of that sum;
- (h) if the sum of the Prior Estimate Adjustments in a calendar year subsequent to the termination of this agreement is negative, the FNPs shall pay equal shares of the amount of that sum to Canada by making equal monthly payments for a period not exceeding thirty six months beginning in the calendar month following the month when the statement was provided by the Minister to the FNPs setting out the sum of those adjustments; and
- (i) the provisions of Annex C continue to apply as required for the purpose of making estimates, re-estimates, adjustments and remittances.
Reporting
29. The statements provided under clause 24 and subclause 28(e), and the report provided under clause 30, shall be the only statements or reports required to be provided to the FNPs by Canada in respect of amounts collected in accordance with this agreement.
30. The Minister shall annually provide the FNPs with a report, signed by the Auditor General, concerning the determination of amounts as provided for in this agreement.
31. The procedures carried out to prepare the Auditor General’s report will be determined by the Auditor General and will constitute the only procedures conducted by Canada with respect to the reporting obligations in connection with the determination of amounts as provided for in this agreement. The FNPs agree that they have no right to inspect the books and records of Canada in connection with this agreement.
32. Unless the Parties agree otherwise, if the Auditor General’s report indicates that the estimate or the most recent re-estimate in respect of an Entitlement Year should be adjusted, that adjustment shall be incorporated into the next re-estimate in respect of that Entitlement Year.
Administration
33. The Parties agree that the Minister of National Revenue shall have and may exercise all the powers of the SFN relating to the administration and enforcement of the First Nation Law, including the collection of the FNGST and other amounts imposed under that law while this agreement is in effect and the collection of amounts, other than the FNGST, imposed under that law after this agreement ceases to have effect that relate to amounts imposed while this agreement was in effect.
34. The SFN agrees that the Minister of National Revenue shall be the administrative authority in respect of the FNGST, including all interpretations, assessments, determinations, decisions, and any other matter related to administration, collection or enforcement.
35. Canada shall administer the First Nation Law free of charge for the SFN and Canada shall pay the costs, charges or expenses (including amounts in respect of prosecutions or other legal proceedings, other than amounts referred to in clause 37) that are incurred by Canada in the administration and enforcement of the First Nation Law and the collection of the FNGST and other amounts imposed under that law.
36. Canada shall retain interest and penalties that are imposed under the First Nation Law and collected by the Minister of National Revenue.
37. Unless otherwise agreed by the Parties, the FNPs shall pay their own costs, charges and expenses incurred in relation to litigation to which any FNP becomes a party, either voluntarily or because a party other than Canada requires it, relating to the validity of this agreement, the Federal Act or the First Nation Law.
38. If this agreement ceases at any time to have effect, the Minister of National Revenue shall continue after that time to assess, collect or pay, as the case requires, amounts payable under the First Nation Law in respect of the period in which this agreement was in effect and amounts, other than the FNGST, imposed under that law after this agreement ceases to have effect that relate to amounts imposed while this agreement was in effect.
39. The Minister of National Revenue may provide to the SFN information acquired in the administration and enforcement of the First Nation Law or, subject to section 295 of the Excise Tax Act, Part IX of the Excise Tax Act. Such information shall be provided free of charge.
40. The FNPs, subject to any applicable confidentiality or privacy obligations shall provide to Canada, free of charge, information that they acquire that could assist in the administration and enforcement of the First Nation Law, the collection of amounts payable under that law, or the estimation of payments to be made under this agreement. Canada agrees that any information made available by the FNPs will not be used for any purpose other than the purpose for which it was provided.
41. Except in its capacity as a registrant or a person required to pay or entitled to receive amounts under the First Nation Law, the FNPs shall accept as final and binding all interpretations, determinations, assessments, decisions, and other actions made or taken by the Minister of National Revenue for the purposes of the First Nation Law.
42. For the purposes of section 8 of the Federal Act, the Parties agree that the authorized body, as defined in subsection 2(1) of the First Nation Law, is authorized to certify the First Nation Law to be a true copy and evidence that the law was duly enacted by the SFN.
SFN Law
43. Canada shall notify the SFN and the other FNPs in writing that the First Nation Law requires amendment, where, in the opinion of the Minister, the First Nation Law does not:
- (a) comply with this agreement;
- (b) provide the Minister of National Revenue with authority sufficient to administer and enforce that law and to collect amounts imposed under that law;
- (c) admit of sufficient uniformity as between the administration and enforcement of Part IX of the Excise Tax Act and the First Nation Law; or
- (d) respect the covenants set out in clause 8 or clause 9.
44. Upon receipt of the notice referred to in clause 43 the Chief of the SFN agrees to propose to the governing body an amendment to the First Nation Law forthwith.
45. The Parties agree that if the First Nation Law is not amended to rectify the deficiencies identified in the notice referred to in clause 43, Canada may terminate this agreement:
- (a) forthwith, where that notice provides that the First Nation Law does not respect the covenants set out in clause 8 or 9; or
- (b) in any other case, within twelve months following receipt of the notice.
Repeal of First Nation Law
46. Unless the Minister agrees otherwise, the SFN shall provide the Minister and the other FNPs with at least twelve months notice of the date on which it intends to repeal the First Nation Law, and shall provide the Minister with notice that the First Nation Law has been repealed within 10 days following the repeal.
Dispute Resolution
47. In the event of a dispute between Canada and the FNPs arising out of or in connection with this agreement, other than disputes in respect of clause 8, 9, 41, 44 or 45 of this agreement, the Parties shall follow the procedure set out in subclauses (a) through (d) before pursuing other legal remedies.
- (a) Within thirty days of the Parties receiving a written notice of a dispute under this agreement, a first meeting will be held to attempt in good faith to settle the dispute.
- (b) If, within sixty days after the first meeting, the Parties have failed to resolve the dispute, they will submit the dispute to a jointly selected mediator and the parties to the dispute shall share equally the costs of that mediation.
- (c) If, after ninety days of the first meeting, the Parties are unable to agree on the choice of a mediator, the matter will be referred to a judge of the Supreme Court of British Columbia who will select a mediator.
- (d) Once a mediator is selected, the parties to the dispute agree to participate in good faith in the mediation process and mediation will continue until the matter is resolved or the mediator provides in writing to the parties to the dispute the opinion that the matter cannot be resolved through mediation.
48. The Parties agree that a decision arising from the dispute resolution process under clause 47 concerning a dispute in respect of the amount of money due to a Party for an Entitlement Year shall be implemented, notwithstanding clause 19, if written notice of the dispute is provided at any time during the period that begins at the beginning of the Entitlement Year and ends at the end of the sixth month in the fifth calendar year following the Entitlement Year.
49. The Parties may mutually determine time periods other than those referred to in subclauses 47(a) through (d).
Amendment
50. Subject to any applicable approvals, authorizations or legislative requirements, the Parties may, in writing, amend or vary this agreement.
Termination
51. The Parties may mutually agree to terminate this agreement at any time on such terms as may be agreed upon by the Parties.
52. Any of the FNPs may terminate this agreement by giving the Minister and the other FNPs not less than twelve months written notice of its intention to terminate the agreement, including the date upon which this agreement shall end.
53. Except where clause 45 applies, Canada may terminate this agreement by giving the FNPs not less than twelve months written notice of Canada’s intention to terminate the agreement, including the date upon which this agreement shall end.
No Assignment
54. Other than an assignment pursuant to Annex C, this agreement may not be assigned, either in whole or in part, by any Party.
Saving
55. Nothing in this agreement shall limit or restrict, or be construed as limiting or restricting, the right to alter or vary the Federal Act or Part IX of the Excise Tax Act.
56. Nothing in this agreement shall constitute or be construed as constituting an undertaking by Canada to collect the FNGST or any other amount payable under the First Nation Law, or to take any action with respect to the collection of those amounts, where, in the opinion of the Minister, a doubt exists that the SFN has provided sufficient statutory or other authority for the imposition or collection of those amounts.
57. Where Canada cannot collect the FNGST or any other amount payable under the First Nation Law by reason of there being, in the opinion of the Minister, doubtful authority to do so, the amount that, in the opinion of the Minister, Canada has thereby failed to collect but that has been taken into account in determining a remittance to the FNPs made under this agreement may be recovered by Canada as a debt due to Canada by the FNPs, notwithstanding that such remittances were made to the FNPs as if there were sufficient authority.
Term
58. The effective date of this agreement is the fourteenth day following the latter of:
- (a) the date on which this agreement is duly executed by the Parties; and
- (b) the latest of the following days:
- (i) the day on which the bilateral FNGST agreement between Canada and the AFN is duly executed by the parties to that agreement;
- (ii) the day on which the bilateral FNGST agreement between Canada and the LKIB is duly executed by the parties to that agreement;
- (iii) the day on which the bilateral FNGST agreement between Canada and the SFN is duly executed by the parties to that agreement;
- (iv) the day on which the bilateral FNGST agreement between Canada and the SMIB is duly executed by the parties to that agreement; or
- (v) the day on which the bilateral FNGST agreement between Canada and the TPIB is duly executed by the parties to that agreement.
59. This agreement shall end:
- (a) in the case of termination in accordance with clause 51, on the date agreed to by the Parties;
- (b) in the case of termination by any FNP in accordance with clause 52, on the date specified in the notice given by that FNP;
- (c) in the case of termination by Canada in accordance with clause 53, on the date specified in the notice given by Canada; and
- (d) in the case of termination by Canada in accordance with clause 45, on the date specified in the notice referred to in that clause; and
- (e) on the earliest date of termination of any of the following bilateral FNGST agreements:
- (i) the bilateral FNGST agreement between the Government of Canada and the AFN;
- (ii) the bilateral FNGST agreement between the Government of Canada and the LKIB;
- (iii) the bilateral FNGST agreement between the Government of Canada and the SFN;
- (iv) the bilateral FNGST agreement between the Government of Canada and the SMIB; or
- (v) the bilateral FNGST agreement between the Government of Canada and the TPIB.
60. This agreement may be executed in counterparts each of which so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument and this agreement shall be effective on the date set out in clause 58. Facsimile signatures shall be accepted the same as original signatures.
Signed on, this day of , 2007, for the Shuswap First Nation, the signatory being authorized to do so:
Originally signed by:
Chief Paul Sam
Signed on, this day of , 2007, for the Government of Canada, the signatory being authorized to do so:
Originally signed by:
Minister of Finance
Signed on this day of , 2007, for the Akisqnuk First Nation, the signatories being authorized to do so as a quorum of three:
Originally signed by:
Chief Wilfred Teneese
Councillor Jesse Nicholas
Councillor Samantha Sam
Councillor Lorne Shovar
Councillor Beatrice Stevens
Signed on this day of , 2007, for the Lower Kootenay Indian Band, the signatories being authorized to do so as a quorum of three:
Originally signed by:
Chief Christopher Luke
Councillor Anne Jimmie
Councillor M. Jason Louie
Councillor Joseph Pierre
Councillor Arlene Teasley
Signed on this day of , 2007, for the St. Mary’s Indian Band, the signatories being authorized to do so as a quorum of three:
Originally signed by:
Chief Sophie Pierre
Councillor Remus Clement
Councillor Agnes McCoy
Councillor Joseph Pierre
Councillor Jim Whitehead
Signed on this day of , 2007, for the Tobacco Plains Indian Band, the signatories being authorized to do so as a quorum of three:
Originally signed by:
Chief Mary Mahseelah
Councillor Rob Eneas
Councillor Dan Gravelle
Councillor Robin D. Gravelle
Councillor Robert Luke
Annex A – Detailed Revenue Estimation Method
Tax Attributable to the Shared Reserve
1. In this annex:
- “ACP” means the average taxable consumption of the population living on the Shared Reserve, divided by the average taxable consumption of the population living in British Columbia, as determined in accordance with clause 3 of this Annex;
- “Alpha Value” for an industry in a province means the proportion, as determined by the Department of Finance, of value-added tax collectible in respect of final, immediate consumption of goods and services relative to the total value-added tax collectible by permanent establishments in that industry in that province;
- “Census” means a census of population conducted by Statistics Canada;
- “Final Estimate” means an estimate that is not subject to re-estimation or adjustment and that is based on data that are published as final data, or are otherwise deemed to be final, by the agency that provides the data;
- “GST Credit” means an amount equivalent to the aggregate of all amounts that are deemed, under subsection 122.5(3) of the Income Tax Act, to have been paid in respect of a calendar year by individuals that are, for the purposes of that Act, resident in British Columbia;
- “Immediate Consumption” means the portion of final consumption that is attributable to consumption at the place of supply, as determined by means of a commodity output vector prepared by the Department of Finance;
- “Interim Estimate” means an estimate that is subject to re-estimation or adjustment and that incorporates data other than final data or data that are deemed to be final;
- “POP” means the number of individuals of age 15 years and older living on the Shared Reserve divided by the total population of individuals of age 15 years and older living in British Columbia, as determined in accordance with clause 4 of this annex; and
- “Residence-Based Consumption” means the portion of final consumption, as determined by means of a commodity output vector prepared by the Department of Finance, that occurs in residences that are situated on the Shared Reserve.
2. An Interim Estimate or Final Estimate of Tax Attributable to the Shared Reserve for an Entitlement Year shall be determined as follows:
ETAShared Reserve = (CE R-BCShared Reserve + CE ICShared Reserve + ExemptShared Reserve + HousingShared Reserve) * (1-LIA) * (DEY/DCY)
- where
- ETAShared Reserve is an Interim Estimate or Final Estimate of Tax Attributable to the Shared Reserve.
- CE R-BCShared Reserve is an estimate of Tax Attributable associated with Residence-Based Consumption occurring on the Shared Reserve as determined in accordance with clause 5 of this annex;
- CE ICShared Reserve is an estimate of Tax Attributable associated with Immediate Consumption occurring on the Shared Reserve, as determined in accordance with clause 7 of this annex;
- ExemptShared Reserve is an estimate of Tax Attributable associated with consumption or use in the provision of exempt supplies by establishments located on the Shared Reserve, as determined in accordance with clause 13 of this annex;
- HousingShared Reserve is an estimate of Tax Attributable associated with residential construction occurring on the Shared Reserve, as determined in accordance with clause 15 of this annex;
- LIA is the proportion that the GST Credit for British Columbia for the calendar year represents of the net amount of GST for British Columbia for that calendar year, as determined in accordance with clauses 17 and 18 of this annex;
- DEY is the number of days in the Entitlement Year; and
- DCY is the number of days in the calendar year that includes the Entitlement Year.
3.
- (a) Except as otherwise provided in this clause, an Interim Estimate or Final Estimate of ACP for an Entitlement Year shall be based on data obtained from a Census.
- (b) For the purpose of making an Interim Estimate of ACP for an Entitlement Year, the FNPs collectively and Canada may agree to use data from one or more data sources in addition to or as a substitute for data obtained from a Census.
- (c) The data obtained from a Census shall, subject to subclause (d), be used for determining the Final Estimate of ACP for all Entitlement Years in the period that begins two years before and ends two years after the year in which that Census is conducted.
- (d) If the FNPs collectively demonstrate to the satisfaction of the Minister or the Minister deems that there are exceptional circumstances in respect of an Entitlement Year whereby ACP determined on the basis of data obtained from a Census as described in subclause (c) does not result in a reasonable approximation of the income of individuals living on the Shared Reserve relative to the income of individuals living in British Columbia for the five-year period that begins two years before and ends two years after the year in which that Census is conducted, the FNPs collectively and Canada may agree to use other reliable and verifiable data to determine the Final Estimate of ACP for that Entitlement Year.
- (e) As a transitional measure, the estimate of ACP used in making the first Interim Estimate of CE R-BCShared Reserve, ExemptShared Reserve and HousingShared Reserve for each of the first five Entitlement Years covered by this agreement shall not be subject to re-estimation or adjustment.
- (f) In deciding whether the use of data other than data obtained from a Census would be more appropriate for estimating ACP, consideration shall be given to:
- (i) response bias and measurement errors affecting data quality;
- (ii) frequency of the collection of the data;
- (iii) sample representativeness of the population;
- (iv) verifiability by third parties;
- (v) availability at reasonable cost;
- (vi) consistency of data sources with those used in agreements with other First Nations that are similar to this agreement; and
- (vii) the extent to which the populations used in producing the data correspond to or reflect the populations on which POP is based.
4.
- (a) Except as otherwise provided in this clause, interim and final estimates of POP for an Entitlement Year shall be based on data obtained from a Census.
- (b) For the purpose of making an Interim Estimate of POP for an Entitlement Year, the FNPs collectively and Canada may agree to use data from one or more data sources in addition to or as a substitute for data obtained from a Census.
- (c) The data obtained from a Census shall, subject to subclause (d), be used for determining the Final Estimate of POP for all Entitlement Years in the period that begins two years before and ends two years after the year in which that Census is conducted.
- (d) If the FNPs collectively demonstrate to the satisfaction of the Minister or the Minister deems that there are exceptional circumstances in respect of an Entitlement Year whereby POP determined on the basis of data obtained from a Census as described in subclause (c) is not in a reasonable approximation of the average share for the Shared Reserve of the population of individuals living in British Columbia for the five-year period that begins two years before and ends two years after the year in which that Census is conducted, the FNPs collectively and Canada may agree to use other reliable and verifiable data to determine the Final Estimate of POP for that Entitlement Year.
- (e) As a transitional measure, the estimate of POP used in making the first Interim Estimate of CE R-BCShared Reserve, ExemptShared Reserve and HousingShared Reserve for each of the first five Entitlement Years covered by this agreement shall not be subject to re-estimation or adjustment.
6.
- (a) For the purpose of making an Interim Estimate of CE R-BC for an Entitlement Year, the FNPs collectively and Canada agree that the net amount of value-added tax associated with Residence-Based Consumption for that Entitlement Year in British Columbia shall be based on a Residence-Based Consumption vector supplied by the Department of Finance and the preliminary Provincial Input-Output Tables (“PIOTs”) prepared by Statistics Canada for the calendar year that includes that Entitlement Year or,where preliminary PIOTs are not available for the calendar year that includes the Entitlement Year, on preliminary or final PIOTs for other years together with any adjustments that the Minister believes will yield a more accurate estimate of the net amount of value-added tax associated with Residence-Based Consumption in British Columbia for that Entitlement Year.
- (b) For the purpose of making a Final Estimate of CE R-BC for an Entitlement Year, the FNPs collectively and Canada agree that the net amount of value-added tax associated with Residence-Based Consumption for that Entitlement Year in British Columbia shall be based on a Residence-Based Consumption vector supplied by the Department of Finance and the final PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year.
8.
- (a) For the purpose of making an Interim Estimate for an Entitlement Year of that portion of GAMETAXShared Reserve representing the value-added tax that is self-assessed by casinos situated on the Shared Reserve, the Parties agree to use the data that are published by the British Columbia Lottery Corporation in respect of the provincial fiscal years preceding the Entitlement Year together with any adjustments that the Minister believes will yield a more accurate estimate of the net amount of value-added tax self-assessed by those casinos for that Entitlement Year.
- (b) For the purpose of making a Final Estimate for an Entitlement Year of that portion of term GAMETAXShared Reserve representing the value-added tax that is self-assessed by casinos situated on the Shared Reserve, the Parties agree to use the data that are published by the British Columbia Lottery Corporation in respect of the two fiscal years that include the twelve-month period that corresponds to the Entitlement Year, with adjustments as necessary for representing value-added tax associated with the Entitlement Year.
9.
- (a) For the purpose of making an Interim Estimate for an Entitlement Year of that portion of term GAMETAXShared Reserve representing the unrecoverable value-added tax that is paid by casinos situated on the Shared Reserve, the Parties agree to use PIOTs and the data that are published by the British Columbia Lottery Corporation in respect of the calendar years and provincial fiscal years, respectively, preceding the Entitlement Year together with any adjustments that the Minister believes will yield a more accurate estimate of the net amount of unrecoverable value-added tax for that Entitlement Year.
- (b) For the purpose of making a Final Estimate for an Entitlement Year of that portion of term GAMETAXShared Reserve representing the unrecoverable value-added tax that is paid by casinos situated on the Shared Reserve, the Parties agree to use PIOTs and the data that are published by the British Columbia Lottery Corporation in respect of the twelve-month period that corresponds to the Entitlement Year, with adjustments as necessary for representing value-added tax associated with the Entitlement Year.
10.
- Unless otherwise agreed by the Parties, an Interim Estimate or Final Estimate of the self-assessed value-added tax or unrecoverable value-added tax paid by the casinos operating on the Shared Reserve, shall be determined as the product of total self-assessed value-added tax or unrecoverable value-added tax, respectively, reported for all casinos in British Columbia, and the proportion that the revenues reported for the casinos operating on the Shared Reserve comprise of the total revenues reported for all casinos operating in British Columbia.
11.
- The Parties agree that for the purposes of determining aj, Statistics Canada or the Department of Finance will perform the calculations based on interim or final PIOTs for the calendar year that includes the Entitlement Year under consideration.
12.
- a) The Parties agree that prior to October 31 of each Entitlement Year, the FNPs collectively will provide to the Department of Finance a notice about permanent establishments operating on the Shared Reserve. The information in the notice will include names, addresses and, where possible, GST registration numbers for the permanent establishments that are currently operating on the Shared Reserve, an identification of any permanent establishments that ceased operating on the Shared Reserve subsequent to the provision by the FNPs of their previous notice and an identification of any permanent establishments that commenced operations on the Shared Reserve subsequent to the provision of their previous notice.
- b) The Department of Finance will provide each notice from the FNPs to Statistics Canada, which will then classify the operating permanent establishments listed in the notice according to an industry classification system, such as the system of national accounts industrial classifications.
- c) Canada will estimate the total value-added tax collectible by permanent establishments operating on the Shared Reserve using one or more of the following data sources: current Statistics Canada survey databases, PAYDAC files, GST registrant files, or GIFI files. In the absence of tax data for a permanent establishment, Canada will estimate value-added tax collectible on the basis of business profiling.
14.
- The Parties agree that:
- (a) for the purpose of making an Interim Estimate of Exempt for an Entitlement Year, the net amount of value-added tax associated with exempt supplies for that Entitlement Year in British Columbia shall be based on preliminary PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year or,where preliminary PIOTs are not available for the calendar year that includes the Entitlement Year, on preliminary or final PIOTs for other years together with any adjustments that the Minister believes will yield a more accurate estimate of the net amount of value-added tax associated with exempt supplies in British Columbia for that Entitlement Year; and
- (b) for the purpose of making a Final Estimate of Exempt for an Entitlement Year, the net amount of value-added tax associated with exempt supplies for that Entitlement Year in British Columbia shall be based on the final PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year.
16.
- An Interim Estimate or Final Estimate of Housing for each Entitlement Year will be determined by Statistics Canada.
17.
- For the purpose of making an Interim Estimate of LIA for an Entitlement Year, the Parties agree that:
- (a) the net amount of GST for British Columbia for that Entitlement Year shall be based on preliminary PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year or,where preliminary PIOTs are not available for the calendar year that includes the Entitlement Year, on preliminary or final PIOTs for other years together with any adjustments that the Minister believes will yield a more accurate estimate of the net amount of GST for British Columbia for that Entitlement Year; and
- (b) the GST Credit for that Entitlement Year shall be based on the Canada Revenue Agency’s interim or final estimate in respect of the calendar year that includes that Entitlement Year or, where interim or final estimates in respect of the calendar year that includes the Entitlement Year are not available, on the interim or final estimates for other years together with any adjustments that the Minister believes will yield a more accurate estimate of the GST Credit for that Entitlement Year.
18.
- For the purpose of making the Final Estimate of LIA for an Entitlement Year, the Parties agree that:
- (a) the net amount of GST for British Columbia for that Entitlement Year shall be based on the final PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year; and
- (b) the GST Credit for that Entitlement Year shall be based on the tax administration data for British Columbia applicable to the calendar year that includes that Entitlement Year as provided by the Canada Revenue Agency for public use as, or as otherwise deemed by the Canada Revenue Agency to be, the final GST Credit statistics in respect of the calendar year that includes that Entitlement Year.
Annex B
Canada’s Share of Tax Attributable to the Shared Reserve
1. In this annex:
- “Average Net GST Per Canadian” (AvNetGSTpc) for an Entitlement Year is the total amount of net GST for Canada for that Entitlement Year divided by the total population of Canada for that Entitlement Year
- “DCY” is the number of days in the calendar year that includes the particular Entitlement Year;
- “DEY” is the number of days in the particular Entitlement Year;
- “Estimate of Tax Attributable to the FNPs” for a particular Entitlement Year is an Interim Estimate or Final Estimate of Tax Attributable to the FNPs for that Entitlement Year determined as the sum of amounts calculated pursuant to Annex A of:
- (a) this agreement; plus
- (b) the bilateral FNGST agreement between Canada and the AFN; plus
- (c) the bilateral FNGST agreement between Canada and the LKIB; plus
- (d) the bilateral FNGST agreement between Canada and the SFN; plus
- (e) the bilateral FNGST agreement between Canada and the SMIB; plus
- (f) the bilateral FNGST agreement between Canada and the TPIB.
- “Estimate of Tax Attributable to the Shared Reserve” for a particular Entitlement Year is an Interim Estimate or Final Estimate of Tax Attributable to the Shared Reserve for that Entitlement Year that is determined pursuant to Annex A of this agreement;
- “Population of Relevance” (PofR) for an Entitlement Year is the sum of:
- (a) the number, as agreed by the Parties, of Members of the AFN, LKIB, SFN, SMIB, and TPIB who, on the December 31 immediately before the beginning of that Entitlement Year live on any of the lands described opposite the names of the FNPs in Schedule 1 of the Federal Act, including the Shared Reserve; and
- (b) the number, as agreed by the Parties, of Indians, as defined in the Indian Act, R.S.C., 1985, c. I-5, who on December 31 immediately before the beginning of that Entitlement Year live on any of the lands described opposite the names of the FNPs in Schedule 1 of the Federal Act, including the Shared Reserve, but who are Non-Members;
- “Threshold 1” for a particular Entitlement Year is an amount equal to:
- 2 * (AvNetGSTpc) * (PofR) * (DEY/DCY); and
- “Threshold 2” for a particular Entitlement Year is an amount equal to:
- 8 * (AvNetGSTpc) * (PofR) * (DEY/DCY).
2. The Parties agree that:
- (a) an Interim Estimate of the total amount of net GST for Canada for an Entitlement Year shall be based on preliminary PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year or,where preliminary PIOTs are not available for the calendar year that includes the Entitlement Year, on preliminary or final PIOTs for other years together with any adjustments that the Minister believes will yield a more accurate estimate of the total amount of net GST for Canada for that Entitlement Year; and
- (b) a Final Estimate of the total amount of net GST for Canada for that Entitlement Year shall be based on the final PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year.
3. For each Estimate of Tax Attributable to the Shared Reserve for a particular Entitlement Year, Canada’s share shall be determined as follows:
- C is
- (a) where the sum of the Estimate of Tax Attributable to the Shared Reserve for that particular Entitlement Year under this agreement and the specific Estimates of Tax Attributable to the AFN, LKIB, SFN, SMIB and TPIB for that particular Entitlement Year under their respective bilateral FNGST agreements with Canada is greater than Threshold 2 for that particular Entitlement Year, the result obtained by subtracting Threshold 2 from the sum of the Estimate of Tax Attributable to the Shared Reserve for that particular Entitlement Year under this agreement and the specific Estimates of Tax Attributable to the AFN, LKIB, SFN, SMIB and TPIB for that particular Entitlement Year under their respective bilateral FNGST agreements with Canada; and
- (b) in any other case, nil.
Annex C
Determination of FNP Shares of Net Tax Attributable to the Shared Reserve and Irrevocable Assignment of Shares by the SFN
1. In this annex, “Net Tax Attributable to the Shared Reserve” means the difference between the estimate of the Tax Attributable to the Shared Reserve as determined in accordance with Annex A and Canada’s share of the Tax Attributable to the Shared Reserve, as determined in accordance with Annex B.
2. The Parties recognize the equal interests of the FNPs in the Shared Reserve and agree that the Net Tax Attributable to the Shared Reserve shall be shared equally among the FNPs.
3. In full recognition of the interests that each FNP holds in the Shared Reserve, the SFN irrevocably assigns in favour of the other FNPs the following shares of the Net Tax Attributable to the Shared Reserve under the
Shuswap
First Nation
Goods and Services Tax Law:
- AFN - 20%;
LKIB - 20%;
SMIB - 20%; and
TPIB - 20%.
4. The Parties agree that Canada shall:
- (a) adjust remittances to the SFN under this agreement in accordance with the irrevocable assignment in clause 3; and
- (b) remit amounts to the other FNPs in accordance with the irrevocable assignment in clause 3.
5. The Parties agree that amounts irrevocably assigned by the SFN and remitted by Canada to the FNPs shall be subject to re-estimation and adjustment like other estimates and remittances made under this agreement.
