TAX ADMINISTRATION AGREEMENT
BETWEEN
The Government of Canada (“Canada”)
acting through and represented by the
Minister of Finance
AND
Nisga’a Nation, as represented by the
Nisga’a Lisims Government Executive (“Nisga’a Nation”)
(hereinafter collectively called the “Parties”)

WHEREAS:

The Nisga’a Goods and Services Tax Act imposes a value-added tax within Nisga’a Lands;

Subsection 13(1) of the Nisga’a Goods and Services Tax Act provides that the Nisga’a Lisims Government Executive may on behalf of the Nisga’a Nation enter into, and amend or replace from time to time, an administration agreement with the Government of Canada acting through and represented by the Minister of Finance that, among other things, provides for the matters referred to in subsection 5(2) of the First Nations Goods and Services Tax Act;

Subsection 13(2) of the Nisga’a Goods and Services Tax Act provides that the Nisga’a Lisims Government Executive may authorize a member of the Executive to sign an administration agreement or an amendment to an administration agreement for the Executive;

The Nisga’a Lisims Government Executive, which is an authorized body within the meaning of the Federal Act, has, by resolution, authorized the Secretary-Treasurer to sign this agreement for the Executive;

Subsection 5(2) of the First Nations Goods and Services Tax Act 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;

 “Deferred Amount” is a debt due to Canada by the Nisga’a Nation and means the deferred amount described in clause 21;

 “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;

“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 Nisga’a Nation for an Entitlement Year, means the amount by which the estimate of Tax Attributable to Nisga’a Nation for that Entitlement Year exceeds Canada’s share, if any, of that estimate of Tax Attributable to the Nisga’a Nation determined in accordance with Annex B;

“Nisga’a Citizen” means a person who is a Nisga’a citizen under the Nisga’a Citizenship Act;

“Nisga’a Constitution” means the Constitution of the Nisga’a Nation, adopted in accordance with the Nisga’a Final Agreement, and includes any amendments to that Constitution made from time to time in accordance with its terms;

“Nisga’a Final Agreement” means the Nisga’a Final Agreement signed on behalf of the Nisga’a Nation and Her Majesty in right of British Columbia on April 27, 1999 and on behalf of Her Majesty in right of Canada on May 4, 1999, and includes any amendments made to that agreement from time to time in accordance with its provisions;

“Nisga’a Goods and Services Tax Act” means the Nisga’a Goods and Services Tax Act;

“Nisga’a GST” means the tax imposed under the Nisga’a Goods and Services Tax Act;

“Nisga’a Lands” has the same meaning as in the Nisga’a Final Agreement;

“Nisga’a Lisims Government” means the Nisga’a Lisims Government, as referred to in the Nisga’a Constitution;

“Nisga’a Lisims Government Executive” means the Nisga’a Lisims Government Executive, as referred to in the Nisga’a Constitution; 

“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;  

“Secretary-Treasurer” means the person holding the office of Secretary-Treasurer within Nisga’a Lisims Government, as referred to in the Nisga’a Constitution;

“Tax Attributable” to the Nisga’a Nation has the same meaning as in section 5 of the Federal Act; and  

“Wilp Si’ayuukhl Nisga’a” means Wilp Si’ayuukhl Nisga’a, as referred to in the Nisga’a Constitution.

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 Nisga’a Goods and Services Tax Act, 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 Nisga’a Goods and Services Tax Act or that other law, the reference shall be read as a reference to that Act of Parliament, the Nisga’a Goods and Services Tax Act 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 Nisga’a Nation provided for in subsection 4(1) of the Federal Act applies in respect of the Nisga’a GST and other amounts imposed under the Nisga’a Goods and Services Tax Act while this agreement is in effect and of amounts, other than the Nisga’a GST, imposed under that Act 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 Nisga’a Nation in respect of the administration and enforcement of the Nisga’a Goods and Services Tax Act, including the collection of Nisga’a GST and other amounts imposed under that Act while this agreement is in effect and of amounts, other than the Nisga’a GST, imposed under that Act 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 Nisga’a Goods and Services Tax Act on behalf of the Nisga’a Nation by estimating the associated revenues and Canada shall make and account for remittances to the Nisga’a Nation in accordance with this agreement.

7. Canada and its agents and subservient bodies shall comply with the obligations imposed on them under the Nisga’a Goods and Services Tax Act, including the obligation to pay and account for the amounts imposed on them under the Nisga’a Goods and Services Tax Act as if that Act were applicable to Canada.

Covenants by the Nisga’a Nation

8. The Nisga’a Nation agrees that the obligations, authorities, rights and privileges imposed upon or granted to a person under the Nisga’a Goods and Services Tax Act shall not depend on whether that person is a Nisga’a Citizen.

9. The Nisga’a Nation agrees that the Nisga’a Goods and Services Tax Act shall be made under the tax power in section 4 and consistent with section 11 of the Federal Act.  The Nisga’a Nation shall ensure that the Nisga’a Goods and Services Tax Act provides the Minister of National Revenue with sufficient authority to administer and enforce that Act in accordance with this agreement, including the authority to collect the Nisga’a GST and other amounts imposed under that Act.

10. The Secretary-Treasurer shall provide the Minister in a timely manner with a certified true copy of:

(a) the Nisga’a Goods and Services Tax Act, following its enactment; and

(b) any amendment to the Nisga’a Goods and Services Tax Act, following its enactment.

11. The Nisga’a Nation and its agents and subservient bodies shall comply with Part IX of the Excise Tax Act, the Federal Act, the Nisga’a Goods and Services Tax Act 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 Nisga’a Nation and its 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 Nisga’a Goods and Services Tax Act 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. 

Revenue Estimation

13. 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.

14. 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 Nisga’a Nation in accordance with the provisions in Annex A. 

15. The sharing, if any, between the Nisga’a Nation and Canada of the amount estimated as Tax Attributable to the Nisga’a Nation for each Entitlement Year will be calculated in accordance with the provisions in Annex B. 

16. 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 Nisga’a Nation 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.

17. 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 16, the Net Tax Attributable to the Nisga’a Nation for that particular Entitlement Year for the purpose of calculating in each of those years the Prior Estimate Adjustment for that particular Entitlement Year. 

18. 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 29.

Remittances

19. The Minister shall remit to the Nisga’a Nation 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 14 for that particular Entitlement Year;

B is the amount of Canada’s share determined under clause 15 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.

20. If the result of the formula in clause 19 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 Nisga’a Nation, subject to clause 21, within that Entitlement Year.

21. If the sum of the Prior Estimate Adjustments in the formula in clause 19 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 Nisga’a Nation for that year, the Nisga’a Nation 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 by the Nisga’a Nation during the two Entitlement Years following the particular Entitlement Year.

22. Canada shall retain as its property an amount imposed under the Nisga’a Goods and Services Tax Act if that amount:

(a) is not Tax Attributable to the Nisga’a Nation; or

(b) is included in Canada’s share of the estimate of Tax Attributable to the Nisga’a Nation in accordance with clause 15.

23. 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 Nisga’a Nation 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 Nisga’a Nation for that year, as determined under clause 14;

(b) Canada’s share of the estimated Tax Attributable to the Nisga’a Nation for that year, as determined under clause 15;

(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 Population of Relevance for that year as defined in and for the purposes of Annex B; and

(f) the remittances for that year.

24. The first remittance made to the Nisga’a Nation 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 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. 

25. The Parties agree that, in respect of Nisga’a GST 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 Nisga’a Goods and Services Tax Act. 

26. If no amount is held on behalf of the Nisga’a Nation from which payment under clause 25 may be made in accordance with this agreement, or the amount of the payment exceeds the amount so held, Canada agrees to make the payment as a recoverable advance and the Nisga’a Nation agrees that the advance shall be recovered against amounts of Nisga’a GST subsequently collected on behalf of the Nisga’a Nation. 

27. 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 23 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 Nisga’a Nation 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 Nisga’a Nation 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 Nisga’a Nation 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 Nisga’a Nation 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 Nisga’a Nation 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 the Nisga’a Nation the amount of that sum; and

(h) if the sum of the Prior Estimate Adjustments in a calendar year subsequent to the termination of this agreement is negative, the First Nation shall pay 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 Nisga’a Nation setting out the sum of those adjustments.

Reporting

28. The statements provided under clause 23 and subclause 27(e), and the report provided under clause 29, shall be the only statements or reports required to be provided to the Nisga’a Nation by Canada in respect of amounts collected in accordance with this agreement.

29. The Minister shall annually provide the Nisga’a Nation with a report, signed by the Auditor General, concerning the determination of amounts as provided for in this agreement.

30. 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 Nisga’a Nation agrees that it has no right to inspect the books and records of Canada in connection with this agreement.

31. 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

32. The Parties agree that the Minister of National Revenue shall have and may exercise all the powers of the Nisga’a Nation relating to the administration and enforcement of the Nisga’a Goods and Services Tax Act, including the collection of the Nisga’a GST and other amounts imposed under that Act while this agreement is in effect and the collection of amounts, other than the Nisga’a GST, imposed under that Act after this agreement ceases to have effect that relate to amounts imposed while this agreement was in effect.

33. The Nisga’a Nation agrees that the Minister of National Revenue shall be the administrative authority in respect of the Nisga’a GST, including all interpretations, assessments, determinations, decisions, and any other matter related to administration, collection or enforcement.

34. Canada shall administer the Nisga’a Goods and Services Tax Act free of charge for the Nisga’a Nation 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 36) that are incurred by Canada in the administration and enforcement of the Nisga’a Goods and Services Tax Act and the collection of the Nisga’a GST and other amounts imposed under that Act.

35. Canada shall retain interest and penalties that are imposed under the Nisga’a Goods and Services Tax Act and collected by the Minister of National Revenue.

36. Unless otherwise agreed by the Parties, the Nisga’a Nation shall pay its own costs, charges and expenses incurred in relation to litigation to which the Nisga’a Nation 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 Nisga’a Goods and Services Tax Act.   

37. 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 Nisga’a Goods and Services Tax Act in respect of the period in which this agreement was in effect and amounts, other than the Nisga’a GST, imposed under that Act after this agreement ceases to have effect that relate to amounts imposed while this agreement was in effect.

38. The Minister of National Revenue may provide to the Nisga’a Nation information acquired in the administration and enforcement of the Nisga’a Goods and Services Tax Act 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.

39. The Nisga’a Nation, subject to any applicable confidentiality or privacy obligations shall provide to Canada, free of charge, information that it acquires that could assist in the administration and enforcement of the Nisga’a Goods and Services Tax Act, the collection of amounts payable under that Act, or the estimation of payments to be made under this agreement.  Canada agrees that any information made available by the Nisga’a Nation will not be used for any purpose other than the purpose for which it was provided.

40. Except in its capacity as a registrant or a person required to pay or entitled to receive amounts under the Nisga’a Goods and Services Tax Act, the Nisga’a Nation 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 Nisga’a Goods and Services Tax Act.

41. For the purposes of section 8 of the Federal Act, the Minister authorizes the Secretary-Treasurer to certify copies of the Nisga’a Goods and Services Tax Act as being true copies and evidence that the Act was duly enacted by Wilp Si’ayuukhl Nisga’a.

Nisga’a Goods and Services Tax Act

42. Canada shall notify the Nisga’a Nation in writing that the Nisga’a Goods and Services Tax Act requires amendment, where, in the opinion of the Minister, the Nisga’a Goods and Services Tax Act does not:

(a) comply with this agreement;

(b) provide the Minister of National Revenue with authority sufficient to administer and enforce that Act and to collect amounts imposed under that Act;

(c) admit of sufficient uniformity as between the administration and enforcement of Part IX of the Excise Tax Act and the Nisga’a Goods and Services Tax Act; or

(d) respect the covenants set out in clause 8 or clause 9.

43. Upon receipt of the notice referred to in clause 42 the Nisga’a Lisims Government Executive will consider whether it agrees that the Nisga’a Goods and Services Tax Act requires amendment and if it does agree shall forthwith propose to Wilp Si’ayuukhl Nisga’a an amendment to the Nisga’a Goods and Services Tax Act.

44. The Parties agree that if the Nisga’a Goods and Services Tax Act is not amended to rectify the deficiencies identified in the notice referred to in clause 42, the Minister may terminate this agreement: 

(a) forthwith, where that notice provides that the Nisga’a Goods and Services Tax Act does not respect the covenants set out in clause 8 or 9; or

(b) in any other case, not less than six months following receipt of the notice.  

Repeal of Nisga’a Goods and Services Tax Act

45. Unless the Minister agrees otherwise, the Nisga’a Nation shall provide the Minister with at least six months notice of the date on which it intends to repeal the Nisga’a Goods and Services Tax Act, and shall provide the Minister with notice that the Nisga’a Goods and Services Tax Act has been repealed within 10 days following the repeal. 

Dispute Resolution

46. In the event of a dispute between the Parties arising out of or in connection with this agreement, other than disputes in respect of clause 8, 9, 40, 43 or 44 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 either the Minister or the Secretary-Treasurer receiving written notice from the other of a dispute under this agreement, a first meeting will be held between the Parties 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 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 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 the opinion that the matter cannot be resolved through mediation.

47. The Parties agree that a decision arising from the dispute resolution process under clause 46 concerning a dispute in respect of the amount of money due to either Party for an Entitlement Year shall be implemented, notwithstanding clause 18, 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.

48. The Parties may mutually determine time periods other than those referred to in subclauses 46(a) through (d).

Amendment

49. Subject to any applicable approvals, authorizations or legislative requirements, the Parties may, in writing, amend or vary this agreement.

50. At either Party’s request, Canada and the Nisga’a Nation shall consider amending this agreement by amending the terms and conditions in Annex A or Annex B of this agreement to be consistent with the terms and conditions of Annex A or Annex B, respectively, of any other bilateral administration agreement between a first nation and Canada that has been entered into in accordance with the Federal Act, with such modifications as are required in the circumstances.

51. At the request of the Nisga’a Nation, the terms and conditions in Annex B of this agreement shall be amended to be consistent with the terms and conditions of Annex B of any other bilateral administration agreement between a first nation and Canada that has been entered into in accordance with the Federal Act after the effective date of this agreement and before 2009, with such modifications as are required in the circumstances.

Termination

52. The Parties may mutually agree to terminate this agreement at any time on such terms as may be agreed upon by the Parties.

53. The Nisga’a Nation may terminate this agreement by giving the Minister not less than six months written notice of its intention to terminate the agreement, including the date upon which this agreement shall end.

54. Except where clause 44 applies, the Minister may terminate this agreement by giving the Nisga’a Nation not less than six months written notice of the Minister’s intention to terminate the agreement, including the date upon which this agreement shall end.

No Assignment

55. This agreement may not be assigned, either in whole or in part, by either Party.

Saving

56. Nothing in this agreement, the Federal Act or the Nisga’a Goods and Services Tax Actshall abrogate or derogate from the Nisga’a Final Agreement including, for greater certainty, the powers of the Nisga’a Lisims Government to make laws under Chapter 16 of the Nisga’a Final Agreement.

57. 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.

58. Nothing in this agreement shall constitute or be construed as constituting an undertaking by Canada to collect the Nisga’a GST or any other amount payable under the Nisga’a Goods and Services Tax Act, or to take any action with respect to the collection of those amounts where Canada has provided notice that, in the opinion of the Minister, a doubt exists that the Nisga’a Nation has provided sufficient statutory or other authority for the imposition or collection of those amounts.

59. Where Canada cannot collect the Nisga’a GST or any other amount payable under the Nisga’a Goods and Services Tax Act by reason of there being, in the opinion of the Minister, doubtful authority to do so and notice has been served in accordance with clause 58, 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 payment to the Nisga’a Nation made under this agreement may be recovered by Canada as a debt due to Canada by the Nisga’a Nation, notwithstanding that such payment was made to the Nisga’a Nation as if there were sufficient authority.

Term

60. The effective date of this agreement is the later of the date on which it is duly executed by both of the Parties and June 1, 2008.

61. This agreement shall end:

(a) in the case of termination in accordance with clause 52, on the date agreed to by the Parties;

(b) in the case of termination by the Nisga’a Nation in accordance with clause 53, on the date specified in the notice given by the Nisga’a Nation;

(c) in the case of termination by Canada in accordance with clause 54, on the date specified in the notice given by Canada; and

(d) in the case of termination by Canada in accordance with clause 44, on the date specified by the Minister in the notice given thereunder.

62. 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 60.  Facsimile signatures shall be accepted the same as original signatures.

Signed on this       day of      , 2008, for the Nisga’a Nation, as represented by the Nisga’a Lisims Government Executive, the signatory being authorized to do so:

Originally signed by:

Secretary-Treasurer, Nisga’a Nation

Signed on this       day of      , 2008, for the Government of Canada, the signatory being authorized to do so:

Originally signed by:

Minister of Finance

ANNEX A

1. In this annex:

“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 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 resident in British Columbia within the meaning of that Act; and  

“Interim Estimate” means an estimate that is subject to re-estimation or adjustment and that incorporates data other than data that are deemed to be final. 

2. In this agreement, interim and final estimates of Tax Attributable to the Nisga’a Nation (“ETANisga’a Nation”) for an Entitlement Year shall be determined as follows:

ETANisga’a Nation =  NetGST  *  POP  *  ACP  *  (DEY/DCY)

where

ETANisga’a Nation is an Interim Estimate or Final Estimate of Tax Attributable to the Nisga’a Nation;

NetGST is the net amount of GST for British Columbia for that Entitlement Year less an amount equal to the GST Credit for British Columbia for that Entitlement Year, both of which amounts are as determined in accordance with clause 3;

POP is the total population of individuals of age 15 years and older living on Nisga’a Lands divided by the total population of individuals of age 15 years and older living in British Columbia, as determined in accordance with clause 4;

ACP is the average taxable consumption of the population living on Nisga’a Lands divided by the average taxable consumption of the population living in British Columbia, as determined in accordance with clause 5 or clause 6 as the circumstances require;

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) For the purpose of making an Interim Estimate of the term NetGST for an Entitlement Year, the Parties agree that the net amount of GST for British Columbia for that Entitlement Year shall be based on 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 GST for British Columbia for that Entitlement Year.

(b) For the purpose of making the Final Estimate of the term NetGST for an Entitlement Year, 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. 

(c) For the purpose of making an Interim Estimate of the term NetGST for an Entitlement Year, the Parties agree that an Interim Estimate of 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.

(d) For the purpose of making the Final Estimate of the term NetGST for an Entitlement Year, the Parties agree that the Final Estimate of the GST Credit for that Entitlement Year shall be based on the tax administration data 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. 

4.

(a) Except as otherwise provided in this clause, interim and final estimates of the term POP for an Entitlement Year shall be based on data obtained from a Census. 

(b) For the purpose of making an Interim Estimate of the term POP for an Entitlement Year, the Parties 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 the term 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 Nisga’a Nation demonstrates to the satisfaction of the Minister or the Minister deems that there are exceptional circumstances in respect of an Entitlement Year whereby the term POP determined on the basis of data obtained from a Census as described in subclause (c) is not a reasonable approximation of the Nisga’a Nation’s average share of the population of individuals of age 15 years and older 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 Parties may agree to use other reliable and verifiable data to determine the Final Estimate of the term POP for that Entitlement Year.

(e) As a transitional measure, the Parties agree that the estimate of the term POP used in making the first Interim Estimate of ETANisga’a Nation for each of the first five Entitlement Years covered by this agreement shall not be subject to re-estimation or adjustment.   

5.

(a) Except as otherwise provided in this clause, interim and final estimates of the term ACP for an Entitlement Year that ends on or before December 31, 2012, shall be based on data obtained from a Census.  

(b) For the purpose of making an Interim Estimate of the term ACP for an Entitlement Year that ends on or before December 31, 2012, the Parties 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) In respect of Entitlement Years that end on or before December 31, 2012, the data obtained from a Census shall, subject to subclause (d), be used for determining the Final Estimate of the term 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 Nisga’a Nation demonstrates to the satisfaction of the Minister or the Minister deems that there are exceptional circumstances in respect of an Entitlement Year whereby the term ACP determined on the basis of data obtained from a Census as described in subclause (c) is not a reasonable approximation of the Nisga’a Nation’s average share of the income of individuals of age 15 years and older 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 Parties may agree to use other reliable and verifiable data to determine the Final Estimate of the term ACP for that Entitlement Year.

(e) As a transitional measure, the Parties agree that the estimate of the term ACP used in making the first Interim Estimate of ETANisga’a Nation 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 census data would be more appropriate for estimating average taxable consumption for an Entitlement Year that ends on or before December 31, 2012, 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 the term POP is based.

6.

(a) Beginning for the 2013 Entitlement Year and except as otherwise provided in this clause, an Interim Estimate of the term ACP for the 2013 and subsequent Entitlement Years shall be based on average total incomes derived from interim tax filer data provided by the Canada Revenue Agency in respect of the calendar year that includes that Entitlement Year or on average total incomes derived from tax filer data for other years together with any adjustments that the Minister believes will yield a more accurate estimate of the term ACP for that Entitlement Year;

(b) For the purpose of making an Interim Estimate of the term ACP for the 2013 and subsequent Entitlement Years during a period when tax filer data for the Entitlement Year generally are not available for Nisga’a Citizens residing on Nisga’a Lands, an Interim Estimate of the term ACP for that Entitlement Year shall be based on data obtained from a Census and, if agreed by the Parties, on data from other sources in addition to or as a substitute for data obtained from a Census;

(c) The Final Estimate of the term ACP for the 2013 and subsequent Entitlement Years shall be based on average total incomes derived from the personal income tax data that apply in respect of 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 personal income tax statistics in respect of the calendar year that includes that Entitlement Year.

ANNEX B

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 Nisga’a Nation”, for a particular Entitlement Year, is an interim or final Estimate of Tax Attributable to the Nisga’a Nation for that particular Entitlement Year determined pursuant to Annex A;

“Population of Relevance” (PofR) for an Entitlement Year is the sum of:

(a) the number, as agreed by the Parties, of Nisga’a Citizens who on the December 31 immediately before the beginning of that Entitlement Year live on Nisga’a Lands, 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 the December 31 immediately before the beginning of that Entitlement Year live on Nisga’a Lands but are not Nisga’a Citizens;

“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 Nisga’a Nation for a particular Entitlement Year, Canada’s share shall be determined as follows:

Canada’s share = [(0.00 * A) + (0.50 * B) + (0.95 * C)]

where 

A is the lesser of Threshold 1 for that particular Entitlement Year and the estimate;

B is

(a) where the estimate is greater than Threshold 2, for that particular Entitlement Year, the result obtained by subtracting Threshold 1 from Threshold 2; and

(b) in any other case, the result obtained by subtracting the value of A from that estimate; and

C is

(a) where the estimate is greater than Threshold 2, the result obtained by subtracting Threshold 2 from the estimate; and 

(b) in any other case, nil.