TAX ADMINISTRATION AGREEMENT
BETWEEN:
The Government of Canada (“Canada”)
acting through and represented by the
Minister of Finance
AND
The Whitecap Dakota First Nation (“WDFN”)
acting through and represented by the
Council, designated as the
authorized body of the Whitecap Dakota First Nation under the
Whitecap Community Improvement Fee Bylaw, 2008,
(hereinafter collectively called the “Parties”)

WHEREAS:

the Whitecap Community Improvement Fee Bylaw, 2008, imposes a value-added tax within the lands described opposite the name of the Whitecap Dakota First Nation in Schedule 1 to the First Nations Goods and Services Tax Act (Canada);

section 5 of the Whitecap Community Improvement Fee Bylaw, 2008, provides that a quorum of the Council of the Whitecap Dakota First Nation, with the approval and authorization of the Council of the Whitecap Dakota First Nation, may enter, on behalf of the Whitecap Dakota First Nation, into an administration agreement with Canada in relation to that tax;

the Council approves of the Whitecap Dakota First Nation entering into this agreement;

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 Whitecap Dakota First Nation;  

“Deferred Amount” 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;

“First Nation Law” means the Whitecap Community Improvement Fee Bylaw, 2008;

“FNGST” means the value-added tax imposed under the First Nation Law;

“Member” means a person whose name is listed in, or who is entitled to have his or her name listed in, the Indian Register for Whitecap Dakota First Nation that is maintained by the Department of Indian Affairs and Northern Development;

“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 Whitecap Dakota First Nation for an Entitlement Year, means the amount by which the estimate of Tax Attributable to the Whitecap Dakota First Nation for that Entitlement Year exceeds Canada’s share, if any, of that estimate of Tax Attributable to the Whitecap Dakota First Nation 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; and

“Tax Attributable” to the Whitecap Dakota First Nation has the same meaning as in section 5 of the Federal Act.

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, the First Nation Law or that other law, the reference shall be read as a reference to that Act, 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 Whitecap Dakota First Nation 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 Whitecap Dakota First Nation 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 Whitecap Dakota First Nation by estimating the associated revenues and Canada shall make and account for remittances to the Whitecap Dakota First Nation 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 Whitecap Dakota First Nation

8. The Whitecap Dakota First Nation 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 Whitecap Dakota First Nation 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 Whitecap Dakota First Nation 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 Whitecap Dakota First Nation 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 Whitecap Dakota First Nation and its 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 Whitecap Dakota First 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 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.

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 Whitecap Dakota First Nation in accordance with the provisions in Annex A. 

15. The sharing, if any, between the Whitecap Dakota First Nation and Canada of the amount estimated as Tax Attributable to the Whitecap Dakota First 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 Whitecap Dakota First 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 Whitecap Dakota First 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 Whitecap Dakota First 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 Whitecap Dakota First 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 Whitecap Dakota First Nation for that year, the Whitecap Dakota First 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 Whitecap Dakota First Nation during the two Entitlement Years following the particular Entitlement Year. 

22. Canada shall retain as its property an amount imposed under the First Nation Law if that amount:

(a) is not Tax Attributable to the Whitecap Dakota First Nation; or

(b) is included in Canada’s share of the estimate of Tax Attributable to the Whitecap Dakota First 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 Whitecap Dakota First 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 Whitecap Dakota First Nation for that year, as determined under clause 14;

(b) Canada’s share of the estimated Tax Attributable to the Whitecap Dakota First 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 Whitecap Dakota First 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 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. 

26. If no amount is held on behalf of the Whitecap Dakota First Nation from which payment under clause 25 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 Whitecap Dakota First Nation agrees that the advance shall be recovered against amounts of FNGST subsequently collected on behalf of the Whitecap Dakota First 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 Whitecap Dakota First 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 Whitecap Dakota First 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 Whitecap Dakota First 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 Whitecap Dakota First 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 Whitecap Dakota First 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 Whitecap Dakota First 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 Whitecap Dakota First 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 Whitecap Dakota First Nation by Canada in respect of amounts collected in accordance with this agreement.

29. The Minister shall annually provide the Whitecap Dakota First 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 Whitecap Dakota First 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 Whitecap Dakota First Nation 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.

33. The Whitecap Dakota First Nation 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.

34. Canada shall administer the FNGST Law free of charge for the Whitecap Dakota First 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 First Nation Law and the collection of the FNGST and other amounts imposed under that law. 

35. Canada shall retain interest and penalties that are imposed under the First Nation Law and collected by the Minister of National Revenue. 

36. Unless otherwise agreed by the Parties, the Whitecap Dakota First Nation shall pay its own costs, charges and expenses incurred in relation to litigation to which the Whitecap Dakota First 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 First Nation Law.      

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 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.

38. The Minister of National Revenue may provide to the Whitecap Dakota First Nation 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. 

39. The Whitecap Dakota First 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 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 Whitecap Dakota First 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 First Nation Law, the Whitecap Dakota First 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 First Nation Law. 

41. 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 Whitecap Dakota First Nation.

Uniformity of Whitecap Dakota First Nation Law

42. Canada shall notify the Whitecap Dakota First Nation 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.

43. Upon receipt of the notice referred to in clause 42 the Chief agrees to propose to the Council of the Whitecap Dakota First Nation an amendment to the First Nation Law forthwith.

44. The Parties agree that if the First Nation Law 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 First Nation Law does not respect the covenants set out in clause 8 or 9; or

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

Repeal of First Nation Law

45. Unless the Minister agrees otherwise, the Whitecap Dakota First Nation shall provide the Minister with at least twelve months notice of the date on which they intend 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

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 Chief 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 Court of Queen’s Bench of Saskatchewan 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 Whitecap Dakota First 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 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 Whitecap Dakota First Nation, the terms and conditions in Annex A or Annex B of this agreement shall be amended 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 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 Whitecap Dakota First Nation may terminate this agreement by giving the Minister not less than twelve 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 Whitecap Dakota First Nation not less than twelve 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 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. 

57. 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 Whitecap Dakota First Nation has provided sufficient statutory or other authority for the imposition or collection of those amounts.

58. 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 payment to the Whitecap Dakota First Nation made under this agreement may be recovered by Canada as a debt due to Canada by the Whitecap Dakota First Nation, notwithstanding that such payment was made to the Whitecap Dakota First Nation as if there were sufficient authority.

Term

59. The effective date of this agreement is the fourteenth day following the date on which it is duly executed by both of the Parties. 

60. 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 Whitecap Dakota First Nation in accordance with clause 53, on the date specified in the notice given by Whitecap Dakota First 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.

61. 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 59.  Facsimile signatures shall be accepted the same as original signatures.

Termination of Previous Tax Administration Agreement

62. The Parties mutually agree that the tax administration agreement entered into by the Chief on behalf of the Council of the Whitecap Dakota First Nation on April 5, 2004, and by the Minister of Finance on May 12, 2004, in respect of the tax imposed under Part 4 of the Budget Implementation Act, 2000, on sales of fuels, tobacco products and alcoholic beverages, shall terminate on the effective date of this agreement as set out in clause 59 of this agreement. 

Signed on this       day of      , 2008, for the Whitecap Dakota First Nation, the signatories being authorized to do so as a quorum of Council:

Originally signed by:

Chief Darcy Bear

Councillor Frank Royal

Councillor Dwayne Eagle

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 – Detailed Revenue Estimation Method

1. In this annex:

“ACP” means the average taxable consumption of the population living on lands as described opposite the name of Whitecap Dakota First Nation in Schedule 1 of the Federal Act divided by the average taxable consumption of the population living in Saskatchewan, as determined in accordance with clause 3 of this annex;

“Alpha Value” for an industry in a province means the proportion of the total value-added tax collectible by firms in that industry in that province that relates to both final consumption and immediate consumption of goods and services;

“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 Saskatchewan within the meaning of that Act;

“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; 

“Lands of the Whitecap Dakota First Nation” means the lands described opposite the name of the Whitecap Dakota First Nation in Schedule 1 to the Federal Act;   

“POP” means the number of individuals of age 15 years and older living on lands as described opposite the name of Whitecap Dakota First Nation in Schedule 1 of the Federal Act divided by the total population of individuals of age 15 years and older living in Saskatchewan, 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 lands described opposite the name of the Whitecap Dakota First Nation in Schedule 1 of the Federal Act; 

2. An Interim Estimate or Final Estimate of Tax Attributable to the Whitecap Dakota First Nation for an Entitlement Year shall be determined as follows:

ETAWDFN = (CE R-BCWDFN + CE ICWDFN + ExemptWDFN + HousingWDFN) * (1-LIA) * (DEY/DCY)

where

ETAWDFN is an Interim Estimate or Final Estimate of Tax Attributable to the Whitecap Dakota First Nation;

CE R-BCWDFN is an estimate of Tax Attributable associated with Residence-Based Consumption occurring on the Lands of the Whitecap Dakota First Nation as determined in accordance with clause 5 of this annex;

CE ICWDFN is an estimate of Tax Attributable associated with Immediate Consumption occurring on the Lands of the Whitecap Dakota First Nation as determined in accordance with clause 7 of this annex;

ExemptWDFN is an estimate of Tax Attributable associated with consumption or use in the provision of exempt supplies by establishments located on the Lands of the Whitecap Dakota First Nation, as determined in accordance with clause 10 of this annex;

HousingWDFN is an estimate of Tax Attributable associated with residential construction occurring on the Lands of the Whitecap Dakota First Nation, as determined in accordance with clause 12 of this annex;

LIA is the proportion that the GST Credit for Saskatchewan for that calendar year represents of the net amount of GST for Saskatchewan for that calendar year, as determined in accordance with clauses 14 and 15 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 the term ACP 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 ACP 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 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 Whitecap Dakota First 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) does not result in a reasonable approximation of the income of individuals living on the Lands of the Whitecap Dakota First Nation relative to the income of individuals living in Saskatchewan 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 estimate of the term ACP used in making the first Interim Estimate of CE R-BCWDFN, ExemptWDFN and HousingWDFN 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 the term POP is based.

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 Whitecap Dakota First 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 Whitecap Dakota First Nation’s average share of the population of individuals living in Saskatchewan 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 estimate of the term POP used in making the first Interim Estimate of CE R-BCWDFN, ExemptWDFN and HousingWDFN for each of the first five Entitlement Years covered by this agreement shall not be subject to re-estimation or adjustment.

5. An Interim Estimate or Final Estimate of CE R-BCWDFN shall be determined as follows:

CE R-BCWDFN = CE R-BC * POP * ACP

where

CE R-BC is the estimated net amount of value-added tax associated with Residence-Based Consumption for that Entitlement Year for Saskatchewan as determined in accordance with clause 6 of this annex.

6.

(a) For the purpose of making an Interim Estimate of the term CE R-BC for an Entitlement Year, the Parties agree that the net amount of value-added tax associated with Residence-Based Consumption for that Entitlement Year in Saskatchewan 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 Saskatchewan for that Entitlement Year. 

(b) For the purpose of making a Final Estimate of the term CE R-BC for an Entitlement Year, the Parties agree that the net amount of value-added tax associated with Residence-Based Consumption for that Entitlement Year in Saskatchewan 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. 

7. An Interim Estimate or Final Estimate of CE ICWDFN for an Entitlement Year shall be determined as follows:

CE ICWDFN = Snj=1 {Smi=1 (TaxCOLLECTIBLE i, j * aj)} + GAMETAXWDFN

where

i represents a particular permanent establishment in industry j that is situated on the Lands of the Whitecap Dakota First Nation;

j represents a particular industry other than the casinos and gaming industry;

TaxCOLLECTIBLE i,j represents the amount of value-added tax estimated by Statistics Canada to be collectible by permanent establishment i in industry j for the Calendar Year that includes the Entitlement Year; 

aj represents the Alpha Value for industry j and is the product of the following two proportions:

  • the proportion for industry j of value-added tax collectible from final consumers by permanent establishments in Saskatchewan in that industry relative to total value-added tax collectible by permanent establishments in Saskatchewan in that industry; and
  • the proportion for industry j of value-added tax collectible by permanent establishments in Saskatchewan in that industry that is related to Immediate Consumption relative to the total value-added tax collectible by permanent establishments in Saskatchewan in that industry;

m represents the total number of permanent establishments in industry j that are situated on the Lands of the Whitecap Dakota First Nation;

n represents the number of industries, other than the casinos and gaming industry, that are represented in Statistics Canada’s PIOTs; and

GAMETAXWDFN, represents the estimated value-added tax associated with the activities of casinos operating on the Lands of the Whitecap Dakota First Nation, excluding Tax Attributable associated with gaming included in CE-RBCWDFN and ExemptWDFN.  For the purposes of this annex, the estimate for GAMETAXWDFN shall be determined by Statistics Canada on the basis of self-assessed value-added tax and unrecoverable value-added tax using PIOTs and data provided by the Saskatchewan Lottery Corporation in accordance with clauses 8, 9, 10 and 11.   

8.

(a) For the purpose of making an Interim Estimate for an Entitlement Year of that portion of GAMETAXWDFN representing the value-added tax that is self-assessed by casinos situated on the Lands of the Whitecap Dakota First Nation, the Parties agree to use the data that are published by the Saskatchewan 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 GAMETAXWDFN representing the value-added tax that is self-assessed by casinos situated on the Lands of the Whitecap Dakota First Nation, the Parties agree to use the data that are published by the Saskatchewan 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 GAMETAXWDFN representing the unrecoverable value-added tax that is paid by casinos situated on Lands of the Whitecap Dakota First Nation, the Parties agree to use PIOTs and the data that are published by the Saskatchewan 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 GAMETAXWDFN representing the unrecoverable value-added tax that is paid by casinos situated on the Lands of the Whitecap Dakota First Nation, the Parties agree to use PIOTs and the data that are published by the Saskatchewan 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 Lands of the Whitecap Dakota First Nation, shall be determined as the product of total self-assessed value-added tax or unrecoverable value-added tax, respectively, reported for all casinos in Saskatchewan, and the proportion that the revenues reported for the casinos operating on the Lands of the Whitecap Dakota First Nation comprise of the total revenues reported for all casinos operating in Saskatchewan.    

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 Whitecap Dakota First Nation will provide to the Department of Finance a notice about permanent establishments operating on the Lands of the Whitecap Dakota First Nation.  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 Lands of the Whitecap Dakota First Nation, an identification of any permanent establishments that ceased operating on the Lands of the Whitecap Dakota First Nation subsequent to the provision by the Whitecap Dakota First Nation of its previous notice and an identification of any permanent establishments that commenced operations on the Lands of the Whitecap Dakota First Nation subsequent to the provision of its previous notice.

b) The Department of Finance will provide each notice from the Whitecap Dakota First Nation 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 Lands of the Whitecap Dakota First Nation 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.    

13. An Interim Estimate or Final Estimate of ExemptWDFN shall be determined as follows:  

ExemptWDFN = Exempt * POP * ACP

where Exempt is the estimated net amount of value-added tax associated with supplies acquired for consumption or use or supply in the provision, by suppliers in Saskatchewan, of exempt supplies.

14. The Parties agree that:

(a) for the purpose of making an Interim Estimate of the term Exempt for an Entitlement Year, the net amount of value-added tax associated with exempt supplies for that Entitlement Year in Saskatchewan 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 Saskatchewan for that Entitlement Year; and

(b) for the purpose of making a Final Estimate of the term Exempt for an Entitlement Year, the net amount of value-added tax associated with exempt supplies for that Entitlement Year in Saskatchewan shall be based on the final PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year.

15. An Interim Estimate or a Final Estimate of HousingWDFN shall be determined as follows: 

HousingWDFN = Housing * POP * ACP

where Housing is the estimated net amount of value-added tax associated with residential construction occurring in Saskatchewan.

16. An Interim Estimate or Final Estimate of the term Housing for each Entitlement Year will be determined by Statistics Canada.

17. For the purpose of making an Interim Estimate of the term LIA for an Entitlement Year, the Parties agree that:

(a) the net amount of GST for Saskatchewan. 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 Saskatchewan. 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 the term LIA for an Entitlement Year, the Parties agree that:

(a)  the net amount of GST for Saskatchewan 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 Saskatchewan 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

1. In this annex, the following definitions apply:

“Average Net GST Per Canadian” 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 Whitecap Dakota First Nation” for a particular Entitlement Year is an interim or final Estimate of Tax Attributable to the Whitecap Dakota First Nation for that particular Entitlement Year determined pursuant to Annex A;

“Lands of the Whitecap Dakota First Nation” means the lands described opposite the name of the Whitecap Dakota First Nation in Schedule 1 to the Federal Act;   

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

(a) the number, as agreed by the Parties, of Members who at December 31 of the calendar year immediately prior to the particular Entitlement Year live on the Lands of the Whitecap Dakota First Nation, and

(b) the number, as agreed by the Parties, of Indians, as defined in the Indian Act, R.S.C., c. I-5, who at December 31 of the calendar year immediately prior to the particular Entitlement Year live on the Lands of the Whitecap Dakota First Nation but are not Members;

“Threshold 1” for a particular Entitlement Year is an amount equal to two multiplied by the Average Net GST Per Canadian for that Entitlement Year multiplied by the Population of Relevance for that Entitlement Year multiplied by DEY and divided by DCY;

“Threshold 2” for a particular Entitlement Year is an amount equal to eight multiplied by the Average Net GST Per Canadian for that Entitlement Year, multiplied by the Population of Relevance for that Entitlement Year multiplied by DEY and divided by DCY. 

2. In this annex, Canada’s share of a specific Estimate of Tax Attributable to the Whitecap Dakota First Nation for a particular Entitlement Year 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 and the specific Estimate of Tax Attributable to the Whitecap Dakota First Nation, for that particular Entitlement Year;

B is

(a) where the specific Estimate of Tax Attributable to the Whitecap Dakota First Nation is greater than Threshold 2, for that particular Entitlement Year, the result obtained by subtracting Threshold 1 from Threshold 2, for that particular Entitlement Year; and

(b) in any other case, the result obtained by subtracting the value of A from that specific Estimate of Tax Attributable to the Whitecap Dakota First Nation, for that particular Entitlement Year; and

C is

(a) where the specific Estimate of Tax Attributable to the Whitecap Dakota First Nation is greater than Threshold 2, for that particular Entitlement Year, the result obtained by subtracting Threshold 2 from the specific Estimate of Tax Attributable to the Whitecap Dakota First Nation, for that particular Entitlement Year; and 

(b) in any other case, nil.