The Nisga'a Nation Goods and Services Tax Administration Agreement - July 30, 2008

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:

1. In this agreement:

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.

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.

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:

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.

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.

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

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:
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:

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:

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.

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.

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:

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.

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.

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.

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).

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.

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.

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

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.

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:

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

1. In this annex:
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:
3.
4.
5.
6.
1. In this annex:
2. The Parties agree that:
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:

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