Whitecap Dakota Nation Real Property Tax Agreement

BETWEEN:

WHITECAP DAKOTA FIRST NATION, as represented by Whitecap Dakota First Nation Chief and Councillors ("WDN");

AND:

HIS MAJESTY THE KING IN RIGHT OF CANADA, as represented by the Minister of Finance ("Canada")

(together, the "Parties")

WHEREAS:

1. The Governance Treaty was entered into among the Parties on Effective Date;
2. 11.02(b) of the Taxation Chapter of the Governance Treaty provides for WDN jurisdiction in relation to Real Property Taxation within WDN Reserve Lands subject to specific requirements relating to Persons other than WDN Members, as set out in 11.06 to 11.09 of the Taxation Chapter;
3. 11.06 of the Taxation Chapter of the Governance Treaty provides that the Parties will enter into a Real Property Tax Agreement; and
4. This agreement is the Real Property Tax Agreement referred to in recital C above and is called the "Whitecap Dakota Nation Real Property Tax Agreement".

NOW THEREFORE, the Parties agree as follows:

1. DEFINITIONS

1.1. In this Agreement

1. "Agreement" means this Real Property Tax Agreement between and signed by the Parties, as amended from time to time;
2. "Exemption" means a reduction, limitation, exclusion, or removal of tax liability;
3. "First Nations Fiscal Management Act" means the First Nations Fiscal Management Act, S.C., 2005 c. 9, and any applicable regulations made under the Act;
4. "First Nations Tax Commission Standards" means those standards established pursuant to subsection 35(1) of the First Nations Fiscal Management Act;
5. "Governance Treaty" means the agreement entitled "A Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate" between and signed by Canada and WDN, including its Schedules, as amended from time to time;
6. "Interpretation Act" means the Interpretation Act, R.S.C., 1985, c. I-21;
7. "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;
8. "Real Property Taxation Law" means a WDN Law providing for real property taxation on holders of interests in WDN Reserve Lands made pursuant to WDN Jurisdiction under the Governance Treaty and in accordance with this Agreement; and
9. "Real Property Taxation" means taxation imposed on the basis of:
   1. the value of land or improvements or both, or
   2. a single amount for each parcel of land, the taxable area of a parcel of land or the taxable frontage of a parcel of land.

1.2. The Interpretation Act applies, with such modifications, as the circumstances require, to this Agreement as if it were an enactment.

1.3. Unless a contrary intention appears, words and expressions used in this Agreement but not defined in 1.1 have the meaning assigned by the Governance Treaty.

1.4.Headings and subheadings are for convenience only, do not form a part of this Agreement and in no way define, limit, alter or enlarge the scope or meaning of any provision of this Agreement.

1.5. There will be no presumption that doubtful expressions, terms, or provisions in this Agreement are to be resolved in favour of any particular Party.

2. EFFECT OF THIS AGREEMENT

2.1. This Agreement does not form part of the Governance Treaty.

2.2. This Agreement is not a treaty or land claims agreement and does not abrogate or derogate from, recognize, deny, or otherwise affect any aboriginal or treaty rights of WDN recognized and affirmed by section 35 of the Constitution Act, 1982.

3. EXERCISE OF REAL PROPERTY TAXATION

3.1. The Parties acknowledge that the purpose of this Agreement is to set out the terms under which WDN will exercise its Jurisdiction in relation to Real Property Taxation with respect to Persons other than WDN Members.

3.2. WDN will exercise its Real Property Taxation Jurisdiction within WDN Reserve Lands as it pertains to Persons other than WDN Members in accordance with this Agreement.

3.3. The obligations, authorities, rights and privileges imposed upon or granted to a Person under WDN Laws with respect to real property taxation shall not depend on whether that Person is a WDN Member or a Person other than a WDN Member.

4. REAL PROPERTY TAXATION LAW

4.1. WDN will establish a Real Property Taxation Law that includes:

1. the manner in which rates will be levied and outlining the property interests and property classes subject to taxation;
2. appointing a tax administrator to administer and enforce the real property taxation system; and
3. establishing timelines and requirements for creating the tax roll and sending tax notices;

in a manner that is comparable to that provided for in the First Nations Fiscal Management Act and the applicable First Nations Tax Commission Standards.

4.2. WDN will establish a Real Property Taxation Law that provides for:

1. the imposition of penalties and interest on unpaid taxes, in a manner that does not exceed those provided for in the First Nations Fiscal Management Act and the applicable First Nations Tax Commission Standards; and
2. enforcement and collection mechanisms, in a manner that is at least comparable to those provided for in the First Nations Fiscal Management Act and the applicable First Nations Tax Commission Standards.

Imposition and Tax Rates

4.3. The WDN Real Property Taxation Law shall establish:

1. real property taxes for each property class, including the use of tax tools; and
2. on an annual basis, a tax rate on assessable and taxable property for each property class on WDN Reserve Lands;

in a manner that is comparable to that provided for in the First Nations Fiscal Management Act and the applicable First Nations Tax Commission Standards.

Grants and Tax Abatement

4.4. Where the WDN Real Property Taxation Law provides for a granting program, the Law must:

1. set out objectives, qualifying criteria, terms and conditions of the granting program; and
2. provide that WDN will, in each taxation year, determine all grants that will be given and authorize those grants in an expenditure law;

in a manner that is comparable with granting under the First Nations Fiscal Management Act and the applicable First Nations Tax Commission Standards.

4.5. The WDN Real Property Taxation Law may provide for forms of tax abatement comparable to those available to local governments in Saskatchewan pursuant to Saskatchewan Law.

4.6. Where WDN Real Property Taxation Law provides for tax abatement, the qualifying requirements must be set out in the law, and the amount of abatements given must be shown annually in the annual expenditure law required under 4.4(b).

Exemptions

4.7. WDN may exempt from real property taxation the following interests in real property:

1. those that are in a class of exemptions from real property taxes used by local governments in Saskatchewan pursuant to Saskatchewan Law, with such modifications as may be required; and
2. those held by WDN.

Exemption of specific properties

4.8. WDN may exempt any real property from taxation in whole or in part:

1. with respect to a financial year; or
2. for not more than five years, subject to an agreement WDN may enter into with the holder of an interest in that real property for the purpose of exempting it from taxation.

4.9. In an agreement entered into pursuant to 4.8(b), WDN may impose any terms and conditions it considers appropriate in respect of the exemption.

4.10. If WDN exempts real property from taxation pursuant to 4.8, the assessment for that real property must appear on the assessment roll in each year of the exemption.

4.11. For greater certainty, an agreement under 4.9 may provide that instead of paying the tax imposed pursuant to a WDN Real Property Taxation Law, an Indigenous government or similar body holding an interest in WDN Reserve Lands may make an annual payment to WDN for the provision of local services.

4.12. For greater certainty, the following are exempted from taxation:

1. an interest of the Crown in any real property, including real property held by any person in trust for the Crown; and
2. real property specifically exempted by applicable Federal Law.

4.12. Payments may be made in lieu of taxes by Canada for such interest in real property based on applicable Federal Law or policy.

4.13. Payments may be made in lieu of taxes by Saskatchewan for such interest in real property based on applicable Saskatchewan Law or policy.

5. REAL PROPERTY ASSESSMENT FRAMEWORK

5.1. WDN will establish a real property assessment framework that is comparable to that provided for in the First Nations Fiscal Management Act and the applicable First Nations Tax Commission Standards, which include:

1. appointing a qualified assessor and specifying the duties to be undertaken by the assessor;
2. establishing timelines for conducting assessments;
3. specifying the criteria for determining assessed values of properties for each real property class; and
4. establishing an independent review and appeal of property assessments, including timelines and rules for appealing assessments.

5.2. Further to 5.1(a) WDN will appoint the Saskatchewan Assessment Management Agency, or its successor, as an assessment appraiser to carry out valuations.

6. TAXPAYER REPRESENTATION AND ACCOUNTABILITY

6.1. WDN will establish systems for taxpayer representation to Whitecap Dakota Council in a manner that is comparable to the systems of representation provided for in the First Nations Fiscal Management Act, and the applicable First Nations Tax Commission Standards, which includes:

1. establishing minimum notice periods for proposed tax rates;
2. annual reporting to taxpayers in a clear, transparent and publicly available manner on real property tax collected as well as the allocation of the WDN revenues to categories of expenditures that benefit WDN Members and Persons other than WDN Members; and
3. ensuring on-going communication with taxpayers and allowing taxpayer input into Whitecap Dakota Council on taxation matters.

Non-Member Representation

6.2. WDN will maintain a WDN Law which sets out criteria and mechanisms, including for reasonable time periods and the sharing of information, to allow Persons other than WDN Members and who may be adversely affected by the exercise of WDN authority in respect of real property taxation to:

1. make submissions, for consideration by WDN, respecting real property taxation matters; and
2. have rights of independent appeal and access to redress mechanisms in relation to any WDN Law with respect to a real property taxation matter, including any amendments, regulations and administrative decisions;

in a manner that is comparable to that provided for in the First Nations Fiscal Management Act and the applicable First Nations Tax Commission Standards.

6.3. A WDN Law providing the criteria and mechanisms required under 6.2 shall be enacted prior to any new WDN Law being enacted by Whitecap Dakota Council after the Effective Date, or within 30 days of the Effective Date, whichever is sooner.

7. ROLE OF THE FIRST NATIONS TAX COMMISSION

7.1. WDN and the First Nations Tax Commission may enter into agreements, from time to time, for services in relation to:

1. accreditation of WDN Laws with respect to real property taxation; and
2. dispute resolution between WDN and its real property taxpayers.

8. UNIFORMITY OF WDN REAL PROPERTY TAXATION LAWS

8.1. Canada shall notify the WDN in writing if any WDN Law with respect to Real Property Taxation requires amendment, where, in the opinion of the Minister, the WDN Law does not comply with this Agreement.

8.2. Upon receipt of the notice referred to in 8.1, WDN agrees to consider an amendment to any WDN Law with respect to Real Property Taxation to rectify the deficiencies identified in the notice referred to in 8.1.

8.3. The Parties agree that if the WDN Law with respect to Real Property Taxation is not amended to rectify the deficiencies identified in the notice referred to in 8.1, Canada may terminate this Agreement:

1. where that notice provides that any WDN Law with respect to Real Property Taxation does not respect the covenants set out in 3.3 or 6.2, without delay; or
2. in any other case, not less than twelve months following receipt of the notice.

9. DISPUTE RESOLUTION

9.1. The Parties desire and expect that most disagreements will be resolved by informal discussion without the necessity of invoking a dispute resolution mechanism.

9.2. In the event that a dispute between the Parties arising under this Agreement is not resolved by informal discussion, the Parties will use the procedures set out in 9.3 to 9.6 before pursuing any other dispute resolution mechanism.

9.3. Within 30 days of a Party receiving notice from the other that it is invoking this dispute resolution process, they will meet and attempt to settle the dispute.

9.4. If, within 60 days after the first meeting referred to in 9.3, the Parties fail to resolve the dispute, they will submit the dispute to mediation and equally bear the cost of mediation.

9.5. The Parties will jointly select a mediator but if, after 90 days of the first meeting, they are unable to agree on the choice of mediator, they will submit the matter of choosing a mediator to a judge of the Court of King's Bench of Saskatchewan who will be asked to choose a mediator.

9.6. The Parties may agree to time periods other than those referred to in 9.3 to 9.5.

9.7. The Parties may agree to use any of the provisions of the Dispute Resolution Chapter of the Governance Treaty, excluding the arbitration process.

10. AMENDMENT AND REVIEW

10.1. Any amendment to this Agreement must be in writing and executed by both Parties.

10.2. Either Party may request, at any time, the other Party to review this Agreement and consider amendments to it and the other Party will not unreasonably withhold consent to the review.

10.3. Subject to any applicable approvals, authorizations or legislative requirements, the Parties may, in writing, amend or modify this Agreement.

10.4. Nothing in 10.2 and 10.3 requires either Party to agree to amend this Agreement.

11. TERMINATION

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

11.2. WDN may, at any time and for any reason, terminate this Agreement by giving the Minister at least twelve months' written notice of termination of this Agreement.

11.3. Except where 8.3(a) applies, Canada may, at any time and for any reason, terminate this Agreement by giving the WDN at least twelve months' written notice of termination of this Agreement.

12. NO ASSIGNMENT

12.1. This Agreement may not be assigned, either in whole or in part, by either Party.

13. NO IMPLIED WAIVER

13.1. No term or condition of this Agreement, or performance by a Party of a covenant under this Agreement, will be deemed to have been waived unless the waiver is in writing and signed by the Party or Parties giving the waiver.

13.2. No written waiver of a term or condition of this Agreement, of performance by a Party of a covenant under this Agreement, or of default by a Party of a covenant under this Agreement, will be deemed to be a waiver of any other covenant, term or condition, or of any subsequent default.

14. ENUREMENT

14.1. This Agreement will enure to the benefit of and be binding upon the Parties.

15. TERM OF THIS AGREEMENT

15.1. This Agreement commences on Effective Date and remains in effect until it is terminated pursuant to 8.3 or 11.

16. COUNTERPARTS

16.1. This Agreement may be executed at one or more times and in one or more places. Each counterpart will be deemed an original instrument as against any Party who has signed it, and the aggregate of the counterparts will be deemed to constitute a single executed document.

17. NOTICES

17.1. Unless otherwise provided, a notice, document, request, approval, authorization, consent or other communication (for the purposes of 17.1 to 17.3 each a "Communication") required or permitted to be given or made under this Agreement must be in writing and may be given or made in one or more of the following ways:

1. delivered personally or by courier;
2. transmitted by facsimile transmission;
3. transmitted by email; or
4. mailed by prepaid registered post in Canada.

17.2. A Communication will be considered to have been given or made, and received if:

1. delivered personally or by courier, at the start of business on the next business day after it was received by the addressee or a responsible representative of the addressee;
2. sent by facsimile transmission and if the sender receives confirmation of the transmission, at the start of business on the next business day after it was transmitted;
3. sent by email and if the sender receives confirmation of the transmission, at the start of business on the next business day after it was transmitted; or
4. mailed by prepaid registered post in Canada, when the postal receipt is acknowledged by the addressee.

17.3. A Communication must be made to the intended recipient set out below:   

For Canada:
Attention: Minister of Finance
House of Commons
Confederation Building
OTTAWA ON K1A 0A6
Fax number: (613) 996-9607
Email address: [first name.last name@parl.gc.ca]

For Whitecap Dakota Nation:
Attention: Chief Finance Officer
182 Chief Whitecap Trail               
WHITECAP, SK S7K 2L2
Fax number: (306) 477-0908
Email address: receptionbo@whitecapdakota.com

A Party may change its postal or email address or facsimile number by giving a notice of the change to the other Party in the manner set out above in 17(1).

EXECUTED on the 28 day of August, 2023 in the presence of:

HIS MAJESTY THE KING IN RIGHT OF CANADA, as represented by the Minister of Finance

Chrystia Freeland
Minister of Finance

EXECUTED on the 17 day of July, 2023 in the presence of:

WHITECAP DAKOTA FIRST NATION, as represented by the Chief and Councillors of Whitecap Dakota First Nation

Darcy Bear
Chief, Whitecap Dakota First Nation

Frank Royal
Councillor, Whitecap Dakota First Nation

Dwayne Eagle
Councillor, Whitecap Dakota First Nation