Whitecap Dakota Nation Tax Treatment 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. 11.16 of the Taxation Chapter of the Governance Treaty provides that the Parties will enter into a tax treatment agreement; and
2. This Agreement is the tax treatment agreement referred to in recital 1 and is called the “Whitecap Dakota Nation Tax Treatment Agreement.”

NOW THEREFORE, the Parties agree as follows:

1. DEFINITIONS AND INTERPRETATION

1(1) In this Agreement:

“Agreement” means this Whitecap Dakota Nation Tax Treatment Agreement between and signed by the Parties, as amended from time to time;

“Claimant” means:

1. WDN; or
2. a person, other than a financial institution, that is
   
   1. a trust, board, commission, tribunal or similar body, established by WDN;
   2. an Eligible Corporation incorporated under federal or provincial laws; or
   3. a partnership each member of which is a person described in a), or b)(i) or b)(ii);

“Cultural Property Export and Import Act” means the Cultural Property Export and Import Act, R.S.C. 1985, c. C-51;

“Eligible Corporation” means a corporation, all of the shares of which, except directors’ qualifying shares, or the capital of which, are owned by:

1. WDN;
2. a corporation that itself is an Eligible Corporation; or
3. any combination of the persons referred to in a) and b);

“Excise Tax Act” means the Excise Tax Act, R.S.C. 1985, c. E-15;

“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;

“Income Tax Act” means the Income Tax Act, R.S.C. 1985, c.1 (5th supp);

“Interpretation Act” means the Interpretation Act, R.S.C. 1985, c. I-21;

“Specified Activity” of a Claimant means:

1.  a business or other activity that has the primary purpose of providing property or services to other Claimants, WDN Members, or individuals resident on WDN Reserve Lands or any combination of those persons; or
2.  any other business or activity that the Parties agree is a Specified Activity.

1(2) The Interpretation Act applies to this Agreement as if it were an enactment, except that the definition of “government” in subsection 123(1) of the Excise Tax Act does not apply for the purposes of section 4.

1(3) Except as provided in subsection 1(1), the definitions in the Governance Treaty apply to this Agreement.

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.

2. GENERAL

2(1) This Agreement does not form part of the Governance Treaty.

2(2) This Agreement is not a treaty or a 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.

2(3) This Agreement enures to the benefit of and is binding upon the Parties and their respective successors.

2(4) Nothing in this Agreement affects any entitlement of WDN Members or WDN to any benefit available under any Federal or Provincial law.

2(5) No provision of this Agreement, or performance by a Party of an obligation under this Agreement, may be waived unless the waiver is in writing and signed by the Party giving the waiver.

2(6) No written waiver of a provision of this Agreement, of performance by a Party of an obligation under this Agreement, or of default by a Party of an obligation under this Agreement, is deemed to be a waiver of any other provision or obligation, or of any subsequent default.

2(7) This Agreement may not be assigned, either in whole or in part, by either Party.

2(8) This Agreement may be executed in counterparts each of which when taken together constitutes one and the same instrument.

2(9) This Agreement may be executed by electronic signature, which will be considered as an original signature for all purposes and has the same force and effect as an original signature on paper. Without limitation, “electronic signature” includes faxed versions of an original signature or electronically scanned and transmitted versions (e.g., via pdf) of an original signature.

2(10) If any provision of this Agreement is declared or held to be void, voidable, invalid, illegal, or unenforceable for whatever reason, the provision will be severed from the remainder of this Agreement but all other provisions of this Agreement will remain in full force and effect and will be construed as if this Agreement had been executed without the void, voidable, invalid, illegal or unenforceable portion.

3. INCOME TAX ACT STATUS OF WHITECAP DAKOTA NATION

3(1) For the purpose of paragraph 149(1)(c) of the Income Tax Act, WDN is deemed to bea public body performing a function of government in Canada.

3(2) For the purposes of paragraphs 149(1)(d) to 149(1)(d.6) and subsections 149(1.1) to 149(1.3) and 149(11) of the Income Tax Act, WDN is deemed to be a public body performing a function of government in Canada whose geographical boundaries are those of WDN Reserve Lands.

3(3) For the purposes of the definition of “qualified donee” in subsection 149.1(1) of the Income Tax Act, the WDN is deemed to be a public body performing a function of government in Canada.

3(4) WDN will be treated as a public authority designated pursuant to subsection 32(2) of the Cultural Property Export and Import Act, and any non-profit organization established by WDN to receive, store and display cultural objects will be treated as an institution designated under that subsection of that Act, if WDN or the non-profit organization, as the case may be:

1. has
   1. a facility that meets the environmental requirements of the Minister designated as the Minister for the purposes of the Cultural Property Export and Import Act in respect of long-term storage and display of cultural objects; or
   2. the use, by virtue of an agreement with a public authority or an institution, as the case may be, that is designated under subsection 32(2) of the Cultural Property Export and Import Act, of a facility that meets the environmental requirements of the Minister designated as the Minister for the purposes of the Cultural Property Export and Import Act, until such time as WDN or the non-profit organization has a facility that meets those requirements; and
2. uses either facility to store or display cultural objects, including any that are donated to it and that are included in “total cultural gifts” within the meaning of subsection 118.1(1) of the Income Tax Act for purposes of computing the income tax liability of the donor.

4. GOODS AND SERVICES TAX REFUND

4(1) A Claimant who acquires or imports property or a service in respect of which it pays tax under subsection 165(1) or section 212 or 218 of the Excise Tax Act is entitled to a refund of that portion of the tax that is not recoverable as an input tax credit under Part IX of that Act and is not otherwise recovered under any law, if:

1. the property or service was not acquired or imported for consumption, use or supply in the course of a business or other activity, other than a Specified Activity, engaged in by the Claimant for profit or gain; and
2. the property or service was acquired or imported for consumption, use or supply in the course of performing a function of government under the Governance Treaty or other agreement between Canada and WDN.

4(2) Despite paragraph 141.1(1)(b), subsection 200(3), section 1 of Part V.1 of Schedule V and sections 2 and 25 of Part VI of that Schedule, of the Excise Tax Act, and despite subsection 2(4) of this Agreement, if a Claimant makes a supply by way of sale of property that is capital property of the Claimant and in respect of which the Claimant is entitled to receive a refund under subsection 4(1), the supply is deemed, for the purposes of Part IX of that Act, to be made in the course of a commercial activity of the Claimant.

4(3) A refund of tax under subsection 4(1) will not be paid unless an application for the refund is filed with the Minister of National Revenue within four years after the tax was paid.

4(4) The provisions of Part IX of the Excise Tax Act apply, with such modifications as the circumstances require, in respect of claims under subsection 4(1) and in respect of amounts paid or payable as a refund under that subsection, as though the refund provided for under that subsection were a rebate provided for under Division VI of Part IX of the Excise Tax Act.

5. EQUIVALENT BENEFITS

5(1) If within five years after the Effective Date, Canada signs another self-government agreement or comprehensive land claim and self-government agreement, or tax treatment agreement, that provides for tax powers that are not available to WDN or tax exemptions that are not available to the WDN or WDN Members under the Governance Treaty or this Agreement, Canada, at the request of WDN, will negotiate with a view to reaching an agreement with WDN to provide equivalent tax powers to WDN or tax exemptions to the WDN or WDN Members, as the case may be, taking into account the particular circumstances of the Governance Treaty and that other self-government agreement or comprehensive land claim and self-government agreement.

6. DISPUTE RESOLUTION

6(1) The Parties desire and expect that most disagreements will be resolved by informal discussion, between the Parties, without the necessity of invoking a dispute resolution mechanism.

6(2) Except for a dispute under sections 3 to 4, in the event of a dispute between the Parties arising under this Agreement, the Parties will use the mediation process referred to in the Dispute Resolution Chapter of the Governance Treaty before pursuing any other legal remedy.

7. TERM OF THIS AGREEMENT

7(1) Subject to subsection 7(2), this Agreement comes into effect on the Effective Date and, unless the Parties agree otherwise, terminates at the end of March 31st of the second calendar year following the calendar year in which a Party notifies the other Party that it wants this Agreement to terminate.

7(2) A Party may not, before the end of the calendar year in which the 15th anniversary of the Effective Date occurs, give notice that it wants this Agreement to terminate.

7(3) At least one year before this Agreement is expected to terminate, the Parties will use best efforts to negotiate a new tax treatment agreement.

8. AMENDMENT AND REVIEW

8(1) Any amendment to this Agreement must be in writing and executed by the Parties.

8(2) Either Party may at any time request the other Party to review this Agreement and to consider amendments to this Agreement and the other Party will not unreasonably withhold consent to the review.

8(3) For greater certainty, nothing in subsection 8(2) requires either Party to agree to amend this Agreement. 

9. NOTICES

9(1) Unless otherwise provided, a notice, document, request, approval, authorization, consent or other communication (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.

9(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.

9(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, Whitecap Dakota Nation
182 Chief Whitecap Trail
WHITECAP, SK  S7K 2L2
Fax number: 306-374-5899
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 9(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

Chief Darcy Bear, Whitecap Dakota First Nation

Councillor Frank Royal, Whitecap Dakota First Nation

Councillor Dwayne Eagle, Whitecap Dakota First Nation