First Nations Goods and Services Tax Act (S.C. 2003, c. 15, s. 67)

Marginal note:First nation — provisions of other Acts of Parliament

• 38 (1) Subject to subsection (2), if any other Act of Parliament or an agreement that has been given effect by any other Act of Parliament recognizes or grants a power of a first nation, other than a band, to enact a law and that Act or agreement contains provisions relating to such matters as the expenditure of moneys raised under a law of the first nation relating to taxation, the style, form or registration of such a law or the procedure for enacting, publishing and providing copies of such a law, the provisions of that Act or agreement apply, with any necessary modifications, for the purposes of a law of the first nation that is enacted under subsection 33(1).

• Marginal note:Exception

  (2) Subsection (1) does not apply to the extent that provisions relating to the matters referred to in that subsection are contained in a law of a first nation that is enacted under a power recognized or granted under any other Act of Parliament or under a power recognized or granted under an agreement that has been given effect by any other Act of Parliament.

Marginal note:Definition of first nation law

• 39 (1) In this section, first nation law means a law enacted under subsection 33(1).

• Marginal note:Administration agreement

  (2) The authorized body of a first nation may enter into an administration agreement in respect of a first nation law enacted by the governing body of the first nation.

• Marginal note:Rules if agreement

  (3) If the authorized body of a first nation and the Minister have entered into an administration agreement in respect of a first nation law,

  • (a) every provision of Part IX of the Excise Tax Act (other than a provision that creates a criminal offence) applies, with any necessary modifications, for the purposes of the first nation law as if tax referred to in each of paragraphs 33(1)(a) and (c) imposed under the first nation law were imposed under subsection 165(1) and section 218 of the Excise Tax Act, respectively, and, subject to subsection 33(8), as if tax referred to in paragraph 33(1)(b) imposed under the first nation law were imposed under subsection 220.05(1) of the Excise Tax Act in respect of the bringing of specified products into a participating province, but the first nation law is not to be construed as imposing a tax except as provided in section 33;

  • (b) the first nation law applies as if tax imposed under Part IX of the Excise Tax Act were imposed under the first nation law and as if the provisions of that Part (other than a provision that creates a criminal offence) relating to that tax were included in the first nation law, but the first nation law is not to be construed as imposing a tax except as provided in section 33;

  • (c) Part IX of the Excise Tax Act applies, other than for the purposes of paragraph (a), as if tax imposed under the first nation law were imposed under that Part and as if the provisions of the first nation law relating to that tax were included in that Part, but that Part is not to be construed as imposing a tax except as provided in that Part;

  • (d) all Acts of Parliament, other than this Act and Part IX of the Excise Tax Act, apply as if tax referred to in each of paragraphs 33(1)(a) and (c) imposed under the first nation law were imposed under subsection 165(1) and section 218 of the Excise Tax Act, respectively, and, subject to subsection 33(8), as if tax referred to in paragraph 33(1)(b) imposed under the first nation law were imposed under subsection 220.05(1) of the Excise Tax Act in respect of the bringing of specified products into a participating province; and

  • (e) for greater certainty,

    • (i) a person who does anything to satisfy a requirement of the first nation law that would satisfy a corresponding requirement of Part IX of the Excise Tax Act if the tax imposed under the first nation law were imposed under that Part is deemed to have satisfied the requirement of the first nation law,

    • (ii) a person who does anything to exercise an authority, right or privilege under the first nation law that would be a valid exercise of a corresponding authority, right or privilege under Part IX of the Excise Tax Act if the tax imposed under the first nation law were imposed under that Part is deemed to have validly exercised the authority, right or privilege under the first nation law,

    • (iii) a person who does anything to satisfy a requirement or exercise an authority, right or privilege under Part IX of the Excise Tax Act is deemed to have done that thing for the purposes of both that Part and the first nation law,

    • (iv) a person who does anything to satisfy a requirement or exercise an authority, right or privilege under the first nation law is deemed to have done that thing for the purposes of both that law and Part IX of the Excise Tax Act,

    • (v) a person who is a registrant for the purposes of Part IX of the Excise Tax Act is a registrant for the purposes of both that Part and the first nation law,

    • (vi) a person who is a registrant for the purposes of the first nation law is a registrant for the purposes of both that law and Part IX of the Excise Tax Act,

    • (vii) if a proceeding may be taken under any other Act of Parliament in respect of the tax imposed under Part IX of the Excise Tax Act, that proceeding may be taken in respect of the tax imposed under the first nation law, and

    • (viii) nothing in this Part is to be construed as conferring on a governing body the power to make an enactment in respect of criminal law.

First Nation Law Enacted Under Separate Power

Marginal note:Definition of first nation law

• 40 (1) In this section, first nation law means a law enacted by the governing body of a first nation listed in Schedule 3 under a power recognized or granted under any other Act of Parliament or an agreement that has been given effect by any other Act of Parliament, if that law and its application are consistent with subsections 33(1) to (9), section 34, subsection 35(3), paragraphs 39(3)(a) and (b) and subparagraphs 39(3)(e)(i) to (iii), (v) and (viii).

• Marginal note:Rules if agreement

  (2) If the authorized body of a first nation and the Minister have entered into an administration agreement in respect of a first nation law,

  • (a) Part IX of the Excise Tax Act applies as if tax imposed under the first nation law were imposed under that Part and as if the provisions of the first nation law relating to that tax were included in that Part, but that Part is not to be construed as imposing a tax except as provided in that Part;

  • (b) all Acts of Parliament, other than this Act and Part IX of the Excise Tax Act, apply as if tax referred to in each of paragraphs 33(1)(a) and (c) imposed under the first nation law were imposed under subsection 165(1) and section 218 of the Excise Tax Act, respectively, and, subject to subsection 33(8), as if tax referred to in paragraph 33(1)(b) imposed under the first nation law were imposed under subsection 220.05(1) of the Excise Tax Act in respect of the bringing of specified products into a participating province; and

  • (c) for greater certainty,

    • (i) a person who does anything to satisfy a requirement or exercise an authority, right or privilege under the first nation law is deemed to have done that thing for the purposes of both that law and Part IX of the Excise Tax Act,

    • (ii) a person who is a registrant for the purposes of the first nation law is a registrant for the purposes of both that law and Part IX of the Excise Tax Act, and

    • (iii) if a proceeding may be taken under any other Act of Parliament in respect of the tax imposed under Part IX of the Excise Tax Act, that proceeding may be taken in respect of the tax imposed under the first nation law.

• Marginal note:Cessation of agreement

  (3) If an administration agreement in respect of a first nation law ceases to have effect at any time, this Part applies after that time in respect of the first nation law as if the first nation law had been repealed at that time.

Tax Attributable to a First Nation

Marginal note:Tax attributable to first nation

• 41 (1) An administration agreement in respect of a first nation law, as defined in subsection 39(1) or 40(1), of a particular first nation is to provide for payments by the Government of Canada to the particular first nation in respect of that law based on an estimate for each calendar year of the amount (in this section referred to as “tax attributable to the first nation”) by which

  • (a) the total of all amounts each of which is an amount of tax that, while that first nation law was in force, became payable in the year under a first nation law, as defined in subsection 39(1) or 40(1), or Part IX of the Excise Tax Act (other than subsections 165(2), 212.1(2) and 218.1(1) and Division IV.1) and that is attributable to a specified product that is for consumption or use on the lands of the particular first nation,

  exceeds

  • (b) the total of all amounts each of which is included in the total determined under paragraph (a) and

    • (i) is included in determining an input tax credit or in determining a deduction that may be claimed in determining the net tax of a person,

    • (ii) can reasonably be regarded as an amount that a person is or was entitled to recover by way of a rebate or refund or otherwise under a first nation law, as defined in subsection 39(1) or 40(1), or under any Act of Parliament, or

    • (iii) is an amount of tax in respect of a supply to a person who is, under any Act of Parliament or any other law, exempt from paying the tax.

• Marginal note:Administration agreement

  (2) The Minister, with the approval of the Governor in Council, may on behalf of the Government of Canada enter into an agreement in respect of a first nation law, as defined in subsection 39(1) or 40(1), of a first nation with the authorized body of the first nation and, among other things, the agreement is to provide

  • (a) the method for estimating, in accordance with the formulae, rules, conditions and data sources specified in the agreement, the tax attributable to the first nation;

  • (b) for the sharing, if any, between the first nation and the Government of Canada of the tax attributable to the first nation;

  • (c) for the retention by the Government of Canada, as its property, of

    • (i) the portion, if any, of the total tax imposed by the first nation under the first nation law that is not tax attributable to the first nation, and

    • (ii) the Government of Canada’s share, if any, under paragraph (b) of the tax attributable to the first nation;

  • (d) for the payments, and for the eligibility for payments, by the Government of Canada to the first nation in respect of the tax attributable to the first nation out of the Consolidated Revenue Fund to which the first nation is entitled under the agreement, the time when and the manner in which the payments will be made, and the remittance by the first nation to the Government of Canada of any overpayments or advances by the Government of Canada or the right of the Government of Canada to set off any overpayments or advances against amounts payable by the Government of Canada to the first nation under the agreement;

  • (e) for the administration and enforcement of the first nation law by the Government of Canada or, if the first nation law is administered by the government of a province under an agreement entered into under section 7 of the Federal-Provincial Fiscal Arrangements Act, by the government of the province and for the collection, by the Government of Canada or the government of the province, as the case may be, of amounts imposed under that law;

  • (f) for the provision by the Government of Canada or, if the first nation law is administered by the government of a province under an agreement entered into under section 7 of the Federal-Provincial Fiscal Arrangements Act, by the government of the province to the first nation of information acquired in the administration and enforcement of the first nation law or, subject to section 295 of the Excise Tax Act, of Part IX of that Act, and for the provision by the first nation to the Government of Canada or the government of the province, as the case may be, of information acquired in the administration of the first nation law;

  • (g) for the accounting of tax attributable to the first nation in accordance with the agreement;

  • (h) for the payment by the Government of Canada and its agents and subservient bodies of amounts imposed under the first nation law or any other first nation law, as defined in subsection 39(1) or 40(1), and for the payment by the first nation and its agents and subservient bodies of amounts imposed under that law, any other first nation law, as defined in subsection 39(1) or 40(1), or Part IX of the Excise Tax Act;

  • (i) for the accounting for the payments referred to in paragraph (h);

  • (j) for the compliance by the Government of Canada and its agents and subservient bodies with the first nation law and any other first nation law, as defined in subsection 39(1) or 40(1), and for the compliance by the first nation and its agents and subservient bodies with that law, any other first nation law, as defined in subsection 39(1) or 40(1), and Part IX of the Excise Tax Act; and

  • (k) for other matters that relate to, and that are considered advisable for the purposes of implementing or administering, the first nation law.

• Marginal note:Amending agreements

  (3) The Minister, with the approval of the Governor in Council, may on behalf of the Government of Canada enter into an agreement with the authorized body of a first nation amending or varying an administration agreement with the first nation or an agreement under this subsection.

• Marginal note:Amending agreements — exception

  (4) Subsection (3) does not apply to an amendment made to an administration agreement if the agreement authorizes the Minister to make the amendment and the amendment does not fundamentally alter the terms and conditions of the agreement.

• Marginal note:Payments to first nation

  (5) If the Minister, on behalf of the Government of Canada, has entered into an administration agreement with the authorized body of a first nation, the Minister may pay to the first nation out of the Consolidated Revenue Fund

  • (a) amounts determined in accordance with the agreement as provided, and at such times as are specified, in the agreement; and

  • (b) in accordance with the agreement, advances in respect of the amounts referred to in paragraph (a).

• Marginal note:Payments to other persons

  (6) Subject to subsection (7), if an administration agreement has been entered into in respect of a first nation law, as defined in subsection 39(1) or 40(1), payments may be made to a person out of the Consolidated Revenue Fund on account of any amount that is payable to the person under that law in accordance with the agreement unless the first nation law is administered by the government of a province under an agreement entered into under section 7 of the Federal-Provincial Fiscal Arrangements Act.

• Marginal note:Recoverable advance out of Consolidated Revenue Fund

  (7) If no amount is held on behalf of a first nation from which payment under subsection (6) may be made in accordance with an administration agreement, or the amount of the payment exceeds the amount so held, payment under subsection (6) may be made as a recoverable advance out of the Consolidated Revenue Fund if the repayment of the amount or excess by the first nation is provided for in the agreement.

Marginal note:Statutory authority to make payments

42 Despite any other Act of Parliament, the payments made under an administration agreement under the authority of subsection 41(5), (6) or (7) may be made without any other or further appropriation or authority.