Vol. 148, No. 1 — January 1, 2014

Registration

SOR/2013-237 December 13, 2013

FIRST NATIONS FISCAL MANAGEMENT ACT

Regulations Amending the First Nations Property Assessment and Taxation (Railway Rights-of-Way) Regulations

P.C. 2013-1360 December 12, 2013

His Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to paragraph 36(1)(d) of the First Nations Fiscal Management Act (see footnote a), makes the annexed Regulations Amending the First Nations Property Assessment and Taxation (Railway Rights-of-Way) Regulations.

REGULATIONS AMENDING THE FIRST NATIONS PROPERTY ASSESSMENT AND TAXATION (RAILWAY RIGHTS-OF-WAY) REGULATIONS

AMENDMENT

1. Item 4 of Schedule 1 to the First Nations Property Assessment (Railway Rights-of-Way) Regulations (see footnote 1) is amended by adding, in column 2, the following after paragraph (b):

Item

Column 2

Description of Right-of-way Area

4.

(c) In the Province of British Columbia

In Yale Division of Yale District

All those lands shown as Lot 1 of Section 21, Township 5, Range 26, West of the 6th Meridian, shown on Plan EPP27024 deposited in the Kamloops Land Title Office; a copy of which is recorded under number 101786 in the Canada Lands Surveys Records in Ottawa. Containing about 0.237 hectares (0.586 acres).

(d) In the Province of British Columbia

In Yale Division of Yale District

All that parcel of land containing an area of 0.06 hectares (0.15 acres) more or less, shown on Plan 48856 deposited in the New Westminster Land Title Office; a copy of which is recorded under number 58901 in the Canada Lands Surveys Records in Ottawa.

COMING INTO FORCE

2. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The First Nations Property Assessment and Taxation (Railway Rights-of-Way) Regulations (the Regulations) require an amendment to include additional reserve lands of the Chawathil First Nation. These reserve lands, which consist of about 0.237 hectares (0.586 acres) on Tunnel Indian Reserve No. 6 and an area of 0.06 hectares (0.15 acres) more or less on Chawathil Indian Reserve No. 4, are part of the Canadian Pacific Railway (railway rights-of-way) and were included in a 2003 Tripartite Settlement Agreement (the Agreement) between Chawathil First Nation, Canada and the Canadian Pacific Railway.

These lands were not included with the other similarly affected reserve lands of the Chawathil First Nation in SOR/2003-373 as further investigation was required to determine whether the lands are Indian reserve lands. As research has now confirmed that the lands are reserve lands, the Regulations require an amendment to include these lands as falling within the scope of the Chawathil First Nation’s property taxation jurisdiction.

As part of the Agreement, the parties agreed that the First Nation would be entitled to levy property taxes against the Canadian Pacific Railway (railway rights-of-way) provided that property taxes are levied in accordance with the Regulations. Accordingly, the Regulations require an amendment to add the Chawathil First Nation specific reserve lands to the scope of the application of the Regulations.

Background

The Canadian Pacific Railway holds railway rights-of-way through multiple reserves in the interior of British Columbia. A dispute regarding the taxation jurisdiction over these rights-of-way resulted in litigation between the Canadian Pacific Railway and First Nations whose reserves were affected by the rights-of-way. To settle outstanding litigation, and to facilitate implementation of property taxation on reserve lands, Canada, the Canadian Pacific Railway and five affected First Nations entered into a settlement agreement in 2001. This settlement agreement provided for the creation of a regulated property taxation regime, to provide railway companies occupying reserve land with levels of property taxation that are comparable to levels that exist under provincial law. Subsequently, other First Nations affected by the Canadian Pacific Railway (railway rights-of-way) entered into settlement agreements with the Canadian Pacific Railway and Canada to facilitate the implementation of property taxation. In 2003, the Chawathil First Nation entered into such a settlement agreement.

The First Nations Fiscal Management Act (see footnote 2) (the Act) came into force on April 1, 2006. The First Nations Property Assessment and Taxation (Railway Rights-of-Way) Regulations (the Regulations) were enacted under the Act to enable First Nations operating under the Act to levy property taxes against railway rights-of-way areas on reserve lands.

On September 5, 2008, the Chawathil First Nation (and certain reserve lands held by the Chawathil First Nation at that time) was added to the Schedules to the Regulations. However, two parcels of land on Chawathil Indian Reserve No. 4 and Tunnel Indian Reserve No. 6 were not added to the Regulations, as further investigation was required to determine whether these lands were in fact reserve levels. Research concluded these two parcels are in fact reserve levels, and as a result, the Chawathil First Nation is now requesting that these additional on-reserve railway rights-of-way lands be added to Schedule 1 to the Regulations for taxation purposes to provide an additional source of ongoing revenue.

Objectives

The amendment of the Regulations to include the Chawathil First Nation reserve lands will bring these lands within the scope of the First Nation’s taxation jurisdiction and, as a result, will provide the First Nation with additional property tax revenue. The Regulations provide levels of taxation that are comparable to those off-reserve payable in neighboring communities. This fosters harmony between taxation by First Nations and taxation by other authorities and ensures compliance with the principles of equity, natural justice and fairness.

Description

The amendment of the Regulations will add two further parcels of land to the lands currently subject to the Chawathil First Nation’s taxation regulations. The lands are legally described as

In the Province of British Columbia

In Yale Division of Yale District

All those lands shown as Lot 1 of Section 21, Township 5, Range 26, West of the 6th Meridian, shown on Plan EPP27024 deposited in the Kamloops Land Title Office; a copy of which is recorded under number 101786 in the Canada Lands Surveys Records in Ottawa. Containing about 0.237 hectares (0.586 acres).

In the Province of British Columbia

In Yale Division of Yale District

All that parcel of land containing an area of 0.06 hectares (0.15 acres) more or less, shown on Plan 48856 deposited in the New Westminster Land Title Office; a copy of which is recorded under number 58901 in the Canada Lands Surveys Records in Ottawa.

“One-for-One” Rule

The “One-for-One” Rule does not apply to the amendment to the Regulations, as it does not result in any administrative cost or savings to businesses.

Small business lens

The small business lens does not apply to the amendment to the Regulations, as it does not result in any cost for small business.

Consultation

Given that this amendment implements a request by the Chawathil First Nation to have its reserve lands fall within the scope of the Regulations, it was not considered necessary to undertake consultations over and above those already conducted by the Chawathil First Nation with stakeholders, including the Province of British Columbia, in accordance with Schedule F of the Agreement and through ratification of the Agreement by the members of the Chawathil First Nation, by Canadian Pacific Railway, and by Canada. This is a technical amendment that only impacts the Chawathil First Nation, the Canadian Pacific Railway and the Province of British Columbia and has no effect on any other individual or entity.

Rationale

The Regulations provide for a taxation regime comparable to that which exists off-reserve, ensuring a greater consistency in property taxation between on-reserve and off-reserve taxation authorities.

Amending Schedule 1 of the Regulations to include these reserve lands will bring the two parcels within the scope of the Chawathil First Nation’s taxation jurisdiction and, as a result, will provide the Chawathil First Nation with additional property tax revenue. This proposal will ensure that tax revenue is directed to the Chawathil First Nation as the appropriate taxing authority. Upon the granting of the amendment, Chawathil First Nation will receive the tax revenue and the Province of British Columbia will forego receipt of such revenue. In 2011, the tax revenue generated from the two parcels was $708.07. The tax revenue will provide Chawathil First Nation with an additional source of ongoing revenue.

Implementation, enforcement and service standards

The Regulations apply to the property taxation laws made by the Chawathil First Nation in respect of taxation of railway rights-of-way areas on reserve lands. Therefore, the property taxation laws made by the Chawathil First Nation in respect of taxation of railway rights-of-way areas on the reserve lands conform with the property assessment, valuation and tax rate provisions set out in the Regulations.

The amendment to the Regulations will allow for property taxation laws made by the Chawathil First Nation in respect of taxation of railway rights-of-way areas on the reserve lands, which will ensure that property tax revenues payable by the Canadian Pacific Railway are paid to the Chawathil First Nation rather than to the province or applicable regional or municipal taxation authority.

Contact

For enquiries in English:

Bradley Evers
Policy and Issues Analyst
Aboriginal Affairs and Northern Development Canada
600–1138 Melville Street
Vancouver, British Columbia
V6E 4S3
Telephone: 604-666-0369
Fax: 604-775-7149
Email: Bradley.Evers@aadnc-aandc.gc.ca

For enquiries in French:

Kris Johnson
Senior Director
Lands Modernization
Aboriginal Affairs and Northern Development Canada
10 Wellington Street, Room 1230
Gatineau, Quebec
K1A 0H4
Telephone: 819-994-7311
Fax: 819-994-5697
Email: Kris.Johnson@aadnc-aandc.gc.ca