Minister of Indian Affairs and Northern Development Ottawa, Canada K 1A OH4
I, the Minister of Indian Affairs and Northern Development, HEREBY APPROVE, pursuant to section 83 of the Indian Act, the following by-law made by-the Opaskwayak Cree Nation, in the Province of Manitoba, at a meeting held on the 10 th day of December, 1996. Opaskwayak Cree Nation - Land Tax By-law Dated at Ottawa, Ontario this 11th day of Februai:y, certified True C~PY Pursuant to Section •
Canada
Ministre des Affaires indiennes et du Nord canadien
1997. of the Original 01 the \ndian Act 86 ~ 15£eh?l-J --------.. -.. -----=su:-::p~er\ntendant
OPASKWA Y AK CREE NA~?~ant to sec OCN LAND TAX BY-LAW 1996 PART 1 - CONTEXT 1.1 Background and purpose Under the Indian Act, the council of a band may make a by-law for the purpose of taxation for local purposes of land, or interests in land, in the reserve In addition, the Opaskwayak Cree Nation has and continues to exercise an inherent aboriginal right of self-government within its territories, as recognised and affirmed under the Constitution Act 1982.
This by-law is made by Chief and Council of the Opaskwayak Cree Nation under statutory and inherent jurisdiction for the purposes of (a) raising revenue for local purposes, and (b) gaining a share of the wealth inherent in the use and occupation of our land by others.
This by-law provides for the taxation of land (including buildings and other improvements) and interests in land held by persons that are not members of Opaskwayak Cree Nation. It provides for the valuation of land for tax purposes, a review and appeal procedure for valuations, and an administrative and enforcement framework.
1.2 Interpretation (1) In this by-law, "improvement" means (a) a building, fixture or structure that is erected or placed in, on, over or under land, whether or not it is affixed to the land and is capable of being conveyed without special mention in a conveyance of the land, and includes (b) a part of a building, fixture or structure under clause ( a), (c) plant, machinery, equipment and containers that are used in the retail marketing of oil and oil products, ( d) pipeline, (e) railway roadway, (f) railway track, (g) a mobile house or office that is not licensed for travel on a highway and is used or is capable or being used for residential, commercial or industrial purposes, or is used for storage purposes, (h) a utility distribution system, and
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• OCN Land Tax By-Law 1996 2 (i) lines and cables for the transmission of electricity, telephone signals and data, including fibre-optic cables, and equipment and appurtenances used on or in connection with them;
"interest-holder" means the holder of an interest or right to possess, occupy or use land; "land" means land as it is understood in the common law and includes improvements as defined in this by-law;
"pipeline" means a line of pipe, and its valves, cleanouts, fastenings and appurtenances, that are used in the transportation of petroleum, petroleum products or gas, and does not include (a) refining, manufacturing or marketing pipeline that is situated wholly within the limits of the land of a refinery, manufacturing or marketing outlet, (b) pipeline that runs from a well to a separator or to tank batteries, or ( c) a gas distribution system;
"railway roadway" means a continuous strip of land not exceeding 100 feet in width that is used as a roadway or right of way for a railway and includes the rails, grading, ballast, embankments, ties and fastenings, miscellaneous track accessories and appurtenances, switches, poles, wires, conduits and cables, fences, trestles, bridges, subways, culverts, tunnels, cattle guards, cattle passes, platforms, scales, turntables, service pits, hoists, signals and signal towers, radio towers, grade crossing protective appliances, hot box and dragging equipment, appliances and machinery used in the operation of trains, dams, spillways, reservoirs, wells, pumping machinery, pipe lines and bins situated in, on or under the right of way, but not including (a) land that is used for station grounds, terminals, freight yards, stockyards, intermodal terminals or marshalling yards, (b) land used for sidings, wyes or spurs that are not included in a roadway, ( c) stations, freight sheds, dwelling houses for employees, offices, warehouses, hotels, roundhouses, machine repair shops or other shops, whether or not situated on a roadway, or ( d) land other than land that is used for a roadway or for the safe and efficient operation of a railway;
"taxpayer" means a person liable to pay land tax in respect of a parcel of land. "utility distribution system" means a system that is used for the distribution, delivery, furnishing or sale of natural gas, electricity, telecommunication services or cable television to consumers within the reserve and includes the works, structures, erections, equipment, pipes, machinery, tools, appliances, stations, valves, poles, cables, lines, transformers and other things that are used on or in connection with the system.
OCN Land Tax By-Law 1996 3 (2) Where Chief and Council are called upon in this by-law to give their approval, make a decision or an appointment or carry out any other action, they shall do so by resolution, unless this by-law states that they shall do so by by-law.
(3) The footnotes are part of the by-law. 1.3 Application to new territory This by-law applies to territory which may in future be added to Opaskwayak Cree Nation reserves.
1.4 Name of by-law This by-law is called and may be cited as OCN Land Tax By-Law 1996.
PART 2 - LAND SUBJECT TO TAX 2.1 Taxable land (I) The property taxable under this by-law is land, including (a) land in which a person has an interest, including a right to occupy, possess or use it, and (b) land which is occupied by someone under an agreement, licence or other arrangement, or under any claim or pretext.
(2) If more than one person is liable to pay the land tax in respect of the same land, their liability is joint and several 1 • 2.2 Exempt interest-holders (1) The following persons or entities are exempt from land tax: (a) Opaskwayak Cree Nation; (b) a corporation all of the issued shares of which are beneficially owned by Opaskwayak Cree Nation, unless the corporation is carried on as a business with a view to profit; ( c) a member of Opaskwayak Cree Nation; (d) a corporation all of the issued shares of which are beneficially owned 2 by members of Opaskwayak Cree Nation;
(2) The exemption of a person or entity does not affect the liability for land tax of another person in the same land.
1 "Joint and several" is legal shorthand. For example, if there are 2 interest-holders of a parcel, then each one of them is responsible for the whole tax, rather than for 1/2 each. 2 This exemption does not apply if a shareholder holds the share as a trustee. Therefore if the real owner of the share is a non-member of Opaskwayak Cree Nation, the corporation is not exempt.
OCN Land Tax By-Law 1996 4 2.3 Exempt land ( 1) Land used for the following purposes is exempt from land tax, if the activity is carried on on a non-profit basis: (a) school, college, technical institute or university; (b) public worship or religious education; ( c) hospital or medical clinic; ( d) community games or recreation; ( e) housing for elders or persons with disabilities; (f) day-care; (g) cemetery.
(2) If land is used only in part for an exempt purpose, only that part will enjoy the exemption and the valuation of the parcel between taxable and exempt parts will be apportioned equitably.
PART 3 - LEVY OF LAND TAX 3.1 Annual levy of tax (1) For each year starting in 1997, Chief and Council may by by-law levy a land tax. The bylaw levying the tax is referred to in this by-law as the "tax rate by-law".
(2) The land tax will be expressed as a mill 3 rate on the assessed value of property as determined under Part 6
(3) Chief and Council may prescribe a different rate of tax for each class described in Appendix A.
3.2 Annual tax The land tax is a function of time. It is deemed to apply as of January I of the calendar year for which it is levied, until December 31. It applies on a pro rata basis to interests or improvements which exist or are taxable for only a portion of the year.
3 A mill is 1/lOth of a cent. A mill rate of 25 would mean a tax of 2.5 cents for every dollar of assessed value. It is the same as expressing the tax as 2.5% of assessed value.
OCN Land Tax By-Law 1996 5 PART 4 - AGREEMENTS
4.1 Deferral or suspension of taxes Chief and Council may for the purpose of encouraging the location of new business or industry or the expansion of existing business or industry enter into an agreement with a person deferring or suspending the payment of land taxes for a specific period of time, not exceeding 5 years
4.2 Alternate way of calculating land tax (1) Despite sections 3.1(2) and 6.6, Chief and Council may enter into an agreement with a person providing for a different way of calculating land tax which will result in taxes roughly the same as those that would result from the method of Parts 3 and 6.
(2) Different ways may include (a) payments based on gross or net revenues generated by a property; (b) any other equitable means.
4.3 Payment of taxes (1) Despite section 10.4(1), Chief and Council may enter into an agreement with a person providing for a different way of collecting land tax from that provided in this by-law.
(2) Different ways may include (a) payments monthly or at other intervals; (b) payments made in connection with payments of rent, royalties or other amounts due to Opaskwayak Cree Nation.
4.4 Effect of agreement While an agreement under this Part is in effect, this by-law shall be applied and interpreted in such a way as to give effect to the agreement.
PART 5 - APPLICATION OF REVENUES 5.1 Special account (1) Funds raised under this by-law shall be placed in a special account. (2) Funds raised include: (a) land taxes, (b) grants in lieu of taxes, ( c) penalties, interest and costs, and (d) fees provided for under this by-law . •
OCN Land Tax By-Law 1996 6 5.2 Authorized expenditures The following expenditures out of the funds raised under this by-law are hereby authorised: (a) refunds of overpayments and interest, (b) expenses of preparation, amendment and administration of this by-law, (c ) remuneration of an assessor, (d ) expenses in connection with appeals and operation of the Assessment Appeal Board, (e) expenses incurred in defending any legal challenge to this by-law or any action taken under it.
PART 6 - ASSESSMENT 6.1 Purpose The purpose of this pait is to provide for the independent determination of the assessed value of land to which the rate of land tax is applied.
6.2 Appointment of assessor Chief and Council shall appoint an assessor, who must be a qualified appraiser or assessor.
6.3 Duties of assessor The assessor is responsible for (a) the valuation of land which is required to be assessed; (b) preparation and amendment of the assessment roll; (c ) reporting to and advising Chief and Council, or the appropriate committee of Council, on assessment matters; (d) dealing with inquiries and complaints from taxpayers with respect to assessment matters; and (e) attending appeal hearings on behalf ofOpaskwayak Cree Nation.
6.4 Assessable land The following land is subject to valuation for assessment purposes: (a) taxable land; (b) exempt land for which grants in lieu of taxes may be available; and (c ) other land where valuation is directed by Chief and Council.
6.5 Interest valued Land is to be valued as if the taxable interest were fee or legal title without encumbrance or restriction held off reserve, notwithstanding that the person liable to taxation has a lesser right.
OCN Land Tax By-Law 1996 7 6.6 Principles and standards governing assessment (1) Subject to subsection (2), the assessor may (a) use such methods and standards of valuation as the assessor considers appropriate, including those prescribed for assessments under provincial legislation or regulation; (b) value land on the basis of comparison with assessments in neighbouring jurisdictions; or ( c) confirm and adopt assessed values which were previously determined by the Provincial Municipal Assessor and shown on records maintained by the Province.
(2) Chief and Council may by by-law prescribe methods and standards of valuation for use by the assessor.
(3) A general reassessment will be carried out at least once every 4 years. 6. 7 Preparation of assessment roll (l) For each calendar year the assessor must prepare an assessment roll containing the assessed values of all land subject to valuation for assessment purposes.
(2) The assessment roll must contain, for each property, ( a) a description of the land sufficient to identify or locate it; (b) the name and mailing address of the taxpayer (or, if exempt, the interest-holder); ( c) the name and mailing address of a holder of a mortgage or charge who has given notice under subsection (3); (d) the assessed value of the land including, when necessary or useful, separate values for bare land and improvements; (e) whether the land or the interest-holder is exempt or taxable; and (f) if necessary, the classification into which the land falls.
(3) A holder of a mortgage or other charge affecting land or improvements may give written notice with particulars of the nature of the charge to the Land Tax Administrator.
6.8 Effect of assessment roll When adopted by resolution of Chief and Council, the assessment roll forms the basis for the levy of land tax in the year of adoption, unless a change is made by way of amendment or appeal.
6.9 Amendment of assessment roll (I) The assessment roll may be amended at any time (a) to reflect: (I) improvements completed or partly completed, (II) improvements moved into the settlement,
• OCN Land Tax By-Law 1996 8 (III) improvements dismantled, removed or destroyed, (IV) land becoming qualified or losing its qualification for exemption; and (V) a change in classification; and (b) to correct errors and omissions. (2) An amendment is not effective unless it has been approved by resolution of Chief and Council.
(3) Subject to subsection (4), an amendment to the assessment roll has the effect of adjusting the land taxes payable on the affected land in accordance with the principle of section 3.2.
(4) The adjustment of taxes is to be calculated as of the date on which the amendment could have been made, but no earlier than the beginning of the calendar year prior to the year in which the amendment is made.
6.10 Notice of assessment (1) On or before the date when it mails the land tax notices, the Land Tax Administrator must, for every piece of land shown on the assessment roll which is taxable or in respect of which grants in lieu of taxes will be sought, (a) prepare an assessment notice, and (b) mail the assessment notice to the taxpayer ( or, if exempt, the interest-holder) and to any person who has given notice under section 6. 7(3).
(2) An assessment notice must include (a) the same information that is on the assessment roll; (b) the date on which it is mailed; (c) when and where the assessment roll can be inspected; ( d) to whom and how a complaint or appeal can be filed; and (e) the date by which a complaint or appeal may be made.
(3) As soon as practicable after an amendment to the assessment roll is approved by Chief and Council, the Land Tax Administrator must (a) prepare a notice of amendment, and (b) mail the notice of amendment to the taxpayer ( or, if exempt, the interest-holder).
( 4) A notice of amendment must contain the same information as a notice of assessment, and as well point out in what respect the assessment roll has been amended.
OCN Land Tax By-Law 1996 9 6.11 Rights of interest-holder (1) If a person does not get a notice 4 or gets someone else's the person ( or someone acting for the person) may give the Land Tax Administrator the reasons why the person's or someone else's name should be on the notice.
(2) If the Land Tax Administrator is satisfied with the reasons given, the Land Tax Administrator must enter the correct name and the date of the change on a new notice and mail it to both persons.
(3) The Land Tax Administrator must comply with a request made by a person to let the person ( or someone acting for the person) see or obtain a copy of the valuation record of the assessed value of the person's property.
(4) An interest-holder or taxpayer (or someone acting for that person) is entitled to inspect the assessment roll during normal business hours at the offices of Opaskwayak Cree Nation, and to obtain copies of all or any portion of it upon payment of the cost.
(5) The holder of a mortgage or other charge who has given notice under section 6. 7(3) enjoys the same rights as an interest-holder under this section.
6.12 Complaints about assessments (1) A person who receives a notice may file a complaint about (a) the amount of the assessed value; (b) liability to taxation; ( c) the classification of the property; or ( d) anything on or omitted from an assessment notice.
(2) A person ( or someone acting for the person) may make a complaint by writing to the Land Tax Administrator within 30 days from the date the notice is mailed, giving an address where the complainant may be contacted and to which notices may be sent.
(3) The Land Tax Administrator must refer the complaint to the assessor, who will review the assessment and contact the complainant to discuss the matter and obtain whatever information pertaining to the matter as the complainant is prepared to give.
(4) Following the assessor's investigation the assessor will make a report and recommendation to Chief and Council in confidence.
(5) After considering the report of the assessor, Chief and Council may confirm the assessment (with or without giving reasons) or order that it be changed.
4 In this section and section 6 .12, "notice" includes a notice of assessment and a notice of amendment.
OCN Land Tax By-Law 1996 10 (6) The Land Tax Administrator will immediately send a notice of the decision of Chief and Council to the complainant, and advise to whom and how an appeal can be filed and the date by which an appeal must be filed.
6.13 Direct appeal to the Assessment Appeal Board Instead of filing a complaint under section 6.12 a person ( or someone acting for the person) may file an appeal directly with the Assessment Appeal Board by notice of appeal under section 8.1 (2) within 30 days of the date the assessment notice or notice of amendment is mailed.
6.14 Effect of amendment or decision on complaint or appeal Where an assessment is changed by (a) an amendment approved by Chief and Council, (b) a decision of Chief and Council on a complaint, (c ) a decision of the Assessment Appeal Board, or (d ) a decision of the Federal Court, then the Land Tax Administrator shall immediately amend the assessment roll and see to it that land taxes are adjusted accordingly for the year or years affected.
PART 7 - OCN ASSESSMENT APPEAL BOARD 7.1 Establishment of Assessment Appeal Board (1) Chief and Council shall appoint at least 3 persons to the OCN Assessment Appeal Board ("the Assessment Appeal Board') to hear assessment appeals, and shall name one of the appointees as chairman.
(2) The chairman of the Assessment Appeal Board must be a person experienced in assessment or appraisal, accounting, local government administration or the law. The chairman may not be a member of Opaskwayak Cree Nation or a resident of the reserve.
(3) The following persons may not be appointed to the Assessment Appeal Board: (a) the Chief; (b) a member of Council; ( c) a member of a committee or board appointed by the Chief or by Chief and Council; (d) an employee of Opaskwayak Cree Nation.
(4) A member of the Assessment Appeal Board shall be appointed for a fixed term of 3 years, with remuneration fixed at the time of appointment at the amount paid to members of the Manitoba Municipal Board. A member may not be removed except for misconduct or failure to attend appeal hearings. A member's remuneration may not be reduced or withheld during the member's tenure.
OCN Land Tax By-Law 1996 11 (5) A member of the Assessment Appeal Board having a direct or indirect financial interest in an assessment which is under appeal is disqualified from sitting as a member to hear the appeal.
(6) Chief and Council may appoint a substitute member to the Assessment Appeal Board for the purpose of a particular appeal where through disqualification or other circumstance a member of the Assessment Appeal Board is unable to act.
(7) If a member of the Assessment Appeal Board resigns or is otherwise unable to complete the term, Chief and Council shall appoint a person to replace the member for the balance of the term.
(8) Chief and Council shall provide the Assessment Appeal Board with the necessary support and facilities it needs in order to carry out its tasks, and will reimburse members of the Assessment Appeal Board for reasonable and necessary expenses incurred in carrying out their duties.
7.2 Role of chairman The chairman is responsible for (a) the administration of the Assessment Appeal Board's affairs, (b) the calling of meetings of the Assessment Appeal Board, (c ) the scheduling of hearings, and (d) presiding at hearings and having charge of their conduct.
7.3 Powers of Assessment Appeal Board ( 1) The Assessment Appeal Board shall appoint a secretary who may or may not be a member of the Assessment Appeal Board. The secretary will keep minutes of meetings and records of decisions of the Assessment Appeal Board. Minutes and records of decisions will be signed as correct by the secretary and by the chairman or other person presiding.
(2) A member of the Assessment Appeal Board may issue a written notice to a person to attend a hearing as a witness.
(3) The Assessment Appeal Board may (a) with the consent of the interest-holder or occupier enter on and inspect land and improvements, (b) require the attendance of persons whom it considers necessary to give evidence, (c) require the production of books, plans, and documents, and ( d) administer oaths and affirmations.
( 4) The Assessment Appeal Board is not bound by the technical rules of legal evidence. The Board may adopt rules governing the conduct of hearings.
OCN Land Tax By-Law 1996 12 (5) Despite anything else in this Part, the Assessment Appeal Board may conduct an appeal in any manner agreed to in writing by the assessor and the appellant, if it is satisfied that the interests of any other affected person will not be prejudiced.
PART 8 - APPEAL PROCEDURE 8.1 Starting an appeal (1) A complainant may file an appeal with the Assessment Appeal Board about any matter which was the subject of the person's complaint to Chief and Council.
(2) The notice of appeal must (a) be in writing, (b) give details of the complaint and the reasons for it, ( c) give an address where the complainant can be contacted and to which notices can be sent, and (d) be accompanied by a fee in the amount specified in the tax rate by-law.
(3) The appeal must be filed within 30 days of the date of mailing of the notice of Chief and Council's decision.
( 4) If a complainant has not received a notice of a decision of Chief and Council within 30 days of filing a complaint, the complainant may file an appeal with the Assessment Appeal Board within a further 90 days.
8.2 Notice of hearing (1) The Assessment Appeal Board shall schedule a hearing of the appeal to start within 90 days of the date ofreceiving a notice of appeal, unless the appellant agrees otherwise.
(2) At least 21 days before the hearing, the Assessment Appeal Board shall in writing notify (a) the appellant, (b) the assessor, and (c) any other person whose name appears in the assessment roll in respect of the land which is the subject of the appeal, of the time, date and place of the hearing.
8.3 Powers at hearing The Assessment Appeal Board may (a) proceed to hear and determine an appeal in the absence of the appellant or any person affected, and (b) adjourn the hearing from time to time and from place to place.
OCN Land Tax By-Law 1996 13 8.4 Notice of decision (1) The decision of the Assessment Appeal Board shall be made within 30 days of the conclusion of the hearing, and shall be in writing, with reasons.
(2) The Assessment Appeal Board shall immediately send a copy of its decision to Chief and Council and the persons mentioned in section 8.2.
8.5 Appeal to Federal Court An appeal of the decision of the Assessment Appeal Board may be taken to the Federal Court in accordance with the rules of that court by (a) Chief and Council, (b) the appellant, or (c) a person whose name appears in the assessment roll in respect of the land, if that person appeared at the hearing by the Assessment Appeal Board.
PART 9 - INFORMATION FOR THE ASSESSOR 9.1 Power of assessor (1) At reasonable times an assessor may, for the purposes of making a valuation or an assessment, or determining liability to or exemption from land tax, and matters related, (a) with the consent of the occupier enter and inspect property and businesses, (b) request the interest-holder or occupier to produce records, documents and samples, and ( c) make copies of records and documents, and take samples.
(2) An assessor must produce identification when requested to do so. (3) A person must give an assessor any information requested by the assessor in order for the assessor (a) to decide whether the land is liable to or exempt from land tax; (b) to make a valuation of land or to obtain other information required to be included on an assessment roll.
(4) Information obtained by an assessor under subsections (1) and (3) is to be kept confidential unless (a) it is produced in connection with an appeal, (b) it is used or made public in a way which does not identify the specific persons or land to which the information relates, or (c) the person providing the information consents to its release.
OCN Land Tax By-Law 1996 14 9.2 Action by assessor on failure to comply If an assessor is prevented from doing any of the things mentioned in this Part or if a person fails to provide any information requested by an assessor within the time specified in a request, the assessor shall make a valuation or determine liability to or exemption from land tax on the basis of any information in the assessor's hands.
PART 10 - ADMINISTRATION 10.1 Appointment of Land Tax Administrator ( 1) Chief and Council shall appoint a responsible officer under this Part, referred to here as the "Land Tax Administrator".
(2) The Land Tax Administrator is responsible for the administration of all matters having to do with land taxes contemplated by this by-law, including (a) preparation and maintenance of the tax roll; (b) notices; ( c) preparation of bills; ( d) issuing receipts and certificates; (e) receiving and referring complaints; (f) reporting to Chief and Council or to the appropriate committee of Council; (g) collection.
(3) If the Land Tax Administrator is unable to carry out his or her duties due to absence or any other reason, Chief and Council shall appoint an Acting Land Tax Administrator, who shall have the powers and duties of a Land Tax Administrator under this by-law.
10.2 Tax calendar ( 1) The assessor must complete the annual assessment roll and deliver it to Chief and Council by December 31 of the prior year. Despite the foregoing, the assessor shall complete the assessment roll for the 1997 tax year by December 31, 1996 or as soon thereafter as is practicable.
(2) Chief and Council must adopt the assessment roll and pass a tax rate by-law by February 28.
(3) The Land Tax Administrator must mail the assessment notices by April 30. (4) The Land Tax Administrator must mail the land tax bills by May 31. •
OCN Land Tax By-Law 1996 15 10.3 Tax roll (1) Immediately after the passing of a tax rate by-law the Land Tax Administrator shall prepare a tax roll, which will be an extension of the assessment roll with the following additional information: (a) the tax rate or rates applicable to the land; (b) the total amount of taxes levied on the land for the current taxation year, (c) any amount that remains unpaid from a previous tax roll, and any penalty or accrued interest, ( d) the amount of any debt or levy, other than taxes, placed on the tax roll for collection, ( e) the total amount required to be paid in respect of the land, and (f) such other information as may be directed by Chief and Council.
(2) The Land Tax Administrator shall amend the tax roll as necessary to incorporate changes made to the assessment roll.
10.4 When payment due (1) Land tax is due and payable on June 30. (2) If because of an amendment to the assessment roll, an adjusted land tax bill calling for more taxes is mailed after June 1, it must be paid within 30 days after the date of mailing.
(3) Unpaid taxes carry penalties and interest at a rate specified in the tax rate by-law. ( 4) The filing of a complaint or appeal does not affect the requirement that the land tax be paid in full, and if it is not paid in full the Land Tax Administrator may proceed with enforcement.
(5) When a person is entitled to a refund as a result of a complaint or appeal, the First Nation must pay the person interest on the amount of the refund at the rate specified for unpaid taxes in the rate by-law.
10.5 Certificate On written request accompanied by the fee set by the tax rate by-law, the Land Tax Administrator must issue a certificate showing whether or not taxes have been paid in respect of particular land shown in the tax roll, and if not, the amount of the taxes, penalties and interest owing .
•
OCN Land Tax By-Law 1996 16 PART 11 - COLLECTION
11.1 Interpretation In this Part, a reference to land taxes includes (a) penalties, interest and costs of collection, and (b) taxes imposed during the year in which collection proceedings are started and in subsequent years while they proceed.
11.2 Land taxes as lien (1) Land taxes are a special lien on the interest of the taxpayer, including the taxpayer's interest in any improvement, having priority to a registered or unregistered claim, lien, charge, security interest or encumbrance of any other person.
(2) Without limiting the foregoing, the special lien attaches to the interest of a subsequent owner or taxpayer.
(3) The lien is not lost or impaired by any neglect, omission or error, and does not require registration to be preserved.
11.3 Land taxes as a debt (1) A taxpayer named in the tax roll in a year is liable for land taxes imposed during the year • and unpaid land taxes imposed in respect of the land in, or in respect of, previous years . (2) Land tax payable is a debt due to Opaskwayak Cree Nation and is recoverable by action in a court of competent jurisdiction. (3) A certificate by the Land Tax Administrator as to land tax owing, with a copy of the relevant portion of the tax roll attached, is prima facie proof of the debt.
11.4 Registration of certificate ( 1) A certificate issued under section 11.3(3) may be registered in (a) the reserve land register kept pursuant to section 21 of the Indian Act, (b) the surrendered and designated land register kept pursuant to section 5 5 of the Indian Act, or (c) in the Opaskwayak Cree Nation land register.
(2) If a certificate has been registered under subsection ( 1) , when the land tax to which it relates has been paid, the Land Tax Administrator shall register a certificate to that effect in the appropriate register.
11.5 Collection of land taxes (1) If land taxes are not paid 3 months after the date they are due, the Land Tax Administrator shall send a notice of arrears to the taxpayer and to a holder of a mortgage or charge who has given notice under section 6.7(3).
OCN Land Tax By-Law 1996 17 (2) The notice of arrears will state that if payment is not made within 3 months of the date of mailing, enforcement proceedings will be taken.
(3) If land taxes are not paid within the time stated in the notice of arrears, the Land Tax Administrator, with the approval of Chief and Council, shall take enforcement proceedings by one or more of the methods set out in this by-law.
(4) Where in enforcement proceedings under this Part notice is to be given to the taxpayer, it shall also be given to (a) a holder of a mortgage or charge who has given notice under section 6.7(3); (b) a person who has an interest or claim in the land registered in any of the land registers mentioned in section 11.4(1 ).
1.6 Seizure of personal property (1) Proceedings by way of seizure of personal property, called "distress", may be taken in accordance with this section.
(2) The Land Tax Administrator shall give the taxpayer notice that the person has 10 days from the date of sending the notice to pay the taxes, and that in default of payment personal property generally described in the notice will be seized.
(3) If the land taxes are not paid in full within the period, then the Land Tax Administrator may directly or through an agent, bailiff or sheriff effect a seizure by distress of the personal property generally described in the notice and post a notice of the personal property which is seized pursuant to this section on the property in respect of which the taxpayer is an owner or holds an interest. The seized personal property shall then be in the possession of Opaskwayak Cree Nation, as represented by the Land Tax Administrator.
( 4) So long as the land taxes remain outstanding, no personal property seized pursuant to subsection (3) shall be removed from the reserve, and any such removal shall be considered a trespass. Without limiting the generality of the foregoing, no such personal property shall be seized by a bailiff, sheriff, assignee or liquidator or trustee, or authorized trustee in bankruptcy, except under the authority of Chief and Council.
( 5) If the taxpayer or a person claiming under the taxpayer does not commence legal proceedings in a court of competent jurisdiction within 30 days after the date of a seizure challenging such, the personal property may be sold in accordance with this section and the taxpayer or the person is estopped from denying the validity of the seizure and sale of such personal property.
(6) Upon the expiration of 30 days after a seizure, if the outstanding taxes have not been paid in full, the personal property seized will be deemed to have been abandoned by the taxpayer or any person claiming under the taxpayer and may be sold by public auction,
OCN Land Tax By-Law 1996 18 the proceeds of which will be applied for payment of land taxes.
(7) An advertisement of the sale of personal property seized by distress shall be published on at least 2 occasions in a newspaper or newspapers in general circulation in Opaskwayak Cree Nation and The Pas, the first of such publications to be at least 20 days prior to the sale, and shall be posted on the property in respect of which the taxpayer is an interest-holder at least 20 days prior to the sale.
(8) The sale of the personal property seized by distress shall be conducted at the time and place advertised pursuant to subsection (7), unless it is necessary to adjourn such sale. If an adjournment is necessary an additional notice shall be published in the manner provided by subsection (7).
(9) Any surplus resulting from the sale conducted pursuant to subsection (8), after deducting all liabilities of the taxpayer, including all costs and charges arising from the sale, shall be paid to the owner of the personal property seized. That person must give a receipt. If a claim to the surplus is made by the taxpayer or a person claiming through the taxpayer, the surplus shall be paid to the claimant and the claimant's receipt taken for it. If the claim is contested, the Land Tax Administrator shall retain the surplus until the rights of the parties have been determined.
11.7 Cancellation of interest held by taxpayer (1) Proceedings by way of cancellation of the taxpayer's interest in land may be taken in accordance with this section.
(2) The Land Tax Administrator shall give the taxpayer notice that the person has 3 months from the date of sending the notice to pay the taxes, and that in default of payment the lease, licence, permit or other interest will be cancelled.
(3) The Land Tax Administrator shall send a copy of the notice to every place where the interest is registered.
(4) If the taxes are not paid by the expiration of the period, and the consent of the Minister for Indian Affairs and Northern Development (or other person whose consent is legally required) has been given if legally required, then the Chief and Council may cancel the interest.
(5) Immediately following cancellation of the interest the Land Tax Administrator shall make a certificate as to the cancellation and send it to the taxpayer and to every place where the interest was registered.
l 1.8 Sale of improvements (I) Proceedings for the sale of improvements may be taken in accordance with this section.
OCN Land Tax By-Law 1996 19 (2) The Land Tax Administrator shall give the taxpayer notice that the taxpayer has 3 months from the date of sending the notice to pay the land taxes failing which improvements will be offered for sale.
(3) Failing payment within the period the Land Tax Administrator may offer the improvements for sale by public auction or, where deemed appropriate by Chief and Council, by public tender.
(4) The sale may take place subject to the granting of a lease, licence or permit to the purchaser.
(5) The sale of improvements by public auction shall take place in accordance with section 11.6(3) to (9).
(6) Where a sale of improvements is to be conducted by public tender, the conditions of sale, method of publication or circulation, and acceptance of any offer shall be in the discretion of Chief and Council.
(7) Chief and Council may in a sale set an upset price equal to the taxes, and the upset price shall be the lowest amount for which the improvements may be sold. If there is no bid • that meets the upset price, Opaskwayak Cree Nation shall be deemed to be the purchaser. (8) If Opaskwayak Cree Nation is a purchaser of improvements under subsection (7), it may sell them to any person for not less than the upset price within 9 months of the date of purchase. After that time it may deal with the improvements as it sees fit, and all other interests including a right of redemption, are extinguished.
11.9 Right to possession of property On the expiry of the 3 month period referred to in sections 11.7(2) and 11.8(2) the Opaskwayak Cree Nation is entitled to quiet and peaceable possession of the land and improvements, and for the purpose of obtaining possession the Land Tax Administrator and any persons authorised by him or her for the purpose are entitled to enter the land and take possession of the land and improvements in the name of the Opaskwayak Cree Nation, and if in doing so resistance is encountered an application may be made to a court of competent jurisdiction for an order of possession.
11.10 Notice to landlord (1) The Land Tax Administrator may give 30 days' notice to a taxpayer who is a landlord that on default of payment of land taxes, rent will be collected from the tenant under this section. • (2) Failing payment within the 30 days, the Land Tax Administrator may give the tenant notice in writing requiring the tenant to pay to Opaskwayak Cree Nation the rent as it becomes due from time to time until the amount owing is paid.
OCN Land Tax By-Law 1996 20 (3) Opaskwayak Cree Nation shall have the same right as the landlord to collect the rent by distress or otherwise.
(4) A tenant may deduct from the rent taxes paid by the tenant that as between the tenant and the landlord the landlord ought to pay.
11.11 Notice to insurance company (1) Land taxes are a first charge on money payable under a fire insurance policy for loss or damage to improvements.
(2) This section does not create a charge on (a) money payable under a fire insurance policy unless (I) it is $1000 or more, or (II) despite subclause I, it is for a total loss of the improvements, or on (b) money payable under a fire insurance policy which was effected and maintained by a mortgagee of the insured improvements.
(3) Immediately after an insurer receives notice of loss or damage that may give rise to a claim under this section the insurer shall give notice of the loss or damage to the Land Tax Administrator.
(4) Within 21 days after the sending of the notice by the insurer the Land Tax Administrator shall notify the insurer of the amount of the taxes due in respect of the land.
(5) When a charge arises under this section the insurer shall pay to Opaskwayak Cree Nation the lesser of (a) the amount of the taxes stated in the notice, or (b) the amount the insurer is liable to pay under the policy.
(6) When a payment is made under this section the amount for which the insurer is liable under the policy is reduced by the amount of the payment.
11.12 General and miscellaneous Despite section 11.5, where it appears necessary or expedient in order to secure payment of land taxes that are in arrears by reason of (a) a taxpayer's abandonment of the land, (b) the commencement of proceedings against a taxpayer or the land for the collection of debts, (c) the threat of a taxpayer's removing personal property or improvements, ( d) a statement of a taxpayer that it is unwilling or unable to pay the arrears, (e) a taxpayer's making an assignment for the benefit of creditors, or (f) any other sufficient reason,
OCN Land Tax By-Law 1996 21 Chief and Council may authorise the Land Tax Administrator to start collection
proceedings at any time.
(2) The powers conferred in this bylaw for collection of taxes may be exercised separately, concurrently or cumulatively.
(3) While land taxes in respect of land are owing, no improvements may be removed from that land without the consent of Chief and Council.
PART 12 - GENERAL 12.1 Offences and penalties A person commits an offence who (a) although able to do so, fails or refuses to give information required to be given by this by-law, or intentionally gives false information; (b) intentionally makes a false valuation, assessment or record of any kind; (c) intentionally does not make an assessment or valuation or removes or omits a name from an assessment roll; (d) intentionally does or omits to do something which results in a person not • being charged a tax; (e) contravenes any provision of this by-law; and is liable on summary conviction to a fine not exceeding $2500 and in default of payment to imprisonment for not more than 6 months. 12.2 Valuations based on concealment or failure to disclose (1) If land was not assessed or was assessed at less than its proper value because of (a) a person's intentional failure to disclose information, or (b) a person's concealment of particulars relating to the property, an assessor may amend the assessment roll to assess the land in the manner in which it should have been assessed.
(2) Chief and Council may impose a land tax in respect of property under subsection (1) retroactively in the same way it could have imposed the tax if the assessment had been properly made.
12.3 Proof of documents and service (1) A copy of (a) an assessment roll or part of it, (b) a notice of assessment or of amendment, (c) a tax roll or part of it, • (d ) a tax notice, or .. .- •• (e) any other record made or notice given under this by-law,
• OCN Land Tax By-Law 1996 22 certified as a true copy by the Land Tax Administrator is evidence of the existence and validity of the roll, notice or other record. (2) A statutory declaration by an officer or employee of Opaskwayak Cree Nation is sufficient evidence that a notice was mailed on the date stated in the declaration.
12.4 Validity of actions despite errors (1) Nothing done under this by-law is invalidated, nor is the liability of anyone to pay land tax affected by, (a) an error or omission in an assessment roll, assessment notice, notice of amendment, tax roll or tax notice, (b) an assessment based solely on whatever information is in the hands of the assessor, ( c) an error or omission in any other notice or record, ( d) a failure to give or receive a notice, or (e) a failure to do something within the required time.
(2) Subsection (1) is not to be interpreted in such a way as to deny to anyone a reasonable opportunity to file a complaint or appeal under Parts 5 and 6.
12.5 Protection of officials An assessor, the Land Tax Administrator, members of the Assessment Appeal Board, the Chief, members of Council and staff are not personally liable for anything done or omitted to be done in good faith in the exercise or purported exercise of a power, duty, or function under this by-law.
12.6 Limitation of actions No action or other proceedings for the return of money paid to Opaskwayak Cree Nation, whether under protest or otherwise, on account of a demand for land taxes may be commenced after 6 months have passed since the payment was made; and the payment is deemed to have been made voluntarily.
12.7 Repeal The following by-laws are repealed: (a) By-Law No. 1 of April 7, 1977; (b) By-Law No. 77-56 of June 6, 1977; and (c) any other by-laws amending By-Law No. 1.
• OCN Land Tax By-Law 1996 23 APPENDIX
CLASSIFICATION OF PROPERTY (section 3.1(3)) 1 Definitions In this appendix,
"contiguous land", where used with reference to a building, includes the land under the building;
"dormitory" includes the part of a building that contains facilities for the preparation and consumption of food by, and for the living requirements of, persons who sleep in the dormitory;
"dwelling unit" means a self-contained unit that has facilities for living, sleeping and the preparation and consumption of food;
''farming" means crop production, livestock production, raising poultry, dairy farming, fur farming, tree farming, beekeeping, fish farming, horticultural production, and any other activity undertaken to produce agricultural products, (all of which) only if carried on on a commercial basis; and does not include the purchase and resale or the commercial processing of agricultural products;
"residential occupation" means the use of a building or land by a person, family or group of persons as a home.
2 Residential 1 The class of property known as Residential 1 consists of the following:
(a) a building or portion of a building that is used or, where unoccupied, designed to be used solely as a dwelling unit for residential occupation, and land that is contiguous to the d~elling unit to the extent that the land is used or, where unoccupied, designed to be used solely in conjunction with the residential occupation, other than
(I) a building or portion of a building that is used or designed to be used as a hotel, motel, tourist camp, apartment hotel or other transient accommodation, or as a nursing home or personal care home;
• OCN Land Tax By-Law 1996 24 (II) a building that contains more than 4 dwelling units used or designed to be used for residential occupation; and (III) land that is contiguous to a building, to the extent that the land is used, or where the building or a portion of it is unoccupied, is intended to be used, solely in conjunction with the occupation of a building referred to in subclauses (I) and (II);
(b) all or any part of a dwelling unit that is located in a building referred to in subclause (a)(I), and land that is contiguous to the dwelling unit, that is used solely for residential occupation and occupied by a person who performs duties with respect to the management of the building;
(c) undeveloped, unimproved, vacant or abandoned land that is lawfully usable primarily for a residential purpose, and on which there may lawfully be constructed a building that contains not more than 4 dwelling units;
(d) despite subclauses (a)(II) and (Ill), a building that contains more than 4 dwelling units and that is used or designed to be used for residential occupation, if each dwelling unit, and contiguous land that is used solely in conjunction with the residential occupation of the dwelling unit,
(I) is held under a separate certificate of possession, lease or permit; and (II) is subject to a common wall agreement; (e) a dwelling unit that is located on farm land and that is used for residential occupation, and land that is contiguous to and used for residential purposes in conjunction with the dwelling unit.
3 Residential 2 The class of property known as Residential 2 consists of the following:
(a) a building or portion of a building containing more than 4 dwelling units that is used or, if unoccupied, is designed to be used, solely as dwelling units for residential occupation, and land that is contiguous to the dwelling unit to the extent that the land is used or, where the dwelling unit is unoccupied, is intended to be used, solely in conjunction with residential occupation, other than a building referred to in subclause 2(a)(I) and land contiguous to the building to the extent that the land is used or, where the building is unoccupied, is intended to be used, solely in conjunction with the occupation of the building;
OCN Land Tax By-Law 1996 25 (b) undeveloped, unimproved, vacant or abandoned land that is lawfully usable primarily for a residential purpose, and on which there may lawfully be constructed a building containing 5 or more dwelling units;
( c) dormitories. 4 Farm Property The class of property known as Farm Property consists of the following:
(a) land or any portion of land that is used solely for farming purposes; (b) buildings or portions of them that are used solely for farming purposes, or that are vacant or abandoned and are designed or intended to be used for farming purposes, and located on Farm Property land;
(c) undeveloped, unimproved, vacant or abandoned land that under a zoning by-law is usable primarily for farming purposes, or that is not subject to a zoning by-law.
5 Pipeline Property The class of property known as Pipeline Property consists of pipelines, as defined in this by-law.
6 Railway Property The class of property known as Railway Property consists of railway roadways, as defined in this by-law.
7 Golf Course Property The class of property known as Golf Course Property consists of contiguous land developed, maintained and ordinarily used as a golf course, and includes tees, fairways, greens and rough, a driving range operated on the land in association with the golf course; but does not include 2 acres of the land, buildings on the land, or a miniature golf course.
8 Other Property The class of property known as Other Property consists of property not included in the classes set out in sections 2 to 7 .
•
OCN Land Tax By-Law 1996 26 THIS BY-LAW IS APPROVED AND ADOPTED AT A DULY CONVENED MEETING OF THE CHIEF AND COUNCIL OF OPASKWAYAK CREE NATION AT OP ASKW A YAK IN MANITOBA THIS 10 TH DAY OF DECEMBER 1996
CHIEF /),,/Lue>( COUNCILLOR COUNCILLOR COUNCILLOR COUNCILLOR l,o~~ COUNCILLOR COUNCILLOR '~27?~~ v - COUNCILLOR COUNCILLOR COUNCILLOR CILLOR