O. Reg. 649/93: SALES OF UNMARKED CIGARETTES ON INDIAN RESERVES

 

Tobacco Tax Act
Loi de la taxe sur le tabac

ONTARIO REGULATION 649/93

SALES OF UNMARKED CIGARETTES ON INDIAN RESERVES

Consolidation Period:  From October 21, 1993 to the e-Laws currency date.

No amendments.

This Regulation is made in English only.

1. In this Regulation,

“council of the band” has the meaning specified in subsection 2 (1) of the Indian Act (Canada);

“Indian” has the meaning specified in subsection 2 (1) of the Indian Act (Canada);

“off-reserve community” means all adult members of the band who are recorded as band members in the most current issue of the Indian Register, Population by Sex and Residence, issued by the Department of Indian Affairs and Northern Development, and who do not reside on the reserve;

“reserve” means a reserve as defined in the Indian Act (Canada) or an Indian settlement located on Crown land, the Indian inhabitants of which are treated by the Department of Indian Affairs and Northern Development in the same manner as Indians residing on a reserve;

“reserve community” means all adult members of the band who are recorded as band members in the most current issue of the Indian Register, Population by Sex and Residence, issued by the Department of Indian Affairs and Northern Development, and who reside on a reserve;

“reserve retailer” means a retail dealer located on a reserve and who, in the ordinary course of his or her business, sells cigarettes to Indian consumers;

“retail agreement” means an agreement entered into between the Minister and a council of the band by which the council of the band agrees to allocate unmarked cigarettes to reserve retailers and to monitor the sales of those cigarettes to ensure that sales are not made to non-Indians;

“supplier” means a wholesaler who holds a permit to purchase and sell unmarked cigarettes under section 9 of the Act.  O. Reg. 649/93, s. 1.

2. (1) The purpose of this Regulation is,

(a) to ensure that there is a sufficient quantity of unmarked cigarettes available for purchase on a reserve by adult members of a band for their own consumption; and

(b) to prevent the purchase of excess quantities of unmarked cigarettes that could be resold to non-Indians.  O. Reg. 649/93, s. 2 (1).

(2) This Regulation applies to all reserves unless a specific regulation is passed that exempts a reserve from this Regulation and sets out an alternative method for the distribution of unmarked cigarettes to reserve retailers by incorporating the terms of an agreement that may be entered into between the Minister and a council of the band.  O. Reg. 649/93, s. 2 (2).

3. (1) Subject to subsection (2), beginning on April 1 of a year, the annual quantity of cartons of unmarked cigarettes allocated to a reserve shall be calculated using the following formula:

A = [(R × 2.5 × 0.423) + (OR × 2.7 × 0.423)] × 12

where,

A is the annual quantity;

R is the number of individuals in the reserve community;

OR is the number of individuals in the off-reserve community.

O. Reg. 649/93, s. 3 (1).

(2) If a reserve is listed in the Schedule, the annual quantity of cartons of unmarked cigarettes allocated to it shall be the greater of,

(a) the annual allocation indicated for the reserve in the Schedule; and

(b) the annual allocation determined under subsection (1).  O. Reg. 649/93, s. 3 (2).

(3) With respect to the period between the date this Regulation comes into force and March 31, 1994, the annual quantity determined under subsection (1) or (2) shall be reduced to the proportion that the number of days in the period is of 365.  O. Reg. 649/93, s. 3 (3).

(4) The council of the band may increase the annual quantity determined under subsection (1), (2) or (3),

(a) a maximum of 10 per cent for sale to Indian consumers who are not members of the reserve community or the off-reserve community;

(b) a maximum of 20 per cent if the council has entered into a retail agreement; or

(c) a maximum of 30 per cent where clauses (a) and (b) both apply. O. Reg. 649/93, s. 3 (4).

(5) The annual agreggate quantity of unmarked cigarettes allocated to all reserve retailers shall not exceed the annual quantity of unmarked cigarettes allocated to the reserve as determined under this section.  O. Reg. 649/93, s. 3 (5).

4. (1) To facilitate the availability of unmarked cigarettes for purchase by Indian consumers, a council of the band may allocate the annual quantity of unmarked cigarettes as determined under section 3 among each reserve retailer based on the volume of the retailer’s sales to the reserve community and the off-reserve community for their own consumption.  O. Reg. 649/93, s. 4 (1).

(2) The council of the band shall advise the Minister of any allocation it makes.  O. Reg. 649/93, s. 4 (2).

(3) So long as the council of the band complies with this Regulation, the Minister shall provide to each reserve retailer to whom the council of the band has made an allocation an authorization to purchase the allocated amount of unmarked cigarettes from the supplier chosen by the reserve retailer.  O. Reg. 649/93, s. 4 (3).

5. (1) If a council of the band has not made allocations as described in subsection 4 (1), the Minister may do so instead, in accordance with section 3.  O. Reg. 649/93, s. 5 (1).

(2) If the Minister makes allocations under subsection (1), the Minister shall make such inquiries as the Minister considers appropriate to determine who are reserve retailers and what is the volume of their business, and the Minister shall make the allocations based on that information.  O. Reg. 649/93, s. 5 (2).

(3) The Minister shall provide to each reserve retailer, as determined under subsection (2), an authorization to purchase an allocated amount of unmarked cigarettes from the supplier chosen by the reserve retailer.  O. Reg. 649/93, s. 5 (3).

6. (1) Any annual allocation made to a reserve retailer by a council of the band applies for subsequent years until altered by the council of the band.  O. Reg. 649/93, s. 6 (1).

(2) Any change in the allocation that the council makes for a reserve retailer shall be offset by an equivalent change in the allocation to another reserve or retailers.  O. Reg. 649/93, s. 6 (2).

(3) If the council cancels a reserve retailer’s allocation and wishes to transfer it to another reserve retailer, the council may transfer only the unpurchased portion for that year.  O. Reg. 649/93, s. 6 (3).

(4) If the Minister makes allocations under section 5, the Minister has the same powers as does the council under this section. O. Reg. 649/93, s. 6 (4).

7. (1) A reserve retailer may change suppliers only at the beginning of a month.  O. Reg. 649/93, s. 7 (1).

(2) The changing of a supplier does not affect the reserve retailer’s annual allocation. O. Reg. 649/93, s. 7 (2).

(3) A reserve retailer may choose more than one supplier if,

(a) the reserve retailer notifies the Minister about the amounts that are to be purchased from each supplier; and

(b) the total amount purchased from all suppliers does not exceed the reserve retailer’s allocation.  O. Reg. 649/93, s. 7 (3).

8. (1) If a council of the band has entered into a retail agreement and the Minister receives complaints that any reserve retailer to whom an allocation has been made has sold unmarked cigarettes to non-Indians, the Minister may investigate such complaints.  O. Reg. 649/93, s. 8 (1).

(2) If, after an investigation under subsection (1), the Minister determines that a reserve retailer has sold unmarked cigarettes to non-Indians, the Minister may advise the council of the band. O. Reg. 649/93, s. 8 (2).

(3) If the Minister advises the council of the band under subsection (2) and if the council does not promptly transfer the unpurchased portion of the allocation to another reserve retailer, the Minister may suspend or cancel the retail agreement. O. Reg. 649/93, s. 8 (3).

(4) Before any retail agreement is suspended or cancelled, a representative of the council of the band shall be given an opportunity to explain why the retail agreement should not be suspended or cancelled, as the case may be.  O. Reg. 649/93, s. 8 (4).

(5) If the Minister decides to suspend or cancel a retail agreement for the year, the Minister shall reduce the unpurchased portion of the annual quantity by the following formula:

R = 0.2A × (U / T)

where,

R is the amount of reduction in the annual quantity;

U is the unpurchased amount of the total quantity remaining on the date of suspension or cancellation;

T is the total annual quantity for the year under section 3;

A is the amount determined under subsection 3 (1), (2) or (3).

O. Reg. 649/93, s. 8 (5).

(6) If the Minister decides to suspend or cancel a retail agreement for a part or all of the following year or years, the increased quantity under clause 3 (4) (b) or (c) shall be cancelled or proportionately reduced, as the case may be. O. Reg. 649/93, s. 8 (6).

(7) If a reduction is made under this section to the annual quantity for a reserve, the Minister shall make the necessary corresponding reductions to the allocations given to reserve retailers.  O. Reg. 649/93, s. 8 (7).

9. (1) If a reserve retailer chooses a supplier, the Minister shall inform the supplier of that choice.  O. Reg. 649/93, s. 9 (1).

(2) After being informed by the Minister, the supplier may sell to the reserve retailer all or any part of the allocation of unmarked cigarettes without collecting an amount equivalent to the tax imposed by the Act at the time of sale.  O. Reg. 649/93, s. 9 (2).

(3) The quantity of unmarked cigarettes sold by the supplier shall not exceed the quantity specified in the authority to purchase issued by the Minister.  O. Reg. 649/93, s. 9 (3).

(4) The reserve retailer shall take delivery of the unmarked cigarettes only on the reserve for which the authority to purchase is issued.  O. Reg. 649/93, s. 9 (4).

(5) The reserve retailer shall purchase the unmarked cigarettes solely for the retailer’s own use or for resale on the reserve to Indian consumers.  O. Reg. 649/93, s. 9 (5).

Schedule

Band Name	Reserve	Yearly Allocation (cartons / year)
Couchiching	Couchiching I.R. #16A	15,554
Delaware Nation Council, Moravian of The Thames	Moravian I.R. #47	8,750
Ojibways of Batchewana	Rankin Location I.R. #15D	18,461
Beausoleil	Christian Island I.R. #30	15,092
Akwesasne Mohawk Territory	Akwesasne Mohawk Territory	90,000
Mississaugas of the New Credit	New Credit I.R. #40A	16,615
Walpole Island	Walpole Island I.R. #46	40,717
Wahnapitae	Wahnapitae I.R. #11	2,538
Ojibways of Hiawatha	Hiawatha I.R. #36	9,249

O. Reg. 649/93, Sched.