Manitoba Treaty Land Entitlement

A reference manual for municipal development and services agreements

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IV. Services

1. Type of services
2. Payment for services
3. Access by municipality
4. Failure by municipality to provide the services

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An Entitlement First Nation may determine that it cannot physically service the land that it Selected or Acquired due to the distance of the Selection or Acquisition from the main Reserve. In the alternative, an Entitlement First Nation may determine that it would be less expensive to purchase services from the Municipality than to supply the services to the Reserve itself. For either of these reasons, an Entitlement First Nation that Selects or Acquires land within a Municipality may be interested in receiving services from the Municipality.

As mentioned earlier, if an Entitlement First Nation requires services to be provided to the Reserve, it will have to request of the Municipality that it enter into negotiations regarding the provision of such services with a view to concluding a MDSA (Framework Agreement, s. 3.07 (1)(d)). The Municipality will have to decide whether it is capable of providing the requested services and whether it wishes to service the future Reserve land. If the Municipality is willing and able to provide the requested services, it will enter into negotiations with the Entitlement First Nation. However, as mentioned above, land within a Municipality will not be ineligible to be set apart as Reserve for a failure by the Entitlement First Nation and Municipality to enter into a MDSA (Framework Agreement, s. 3.07 (4)(b)).

Issues that the parties may wish to consider and address in a MDSA include:

• the services that the Entitlement First Nation would like to purchase from the Municipality,
• the services that the Municipality is able and willing to supply to the Entitlement First Nation,
• the level of services that will be supplied by the Municipality,
• the basis for the charges for the services,
• the charges for the services,
• the manner in which the Entitlement First Nation will be billed for the services,
• payment due dates,
• prepayment discounts and whether they will be offered at the same rate as for Municipal residents,
• late or non-payment penalties,
• the responsibility for collection of payment,
• fees for administration, legal costs, disconnection and reconnection if services are suspended for non-payment,
• access by Municipality to Reserve to install, maintain and operate the services,
• access for emergency services such as fire services,
• failure by Municipality to provide services as agreed,
• upgrading, improvement, replacement or major repairs respecting services, including:
• integration of services, such as road maintenance and drainage,
• capital cost of service enhancement or upgrade, including cost sharing,
• impacts of a major development on the Reserve which will have a significant effect on municipal services (where the Entitlement First Nation intends to undertake such a development),
• engineering studies relating to services, including who is responsible for the cost.

An alternative arrangement that may be contemplated by some parties is for a Municipality and Entitlement First Nation to provide services to one another on a shared basis, with the Entitlement First Nation providing certain services to the Municipality and the Municipality providing other services to the Entitlement First Nation. In the alternative, a Municipality may wish to purchase services from the Entitlement First Nation. The variety of possible service arrangements between the parties is almost endless; this Reference Manual does not attempt to provide examples of each of these possible servicing arrangements and, instead, discusses and gives examples only of provisions that might be used where services are provided by a Municipality.

As mentioned above, a MDSA must specify the type of services that will be provided. In some cases, only one service will be provided, for example, sewer and water service. In other cases, a Municipality will provide the Entitlement First Nation with all services that it provides to the residents and businesses within the Municipality.

Services provided by a Municipality to residents of the Municipality are classified as hard or soft services and may be provided on a site-specific (direct) or Municipality-wide (indirect) basis.

Hard services often include:

• road paving and patching, snow clearing, and sanding of icy streets,
• provision of drinking water,
• operation of a sewage collection and treatment system,
• maintenance of a storm water drainage system,
• garbage collection and operation of a landfill,
• fire fighting and prevention,
• traffic control,
• enforcement of building codes,
• policing, and
• public transit.

Soft services often include:

• maintenance of parks,
• planning and zoning of the municipality,
• operation of recreational and leisure facilities, and
• special services such as inner-city youth programs.

Services to Municipal land, such as the snow ploughing and maintenance of roads adjacent to the Reserve, will benefit First Nation residents by allowing them access and egress from the Reserve. Similarly, weed control and dust abatement near the Reserve may keep weeds and dust off the Reserve. First Nation adults and children may also use Municipal parks and playgrounds. Each of these Municipal services primarily benefit Municipal residents, but they are also of some benefit to First Nation residents. As such, a Municipality may consider that the provision of these services should be included within the MDSA.

Services that are provided by another level of government should not be dealt with, or should specifically be excluded from being dealt with, in a MDSA. For example, the Royal Canadian Mounted Police (RCMP) provides policing services to Municipalities outside Winnipeg and Brandon. Municipalities obtain policing services from the RCMP by agreement with Canada or Manitoba. Some First Nation communities receive First Nations Community Policing pursuant to a tri-party agreement between Canada, Manitoba and the First Nation. Other First Nation communities receive policing services pursuant to the Provincial Policing Services Agreement between Manitoba and Canada. Which of these options is appropriate for an Entitlement First Nation will depend upon the location and size of the Selection or Acquisition, as well as the number of residents. For Selections or Acquisitions in Winnipeg or Brandon, the Entitlement First Nation will have to negotiate with the Winnipeg or Brandon Police Services for the provision of policing services. If the parties wish to provide in their MDSA that the Entitlement First Nation will enter into an agreement for policing services with the RCMP, the following provision may be inserted into the Agreement:

The Entitlement First Nation shall enter into an agreement with the Royal Canadian Mounted Police to confirm the right of access of the Royal Canadian Mounted Police to the Selection/Acquisition, and to act as peace officers with respect to the Selection/ Acquisition and its occupants.

Similarly, the education of First Nation children, whether on the Reserve or in neighbouring communities, is funded by the federal government. In the event that a Municipality does not play a direct role in the education of First Nation children, the education of First Nation children should not be addressed in a MDSA.

If the Entitlement First Nation wishes to obtain all of the services that are provided to Municipal residents, the following provision could be used in a MDSA to indicate the type of services that will be provided:

The Municipality shall provide all normal Municipal services to the Selection/Acquisition and the occupants of the Selection/Acquisition (the "Services"). The type and level of services supplied to the Selection/Acquisition and the occupants of the Selection/Acquisition shall be the same as the Municipality supplies to similarly zoned lands within the Municipal boundaries, which are in a similar state of development. Policing services and services provided by other levels of government, including, without limitation, the services of the public and separate school boards, shall not be included within the Services.

In the alternative, the Entitlement First Nation may want to be provided with the same services that are provided to other municipal residents, but may wish the agreement to describe in greater detail, what services will be provided. Where the Entitlement First Nation already has enacted its own by-law respecting land use and occupancy, a provision similar to the following provision could be used:

"Services" includes fire and ambulance, garbage collection and disposal, water distribution and sewage collection, inspection and enforcement of the Entitlement First Nation's Land Use and Occupancy By-law, and all activities related thereto, on the Selection/Acquisition, and the maintenance of municipal infrastructure and all services and activities related thereto outside the Selection/Acquisition that contribute to its use and enjoyment.

So long as this Municipal Development and Services Agreement remains in force, the Municipality shall deliver all Services to the Selection/Acquisition and its occupants as would be provided from time to time to any other similarly situated and used land and its occupants within the Municipality.

The Municipality shall, as part of the Services, provide designated officers to carry out inspection and enforcement of the Entitlement First Nation's Land Use and Occupancy By-law on the Selection/Acquisition, in substantially the same manner as inspection and enforcement of the corresponding by-laws of the Municipality, so long as and to the extent that the Land Use and Occupancy By-law of the Entitlement First Nation continues to confer that inspection and enforcement authority on the designated officer of the Municipality.

The Entitlement First Nation shall support the inspection and enforcement process by:

1. ensuring that the designated officers of the Municipality and their delegates who have inspection and enforcement authority on the Selection/Acquisition have the right to enter upon any part of the Selection/Acquisition for the purpose of providing the Services; and
2. providing evidence required to prove the validity and content of the Land Use and Occupancy By-law.

In particular, the Entitlement First Nation shall take all steps necessary to support the issuance of a permit to the Municipality for the express purpose of providing a right of access to provide the Services.

If the Entitlement First Nation wants to obtain only specific services, the provisions to be incorporated in the MDSA will have to be tailored to fit the circumstances. For example, the Entitlement First Nation may want to be provided with only water, fire and sewer services, as indicated in the following provisions:

Subject to the terms and conditions of this Municipal Development and Services Agreement, during the term of this Agreement, the Municipality shall provide the following Services to the Entitlement First Nation:

1. domestic water including fire hydrant maintenance;
2. fire protection; and
3. sanitary sewer collection.

The Entitlement First Nation shall construct the Reserve System and Off-Reserve System as described in Schedules "*" and "**" attached hereto, and such construction shall meet the specifications of the Municipality.

The quantity and quality of each Service provided by the Municipality shall be substantially the same as the quantity and quality of such service provided by the Municipality within the Municipal boundaries.

The Entitlement First Nation shall retain a Professional Engineer to supervise the construction of the Reserve System and Off-Reserve System, who shall certify to the Municipality that such works have been constructed to Municipality specifications, such certification to be delivered to the Municipality's engineer before connection of the works to the Municipal water and sanitary sewer system.

The Municipality shall have control and supervision for all repairs and maintenance of the Reserve System, the costs of the materials, equipment, and labour, for such repairs to be borne by the Entitlement First Nation. The Municipality shall not be responsible for repairs or maintenance to the service laterals between the main and the building.

The Municipality shall supply water, sanitary sewer service and fire protection to that portion of the Reserve shown crosshatched on the plan attached hereto as Schedule "***".

The Municipality shall accept all domestic sanitary sewage from the Entitlement First Nation. Acceptance of any other type of sewage shall require written approval of the Municipality.

The Municipality agrees that no connections shall be permitted to the Off-Reserve System.

As mentioned above, these are only a few examples of the provisions that might be included in an agreement.

Municipalities are almost totally self-financing. Although they may receive some government grants, most of their revenue is derived from property taxes, as they do not have the power to raise revenue through income tax, gasoline tax or sales tax, as do other levels of government. Each property within a Municipality generates property tax revenues. The amount of tax on a particular piece of property is based on factors that include its zoning, location and level of development. For example, a piece of raw land on the edge of an Urban Area would be taxed at a lower rate than a similarly sized property with a building on it, located in the main business district.

However, Reserve land is specifically excluded from Municipal land (The Municipal Act, s. 2; The Local Government Districts Act, C.C.S.M. c. L190, s. 1.1). As such, Reserve land is exempt from taxation by a Municipality, even if the Reserve land is bordered on all sides by the Municipality. This means that, if land that is part of a Municipality is Selected or Acquired by an Entitlement First Nation and set apart as Reserve, it will be exempt from Municipal taxation. The removal of land from the Municipality's tax base by the implementation of the Framework Agreement is likely to result in a tax loss for the Municipality. In fact, the possibility of a tax loss by a Municipality that loses part of its property tax base as a result of the setting apart of land within the Municipality is recognized as a distinct possibility within the Framework Agreement (Framework Agreement, s. 14.01(2), s. 37.03 (1)).

The Entitlement First Nation may wish to have the Municipality expressly agree that it will not ask the Entitlement First Nation to pay for any tax losses attributable to the land being set apart as Reserve. A provision such as the following could convey this intention:

The Municipality hereby agrees that upon execution of this Municipal Development and Services Agreement, it shall cede, relinquish and abandon unto the Entitlement First Nation, and forever discharge and release the Entitlement First Nation, its agents, members and successors from all claims, rights, title and interest relating to any and all of the provision of and payment for compensation to the Municipality for loss of taxes, levies, or grants in lieu, which, but for the setting apart of the Selection/ Acquisition as Reserve, could reasonably have been expected to have been received by the Municipality for its own purposes (save the Service charge as contemplated in this Agreement).

Although a Municipality cannot tax the Reserve land, it can require the Entitlement First Nation to pay a reasonable amount for services that the Municipality provides to the Reserve and its residents. The fee charged for the services is an amount that will be derived through negotiation between the Municipality and the Entitlement First Nation; it may or may not be equal to the taxes that would have been payable on the land had it not been Selected or Acquired by the Entitlement First Nation as part of the Entitlement First Nation's TLE. The fee that will be payable by the Entitlement First Nation for such services will depend upon the type of services that will be provided and the level of those services. The MDSA should set out the details of the amount and the timing of payments for services provided by the Municipality to the Entitlement First Nation.

In the event that the Entitlement First Nation Selects or Acquires undeveloped land with the intention of developing it, the Municipality and Entitlement First Nation will have to consider who, as between the Municipality, purchaser of the undeveloped land and developer, should be responsible for the cost of development infrastructure. Typically, when land is developed for industrial or commercial purposes, the purchaser pays for on-site infrastructure such as water pipes, sanitary sewer pipes, storm sewer pipes, catch basins, streets, lanes, paving, curbing and boulevards, while the developer of the land pays a one-time off-site levy (usually as a hook-up fee) to offset the cost of off-site infrastructure such as street signs, traffic lights, street lighting, trunk sewers, primary water mains, arterial (main) roads, bridges, sewage lift stations, and major parks.

The following is an example of provisions that could be used where a Municipality provides the same services to the Entitlement First Nation as it provides to Municipal residents and the Entitlement First Nation agrees to pay for these services by paying a fee that is equivalent to the taxes that a Municipal resident would have paid for the same services:

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Payment for Municipal Services

1. In consideration for the Services, the Entitlement First Nation shall pay the Municipality an annual amount based on the assessed value of the Selection/Acquisition which would have been payable by the Entitlement First Nation to the Municipality during the year pursuant to The Municipal Act, C.C.S.M. c. M225, if the Selection/Acquisition were not Reserve land and the Selection/Acquisition, the improvements thereto, its occupants and the owners of businesses conducted thereon were assessed and taxed by the Municipality, less the portion of such taxes that are assessed and levied by the Municipality in consideration of policing services and on behalf of any public or separate school board.



2. In addition to the amount required to be paid under Subsection (1), the Entitlement First Nation shall pay the Municipality an annual amount equal to any grant in lieu of taxes which would have been payable by the Entitlement First Nation to the Municipality during the year pursuant to The Municipal Act, C.C.S.M. c. M225, if the Selection/Acquisition were not Reserve land, less the portion of such grant that is in consideration of policing services and on behalf of any public or separate school board.



3. The Entitlement First Nation agrees to pay annually, in addition to the amounts required to be paid under Subsections (1) and (2) amounts equal to
   1. any business tax;
   2. any local improvement tax;
   3. any special services tax; and
   4. any other charges, which would have been charged to the Entitlement First Nation, were the Selection/Acquisition not Reserve land.


4. The Entitlement First Nation and the Municipality agree that the use of the tax and levy replacement calculation is a reasonable proxy for, and is to be used in replacement of, detailed calculations of the actual costs incurred by the Municipality in providing the Services and is intended by the parties to constitute a fee for the Services and not a tax.



5. In the event that the Entitlement First Nation does not agree with the consideration for the Services, including the application or establishment of the appropriate mill rate, property categorizations, methods of assessment, assessed value of the Selection/Acquisition, or amounts payable or amounts in arrears, the Entitlement First Nation may take steps to have the issue or issues reviewed in accordance with the dispute resolution process set out in sections * * * of this Municipal Development and Services Agreement. Either party may refer matters hereunder to the dispute resolution process, at any time, notwithstanding any time limits imposed under Municipal Taxation By-laws or The Municipal Act, C.C.S.M. c. M225. Where a matter in dispute is referred to the dispute resolution process set out in this Agreement, the application of the Section headed "Remedies for Non-Payment" shall be suspended.



6. Notwithstanding any other provision of this Agreement, the annual amount to be paid by the Entitlement First Nation under Subsections (1) and (2) shall not cover those services which are normally provided by the Municipality in consideration of a direct charge or user fee payable by the party to whom such services are provided. Such services include, without limitation, the supply of water, the disposal of sewage and the supply of electricity. The charges for these services shall be paid by the Entitlement First Nation or by the occupant of the Selection/Acquisition to whom the service is supplied, in the same manner as any other party to whom such services are provided. Such payment will include, if required by law, any tax imposed by federal or provincial legislation in relation to the provision of such services.

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Adjustment for Undeveloped Lands

The annual amount payable by the Entitlement First Nation to the Municipality pursuant to the Section headed "Payment for Municipal Services" shall be reduced in the following manner:

1. for the years 2001 and 2002, the amount payable with respect to undeveloped lands shall be calculated at the rate of **% of the sum otherwise payable pursuant to the Section entitled "Payment for Municipal Services";



2. for the years 2002 and 2003, the amount payable with respect to undeveloped lands shall be calculated at the rate of **% of the sum otherwise payable pursuant to the Section entitled "Payment for Municipal Services";



3. for the years 2003 and 2004, the amount payable with respect to undeveloped lands shall be calculated at the rate of **% of the sum otherwise payable pursuant to the Section entitled "Payment for Municipal Services"; and



4. ***

Invoicing

The Municipality shall invoice the Entitlement First Nation for the Services at the same time that the Municipality sends out tax notices in each year. Such invoices shall set out the amount which is assessed and levied by the Municipality against the Selection/Acquisition, its occupants and the owners of businesses conducted thereon, as provided in the Sections headed "Payment for Municipal Services" and "Adjustment for Undeveloped Lands". An invoice for Services is payable in full to the Municipality on or before * * * in each year.

Penalties

If the invoice for Services is not paid in full by ****** **, any unpaid amount shall be subject to a penalty at the following rate: * * *.

Prepayment Discount

So soon as is practicable in each year, the Municipality shall provide the Entitlement First Nation with an estimate of the amount to be invoiced for Services for that year. Upon receipt of such estimate and subject to adjustment at the time of formal invoicing, the Entitlement First Nation may prepay all or a part of the cost of the Services. The discount rate allowed by the Municipality for prepayment of taxes shall apply to any prepayment made by the Entitlement First Nation.

Remedies for Non-Payment

If any invoice for Services is not paid in full by ************ ** of the year in which it is issued, the Municipality, upon thirty (30) days notice, may suspend or withdraw any or all of the Services until the invoice plus penalties are paid in full. The Municipality's right to suspend or withdraw the Services shall be without prejudice to any other remedy which may be available to the Municipality.

Transition

With respect to the portion of the calendar year 2001 that is included in the term of this Agreement, the Municipality shall assess the Selection/Acquisition, the improvements thereto, its occupants, and the owners of businesses conducted thereon, as at the ** day of **********, 2001, and immediately thereafter deliver to the Entitlement First Nation an invoice reflecting the amount due and payable for Services, as herein provided, for the remaining portion of the calendar year. The invoice shall be paid in full to the Municipality by the *** day of ************, 2001, and the provisions of this Agreement that relate to penalties on unpaid taxes shall apply.

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This payment scheme is only one example of many payment schemes that could be devised. The following is another example of a similar scheme that more simply refers to the fee for services as being equal to that paid by other Municipal consumers:

Basic Service Charge

In consideration for the provision of Services, the Entitlement First Nation shall pay to the Municipality for the Services, as requested by the Entitlement First Nation, a service charge from time to time charged by the Municipality, calculated on the same basis as other consumers of such Services within the limits of the Municipality, more specifically identified to be equal to the municipal portion of the mill rate applied to the assessed value of the Selection/Acquisition, improvements and businesses thereupon, each year (the "Service Charge").

Reduction

In the event that any Service shall not be supplied, the value of the Service Charge referred to in the provision headed "Basic Service Charge" shall be reduced. In the event of a dispute as to the availability or value of the reduction, upon the request of either party, the **** [the "Joint Council Committee" if one is organized, could fill this role] shall determine the issue.

Direct Charges and Consumption Rates

The Entitlement First Nation shall further pay to the Municipality wherever applicable, in consideration for the consumption of public utilities, directly charged services and other land user charges, those user fees which are equal in amount and payable in the same manner as by other consumers of Municipal public utilities, directly charged services and other types of land use charges as are established by Municipal by-law.

Discounts

The Entitlement First Nation shall be eligible for any discounts, exemptions, rebates or deferrals on the Service Charge on the same terms and same basis as other consumers of Services.

Development Charges

The Entitlement First Nation shall pay charges for new developments (on a per-acre-developed basis), trunk charges for sewer, water, storm water drainage and arterial roads, off-site levies, and the value of charges which would be payable in respect of local improvements, as if the Selection/Acquisition was not a Reserve. Invoices for same shall be paid by the Entitlement First Nation within sixty (60) days of invoice.

In the event of default of the Service Charge, the Municipality shall not suspend any Services without having provided written notice to the Entitlement First Nation of the Municipality's intention to suspend such Services as a result of default of payment, such suspension to take effect thirty (30) days after written notice is received by the Entitlement First Nation.

The parties agree that the Municipality shall continue to provide any and all Services upon payment of the defaulted Service Charge plus a penalty of one percent (1%) per month, being twelve percent (12%) per annum, on the outstanding balance of the unpaid Service Charge.

The Municipality shall invoice the Entitlement First Nation on April 1 of each year, and the invoice shall be a charge, which is estimated for the provision of Services for one (1) year from the 1^st of April to the 30^th day of March for the one (1) year.

The Municipality shall extend to the Entitlement First Nation identical prepayment discounts as are offered to other Municipal residents and allow those discounts to be applied in respect of the Service Charge referred to in the provision headed "Basic Service Charge".

Should conditions warrant, and upon a reassessment of the Selection/Acquisition, any portion thereof, or the improvements thereon, the Municipality may, no later than the 31^st day of August in each year, render a supplemental invoice for Services to the Entitlement First Nation, reflecting any increase in the assessment of the Selection or any portion thereof, or the improvement thereto, during the course of that year, subject to an appeal of the assessment to the * * *[the Joint Council Committee, if one is organized, could hear appeals]. Such supplemental invoice shall be paid in full to the Municipality by the 31^st day of October in each year as part of the Service Charge.

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Although the above examples are indicative of provisions that may be used where an Entitlement First Nation is charged for services in the same manner as Municipal residents, this basis for charging for services will not always be the basis that the parties will decide to use. In fact, even if the same services at the same level are provided to the Entitlement First Nation as are provided to the Municipal residents, it will not necessarily be the case that the Entitlement First Nation will be required to pay the same amount for those services, since the fee for services is a negotiated amount to be negotiated between the Entitlement First Nation and the Municipality.

If the Entitlement First Nation doesn't want all of the services that are normally provided to Municipal residents or wants a different level of service than what is normally provided to Municipal residents, a payment scheme such as those set out above for services equivalent in type and level to those provided to Municipal residents would not be appropriate. Instead, the MDSA payment provisions would be specific to the specific services being provided. For example, the following provisions pertain to payment for water, fire protection and sewer services:

The Entitlement First Nation shall pay the Municipality for the supply of water services at the Municipality standard water meter rate in effect from time to time.

The Entitlement First Nation shall pay the Municipality the sanitary sewer rate in effect from time to time for sanitary sewer service at the Municipality standard according to the quantity of water as measured by the water meter.

The Entitlement First Nation shall pay the Municipality the amount of $50.00 per residential unit for fire protection service and four (4) times the residential rate for each non-residential building. The Entitlement First Nation shall advise the Municipality not later than March 15^th of each year, as to the number of residential units within the Reserve. The Entitlement First Nation shall advise the Municipality immediately of any non-residential construction that is being undertaken.

For the calendar year 20** and for each subsequent year thereafter, the annual fee for fire protection service fee set out in the preceding provision shall be increased or decreased from the fee for the immediately preceding calendar year by a percentage equal to the percentage increase or decrease in the official Consumer Price Index for Canada (all items) published by Statistics Canada for the period January 1^st to December 31^st in the immediately preceding calendar year.

All fees due under this Municipal Development and Services Agreement shall be payable within 30 days of delivery of the invoice.

The Entitlement First Nation shall have ownership of the Reserve and Off-Reserve Systems and shall be responsible for maintenance costs, replacement costs and any further installation costs.

Finally, it bears repeating, particularly given the earlier examples provided above, that the fee that the Entitlement First Nation will pay for the services that are provided by the Municipality is an amount that will be arrived at by negotiation between the Municipality and Entitlement First Nation. While the parties may decide to base the fee on the amount of taxes that would have payable by the Entitlement First Nation if the land had not been set apart as Reserve, the parties may not take this approach to the calculating the fee for services. The fee for service may bear no resemblance in amount or the way in which it is calculated to the taxes that the Municipality would have derived from the property had the land not been set apart as Reserve.

The Municipality may require information from the Entitlement First Nation to assess and reassess the amounts payable by the Entitlement First Nation for services to the Selection or Acquisition, particularly if the calculation of fee for service is based on assessment of property. For example, the Municipality may want to access the Selection or Acquisition to inspect improvements made to the Selection or Acquisition to determine what amounts should be payable by the Entitlement First Nation for the services rendered by the Municipality. The Municipality will also require access to the Selection or Acquisition for purposes incidental to the provision and maintenance of its services. In addition, the Municipality may want to access the Selection or Acquisition to provide assistance in circumstances that may pose a danger to the public's safety. Provisions such as the following would entitle the Municipality to obtain information from the Entitlement First Nation and access the Selection or Acquisition for various purposes:

Supply of Assessment Information

The Entitlement First Nation shall supply such information to the Municipality as may reasonably be required from time to time in order to allow the Municipality to assess or reassess the Selection/Acquisition and the improvements thereon, in the same manner as if the Municipality were assessing and levying taxes on the Selection/Acquisition, the improvements thereto, its occupants or on the owners of businesses conducted thereon pursuant to The Municipal Act, C.C.S.M. c. M225.

Access to the Selection/Acquisition

The Entitlement First Nation shall allow and accommodate the Municipality, its officers, employees and agents, upon providing reasonable notice to the Entitlement First Nation, to have access to the Selection/Acquisition at any reasonable time in the following instances:

1. incidental to the provision and maintenance of Services, local improvements and special services;
2. to review and assess the Selection/Acquisition, improvements and businesses carried on upon the Selection/Acquisition as required to perform the calculations contemplated in the Section headed "Payment for Municipal Services";
3. to carry out enforcement or other actions authorized by The Municipal Act, C.C.S.M. c. M225, including, without limitation, seizure and sale of goods found on the Selection/Acquisition, and removal of improvements from the Selection/Acquisition; and
4. with the consent of the Entitlement First Nation and occupants of the Selection/Acquisition.

Danger to Public Safety

Where, in the opinion of a person designated by the Municipality, a condition exists on the Selection/Acquisition, which is a danger to public safety, the designated person and his agents may enter upon the Selection/Acquisition and take any reasonable emergency action to eliminate the danger to the safety, health, protection and well-being of people, and the safety and protection of property. The designated person shall, whenever it is reasonably possible to do so, notify the Entitlement First Nation of such actions in advance.

It should be borne in mind by the Municipality that it is acceptable for the MDSA to provide for access by the Municipality to the Selection or Acquisition in order for the Municipality to provide services to the Entitlement First Nation, provided that the Entitlement First Nation will own any infrastructure on the Selection or Acquisition. However, if the Municipality will own the infrastructure on the Selection or Acquisition, the Municipality must also obtain a permit from Canada allowing for use and occupancy on the Reserve, due to subsection 28(1) of the Indian Act, c. I-5 which provides:

a … contract … or agreement of any kind whether written or oral, by which a band or a member of a band purports to permit a person other than a member of that band to occupy or use a reserve or to reside or otherwise exercise any rights on a reserve is void.

Services provided by the Municipality to the Entitlement First Nation may be interrupted for reasons other than for suspension or withdrawal of services for non-payment. For example, services may be disrupted because of an accident or the repair or replacement of part of the utility or service. The Municipal Act provides that a municipality will not be liable for loss or damage that results from such a disruption of service (s. 389). A Municipality may want to be afforded the same exemption from liability in regard to its provision of services to an Entitlement First Nation:

Liability of Municipality for Services

The Municipality shall have no greater liability or obligation with respect to the supply of Services than it has to the owners and occupants of land, improvements and businesses in the Municipality and all defences available to the Municipality under sections 385 to 404 of The Municipal Act, C.C.S.M. c. M225 with respect to the provision or interruption of services shall be available to the Municipality as if incorporated in this Municipal Development and Services Agreement. The Municipality shall have no liability for a suspension or withdrawal of Services pursuant to the Section of this Agreement that sets out remedies for non-payment.

The Entitlement First Nation may wish to have the Municipality agree to indemnify the Entitlement First Nation, subject to the restrictions set out in The Municipal Act, from any losses that result as a consequence of the provision of services, in the following manner:

Indemnification by Municipality

Subject to the limitations on liability set out in the section headed "Liability of Municipality for Services", the Municipality shall indemnify and save harmless the Entitlement First Nation from and against any and all costs, losses and damages which may accrue to the Entitlement First Nation as a consequence of the provision of the Services, including the condition or state of repair of any of the streets or other improvements situate upon the Reserve and being maintained by the Municipality pursuant to the provisions hereof, except for such costs, losses and damages which arise as a consequence of the acts or omissions of the Entitlement First Nation or those for whom it is responsible at law.