COURT OF APPEAL
CANADA
PROVINCE OF QUEBEC
REGISTRY OF MONTREAL
No:
DATE:
500-09-024124-133
(500-05-006143-943)
(500-17-058614-101)
(500-17-066353-114)
APRIL 21, 2016
CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q.
JACQUES CHAMBERLAND, J.A.
FRANCE THIBAULT, J.A.
ALLAN R. HILTON, J.A.
JEAN BOUCHARD, J.A.
No: 500-05-006143-943
JOHN LOUIS STEVEN RICE
WALLACE STACEY
APPELLANTS – Plaintiffs
v.
L'AGENCE DU REVENU DU QUÉBEC
THE ATTORNEY GENERAL OF QUEBEC
THE ATTORNEY GENERAL OF CANADA
RESPONDENTS - Defendants
and
SYLVIA GRÉGOIRE THOMAS
DONNA DE LARONDE
LEAH DIOME
BOBBIJO DELORMIER
DEBRA GOODLEAF
SHEILA LAZARE
JOHN McCOMBER
LEE JACOBS
DEREK WHITE
APPELLANTS – Interveners
500-09-024124-133
PAGE : 2
No: 500-17-058614-101
SYLVIA GRÉGOIRE THOMAS
DONNA DE LARONDE
LEAH DIOME
APPELLANTS – Plaintiffs
v.
LE SOUS-MINISTRE DU REVENU DU QUÉBEC
THE ATTORNEY GENERAL OF QUEBEC
THE ATTORNEY GENERAL OF CANADA
RESPONDENTS – Defendants
No: 500-17-066353-114
BOBBIJO DELORMIER
DEBRA GOODLEAF
LEE JACOBS
SHEILA LAZARE
JOHN McCOMBER
DEREK WHITE
APPELLANTS – Plaintiffs
v.
LE SOUS-MINISTRE DU REVENU DU QUÉBEC
L'AGENCE DU REVENU DU QUÉBEC
THE ATTORNEY GENERAL OF QUEBEC
THE ATTORNEY GENERAL OF CANADA
RESPONDENTS – Defendants
JUDGMENT
500-09-024124-133
[1]
PAGE : 3
The appellants are status Indians within the meaning of the Indian Act.1 They
appeal the judgment of the Superior Court, District of Montreal rendered on December
5, 2013 by the Honourable Mr. Justice Louis Crête2 that dismissed three motions for
declaratory judgment by which they sought to be exempted from the obligation to collect
various taxes upon the sale of gasoline and to remit same to the Minister of Revenue.
They invoked constitutional arguments and other grounds based on the Indian Act.
1.
The context3
[2]
This litigation between the appellants, who are Mohawk owners of gasoline
stations on the Kahnawake Reserve, and the Agence du revenue du Québec ("ARQ")
as well as the Attorneys General of Quebec and Canada, dates back some twenty
years. Its origins can be traced to Parliament's adoption of the goods and services tax4
in 1990 and the provincial legislature's adoption the following year of the Quebec sales
tax.5 Pursuant to a federal-provincial agreement dated December 29, 1990, the
Government of Canada conferred the responsibility to administer and collect the GST to
the Government of Quebec.6 In this respect, it must be noted that a provincial fuel tax
has existed since 1924.7
[3]
The Kahnawake Reserve has a population of approximately 10,000 Indians.8
There are twenty or so active gasoline retailers on the Reserve, which is surrounded by
1
2
3
4
5
6
7
8
Indian Act, R.S.C. (1985), c. I-5.
Leclaire v. Agence du revenu du Québec, J.E. 2014-13 (S.C.), 2013 QCCS 6083 [Judgment under
appeal].
The facts are outlined by the judge in Part III of his judgment. Since the appellants accept his
rendering of the facts, a brief summary suffices here.
Excise Tax Act, R.S.C. (1985), c. E-15, Part IX (ss. 122 and following).
An Act Respecting the Québec Sales Tax, CQLR, c. T-0.1.
Décret concernant la signature d’une entente fédérale-provinciale sur le transfert au Québec de
l’administration de la TPS fédérale sur le territoire du Québec et sur une certaine harmonisation du
régime provincial des taxes à la consommation, (1991) G.O. II, 24. Quebec’s Minister of Revenue
was responsible for the administration of GST and QST until April 1, 2010, when that task was
assigned to the ARQ.
See the current Fuel Tax Act, CQLR c. T-1.
We use the word Indian where the right or exemption claimed is linked to Indian status as provided in
the Indian Act.
500-09-024124-133
PAGE : 4
highways on which approximately twenty-eight million vehicles travel each year. The
great majority of drivers are not Indian, but they purchase gasoline from service stations
on the outskirts of the Reserve. They are thus able to save money compared to the
purchase price in neighbouring municipalities. These savings are due to Kahnawake
retailers not collecting applicable taxes when they sell gasoline.
[4]
Consumers who live on the Reserve and are status Indians are exempt from
paying these taxes pursuant to s. 87 of the Indian Act. On the other hand, other
customers are obliged to pay such taxes. The relevant taxation statutes require the
appellants, as mandataries of the State, to collect and then remit these taxes to the
Minister of Revenue. For their part, Indian retailers who purchase fuel from their
suppliers pay neither the GST nor the QST on fuel delivered to the Reserve. They do,
however, pay an amount equal to the fuel tax, which is then compensated when a retail
sale is made.
[5]
Based on a belief that it was being deprived of significant tax revenue because of
the appellants' failure to collect and remit the various taxes, in the spring of 1994 the
Minister of Revenue served a notice of assessment on a dozen or so retailers to recover
the taxes that should have been collected and remitted. Faced with their refusal to
comply, the Minister revoked their registration certificates. So doing prevented the
retailers in question from being supplied with gasoline products from their suppliers
situated off the Reserve, with the effect that they could no longer carry on business.
[6]
The retailers answered with an initial motion for declaratory judgment dated May
31, 1994. It sought in the main to have the court recognize that as status Indians, they
had no obligation to act as collection agents of federal and provincial sales taxes. They
therefore sought a declaration that certain provisions of the Indian Act, the Excise Tax
Act, the Quebec Sales Tax Act and the Fuel Tax Act be declared inapplicable to them.
The motion set out their ancestral rights, but did not invoke the existence of a right to
500-09-024124-133
PAGE : 5
trade based on the Royal Proclamation of 1763.9 The motion also sought a safeguard
order directed mainly at obtaining a stay of the notices of assessment, the revocation of
the registration certificates and an order directing their suppliers not to supply them with
fuel products.
These conservatory measures were granted by Grenier, J. on June 17, 1994,10
[7]
conditional upon the appellants complying with the requirements of law for the collection
and remittance to the Minister of Revenue of the taxes imposed on consumers who
were not Indians.
[8]
After this judgment had been rendered, the appellants continued to run their
business operations, without complying with the conditions Grenier, J. had imposed.
Some of them did not collect and remit to the Minister of Revenue the taxes they were
obliged to collect from their non-Indian clientele. Others collected taxes but remitted
only symbolic amounts that were clearly inferior to the value of the actual sales to this
clientele.
The file remained dormant for several years.11 In 2006, the owners of
[9]
neighbouring service stations complained of the unfair competition by retailers on the
Reserve. Following an investigation, the ARQ assessed the appellants Thomas and
others between December 2009 and March 2010. These appellants then served a
second motion for declaratory judgment. In July of 2011, the appellants Delorimier and
others, who had not been assessed, served a third motion for declaratory judgment.
[10]
The AGQ filed a motion for directions on February 24, 2009, to which the
appellants reacted by raising new grounds in support of their contention that they had
the right to trade freely, without hindrance or restriction. This right was based on the
Royal Proclamation of 1763, and an ancestral right within the meaning of s. 35 of the
9
10
11
The judge summarizes the initial conclusions sought at para. 37 of the judgment under appeal.
Leclaire c. Quebec (Attorney General), J.E. 94-1301 (C.S.).
With the exception of a motion for peremption of the suit, granted in October 2004, but from which the
respondents desisted on May 27, 2005.
500-09-024124-133
PAGE : 6
Constitution Act, 1982.12 The appellants reiterated their arguments in the original motion
founded on s. 91(24) of the Constitution Act, 186713 and the exemption from taxes
contemplated by s. 87 of the Indian Act.
[11]
The motion introductive of suit was amended six times between 1994 and 2013.
In their fifth amended motion dated December 7, 2012, the appellants added grounds
relating to the inapplicability of budget measures Quebec adopted in 2011 which
contemplated benefitting Indians living on reserves situated within Quebec by
exempting them from paying taxes on fuel products purchased directly at the pump. It is
useful to summarily describe these measures and the context in which they were
adopted.
[12]
In 2007, the Grand Chief of the Assembly of First Nations of Quebec and
Labrador, Ghislain Picard, was authorized to institute a class action on behalf of all
Indians of the province.14 This recourse sought to have the fuel tax reimbursement
mechanism contemplated by sections 2, 3 and 10.2 of the Fuel Tax Act and its
implementing regulation declared inoperative on the basis that the mechanism
conflicted with the exemption provided at s. 87 of the Indian Act. At this time, Indians
had to pay a fuel tax at the time of purchase, but could claim reimbursement by
completing the required form. Very few Indians took advantage of this mechanism,
which they thought to be too complex.
[13]
The class action never proceeded on the merits. It was settled by a transaction
the Superior Court ratified in December of 2012. The sum of $24,600,000 was paid as
indemnification for fuel taxes paid prior to June 30, 2011.15
[14]
12
13
14
15
To avoid similar litigation for the period after June 30, 2011, the Department of
Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3.
Picard v. Quebec (Attorney General), J.E. 2007-1053 (C.S.), 2007 QCCS 2122.
The settlement was confirmed December 9, 2011 (corrected judgment January 13, 2012): Picard v.
Quebec (Attorney General), [2012] 2 C.N.L.R. 172 (S.C.), 2011 QCCS 7095.
500-09-024124-133
PAGE : 7
Finance and the ARQ developed measures to benefit Indians from the exemption to pay
fuel taxes when purchasing gasoline on a reserve. The Program for Administering the
Fuel Tax Exemption,16 in force since July 1, 2011, provides in particular that: (1) Indians
wishing to participate in the exemption at the pump program must register with the ARQ
by completing the required form; (2) an attestation of registration in the program must
be shown to the retailer at the time of purchase together with the holder's certificate as a
status Indian, failing which the consumer cannot benefit from the exemption at the time
of purchase and must then apply for reimbursement as contemplated in the previous
plan.17
[15]
These new measures also imposed a certain number of obligations on retailers.
They must in particular: (1) maintain a register of retail sales made to Indians;18 (2)
verify at the time of sale the consumer's identity by reference to the certificate of Indian
status and the validity of the attestation of registration in the program,19 and (3), produce
a monthly declaration of their purchases and sales to obtain reimbursement of an
amount equal to the fuel tax paid to suppliers with respect to fuel sold at retail free from
the fuel tax.
[16]
Finally, another less stringent measure would allow a retailer to purchase a
percentage of his fuel without the amount equal to the fuel tax being collected by the
wholesaler, by way of an exception to s. 2 of the Fuel Tax Act. This percentage would
represent the quantity of fuel most probably sold to Indians or band councils.
[17]
This program to manage the tax exemption was optional, both for consumers and
retailers. None of the appellants took advantage of it such that Indians could not benefit
16
17
18
19
An Act giving effect to the Budget Speech delivered on 17 March 2011 and amending various
legislative provisions, S.Q. 2011, c. 34.
Fuel Tax Act, supra, note 7, s. 12.1 and Regulation respecting the application of the Fuel Tax Act,
CQLR c. T-1, r. 1, s. 12.1R1.
Fuel Tax Act, ibid., s. 17.3 and Regulation respecting the application of the Fuel Tax Act, ibid.,
s. 17.3R1.
Fuel Tax Act, ibid., s. 10.2.1 and Regulation respecting the application of the Fuel Tax Act, ibid.,
s. 10.2.1R1.
500-09-024124-133
PAGE : 8
from the exemption on fuel purchased at the pump.
[18]
The sixth amended motion dated February 7, 2013 defined the issues to be
decided at trial. The trial judge described the various grounds the appellants raised as
follows:
[19]
(1)
Do the Petitioners, who are of Aboriginal origin, have the Aboriginal right
to trade freely and openly, given the trading activities they engaged in
before contact with Europeans?
(2)
Do the Petitioners have a constitutional right guaranteed by sections 25
and 35 of the Constitution Act, 1982 to trade freely and openly because of
the assurances given them in the Royal Proclamation of 1763?
(3)
Is the transfer of jurisdiction from the federal authority to the provincial
authority for collection of the GST constitutionally invalid inasmuch as
Quebec claims to apply its sales tax collection rules in a manner that is
said to violate the principle of the division of power established by the
Constitution Act, 1867?
(4)
Do the obligation to collect consumption taxes and the mechanisms set
up by federal and provincial legislation violate the Indians' right not to be
subject to taxation on their reserves?
(5)
Did the two levels of government, federal and provincial, fail in their duties
to act honourably toward the Petitioners when, in particular, they
neglected to consult them before adopting tax rules that the governments
seek to impose on Indian retailers affected by the present proceedings?
(6)
Are the various claims by the Agence du revenu du Québec regarding the
Petitioners prescribed?20
The judge answered these questions in the negative. The two grounds relating to
the honour of the Crown (question 5) and the prescription of the claims (question 6)
have not been renewed in appeal. With respect to the third question, the appellants are
limiting their submissions to the invalidity of the exemption mechanism adopted in 2011.
2. The trial judgment
[20]
20
Here is how the judge decided the questions the parties raised and that remain
See para. 135 of the judgment under appeal.
500-09-024124-133
PAGE : 9
relevant in appeal.
On the existence of an Aboriginal right to trade freely without interference (paragraphs
136 – 183)
[21]
After having characterized the right the appellants claimed and examined the
evidence, the judge concluded that trading between Iroquois nations – essentially of
objects of spiritual value exchanged for ritual, social or diplomatic purposes – was not
commercial in nature such that it was impossible to conclude that the Aboriginal right
they claimed existed. In his opinion, the clearly commercial right the appellants were
asserting was not an integral part of the distinctive culture of Mohawks before contact
with Europeans. As a result, their contentions amount to an inappropriate extension of
non-commercial trading activities that existed between Aboriginal nations.
On the submission based on the Aboriginal right to trade freely recognized in the Royal
Proclamation of 1763 (paragraphs 184 – 275)
[22]
The judge held that the historical context of this document and its interpretation
did not allow him to conclude that it gave the appellants the right to trade freely without
hindrance. This was all the more so since the Royal Proclamation had no binding
constitutional status and did not amount to an independent source of Aboriginal rights.
[23]
His review of the text and historical sources led him to conclude that the Royal
Proclamation reflected the intention of the English Crown to re-establish normal
commercial relations after the war through the elimination of French monopolistic
practices by establishing harmonious relations with Aboriginals and protecting them
from the avarice of Europeans.
On the constitutional validity of the provincial at the pump exemption mechanism
(paragraphs 297 – 306)
[24]
The judge was of the view that this mechanism did not offend s. 91(24) of the
Constitution Act, 1867 and that it was not ultra vires of the provincial legislature to the
extent the appellants' so-called Indianness and legal status as Indians were unaffected
by the legislative and administrative measures that had been implemented.
500-09-024124-133
PAGE : 10
On the argument according to which the obligation to collect federal and provincial taxes
and the mechanisms put in place had the effect of abrogating the right of Aboriginals not
to be taxed on their Reserves (paragraphs 307 – 380)
[25]
The judge held that the impugned tax laws did not impose any obligation on the
appellants in their capacity as consumers, but rather as merchants doing business in
the sale of taxable products. As merchants, they were not themselves subject to the
payment of taxes. They were obliged, however, as agents of the tax authorities to
collect consumption taxes from their non-Indian customers. As such, they did not benefit
from the exemption provided for in ss. 87 and 89 of the Indian Act.
[26]
He went on to say that insofar as the obligations of sellers of taxable products
were concerned, the appellants were subject to the same regime as all vendors in
Canada and Quebec, and that they suffered no unfair or exaggerated administrative
burden arising out of the fact that they had to ensure that all Indian customers benefitted
from the tax exemption to which they were entitled, all the while continuing to collect
applicable taxes arising out of sales to other consumers.
3. Analysis
[27]
The appellants have renewed their constitutional arguments in appeal based on
their rights under ss. 87 and 89 of the Indian Act. Their submissions address the
following seven subjects.
3.1
Section 35 of the Constitution Act, 1982
[28]
The appellants' first ground of appeal against the judgment is based on s. 35 of
the Constitution Act, 1982, which reads as follows:
35. (1) The existing aboriginal and
treaty rights of the aboriginal peoples
of Canada are hereby recognized and
affirmed.
[29]
35. (1)
Les
droits
existants –
ancestraux ou issus de traités – des
peuples autochtones du Canada sont
reconnus et confirmés.
At the outset of this analysis it is important to note that if one of the objectives of
s. 35(1) is to recognize the rights Aboriginals held by reason of their presence on
500-09-024124-133
PAGE : 11
territory prior to the Europeans' arrival, such rights must nevertheless be compatible
with our legal system and the affirmation of British sovereignty on Canadian territory.21
[30]
Also, it is with these considerations in mind that the Supreme Court has
developed an analytical framework designed to determine the existence of the ancestral
Aboriginal rights recognized and confirmed in s. 35(1) of the Constitution Act, 1982. This
framework is three-fold:
[31]
•
at the outset, the ancestral right must be characterized based on the
proceedings;
•
next, the evidence must be assessed to determine whether the practice,
tradition or custom forming an integral part of the distinctive aboriginal society
existed prior to contact with Europeans;
•
finally, whether there existed a correlation or reasonable continuity between
the contemporary right claimed and the practice, tradition or custom in
question had to be verified.22
With respect to the first branch of the test, the trial judge concluded from his
reading of the motion introductory of suit that the appellants were claiming a right to
trade openly and freely with all subjects of the Crown.23
[32]
Moving on to the second branch, despite the fact that this right flowed principally
from the Royal Proclamation of 1763 rather than s. 35(1) of the Constitution Act, 1982,24
the judge concluded from the historical evidence the parties' experts produced that the
appellants are the descendants of the members of an Iroquois confederation of five
nations which, at the time of the arrival of Europeans, occupied the Great Lakes region
and the northern part of what is now the State of New York.25
21
22
23
24
25
R. v. Van der Peet, [1996] 2 S.C.R. 507, para. 31, 36, 43 & 49.
Ibid., para. 51 to 75. Lax Kw'alaams Indian Band v. Canada (Attorney General), [2011] 3 S.C.R. 535,
2011 SCC 56, para. 46.
Leclaire v. Agence du revenu du Québec, supra, note 2, para. 141. In this Court, the appellants write
in their factum “that they have an aboriginal right of trade simpliciter.”
Ibid., para. 142.
Ibid., para. 147.
500-09-024124-133
[33]
PAGE : 12
The Mohawks were essentially a non-migrant society whose economy was
based on agriculture, hunting, fishing and food gathering. They lived in villages that
were self-sufficient. According to the experts who testified, this did not prevent them
from trading what they called “Orenda”: rare and precious objects (shell-beads, leather
goods, clay pipes) to which they attributed a spiritual or symbolic value.26
[34]
The appellants contend that this practice, tradition or custom of exchanging
objects of spiritual or symbolic value is the basis of their right to trade freely, without
their being subject, as Aboriginals, to the constraints or restrictions that the federal or
provincial governments may purport to impose on them here. The trial judge rejected
their submissions in this respect as he found that the evidence showed that the trading
in question was of a social, ritual or diplomatic nature and, accordingly, was not of a
commercial character.27
[35]
In this Court, the appellants reiterate that they hold an ancestral right to trade
freely without hindrance. The very act of trading had a central place in their culture.
According to the principle that an ancestral practice must be susceptible of evolving
over time, it was therefore unnecessary for them to show that the trading in which they
were engaged prior to contact with Europeans was commercial in nature.28
[36]
In Lax Kw'alaams,29 the Supreme Court examined what constituted a logical
evolution of an ancestral practice. The underpinning of the case was the claim of the
Lax Kw'alaams to fish and commercially sell all types of fish that were found in their
traditional waters. The reasons of Binnie, J., writing for the Court, are to the effect that
trading in only one species of fish – the grease derived from the smelt-like species
called the eulachon – could not lead to such a result, for to do so would create a
qualitatively and quantitatively different modern right:
26
27
28
29
Ibid., para. 149 to 153.
Ibid., para. 167 to 183.
R. v. Van der Peet, supra, note 21, para. 63 & 64.
Lax Kw'alaams Indian Band v. Canada (Attorney General), supra, note 22.
500-09-024124-133
PAGE : 13
[49]
If established, an Aboriginal right is not frozen at contact, but is subject to
evolution both in terms of the subject matter and the method of its exercise,
depending on the facts.
[50]
In terms of the mode of exercise, the courts have repeatedly recognized
that fishing methods continue to evolve. The Aboriginal source of fishing rights
does not require rights holders in the Pacific Northwest to fish from dugout
canoes. Pre-contact trade in Pacific smoked salmon (if established) should not
exclude preparation and sale of the frozen product when the technology became
available. (All of this, of course, is subject to the interest of conservation and
other substantial and compelling interests (Sparrow, at pp. 1108-10; and N.T.C.
Smokehouse, at paras. 96-97).)
[51]
However, when it comes to “evolving” the subject matter of the Aboriginal
right, the situation is more complex. A “gathering right” to berries based on precontact times would not, for example, “evolve” into a right to “gather” natural gas
within the traditional territory. The surface gathering of copper from the
Coppermine River in the Northwest Territories in pre-contact times would not, I
think, support an “Aboriginal right” to exploit deep shaft diamond mining in the
same territory. While courts have recognized that Aboriginal rights must be
allowed to evolve within limits, such limits are both quantitative and qualitative. A
“pre-sovereignty aboriginal practice cannot be transformed into a different
modern right” (Marshall (2005), at para. 50).
[Emphasis added]
[37]
Applying these principles to the law of general application the Lax Kw'alaams
claimed, Binnie, J. wrote:
[55]
Counsel for the Lax Kw’alaams argues that, even if pre-contact trade had
been limited to eulachon grease (which they deny), the modern right should not
be “frozen” but should be generalized and “evolved” to include all other fish
species and fish products.
[56]
However, such an “evolution” would run counter to the trial judge’s clear
finding that the ancestors of the Lax Kw’alaams fished all species but did not
trade in any significant way in species of fish or fish products other than
eulachon. Extension of a modern right to all species would directly contradict her
view that only the “species-specific” trade in eulachon grease was integral to the
distinctive culture of the pre-contact society. A general commercial fishery would
represent an outcome qualitatively different from the pre-contact activity on which
it would ostensibly be based, and out of all proportion to its original importance to
the pre-contact Tsimshian economy.
500-09-024124-133
PAGE : 14
.…
[59]
The trial judge concluded that transformation of the pre-contact eulachon
grease trade into a modern commercial fishery would not be “evolution” but the
creation of a different right. On that basis, the claim failed both the integrality and
continuity requirements of the Van der Peet test. These findings were supported
by the evidence.
[Emphasis added]
[38]
Apart from the judgment in Lax Kw'alaams, there are other examples in the
jurisprudence that support the proposition that an ancestral practice cannot evolve to
the point of being so radically changed.
[39]
Thus, in its judgment in Van der Peet,30 the Supreme Court rejected the
contentions of the Sto:lo who had argued that their ancestral right to fish for food as a
matter of subsistence conferred on them the modern right to fish for commercial
purposes:
[87]
For similar reasons, the evidence linking the exchange of salmon to the
maintenance of kinship and family relations does not support the appellant's
claim to the existence of an aboriginal right. Exchange of salmon as part of the
interaction of kin and family is not of an independent significance sufficient to
ground a claim for an aboriginal right to the exchange of fish for money or other
goods.
[40]
The Court is of the view that there is a clear parallel between the circumstances
of that case and the nature of the trading (Orenda) the appellants invoke in support of
their contentions in this appeal.
[41]
The same logic prevailed when the judgments in Sappier and Gray31 were
rendered. There, the Supreme Court took the trouble to specify that the rights of the
Maliseet and Mi’kmaq to cut wood on Crown land for domestic purposes could not be
transformed into a commercial right to do so:
30
31
Supra, note 21, para. 87.
R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686, 2006 SCC 54, para. 25.
500-09-024124-133
PAGE : 15
[25]
The word “domestic” qualifies the uses to which the harvested timber can
be put. The right so characterized has no commercial dimension. The harvested
wood cannot be sold, traded or bartered to produce assets or raise money. This
is so even if the object of such trade or barter is to finance the building of a
dwelling. In other words, although the right would permit the harvesting of timber
to be used in the construction of a dwelling, it is not the case that a right holder
can sell the wood in order to raise money to finance the purchase or construction
of a dwelling, or any of its components.
[42]
It is true that s. 35(1) of the Constitution Act, 1982 must be given a large and
liberal interpretation in favour of Aboriginals.32 There must, however, be a reasonable
degree of continuity between the ancestral practice being invoked and the modern right
being asserted. Even if the object of an ancestral right can evolve over time, this does
not mean it can be transformed into a completely different modern right. That, however,
is where the appellants' argument leads us. For this reason, the Court is of the view that
the practice of trading objects to which the spiritual power symbolic of Orenda attached
cannot be the basis of the modern right the appellants claim, that is, the right to trade
freely without hindrance. The trial judge did not err when he wrote this:
[180] Although it is true that rights can and must evolve (we hardly ever hunt
now with bows and arrows) and that those rights are not condemned to remain
traditions that are frozen in time (think of the allegory of the living tree), the Court
cannot make the quantum leap proposed by the Petitioners from the practice of
exchanging spiritual "orenda" artefacts to the practice of the commercial sale of
fuels (regular, super, diesel), i.e. refined synthetic products supplied by
petroleum companies, their suppliers.
[181] Nothing in the evidence allows us to set aside the clear teachings of the
Supreme Court of Canada on the subject.
[182] In short, trading of the type that the Petitioners now engage in is not a
distinctive activity of their Aboriginal ancestors nor is the Petitioners' claim that
their ancestors were actively involved in east/west and north/south trade in any
way supported by the evidence.
[183] The essentially commercial right claimed here by the Petitioners in their
proceedings, that is, "the Petitioners' constitutionally protected Aboriginal right to
free and open trade ... contrary to sections 35 and 52 of the Constitution Act,
1982", is an indefensible extension of the secondary trading activities of a ritual,
32
R. v. Van der Peet, supra, note 21, para. 23.
500-09-024124-133
PAGE : 16
spiritual or diplomatic nature that occurred in pre-contact Iroquois/Mohawk
societies before 1603 or 1614-1615, as the case may be.
[Emphasis added]
[43]
There is no rational connection between the pre-contact trading in which the
appellants' ancestors engaged and their commercial activities. As a result, it is
impossible to conclude that the ancestral right claimed can be grounded in s. 35(1) of
the Constitution Act, 1982.
3.2
The interpretation of the Royal Proclamation of 176333
[44]
The appellants remind the Court of the importance of the Royal Proclamation for
Aboriginals. They consider that it recognized that they enjoyed significant rights and
amounted to a kind of "charter of rights for the Indians".34 In their view, the trial judge
committed two errors. First, he erred in his assessment of the Royal Proclamation’s
normative value by failing to attribute a constitutional status to it. Second, his
interpretation was flawed because he failed to recognize that it conferred the right to
trade freely without hindrance on Aboriginals.
[45]
With respect to the normative value of the Royal Proclamation, the appellants
contend that the judge erred in law when he concluded that it was not an independent
and autonomous source of rights, but merely the recognition of existing rights. Such a
conclusion was contrary to the holdings of the Supreme Court in R. v. Sioui35 and Van
der Peet,36 and was grounded in an erroneous analysis of s. 25 of the Canadian Charter
of Rights and Freedoms:37
25. The guarantee in this Charter of
certain rights and freedoms shall not
33
34
35
36
37
25. Le fait que la présente charte
garantit certains droits et libertés ne
An extract of the Royal Proclamation of 1763 is reproduced in Schedule 1. The underlined passages
correspond to the clause upon which the appellants base their right to trade freely without hindrance.
The appellants refer to the reasons of Lamer, J. in R. v. Sioui, [1990] 1 S.C.R. 1025, 1064.
Ibid.
Supra, note 21.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (U.K.), 1982. c. 11.
500-09-024124-133
be construed so as to abrogate or
derogate from any aboriginal, treaty or
other rights or freedoms that pertain to
the aboriginal peoples of Canada
including
PAGE : 17
porte pas atteinte aux droits ou
libertés -- ancestraux, issus de traités
ou autres -- des peuples autochtones
du Canada, notamment :
(a) any rights or freedoms that
have been recognized by the
Royal Proclamation of October
7, 1763; and
(b) any rights or freedoms that
now exist by way of land claims
agreements or may be so
acquired.
[46]
a) aux droits ou libertés reconnus
par la proclamation royale du 7
octobre 1763;
b) aux droits ou libertés
existants issus d’accords
sur des revendications
territoriales
ou
ceux
susceptibles d’être ainsi
acquis.
Section 25 of the Canadian Charter protects Aboriginal rights from being
contested on the basis of other Charter grounds, but in addition, according to the
appellants, it goes further and gives the rights therein mentioned a constitutional status.
From that perspective, the fact that it does not appear in the schedule to the
Constitution Act, 1982 is not determinative, because it is understood that the
enumeration in s. 52(2) thereof is not exhaustive. They add that certain fundamental
constitutional principles, such as those relating to the rights of Aboriginals and the
honour of the Crown, flow directly from the Royal Proclamation. This would make the
document an integral part of the Canadian constitution.
[47]
Finally, the appellants argue that the clause in question was drafted to benefit
Aboriginals. The Crown recognized their right to trade freely and its intention was to
facilitate the exercise of this right rather than restrain it. The judge's restrictive
interpretation had the effect of negating any benefit in their favour. Such an
interpretation was contrary to the principle according to which recognized Aboriginal
rights should be given a large and liberal interpretation.
[48]
They therefore contend that the duty to collect the GST, QST and fuel tax
amounts to a violation of their constitutional right to trade freely, a right the Royal
Proclamation expressly recognized.
500-09-024124-133
PAGE : 18
3.2.1 The normative value of the Royal Proclamation of October 7, 1763
[49]
The appellants are right to assert that the Royal Proclamation granted them
significant rights. In R. v. Sioui, Lamer, J. said so when he wrote: 38
[…] The purpose of the Proclamation was first and foremost to organize,
geographically and politically, the territory of the new American colonies, namely
Quebec, East Florida, West Florida and Grenada, and to distribute their
possession and use. It also granted certain important rights to the native peoples
and was regarded by many as a kind of charter of rights for the Indians: White
and Bob, supra, at p. 636; Calder v. Attorney General of British Columbia, [1973]
S.C.R. 313, at p. 395 (Hall J., dissenting); R. v. Secretary of State for Foreign
and Commonwealth Affairs, [1982] 2 All E.R. 118 (C.A.), at pp. 124-25 (Lord
Denning). The very wording of the Royal Proclamation clearly shows that its
objective, so far as the Indians were concerned, was to provide a solution to the
problems created by the greed which hitherto some of the English had all too
often demonstrated in buying up Indian land at low prices. The situation was
causing dangerous trouble among the Indians and the Royal Proclamation was
meant to remedy this […].
[Emphasis added]
[50]
Section 25 of the Canadian Charter, however, does not have the scope that the
appellants attribute to it. This rarely invoked provision has been the subject of little
treatment in the jurisprudence. To the extent that courts and authors have considered
its meaning, they all agree that s. 25 does not create new rights. Rather, the provision is
interpretative, and is aimed at preventing contestation of Aboriginal rights based on
other provisions of the Canadian Charter. In his constitutional law text, Peter Hogg
describes the scope of s. 25 as follows:
Section 25 is part of the Charter of Rights, but it does not create any new rights.
It is an interpretative provision, included to make clear that the Charter is not to
be construed as derogating “any aboriginal, treaty or other rights or freedoms
that pertain to the aboriginal peoples of Canada”. In the absence of s. 25, it
would be perhaps have been arguable that rights attaching to groups defined by
race were invalidated by s. 15 (the equality clause) of the Charter.39
38
39
Supra, note 34, 1063 to 1064.
Peter W. Hogg, Constitutional Law of Canada, vol. 1, Toronto, Carswell, 2015, p. 28-64. See also:
Bradford W. Morse, “Aboriginal and Treaty Rights in Canada”, in Errol Mendes & Stéphane Beaulac
(Eds.), Canadian Charter of Rights and Freedoms, 5th ed., Markham, LexisNexis, 2013, p. 1229,
500-09-024124-133
[51]
PAGE : 19
The Royal Proclamation is certainly an important document for Aboriginals. Its
inclusion in s. 25 of the Canadian Charter confirms its importance, but neither the
jurisprudence nor doctrine supports the thesis according to which the right to trade
freely acquired constitutional status as a result of such inclusion.
[52]
For these reasons, the trial judge did not err by holding that the right to trade
freely in the Royal Proclamation does not have constitutional status.
3.2.2 Interpretation of the Royal Proclamation and the right to trade freely40
[53]
The appellants contend that the text itself of the Royal Proclamation recognizes
their right to trade freely without being subjected to any form of regulation. Their
reasoning is as follows: (1) trading between Aboriginals and British subjects is declared
to be free and open; (2) British subjects must, however, be licensed to trade with
Aboriginals; (3) no licensing obligation is imposed on Aboriginals; (4) thus, the British
Crown promised Aboriginals they would not be subject to any form of regulation in
commercial matters.
[54]
The text of the trading clause granted British subjects the right to trade freely and
openly with Aboriginals, subject to their obtaining a license to that end, but it did not
grant Aboriginals an explicit right to trade without being subject to any form of
regulation. The trial judge rejected the a contrario position the appellants urged on him
because it did not flow from the text and because it was inconsistent with the historical
context in which the Royal Proclamation was made.
[55]
It is worth noting that the Royal Proclamation was not a treaty, but a unilateral
declaration of the Imperial Crown. An examination of the historical context shows what
1302 & 1303; Gérald-A. Beaudoin, Les droits et libertés au Canada, in collaboration with Pierre
Thibaut, Montreal, Wilson & Lafleur, 2000, p. 711, citing W. R. Lederman, “Quelques commentaires
sur les répercussions de la Charte canadienne des droits et libertés sur les droits et libertés des
peuples autochtones du Canada”, (1989) 19 Recherches amérindiennes au Québec 25, 26; R. v.
Augustine (1986), 30 C.C.C. (3d) 542 (N.B.C.A.), leave to appeal to the S.C.C. refused, February 2,
1987, 20178; Campbell v. British Columbia, [2000] 4 C.N.L.R. 1 (B.C.S.C.), 2000 BCSC 1123.
500-09-024124-133
PAGE : 20
George III, its author, had in mind when writing: "[…] we do…declare and enjoin that the
Trade with the said Indians shall be free and open to our Subjects whatever, provided
that every Person who may incline to Trade with the said Indians do take out a licence
for carrying on such Trade […]."
[56]
The expert evidence was to the effect that "Trade…shall be free and open" which
the Royal Proclamation mentions must be seen in a very precise context, that of the end
of the war with the French. It must be understood by the need for the British to ally
themselves with the various Aboriginal nations living on the conquered territory. It also
satisfied an ideological objective by bringing an end to the monopolistic approach to fur
trading that prevailed under the French regime, all the while responding to the economic
policy of mercantilism that prevailed in that era.
[57]
In his report and testimony on behalf of the ARQ, Michel Lavoie explained that
after the war, it was natural and indeed desirable that trading activities resume. This
required that fair, equitable and profitable relations be maintained in order to respond to
such concerns and to ensure the security of the colonies, whose relations with the
Iroquois nations were threatened. It was essential to gain their confidence, especially of
those that had been allied with the French. Trading freely was the diametric opposite of
the monopolistic practices of the French, which had no place in the British concept of
commercial relations. Trading freely was a component of a mercantilist economic policy:
the British had markets to develop and protect.
[58]
This expert concluded that the scope of the Royal Proclamation did not extend
beyond what was intended before it was promulgated, that is, to eliminate monopolies
and protect new markets, all the while ensuring that Aboriginals would fall victim to
abuse at the hands of unscrupulous merchants:
There is no doubt that the provisions of the Royal Proclamation did not in any
way exceed the intentions developed before its publication with respect to the
40
Referring to the underlined portions of Schedule 1.
500-09-024124-133
PAGE : 21
elimination of monopolies, the protection and exploitation of new markets, the
temporary protection of hunting grounds, the desire to ensure security within the
colonies, the consolidation of Indians' attachment to the Crown, the central
management of Indian affairs, and finally, the openness, the liberalization of
trade regulation with Indians for the faithful subjects of Her Majesty. In short, the
goal of the Royal Proclamation was not to innovate in matters of trade. It
established rules that would have to be specified, to change and to evolve with
the circumstances.
[…] the provisions of the Royal Proclamation dealing with trade were aimed at
assuring the security of the colonies, supported by trade that was free, open and
profitable to all subjects and equitable for Indian suppliers without their being
abused.
[Translation]
[59]
As the expert Lavoie and the trial judge noted, the mention of free and open
trade was consistent with the recommendations of the Board of Trade, which, in and of
themselves, reflected the policy Governors Murray, Gage and Amherst had put in place
during the military occupation between 1760 and 1763. Experience had shown that
uncontrolled free trade was susceptible to giving rise to the exploitation of Aboriginals. It
was for this reason that trading with them was made subject to regulation, that is, the
necessity of obtaining a licence.
[60]
The expert report and testimony of Alain Beaulieu on behalf of the AGC was to
the same effect.
[61]
The appellants' expert, Gerald Reid, did not testify at length on the meaning of
trading freely set out in the Royal Proclamation. He explained that it contemplated the
security of the colonies and that the regulation to which it referred, licensing, did not
apply directly to Aboriginals.
[62]
On this latter point, Alain Beaulieu nevertheless recalled that even if the
obligation to obtain a licence did not apply directly to Aboriginals, they were required to
submit to other rules the British authorities imposed, such as the obligation to contract in
British forts under military supervision, rules which had the effect of modifying their
trading practices.
500-09-024124-133
[63]
PAGE : 22
The evidence shows that the clause providing for the right to trade freely did not
contemplate giving Aboriginals the right to trade without hindrance. Its objective was to
protect them from the abuses of certain unscrupulous merchants, by obliging the latter
to obtain a licence. Nothing in the text of the Royal Proclamation or its historical context
gives rise to the conclusion that British Crown promised Aboriginals an unrestricted right
to trade that was exempt from regulation of any kind.
[64]
Therefore, the trial judge did not err in his interpretation of the right to trade
clause.
[65]
This ground of appeal based on the Royal Proclamation is accordingly
dismissed.
3.3
The collection of taxes under the Excise Tax Act (s. 225), the Quebec Sales
Tax Act (s. 428) and s. 87 of the Indian Act
[66]
Pursuant to the formula described in ss. 225 of the Excise Tax Act and 428 of the
Quebec Sales Tax Act, at the end of a given reporting period, the merchant must remit
the difference between the taxes (GST and QST) that should have been collected from
customers and those taxes the merchant paid on the purchase of goods in the course of
that merchant's business activities and that are reimbursed as an input tax credit. The
merchant is personally responsible for the payment of the amount of taxes thus
calculated.
[67]
At trial, the appellants pleaded that the obligation to collect taxes and the means
by which they were collected abrogated their right not to be subjected to taxation on a
Reserve. The judge rejected their submission, emphasizing that the law did not impose
any obligation on them as consumers, but rather as merchants selling taxable goods.
As such, they were not taxed but, as mandataries of the State, merely subject to the
obligation to collect and remit taxes collected from their non-Indian clients. Therefore,
the exemption from the payment of taxes contemplated by s. 87 of the Indian Act was
inapplicable.
500-09-024124-133
[68]
PAGE : 23
In appeal, the appellants criticize the judge for having failed to consider that in
the collection of GST and QST, each participant in the chain of production and sale is
susceptible to being held personally responsible for the payment of taxes. As far as they
are concerned, however, the balance at the end of each particular reporting period will
necessarily be positive since they pay neither GST nor QST on goods they acquire in
the course of their commercial activities, with the result that they do not claim any input
tax credit. They are therefore invariably the debtors of the tax authorities, contrary to the
exemption contemplated by s. 87 of the Indian Act.
[69]
The appellants add that the judge erred by relying on a series of judgments
dealing with the collection of taxes on tobacco and fuel when he concluded that, as tax
collectors, they were not personally responsible for the payment of the GST and the
QST. The manner in which these taxes function is totally different since, contrary to the
GST and the QST, they do not involve the concept of "net tax" for which a merchant
becomes personally liable in the event of a positive balance.
[70]
Finally, the appellants claim that the provisions of the Quebec Sales Tax Act that
render them responsible for the reimbursement of a tax payable by others (in this
instance, consumers of taxable goods) are ultra vires the provincial legislature as they
constitute an indirect tax (s. 92(2) of the Constitution Act, 1867).
[71]
Section 87 of the Indian Act provides as follows:
87. (1) Notwithstanding any other Act
of Parliament or any Act of the
legislature of a province, but subject
to section 83 and section 5 of the First
Nations Fiscal Management Act, the
following property is exempt from
taxation:
87. (1) Nonobstant toute autre loi
fédérale ou provinciale, mais sous
réserve de l’article 83 et de l’article 5
de la Loi sur la gestion financière des
premières nations, les biens suivants
sont exemptés de taxation :
(a) the interest of an Indian or a band
in reserve lands or surrendered lands;
and
a) le droit d’un Indien ou d’une bande
sur une réserve ou des terres cédées;
(b) the personal property of an Indian
b) les biens meubles d’un Indien ou
500-09-024124-133
[72]
PAGE : 24
or a band situated on a reserve.
d’une bande situés sur une réserve.
(2) No Indian or band is subject to
taxation in respect of the ownership,
occupation, possession or use of any
property mentioned in paragraph
(1)(a) or (b) or is otherwise subject to
taxation in respect of any such
property.
(2) Nul Indien ou bande n’est assujetti
à une taxation concernant la
propriété, l’occupation, la possession
ou l’usage d’un bien mentionné aux
alinéas (1)a) ou b) ni autrement
soumis à une taxation quant à l’un de
ces biens.
(3) No succession duty, inheritance
tax or estate duty is payable on the
death of any Indian in respect of any
property mentioned in paragraphs
(1)(a) or (b) or the succession thereto
if the property passes to an Indian,
nor shall any such property be taken
into account in determining the duty
payable
under
the
Dominion
Succession Duty Act, chapter 89 of
the Revised Statutes of Canada,
1952, or the tax payable under the
Estate Tax Act, chapter E-9 of the
Revised Statutes of Canada, 1970, on
or in respect of other property passing
to an Indian.
(3) Aucun impôt sur les successions,
taxe d’héritage ou droit de succession
n’est exigible à la mort d’un Indien en
ce qui concerne un bien de cette
nature ou la succession visant un tel
bien, si ce dernier est transmis à un
Indien, et il ne sera tenu compte
d’aucun bien de cette nature en
déterminant le droit payable, en vertu
de la Loi fédérale sur les droits
successoraux, chapitre 89 des Statuts
revisés du Canada de 1952, ou
l’impôt payable, en vertu de la Loi de
l’impôt sur les biens transmis par
décès, chapitre E-9 des Statuts
revisés du Canada de 1970, sur
d’autres biens transmis à un Indien ou
à l’égard de ces autres biens.
When beginning to consider submissions based on ss. 87, 89 and 90 of the
Indian Act, it must be remembered that these provisions should not be interpreted overbroadly, as they were conceived not to give Indians a general economic advantage, but
rather to preserve their rights on the lands they occupied and to ensure that
governments' taxation powers or those of their creditors to seize property would not
impair the use of their property on the Reserves.41
[73]
41
The appellants' position flies in the face of the opinions the Supreme Court of
Williams v. Canada, [1992] 1 S.C.R. 877, 885-887. In such matters a purposive approach must
prevail, Bastien Estate v. Canada, [2011] 2 S.C.R. 710, 2011 SCC 38, para. 21.
500-09-024124-133
PAGE : 25
Canada has expressed in references relating to the goods and services tax42 and the
Quebec sales tax.43 The GST and the QST are direct taxes destined to be paid by the
ultimate purchaser of a taxable product. The vendor of such a product is the State's
mandatary for the collection and remittance of such taxes. In all instances, it is the
purchaser who pays the tax, not the vendor.44
[74]
The costs associated with the performance of this function as a State mandatary
is not itself a tax and it leads to no dispossession of the merchant's property. The latter
pays no tax personally because that which the merchant paid at an earlier stage in the
product's sequence of sales is recovered by means of the input tax credit.
[75]
The concept of "net tax" on which the appellants rely does not render the
merchant personally liable to pay the tax. It is simply an accounting technique that
determines the amount of the tax to be paid by the merchant to the government (in the
event of a "positive amount") or reimbursed to the merchant (in the event of a "negative
amount"). This accounting technique is an integral feature of the way in which the law
provides the GST and the QST are collected.
[76]
In the event of a "positive amount", the merchant remits to the State the money
the merchant holds as a mandatary. The merchant is not personally responsible for the
payment of taxes, but only for the remittance of those taxes the ultimate consumers
have paid.
[77]
The fact that the appellants do not claim any input tax credit since they pay
neither GST nor QST on products delivered on the Reserve adds nothing to their
submission. They do not have to take the benefit of the input tax credit because, unlike
other merchants, they are already exempt from the burden of paying taxes. The balance
of their "net tax" will invariably be positive when they sell taxable products to non-Indian
42
43
44
Reference re: Goods and Services Tax, [1992] 2 S.C.R. 445.
Reference re: Quebec Sales Tax, [1994] 2 S.C.R. 715.
Ibid., 720.
500-09-024124-133
PAGE : 26
customers. They are required thereafter to remit the taxes they were obliged to collect
to the tax authorities, that is, money that does not belong to them for which they are
mere depositaries.
[78]
The fact that the appellants choose not to collect GST and QST (despite their
obligation to do so) does not transform the tax assessments to which they have become
subject into a tax on their personal property.45 The taxes appearing on the notices of
assessment remain taxes payable by the ultimate consumer at the end of the chain of
the product's commercialisation. When the appellants act in this manner, they cannot
claim the tax exemption contemplated in s. 87 of the Indian Act and thus, by ricochet,
protect their customers who are not Indians from the application of the GST and the
QST.46
[79]
The trial judge correctly rejected the appellants' arguments relating to the GST
and the QST collection mechanism and the application of the tax exemption found in
s. 87 of the Indian Act.
3.4
The collection of the fuel tax and ss. 87 and 89 of the Indian Act
[80]
A fuel tax has been part of the Quebec fiscal landscape since 1924. As described
earlier, since July 1, 2011 the Quebec Ministry of Finance and the ARQ have put
measures in place with a view to exempting Indians and Band Councils (including tribal
councils and entities mandated by a Band) from having to pay this tax when purchasing
fuel on the Reserve (the Program for Administering the Fuel Tax Exemption for Indians).
[81]
These measures impose certain obligations on retailers: (1) to keep a register of
retail sales to Indians and Band Councils; (2) to verify the customer's identification by
means of the certificate of Indian status and the enrolment of the customer in the
45
46
Re Hill and Minister of Revenue & al., [1985] O.J. No. 2540 (QL) (Ont. H. Ct. J.)
Obonsawin v. Canada, [2010] 3 C.N.L.R. 143 (T.C.C.), 2010 TCC 222, aff’d in [2011] 3 C.N.L.R. 298
(F.C.A.), 2011 FCA 152, leave to appeal to the S.C.C. refused, February 9, 2012, 34341; See also,
500-09-024124-133
PAGE : 27
program; and finally, (3) to produce, on a monthly basis, a statement of their purchases
and sales to claim the reimbursement of the "amount equal to the fuel tax" paid to their
suppliers with respect to fuel sold to Indians or Band Councils.
[82]
A last measure to reduce the burden that would otherwise lie on them allows
retailers to purchase a percentage of their fuel without having to remit the "amount
equal to the fuel tax" to their supplier. The percentage reduction corresponds to the
amount of fuel that is expected to be sold to Indians or Band Councils. To take
advantage of this measure, the retailer must choose a designated supplier and satisfy
certain formalities.
[83]
This program is optional, both for consumers and retailers. None of the
appellants participate in the program, with the effect that Indians cannot benefit from the
exemption of payment of taxes sold at the pump.
[84]
The trial judge held that the fuel tax (like the GST and the QST) is a consumption
tax that is designed to be paid by the ultimate consumer at the last step in the chain of
production and commercialisation, and never by the retailer. The fact that the "amount
equal to the fuel tax" is paid and reimbursed at each step in the chain does not change
the fact that the tax is ultimately paid by no one other than the consumer.
[85]
In appeal, the appellants contend that the pre-payment of the tax on fuel they
purchase, which constitutes personal property situated on the Reserve, and which they
are unable to collect from their Indian customers (being exempt pursuant to the
Program for Administering the Fuel Tax Exemption for Indians) poses a problem to the
extent that, by reason of this fact, they become personally liable to pay the tax, thus
contravening s. 87 of the Indian Act. They contend that the only way to avoid payment
of the tax would be to do business exclusively with non-Indians despite having chosen
Pictou v. Canada, [2000] A.C.I. No. 321 (T.C.C.), aff’d [2003] C.F. 737 (F.C.A.), 2003 FCA 9, leave to
appeal to the S.C.C. refused, June 26, 2003, 29654.
500-09-024124-133
PAGE : 28
to benefit from the protection of the system which the Reserve provides47 and to carry
on business within its territorial limits.
[86]
Finally, they plead that the fuel tax they pre-pay that they cannot recover
constitutes a charge or levy ("une charge ou une réquisition") on their personal property
that infringes s. 89(1) of the Indian Act.
[87]
Section 89 of the Indian Act provides as follows:
89. (1) Subject to this Act, the real and
personal property of an Indian or a
band situated on a reserve is not
subject to charge, pledge, mortgage,
attachment, levy, seizure, distress or
execution in favour or at the instance
of any person other than an Indian or
a band.
Exception
(1.1) Notwithstanding subsection (1),
a leasehold interest in designated
lands is subject to charge, pledge,
mortgage, attachment, levy, seizure,
distress and execution.
Conditional sales
(2) A person who sells to a band or a
member of a band a chattel under an
agreement whereby the right of
property or right of possession thereto
remains wholly or in part in the seller
may exercise his rights under the
agreement notwithstanding that the
chattel is situated on a reserve.
47
Williams v. Canada, supra, note 41, p. 887.
89. (1) Sous réserve des autres
dispositions de la présente loi, les
biens d’un Indien ou d’une bande
situés sur une réserve ne peuvent pas
faire l’objet d’un privilège, d’un
nantissement, d’une hypothèque,
d’une opposition, d’une réquisition,
d’une saisie ou d’une exécution en
faveur ou à la demande d’une
personne autre qu’un Indien ou une
bande.
Dérogation
(1.1) Par dérogation au paragraphe
(1), les droits découlant d’un bail sur
une terre désignée peuvent faire
l’objet
d’un
privilège,
d’un
nantissement, d’une hypothèque,
d’une opposition, d’une réquisition,
d’une saisie ou d’une exécution.
Ventes conditionnelles
(2) Une personne, qui vend à une
bande ou à un membre d’une bande
un bien meuble en vertu d’une
entente selon laquelle le droit de
propriété ou le droit de possession
demeure acquis en tout ou en partie
500-09-024124-133
PAGE : 29
au vendeur, peut exercer ses droits
aux termes de l’entente, même si le
bien meuble est situé sur une réserve.
[88]
Contrary to what they imply, the appellants can obtain a reimbursement from the
ARQ of the "amount equal to the fuel tax" paid to their supplier with respect to the fuel
sold at retail to Indians or Band Councils under the fuel tax exemption pursuant to the
Program for Administering the Fuel Tax Exemption.48
[89]
In the event of the inapplicability or omission to participate in the exemption
program, an Indian customer must pay the tax to the retailer and then claim its
reimbursement pursuant to s. 10.2 of the Fuel Tax Act, as was the case prior to July 1,
2011.
[90]
In either case, the retailer is not personally responsible for any tax: either the
retailer is reimbursed if the exemption program applies, or the retailer, as a mandatary,
collects the tax from the customer and remits it to the tax authorities.
[91]
Neither the pre-payment mechanism nor the retailer's percentage collection
option transforms the "amount equal to the fuel tax" into an indirect tax. At each stage in
the chain of transactions, the sale price of fuel includes an "amount equivalent to the
tax", even if the obligation to pay the fuel tax only takes effect when the sale is made to
a consumer, that is, at the final stage of the transactions. The courts have recognized
48
Fuel Tax Act, supra, note 7, s. 10.2.1; Affidavit and testimony of André J. Santerre; Affidavit and
testimony of Nathalie Pronovost; Exhibit AS-35, Québec, Agence du Revenu, pages
informationnelles : mécanisme de gestion de l’exception fiscale des Indiens en matière de taxe sur
les carburants, 2011, Factum of the Respondents ARQ and the Attorney General of Quebec, vol. 3-4,
p. 1048; Exhibit AS-36, Québec, Agence du Revenu, Guide du vendeur au détail IN-258, 2011,
Factum of the Respondents ARQ and the Attorney General of Quebec, vol. 3-4, p. 1051 & 1056.
500-09-024124-133
PAGE : 30
the validity of such a mechanism not only with respect to the fuel tax49 but also with
respect to the tobacco tax50 (the operation of which is similar). Section 87 of the Indian
Act is therefore inapplicable to the circumstances of a retailer, just as it is inapplicable to
the GST and the QST.
[92]
With respect to the appellants' submission based on s. 89(1) of the Indian Act, it
proceeds on the premise that the pre-payment of an "amount equal to the fuel tax"
cannot be recovered, thus constituting a charge or levy on their personal property. As
we have seen, this premise is erroneous.
[93]
In summary, the trial judge did not err in rejecting the appellants' submission
relating to the pre-payment of an "amount equal to the fuel tax" and the provisions of ss.
87 and 89(1) of the Indian Act.
3.5
The constitutionality of the 2011 budget measures
[94]
The appellants lean heavily on Parliament’s exclusive jurisdiction over Indians
(s. 91(24) of the Constitution Act, 1867) to challenge the constitutional validity of
measures enacted to manage the fuel tax exemption extended to Indians. They argue
that these provincial “budget measures” apply only to Indians, in a manner that
concerns only Indians. The measures thus fall squarely within the federal competency
49
50
See, among others: Chehalis Indian Band v. B.C. (Director, Motor Fuel Tax Act), [1989] 1 C.N.L.R. 62
(B.C.C.A.); Tseshaht Indian Band v. British Columbia, [1992] 4 C.N.L.R. 171 (B.C.C.A.); Laforme v.
Ontario (Minister of Finance), [1999] 1 C.N.L.R. 84 (Ont. Ct. J.); R. v. Merasty, [1997] 3 C.N.L.R. 241
(Sask. Prov. Ct.).
See, among others: Re: Hill and Minister of Revenue & al., supra, note 45; Gros-Louis v. Bouchard,
[1995] R.D.F.Q. 153 (C.S.); Québec (Sous-ministre du Revenu) v. Vincent, [1996] R.J.Q. 2369 (C.A.);
R. v. Johnson, [1997] 2 C.N.L.R. 103 (N.S.C.A.); Québec (Sous-ministre du Revenu) v. Bujold, [2001]
J.Q. No. 6346 (C.Q.) (QL); Conway v. Québec (Sous-ministre du Revenu), J.E. 2009-1964 (C.Q.),
2009 QCCQ 9854; R. v. Joe, [2008] 4 C.T.C. 176 (B.C.S.C.), 2008 BCSC 315; R. v. Fontaine, [1998]
4 C.N.L.R. 194 (Man. Prov. Ct.).
500-09-024124-133
PAGE : 31
over Indians and, according to the appellants, cannot be characterized as incidental to
the provincial taxation power (s. 92(2) of the Constitution Act, 1867).
[95]
These arguments do not withstand scrutiny.
[96]
The criteria for analysing constitutional validity under the division of powers
provisions of our federative constitution are well-known. Chief Justice McLachlin
describes the first step as follows:
[20] The first step is to characterize the main thrust, or “pith and substance”, of
by-law No. 260: Swain, at p. 998. As LeBel J. explained in Kitkatla, at para. 53,
there are two aspects to the characterization of the pith and substance of a law:
(1) the purpose of the legislation and (2) its effect. The purpose of a law may be
determined by examining intrinsic evidence, like purposive clauses and the
general structure of the act. It may also be determined with reference to extrinsic
evidence, such as Hansard or other accounts of the legislative process: Kitkatla,
at para. 53. The effect of a law is found in both the legal effect of the text and the
practical consequences that flow from the application of the statute: R. v.
Morgentaler, [1993] 3 S.C.R. 463, at pp. 482-83.51
[97]
Having characterized the provision at issue, courts must then ask whether it falls
within the head of power invoked in support of the jurisdiction of the legislating body.52
The analysis does not approach the two levels of government as “water-tight
compartments”, but rather permits each to enact laws affecting matters outside of its
jurisdiction, so long as this impact remains incidental to valid overarching objectives.53
[98]
In the present instance, the Regulation respecting the application of the Fuel Tax
Act54 requires retail fuel dealers to display two fuel prices: one including taxes and
51
52
53
54
Quebec (Attorney General) v. Lacombe, [2010] 2 S.C.R. 453, 2010 SCC 38, para. 20.
Ibid., para. 24.
Peter Hogg, Constitutional Law of Canada, supra, note 39, p. 15-9.
Regulation respecting the application of the Fuel Tax Act, supra, note 17.
500-09-024124-133
PAGE : 32
another excluding taxes.55 The Regulation also requires retailers to verify, at the time of
a sale, the identity of a purchaser claiming to be an Indian, a band, a tribal council or a
band-empowered entity as well as the validity of the purchaser’s certificate as a status
Indian.56
[99]
Section 91(24) of the Constitution Act, 1867 grants Parliament exclusive
legislative power over what the Supreme Court has called “a core of Indianness”. Chief
Justice Lamer described this core as follows:
The core of Indianness encompasses the whole range of aboriginal rights that
are protected by s. 35(1). Those rights include rights in relation to land; that part
of the core derives from s. 91(24)’s reference to “Lands reserved for the Indians”.
But those rights also encompass practices, customs and traditions which are not
tied to land as well; that part of the core can be traced to federal jurisdiction over
“Indians”. Provincial governments are prevented from legislating in relation to
both types of aboriginal rights.57
[Emphasis added]
[100] The Supreme Court has taken a restrictive view of the “basic, minimum and
unassailable content” which constitutes this federal power.58 Notwithstanding s. 91(24),
provincial laws of general application apply proprio vigore to Indians and Indian lands.59
Thus, s. 91(24) does not render reserves “enclaves of federal power in a sea of
provincial jurisdiction” and “[t]he mere mention of the word “aboriginal” in a statutory
provision does not render it ultra vires the province.” 60
55
56
57
58
59
60
Ibid., s. 17.4R1.
Ibid., ss. 12.1R1 & 17.3R1.
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 178.
Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, 2007 SCC 22, para. 60 & 61.
Delgamuukw v. British Columbia, supra, note 57, para. 179.
Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R.
146, 2002 SCC 31, para. 66; Cardinal v. Alberta (Attorney General), [1974] S.C.R. 695, 702.
500-09-024124-133
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[101] There is nothing amiss with the trial judge’s determination that, in pith and
substance, the budget measures are provisions of a general tax nature. While the
provisions clearly affect Indians, they are legislation concerning a valid provincial
matter.
[102] Thus, while the appellants are correct that the provisions at issue apply only on a
Reserve, they incorrectly assert that those provisions constitute legislation in relation to
Indians. The Court agrees with the trial judge that the appellants are impacted by the
budget measures not because they are Indians, but because they are retailers who sell
fuel to Indian and non-Indian consumers. In this respect, the appellants are no different
than non-Indian merchants who sell and deliver goods to Indians living on reserve. 61
[103] The effect of the provisions is not to single out Indians for payment of a special
tax. On the contrary, these measures are aimed at ensuring that the right to purchase
fuel tax-exempt is protected but not abused.62 The constitutional validity of similar
measures has been confirmed in British Columbia,63 Ontario,64 and Nova Scotia.65 As
such, there is simply no room for the appellants to invoke the doctrines of constitutional
interpretation and the provisions are validly enacted.66
61
62
63
64
65
66
Quebec (Deputy Minister of Revenue) c. Bujold, supra, note 50, para. 29 & 30.
Laforme v. Canada (Minister of Finance), supra, note 49, para. 16, R. v. Johnson, supra, note 50, p.
148 & 149.
Tseshat Indian Band v. British Columbia, supra, note 49.
Laforme v. Canada (Minister of Finance), supra, note 49.
R. v. Johnson, supra, note 50.
Having confirmed that the provisions are validly enacted, there is no need to analyse their integration
into the broader fuel tax legislation (See: General Motors of Canada Ltd. v. City National Leasing,
[1989] 1 S.C.R. 641, 666 & 667). Any arguments with respect to federal paramountcy are likewise
moot given there is no conflict between these measures and a valid federal purpose (See: Quebec
(Attorney General) v. Canadian Owners and Pilots Association, [2010] 2 S.C.R. 536, 2010 SCC 39,
para. 64; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, 191). Indeed, the budget
measures are aimed at respecting the exemption while ensuring it is not abused. (See similar:
500-09-024124-133
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3.6 Did the trial judge err in finding that the budget measures are not unduly
onerous and do not infringe upon any Aboriginal right?
[104] First, there is no reason to invoke the doctrine of interjurisdictional immunity, as
the appellants seem to suggest when they argue that the budget measures “trench on
the core of Indianness”. Not only was this characterization rightly rejected by the trial
judge, but even had he recognized an Aboriginal right, the doctrine would be
inapplicable here.
[105] Here is why.
[106] The
Supreme
Court
has
been
unequivocal
regarding
the
place
of
interjurisdictional immunity in analysing infringement of Aboriginal rights:
What role then is left for the application of the doctrine of interjurisdictional
immunity and the idea that Aboriginal rights are at the core of the federal power
over “Indians” under s. 91(24) of the Constitution Act, 1867? The answer is
none.67
[Emphasis added]
[107] Rather, the appropriate test for analyzing the infringement of an Aboriginal right
is outlined in R v. Sparrow.68 This test holds that provincial laws of general application
should apply unless they are unreasonable or, without justification, impose hardship or
deny the rights holders their preferred means of exercising their rights.69 There is no
need to apply that test here because the appellants have failed to prove either an
67
68
69
Laforme v. Canada (Minister of Finance), supra, note 49; R. v. Johnson, supra, note 50, p. 148 &
149).
Tsilhqot’in Nation v. British Columbia, [2014] 2 S.C.R. 257, 2014 SCC 44, para. 140.
R. v. Sparrow, [1990] 1 S.C.R. 1075.
Tsilhqot’in Nation v. British Columbia, supra, note 67, para. 151.
500-09-024124-133
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Aboriginal right or an unjustified hardship. The lack of evidence with respect to the latter
is striking.
[108] At the hearing of the appeal, counsel for the appellants emphasized the negative
economic consequences the appellants will suffer if required to respect the budget
measures. In short, they will lose a competitive advantage. While perhaps unfortunate
for the individuals concerned, the Supreme Court has long been clear on this matter.
The purpose of the exemptions provided for at s. 87 of the Indian Act is not to “confer a
general economic advantage”70 or “to remedy the economically disadvantaged position
of Indians by ensuring that Indians may acquire, hold, and deal with property in the
commercial mainstream on different terms than their fellow citizens.”71
[109] More importantly, though the appellants characterize the procedures required by
the budget measures as both burdensome and as a requirement to “police trade”, they
fail to convince that the budget measures impose any hardship. Among others, the
procedures they contest include:
•
•
•
•
•
•
Confirming the identity and Indian status of the purchaser;
Verifying the validity of the customer’s Indian status documentation;
Recording the customer’s registry number;
Recording the quantity of fuel purchased;
Transmitting the information above to the Revenue Quebec; and
Conserving the information for future inspection and audit.
[110] However, the appellants fail to take into account the fact that since 2012,
Revenue Quebec has been offering to implement – at its own cost – a digital records
70
71
Williams v. Canada, supra, note 41, 885 & 886.
Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, 131; Bastien Estate v. Canada, supra, note 41,
para. 21; McDiarmid Lumber Ltd. v. God's Lake First Nation, [2006] 2 S.C.R. 846, 2006 SCC 58,
para. 27.
500-09-024124-133
PAGE : 36
system which eliminates much of the required documentation and expedites the
reimbursement process for the retailer. In light of this evidence, the appellants’
argument that the reporting requirements constitute a “shifting of the burden for the
management of the non-Indian tax system” loses its force.
[111] Moreover, at trial one of the appellants explained that some of the measures are
already being voluntarily implemented. For example, a station belonging to appellant
Scott Stacey features what he calls a “Native Pump”. Thanks to a computerized system,
this pump automatically provides lower fuel prices to Indians. When asked by the Court
how the station managed to identify Indian customers, Mr. Stacey replied, “Well, like I
said, we know everybody and if we don’t know everybody, we ask them for their card.”
[112] Based on the evidence before him, it is difficult to disagree with the trial judge’s
finding of fact that the appellants can manage the proposed system without excessive
hardship. Indeed, the appellants’ failure to acknowledge or avail themselves of workable
solutions does not render the budget measures unconstitutional. It simply underscores
that their refusal to participate more likely flows from a desire to preserve a competitive
advantage than an inability to shoulder an excessive administrative burden. Unfortunate
though this may be for the appellants, intervention in such matters is not the role of the
courts.
[113] The trial judge did not err in finding that the budget measures are not unduly
onerous and do not infringe upon any Aboriginal right.
3.7 The appellants' standing
500-09-024124-133
PAGE : 37
[114] During oral argument at trial, counsel for the Attorney General of Canada
pleaded, in effect, that the appellants lacked standing since the rights they were
invoking were not individual rights, but rather collective ancestral rights that belonged to
the Aboriginal community at large. In this respect, a distinction was made with criminal
proceedings, in which an accused status Indian could properly assert an Aboriginal right
as a ground of defence.72
[115] The appellants are all status Indians under the Indian Act who operated or
continue to operate refuelling stations on the Kahnawake Reserve. The record shows
that they purchase gasoline from wholesalers who deliver it to them on the Reserve.
They do not pay GST/QST on such purchases, although they do pay an amount equal
to the fuel tax. When they sell gasoline to customers, they do not collect GST/QST from
any of them, whether or not they are status Indians, nor do they generally remit any
such tax to the ARQ. The majority of their customers are not status Indians, who, unlike
the latter, do not enjoy any exemption from the payment of these taxes.
[116] It is not disputed that the appellants' declaratory proceedings are a direct
response to tax enforcement measures undertaken by the Quebec Ministry of Revenue
dating back to 1994.
[117] At trial, Pearl-Ann Diome, a witness with knowledge of the political structure on
the Reserve, testified during the rebuttal phase that the Kahnawake Band Council did
not want to get involved with their proceedings, that it "refused to cooperate at all with
72
The Attorney General of Quebec did not take up this argument on standing, although her counsel did
address it in answer to a question from the trial judge while dealing with the issue of the duty to
consult.
500-09-024124-133
PAGE : 38
this particular trial", that it "wanted nothing to do with us or what we're doing", and that
"they have distanced themselves for some reason".
[118] In the context of discussing the appellants' contention that the federal
government had failed in its duty to consult grounded in the honour of the Crown,73 the
trial judge wrote this:
[405] […] The testimony and arguments show that the Petitioners reproach the
governments for not having consulted them as Aboriginal merchants when
adopting the Bachand budget and the legislation implementing it. In that regard,
these merchants do not represent either the Kahnawake Band Council or, more
generally, the members of their community, and nothing indicates that they were
duly mandated to argue the invalidity of the legislative and administrative
provisions based on the absence of valid consultation.
[406] In its recent ruling in Behn, the Supreme Court of Canada stressed the
following:
The duty to consult exists to protect the collective rights of Aboriginal
peoples. For this reason, it is owed to the Aboriginal group that holds
the s. 35 rights, which are collective in nature: But an Aboriginal
group can authorize an individual or an organization to represent it for
the purpose of asserting its s. 35 rights.74
[407] In the case at bar, although the Petitioners are all Aboriginal merchants,
their grievances, as we have seen, have nothing to do with their ancestral rights,
treaty rights or collective rights as Aboriginal peoples. These merchants do not
represent their community and nothing in their proceedings indicates that they
received a mandate from the members of their group to represent them
concerning the supposed violation of their Aboriginal rights. In fact, Ms. Dome's
testimony at the hearing showed the contrary. The Petitioners were not
mandated by the Kahnawake Band Council, nor did the Council intervene in their
case to support them in their pleadings, although, in the latter days of the trial,
the Council sent an attorney to the courtroom as an "observer". Even if there had
been an obligation to consult, which there was not, it would have been with the
community in general, not with a few merchants in particular.
73
74
R. v. Badger, [1996] 1 S.C.R. 771, 794; Haida Nation v. British Columbia (Minister of Forests), [2004]
3 S.C.R. 511, 2004 SCC 73, para. 16-18.
Emphasis added by the trial judge.
500-09-024124-133
PAGE : 39
[119] In this Court, the Attorney General of Canada reiterated the same position in its
factum, but did not argue the point at the hearing. The Attorney General of Quebec
made no submissions on this issue, whether in writing or orally.
[120] With respect, the Court is of the view that the appellants did have the necessary
standing to claim the declaratory relief they asserted in their proceedings. The starting
point for any discussion of standing begins with article 55 of the Code of Civil Procedure
that was in force when these proceedings were undertaken in 1994:
55. Whoever brings an action at law,
whether for the enforcement of a right
which is not recognized or is
jeopardized or denied, or otherwise to
obtain a pronouncement upon the
existence of a legal situation, must
have a sufficient interest therein.75
55. Celui qui forme une demande en
justice, soit pour obtenir la sanction
d'un droit méconnu, menacé ou dénié,
soit pour faire autrement prononcer
sur
l'existence
d'une
situation
juridique, doit y avoir un intérêt
suffisant.
[121] If anything, an analogy exists with respect to the right of an accused to invoke
collective rights as a ground of defence to a criminal charge. These appellants are or
have been called upon to apply the impugned provisions, not the other status Indians
who live on the Reserve and for whom the Band Council speaks. The appellants are
also the ones who may become subject to the financial consequences of noncompliance with those provisions, a factor that makes the analogy with criminal
proceedings all the more apt.
75
The first paragraph of article 85 of the Code of Civil Procedure that came into force on January 1,
2016 restates this provision in much the same terms, adding a second paragraph which codifies the
principles arising from the jurisprudence governing public interest litigation.
500-09-024124-133
PAGE : 40
[122] Moreover, the very text of article 55 C.C.P. contemplates the right of someone to
bring an action "for the enforcement of a right which is not recognized or is denied",
which is precisely the case of the appellants. They do not claim an individual right, but
the existence of a collective right that applies only to them in the particular
circumstances of this case.
[123] To decide a question of standing in this respect, it is somewhat of a circular
argument to contend that seeking a determination of whether the right they claim exists
in their favour can be negated on a preliminary basis by denying the existence of the
right itself. To do so is to confuse the right to have the merits determined one way or the
other with whether the right being claimed exists.
[124] Manifestly, the appellants are not officious bystanders injecting themselves into a
matter that is of no concern to them. They are not total strangers to the relief being
claimed in their proceedings. On the contrary, they would derive an identifiable benefit
in the event of a favourable outcome.
[125] Independently of the foregoing, in the Supreme Court of Canada's recent
unanimous judgment in Behn,76 on which the trial judge relied, LeBel, J. specifically
acknowledged that collective rights may have individual aspects to them. Here is what
he said:
[33]
The Crown argues that claims in relation to treaty rights must be brought
by, or on behalf of, the Aboriginal community. This general proposition is too
narrow. It is true that Aboriginal and treaty rights are collective in nature: see R.
v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1112; Delgamuukw, at para. 115; R. v.
Sundown, [1999] 1 S.C.R. 393, at para. 36; R. v. Marshall, [1999] 3 S.C.R. 533,
76
Behn v. Moulton Contracting Ltd., [2013] 2 S.C.R. 227, 2013 SCC 26.
500-09-024124-133
PAGE : 41
at paras. 17 and 37; R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686, at para.
31; Beckman, at para. 35. However, certain rights, despite being held by the
Aboriginal community, are nonetheless exercised by individual members or
assigned to them. These rights may therefore have both collective and individual
aspects. Individual members of a community may have a vested interest in the
protection of these rights. It may well be that, in appropriate circumstances,
individual members can assert certain Aboriginal or treaty rights, as some of the
interveners have proposed.
[34]
Some interesting suggestions have been made in respect of the
classification of Aboriginal and treaty rights. For example, the interveners Grand
Council of the Crees and Cree Regional Authority propose in their factum, at
para. 14, that a distinction be made between three types of Aboriginal and treaty
rights: (a) rights that are exclusively collective; (b) rights that are mixed; and (c)
rights that are predominantly individual. These interveners also attempt to
classify a variety of rights on the basis of these three categories.
[35]
These suggestions bear witness to the diversity of Aboriginal and treaty
rights. But I would not, on the occasion of this appeal and at this stage of the
development of the law, try to develop broad categories for these rights and to
slot each right in the appropriate one. It will suffice to acknowledge that, despite
the critical importance of the collective aspect of Aboriginal and treaty rights,
rights may sometimes be assigned to or exercised by individual members of
Aboriginal communities, and entitlements may sometimes be created in their
favour. In a broad sense, it could be said that these rights might belong to them
or that they have an individual aspect regardless of their collective nature.
Nothing more need be said at this time.
[Emphasis added]
[126] So it is with the appellants – the rights they assert "have an individual aspect
regardless of their collective nature". Such aspects give them the necessary interest to
enjoy standing. Indeed, as gasoline retailers they come from amongst the principal
traders on the Reserve. Accordingly, they have a greater interest, juridical or otherwise,
than other members of the community or the community as a whole. The Court
therefore concludes that the appellants had the necessary standing to initiate their
declaratory proceedings in order to determine whether the Aboriginal rights they
asserted applied to them in the particular circumstances they alleged.
500-09-024124-133
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FOR THESE REASONS, THE COURT:
[127] DISMISSES the appeal, with costs.
NICOLE DUVAL HESLER, C.J.Q.
JACQUES CHAMBERLAND, J.A.
FRANCE THIBAULT, J.A.
ALLAN R. HILTON, J.A.
JEAN BOUCHARD, J.A.
Mtre Angela Markakis
Mtre Timothé R. Huot
Spiegel Sohmer inc.
For the appellants
Mtre Nancy Bonsaint
Mtre Stéphanie Dépeault
Ministère de la Justice Canada
For the Attorney General of Canada
Mtre Marc Lesage
Mtre Nicolas Ammerlaan
Larivière Meunier
For l'Agence du Revenu du Québec and the Attorney General of Quebec
Date of hearing : November 9 and 10, 2015
500-09-024124-133
PAGE : 43
SCHEDULE 1
Original version
[…]
And whereas it is just and reasonable, and essential to our Interest, and
the Security of our Colonies, that the several Nations or Tribes of Indians with
whom We are connected, and who live under our Protection, should not be
molested or disturbed in the Possession of such Parts of Our Dominions and
Territories as, not having been ceded to or purchased by Us, are reserved to
them, or any of them, as their Hunting Grounds. -- We do therefore, with the
Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no
Governor or Commander in Chief in any of our Colonies of Quebec, East Florida,
or West Florida, do presume, upon any Pretence whatever, to grant Warrants of
Survey, or pass any Patents for Lands beyond the Bounds of their respective
Governments, as described in their Commissions; as also that no Governor or
Commander in Chief in any of our other Colonies or Plantations in America do
presume for the present, and until our further Pleasure be known, to grant
Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources
of any of the Rivers which fall into the Atlantic Ocean from the West and North
West, or upon any Lands whatever, which, not having been ceded to or
purchased by Us as aforesaid, are reserved to the said Indians, or any of them.
And We do further declare it to be Our Royal Will and Pleasure, for the
present as aforesaid, to reserve under our Sovereignty, Protection, and
Dominion, for the use of the said Indians, all the Lands and Territories not
included within the Limits of Our said Three new Governments, or within the
Limits of the Territory granted to the Hudson's Bay Company, as also all the
Lands and Territories lying to the Westward of the Sources of the Rivers which
fall into the Sea from the West and North West as aforesaid.
And We do hereby strictly forbid, on Pain of our Displeasure, all our loving
Subjects from making any Purchases or Settlements whatever, or taking
Possession of any of the Lands above reserved, without our especial leave and
Licence for that Purpose first obtained.
And, We do further strictly enjoin and require all Persons whatever who
have either wilfully or inadvertently seated themselves upon any Lands within the
Countries above described, or upon any other Lands which, not having been
ceded to or purchased by Us, are still reserved to the said Indians as aforesaid,
forthwith to remove themselves from such Settlements.
And whereas great Frauds and Abuses have been committed in
purchasing Lands of the Indians, to the great Prejudice of our Interests, and to
500-09-024124-133
PAGE : 44
the great Dissatisfaction of the said Indians; In order, therefore, to prevent such
Irregularities for the future, and to the end that the Indians may be convinced of
our Justice and determined Resolution to remove all reasonable Cause of
Discontent, We do, with the Advice of our Privy Council strictly enjoin and
require, that no private Person do presume to make any purchase from the said
Indians of any Lands reserved to the said Indians, within those parts of our
Colonies where, We have thought proper to allow Settlement; but that, if at any
Time any of the Said Indians should be inclined to dispose of the said Lands, the
same shall be Purchased only for Us, in our Name, at some public Meeting or
Assembly of the said Indians, to be held for that Purpose by the Governor or
Commander in Chief of our Colony respectively within which they shall lie; and in
case they shall lie within the limits of any Proprietary Government, they shall be
purchased only for the Use and in the name of such Proprietaries, conformable
to such Directions and Instructions as We or they shall think proper to give for
that Purpose; And we do, by the Advice of our Privy Council, declare and enjoin,
that the Trade with the said Indians shall be free and open to all our Subjects
whatever, provided that every Person who may incline to Trade with the said
Indians do take out a Licence for carrying on such Trade from the Governor or
Commander in Chief of any of our Colonies respectively where such Person shall
reside, and also give Security to observe such Regulations as We shall at any
Time think fit, by ourselves or by our Commissaries to be appointed for this
Purpose, to direct and appoint for the Benefit of the said Trade:
And we do hereby authorize, enjoin, and require the Governors and
Commanders in Chief of all our Colonies respectively, as well those under Our
immediate Government as those under the Government and Direction of
Proprietaries, to grant such Licences without Fee or Reward, taking especial
Care to insert therein a Condition, that such Licence shall be void, and the
Security forfeited in case the Person to whom the same is granted shall refuse or
neglect to observe such Regulations as We shall think proper to prescribe as
aforesaid.
And we do further expressly enjoin and require all Officers whatever, as
well Military as those Employed in the Management and Direction of Indian
Affairs, within the Territories reserved as aforesaid for the use of the said Indians,
to seize and apprehend all Persons whatever, who standing charged with
Treason, Misprisions of Treason, Murders, or other Felonies or Misdemeanors,
shall fly from Justice and take Refuge in the said Territory, and to send them
under a proper guard to the Colony where the Crime was committed of which
they stand accused, in order to take their Trial for the same.
[…]
500-09-024124-133
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French language version
[…]
Attendu qu'il est juste, raisonnable et essentiel pour Notre intérêt et la
sécurité de Nos colonies de prendre des mesures pour assurer aux nations ou
tribus sauvages qui sont en relations avec Nous et qui vivent sous Notre
protection, la possession entière et paisible des parties de Nos possessions et
territoires qui ont été ni concédées ni achetées et ont été réservées pour ces
tribus ou quelques-unes d'entre elles comme territoires de chasse, Nous
déclarons par conséquent de l'avis de Notre Conseil privé, que c'est Notre
volonté et Notre plaisir et nous enjoignons à tout gouverneur et à tout
commandant en chef de Nos colonies de Québec, de la Floride Orientale et de la
Floride Occidentale, de n'accorder sous aucun prétexte des permis d'arpentage
ni aucun titre de propriété sur les terres situées au-delà des limites de leur
gouvernement respectif, conformément à la délimitation contenue dans leur
commission. Nous enjoignons pour la même raison à tout gouverneur et à tout
commandant en chef de toutes Nos autres colonies ou de Nos autres plantations
en Amérique, de n'accorder présentement et jusqu'à ce que Nous ayons fait
connaître Nos intentions futures, aucun permis d'arpentage ni aucun titre de
propriété sur les terres situées au-delà de la tête ou source de toutes les rivières
qui vont de l'ouest et du nord-ouest se jeter dans l'océan Atlantique ni sur celles
qui ont été ni cédées ni achetées par Nous, tel que susmentionné, et ont été
réservées pour les tribus sauvages susdites ou quelques-unes d'entre elles.
Nous déclarons de plus que c'est Notre plaisir royal ainsi que Notre
volonté de réserver pour le présent, sous Notre souveraineté, Notre protection et
Notre autorité, pour l'usage desdits sauvages, toutes les terres et tous les
territoires non compris dans les limites de Nos trois gouvernements ni dans les
limites du territoire concèdé à la Compagnie de la baie d'Hudson, ainsi que
toutes les terres et tous les territoires situés à l'ouest des sources des rivières qui
de l'ouest et du nord-ouest vont se jeter dans la mer.
Nous défendons aussi strictement par la présente à tous Nos sujets, sous
peine de s'attirer Notre déplaisir, d'acheter ou posséder aucune terre ci-dessus
réservée, ou d'y former aucun établissement, sans avoir au préalable obtenu
Notre permission spéciale et une licence à ce sujet.
Et Nous enjoignons et ordonnons strictement à tous ceux qui en
connaissance de cause ou par inadvertance, se sont établis sur des terres
situées dans les limites des contrées décrites ci-dessus ou sur toute autre terre
qui n'ayant pas été cédée ou achetée par Nous se trouve également réservée
pour lesdits sauvages, de quitter immédiatement leurs établissements.
Attendu qu'il s'est commis des fraudes et des abus dans les achats de
terres des sauvages au préjudice de Nos intérêts et au grand mécontentement
de ces derniers, et afin d'empêcher qu'il ne se commette de telles irrégularités à
l'avenir et de convaincre les sauvages de Notre esprit de justice et de Notre
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résolution bien arrêtée de faire disparaître tout sujet de mécontentement, Nous
déclarons de l'avis de Notre Conseil privé, qu'il est strictement défendu à qui que
ce soit d'acheter des sauvages, des terres qui leur sont réservées dans les
parties de Nos colonies, ou Nous avons cru à propos de permettre des
établissements; cependant si quelques-uns des sauvages, un jour ou l'autre,
devenaient enclins à se départir desdites terres, elles ne pourront être achetées
que pour Nous, en Notre nom, à une réunion publique ou à une assemblée des
sauvages qui devra être convoquée a cette fin par le gouverneur ou le
commandant en chef de la colonie, dans laquelle elles se trouvent situées; en
outre, si ces terres sont situées dans les limites de territoires administrés par
leurs propriétaires, elles ne seront alors achetées que pour l'usage et au nom
des propriétaires, conformément aux directions et aux instructions que Nous
croirons ou qu'ils croiront à propos de donner à ce sujet; de plus Nous déclarons
et signifions de l'avis de Notre Conseil privé que Nous accordons à tous Nos
sujets le privilège de commerce ouvert et libre, à condition que tous ceux qui
auront l'intention de commercer avec lesdits sauvages se munissent de licence à
cette fin, du gouverneur ou du commandant en chef de celle de Nos colonies
dans laquelle ils résident, et qu'ils fournissent des garanties d'observer les
règlements que Nous croirons en tout temps, à propos d'imposer Nous mêmes
ou par l'intermédiaire de Nos commissaires nommés à cette fin, en vue d'assurer
le progrès dudit commerce.
Nous autorisons par la présente les gouverneurs et les commandants en
chef de toutes Nos colonies respectivement, aussi bien ceux qui relèvent de
Notre autorité immédiate que ceux qui relèvent de l'autorité et de la direction des
propriétaires, d'accorder ces licences gratuitement sans omettre d'y insérer une
condition par laquelle toute licence sera déclarée nulle et la protection qu'elle
conférera enlevée, si le porteur refuse ou néglige d'observer les règlements que
Nous croirons à propos de prescrire. Et de plus Nous ordonnons et enjoignons à
tous les officiers militaires et à ceux chargés de l'administration et de la direction
des affaires des sauvages, dans les limites des territoires réservés à l'usage
desdits sauvages, de saisir et d'arrêter tous ceux sur qui pèsera une accusation
de trahison, de non-révélation d'attentat, de meurtre, de félonie ou de délits de
tout genre et qui, pour échapper aux atteintes de la justice, auront cherché un
refuge dans lesdits territoires, et de les renvoyer sous bonne escorte dans la
colonie ou le crime dont ils seront accusés aura été commis et pour lequel ils
devront subir leur procès.
[…]