Supreme Court of Canada
Newfoundland and Labrador Corporation Ltd. et al. v. Attorney
General of Newfoundland, [1982] 2 S.C.R. 260
Date: 1982-08-09
Newfoundland and Labrador Corporation Limited (Intervener
opposing the legislation in the Court of Appeal)
and
Javelin
International Limited (Intervener opposing the legislation in the Court of
Appeal) Appellants;
and
The Attorney
General of Newfoundland (Supporting the legislation in the
Court of Appeal) Respondent;
and
The Attorney
General for Alberta, the Attorney General of Nova Scotia and the Attorney General for New Brunswick Interveners.
File No.: 16275.
1981: October 31; 1982: August 9.
Present: Laskin C.J. and Martland, Ritchie,
Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
NEWFOUNDLAND
Constitutional law—Taxation—Direct or
indirect taxation—Taxes on income from mining and from mining rights—Whether or
not taxes levied intra vires the province—Constitutional Act, 1867, ss. 91(2),
92(2)—The Mining and Mineral Rights Tax Act, 1975, 1975 (Nfld.), c. 68,
ss. 2, 5, 7, 9, 10, 12—The Undeveloped Mineral Areas Act, R.S.N. 1970, c.
383, s.8.
The Newfoundland Mining and Mineral Rights Tax Act, 1975, provided for two
separate and distinct kinds of taxation. One, the “Mining Tax”, was stated to
be a percentage of the taxable income derived by the operator or the contractor
from mining operations within the province. The other, the “Mineral Rights
Tax”, was levied (a) against every operator and every contractor in accordance
with a specific formula, and (b) against every person who received any money by
way of rental, royalty or other payment for the grant to another of the right
to engage in mining operations in accordance with another specified formula.
The issues before this Court were whether or not the Act was ultra vires the
New-
[Page 261]
foundland Legislature, in whole or in part,
and if intra vires, whether or not it applied to the appellants herein.
Held: The
appeal should be dismissed.
The annual tax imposed by s. 5 on
taxable income derived from mining operations within the province was an income
tax, and constituted direct taxation. That the tax was levied on a particular
component of the taxpayer’s income did not alter that characterisation. The
section 9 tax was a direct tax and formed part of a general taxation
scheme. The taxation of government payments for the development of undeveloped
land, pursuant to s. 10(1)(b), too, was a direct tax incapable of being
passed on to anyone else. Section 10(1)(a) provided for a direct tax on
royalties or receipts from the granting of a right to engage in mining
operations despite the discretionary nature and restricted scope of the
deductions allowed under it. This tax applied to appellants notwithstanding the
fact that the royalties accrued in consequence of some event outside Newfoundland and despite the place of
payment. Section 12(a) of The Mining and Mineral Rights Tax Act provided
that the s. 10(1)(a) tax applied notwithstanding previous agreements or
statutes. That a taxpayer would seek to pass this tax on to someone else did
not make it an indirect tax. The section 10(1)(a) tax did not trespass
upon the federal power over trade and commerce.
Canadian Industrial Gas & Oil Ltd. v.
Government of Saskatchewan, [1978] 2 S.C.R. 545,
followed; R. v. Caledonian Collieries, Ltd., [1928] A.C. 358,
distinguished; Forbes v. Attorney-General of Manitoba, [1937] A.C. 260; Attorney-General
for British Columbia v. Esquimalt and Nanaimo Railway Company, [1950] A.C.
87; Minister of Finance of New Brunswick v. Simpsons-Sears Ltd., [1982]
1 S.C.R. 144; Alworth v. Minister of Finance, [1978] 1 S.C.R. 447; Carnation
Co. Ltd. v. Quebec Agricultural Marketing Board, [1968] S.C.R. 238,
referred to.
APPEAL from a judgment of the Newfoundland Court of Appeal
reference (1980), 115 D.L.R. (3d) 482, 28 Nfld. & P.E.I.R. 361, 79 A.P.R.
361, holding The Mining and Mineral Rights Tax Act intra vires the
province. Appeal dismissed.
Stephen Scott and Charles Flam, for the
appellants.
[Page 262]
James J. Greene, Q.C., and Joseph S.
Hutchings, for the respondent.
James G. Spurr, for the intervener the
Attorney General of Nova Scotia.
Alan D. Reid and Richard Speight, for the
intervener the Attorney General for New Brunswick.
Brian C. Crane, Q.C., for the intervener
the Attorney General for Alberta.
The judgment of the Court was delivered by
MARTLAND J.—The issue in this appeal is as to
the constitutional validity of The Mining and Mineral Rights Tax Act, 1975, 1975
(Nfld.), c. 68, enacted by the Legislature of Newfoundland, hereinafter
referred to as “the Act”. This issue was referred to the Court of Appeal of the
Supreme Court of Newfoundland by an Order in Council dated April 22, 1980,
pursuant to s. 6 of The Judicature Act, R.S.N. 1970, c. 187, as
amended. The question was argued before the Court of Appeal. The appellants Newfoundland and Labrador Corporation
Limited (“Nalco”) and Javelin International Limited (“Javelin”) formerly
Canadian Javelin Limited as interveners were represented by counsel before the
Court of Appeal. Nalco is a corporation incorporated by statute in Newfoundland. Javelin was incorporated
under the laws of Canada and
registered to do business in Newfoundland. Its head office, at the time the leases hereinafter mentioned were
made, was in St. John’s, Newfoundland. At the time the present proceedings were commenced, its head
office was in Montreal, Quebec.
The Court of Appeal decided, unanimously, that
the legislation in issue was, in whole, intra vires of the Legislature
of Newfoundland to enact. The appellants appealed to this Court. The Chief
Justice stated the constitutional question as follows:
Is The Mining and Mineral Rights Tax
Act, 1975, the Act No. 68 of 1975, ultra vires the Legislature of
Newfoundland either in whole or in part, and, if so, in what particular or
particulars and to what extent? Does the Act, if it is intra vires, apply
to the Appellants in the present case?
[Page 263]
The Attorneys General of Quebec, New Brunswick, Nova Scotia, Alberta and Saskatchewan
intervened but the Attorneys General of Quebec and Saskatchewan later withdrew their interventions. The others all supported the
validity of the legislation. The Attorney General of Canada did not intervene.
The Act makes general provision for two separate
and distinct kinds of taxation. One tax, which is dealt with in Part II under
the heading “Mining Tax”, is stated to be a percentage of the taxable income
derived by the operator or the contractor from mining operations within the
province, determined in accordance with a formula set out in the Act. The other
tax, which is dealt with in Part III under the heading “Mineral Rights Tax”, is
levied (a) against every operator and every contractor in accordance with a
specified formula, and (b) against every person who receives any money by way
of rental, royalty or other payment for the grant to the operator, contractor
or other person of the right to engage in mining operations in accordance with
another specified formula.
The following provisions of the Act are relevant
to the issues in this appeal:
2. In this
Act
…
(c) “contractor” means any person who
contracts with another person having a right to carry out mining operations to
deliver minerals to that other person for a valuable consideration from lands
on or in which such rights exist;
…
(e) “gross income” means the total income
derived by an operator or a contractor from the sale of minerals consequent
upon mining operations in a fiscal year and, if such minerals are processed
prior to the sale, includes the income from processing;
…
(g) “mining operations” means the
extraction or production within the province of minerals up to and including
primary crushing, and includes the
[Page 264]
transportation, handling, storing,
distribution and sale of such minerals, but does not include processing;
…
(i) “net income” means the gross income
less those amounts permitted to be deducted from the gross income by Section 6;
(j) “operator” means a person who
(i) has the right to extract minerals, and
(ii) carries out mining operations on or
under lands within the province;
…
(m) “processing” means processing minerals
within the province, and includes concentrating, milling, pelletizing,
smelting, refining and fabricating of minerals;
…
(p) “taxable income” means the net income less
those payments permitted to be deducted from the net income by Section 7;…
…
PART
II
Mining
Tax
5.—(1)
Subject to subsection (2), and Section 8, every operator and every
contractor is liable for and shall pay to the Minister in the manner and at the
time or times set out in this Act an annual tax of fifteen per centum (15%) of
the taxable income derived by the operator or the contractor from mining
operations within every mine within the province during each fiscal year.
(2) The Lieutenant-Governor in Council may
by order declare with respect to any taxpayer that the tax payable by the
operator or contractor under subsection (1) shall be based on the taxable
income derived by the operator or contractor from mining operations within
individual mines or groups of mines as may be prescribed in the order.
(3) For the purposes of
subsection (2), “mine” means a work or undertaking in which mining
operations are conducted, and includes a quarry.
6.—(1)
Subject to subsection (2) of this section, the net income of a taxpayer
shall be ascertained by deducting from the gross income of the taxpayer
(a) all expenses and outlays reasonably
incurred in mining operations and in processing minerals
[Page 265]
extracted from land pursuant to those
mining operations;
(b) such amount as may be prescribed for
depreciation of the cost, exclusive of interest charges of any kinds of
vehicles, machinery, plant, equipment, buildings and other assets of a capital
nature used in mining operations, and processing minerals extracted from land
pursuant to those mining operations, and for the purposes of this paragraph the
regulations may prescribe different rates and methods of depreciation for
different kinds of capital assets, but where the vehicles, machinery, plant,
equipment and buildings or any part thereof have been disposed of in a fiscal
year, the proceeds from the disposal shall be applied to reduce the cost or
value of any additions thereto in that year, and where those proceeds exceed
the cost of the additions the excess shall be applied to reduce the balance
remaining to be depreciated of those assets required in previous fiscal years,
and where no such balance remains to be depreciated the excess shall be applied
to reduce deductions otherwise allowable under this subsection;
(c) such amount, if any, exclusive of
interest charges of any kind, as the Minister in his absolute discretion allows
for exploration and preproduction development expenditures exclusively and
necessarily incurred for the proper conduct of those mining operations from
which the gross income is generated, but the aggregate of the deductions made
under this paragraph shall not exceed the total expenditures;
(d) all moneys paid to Her Majesty during
the fiscal year by way of
(i) taxation imposed specifically upon the
area or acreage of the land in which mining operations are being conducted
within the province, whether or not the Act imposing the taxation is passed
before or after the coming into operation of this Act, and
(ii) rentals, royalties, charges and other
payments for the right to engage in the mining operations which generates all
or part of the gross income, but not any payment by way of taxation, except as
permitted by subparagraph (i) of this paragraph (d);
[Page 266]
(e) such reserves for doubtful debts as the
Minister in his absolute discretion permits for the mining operations during
the fiscal year;
(f) an amount by way of return on capital
directly and necessarily employed by the taxpayer in processing minerals
extracted from land pursuant to mining operations equal to eight per centum
(8%) of the original cost, exclusive of interest charges, of the depreciable
assets, including machinery, equipment, plant, buildings, works and
improvements used by the taxpayer in the processing of such minerals, but the
amount to be deducted under this paragraph shall not be in excess of sixty-five
per centum (65%) of the portion remaining after deducting from the gross income
the amounts specified in paragraphs (a) to (e) inclusive.
(2) No deduction shall be made from the
gross income under subsection (1) in respect of
(a) disbursements not wholly, exclusively
and necessarily expended for the purpose of generating the gross income;
(b) expenditures for the provision or
replacement of plant, machinery or equipment or any other item of a capital
nature;
(c) any amount transferred or credited to a
reserve contingent account or sinking fund, other than for permitted doubtful
debts referred to in subsection (1);
(d) rentals, royalties and other payments
paid by the taxpayer to any person, other than Her Majesty, under any Act,
agreement, grant, lease or licence for the right to engage in mining
operations;
(e) disbursements made for the purpose of
maintenance of property not applied in the generation of the gross income
during the fiscal year;
(f) any payment made for goods or services
provided by a parent, subsidiary, affiliated or associated company in excess of
the actual costs of those goods or services.
7. For the
purposes of Section 5, the taxable income derived from mining operations by an
operator and by a contractor is the net income less either
[Page 267]
(a) all moneys paid during the fiscal year,
by way of rental, royalty or other payment to any person, other than to Her
Majesty, for the grant of the right to engage in mining operations; or
(b) twenty per centum (20%) of the net
income, whichever is the greater.
…
PART
III
Mineral
Rights Tax
(a) Tax Payable By Operators and
Contractors
9.—(1)
Subject to subsection (2), every operator and every contractor is liable
for and shall pay to the Minister in the manner and at the time or times set
out in this Act an annual tax of twenty per centum (20%) of the amount, if any,
by which twenty per centum (20%) of the net income of the operator or
contractor exceeds the aggregate of all moneys paid by the operator or
contractor during the fiscal year by way of rental, royalty or other payment to
any person, other than Her Majesty, for the grant of the right to engage in
mining operations.
…
(b) Tax Payable By Recipients Of Rentals,
Royalties and Like Payments
10.—(1)
Every person who receives from
(a) an operator, contractor or any other
person during a fiscal year any money by way of rental, royalty or other
payment for the grant to the operator, contractor or other person of the right
to engage in mining operations; or
(b) the Minister of Mines and Energy during
a fiscal year any money by way of payment to that person, as owner of an
undeveloped mineral area, pursuant to Section 8 of The Undeveloped Mineral
Areas Act,
is liable for and shall pay to the Minister
in the manner and at the time set out in this Act an annual tax of twenty per
centum (20%) of the net revenue received in consideration of the grant of the
right during that fiscal year.
(2) For the purposes of subsection (1),
“net revenue” means the total sum received from the operator, contractor,
person or the Minister of Mines and Energy during the fiscal year less
[Page 268]
(a) all administrative, accounting, legal
and other expenses which in the opinion of the Minister are necessarily
incurred by the taxpayer in the collection of the money from the operator or
contractor;
(b) such amount, as the Lieutenant-Governor
in Council may allow for any costs and outlays incurred by the taxpayer within
the area of land in or upon which the taxpayer has the right to engage in
mining operations or such other areas of land as may be prescribed; and
(c) all moneys paid during the fiscal year,
by way of rental, royalty or other payment to any person, other than to Her
Majesty, for the grant of the right to engage in mining operations.
…
12. Nothing
in any Act of the province, or in any grant, deed, licence, contract, agreement
or other document (whether or not such grant, deed, licence, contract,
agreement or other document has received ratification by the Legislature),
passed, given, made or entered into prior to the coming into operation of this
Act, shall be construed so as
(a) to defeat the liability of a taxpayer
to pay the tax required to be paid by Section 10 of this Part; or
(b) to enable any person who is liable for
and required to pay a tax under Section 10 of this Act, to require the
operator, contractor or any other person from whom such person receives any
money by way of rental, royalty or other payment for the grant of the right to
engage in mining operations,
(i) to pay such tax in its stead or place,
or
(ii) to indemnify and save harmless such
person against any such tax; or
(c) to impose any liability on the part of
Her Majesty for loss or damage sustained,
and where any of the provisions contained
in such Act, grant, deed, licence, contract, agreement or other document is in
conflict with any of the provisions of this Act, the latter shall prevail.
The status of the appellants to challenge the
validity of the Act was as recipients of rentals, royalties or other payments
for grants to operators, contractors or other persons of the right to engage in
mining operations. They were affected only by
[Page 269]
the tax imposed by s. 10(1)(a) of the Act.
Their submissions to this Court related primarily to that subsection. They
contended that the tax imposed by the subsection was not a direct tax and
so could not be imposed by the Legislature of Newfoundland since s. 92(2)
of the Constitution Act, 1867 , limited provincial legislative powers in
the field of taxation to “Direct Taxation within the Province in order to the
raising of a Revenue for Provincial Purposes”.
The reference to the Newfoundland Court of
Appeal raised only the question of the constitutional validity of the Act. The
constitutional question in this Court included that question but also went on
to put a further question: “Does the Act, if it is intra vires, apply to
the Appellants in the present case?” With reference to this issue the
appellants in their factum make the following submission, in paragraph 32:
32. The circumstances as to which
Appellants dispute the constitutional applicability of s. 10(1)(a) of the
Act, and of its associated provisions, are these, in general terms.
The Appellants dispute the constitutional
application of these provisions to a payee who, outside Newfoundland,
receives a payment of royalties in virtue of an agreement made outside
Newfoundland and enforceable, at least as regards that payment, outside
Newfoundland, the sum being payable only upon the occurrence of an event
outside Newfoundland; and the payee not being engaged in any mining operations
giving rise to the payment.
Paragraph 33 of the factum contains a statement
of a number of facts. Paragraph 34 contains the statement that the appellants
do not assert that the facts set out in paragraphs 32 and 33 can be established
from the record on the appeal, but request the Court to determine the legal
effects which would flow from establishing those facts.
The appellants further contend that they are
exempted from the tax imposed by s. 10(1)(a) because of tax exemption
provisions granted to Nalco and Javelin by agreements made with them by the
Crown in right of Newfoundland which were approved by statute.
[Page 270]
I will deal first with the question of the
constitutional validity of the Act. The answer to this question depends upon
whether or not the tax which it imposes is direct or indirect.
In Canadian Industrial Gas & Oil Ltd. v.
Government of Saskatchewan, [1978] 2 S.C.R. 545, Mr. Justice Dickson,
who wrote the minority decision, reviewed a number of the leading authorities
dealing with the test to be applied in determining that issue, which review was
accepted in the reasons of the majority. At page 581 he pointed out that the
established guide is the classical formulation of John Stuart Mill (Principles
of Political Economy, Book V, c. 3):
Taxes are either direct or indirect. A
direct tax is one which is demanded from the very person who it is intended or
desired should pay it. Indirect taxes are those which are demanded from one
person in the expectation and intention that he shall indemnify himself at the
expense of another; such are the excise or customs.
The producer or importer of a commodity is
called upon to pay a tax on it not with the intention to levy a peculiar
contribution upon him, but to tax through him the consumers of the commodity,
from whom it is supposed that he will recover the amount by means of an advance
in price.
Mill’s well-known writings appeared not long
before the drafting of the British North America Act, 1867, and were
presumed by the Privy Council to be familiar to the Fathers of Confederation.
At page 582 he said:
Mill’s test became firmly established in Bank
of Toronto v. Lambe [(1887), 12 App. Cas. 575]. In that case Lord
Hobhouse said that while it was proper and, indeed, necessary to have regard to
the opinion of economists, the question is a legal one, viz. what the
words mean as used in the statute. The problem is primarily one of the law rather
than of refined economic analysis. The dividing line between a direct and an
indirect tax is referable to and ascertainable by the “general tendencies of
the tax and the common understanding of men as to those tendencies”: Lambe’s
case.
The general tendency of a tax is the
relevant criterion. This must be distinguished from the ultimate incidence of
the tax in the circumstances of the particular case:
[Page 271]
City of Halifax v. Fairbanks Estate [[1928] A.C. 117]; Attorney-General for British Columbia v.
Kingcome Navigation Co. Ltd. [[1934] A.C. 45].
In City of Charlottetown v. Foundation
Maritime Co. [[1932] S.C.R. 589], Rinfret J. pointed out that Mill’s canon
is founded on the theory of the ultimate incidence of the tax, not the ultimate
incidence depending on the special circumstances of individual cases.
The nature of the tax is a question of
substance and does not turn on the language used by the Legislature: The
King v. Caledonian Collieries Ltd. [[1928] A.C. 358].
At pages 583-84 he went on to say:
Clearly, direct and indirect taxation are
terms of historical reference, and although there is no reason to believe that
the B.N.A. Act is not a document of evolving meaning, not limited to its
original inspiration, jurisprudence, in so far as concerns particular forms of
taxation like income or property taxes, has captured the historical spirit of
“direct” and “indirect” taxation and preserved it. The effect of this was
explained by Lord Cave in City of Halifax v. Fairbanks Estate [[1928]
A.C. 117], at p. 125:
What then is the effect to be given to
Mill’s formula above quoted? No doubt it is valuable as providing a logical
basis for the distinction already established between direct and indirect
taxes, and perhaps also as a guide for determining as to any new or unfamiliar
tax which may be imposed in which of the two categories it is to be placed; but
it cannot have the effect of disturbing the established classification of the
old and well known species of taxation, and making it necessary to apply a new
test to every particular member of those species. The imposition of taxes on
property and income, of death duties and of municipal and local rates is,
according to the common understanding of the term, direct taxation, just as the
exaction of a customs or excise duty on commodities or of a percentage duty on
services would ordinarily be regarded as indirect taxation; and although new
forms of taxation may from time to time be added to one category or the other
in accordance with Mill’s formula, it would be wrong to use that formula as a
ground for transferring a tax universally recognized as belonging to one class
to a different class of taxation.
Historically well-understood categories of
taxation have a known jurisprudential fate. Thus, a customs levy cannot be made
by the Legislature whereas a property
[Page 272]
tax or income tax falls unquestionably
within their competence.
I will turn first to the tax imposed by
s. 5 of the Act. It requires every operator and contractor to pay an
annual tax of 15 per cent of taxable income derived by the operator or the
contractor from mining operations within every mine within the province.
Taxable income means net income less payments permitted to be deducted by
s. 7. Net income is gross income less amounts to be deducted under
s. 6. Section 6 lists a number of permitted deductions from gross income
and includes, inter alia, “all expenses and outlays reasonably incurred
in mining operations and in processing minerals extracted from land pursuant to
those mining operations”, reserves for doubtful debts and a return on capital
employed in processing minerals.
In my opinion, this is an income tax and
constitutes direct taxation. The fact that the tax is upon a particular
component of the taxpayer’s income does not alter the situation. In Forbes
v. Attorney-General of Manitoba, [1937] A.C. 260, at p. 269, Lord
MacMillan, delivering the opinion of the Judicial Committee of the Privy
Council, said:
A tax is not the less a tax on income
because it is imposed on a particular component of the taxpayers’ income. It
may be convenient to tax one part of the taxpayers’ income in one way, another
part in another way.
The next matter to be considered is the tax
imposed under s. 9. This section provides for an annual tax upon
operators and contractors of 20 per cent of the amount, if any, by which 20 per
cent of net income exceeds the aggregate of all moneys paid by way of rental,
royalty or other payment to any person other than Her Majesty for the grant of
the right to engage in mining operations. It should be noted that under
s. 7 in computing taxable income, for the purposes of the s. 5 tax,
the taxpayer can deduct from net income all moneys paid by way of rental,
royalty or other payment to any person, other than Her Majesty for the right to
engage in mining operations, or 20
[Page 273]
per cent of net income, whichever is the
greater. The position is, therefore, that if a taxpayer has to pay more than 20
per cent of net income for the grant of the rights to mine, that amount may be deducted
from net income in computing taxable income, in respect of tax under s. 5,
and he would not be liable to pay tax under s. 9. If, however, the payment
for the right to mine is less than 20 per cent of net income, he may, in
computing taxable income for the purposes of s. 5, deduct 20 per cent from
net income, but he must pay tax under s. 9 at the rate of 20 per cent on
the difference between 20 per cent of net income and the amount actually paid
by way of royalty, etc., for the right to mine.
In substance, the tax which may become payable
by an operator or contractor under s. 9 in the circumstances above
mentioned is related to the concession made in s. 7 as to the computation
of taxable income for the purposes of s. 5 and forms a part of the general
scheme for the taxation of income derived from mining operations. In my
opinion, it is a direct tax imposed upon the very person who it is intended
should pay it.
The next matter for consideration is the
constitutional validity of s. 10 which is the provision which affects the
appellants. This section provides in para. (a) of subs. (1) that every
person who receives during a fiscal year from an operator or contractor or
other person a rental, royalty or other payment for the grant to the operator,
contractor of other person of the right to engage in mining operations should
pay an amount of 20 per cent of the net revenue received in consideration for
the grant during the fiscal year.
Paragraph (b) of subs. (1) imposes a like tax
upon any person receiving, as owner of an undeveloped area, a payment from the
Minister of Mines and Energy pursuant to s. 8 of The Undeveloped
Mineral Areas Act, R.S.N. 1970, c. 383. This Act enabled the Lieutenant
Governor in Council to declare certain areas as undeveloped
[Page 274]
mineral areas, as defined in the Act. The
Minister could then make agreements for their development and provide from
payments by the operator for the rights granted to him. Section 8 provides for
payments by the Minister to the owner of the land of a portion of the moneys
received from the operator. These are statutory payments by the Crown.
Paragraph (b) of subs. (1) provides for a tax on the net revenue received. This
is an income tax and there is no way in which the recipient of the funds could
pass on the tax to anyone else. In my opinion this is a direct tax.
I will revert now to para. (a). This
involves a tax on net revenue received for granting a right to mine.
Subsection (2) defines net revenue as the total sum received less certain
permitted deductions:
(a) a deduction is permitted in respect of
expenses necessarily incurred in the collection of the money from the operator
or contractor. It is the opinion of the Minister which determines the necessity
of the expenditure.
(b) Such amounts as the Lieutenant Governor
in Council may allow for costs and outlays incurred by the taxpayer within the
area of land in which the taxpayer has the right to engage in mining
operations.
(c) All moneys paid during the fiscal year
by way of rental, royalty or other payment to any person, other than Her
Majesty, for the right to engage in mining operations.
The tax imposed by para. (a) is in respect
of the receipt by an owner of payments made by a producer of minerals for the
right to engage in mining operations on the owner’s land. It is not a tax upon
production. It is a tax on moneys received for the granting of a right to mine.
The fact that the payment may, in the case of a royalty, be measured
in-relation to the minerals produced does not make the tax a production tax.
The appellants’ submission is that the
para. (a) tax is not a tax upon income, but it is a tax upon gross
revenue, and that the general economic tend-
[Page 275]
ency would be for the taxpayer to pass the tax
on to some other person, thus making the tax indirect.
The basis for the contention that the tax is not
truly an income tax is that the deductions from total sums received, which are
permitted by s. 10(2), in order to arrive at net revenue, are too limited
in scope and are dependent on ministerial discretion. Reference is made to the
difference between the deductions permissible under s. 6 in computing
taxable income for the purposes of the tax imposed by s. 5 and those
permitted under s. 10(2) for the purpose of computing net revenue for the
purposes of the tax imposed by s. 10(1)(a).
This comparison overlooks the difference between
the tax imposed by s. 5 and that imposed by s. 10(1)(a). The former
is a tax on taxable income derived from mining operations. The income of the
taxpayer is derived from the production of minerals and this involves the kind
of outlays which are provided for in s. 6. The tax imposed by
s. 10(1)(a) is upon a person who has the right to engage in mining
operations, but who instead of engaging in mining operations himself, by
contract grants the right to conduct such operations to someone else in return
for payments to be made by the producer. The deductions from revenue, to arrive
at net revenue, permitted by s. 10(2) are appropriate to that situation.
In my opinion the tax imposed by
s. 10(1)(a) is an income tax and not a tax on gross revenue.
The appellants assume that a tax on gross
revenue would necessarily be an indirect tax and rely upon the judgment of the
Privy Council in R. v. Caledonian Collieries, Ltd., [1928] A.C. 358.
That case involved a tax imposed by an Alberta statute upon every mine owner of
a percentage of the gross revenue of his mine during each preceding month. The
tax was held to be an indirect tax.
This conclusion was not reached upon the basis
that, as a tax on gross revenue, it must be presumed to be indirect. The reason
for the decision is
[Page 276]
stated in the following passage from the
judgment at p. 362:
What then is the general tendency of the
tax now in question?
First it is necessary to ascertain the real
nature of the tax. It is not disputed that, though the tax is called a tax on
“gross revenue,” such gross revenue is in reality the aggregate of sums
received from sales of coal, and is indistinguishable from a tax upon every sum
received from the sale of coal.
The respondents are producers of coal, a
commodity the subject of commercial transactions. Their Lordships can have no
doubt that the general tendency of a tax upon the sums received from the sale
of the commodity which they produce and in which they deal is that they would
seek to recover it in the price charged to a purchaser. Under particular
circumstances the recovery of the tax may, it is true, be economically
undesirable or practically impossible, but the general tendency of the tax
remains.
The situation in that case is not analogous to
that of persons required to pay tax under s. 10(1)(a). The persons
required to pay the tax are not producers of minerals, the subject of
commercial transactions. They cannot seek to recover the tax in the price
charged to purchasers of the minerals produced. They could not seek to recover
the tax imposed upon them from the operators or contractors without an
agreement on the part of the persons to whom the rights to mine were granted,
to increase the payments stipulated in the grant. Even if such an agreement
were possible, it would be in breach of s. 12(b) of the Act.
I agree with the comments of Chief Justice
Mifflin speaking for the Court of Appeal in this case. After referring to a
passage from the reasons of the Privy Council in the Caledonian Collieries case,
he said:
A tax on gross revenue is actually a tax on
the total sales which can be very easily tacked onto the price and passed along
to the consumer. The tax imposed by Section 10 is not a gross revenue tax, nor
is it a commodity tax. It is a tax on net revenues or income from rentals,
royalties and like payment arrived at by deducting from the total sum received
certain amounts
[Page 277]
for specified expenses allowed by the Act.
The fact that the amounts of administrative and other expenses allowed under
Subsection (a) of Section 10 of the Act are in the discretion of the
Minister does not make the tax a gross revenue tax. The nature of the
deductions are spelled out; there can be no doubt that amounts are deductible
and what the Minister may do is to quantify these amounts. The same remark is
applicable to the deductions allowed under Subsection (2)(b) of Section 10
where the amount is left to the discretion of the Lieutenant-Governor in Council.
This Court ought not to ascribe to the Minister or Lieutenant-Governor in
Council motives that would amount to an improper exercise of these
discretionary powers, which would result in no deductions being permitted, thus
imposing a tax on gross rentals, royalties and like payments.
With respect to the submission of the appellants
that the economic tendency would be for the taxpayer to seek to pass the tax on
to someone else, the answer is that this is not sufficient, in itself, to make
the tax an indirect tax.
In Attorney-General for British Columbia v.
Esquimalt and Nanaimo Railway Company, [1950] A.C. 87, Lord Greene, who
delivered the reasons of the Privy Council, said, at p. 119:
It is probably true of many forms of tax
which are indisputably direct that the assessee will desire, if he can, to pass
the burden of the tax on to the shoulders of another. But this is only an
economic tendency. The assessee’s efforts may be conscious or unconscious,
successful or unsuccessful; they may be defeated in whole or in part by other
economic forces. This type of tendency appears to their Lordships to be
something fundamentally different from the “passing on” which is regarded as
the hallmark of an indirect tax.
In a recent case in this Court, Minister of
Finance of New Brunswick v. Simpsons-Sears Ltd., [1982] 1 S.C.R. 144, the
issue was as to the constitutional validity of a New Brunswick statute which
imposed a sales tax upon the respondent company in respect of the free
distribution of catalogues to persons in that province. One of the issues in
the case was as to whether the tax was an indirect tax. In support of the
contention that the tax was indirect, evidence was given by officers of
[Page 278]
the respondent company that the cost of the
catalogues, including the sales tax, would be recovered in the fixing of prices
to customers. This argument was not accepted. Chief Justice Laskin, who
delivered the unanimous decision of the Court, said at pp. 161-62:
There is no doubt, on the evidence, and on
ordinary economic considerations which are obvious enough to justify a Court in
taking judicial notice of them, that the company would seek, if it could, to
include the cost to it of its catalogues and the tax payable on their free
distribution in its expense of doing business, and thus seek to pass this
expense on to its customers. However, economic considerations are not
invariable touchstones of legal incidence. Although the tests of direct and
indirect taxation have, almost from the beginning of Canadian federalism, been
based on Mill’s Political Economy, they have necessarily been placed in
a legal setting and have been applied as providing a legal definition and not
an economic one. There is a passage in Bank of Toronto v. Lambe (1887),
12 App. Cas. 575, at p. 583, which is an appropriate reference here,
although it deals with a different type of tax. The passage is as follows:
…the tax now in question is demanded
directly of the bank apparently for the reasonable purpose of getting
contributions for provincial purposes from those who are making profits by
provincial business. It is not a tax on any commodity which the bank deals in
and can sell at an enhanced price to its customers. It is not a tax on its
profits, nor on its several transactions. It is a direct lump sum, to be
assessed by simple reference to its paid-up capital and its places of business.
It may possibly happen that in the intricacies of mercantile dealings the bank
may find a way to recoup itself out of the pockets of its Quebec customers. But
the way must be an obsure and circuitous one, the amount of recoupment cannot
bear any direct relation to the amount of tax paid, and if the bank does manage
it, the result will not improbably disappoint the intention and desire of the
Quebec Government. For these reasons their Lordships hold the tax to be direct
taxation within class 2 of sect. 92 of the Federation Act.
The “general tendency” argument, found, for
example, in the Caledonian Collieries case, is not one that establishes
a principle outside of the context in which it was used in that case. Where, as
in the present case, the tax imposed in respect of the free distribution of
catalogues takes no account of what ultimately happens to
[Page 279]
the catalogues, whether they are used or
discarded, and is unrelated to any purchases made from the catalogues, it is
manifest to me that the tax is so diffused in its impact that it cannot be said
that there is any clearly traceable way in which the tax can be passed on.
Moreover, to borrow a phrase from the reasons
of Rand J. in C.P.R. v. Attorney General for Saskatchewan, [1952] 2
S.C.R. 231, at p. 251, the tax in the present case is not “related or
relatable” to any unit of a commodity or its price; indeed, no commodity is
involved.
In my opinion the tax imposed by
s. 10(1)(a) is demanded from the very person who it is intended should pay
it. It was not imposed in the expectation or with the intention that it should
be passed on to another. It is a direct tax which the Legislature of
Newfoundland had the power to impose.
The appellants contended that the tax imposed by
s. 10(1)(a) even if valid, did not apply to them. In substance, their
contention was that, in the light of the circumstances under which their
royalties were paid and received, a tax upon those royalties would not be a
taxation within the province.
No material was filed in the Court of Appeal or
in this Court in support of the appellants’ contention. As I have already
noted, the factual basis for this submission appears only in the appellants’ factum
and the Court has been asked to rule on the question as to whether, if those
facts could be established, the appellants would be liable to tax.
I do not regard this procedure to be proper on
an appeal in a constitutional reference and any attempt in the future to follow
a similar course should be discouraged. However, the issue was argued before us
by counsel on both sides and, in view of the conclusion I have reached, I am
prepared to consider it.
I have already referred to the fact that Nalco
was incorporated by a special Act of the Legislature of Newfoundland. Javelin
is a federally incorporated company. Its head office is presently in Montreal.
It is registered to do business in Newfoundland and, up to and including the
year 1980, it filed annual returns with the Registrar of Com-
[Page 280]
panies there, describing its business as
“exploration and development of mineral properties”.
Wabush Iron Company Limited was incorporated
under the laws of the State of Ohio and is registered to do business in Newfoundland
as a foreign company. Pickands Mather & Co. is a partnership registered
under the laws of the State of Ohio and is registered to do business in
Newfoundland. They are the managing operators of the joint venture hereinafter
mentioned. Steel Company of Canada is federally incorporated and is registered
to do business in Newfoundland.
By lease dated May 26, 1958, the Government of
Newfoundland leased to Nalco an area known as the Wabush Deposit. On the same
day, Nalco, by way of sub-lease, leased the same deposit to Javelin.
The Nalco-Javelin (Mineral Lands) Act, 1957 (Nfld.), c. 84, was enacted by the Legislature of Newfoundland.
It authorized the Lieutenant Governor in Council to enter into agreements with
all of the parties above named. Section 3 provided that such agreements must be
substantially similar to the terms of the “statutory agreement” which appeared
as a schedule to the Act. Leases were then made between Javelin, as lessor, and
Pickands Mather and the Steel Company of Canada, as lessees, covering the
westerly portion of the Wabush Deposit, and between Javelin, as lessor, and
Wabush Iron Company Limited, as lessee, in respect of the easterly portion of
that deposit.
The Nalco-Javelin (Mineral Lands) Act, 1960, 1960 (Nfld.), c. 41, provided for what is called a “Statutory
Supplementary Agreement”. This agreement, which forms part of the legislation,
consolidated and amended the two leases made pursuant to the original Act. This
agreement, dated September 2, 1959, is the one which is concerned in the
appellants’ submission regarding tax liability.
[Page 281]
The granting clause demised to the lessee the
described land, together with the exclusive right to explore, investigate,
develop, produce, extract, remove by open pit method or other method of mining,
smelt, reduce and otherwise process, make merchantable, store, sell and ship
all iron ore products. An annual rental was fixed at $360 subject to certain
deductions. The term was up to and including May 20, 2055.
A. AND the Lessee hereby covenants with the
Lessor as follows:
1. That the Lessee will, during the term of
this Indenture, pay to the Lessor on or before the 25th day of January, April,
July and October (hereinafter called “Quarterly Payment Dates”) in each and
every year or if such day falls on a Sunday or a holiday then on the next
ensuing day, as royalty for each Gross Ton of Iron Ore Products shipped from
the Demised Premises during the calendar quarter immediately preceding the
first day of the month in which payment is to be made as aforesaid, an amount
equal to seven per cent (7%) of the Seven Islands Price thereof, or the sum of
seventy-five cents (75 c), Canadian Funds, whichever shall be greater (the
royalty so paid or payable being hereinafter called “Earned Royalties”);
In addition, there was provision for a minimum
royalty, calculated on a different basis, payable whether or not the lessee
conducted operations on the demised premises.
The “Seven Islands Price” was defined as a price
determined by a method of computation which was provided in the lease.
The place of payment of royalties was not
stipulated.
The contention of the appellants is that the
s. 10(1)(a) tax cannot apply to them because of the fact that the iron ore
produced from the leased lands is shipped out of Newfoundland, ultimately to
Seven Islands, in Quebec, for processing, that this product is then delivered
to a carrier for shipment to the consumer, that the amount of the royalty is
only determined at that time, and that
[Page 282]
Javelin receives payment of its royalties at its
head office in Montreal.
In my opinion, these facts are irrelevant to the
obligation of Javelin to pay the tax. The tax is not imposed upon operations
outside Newfoundland. This is a tax imposed upon a person who has obtained the
right to engage in mining operations for the production of a mineral resource
in Newfoundland and who has granted the right to engage in such operations to
someone else in return for payments made by the recipient of the grant. Javelin
obtained its right to conduct mining operations on certain lands in
Newfoundland from Nalco on the very day that Nalco had itself obtained such
rights from the Crown. Javelin granted the right to conduct such mining
operations to its lessee. The lessee agreed to pay a royalty “for each Gross
Ton of Iron Ore shipped from the Demised Premises”. The royalty accrued from
the date of actual shipment. Shipment was deemed to occur when the ore was
delivered to a carrier at the Demised Premises or from stockpile grounds or
from the plant or plants, as the case may be, for shipment to the consumer
thereof.
Whether or not, in fact, the royalties payable
to Javelin accrue here in consequence of some event outside Newfoundland and
wherever Javelin elected to receive payments of its royalties cannot affect the
application of the tax to those royalties. The tax arises when Javelin receives
payment for its grant to its lessee of the right to engage in mining operations
on Javelin’s land in Newfoundland. The essence of the tax is that it is imposed
in respect of income derived from a grant of the right to mine a Newfoundland
reserve from the taxpayer’s land in Newfoundland.
The case of Alworth v. Minister of Finance, [1978]
1 S.C.R. 447, is of some assistance here. It involved a tax imposed by a British
Columbia statute on income “derived from logging operations in British
Columbia”. Payment was resisted
[Page 283]
by the appellants on the ground that they were
not in the province in any of the respective taxation years and that, in
consequence, a tax upon them was not taxation in the province. Their appeal was
dismissed. Chief Justice Laskin, delivering the judgment of the Court, said at
p. 452:
Essentially, what is involved in the
present case is an appreciation of the incidence of the tax, based, as that
appreciation must be, on the subject-matter of the statute and the source of
the income in respect of which the tax is levied. I regard it as too mechanical
to find that an in personam tax is imposed here merely because the
charging section stipulated that a “taxpayer” must pay it. The obligation
to pay, a common one in tax legislation, does not necessarily determine the
incidence of the tax. The definition of taxpayer is not limited to persons who
reside in the Province but points rather to a class of persons identified with
the operations in respect of which tax is imposed, regardless of their place of
residence. It is the income derived from those operations, which themselves are
limited to the Province, that, in my view, carries the burden of the tax.
Whether the tax be characterized as an income tax or a tax respecting certain
economic activity in the Province the result is the same, namely, that it is
taxation within the Province. It would be to substitute form for substance and,
indeed, empty the charging section of substance (by inviting easy evasion)
to hold that a personal tax is imposed by the Act.
The position of the appellants in the present
case is much weaker than that of the appellants in the Alworth case.
Nalco is a Newfoundland company. Javelin has residence in Newfoundland by being
registered to do business there. By virtue of its sub-lease from Nalco it has
acquired mining rights in lands in Newfoundland granted to Nalco by the Crown.
In my opinion, the tax created by
s. 10(1)(a) applies to the appellants.
The appellants suggested that the legislation in
issue was invalid because it trespassed on federal legislative powers under
s. 91(2) of the Constitution Act, 1867 , “The Regulation of Trade
and Commerce”.
[Page 284]
There is no substance in this submission. The
Act under consideration is a tax upon income. There is no suggestion that it is
aimed at the regulation of interprovincial or international trade. The mere
fact that Javelin’s lessees remove the iron ore to another province for
processing and sale does not convert the Act which imposes a tax on Javelin
into legislation for the regulation of trade and commerce. (See Carnation
Co. Ltd. v. Quebec Agricultural Marketing Board, [1968] S.C.R. 238).
The final point for consideration is the
appellants’ contention that the s. 10(1)(a) tax cannot be imposed upon
them because of the provisions of agreements made by the Crown granting them
certain tax exemptions.
The appellants place reliance upon the
provisions of s. 8K(2) of The Newfoundland and Labrador Corporation
Limited (Amendment) Act, 1959 (Nfld.), c. 34, which replaced the same
numbered provision in The Newfoundland and Labrador Corporation Limited Act,
1951, 1951 (Nfld.), c. 88. This subsection provided for the payment by
the Corporation, or such person, firm or company actually carrying on mining
operations of 22 cents per gross ton of iron ore mined and shipped from the
demised premises, subject to variation as provided, and went on to say:
and such payment shall be in lieu of any
and all taxes that would otherwise be payable by the Corporation or any lessee,
sublessee, assignee or transferee of such premises under The Mining Tax Act,
chapter 43 of The Revised Statutes of Newfoundland, 1952, as amended from time
to time, or under any Act standing in the place of The Mining Tax Act as so
amended, and any taxes for which the taxes now imposed by The Mining Tax Act
are declared by that Act to be substituted, and any taxes imposed either
generally or specifically upon mines or minerals or specifically upon persons
carrying on the business of mining, in respect of operations under the said
mining leases or in respect of iron ore mines or iron ore products made,
produced, won, gotten, raised or removed under the provisions of the said mining
leases.
[Page 285]
The appellants contend that the list of taxes
referred to in this passage would include the type of tax imposed by
s. 10(1)(a). The respondent argues that the tax imposed by that
subsection is not a tax of the kind defined in s. 8K(2).
I do not find it necessary to make a decision on
that point because s. 12(a) of The Mining and Mineral Rights Tax Act,
1975, provides that:
12. Nothing
in any Act of the province, or in any grant, deed, licence, contract, agreement
or other document (whether or not such grant, deed, licence, contract,
agreement or other document has received ratification by the Legislature),
passed, given, made or entered into prior to the coming into operation of this
Act, shall be construed so as
(a) to defeat the liability of a taxpayer
to pay the tax required to be paid by Section 10 of this Part;
The effect of this provision is that the tax
imposed by s. 10(1)(a) has to be paid by the taxpayer notwithstanding the
provisions of any agreement previously made, or any statute previously enacted.
Within the limits of its constitutional legislative jurisdiction, the
provincial legislature is sovereign. It is not precluded from legislating in
its own field by any earlier agreement or statute. It could therefore provide
that the tax which it imposed should be payable by the taxpayer in any event.
In my opinion this submission of the appellants fails.
For these reasons, as well as for the reasons
stated by Mifflin C.J. in the Court of Appeal, I would dismiss this appeal. The
respondent should be entitled to costs in this Court as against the appellants.
There should be no costs payable by or to any of the inverveners.
Appeal dismissed with costs.
Solicitors for the appellants: Halley
& Hunt, St. Johns, Newfoundland.
Solicitors for the respondent: James J.
Greene and Joseph S. Hutchings, St. John’s, Newfoundland.